It is a well-settled principal that no particular form of words is requisite to create a trust. The intent is what the courts look to. 2 Fonb. 36, note; 3 Ves. Jr. 9. A trustee or cestui que trust will take a fee without the word heirs, when a less estate will not be sufficient to satisfy the purposes of the trust. This has been frequently ruled in chancery, and the Court of K. B., during the time of Lord Mansfield, made the same decision at law. 2 Atk. 72, 578; 1 Ves. 491; Amb. 93; 3 Burr. 1684. In Moorecroft v. Dowding, 2 P. Wms. 314, A. purchased an estate in the name of a third person, who gave a bond to convey it to such person and uses as A. should appoint; and the lord chancellor held that the third person was a trustee to A., who had, in equity, a specific right to the land, and he was decreed to convey. Here, a bond was held sufficient to create a trust in fee. But what puts this point beyond all doubt, is the doctrine of the common law on the subject of uses and trusts. Before the statute of uses, if a man had bargained and sold his land for a valuable consideration without inserting the word heirs, the Court of Chancery would have decreed an execution of the use in fee, because the use was merely in trust and confidence, and because this was according to the conscience and intent of the parties. But, after the statute of 27 Hen. VIII., as the uses were transferred and made a legal estate, a different rule took place. 1 Co, 87 b., 100 b. A trust is merely what a use was before the statute of uses. It is an interest resting in conscience and equity, and the same rules apply to trusts in chancery now which were formally applied to uses. And, in exercising its jurisdiction over executory trusts, the Court of Chancery is not bound by the technical rules of law, but takes a wider range in favor of the intent of the party. This principle seems to be well established, and it has been ably vindicated by Fonblanque. Vol. 1. 396 note, 400 note; vol. 2, 18.
To apply, then, this doctrine to the present case; the soldier, after the assignment of his claim upon the State to Birch, and after the issuing of the patent in his name, became seized intrust for Birch, or those to whom Birch had assigned his interest; and instead of dismissing the appellant's bill, the Court of Chancery ought to have decreed an adequate legal conveyance to be made by the defendant to the appellants. The defendant purchased of
Griffen knowing of the assignment, and, therefore, he was a purchaser chargeable with the trust, and as much bound to execute the trust as the soldier himself. The clearest justice, and clearest principles of a court of equity are in favor of such a decree.
A good deal was said, upon the argument about the statute of frauds, but it appears to me that the objection is wholly inapplicable. This is not a case of an agreement about the sale of lands; it is a complete assignment by deed of an equitable claim; and the 12th section of the act (Sess. 10, c. 44), says, that all declarations or creations of trust, or confidence, of any lands, shall be proved by some writing, signed by the party enabled to declare the trust.
Judgment of reversal.
(5.) In the Transfer of a Fee to a Corporation.
Aldis, J. in
34 Vermont, 243, 249. - 1861.
It is true as claimed by the counsel for the plaintiffs, that a deed to a corporation aggregate will convey a fee simple though the word "successor" is not used in the deed. As such a corporation never dies, it is immaterial whether such a deed is construed as granting to them an estate for life or a fee, for in their case the one is the same as the other. Hence the deed of McCrillis to the Halifax society vested in them in fee simple the lands conveyed.
It is further claimed as a necessary consequence that the clause in the habendum of the deed is repugnant to the premises, and therefore void. The habendum is in these words: " To have and to hold the premises during the time the said society or their heirs shall meet on said land for public worship, or have a meeting-house standing on said land and appropriate the use of the same to the congregational or Presbyterian public worship."
It is the proper office of the habendum to determine what estate or interest is granted by the deed, and to limit, qualify or explain the words used in the granting part of the deed. Where the estate or interest is set forth in the premises the habendum cannot by the use of words repugnant to such estate defeat it. Where, therefore, the habendum is contradictory to the premises, the habendum is void, and the words in the premises stand. Co. Litt. 21; 4 Cruise's Dig., § 76, p. 273; Goodtitle v. Gibbs, 5 B. and C. 709; 2 Bla. Com. 298; Timmis v. Steele, 4 Ad. and Ell. 664 (45 E. C. L. 664).
But where the habendum is not so contradictory to the premises, but only limits, explains or qualifies the words there used, it performs its proper office. It may lessen, enlarge, limit and qualify the use of the land conveyed so long as it does not defeat the estate granted.
Here the deed in the premises does not describe the estate or interest conveyed, but only the land by its name and boundaries. A deed to a corporation would describe them in the same way whatever was the estate conveyed, whether in fee or for life. Hence in such a deed the description of the estate or interest conveyed would naturally be, and ought to be, in the habendum. A deed to a natural person and his heirs necessarily causes a fee and not an estate for life - not so with a corporation. Hence this deed to them in the premises describes the land and not the estate or duration of the interest conveyed. The word successors is not used, still without it they may take a fee, and would if there were no limitation or description of a less estate in the following parts of the deed. But in a deed to a natural person the word "heirs" would carry a fee, and its absence would show a less estate for life. The habendum proceeds to explain the use which the grantee is to have of the land, and limit its extent and duration. It may be a fee simple, the use may last forever if the grantees see fit to occupy it for the purpose for which it is conveyed. There is no repugnancy between the premises and the habendum.