estate. But where the equitable interest in expectancy is a contingent remainder, it was never subject to the common law rule whereby it was defeated in the event of the determination, before the contingency happened, of the particular estate upon which it depended; because the seisin of the trustee is sufficient to preserve it (e). The doctrine of "merger," however, seems to apply to equitable interests as well as to legal estates, if the coalescing estates be both of the equitable description, and the merger will not be productive of any injustice or inconvenience (f). So, the same rules of construction will in general apply to equitable as to legal estates; and particularly the Rule in Shelley's Case (g). A trust of inheritance is also subject to the curtesy of the husband of cestui que trust, equally as if it were an estate at law (h); and it is now subject to dower (i). Again, a trust estate, though formerly protected like an Use from execution for debt, is now made subject to such execution; for, by the Statute of Frauds, it was made liable to the extent of one-half, and by the Judgments Act, 1838, entirely, to be taken in execution on a judgment.

But a trust estate may also be subjected, like an Use, to limitations unknown to the common law; and it has always been capable of being created or assigned (even for an estate of freehold), by deed without livery, or by last will and testament. The only requirements of form attending its creation and transfer are those laid down by the Statute of Frauds, which requires a signed writing in all cases of creation or transfer of express trusts ().

The estate of the cestui que trust was never subject to

(e) Abbiss v. Burney, (1881) 17 Ch. D. 211.

(f) Brandon v. Brandon, (1861) 31 L. J. Ch. 47.

(g) Bale v. Coleman, (1711) 1 P. Wms. 142.

(h) Sweetapple v. Bindon, (1705) 2 Vern. 536. (The rule is, of course, now subject to the right of the wife to dispose of her interest.) (i) Dower Act, 1833, s. 2. (k) 29 Car. 2, c. 3, ss. 7, 8, 9.

forfeiture, unless for treason; and it did not escheat for want of inheritable blood. For the defect of an heir conferred no title on the Crown or mesne lord, but merely enabled the trustee to hold the land discharged of the trust and for his own benefit (1). Forfeiture on conviction of crime is now, of course, abolished (m). But a recent statute (the Intestates Estates Act, 1884) has provided that on the death, intestate and without heirs, of a person entitled to an equitable interest in real estate, whether such interest is or is not devised to trustees by his will, the law of escheat shall apply as if the interest were a legal estate in corporeal hereditaments. It is very difficult to understand the real meaning of this curiously-worded provision; but it is probably intended to give the benefit of the escheat to the Crown in all cases (n).

Before concluding this chapter, it will be useful to refer (though the matter strictly belongs to a later chapter) to an important provision of the Land Transfer Act, 1897, which has obviated many of the difficult questions which formerly arose in connection with the devolution of trustees' estates. By the older law, these estates, if they were of the nature of heritable property, passed strictly to the heirs of the trustees. As these heirs were, however, often unwilling to perform trusts from which they could derive no benefit, great difficulties and expense were incurred in compelling them to transfer their interests to other persons. About thirty years ago, therefore, it became the policy of the Legislature to make trust estates held in fee simple descendible, not to the heirs of the trustee, but to his personal representatives— i.e., to his executors or administrators (0). And, after several partial experiments (p), this policy has been

(1) Burgess v. Wheate, (1759) 1 Eden, 177.

(m) Forfeiture Act, 1870. (n) Attorney-General v. Anderson, [1896] 2 Ch. 596.

(0) Vendor and Purchaser Act, 1874, s. 5.

(p) Land Transfer Act, 1875, s. 48; Conveyancing Act, 1881, s. 30.

carried into full effect by section 1 of the Land Transfer Act, 1897, which provides that all the real estate of a deceased person shall, on his decease, vest in his personal representatives. It must, however, be carefully observed that (1) where there are surviving trustees of a joint estate, the interest of the deceased trustee will go to the survivors by the jus accrescendi, and (2) that the provisions of the Land Transfer Act, 1897, s. 1, do not apply to copyholds (q). Whether the section includes estates tail, is a moot point; certainly the words are comprehensive enough. But it is the better opinion, that an estate tail cannot be made subject to a trust, although there can, of course, be an entail of an equitable interest.

(q) This point had been previously settled, as to trust estates of copyhold, by the Copyhold Act,

1894, s. 88. But see In re Mills' Trust, (1888) 40 Ch. D. 14.

CHAPTER X.

OF TITLE IN GENERAL.

HAVING Said thus much of the tenures by which lands are held, and of the estates that may be had in them, we proceed now to consider the title to lands, or the manner of acquiring and losing estates therein; a consideration which will extend to equitable as well as to legal estates, but will be principally concerned with the latter. For equitable estates (as we have just seen) are capable of being created or transferred by much simpler methods than those in use at the common law, although conveyances of the same kind are, indeed, commonly used. And the rules of descent also are the same in both legal and equitable estates.

[In treating of the manner in which estates may be acquired and lost, we shall not have occasion to detach the consideration of loss from that of acquisition, for they are reciprocal ideas. By whatever method one man gains an estate, by that same method, or its correlative, some other man at the same time loses it. For where the heir acquires by descent, or the devisee by will, the ancestor or testator has first lost or abandoned his estate by death; where the lord gains land by escheat, the estate of the tenant is first of all lost by the extinction of his hereditary blood; where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession.

The acquisition of an estate in land is said to be either by descent or by purchase; or, again, the acquisition is said to be either by act of law or by act of the parties (r).]

(r) Co. Litt. 18 b.

Title by act of law expresses all those modes of acquisition, where the law itself casts the right to the estate upon the acquirer, independently of any act or interference of his own, or of any other person for that purpose. Of these the principal kind is title by descent; but the term will also properly include title by escheat, and also that of tenant by the curtesy, and of tenant in dower (8).

Purchase, on the other hand, though in its vulgar and confined acceptation it is applied only to such acquisitions of land as are obtained by buying it for money or some other valuable consideration, yet it properly includes every lawful mode of coming to an estate by the act of the party, as opposed to the act of law (t). Among which our attention will chiefly be directed to the title by occupancy, by forfeiture, and by voluntary transfer; which last is usually described as that by alienation or conveyance.

(8) Co. Litt. 18 b.

(t) Ibid.