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Commentaries on equity jurisprudence, as administered in England ..., Volume 2 online

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§ 974 a. Where a trust is created for the benefit of a party, it
is not only alienable by him by his own proper act and convey-

marriage articles and executory trusts arising under wills, as to the inference of the
intention of the parties. It is stated, post, § 984. See Stonor v. Curwen, 5 Sim. R.
264 ; Roberts v. Dixwell, 1 West, R 542 ; Countess of Lincoln i;. Duke of New-
castle, 12 Ves. 227 ; Wood v, Bumham, 6 Paige, R 513, 519 ; 4 Kent, Comm. Lect.
59, p. 218 ; Post, § 988, 985. See, also, 2 Fonbl. Eq. B. 1 ch. 4, § 6 ; Co. Litt. 290 ft,
Butler's note, 246, X ; 1 Ch. Pr. 1 Madd. 260 ; Com. Dig. Chancery, 4 W. 5, 4 W.
19; JeremyouEq. Jurisd.B.l,ch.l,§2,p.31,32; Id. p. 53, 56, 62, 63 ; ArUe,%b^.
Mr. Butler's note to Co. Litt. 590 ft, contains so valuable a summar}' of the general
doctrine on this subject, that it deserves to be here stated at large : *' It is to be ob-
served that, in most cases, particularly those which relate to real property, courst of
equity have generally endeavored that their decisions should bear the strictest pos-
sible analogy to the decisions of courts of law, in cases of a nmilar or corresponding
impression. All the canons of law, respecting the descent or inheritance of legal
estates in lands, have been applied to trust or equitable estates. Some of these, as
the exclusion of the half-blood of the ascending line, of the paternal line from the
maternal inheritance, and the maternal line from the paternal inheritance, are evi-
dently of feudal extraction, and are generally supposed to be contrary to reason and
equity. Yet they have been admitted, without any limitation, into the equitable
code of England. There is the same division in equity as there is at law, of estates
of freehold and inheritance of estates of freehold only, and of estates less than free-
hold ; of estates in possession, remainder, or reversion ; and of estates several and
estates undivided. It has been observed before, that every species of property is
in substance equally capable of being settled in the way of entail ; and that the
utmost term allowed for the suspense either of real or personal property from
vesting absolutely, is that of a life or lives in being, and twenty-one years afler,
and perhaps in the case of a posthumous child, a few months more. The analogy
between law and equity is in this instance complete. It may be laid down, with-
out any qualification, that no nearer approach to a perpetuity can be made through
the medium of a trust, or will be supported by a court of equity, than can be made
by legal conveyances of legal estates or interests, or will be admitted in a court
of law. In these leading rules we find the analogy holds. In somlT instances it
fails. Courtesy has been admitted ; dower, though a more favored claim, has
been refused in equitable estates. An equitable estate is, by its nature, incapable
of livery of seisin, and of every form of conveyance which operates by the Statute
of Uses. In the transfer, therefore, of equitable estates, these forms of conveyance
have been dispensed «with ; and a mere declaration of trust in favor of another
has been held sufficient to transfer to him the equitable fee. On the other hand,
trust estates are, by their nature, equally incapable of the process of fines or
recoveries. Yet fines are levied and recoveries are suffered of them ; and fines
and recoveries are as necessary to bar entails of equitable estates, as they arc to
bar entails of legal estates. In the case of a feme inheritrix, law and equity
agree in vesting the fee in the husband in her right, during their joint lives, and
subject to that, in preserving it to the wife. Where the feme is possessed of per-
sonal oroperty, the law, speaking generally, vests it absolutely in the husband, or,
at least, gives him the power of acquiring the absolute property of it Courts of



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§974 a.] TRUSTS. 161

ance, but it is also liable to be disposed of by operation of law
til invUumj like any other property ; as, for example, by a general
assignment under bankruptcy or insolvency, although indirectly
the very purposes of the trust may thereby be defeated. Thus,
where, by will, certain estates were bequeathed to trustees, in
order, among other tilings, to pay an annuity to the testator's son
of £ 500 for his natural life, the annuity being declared to be for
his personal maintenance and support during his life, and not on
any account to be subject or liable to the debts, engagements^
charges, and encumbrances of the son ; but as the same became
due, it was to be paid into the son's hands, and not to any other
person whatsoever, and the son became a bankrupt; it was held,
that the annuity passed by the assignment under the bankruptcy
to the assignees. For it was said, that the policy of the law does
not permit property to be so limited .that it shall continue in the
enjoyment of the bankrupt, notwithstanding the bankruptcy.
The testator might, if he had thought fit, have made the annuity
determinable on the bankruptcy,^ or have made it to go over to
another person in the event of the bankruptcy. But, while it
was the property of the bankrupt, it must be subject to the ordi-
nary incidents of property, and, therefore, subject to his debts.'
So, if a trust is created for a married woman for her separate use,
and the trustees are to pay the money into her proper hands and
for her use, her own receipt only being required, she may still
assign it, and her assignee will take the full title to it.^ Tlie
same rule will apply to the case of a trust fund in rents and
profits, created by a will for the benefit of a particular person

equity have,4n many cases, abridged the right of the husband to the personal
property of the wife, and qualified his power over it In fixing the term for the
redemption of mortgages, and in many other cases, an analogy to the term for
bringing ejectments has frequently influenced the decisions of the courts. In
other cases, an analogy to the term for ejectments, or the terms for bringing other
writs, has not been attended to. And in some instances the courts have not con-
sidered themselves bound, even by the statutes of limitations. JSmith v. Clay, 8
Bro. Ch. Rep. 638. But the cases where the analogy fails are not numerous ;
and there scarcely i^ a rule of law or equity of a more ancient origin, or which
admits of fewer exceptions, than the rule that equity- followeth the law."

* Graves v. Dolphin, 1 Sim. R. 66 ; Piercy v. Roberts, 1 Mylne & Keen, 4.

* Brandon v. Robinson, 18 Yes. 429, 433, 434 ; Hallet v. Thomson, 5 Paige, R.
583. [See Rochford v. Hackman, 10 £ng. Law & £q. Rep. 67, where Brandon
0. Robinson is commented upon.]

' Brandon v. Robinson, 18 Yes. 434 ; Post, § 1394.
SQ. JUB. — VOL. u. 11



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162 EQUTTT JUBISPRUDENCE. [CH. XXIV.

during his life, although there be a proviso that he shall not have
any power to sell, or to mortgage, or to anticipate in any way the
rents and profits.^

§ 975. In regard to trusts, the analogy to estates at the com-
mon law is not only followed, as to the rights and interests of the
cestui que trusty but also as to the remedies to enforce, preserve,
and extinguish those rights and interests. Thus, for instance,
there cannot, strictly speaking, be a disseisin, abatement, or intru-
sion, as to a trust estate. But, nevertheless, there may be such
an adverse claim of a trust estate by an adverse claimant, taking
the rents and profits, as may amount to an equitable ouster of the
rightful claimant ; and such, as if continued twenty years, would,
by analogy to legal remedies, bar any assertion of his right in
equity .2 We have already had occasion to consider this subject
in reference to statutes of limitations generally.^ And it may be
here added, that bars to relief in equity from lapse of time are
also entertained in courts of equity, independently of the express
provisions of any statute of limitations.*

§ 975 a. In general, a trustee is only suable in equity in regard
to any matters touching the trust. But, if he chooses to bind
himself by a personal covenant in any such matters, he will be
liable at law for a breach thereof, although he may, in the instru-
ment containing the covenant, describe himself as covenanting as
trustee ; for the covenant is still operative as a personal covenant,
and the superadded words are but a descriptio personce.^ Still,
however, where the matter is otherwise cognizable in equity, the
mere existence of such a covenant will not deprive the courts of
equity of their jurisdiction over the trust. ^

§ 976. It is a general rule in courts of equity, that wherever a
trust exists, either by the declaration of the party, or by intend-
ment or implication of law, and the party creating the trust has

• Green v, Spicer, 1 Russ. & Mylne, 395.

• Cholmondeley v. Clinton, 2 Jac. & Walk. 1 ; Id, 191, note; Bond v. Hopkins,
1 Sch. & Lefr. 428, 429; Hovenden v. Annealey, 2 Sch. & Lefr. 630, 636; El-
mendorf u. Taylor, 10 Wheat. R 168 to 176; Kane v. Bloodgood, 7 Johns. Ch.
R. 90, 113 to 128; Prevost v. Gratz, 6 Wheat. R. 481 ; Boone t;. Chiles, 10 Pe-
ters, 177 ; Shaver v. Radley, 4 Johns. Ch. R. 310, 316.

» Ante, § 55, 529, 771 ; Post, § 1520, 1521 ; Prevost v, Gratz, 6 Wheat R. 481.
*'Piatt V. Vattier, 9 Peters, R. 406, and case^ there cited; 1 Fonbl. Eq. B. 1,
ch. 4, § 27, note (q) ; 1 Madd. Ch. Pr. 365; Past, § 1520, 1621.

• Duvall V, Craig, 2 Wheat. R. 46.



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§ 974a- 977.] trusts. 163

not appointed any trustee to execute it, equity will follow the
legal estate, and decree the person, in whom it is vested, (not be-
ing a bond fide purchaser for a valuable consideration without
notice, or otherwise entitled to protection,) to execute the trust.
For, it is a rule in equity, which admits of no exception, that a
court of equity never wants a trustee.^ This is often applied to
the cases of powers of sale of lands, given by will for the pay-
ment of debts and other purposes which are in the nature of a
trust. In such cases, if the power becomes extinct at law, either
from no person being appointed in the will to execute it, or from
the party designated dying before the execution of it, courts of
equity will decree the execution of such trust, and compel the
party in possession, as heir or devisee of the legal estate in the
lands, to perform it.^ And, generally, it may be stated, that
where property has been bequeathed in trust, without the appoint-
ment of a trustee, if it is personal estate, the personal representa-
tive is deemed the trustee ; and if real estate, the lieir or devisee
is deemed the trustee, and is bound to its due execution.^

§ 977. The power of a trustee over the legal estate or property
vested in him, properly speaking, exists only for the benefit of the
cestui que trust. It is true, that he may as legal owner do acts
to the prejudice of the rights of the cestui que trusty and he may
even dispose of the estate or property, so as to bar the interests of
the latter therein ; as by a sale to a bond fide purchaser, for a val-
uable consideration without notice of the trust. But, when the
alienation is purely voluntary, or where the estate devolves upon
heirs, devisees, or other representatives of the trustee, or where
the alienee has notice of the trust, the trust attaches to the estate,
in the same manner as it did in the hands of the trustee himself,
and it will be enforced accordingly in equity.^ And although the
trustee may, by a mortgage, or other specific lieu, without notice
of the trust, bind the estate or the property ; yet it is not bound
by any judgments, or any other claims of creditors against him.^

» Ck>. Litt. 290 5, Butler's note (1); Co. Litt. 113 a, Butler's note (1); Ante,
§ 98; McCartee v. Orph. Asylum Soc. 9 Cowen, B. 437.

' Co. Litt lis a, Butler's note (1) ; Id. 290, Butler's note (1).

» Piatt V. Vattier, 9 Peters, R. 405, and cases there cited ; 1 Fonbl. Eq. B. 1,
ch. 4, § 27, note (7) ; 1 Madd. Ch. Fr. 365.

* 1 Madd. Ch. Pr. 868, 864 ; 2 Fonbl. Eq. B. 2, ch. 7, § 1, and note (a)', Pye
V. George, 1 P. Will. 129 ; Saunders r. Dehew, 2 Vem. 271.

' Ibid. [* It was recently determined, after considerable examination of the



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164 EQUITY JURISPRUDENCE. [CH. XXIV.

How far acts of forfeiture by the trustee ought to be allowed to
bind the estate of the cestui que trusty has been a matter of con-
siderable diversity of judgment.^

[* § 977 a. It seems to be considered, that where the trustee
holds the legal title in trust property, witli the power to convert
the same into money and apply the money to the purposes of the
trust, a bond fide purchaser will hold the property free from all
trust. In order to enable the cestui que trust to follow the same
into the hands of an assignee from the trustee, it must appear
either that no consideration was paid or else that the assignee
knew that the trustee was misapplying the trust estate and took
the conveyance in aid of such misapplication. It is not enough
that one who advances money, on the pledge of the trust estate,
knew it was of that character, if he had no reason to doubt the
right of the trustee so to use it.^]

§ 978. What powers may be properly exercised over trust prop-
erty, by a trustee, depends upon the nature of the trust, and
sometimes upon the character and situation of the cestui que trust.
Where the cestui que trust is of age, or sui juris, the trustee has
no right (unless express power is given) to change the nature of
the estate, as by converting land into money, or money into land,
so as to bind the cestui que trust. But where the cestui que trust
is not of age, or sui juris, it is frequently necessary to his inter-
ests that the trustee should possess the power; and in case his
interests require the conversion, the acts of the trustee, bond fide
done for such a purpose, seem to be justifiable.^

§ 979. It has, also, been laid down, as a general rule, that the
cestui que trust may call upon the trustee for a conveyaoce to ex-
ecute the trust ; ^ and that, what the trustee may be compelled to
do by a suit, he may voluntarily do without a suit. But this rule
admits, if it does not require, many qualifications in its practical
application ; for, otherwise, a trustee may incur many perils, the
true nature and extent of which may not be ascertainable, until
there has been a positive decision upon his- acts by a court of

authorities, that creditors levying upon lands held by the debtor in trust, but with-
out notice to the creditors, acquired no title against the cestui que trust. Hart,
Leslie, and Warren v. Farmers' and Mechanics' Bank, 33 Vt. R. 252.]

> 1 Madd. Ch. Pr. 363, 364 ; 2 Fonbl. Eq. B. 2, ch, 7, § 1, note (a).

« [* Ashton V. Atlantic Bank, 8 Allen, 217.]

3 2 Fonbl. Eq. B. 2, ch. 7, § 1, note (a).

* See Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571.



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§977-9796.] trust. 165

equity, or a positive declaration by such a court of the acts,
which he is at liberty to'do.^

§ 979 a. Courts of equity carry trusts into effect only when
they are of a certain and definite ciiaracter. If, therefore, a trust
be clearly created in a party, but the terms by which it is created
are so vague and indefinite that courts of equity cannot clearly
ascertain either its objects or the persons who are to take, then
the trust will be held entirely to fail, and the property will fall
into the general funds of the author of the trust. Thus, for ex-
ample, where a lady in her lifetime indorsed a promissory note of
£ 2000, and sent it to another lady in a letter, whereby she gave
it to the latter for her sole use and benefit, for the express pur-
pose of enabling her to present to either branch of the testatrix's
family any portion of the principal or interest thereon, as she
might deem the most prudent ; and in the event of her death em-
powering her to dispose of the same by will or deed to tliose, or
eitlier branch of her family she might consider most deserving
thereof; and stating, that the indorsement was made to enable
her to have the sole use and power thereof ; it was held, that the
letAr created a trust, the objects of which were too indefinite to
enable the court to execute it ; and that, therefore, the £ 2000
formed a part of the donor's personal estate.^ It was clear in
this case, that the donee could not take to her own sole use, for
tliere was a superadded trust showing that not to be the intention
of the donor ; and therefore, the property reverted to the donor,
as it would upon the failure of any ordinary trust.^

§ 979 b. So, where a testatrix bequeathed the residue of her
estate to her executors ^^ upon trust to dispose of the same at such
times and in such manner, and for such use and purposes, as they
shall think fit, it being my will that the distribution thereof shall
be left to their discretion " ; it was held to be a trust in the execu-
tors of such a vague and uncertain nature, that it could not be
executed by a court of equity, and it was therefore void ; and the

* See Mr. Fonblanque's note (c), 2 Fonbl. Eq. B. 2, ch. 7, § 2 ; Moody v. Wal-
ters, 16 Ves. 802, 303, 307 to 314.

■ Stubbfl V. Sargon, 2 Keen, R. 255 ; Ommanney v. Butcher, 1 Turn. & Russ.
260, 270, 271 ; Wheeler v. Smith, 9 How. U. S. C. 79.

• Post, § 1071 to 1073, 1166, 1183, 1197 a. See Wood v. Cox, 2 M. & Craig,
684; S. C. 1 Keen, R. 317.



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166 EQUITY JUBISPBUDENCE. [CH. XXIV.

residuary estate so bequeathed was decreed to belong to the next
of kin of the testatrix.^

§ 980. Express trusts are those which are created by the direct
and positive acts of the parties by some writing, or deed, or will.
Not that, in tliose cases, the language of the instrument need
point out the nature, character, and limitations of the trust in
direct terms, ipsissimis verbis; for it is sufficient that the inten-
tion to create it can be fairly collected upon the face of the in-
strument from the terms used ; and the trust can be drawn, as it
were ex visceribus verborum? Implied trusts are those which
are deducible from the nature of the transaction, as a matter of
clear intention, although not found in the words of the parties ;
or which are superinduced upon the transaction by operation of
law, as* matter of equity, independent of the particular intention
of the parties, sometimes called resulting or constructive trusts.

§ 981. The most usual cases of express trusts are found in
preliminary sealed agreements, such as marriage articles, or arti-
cles for the purchase of lands ; or in formal conveyances, such as
marriage settlements, terms for years, mortgages, and other cou-
veyances and assignments for the payment of debts, or for fals-
ing portions, or for other special purposes ; or in last wills and
testaments, in a variety of bequests and devises, involving fidu-
ciary interests for private benefit or public charity. Indeed,
many of these instruments (as we shall abundantly see) will also
be found to contain implied, constructive, and resulting trusts;
and the separate consideration of them throughout would, there-
fore, be scarcely attainable, witliout frequent repetitions of the
same matters as well as of the same illustrations.

[* § 982. We cannot go minutely into the subject of particular
trusts. Numerous implied trusts arise out of express trusts. We
shall- not hereafter attempt to discriminate nicely between the two
classes of trusts, unless where perspicuity seems to require it.]

^ Fowler v. Garlike, 1 Russ. & Mylne, 232; Wheeler v. Smith, 9 How. U. S.
C. 79.
* Fiaher v. Fields, 10 Johns. B. 494.



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§9796-983.] MARRIAGE SETTLEMENTS. 167



CHAPTER XXV.

MARRIAGE SETTLEMENTS.

[* § 983. Marriage settlements ooostraed strictly, but marriage articles more liber-
ally.

\ 984. Equity will constme executory trusts, under marriage settlements, more
faTorably to the issue, than those under wills.

^ 985. Will construe contract, as mere articles of settlement in favor of the issue.

\ 986, 987. Will not generally decree specific execution of articles at suit of volunteer.

^ 987 a. How far a marriage settlement made after marriage is good against cred-
itors.

4 988. Personal chattels and terms for yean may be settled like real esute held ia
fee.

\ 989.^8tates pur autre vie partake of the incidents of estates tail

4 990. Executory devises of terms and chattels. Remote limitations void.

4 991. Limitations to preserve oonttngent remainders.

5 992. This effected by means of special trusts.

§ 993. Courts of equity will aid such trustees in preserving the inheritance.

4 994. Will compel the execution of such trusts.

4 995. Will sometimes compel trustee to join in conveyance, to defeat the remainder.

4 996. Courts of equity will not control the discretion of a trustee.

4 997. Difficulty of determining when they should join.]

§ 983. And, in the first place, in regard to Marriage Settle-
ments. Where an instrument, designed as a marriage settle-
ment, is final in its character, and the nature and extent of the
trust estates created thereby are clearly ascertained and accu-
rately defined, so that nothing further remains to be done ac-
cording to the intention of the parties, there the trusts will be
treated as executed trusts, and courts of equity will construe
them in the same way as legal estates of the like nature would
be construed at law upon the same language.^ Thus, if the
language of the instrument would give a fee tail to the parents
in a legal estate, they will be held entitled to a fee tail in the
trust estate. But where no marriage settlement has actually
been executed, but mere marriage articles only for a settlement^
there, courts of equity, when called upon to execute them, will

* 1 Fonbl. £q. B. 1, ch. 6, § 7, and note (n) ; Id. § 8, note (s) ; 2 Fonbl. £q.
B. 2, ch. 1, § 5, note (ib) ; Fearne on Conting. Rem. by Bntler, p. 145 to 148 (7th
edit); Id. p. 133 to 136; 1 Madd. Ch. Pr. 360; Syng^ v. Hales, 2 B. & Beatt.
507; Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 559, 571 ; 4 Kent,
Comm. Lect 61, p. 802 (2d edit).



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168 ^ EQUITY JURISPRUDENCE. [CH. XXV.

indulge in a wider latitude of interpretation, and will construe
the words, according to the presumed intention of the parties,
most beneficially for the issue of the marriage. In executing
such articles they will put it out of the power of the parents to
defeat the issue, by requiring that the limitations in the mar-
riage settlement should be what are called limitatipns in strict
settlement; that is to say, instead of giving the parents a fee
tail, the limitations will be made to them for life, with remain-
ders to the first and other sons, &c., in the fee tail ; and if the
articles are applicable to daughters, the like limitations will be
made to them also.^ And in cases of executory trusts arising
under wills, a similar favorable construction will be made in favor
of the issue in carrying them into effect, if the court can clearly
see from the terms of the will that the intention of the testator
is to protect the interests of the issue in the same way.^

§ 984. There is, however, a distinction recognized in equity be-
tween executory trusts created under marriage articles, and those
created under wills, in relation to the interpretation of them and

* 1 Fonbl. Eq. B. 1, ch. 6, § 7, and note (w) ; Id. § 8, note («) ; Fearne on
Con ting. Rem. p. 90 to 114, by Butler (7th edit.); Earl of Stamford v. Hobart,
1 Bro. Pari. Cas. 288 ; Glenorchy v. Bosville, Cas. Temp. Talb. 8. See 1 White
& Tudot^s Eq. Leading Cases, 1, and notes ; Countess of Lincoln v. Duke of New-
castle, 12 Yes. 218, 227 ; Taggart v. Taggart, 1 Sch. & Lefr. 87. There is a most
elaborate note of Mr. Fonblanque (1 Fonbl. Eq. B.,1, ch. 6, § 8, note s), on Uiis
subject, in which the distinction between trusts executed and trusts executory is
ftilly discussed, and the distinction stated in the text is firmly maintained. I re-
gret that it is too long for an insertion in this place. See also Atherly on Mar-
riage Settlement, ch. 7, p. 93 to 105. Lord Eldon, in Jervoise v. Duke of North-
umberland (1 Jac. & Walk. 559, 571), has taken notice of the confused and inac-
curate senses in which the words executory trusts and executed trusts are often
used. In one sense aU trusts are executory, since the cestui que trust may call for



Online LibraryJoseph StoryCommentaries on equity jurisprudence, as administered in England ..., Volume 2 → online text (page 20 of 101)