61. Renewal of a Lease by a Trustee. 63. Or by a Person having a par- 65. Where there is Fraud. 72. A Purchase in the Name of a 80. Exception, Children emancipated. 82. And also a Wife. 85. No Trust between Lessor and 87. All Trusts are executory. Origin of Trusts. Vaugh. 50. 1 Atk. 591. 136. THE SECTION 1. the statute HE object and intention of 27 Hen. VIII. certainly was to destroy that double property in land, which had been introduced into the English law, by the invention of uses; for which purpose the statute enacted, that the legal seisin and possession should be transferred to the use. If therefore the intention of the Legislature had been carried into full effect, no use could ever after have existed for more than an instant. But the strict construction which the Judges put on that statute defeated, in a great measure, its intent; as they determined that there were some uses to which the statute did not transfer the possession. So that uses were not entirely abolished, but still continued separate and distinct from the legal estate ; and were taken notice of, and supported by the Court of Chancery, under the name of trusts. 2. A trust is therefore a use not executed by the statute 27 Hen. VIII. For originally the words use and trust were perfectly synonimous, and are both mentioned in the statute. But as the provisions of the statute were not deemed coextensive with the 1 Black. Rep. various modes of creating uses, such uses as were not provided for by the statute, were left to their former jurisdiction. 3. A trust estate may be described to be a right in Descripequity to take the rents and profits of lands, whereof tion of. the legal estate is vested in some other person; and to compel the person thus seised of the legal estate, who is called the trustee, to execute such conveyances of the land as the person entitled to the profits, who is called the cestui que trust, shall direct: in the 1 Show. R. mean time the cestui que trust, when in possession, is considered, in a court of law, to be tenant at will to the trustee. 73. 4. There are three direct modes of creating a AUse limited trust. The first arises from a rule established in upon a Use. 4 & 5 Philip and Mary; that a use could not be Tyrrell's limited on a use. The reason given by Lord Bacon Case, Dyer, for this determination is, because the words of the statute are," Where any person is seised of any Bac.Read.43. lands or tenements." Which excludes uses, as they do not fall within either of those descriptions. 155 a. 5. Thus, on a feoffment to A. and his heirs, to the 2 Comm.336. use of B. and his heirs, in trust for C. and his heirs, it was held that the statute executed only the first use: and that the second was a mere nullity. But as it was evident that B. was not intended to be benefited by that conveyance, the Court of Chancery took cognizance of the case; and decreed that B. should pay the rents and profits of the land to C. and execute such conveyances as he should direct. 2 P. Wms. Wagstaff v. 6. In a settlement, lands were conveyed to trus- Whetstone tees and their heirs, to the use of them and their v. Bury, heirs, to the use of A. B. for life, &c. It was 146. held that the legal estate was vested in the trus- Wagstaff, tees, and that the limitations to A. B. &c. were but Tit.38. c. 5. trusts. Att. Gen. v. Venables v. Morris, 7 Term R. 342, 438. 7. Ann Ratford conveyed lands to T. B. and his heirs, to the use of him and his heirs, in trust to permit the said Ann and her husband to receive the profits during their lives. Lord Talbot held, that as the estate was limited to trustees and their heirs, to the use of them and their heirs, so that it was actually executed in them, whatever came afterwards could be looked upon only as an equitable interest; for there could not be a use upon a use. 8. An estate was limited by deed and fine to the use of the husband for life, remainder to trustees and their heirs, during his life, to preserve contingent remainders; remainder to the wife for life, remainder to trustees and their heirs generally, and not during the life of the wife, to preserve the contingent uses and estates thereinafter limited, remainder to such persons as the wife should appoint, &c. . Upon a case sent from the Court of Chancery, the Court of K. B. certified, that the trustees took a legal estate in fee, after the determination of the wife's estate; and that all the subsequent limitations were trusts. 9. Where lands are conveyed by covenant to stand seised, bargain and sale, or appointment under a power, to A. and his heirs, to the use of B. and his Tit. 32. c. 10 heirs, the legal estate will be vested in A., and B. will only take a trust. & 14. Hopkins v. 1 Atk. 581. 10. In the case of a devise, the rule is the same. Thus where a person devised his real estate to trustees and their heirs, to the use of them and their heirs, upon several trusts; it was declared by Lord Hardwicke that the legal estate was vested in the trustees, and the subsequent devisees only took trusts. 11. In a case of a devise to trustees to several Boteler v. uses, which was exactly similar to that of Venables Allington, 1 Bro. Rep. v. Morris, Lord Thurlow held that the trustees took 72. the legal estate. But in a subsequent case the Court ante, § 8. of King's Bench held, that where it was not necessary for the trustees to take the legal estate, and the intention of the testator appeared to be, that the estate limited to the trustees should be confined to the lives of the tenants for life, the devise ought to 433. be construed accordingly. And it has been held by Sir W. Grant, that this doctrine is applicable to the case of a deed., Doe v. Hicks, 7 Term R. Curtis v. Price, 12 Ves. 89. Trustees to pay over the Rents. Bro. Ab. Use 52. 12. The second mode of creating a trust arose from Limitation to an opinion which was delivered by the Judges in 36 Hen. VIII., that where a man mede a feoffment in fee, to his own use, during his life, and after his decease that J.N. should take the profits, this was a use in J. N.; contrary, if he said that after his death his feoffees should take the profits and deliver them to J. N. This would be no use in J. N., because he could have them only by the hand of the feoffees. Thus the feoffees would have the legal estate, and consequently J. N. could only have a trust, which would be enforced in equity. 13. This rule has been applied to devises; but a distinction has been made between a devise to a person, in trust to pay over the rents and profits to another, and a devise in trust to permit some other person to receive the rents and profits. In the first case it was held that the legal estate should continue in the first devisee, in order that he might be able to perform the trust; for where he is directed to pay over the rents, he must necessarily receive them. But in the second case it has been adjudged that the legal Broughton v. Langley, 2 Ld. Raym. 873. estate is vested, by the statute, in the person who is to receive the rents. 14. Lands were devised to trustees and their heirs, to the intent to permit A. to receive the rents for his life, &c. It was determined that this would have been a plain trust at common law; and what at com. mon law was a trust of a freehold, was executed by the statute; which mentioned the word trust, as 2 Vent. 312. well as use. And that the case of Burchett v. Durdant, which had been determined otherwise, was not law. Trust for the separate Use of a Woman. Neville v. 15. Where an estate is conveyed or devised to trustees for the separate use of a woman; the Courts will, if possible, construe the devise so as to vest the legal estate in the trustees; because such a construction will best effectuate the intention of the donor. 16. Lands were devised to trustees and their heirs, 1 Vern. 415. in trust for a married woman and her heirs; and that the trustees should from time to time pay and dispose of the rents to the said married woman, for her separate use. The Court held it to be a trust only, and not a use executed by the statnte. South v. 5 Mod. 63. 1 Salk. 228. Say & Sele v. Jones, 1 Ab. Eq. 383. 17. A testator gave all the rents of certain lands to a married woman, during her life; to be paid by his executors into her own hands, without the intermeddling of her husband. Lord Chief Justice Holt was of opinion that the executors took the legal estate, as trustees for the wife; but the other Judges were of a contrary opinion. Lord Holt's opinion was however fully established in the following case.. 18. Lands were devised to trustees and their heirs, in trust to pay several legacies and annuities, and then to pay the surplus rents into the proper hands |