Upon this point the law is well established, that if there be a conveyance to a trustee, and the nature of the trusts is such as to require a fee, then by necessary implication the trustee will take an estate of inheritance, although there be no words of limitation.
In the case of devises this has long been the law, and even where the purposes of the trust might probably be accomplished without a fee; or, in other words, if by possibility the purposes of the will might not be answered without the trustee had a fee, the will would be so construed. Shaw v. Weigh, 2 Str. 798; Willis v. Lucas, 1 P. Wms. 472; Collins Case, 6 Co. 16; and Ackland v. Ackland, 2 Vern. 687; Gibson v. Montfort, 1 Ves. Sen. 485; Oates v. Cooke, 3 Burr. 1684. So the intent to give a fee would be inferred from the fact, that, by possibility, a fee might be necessary to effectuate the trusts, and the leaning of the courts was very strong so to construe a devise.
The same rules are applied to grants, and it was so distinctly laid down in Cleveland v. Hallet, 6 Cush. 403, by Shaw, C. J., as an exception to the rule requiring the use of the word heirs as well established as the rule itself, viz.: that when a conveyance is in trust, and the trusts are of such nature that they do, or by possibility may, require a legal estate in the trustee beyond that of his own life, then without words of limitation in the conveyance to the trustee, he shall take a fee.
In Newhall v. Wheeler, 7 Mass. 189-198, it was held, Parsons,
C. J., that though no words of limitation are used, the estate of the trustee shall be commensurate with that of the cestui que trust.
So is Gould & al. v. Lamb & al., 11 Met. 84, where the conveyance is to A. B., to have, etc., as he is trustee under an indenture tripartite, which showed the intention to be to give more than a life estate; and so it was held that a fee passed without words of limitation.
So in Brooks & al. v. Jones, 11 Met. 191, which was a mortgage to W., treasurer of a corporation, to have and to hold, etc., to him, the said treasurer, and his successors in office, to his and their use and behoof forever, the condition was to pay a sum of money to the treasurer and his successors in office, and it was held that W. took a fee in trust for the corporation, although the word heirs was not used, but the intention was plain, and no stress was put upon the term forever.
The same doctrine is laid down by Chancellor Kent, in Fisher v. Fields, 10 Johns. 494, 505. So is Villiers v. Villiers, 2 Atk. 72.
In Welch v. Allen & al., 21 Wend. 147, it is held that where lands are granted to a trustee without words of perpetuity, he will, by implication of law, take a fee, if such estate be necessary to fulfil the objects of the trust.
So the doctrine of Cleveland v. Hallett, before cited, is confirmed in Attorney-General v. Prop. Federal St. Meeting House, 3 Gray, 1.
The conveyance to Glen, Hall, Shaw & al., for themselves, as a committee chosen and appointed by the congregation of the Presbyterian Meeting House in Long Lane, etc., to have and to hold the land in their said capacity, and to their successors forever, but to and for the only proper use, and benefit, and behoof of the said congregation, forever, and for no other use; and it was held that the trustees took a fee upon the principle before mentioned, and no stress is put on the word forever, and the corporation was not incorporated.
So in King v. Parker & al., 9 Cush. 78, where the grant was to I;., "in trust to and for the use of the Free Masons' Lodge in Boston, known by the name, etc., to their only proper use, benefit and behoof forever," it was held that this proved the fee.
The question then is, whether this conveyance to Mr. Britton, agent of the bridge corporation, to be held for the corporation, passed the fee without words of limitation; that is, whether the intention to give the corporation the fee can be gathered from the grant Had it been directly to the corporation, being a corporation aggregate, the fee would have passed; and in all such cases where the conveyance is through a trustee to hold for the use of such corporation, the intention to make it perpetual is to be inferred, and so are the Massachusetts cases already cited, we think.
Here the grant was of two pieces of land, for a road and tollhouse, both essential to the use of the bridge, as much so as the land upon which stands the Federal street church; and it is impossible to suppose that it was intended to grant an estate for the life of Mr. Britton only, which might have ended in one year. Such being the case, it must be considered that the fee passed, and at once vested in the corporation.
In respect to some of the Massachusetts authorities, which hold that where the purposes of the trust cannot be answered without a greater estate than for life, then by implication a fee will pass, it is urged by defendant's counsel that the intention to give a greater estate is manifested by the use of the term forever, which in this case is wanting.
It is obvious, however, that this term is not one of limitation and only bears upon the question of intention, and if that is ascertained by the nature of the grant, or the language used, whatever it may be, the law will give effect to that intention, and in this case we think the intention to grant a fee is very clearly to be inferred from the nature of the grant itself. * * *
Perpetual injunction decreed.1
(4.) In the Transfer of an Equitable Interest.
10 Johnson (N. Y.), 495. - 1812.
Bill in equity to restrain Fields from prosecuting an action at law in ejectment and to compel him to convey to Fisher the lands in dispute. The bill was dismissed by the court below. Plaintiff appeals. The further facts appear in the opinion.