Legal estate.

Equitable estate.

Estates in equity.

By the recent act to confer on the County Courts a limited jurisdiction in equity, it is enacted, amongst other things, that these courts shall have and exercise all the power and authority of the High Court of Chancery in all suits for the execution of trusts in which the trust estate or fund shall not exceed in amount or value the sum of five hundred pounds (u). This act came into operation on the first of October, 1865 (v).

Modern Chancery different to ancient.

Connty Courts.

(.s) Ante, p. 153. (t) 1 Sand. Uses, 331 (3G5, 6th ed.)

(u) Stat. 28 & 29 Vict. c. 99, p. 1, amended by stat. 30 & 31 Vict. c. 142. (v) Sect. 23.

In the construction and regulation of trusts, equity is said to follow the law, that is, the Court of Chancery generally adopts the rides of law applicable to legal estates (w); thus, a trust for A. for his life, or for him and the heirs of his body, or for him and his heirs, will give him an equitable estate for life, in tail, or in fee simple. An equitable estate tail may also be barred, in the same manner as an estate tail at law, and cannot be disposed of by any other means. But the decisions of equity, though given by rule, and not at random, do not follow the law in all its ancient technicalities, but proceed on a liberal system, correspondent with the more modern origin of its power. Thus, equitable estates in tail, or in fee simple, may be conferred without the use of the words heirs of the body, or heirs, if the intention be clear: for, equity pre-eminently regards the intentions and agreements of parties; accordingly, words which at law would confer an estate tail, are sometimes construed in equity, in order to further the intention of the parties, as giving merely an estate for life, followed by separate and independent estates tail to the children of the donee. This construction is frequently adopted by equity in the case of marriage articles, where an intention to provide for the children might otherwise be defeated by vesting an estate tail in one of the parents, who could at once bar the entail, and thus deprive the children of all benefit (x). So if lands be directed to be sold, and the money to arise from the sale be directed to be laid out in the purchase of other land to be settled on certain persons for life or in tail, or in any other manner, such persons will be regarded in equity as already in possession of the estates they arc intended to have : for, whatever is fully agreed to be done, equity considers as actually accomplished. And in the same manner if money, from whatever source arising, be directed to be laid out in the purchase of land to be settled in any manner, equity will regard the persons on whom the lands arc to be settled as already in the possession of their estates (y). And in both the above cases the estates tail directed to be settled may be barred, before they are actually given, by a disposition duly enrolled, of the lands which are to be sold in the one case, or of the money to be laid out in the other (z). Again, an equitable estate in fee simple immediately belongs to every purchaser of freehold property the moment he has signed a contract for purchase, provided the vendor has a good title (a); and it is understood that the whole estate of the vendor is contracted for, unless a smaller estate is expressly mentioned, the employment of the word heirs not being essential (b). If, therefore, the purchaser were to die intestate the moment after the contract, the equitable estate in fee simple, which he had just acquired, would descend to his heir at law, who would have a right (to be enforced in equity) to have the estate paid for out of the money and other personal estate of his deceased ancestor; and the vendor would be a trustee for the heir, until he should have made a conveyance of the legal estate, to which the heir would be entitled. Many other examples of equitable or trust estates in fee simple might be furnished.

Equity follows the law.

Equitable estates for life and in tail.

Equitable estate tail in lands to he purchased.

(w) 1 Sand. Uses, 269 (280,5th ed.)

(x) 1 Sand. Uses ,311 (337,5th ed.); Wntkins on Descents, 168, (214, 4th ed )

An equitable estate in fee will not escheat to the lord upon failure of heirs of the cestui que trust (c); for a trust is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee will hold the lands discharged from the trust which has so failed; and he will accordingly have a right to receive the rents and profits without being called to account by any one. In other words, the lands will thenceforth be his own (d). But previously to the Naturalization Act, 1870 (e), it was held that if lands were purchased by a natural-born subject in trust for an alien (f), the crown might claim the benefit of the purchase (g); although, if lands were directed to be sold, and the produce given to an alien, the crown had then no claim (h). But, as we have seen (i), the Naturalization Act, 1870, now provides that real and personal property of every desertion may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born British subject (k). In the event of high treason being committed by the cestui que trust of an estate in fee simple, it was the better opinion that his equitable estate would be forfeited to the crown (l). But, as we have seen (m), all forfeitures for treason are now abolished (n). By a statute of the present reign (o), both the lord's right of escheat, and the crown's right of forfeiture, had already been taken away in the case of the failure of heirs or corruption of blood of the trustee, except so far as he himself might have any beneficial interest in the lands of which he was seised (p).