BURGESS V. WHEATE. 33 H. 8 (v), cestuy que use forfeited for his own treason, and not for the treason of his trustee. In Bro. 340, held, on a sale an use could not be declared to the vendor; but from the nature of the transaction, and the price paid, the use must be to the vendee. And, in Dyer, 155, on a bargain and sale inrolled, no estate could be declared out of the use of the bargainee. From hence it grew to be a maxim, that an use could not be on an use. When this was established, there was no idea that a second use could have any existence or effect: but if it was an use, trust, or confidence, it was executed; if it could not be executed, it was nothing. Terms for years were not within the stat. 27 Hen. 8. Trusts might be declared of them, to be executed in Chancery. By the advice of the Judges, in Dyer, 369, such trusts were held not assignable, were as a right of action, and nothing at law, but were merely to be executed in Chancery. This notion arose from the practice of limited terms in trust; and 'tis strange, after a trust was considered in Chancery as an interest, the Judges did not say it should be executed as an use, a confidence, within the statute, or distinguish between trusts executed and executory. But because the whole trust could not be limited different ways, the real [ * 159 ] use should not be raised out of the nominal one. *After this Vide Ley. 40, the trustee should be in was forced into Chancery, trusts long fluctuated under great uncertainty; 4 Inst. 85. In 43 Eliz., a trust was decreed in Chancery to be a mere right of action, and therefore not assignable. In Jac. 1st's time (Abingdon's Case) (u), all the Judges held the trust of a freehold estate was not forfeitable for treason: they must therefore consider it as a mere chose in action, 2 Roll. Abr. (C) pl. 1, fol. 780; trustee of a term for years is attainted of treason; the term is forfeit to the King, free of the trust, because the King comes in the post, and cannot be seised of an use. 11 Jac. 1, Cro. Jac. 513; trust of a That the heir of term held forfeited, trust of a freehold not; and they argued, that the King should not have the trust too, as it was forfeitable by the trustee. The argument which gives the forfeiture in treason, holds not in the case of a trust. If it was the same as an use, the statute would have extended to it. After the Restoration, Hale, on the subject of trusts, followed, to a degree, the errors of the time, and applied to trusts what had made uses intolerable. 1 Ch. Cas. 12, circ. 14 Car. 2, he held a trust of a fee descended to the heir should not be liable in Chancery to specialty debts of the ancestor, so that it descended free from debts. In 15 Car. 2, Colt against Colt, 1 Ch. Rep. 254, it was held the widow should not have dower of a trust in this Court. 21 Car. 2, Freem. 139, Ch. Cas. 128, Pratt against Colt, held that the trust of a fee descended should not be liable to judgment creditors. So the heir took it free from all incumbrances (x). (v) C. 20, s. 2: see 1 Hale, H. P. C. 248. (u) But see 1 Hale, H. P. C. 248-9; Reeve v. A. G. 2 Atk. 223. (w) Gawber's Case. (x) This is remedied by the statute of frauds, 29 C. 2, c. 3, s. 10: sec Doe v. Greenhill, 4 B. & A. 684. BURGESS ย. WHEATE. This, to 22 Car. 2, may shew how they reasoned in Westminster Hall upon trusts; Pitt against Pelham (y): the testator appointed his land to be sold, and the purchase-money to be divided among four persons, one of whom was his heir at law; but he did not devise his lands to any body, he did not give any body power to sell, he placed no express confidence in the heir to sell. The Master of the Rolls made a case to be heard before Lord Keeper. Diligent search was made for precedents, then a trial was ordered in Common Pleas, to see whether [ *160 ] the executrix of the testator, or her executor, she being dead, had a legal power to sell by implication. Upon a special verdict being found, the Judges negatived any such power. The cause came back into equity; and, after all, the Lord Keeper held the heir not liable as a trustee to perform the devise, or make any conveyance to a purchasor, and so dismissed the bill (≈). In my apprehension, trusts were not on a true foundation, till Lord Nottingham held the great seal. By steadily pursuing, from plain principles, trusts in all their consequences, and by some assistance from the Legislature, a noble, rational, and uniform system of law has been since raised. Trusts are made to answer the exigences of families and all purposes, without producing one inconvenience, fraud, or private mischief, which the statute Hen. 8, meant to avoid. The forum, where it is adjudged, is the only difference between trusts and legal estates. Trusts here are considered as between the cestuy que trust and trustee (and all claiming by, through, or under them, or in consequence of their estates,) as the ownership and as legal estates, except when it can be pleaded in bar of the exercise of this right of jurisdiction. Whatever would be the rule of law, if it was a legal estate, is applied in equity to a trust estate. The statute of frauds speaks of devises only of lands and tenements; yet the trust, being considered in this Court as the land and tenement, can only be devised as lands and tenements may pursuant to that statute. How different is it from an use! That is neither land nor tenement. This act gives sanction to trusts divided from the estate, and guards them from danger of parol proof. It would be endless and unnecessary to enumerate the various consequences through which the principle has been pursued, that a trust in Chancery is the estate at law, since 22 Car. 2. Among others, it has been declared, that the husband should be tenant per curtesy of a trust; the case of dower is the only exception, and not on law and reason; but because that wrong determination had misled in too many instances to be now altered and set right. Radnor against Vandebendy (a) was determined on that principle only in the House of Lords. In [ *161 ] Banks against Sutton, the argument of Sir J. Jekyll proves, (y) 2 Freem. 134, 1 Ch. R. 283, 1 Ch. Ca. 176. (z) But his decision was reversed in Dom. Proc., and it was decreed, that the heir should sell; S. C. 1 Lev. 304, T. (a) 1 Vern. 179, 356, Show. P. C. 69. BURGESS ย. WHEATE. there ought to have been dower of a trust, and he stretches there to make a distinction. In Attorney-General against Scott (b), that was not followed, because it would shake so many settlements. In Casborn against Inglis (c), Lord Hardwicke says, "How it came to be so settled at first, is a different "consideration, and difficult to find out a sound reason for: "but now we must adhere to it as established." The dissatisfaction has not been from allowing the tenancy per curtesy, but from denying the tenancy in dower, of a trust. And, if an alteration was to be introduced, the best way to set it right would be to allow the wife dower of the trust estate. Twenty years ago I imbibed this principle, that the trust is the estate at law in this Court, and governed by the same rules in general, as all real property is, by imitation. Every thing I have heard, read or thought of it since, has confirmed that principle in my mind. In Banks and Sutton (d), Sir J. Jekyll boggled at imitating the legal right (which depends upon an actual seisin of the freehold during the coverture) and of applying it to an equity of redemption. In the eye of this Court Lord Hardwicke thought, the equity of redemption is the fee-simple of the land. It will descend, may be granted, devised, entailed, and that equitable entail be barred by a common recovery. This proves it is considered as such an estate, whereof in consideration of this Court there may be a seisin; for without such a seisin, a devise could not be good of a trust. He who has the equity of redemption is considered as the owner of the land. He says, 'tis a settled right in equity, which a man can't come at, but by subpoena;-That the husband and wife being in perception of the rents and profits during the coverture, were seised of a freehold by imitation of the law. The allowing tenancy per curtesy of a trust is founded on the maxim, that equity follows the law; which is a safe as well as fixed principle; for it makes the substantial rules of property certain and uniform, be the mode of following it what it will. So that I take it by the great authority of this determination, on clear law and reason, cestuy que trust is actually and abso[*162 ] *lutely seised of the freehold in consideration of this Court: and therefore that the legal consequences of an actual seisin of a freehold, shall in this Court follow for the benefit of one in the post. To conclude this head. An use or trust heretofore was (while it was an use) understood to be merely as an agreement, by which the trustee and all claiming from him in privity were personally liable to the cestuy que trust, and all claiming under him in like privity. Nobody in the post was entitled under, or bound by the agreement. But now the trust in this Court is the same as the land, and the trustee is considered merely as an instrument of conveyance; therefore is in no event to take a (b) Forest. 138. (c) Or Scarfe, 1 Atk. 603: see Dixon v. Savile, 1 Bro. C. C. 326. (d) 2 P. Wms. 700. BURGESS v. WHEATE. benefit; and the trust must be co-extensive with the legal estate of the land, and where it is not declared, it results by necessary implication; because the trustee is excluded, except where the trust is barred in the case of a purchaser for valuaable consideration without notice. The trustee can transmit no benefit; his duty is to hold for the benefit of all who would have been entitled, if the limitation had not been by way of trust. There is no distinction now between those in the per and post, except in that case of dower, which is founded not upon reason but practice. As the trust is the land in this Court, so the declaration of trust is the disposition of the land. Therefore an essential omission in the legal disposition shall not destroy the trust. As where trustee dies before testator, or is incapable; upon the old notion of an agreement, a subpæna could not lie against the heir, where the legal limitation was void. The grounds why the lord by escheat neither took, nor was subject to, an use don't now subsist: the principles upon which the question must now be argued have no relation to it, whichever way it ought to be determined. Or rather, none of those principles were made or could ever be considered in the law of uses; for this Court never interposed in cases, where * the claim was in the post; and there in Edw. 4th's time, 'tis [ * 163 ] taken for granted that the lord shall not have it. "Tis a fixt principle that he shall not, because he is in the post. II. This brings me to consider the nature of this right by escheat. It has been truly said; in the beginning of feodal tenure this right was a strict reversion. The grant determined by failure of heirs; the land returned as it did upon the expiration of any less temporary interest. "Twas no fruit, but the extinction of tenure (as Mr. Justice Wright says), 'twas the fee returned. This definition holds equally, whether the investiture was to special or general heirs; for originally, by feodal law, tenant could not alien in any case without the lord's concurrence. The reversion took effect in possession for want of an heir, unless the lord had done or permitted what in point of law amounted to a consent to a new investiture or change of his vassal. This is the meaning of the distinction taken in the books, which mentions that nothing escheats where the tenant is in by title. Any man in possession by being tenant to the lord could not strip him of the reversion. Hence it followed, that the land returned in the state, in which it was granted, free from incumbrances. As soon as a liberty of alienation was allowed, without the lord's consent, this right changed its It became a sort of caducary succession. Thence the lord called tanquam hæres, Craig, 1. 2, c. 2, § 12—15. Lord takes as ultimus hares, &c. The resemblance of the lord's right by escheat to the heir's by descent does not hold throughout; and therefore the lord by escheat is (in Co. Litt. 215 b) with accuracy considered as assign in law. He took no possibility, or condition, or right of action, which could not be granted. He could not elect to avoid voidable acts, as feoff name. [ BURGESS V. WHEATE. ment of an infant with livery. But every right preserved to the heirs, which could be granted, goes to the lord by escheat. As if tenant makes lease for life, *reserving rent to him and * 164] his heirs, the rent will go to the lord as well as the inheritance. Thruxton against Attorney-General, 1 Vern. 340; the benefit of a trust term in an estate was decreed to the King by escheat; for, says the Court, the term goes with the inheritance by express limitation of the parties. The inheritance is escheated in the same manner, as if it had descended or been granted. Where the former owner has made no disposition, or left no heirs by blood, it must go somewhere. "Tis arbitrary, before settled; when settled, 'tis as favourable as any other positive rule. From the original nature of the tenure, the lord took it. In personal estates, which are allodial by law, the King is last heir where no kin; and the King is as well entitled to that, as to any other personal estate. brings me to the third head. This III. Whether, failing heirs of the trustee, the King must not, in this case, have taken the estate in a Court of equity, subject to the trust. This seems, in the present case, to be a very material consideration. For, if the King is not to be subject to the trust, there is no colour that he should claim the trust by escheat, though barely being in the post seems no objection now. That land escheated should be subject to the trust, seems to me most consistent with the King's right; whether the escheat be considered as a reversion as it once was, or a caducary possession ab intestato as it now substantially is. Considering it as a reversion. The King, as a reversioner, could not claim it in this case, but under the deed of 1718, as the investiture under which his tenant died seised. There is no other way of shewing the trustee to have been his tenant at all: The possession was with Mrs. Harding to the time of her death. Every alienation of a fee has some investiture. The land descends in the alienee's blood, and when that fails, the lord takes. But the [165] lord can't claim against his own *grant: He is bound by the terms of the alienation. If Mrs. Harding had made a will, how could the King claim against the deed made by the grantee to empower her to make a will? The King could set up no right by escheat to defeat the execution of that power. But one case, in which a possibility of reverter could remain after a fee granted: And that is, where lands are granted to a corporation; if corporation dissolved, the lands return to donor or his heirs (e). The King can't claim by escheat contrary to the terms or conditions, which the tenant held under. Two things;-1. That there is equity against the King. 2. That the lord is bound as much in a Court of equity by the equitable terms of his tenant's investiture, as he is in a Court of law by the legal terms. Taking the estate as a caducary possession, the lord can (e) 6 Vin. Abr. Corporations (H 3), pl. 9. |