BURGESS v. WHEATE. cause such a limitation would have been good in law, and is implied in the conveyance of every legal fee. Upon the whole, I think the King is entitled to a decree. But if I am wrong in the principles I go upon, or (as is possible) in the application of them-if the deed of 1718 has conveyed a new fee, and changed the line of heirs, upon which the escheat [ *172 ] was to arise in this Court as well as at law; then, as between the heir ex parte materná and the trustee, I think the heir is entitled to a preference and a decree. Before 27 Hen. 8, if a man conveyed to use of himself and his heirs, the Chancery thought, that no change of the seisin was intended by such conveyance. And they decreed the estate to go as the old use would. The Court never decreed against estates in the post. The trust should ensue the nature of the use executed. But if settled, that the lord shall not be entitled by escheat, as if the old estate continued, and then a new question arises between the heirs of the old purchase and the trustee: Elizabeth Harding was seised ex parte paterná; and whether she has acquired a new fee, can only be disputed by the lord of the fee. Co. Litt. 12. The feoffee can't restrain the rent or condition to the paternal line (t). Suppose trustee covenanted to convey to Mrs. Harding or her heirs, he can't say that it is restrained to her heirs ex parte paterna. If he had reconveyed to her in this case, it would have descended to the heirs of purchase, and consequently, in the event that has happened, to the maternal heir. And there's no instance where a trustee can, by delaying a conveyance, create a benefit to himself, though he is never called upon so to do. When the blood of the grantee fails, the lord is entitled. In justice to the maternal heir entitled under the old investiture, it was, before stat. H. 8, and is now presumed in equity, that the owner meant no alteration of the old seisin by the conveyance in trust, which left the estate and ownership as it was. So that the conveyance leaves the estate just as it was. I think the reason should not be confined to the heirs under the old investiture, but should be extended to the lord. But if the lord is out of the case, there seems no reason to confine it to the paternal line. As between the heir and the trustee, as between Mrs. Harding and her trustee, the deed of 1718 is an original act, and the trustee's title is wholly derived under this deed. And every reciprocal engagement on his part to Mrs. Harding and her heirs, is confined to that deed. Both lines [173] are of her blood, and within the term heirs in the agreement, and within the express terms of his undertaking, and not only by necessary implication. But the trustee is intended to take no benefit himself, from the natural affection which Mrs. Harding may be supposed to have for all the heirs of her blood. There is no case, that the feoffee shall exclude the heirs by purchase, for his own benefit. No saying in the books before or since 27 H. 8, to this purpose; and in my apprehension, it (t) See ante, p. 128, and post, p. 184. is as much against conscience as law, upon the reciprocal agreement. To establish a trust for his own benefit and to restrain his engagements made to Elizabeth Harding and her heirs to the paternal line, seems unreasonable. With regard to the preliminary points, they are so clear, I shall say nothing upon them. I am sorry to have taken up so much time. I thought it necessary to do it, as I differ from so great authority. LORD KEEPER.-There is one objection, and two claims, upon which I am now to give my opinion. I agree with the Lord Chief Justice and his Honour, as to the objection. As to the other points, I think myself very much obliged to Lord Chief Justice and his Honour, and return them my thanks for their learned assistance, and their free and unreserved communication of their sentiments to me, during all the time that this matter has been under consideration. BURGESS v. WHEATE I. First, I shall take notice of the claim of the Crown, because several of the arguments I shall make use of on that, will tend to support the opinion I shall give on the other claims. The question on the information is, whether the cestuy que trust dying without heirs, the trust is escheated to the Crown, so that the lands may be recovered in a Court of equity by the Crown, or whether the trustee shall hold them for his own benefit. (States the case). *On 11 January, 1718, Mrs. Hard- [ 174 ] ing conveys to trustees (of whom Sir F. Page was the survivor) the lands in question, in trust for Mrs. Harding, her heirs and assigns, to the intent that she should appoint such estates thereout, and to such [persons], as she should think proper. Mrs. Harding dies without making any appointment, and without heirs ex parte paterná. The information charges, that the trustee took no benefit, but only for Elizabeth Harding, and to be subject to her appointment; and that she being dead sans heirs on the father's side, and having made no disposition of the estate, that Sir F. Page could take no estate for his own benefit by the deed or the fine, but takes it for the benefit of his Majesty, who stands in the place of the heir, and that the premisses are escheated to his Majesty. The question therefore is entirely a question of tenure, and not of forfeiture. I shall consider, first, The right of lords to escheat at law. Secondly, Whether they have received a different modification in a Court of equity. Thirdly, The arguments used in support of the information; and from the whole draw this conclusion, that the Crown has in this case no equity. 1. I shall consider the law of escheat, as settled by the municipal writers in the law, and reporters: and shall not regard what the law was in other countries; as they seem founded and calculated for empire and vassalage, to which I hope in this country we shall never be subject. I will just give a specimen of the feodal law. Craig, 504. Cause Amissionis Feudi: These causes are, incestuous marriages, parricide, fratricide, friendship contracted with the lord's enemies, revealing the BURGESS V. WHEATE lord's secrets, if they affect his life or reputation, outlawry not reversed, and all other causes in the discretion of the prætor.I cite this, to relieve me from the doctrine of the feudists. The legal right of escheat with us arises from the law of infeoffient to the tenant and his heirs, and then it returned [175]*to the lord, if the tenant died without heirs. The extension of the feoffment from the person of the tenant to the heirs special of his body, and then to his heirs and assigns, is accurately traced in a treatise of tenures by a learned hand (v);this reduces the condition of the reversion to this single event, viz. Ob defectum tenentis de jure. F. N. B. 337; A writ of escheat lies where tenant in fee of any lands or tenements holds them of another, and the tenant dies seised (u) without heirs. general or special, the lord shall have the land: because he shall have it in lieu of his services. The books are uniform, that in the case only of tenant's dying without heir, the escheat took place. As long as tenant or his heir, or, by his implied assent, another continued in possession by title, that prevented escheat. The law had no regard to the tenant's right to the land, but in right of his seisin. All these instances shew, that where there was a tenant actually seised, though he had no right to the tenements, and though the person who had the right died without heirs, yet the escheat was prevented. For if the lord has a tenant to perform the services, the land cannot revert in demesne. Roll. Abr. 816. Whittingham's Case (w). 7 Hen. 4, Heir of Disseisor. 1 Inst. 268 b, Feoffee of Disseisor. Upon these cases I would observe, that the lord's consent had nothing to do with establishing the right of the tenant's being duly seised, because in every one of these cases they all come in without the lord's consent; unless it may be said, that the lord is a virtual assenter, as well to the disseisins as the legal conveyances. And then, if that be so, it would operate to the establishing the right of the trustee here, who would say he is entitled under a conveyance in law, by the very consent of the lord; which is a stronger case than a disseisin. From these cases and authorities it must be allowed to be settled, that the law did not regard the tenant's want of title, as giving the lord right to escheat. [ *176 ] *2. The next consideration is, whether a Court of equity can consider it in a different light. Now when the tenant did not die seised, and a proper legal tenant by title continued, and consequently, the lord's seignory and services continued; can this Court say to the lord, Your seignory is extinguished, and (v) Sir M. Wright. (u)" The words of F. N. B. are so: but vid. F. N. B. 338 (C), in these words :-"And if the tenant be disseised, and afterwards dieth without heir, &c., it seemeth the lord shall have a writ of escheat, because his tenant died in the homage.' Contrà, 32 H. 6, 27 a, pl. 16, and so cited in Com. Dig. Escheat (B 2.); and the distinction there is, that if the tenant be disseised, the lord may enter, but not have a writ of escheat: but if the disseisor had died seised, the lord could neither enter, nor have a writ of escheat, ib. and it seems, by the reasoning of the Court, 32 H. 6, 27 a, that the lord can in no case have a writ of escheat, except where his entry was lawful; ibid."-MS. Serj. HILL. (w) 8 Rep. 42 b. to the tenant, Your tenancy is so too, though both are legal rights now subsisting at law? In consideration of uses with regard to escheats, equity has proceeded on the same principle as the law, where there was a tenant of the land that performed the services. And I don't find this Court had any regard to the merum jus of the tenant. Now the reason why there was no escheat on the death of cestuy que use in equity seems to be this, (and it is a reason equally applicable to uses and trusts), that the Court had nothing to issue a subpœna upon, no equity, nothing to decree upon; and every person must bring an equity with him for the Court to found its jurisdiction upon. It seems to me he could have no equity in the case of an use, or as owner of a trust, for this plain reason: an use before the statute could not be extended farther than the interest in the estate which the creator of the use could have enjoyed: as if the creator of the use had a fee-simple in the land, he could take back no more interest in the use, either declared or resulting, than he had in the land: if he makes a feoffment, and declares no uses, it results to him in fee, which is to him, his heirs and assigns. The consequence is, that the moment he dies without heirs or assigns, there was no use remaining. How then can you come here for a subpœna (whether he took back the same or a different use) to execute an use or trust which was absolutely extinct? That seems to me the plain and substantial reason, why in this case (whether you call it an use or a trust) there was no basis on which to found a subpoena. Lord Chief Justice's system is very great and noble, and very equitably intentioned. Such a system as I should readily lay hold of upon every occasion, if I thought I could do it consistently with the rules of law. BURGESS บ. WHEATE. * *What scintilla of equity is given to the lord? Lord Chief [ 177 ] Justice supposes, that by feoffment to two trustees for Mrs. Harding, her heirs and assigns, and for no other use, the lord is included in "her heirs and assigns." That expression cannot do so. I think the conveyance would have been the same, if assigns had been left out. Then it is said, the express declaration is to her heirs and assigns, and that there is an implied trust on this; for as the trustees are to take to no other use, and the express trust is served; therefore a trust in fee results to the lord, upon the extinguishment of heirs ex parte paterná. To that conclusion I have two objections: 1. I think such a trust would, if declared, be entirely void; (and whether declared by way of trust or use, it is the same thing), for when you have limited an estate to a man in fee, or declared the trust to him in fee, you have no more to dispose of in either case, and cannot limit one fee on another. It is said, in answer to this, that she could not have limited it to Sir F. Page and his heirs in default of her own heirs, but that a person may limit any thing according to the course of law, and there's a reverter to a person in fee in the course of law, therefore you may limit it so. But it reverts by operation of law on extinguishment of an estate, that was a fee-simple incapable of any [ [ BURGESS บ. WHEATE. farther limitation. The donor could not have limited it so. 2. With regard to the resulting trust there is this objection, which seems to me unanswerable. What is the estate conveyed to the trustees? It is Mrs. Harding's estate. Her husband and she are parties to the deed and fine. They pass all the estate that goes to the trustees. Can any thing result by way of trust or use, to a person not privy to the estate that passes by the deed? Where you have passed the estate without consideration, there in modern language an use results, or a trust results; because it is unequitable that a man should have an interest in the estate, when he has paid no consideration for it. But where a person is not party to a deed nor privy to the estate, I don't see how any thing can result for his benefit. 178] That this was the *notion in respect to an use, appears from authorities. The law was, that the lord could not have the escheat of an use. So is 5 Ed. 4, for I take that to be the report of a case; then it has all the authority the Year-books carry with them. And this has been adopted by all the writers since. Bacon, 79, does not question the authority of this case. He gives a reason of his own, which he substitutes as a better than that in the books, that there is a tenant in by title, which is a strong reason in law; but it does not mention that as a reason with regard to the subpoena.-It is not a conclusive reason, that the lord shall not have subpoena, because there is a person in possession. He should have it for that reason, if that person is liable to him in equity. Therefore he gives a better reason, because, says he, it never was his intent to advance the lord, but his own blood. Therefore that is the reason; it would not be within the intention of that trust, that any besides the blood of the covenantor should take. Nobody can imagine the tenant intended to provide a trust to answer the lord's escheat. Mrs. Harding never thought of escheat I suppose;but had it been suggested to her, "If you die without heirs that can possibly take your estate; would you rather have your "friend, you have chosen to make your trustee, take it, or that "it should go to the King?" She must have been a subject of more zeal than I can suggest, if she had said she would give it to the King. 66 As I am now stating the law and equity of escheats with regard to uses and trusts, I will here take notice of an objection that seems equally to affect the opinions of lawyers, with regard to the doctrine of uses and trusts; and that is the dilemma which was urged at the bar, as the basis of the equity in the present case, though I don't think it a necessary dilemma: viz. That the lord must have the estate by escheat, either on the death of cestuy que trust without heirs, or of the trustee without heirs discharged of the trust; but if he can't have it while the trustee lives, while there is a tenant, it would be monstrous, that the cestuy que trust should be prejudiced by putting the estate in the trustee's hands for the benefit of the family. *179] One part of this is a dangerous conclusion, the other is not. My answer is, that if the law be so that the lord shall in that |