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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 valua-
able 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 sub-
poena 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 [
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 name. It became a sort of caducary succession. Thence the lord called tanquam hceres, Craig, 1. 2, c. 2, § 12—15. Lord takes as ultimus hceres, &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

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Burgess ment of an infant with livery. But every right preserved to * the heirs, which could be granted, goes to the lord by escheat.

"EATE- J 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. Thrttxton 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. This brings me to the third head.

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

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(f) 6 Vin. Abr. Corporation) (H 3), pi. 9.

Wheats.

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only take it ah intestato absolutely. So far as the tenant has Burgess
not disposed of the estate, he can take, and no farther. The
tenant's power of disposing is absolute, without the lord's pri- v.
vity, without any determined form of conveyance. The trustee
has by his declaration of trust in 1718 made a valid convey-
ance of his trust in equity; and therefore a Court of equity
cannot, I apprehend, suffer the land to go as undisposed of by
the tenant, because, in the consideration of this Court, there is
a valid disposition made by him. But even at law the escheat
could not be free from the trust. The statute of frauds makes
a trust estate assets in the hands of the heir of cesiuy que
trust {/); consequently, for that purpose the estate descends to
the heir. In 18 Car. 2, before trusts were put on the rational
footing they now are, the apprehension of the Judges was, that
the lord by escheat ought to be subject to the trust: Lord
Bridgman thought so(g). In 1702, Sir J. Trevor upon the
same principle thought so, in Eales against England (A). Yet
Sir J. Trevor certainly knew there could be no escheat of an
use. If it was not to be subject to the trust, I think the in-
convenience would be very great; and where we are not tied
down by any erroneous opinions, which have prevailed so far
in practice, that property would be shook by an alteration of
* them, arguments of convenience and inconvenience are always [
to be taken into consideration. All the great estates of this
kingdom almost are now limited in trust. The trustees are
men of business, probably concerned for the family, and at a
little distance of time their pedigrees are not to be traced.
And if the surviving trustee was to die without heir, 'twould
be thought very hard, if that should lose the estate. But I rest
upon this: It seems to me a contradiction in terms, that he who
has no claim but ab intestato, where the owner has not dis-
posed of his property, should take contrary to and in preju-
dice of his disposition. The heir of blood might as well claim
the estate in contradiction to the equitable charge. An escheat
is now as much a title under the former owner, by consequence
of his former seisin, as the heir. Why else shall the lord be
deemed the assignee or heir of the tenant? I think the lord
may be considered as much his heir, as his heir by blood, and
is as much liable to all the dispositions. Suppose a devise in-
effectual in law, but good in equity; would the estate escheat
free from the trust? Suppose a devise to a trustee, in trust to
pay debts and legacies, and trustee dies without heir (i); are
all these charges to be gone, and not carried into execution,
and the estate to escheat free from 'em? To bind the lord,
there is no distinction between voluntary and meritorious limit-
ations. The lord by escheat must, in consequence of the te-
nant's disposition, be a trustee for all or none.

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Burgess

Wheate.

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But objections have been taken to subjecting the escheat to trusts.

Objection 1. From copyholds and the customs of manors. There the lord can't be subject to trusts, but takes the estate on the death of the tenant without heir. *This objection proceeds from not distinguishing between freehold and copyhold manors. In all manors, where admission is necessary to alienation, the escheat is absolute, the lord's consent being still necessary. In those copyholds, the lord is not bound by debts, alienation, or trusts; they are all void against him. But if he consents to a condition or trust on the Court-roll, then he is bound by it, for he can't claim against his own act (A). But in freeholds, the form of his concurrence not being necessary, he is always considered as much bound, ns if he was a party to the deed of alienation which makes the trust; because the power which the tenant now has by law, is equivalent to the lord's consent to the grant, when it was a strict reversion.

Objection 2. If the trustee is not to be considered as tenant without regard to the trust, in the case of escheat; then the lord can't be permitted to consider him as tenant, in case of heriot and relief. Brown's Case, Vern. (I). If the objection is applied to copyhold manors, it receives the same answer. The roll shews the tenure. If applied to freeholds held of the King or mesne lords, the case of heriots and reliefs is of no great consequence; but however [the lord] can't be hurt; for a conveyance in trust would be void, and fraudulent against the lord, in respect to them. The cestui/ que trust is the visible

(*) Anon. 4 Leon. 88, ca. 186; R. v. Haddenham, 15 East, 463; see also Peachey v. Duke of Somerset, 1 Stra. 454, per Lord Macclesfield, a| S. C. Prec. Ch. 573, 6 Via. Abr. Copyhold (D c.) pi. 9.

(I) Trin. Coll. v. Browne, 1 Veru. 441. It appears by the preamble to the statute of uses, that the lord's loss of wards, marriages, reliefs, heriots, and escheats, are enumerated among the many mischiefs of uses. Now many statutes had been before made at different periods for remedying the mischiefs of uses in particular cases, and by the statutes 4 H. 7, c. 17, and 19 H. 7, c. 15, the lord was to have relief on the death of the heir of cestui que use, if the use descended to him; but no remedy was provided for the loss of escheat: and therefore as the law stood at the time of tlie making of the statute of uses, if cestui que use in fee-simple had died without heir, the land would not have escheated, that mischief not being provided against by any former statute, and therefore that mischief (if it deserves that name) continues with respect to such uses and trusts as are not executed by the statute. For, with respect to them, the law continues the same since, as it was before, the statute of uses. The above mentioned statutes of II. 7 are, in Co. Lit 84 b, and 91 a, mentioned to be obsolete; and they would have been so,

had the statute of uses annihilated all uses and trusts. But by subsequent construction of it, since Lord Coke's time, it has been settled, that where in a feoffment or other conveyance there is a limitation of a use to the feoffee or grantee, and afterwards in the same deed another limitation of a use of the same lands to another person; there the second use will not be executed by the statute. Quare therefore, why the above mentioned statute of Hen. 7 should not still be considered as operating on such second uses? Yet those statutes seem to have been considered in the light they were viewed by Lord Coke ever since the stat of uses, for in Trin. Coll. v. Browne, no notice is taken of the stat. 19 H. 7, c 15, though the lord's loss of heriots is specially provided against as well as the loss of reliefs. It is true this statute in terms extends only to lands holden in socage (as, the 4 H. 7 did lo those holden by knights' service), and in the case in Vernon the lands were holden of the College, as of their re version: but it docs not appear to have been determined on that distinction: and it is cited here as an authority, without taking notice of any such distinction : and I do not recollect any argument from cither of those statutes, or so much as any notice of either, since the statute of uses. See also Co. Lit. 76 b.—MS. Serj. Hill.

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Wheat E.

168 ]

possessor. And I should think in the present case, if a heriot
was due from the tenant, the deed of 1718 is void against the
lord, in respect of heriots and reliefs. See how it stands.
Mrs. Harding kept possession till her death. The lord could
not know of this secret deed made by her in trust for herself,
or where the deed was. And she would be considered as his
tenant. But suppose he knew it, and chose to consider the
trustee as his tenant at law: I think he may do it in all cases,
where the trustee is party to the conveyance, and has accepted
the estate; and then no colour for Court of equity to interpose.
The trustee can't object, because by his own agreement he
has made himself liable to the burdens annexed to the estate;
and he can't be prejudiced, as the estate is a pledge in his
hands to reimburse him. And where *trustee is the visible' [
tenant, the lord can only consider him as tenant. The mort-
gagee in fee would be tenant to the lord in respect of his
heriots and reliefs, and he could not come on the mortgagor
for 'em, while the estate remained unredeemed. But where an
escheat happens, it does not follow but that the Court may in-
terpose to substantiate the agreement of the parties, though
they do not when there is no agreement.

Object. 3. 'Twas said, a mesne lord, by death of mortgagee without heirs, can take the escheat in preference to the personal representatives, who are entitled to the money, and in opposition to the mortgagor, who is entitled to the redemption. Tha would be glaring injustice. Pawlett's Case (/») seems settled on a true foundation, and this precise objection was in terms over-ruled. Lord Hale says, the tenure is extinguished, but it is over-ruled. Another answer occurs, that the lord may continue the tenure by accepting the cestuy que trust as tenant. If the lord admits his title, there will be no escheat. The King and the lord together may revive the tenure. Another answer that occurs is, that if the tenure was destroyed, any benefit arising from it to the lord might be secured by a decree to hold and enjoy. The last answer is, that if it should extinguish the tenure, the law never thought that sufficient to abridge the tenant's absolute right of alienation. So in the case of a grant in mortmain. It is said, that the King must take it free from the trust, because the King can't re-convey it; but this would hold equally in the case of mortgages, and the purpose might be answered another way,— there might be a decree to hold and enjoy. If it was so, 'tis strange to say that therefore he shall lose the whole estate, and have no relief at alii

IV. If what I've said be right, little is left for me to say upon this head. If lord takes an escheat as heir or assignee in law, then the King is within the express declaration of trust, which is to Elizabeth Harding, her heirs and assigns.. If [the] King would take it subject to trusts, he must of course be *entitled to an [ * 169 equitable estate by escheat. He can be subject to the trust on

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