why that might not be limited in any mode of conveyance which operated to transfer the right of reverter, nor does there seem to be any inconsistency in the limitation of estates, one of which must come to an end before the other can vest in possession.

Mr. Preston expresses the opinion that it would have been more consistent with principle to have decided that the trustees had chattel interests, as in Goodtitle v. Whitby, 1 Burr. 228, with vested remainders after and expectant on these interests; but what would this have been but to have escaped the difficulty, if any existed, by a change of name?

The limitation was to trustees and to their heirs of an absolute interest which in its terms imported an estate in fee. How is it possible to regard such a limitation as passing only a chattel interest? Such a construction can only be adopted by considering the quality of an estate to depend upon the evanescent character of the trusts to which it is subject. But in determining the character of limitations of real property we cannot look beyond the estates themselves.

If an estate is given to one and his heirs determinable on a certain event which may never happen, a fee is created, and the estate of the grantor is exhausted so far as the limitation extends.

If the object for which an estate is created is to determine the question whether the interest is real or personal, then in all cases, the terms and forms of grant and limitation, and even an actual investiture may be disregarded.

In the case of Goodtitle v. Whitby, which Mr. Preston cites as analogous to Tracey v. Lethulier, and where the estate of the trustees was construed to be a chattel interest, there was nothing in the terms of the grant inconsistent with such an estate. The devise indeed was to the trustees and their heirs but only during the minorities, and therefore an estate for years was created.

In the case of Wellington v. Wellington, 4 Burr. 2165

which is classed by Mr. Preston with Tracey v. Lethulier as doubtful in principle, it was decided that the estate devised was a fee, determinable when the purpose of paying the testator's debts, &c. out of the land should be performed. The devise was to trustees and their heirs, and the estate might continue forever, but as it might also determine, the whole interest of the devisor was not exhausted, and therefore a remainder after the determinable fee was valid.

Mr. Preston admits "that there is one instance, however, in which by the acknowledged rules of law, a fee may by will be limited in contingency, and yet the fee may be vested under another gift." The gift of a fee in contingency, with the gift of a fee by a residuary clause, is, he says, an example of this state of title. By this concession, he does in fact waive his objections to the cases cited.

The simple question is whether the devisor has an interest so certain and fixed as to be capable of being conveyed, for it is wholly unimportant how that interest is conveyed, if it is capable of vesting.

The residuary clause is efficacious to create a fee after a conditional fee, because the previous limitations in the will give an interest which cannot be divested of its conditional qualities, or enlarged to a higher interest.

The effect of the residuary clause is a test of the quantity of estate remaining in the devisor, after the limitation of the conditional fee. The residuary devise carries the entire interest of the testator and as the estate remaining undisposed of is a reversionary interest, the same estate passes to the devisee.

Mr. Preston says "the residuary devisee is substituted in the place of the heir, who would take in default of a gift. An express and specific devise would produce the like effect."

In the case of Tracey v. Lethulier, the devise to Lethulier, after the determinable fee to the trustees, was such an

express and specific devise, and yet this writer condemns as anomalous, the decision of lord Hardwicke which recognised a remainder as vested after such a fee. If he means that a devise of a fee as a specific limitation after a conditional fee would not be regular, but that a specific devise of the residue of estate, or of the possibility, would convey a fee, his distinction is unimportant, whilst the principle conceded entirely sustains the doctrine of lord Hardwicke in the case in question.

S. F. D.

ART. VI.-CONVEYANCES FRAUDULENT UNDER THE BANKRUPT LAW.

THE policy of the bankrupt law is to secure an equal distribution of the property of the bankrupt; no conveyance, therefore, can be sustained, which is designed to give a preference to one or more of the creditors. Such a conveyance is void as against the creditors generally, but it may be founded upon a good consideration between the parties; it is not, therefore, absolutely void: it operates like a conveyance void under the statute of 13th and 27th Eliz. prima facie to transfer the title, and is regarded as an act of bankruptcy, because thus efficacious. Fraudulent conveyances are usually connected with the idea of a corrupt motive and a correspondent advantage to the party making the conveyance. In the case in question the conveyance is only fraudulent because it invades the rights secured by statute to all the credi

tors.

On the occurrence of the event of bankruptcy the right of the creditors to an equal distribution becomes absolute and vested before the bankruptcy the insolvent trader has the power and the right to dispose of all his property. This is incident to his character as a trader. In the course of his business he may make payments, give security for existing

debts, convey his land, or other property, and if the consideration is valuable, the mere fact of insolvency will not impair the validity of the transaction.

To constitute an act of bankruptcy, it must be shown. that the conveyance not only operates to prevent an equal distribution to all the creditors, but that it was in contemplation of bankruptcy, and therefore fraudulent in relation to their rights. The effect of a conveyance by way of preference deprives creditors of their rights in the same manner as a conveyance without consideration. In each case creditors are deprived of the property to which they had a right to have recourse, and on which they relied, though they had no lien or absolute right, which might not, in the fair course of business, be defeated.

All conveyances which provide for an unequal distribution, or by which one or more creditors are preferred in contemplation of bankruptcy, are, therefore, fraudulent and justly regarded as acts of bankruptcy.

Since the insolvent trader has, however, before his bankruptcy, the absolute disposition of all his affairs, it becomes an important consideration to determine what acts of proprietorship may be sustained during that period, after he becomes insolvent and previous to an ascertained bankruptcy within the statute.

The insolvent trader has, during this period, the absolute right of property, except for the purposes of transfer, and the right to convey except when the conveyance produces that change of condition which destroys his right of property.

Whether a conveyance is an act of bankruptcy depends upon many circumstances which determine the intent and character of the transaction.

In the case of Worsely v. Demattos, 1 Burr. 467, a debtor, who continued in possession as ostensible owner, conveyed all his property, as security for moneys to be advanced, to

enable him to carry on his trade, and lord Mansfield decided that the conveyance was fraudulent and an act of bankruptcy. He was of opinion that two objects were contemplated by the bankrupt law: the management of the bankrupt's estate; and an equal distribution amongst the creditors. In this case it did not appear that the trader was bankrupt at the time of the conveyance. The conveyance was in contemplation of bankruptcy within the statute, but it was made at a time when there was no actual bankruptcy, and contemplated a contingent state of insolvency.

The transaction was fraudulent in respect to creditors at common law, and a fraud upon the bankrupt law.

Lord Mansfield in this case examined the previous authorities, and stated the principles on which they rested, so far as conformable with the policy of the law. Before this case the rule relating to fraudulent conveyances under the bankrupt law appears to have been fluctuating. The cases on the subject cannot easily be reconciled with principle.

Lord Mansfield stated the distinctions upon which they might be supported, and which may be regarded as constituting the rule by which courts are at this day governed.

It was decided in the case of Jacob v. Shepard, cited 2 P. Williams, 427, that a conveyance of particular goods by a trader a few months before his bankruptcy, in trust to pay a part of his creditors, was not an act of bankruptcy.

In this case it did not appear that the debtor actually thought of committing an act of bankruptcy, and he did not fail until several months after the conveyance. The conveyance was of specific goods, and was immediately carried into execution. It was probably made under a threat of legal diligence, and the business of the trader was not broken up by the conveyance.

Sir Joseph Jekyll decided, that the deed was fraudulent, but lord King, upon an appeal, directed an issue at law to try, "whether by the execution of the deed the trader be