As between purchasers for value, notice or no notice may have important effects; but a voluntary trust, as between the settlor, the trustee, and the cestui que trust, can be perfectly created without it. § 106. Under the statute of uses, uses could be raised either upon a valuable or pecuniary consideration, or upon what was called a good or meritorious consideration; that is, a consideration arising out of blood, marriage, or family affection, and the moral obligation that every one is under to provide for his family or relations. Thus, a covenant to stand, seized to the uses of a stranger, founded upon a valuable consideration, operated under the statute as a deed of bargain and sale to be enrolled, and conveyed the land to the stranger. But a covenant in consideration of blood or marriage, to stand seized to the use of a wife or child or other relation, created a use only in the cestui que trust, and the deed need not be enrolled. In all cases the consideration of this conveyance was the foundation of it. Therefore, a covenant to stand seized to the use of a stranger in consideration of love or affection for him was inoperative for want of a consideration; and a covenant in consideration of blood or marriage, to stand seized to the use of a relative and a stranger, vested the whole use in the relative, and was inoperative as to the stranger. From this brief statement can be seen the effect and meaning of what was called a good or meritorious consideration under the statute of uses.1 § 107. In analogy to this doctrine, under the statute of uses it has been urged that a voluntary post-nuptial settlement in favor of a wife or child, executory in all its aspects, would be enforced in favor of such wife or child on the ground of a good or meritorious consideration for such settlement.? And in Ellis 1 Phill. 342; Bycroft v. Christy, 3 Beav. 238; Godsall v. Webb, 2 Keen, 99; McFadden v. Jenkyns, 1 Phill. 153; Bridge v. Bridge, 16 Beav. 315; Cecil v. Butcher, 2 J. & W. 573. [Supra §§ 82, 96 and notes.] 1 Sand. Uses, 96-101; 2 Black. Com. 338. 2 Bonham v. Newcomb, 2 Vent. 365; Leech v. Leech, 1 Ch. Cas. 249; v. Nimmo, Sugden, Lord Chancellor of Ireland, after a most exhaustive examination of the authorities, decided that the meritorious consideration of providing for a child was sufficient to lead a court of equity to enforce an executory contract against the settlor. This case met with considerable criticism, and several cases were decided, more or less in opposition to it.2 In Moore v. Crofton, he allowed it to be overruled, declaring, however, at the same time, that he still thought it decided upon sound principles of equity, so that now it may be considered as settled in England, that an executory agreement founded on a meritorious consideration only will not be executed against the settlor himself.4 § 108. As to other parties claiming under the settlor, if he had sold the estate, or become indebted, the equity of a wife or child claiming as cestui que trust, on the ground of a meritorious consideration, would not be enforced against a purchaser or creditor. But if the settlor subsequently made a voluntary settlement, or died without disposing of the estate by some act inter vivos, there were authorities that the voluntary cestui que trust could enforce his equity as against other volunteers under another settlement, or against devisees or legatees,' or Fothergill v. Fothergill, Freem. 256; Sear v. Ashwell, and Gordon v. Gordon, 3 Swanst. 411; Watts v. Bullas, 1 P. Wms. 60; Bolton v. Bolton, 3 Sev. 414; Goring v. Nash, 3 Atk. 186; Darley v. Darley, id. 399; Hale v. Lamb, 2 Eden, 292; Evelyn v. Templar, 2 Bro. Ch. 148; Colman v. Sarel, 1 Ves. Jr. 50; 3 Bro. Ch. 12; Antrobus v. Smith, 12 Ves. 39; Rodgers v. Marshall, 17 Ves. 294: Ellison v. Ellison, 6 Ves. 656. 1 Ellis v. Nimmo, Lloyd & Goold, 333. 2 Holloway v. Headington, 8 Sim. 324; Dillon v. Coppin, 4 My. & Cr. 646; Jefferys v. Jefferys, 1 Cr. & Ph. 138. 3 Moore v. Crofton, 3 Jon. & La. 442. Antrobus v. Smith, 12 Ves. 46; Holloway v. Headington, 8 Sim. 325; Walrond v. Walrond, 1 Johns. 25. And see Phillips v. Frye, 14 Allen, 36; White v. White, 52 N. Y. 368. [Price v. Price, 14 Beav. 598.] 5 Bolton v. Bolton, 3 Swanst. 414, note; Goring v. Nash, 3 Atk. 186; Finch v. Winchelsea, 1 P. Wms. 277; Garrard v. Lauderdale, 2 R. & M. 154, 453. But see Mackay v. Douglass, L. R. 14 Eq. 106; Perry Herrick v. Attwood, 2 De G., & J. 39; Beal v. Warren, 2 Gray, 447. • Bolton v. Bolton, 3 Swanst. 414. 7 Ibid. against the heir-at-law or next of kin.' There was, however, this condition, that the persons against whom the settlement was sought to be enforced could not also plead a meritorious consideration; for if they also were children of the settlor, the considerations would be equal. In such cases the court referred it to a master to report whether they had an adequate provision independent of the estate. But at the present day in England it would appear that even as against volunteers claiming under the settlor, with or without an adequate provision, a voluntary executory agreement, whether under seal or not, cannot be enforced on the mere ground of a meritorious consideration.3 1 Watts v. Bullas, 1 P. Wms. 60; Goring v. Nash, 3 Atk. 186; Rodgers v. Marshall, 17 Ves. 294. 2 Goring v. Nash, 3 Atk. 186; Rodgers v. Marshall, 17 Ves. 294. Price v. Price, 14 Beav. 598; Colman v. Sarel, 1 Ves. Jr. 50; Jefferys v. Jefferys, 1 Cr. & Ph. 138; Antrobus v. Smith, 12 Ves. 39; Evelyn v. Templar, 2 Bro. Ch. 148; Holloway v. Headington, 8 Sm. 334; Joyce v. Hutton, 11 Ir. Ch. 123; Moore v. Crofton, 3 Jon. & La. 442. Mr. Lewin (p. 95 of his 3d ed.) has discussed this whole matter with a fulness that leaves little to be said. He says: "It has also been supposed that where the trust is imperfectly created, the court, without proof of valuable consideration, will act upon a meritorious consideration, as the payment of debts or provision for wife or child. The covenant to stand seized to uses, and the jurisdiction of the court in supplying surrenders and aiding the defective execution of powers, have generally been referred to as establishing or at least countenancing this doctrine. "As regards the covenant to stand seized to uses, it is evident that mere meritorious consideration was not a sufficient ground to attract the jurisdiction of the court; for no use would have arisen in favor of a wife or child unless there had been a covenant. There are several ways in the law,' said Lord Justice Holt, 'for declaring uses, whether upon transmutation of the possession or not. If a use be declared upon a transmutation of the possession, as in a fine of feoffment, it is sufficient for the party on the transmutation to declare that the use shall be to such a party of such an estate; but if the use arise without transmutation of the possession, the use then does not arise by virtue of any declaration or appointment, but there must be some precedent obligation to oblige the party declaring the use, which must be founded on some consideration; for a use, having its foundation generally on grounds of equity, could not be relieved in chancery without transmutation of possession, or an agreement founded on a consideration; and therefore if bargain and sale were made of a man's § 109. The tendency in the United States is to sustain and carry into effect an executory trust in favor of a wife or child lands, on the payment of the money, the use could have arisen without deed by parol; but if the use was in consideration of blood, then it could not arise by parol agreement without a deed, because that agreement was not an obliging agreement: it wanted a consideration, and therefore to make it an obliging agreement, there was necessity of a deed.' Jones v. Morley, 12 Mod. 161. "Thus, if equity be governed by the strict analogy of uses, the court cannot act upon meritorious consideration where the contract is by parol; and though, where the agreement is under seal, the argument of analogy applies, yet it follows not that equity will now raise a trust because formerly it would have created a use. A bargain and sale for 5s. consideration still operates by way of conveyance to transfer the estate; but should the bargain and sale be void, as such for want of an indenture or an indenture duly enrolled, it could not be argued that the agreement at the present day would be specifically executed upon the basis of a trust. It may further be remarked that if the covenant to stand seized to uses were now to regulate the administration of trusts, there would still be no ground for extending the relief to creditors, who, however, it is admitted on all hands, are equally entitled to the benefit of meritorious consideration. And the covenant to stand seized to uses extended, we must remember, not only to wife and child, but also to brothers, nephews, and cousins; but no one at the present day would think of admitting the same latitude in the execution of a trust. "With respect to the jurisdiction of the court in supplying surrenders of copyholds, the principle upon which the relief is founded appears to be this, that as the heir was never meant by the law to take otherwise than in default of the ancestor's will, if the ancestor manifests any intention in favor af a meritorious object, the court will not suffer the mere want of form to carry a benefit to the representative. 'I have looked,' said Lord Alvanley, 'at all the cases I can find upon what principle this court goes in supplying the defect. It is this: whenever a man having power over an estate, whether ownership or not, in discharge of moral or natural obligation, shows an intention to execute such power, the court will operate upon the conscience of the heir to make him perfect this intention. This is not to be confounded with the case of the heirs being disinherited by a will of freeholds not duly executed: there is no will at all. The court cannot see that there is such an instrument; but whenever there is such a power, it has been executed.' Chapman v. Gibson, 3 Bro. Ch, 230. And see Ellis v. Nimmo, Lloyd & Goold, 341. "The ground upon which the courts aid the defective execution of powers will be found upon examination to be precisely that upon which it supplies the surrender of copyholds. The power to the extent to which it may be exercised is regarded in equity as part of the dominion - as a [CHAP. III. founded upon a meritorious consideration, if the instrument is under seal,1 (a) though the rule is not fully established, and portion of the actual estate; and the donee of it is pro tanto the bona fide owner of the property, and the person taking in default of the donee's disposition is a quasi heir. Holmes v. Coghill, 12 Ves. 213; Coventry v. Coventry, at the end of Francis's Maxims in Equity. The only distinction between an actual heir and the person taking in default of the power is this; that the former is so constituted by course of law, while the latter is a quasi heir specially appointed by the settlor. Thus in aiding the de-fective execution of powers the court says, as in supplying surrenders, the donee of the power, who is the owner of the property to the extent of that power, has indicated an intention of providing for a meritorious object, and the person taking in default of the power, who is a kind of heir, shall not, through want of form, run away with the estate from those who are much better entitled. "It is clear that an agreement founded on meritorious consideration will not be executed as against the settlor himself. Antrobus v. Smith, 12 Ves. 39. Indeed, relief in such a case would offend against the security of property; for if a man improvidently bind himself by a complete alienation, the court will not unloose the fetters he hath put upon himself, but he must lie down under his own folly. Villers v. Beaumont, 1 Vern. 101; but if the court interpose where the act is left incomplete, what is it but to wrest property from a person who has not legally parted with it? Another observation that suggests itself is, that during the life of the settlor the ground of the meritorious consideration scarcely seems to apply; for can it be thought to be the duty of a husband to endow his wife, during the coverture with a separate and independent provision? or is a parent bound by any natural or moral obligation to impoverish himself (for such a case may be supposed) for the purpose of enriching a child? or has a court of equity the jurisdiction to appropriate a specific fund to creditors, when the debtor is still living? the presumption of law is that the creditor can obtain satisfaction of his debt by the usual legal process. It is after the decease of the settlor that meritorious consideration becomes such a powerful plea in a court of equity. The wife and children have then lost the personal support of the husband and parent, and who can have a juster claim to the inheritance of the property? The creditor is then barred, by Act of God, of his remedy against the debtor; and should the assets prove insufficient, how but by the assistance of equity can he hope to be satisfied 1 Stone v. Stone, L. R. 5 Ch. 74; Shepherd v. Bevin, 4 Md. Ch. 133; 9 Gill, 32; Harris v. Haines, 6 Md. 435; McIntire v. Hughes, 4 Bibb, 186; (a) In Kentucky and New Jersey the cases seem to support the doc trine that equity will complete an incomplete gift or trust as against |