of uses does not put an end to the trust, and where it is necessary to enlarge an estate although there are no words of inheritance, courts have been obliged to resort to different expedients to avoid the technical rules of law upon the subject of inheritances. In those States where no technical or other words are necessary to convey a fee no difficulties arise. (a) the trust property is to be sold and proceeds distributed to the beneficiaries, there is still an active trust, and the estate is not executed in the cestui. Kirkland v. Cox, 94 Ill. 402; Read v. Power, 12 R. I. 16. 1 Williams v. First Presby. Soc., 1 Ohio St. 498; Rutledge v. Smith, 1 Busb. Eq. 283; Co. Litt. 385, 386; 1 Prest. Touchstone, 182; Rawle on Covenants, 344; Shaw v. Galbraith, 7 Penn. St. 112. [See Brown v. Reeder, 108 Md. 653.] (a) In many States statutes have words of inheritance in all conveydone away with the necessity of ances. CHAPTER XI. PROPERTIES AND INCIDENTS OF THE LEGAL ESTATE IN THE HANDS OF TRUSTEES. § 321. Common-law properties attach to estates in trustees. § 322. §§ 323, 324. § 325. § 326. § 327. § 328. § 329. §§ 330, 331. § 332. § 333. § 334. § 335. § 336. § 337. § 338. § 339. § 340. § 341. § 342. §§ 343, 344. § 345. § 346. §§ 347, 348. §§ 349, 350. §§ 351-353. Dower and curtesy in trust estates. Dower and curtesy in equitable estates of cestui que trust. Trustees must perform duties of legal owners. Forfeiture and escheat of the equitable estates of cestui que Suits concerning legal title must be in name of trustee. Who has possession of personal estate. Rights and privileges Who proves debt against bankrupt. Who has the right of voting. Trustee may sell the legal estate. May devise the legal estate. But see § 341 By what words in a devise the trust estate passes. Where a trust estate passes by a devise, and where not. Propriety of devising a trust estate. Whether a devise can execute the trust. Rule in New York, &c. Where a testator has contracted to sell an estate. Rights of the last surviving trustee, and his heirs or executors. Presumption of a conveyance or surrender by trustee to cestui Where the presumption will be made, and where not. Must be some evidence on which to found the presumption. § 321. As a general rule, the legal estate in the hands of a trustee has at common law precisely the same properties, characteristics, and incidents, as if the trustee were the absolute beneficial owner. The legal title vests in him, together with all the appurtenances and all the covenants that run with the land. The trustee may sell and devise it, or mortgage it, or it may be taken on execution. It may be forfeited, and it will escheat on failure of heirs, and so it will descend to heirs on the death of the trustee.2 (a) All these properties and incidents attach to the legal estate at common law, whether in the hands of a trustee or of an absolute owner; but these incidents do not generally interfere with the proper execution of the trust, for all conveyances and all incumbrances made or imposed upon the estate by the trustee, for other purposes than those of the trust, or in breach of the trust, are utterly disregarded by a court of equity, whatever may be the effect of such conveyances or incumbrances in a court of common law.3 And as the trustee may in a court of law, as a general rule, deal with the legal estate in his hands, as if he was the absolute owner, so the cestui que trust in a court of equity may deal with the equitable estate in him: he is the beneficial and substantial owner, and in the absence of any disability, — that is, if he is sui juris, - he may sell and dispose of it; and any legal conveyance of it will have in equity the same operation upon the equitable estate as a similar conveyance of the legal estate would have at law upon the legal estate. While a trust for the general benefit of one 1 Devin v. Henderchott, 32 Iowa, 192. 2 Zabriskie v. Morris & Essex R. Co., 33 N. J. Eq. 22. [ As to the effect of a conveyance known to be in contravention of the terms of the trust, see Robinson v. Pierce, 118 Ala. 273.] 3 Leake v. Leake, 5 Ir. Eq. 366. Matthews v. Wardel, 10 G. & J. 443; Burgess v. Wheate, 1 Eden, 226; Croxall v. Sherard, 5 Wall. 268; Reid v. Gordon, 35 Md. 184; Boteler v. Allington, 1 Bro. Ch. 72; Campbell v. Prestons, 22 Grat. 396. (a) In several States statutes have rendered all conveyances by trustees in contravention of the terms of the trust absolutely void at law. See statutes of New York, Michigan, Minnesota, North Dakota, South Dakota, Wisconsin, Montana, Cal ifornia, Kansas. And in several States it is part of the statutory law that the title does not descend to the heir of a trustee or pass to his personal representative. Ibid.; Alabama. sui juris, not confined to maintenance, may create a transmissible interest, yet a trust for the maintenance of an imbecile son will not create a transmissible interest, although the will contains a limitation over to the issue of such son.1 In case of a trust for the use of a married woman as if she were sole, the husband has no control over the property, and cannot of himself lease or otherwise dispose of it.2 § 322. The legal estate in the hands of a trustee was subject at common law to dower and curtesy; but, as those who take in dower or curtesy take by operation of law, they are subject to the same equities as the original trustee; therefore, if the widow of a trustee should take dower in a trust estate, she would take her dower subject to the same trusts that the estate was under in the hands of her husband. It would thus be of no benefit to her; and it is now understood to be the equitable rule, that a widow has no dower in the lands held by her husband as trustee, and the same observations apply to the right of curtesy in trust estates. (a) If, however, the equitable estate meets 1 Gray v. Corbit, 4 Del. Ch. 135. Panill v. Coles, 81 Va. 380. 3 Bennett v. Davis, 2 P. Wms. 319; Noel v. Jevon, Freem. 43; Nash v. Preston, Cro. Car. 190; Casborne v. English, 2 Eq. Cas. Ab. 728; Hinton v. Hinton, 2 Ves. 631; 1 Sugd. V. & P. 358. 4 King v. Bushnel, 121 Ill. 656; Derush v. Brown, 8 Ham. 412; Green v. Green, 1 id. 249; Cooper v. Whitney, 3 Hill, 97; Powell v. Monson, etc., 3 Mason, 364; Bartlett v. Gouge, 5 B. Mon. 152; Cowman v. Hall, 3 Gill & J. 398; Robison v. Codman, 1 Sumn. 129; Dean v. Mitchell, 4 J. J. Marsh. 451; Ray v. Pung, 5 B. & Ald. 561; Gomez v. Tradesmen's Bank, 4 Sandf. 102. (a) This equitable rule has been so far adopted by courts of law that it is not necessary or customary for the wife of a trustee to join in the latter's conveyances for the purpose of releasing dower and homestead or for the husband of a trustee to release curtesy. Substantially, if not theoretically, therefore, there is neither dower nor curtesy in the legal estate held by a trustee. Barker v. Smiley, 218 Ill. 68; Gritten v. Dickerson, 202 Ill. 372; King v. Bushnell, 121 Ill. 656; Schaefer v. Purviance, 160 Ind. 63; Johnston v. Jickling, 141 Iowa, 444. See 1 Ames' Cases on Trusts, (2d ed.) 374, notes; Lewin on Trusts, (11th the legal estate in the same holder, the equitable merges in the legal estate, and dower and curtesy will attach; and so they will attach so far as there is a beneficial interest in the trustee.2 1 Hopkinson v. Dumas, 42 N. H. 303. 24 Kent, 43, 46; Prescott v. Walker, 16 N. H. 343. ed.) 241. This is true whether the trust is express or implied. Thus it has been held that a wife has no dower rights in land which her husband has entered into a valid contract to convey to another either before acquiring the legal title or contemporaneously with the deed to him, Hallett v. Parker, 69 N. H. 134; or before his marriage. Oldham v. Sale, 1 B. Mon. 76. But it has been held that an unenforceable parol trust in land held by a husband does not deprive a wife of her dower rights, and that a subsequent reconveyance by the husband in recognition of the trust does not shut out her dower rights. Bartlett v. Tinsley, 175 Mo. 319; Pruitt v. Pruitt, 57 S. C. 155. But see Johnson v. Jickling, 141 Iowa, 444. A wife's rights to dower in partnership lands of which her husband holds a moiety of the legal title is at least subject to the "trust" upon which it is held. Brewer v. Browne, 68 Ala. 210; Ratcliffe v. Mason, 92 Ky. 190, 194; Burnside v. Merrick, 4 Met. 537, 541; Dyer v. Clark, 5 Met. 562; Young v. Thrasher, 115 Mo. 222; Sparger v. Moore, 117 N. C., 449; Parrish v. Parrish, 88 Va. 529; Martin v. Smith, 25 W. Va. 579, 584. Whether or not the wife of a partner has dower in the portion of partnership real estate in which her husband, holding legal title, has an ultimate beneficial interest, has been a subject of controversy. Under the English statute and decisions the wife of a partner has no rights of dower in the land itself, because under the implied agreement of the partners, it is equitably converted, so that no partner has an ultimate right to partition, but only a right to share in the proceeds of the land. Deering v. Kerfoot's Ex'r, 89 Va. 491; Parrish v. Parrish, 88 Va. 529; In re Music Hall Block, 8 Ont. Rep. (Can.) 225. The same is true in America wherever the court has found an actual agreement which equitably converts the land. Greene v. Greene, 1 Ohio, 535; Mallory v. Russell, 71 Iowa, 63; Galbraith v. Gedge, 16 B. Mon. 631, 636; Markham v. Merrett, 7 How. (Miss.) 437. In the absence of such an agreement, a wife has dower in her husband's ultimate share of real estate remaining unconverted after the partnership has been wound up, but whether or not she has any vested or inchoate right of dower in the partnership real estate until the extent of her husband's ultimate share has been determined has not been clearly settled. See Strong v. Lord, 107 Ill. 25; Young v. Thrasher, 115 Mo. 222; Woodward-Holmes Co. v. Nudd, 58 Minn. 236, 27 L. R. A. 340; Dawson v. Parsons, 63 N. Y. State Rep. 320; Welch v. McKenzie, 66 Ark. 251; Walling v. Burgess, 122 Ind. 299; Huston v. Neil, 41 Ind. 504; Revelsky v. Brown, 92 Ala. 522; Du Bree v. Albert, 100 Pa. St. 483, 487. VOL. I. - 35 545 |