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the time being, whatever may be the extent of his equitable interest.1 So it was not allowed to be set up in favor of a defendant who showed no title but a mere naked possession, which might have been obtained by a disseizin of the beneficial owner. And where two litigants both claimed to be the beneficial owners, a surrender of an outstanding legal estate or term was not presumed, lest either obtaining it should defeat the other without regard to the merits of his beneficial title.8

§ 356. In England there was a system of conveyancing by which outstanding terms were made to attend the legal title and protect it. Much litigation and discussion has been had over these terms, their merging in the legal title, and their presumed surrender. They have very little importance in this country, and the statement of the law concerning them is not deemed necessary.

1 Doe v. Cook, 6 Bing. 179; Tenny v. Jones, 10 Bing. 75; Bartlett v. Downes, 8 B. & Cr. 616; Noel v. Bewley, 3 Sim. 103; Wilson v. Allen, 1 J. & W. 611.

2 Doe v. Cook, 6 Bing. 179; England v. Slade, 4 T. R. 682; Doe v. Sybourn, 7 T. R. 2.

Doe v. Wright, 2 B. & A. 710.

4 See Hill on Trustees, pp. 253–263.

CHAPTER XII.

EXECUTORY TRUSTS.

§§ 357-359. Nature of an executory trust. The rule in Shelley's case.

§ 360. Distinction between marriage articles and wills.

§ 361. Construction of marriage articles and their correction.

§ 362. Where strict settlements will not be ordered.

§§ 363, 364. Settlement of personal property.

§ 365. Construction of marriage settlements.

§ 366. Executory trusts under wills.

§ 367. Who may enforce the execution of executory trusts.

§ 368. Inducements for marriage.

§§ 369, 370. Construction of executory trusts under wills.

§ 371. The words "heirs of the body" and "issue."

§ 372. When courts will reform executory trusts.

§ 373. How courts will direct a settlement of personal chattels.

§ 374. Whether courts will order a settlement in joint-tenancy.

§ 375. What powers the court will order to be inserted in a settlement. § 376. Settlement will be ordered cy près the intention.

§ 357. IT is a fundamental proposition that equitable es tates are governed by the same rules as legal estates, otherwise inextricable confusion would ensue.1 If there was one rule on the equity side, and another on the law side of courts, there would be no certainty or uniformity of interpretation or construction. Thus at common law a grant to A. for life, remainder to the heirs of his body, vested an estate in fee-tail in A., which he could bar, and cut off the remainder. The same rule was applied to executed trusts. Thus if land is given to A. and his heirs in trust for B. for life, remainder to the heirs of his body, B. takes an equitable fee-tail; 2 for the

1 Frye v. Porter, 1 Mod. 300; Price v. Sisson, 2 Beas. 168; Cowper v. Cowper, 2 P. Wms. 753; Burgess v. Wheate, 1 Wm. Black. 123; Cushing v. Blake, 30 N. J. Eq. 689.

2 This illustration states the law only in States where the rule in Shelley's case, as it is called, is in force. In States where the rule is abrogated

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same rules apply to the two species of estate.

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where technical words are used in the creation of an executed trust estate, they will be taken in their legal technical sense,2 though Lord Hardwicke once added this qualification, “unless the intention of the testator or author of the trust plainly appeared to the contrary." But this qualification has been time and again overruled, and it is now an established canon that a limitation in trust, perfected and declared by the settlor, shall have the same construction as in the case of an executed legal estate. But while technical words receive their technical meaning in equitable as well as legal estates, technical words are not always necessary to create and limit equitable estates in fee. Thus an equitable fee may be created in a deed without the word "heirs," and an equitable entail without the words "heirs of the body," if the words used in their popular sense are equivalent to the technical words, or if the intention is sufficiently expressed and clear.5 Thus if an estate is devised to A. and his heirs in trust for B. without other limitations, B. will take an equitable fee; for it is plain that B. is to take an equitable estate as large as the legal estate that passed to A. and his heirs, which is a legal fee. But if an estate is conveyed by deed to A. and his heirs

by statute, those who take in remainder under the limitation, take as purchasers; and the same rule applies to equitable estates.

1 Noble v. Andrews, 37 Conn. 346.

2 Wright v. Pearson, 1 Ed. 125; Bale v. Coleman, 8 Vin. 268; Jervoise v. Northumberland, 1 J. & W. 571; McPherson v. Snowdon, 19 Md. 197.

8 Garth v. Baldwin, 2 Ves. 655.

Brydges v. Brydges, 3 Ves. Jr. 125; Austen v. Taylor, 1 Ed. 367; Glenorchy v. Bosville, Ca. t. Talb. 19; Synge v. Hales, 2 B. & B. 507; Wright v. Pearson, 1 Ed. 125. But see Cushing v. Blake, 30 N. J. Eq. 389; Carter v. Montgomery, 2 Tenn. Ch. 216.

Shep. Touch. by Preston, 106.

Moore v. Cleghorn, 10 Beav. 423; 12 Jur. 591; Knight v. Selby, 3 Man. & Gr. 92; Doe v. Cafe, 7 Exch. 675; Watkins v. Weston, 32 Beav. 238; McClintock v. Irving, 10 Ir. Ch. 481; Brenan v. Boyne, 16 Ir. Ch. 87; Betty v. Elliott, ib. 110 n.; Re Bayley, ib. 215.

in trust for the grantor for life, remainder for his children, without the word "heirs," the children take an estate for life only, in analogy to the rules of law.1

§ 358. The rule in Shelley's case was never a rule of intention, or of construction to reach and carry out the settlor's intention; but it was established as an absolute rule of property to obviate certain difficulties that would arise in relation to tenures, if certain persons to whom property was limited were allowed to take as purchasers, and not by descent.2 It is notorious that the rule disappointed the intention of settlors in most cases, and gave an absolute disposal of the inheritance to the first taker, where the settlor intended that such first taker should have only an estate for life.3 As trusts are

1 Overton v. Halliday, 14 Beav. 467; 15 Beav. 480; 16 Jur. 71; Lucas v. Brandreth, 28 Beav. 274; Tatham v. Vernon, 29 Beav. 604; Nelson v. Davis, 35 Ind. 474.

2 Doebler's App. 64 Pa. St. 9.

For these reasons, the rule is now abolished in many of the States by statute. The proposition of the text, however, should be read in the light of the remarks of Agnew, J., in Yarnall's App. 70 Pa. St. 340. "In regard to wills the cases show that technical phrases, as well as forms of expression decided in other cases, are not permitted to overturn the intent of the testator, when that intent is clearly ascertained to be different in the will under examination by the court. This broad principle needs no citation to support it, for it is founded on the universal rule that the intention of the testator is the guide for the interpretation of wills. The rule in Shelley's case is only an apparent not a real exception to this statement. It sacrifices a particular intent only to give effect to the main intent of the testator. All the authorities are agreed that this rule has no place in the interpretation of wills, and takes effect only when the interpretation has been first ascertained. Mr. Fearne, Contingent Remainders, p. 188, says, 'Nothing can be better founded than Mr. Hargrave's doctrine, that the rule in Shelley's case is no medium for finding out the intention of the testator; that, on the contrary, the rule supposes the intention already discovered and to be a superadded succession to the heirs, general or special, of the donee for life, by making such donee the ancestor terminus or stirps, from which the generation of posterity or heirs is to be accounted; and that whether the conveyance has or has not so constituted an estate of freehold, with a succession engrafted on it, is a previous question which ought

wholly independent of tenure, they ought not to be affected by the rule, and a few cases have seemed to indicate that they were withdrawn from the operation of it; but it is now established that the same rule shall apply to the same limitation whether it is of an equitable or a legal estate. Thus the rule in Shelley's case will be applied to a gift to A. and his heirs in trust for B. for life, and remainder to his heirs, or heirs of his body. The reason of the rule as applied to legal estates was some real or fancied difficulty concerning tenures, or to bring estates one generation sooner into commerce, or some other reason; for neither judges nor text-writers are agreed upon the original reasons of the rule. The reason of the application of the rule to limitations of trust estates is to preserve a uniformity of the law in relation to the two kinds of estates in land. This leads Mr. Lewin to say, that although the rule is not equally applicable to trust estates, yet But the rule will not be applied to

it is equally applied.

to be adjusted before the rule is thought of; that, to resolve that point, the ordinary rules for interpreting the language of wills ought to be resorted to; that when it is once settled that the donor or testator has used words of inheritance according to their legal import, has applied them intentionally to comprise the whole line of heirs of the tenant for life, and has really made him the terminus, or ancestor by reference to whom the succession is to be regulated, then comes the proper time to inspect the rule in Shelley's case.' In Hileman v. Bouslaugh, 1 Harris, 351, Ch. J. Gibson expresses the same idea in fewer words, thus: This operates only on the intention of the testator when it has been ascertained, not on the meaning of the words used to express it. The ascertainment is left to the ordinary rules of construction peculiar to wills; but when this is ascertained, is found to be within the rule, then there is but one way; it admits of no exceptions." "

v.

1 Withers v. Allgood, cited, and Bagshaw v. Spencer, 1 Ves. 150.

2 Garth v. Baldwin, 2 Ves. 646; Wright v. Parsons, 1 Ed. 128; Brydges Brydges, 3 Ves. 120; Jones v. Morgan, 1 Bro. Ch. 206; Webb v. Shaftesbury, 3 Myl. & K. 599; Roberts v. Dixwell, 1 Atk. 610; West, 536; Britton v. Twining, 3 Mer. 175; Spence v. Spence, 12 C. B. (n. s.), 199; Coape v. Arnold, 2 Sm. & Gif. 311; Noble v. Andrews, 37 Conn. 346; Cushing v. Blake, 30 N. J. Eq. 689.

8 Lewin on Trusts, 88 (5th ed.).

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