holders thereof. (See 2 Prideaux, 11th ed., 152, 549; Davidson's Concise Conveyancing Prec., 12th ed., 479.)

If it is wished, the expense of a conveyance of the freehold estate may be saved by inserting a declaration that the new trustees shall hold the same upon the trusts of the settlement as provided in sect. 34 of the Conveyancing and Law of Property Act, 1881; but as that section is expressly stated to be inapplicable to the other species of property mentioned above, it is probable that advantage will not be taken of it in a case like the above.

Before 1859 two deeds would have been required in order to transfer the personal estate to the continuing and new trustees. The 22 & 23 Vict. c. 35, however, empowers a person to assign personal property directly to himself and another person or persons. As to freeholds and choses in actions, see 44 & 45 Vict. c. 41, s. 50.

253. A., sole surviving trustee of freehold and leasehold propertics, dies, having by his will devised and bequeathed all estates vested in him as trustee or by way of mortgage, to B., his heirs, executors, administrators, and assigns, according to the nature and quality of such estates respectively. B. subsequently dies intestate. In whom, on B.'s death, would the legal estate in the freehold and leasehold estates respectively vest; and who would be entitled to act in the trust?

(a.) If both A. and B. died prior to 1st January, 1882, the old law would apply, and accordingly the legal estate in the freeholds will have devolved upon B.'s heir-at-law, whilst the legal estate in the leaseholds will have devolved upon and vested in B.'s administrator.

(b.) If A. died prior to the 1st of January, 1882, and B. has died subsequent to the 31st of December, 1881, the legal estates in both the freehold and leasehold estates will have devolved upon and vested in B.'s administrator.

(c.) If both A. and B. have died since the 31st December, 1881, the legal estates will have devolved upon A.'s executor or administrator, as in that case the devise to B. is a nullity, and this same result would have happened if A. had died since the 31st December, 1881, leaving a will as above stated, and B. was now living.

As regards the persons to act in the trust in case (a), the persons

in whom the legal estates vested in the ordinary case would not be enabled to act in the trust, but new trustees must be appointed. If, however, the property was originally conveyed to the trustees, their heirs, executors, administrators, and assigns, or their heirs and assigns, or the trusts are declared to be capable of being exercised "by the said trustees or trustee or by the trustees or trustee for the time being" (as in Re Morton and Hallett, 49 L. J. Ch. 559; L. R. 15 Ch. D. 143), then, inasmuch as the settlor has shown no absolute intention that the trusts should only be exercised by the regularly appointed trustees, the persons or person upon whom, as above stated, the legal estates devolve may act in the trust temporarily, and permanent new trustees can be appointed later on.

In both cases (b) and (c), the persons in whom the legal estates vest will, by virtue of sect. 30 of The Conveyancnig and Law of Property Act, 1881, be able to act temporarily in the trust, that is, for the purpose of administering to the deceased person's estate, and permanent new trustees can be appointed later on under the statutory power, or under the express power contained in the trust instrument. (See 2 Prideaux, 11th ed., 140; Williams on Real Property; 44 & 45 Vict. c. 41, ss. 30 and 31.)

UNDUE INFLUENCE.

254. A solicitor prepares a deed of gift from a client to himself, and a will conferring a benefit on himself. Discuss these cases, especially with regard to the burden of proof of undue influence, and the pendency, or otherwise, of any suit in which the client is engaged.

If the relation of solicitor and client was not entirely dissolved when the deed of gift was made, it is void in any case, whether there was or was not any undue influence or such suit pending at the time. Such deed of gift may be confirmed by the donor's will and thus be rendered valid. The benefit conferred by the will can be claimed by the solicitor (Hindson v. Weatherall, 5 De Gex, M. & G. 301), unless fraud or undue influence can be proved against the solicitor; but should any one dispute the will or the benefit under it, the burden of showing that the testator gave the benefit advisedly, without the slightest pressure being put upon him by the

solicitor and well knowing what he was doing, or in other words, the onus of showing that the testator, well knowing what he was doing, bona fide conferred the benefit, is upon the solicitor. If the gift is proved to have been made by the client pending an action wherein the client was a party, the fact that such action was pending will render it the more difficult, without plenty of written evidence of the transaction, for the solicitor to show that the client was a free man, and was uninfluenced by their relationship. If a solicitor attempts to purchase his client's interest in the subject-matter of pending litigation, the purchase is void without any special proof of undue influence. (Snell's Equity, 5th ed., 103, 470.) A better feeling and more respect are now shown towards solicitors than formerly-see the Solicitors' Remuneration Act, 1881--at any rate by the Legislature.

USES AND TRUSTS.

255. Explain, and illustrate by example, the doctrine of "scintilla juris." What legislative enactment has been passed during the present reign with regard to it?

"The establishment of shifting and contingent uses occasioned great difficulties to the early lawyers, in consequence of the supposed necessity that there should, at the time of the happening of the contingency on which the use was to shift, be some person seised to the use then intended to take effect. If a conveyance were made to B. and his heirs to the use of A. and his heirs until a marriage or other event, and afterwards to the use of C. and his heirs, it was said that the use was executed in A. and his heirs by the statute, and that as this use was co-extensive with the seisin of B., B. could have no actual seisin remaining in him. The event now happens. Who is seised to the use of C. In answer to this question it was held that the original seisin reverts back to B., and that on the event happening he becomes seised to the use of C. And to support this doctrine it was further held that meantime a possibility of seisin, or scintilla juris, remained vested in B." This was not attended to in practice. The doctrine, however, has since been abolished by 23 & 24 Vict. c. 38, providing (s. 7)

that "where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised, to the uses and the continued existence in him or elsewhere of any seisin to uses or scintilla juris, shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain, or to subsist in him or elsewhere." (Williams's Real Property, 11th ed., 290.)

256. What estates would A. (the grantor) take under the following limitations, if created by himself by deed prior to 1882?

(a.) To the heirs of his body.

(b.) To the use of B. for the term of 100 years, with remainder to the heirs of A.'s body.

(c.) To the use of B. during A.'s life, with remainder to the heirs of A.'s body.

(d.) To the use of A. for the term of 100 years, with remainder to the heirs of A.'s body.

Give the grounds of your answer.

(a.) A. takes no estate under such a limitation; for, even if it should be supported under the Contingent Remainders Act, 1877, as an executory limitation in favour of the person who should hereafter prove be to A.'s heir-at-law, there is no limitation to A. himself. (b.) A. takes no estate under this limitation either, for the same

reason.

(c.) A. takes no estate under this limitation either, for the same reason, but keeps his own prior interest, subject, of course, to B.'s estate pur autre vie whilst it lasts.

(d.) A.'s interest, assuming, as we have all through, that he has the fee simple in the lands so limited, is unaffected by such limitation.

257. Distinguish between executed and executory trusts, and the general rules of construction applicable to each, and give illustrations.

A trust is said to be executed when no further act is required to give effect to it, the terms of the trust being completely declared by the instrument creating it; as where an estate is conveyed or devised unto and to the use of A. and his heirs in trust for B. and the heirs of his body. A trust is said to be executory when some further act must be done by the creator of the trust or by the trustees to give effect to it, as in the case of marriage articles, which require a settlement to follow to declare fully the limitations of the trust, or as in the case of a will by which property is devised to trustees upon trust to settle or convey in a more perfect and accurate manner.

The distinction between an executed and an executory trust does not rest merely on the fact that the trustee may be required to execute some further instrument to give full effect to his trust. For instance, a mere direction to convey upon certain specified trusts will not render those trusts executory, so as to give to a court of equity the latitude of construction which we shall see to be applicable in the case of executory trusts.

The true distinction depends on the question whether the creator of the trust has been what is called his own conveyancer; whether, that is to say, he has so defined his intention that you have nothing to do but to take the limitations he has given you and convert them into legal estates, or has left it to the Court to make out from general expressions what his intention is.

It is clearly established that in the case of executed trusts a court of equity will construe technical words in the same manner as a court of law would construe them when applied to legal estates. If, for instance, an estate is vested in trustees and their heirs in trust for A. for life, without impeachment of waste, with remainder to trustees to preserve contingent remainders, with remainder in trust for the heirs of A.'s body, the trust being executed, A. will, according to the rule in Shelley's case, take an equitable estate tail, just as he would have taken a legal estate tail in case similar words of limitation had been used in a conveyance direct to himself without the intervention of trustees.

In cases, however, of executory trusts where something is left to be done-viz., the trusts are left to be executed in a more careful and more accurate manner-a court of equity does not consider itself bound to construe technical expressions with the same legal