and, notwithstanding the words of the Statute of Frauds, the Court will, in many cases, enforce contracts not evidenced by writing, where one of the parties has substantially performed his part of the contract (t). It will be observed that a writing is all that is necessary, in any case, to create and transfer equitable estates, but it is the practice to employ the same species of instrument in the passing of legal as of equitable estates (u). words. Equity also requires, in general, that the words Form of used in creating or transferring an equitable estate should be the same as those necessary in the case of corresponding legal estates. But here again the rules of Equity are more elastic than those of Law. When there is a conveyance or devise of an estate to trustees upon trusts perfected and declared by the grantor or settlor, and said therefore to be "executed," the Court will not interfere to give the grantee or devisee any other estate than that which the words of the instrument, read in their strict technical sense, purport to confer. If, however, the trust is "executory," that is, if the estate is given to a trustee with directions to limit it in a certain way, the Court will pay regard to the plain meaning of the settlor or testator, although it may not have been expressed in the most appropriate words. Thus, in an early case (v), A. devised land to trustees upon trust on the marriage of his grand-daughter to convey the estate to her for life, with remainder to the issue of her body. Here, according to the rule in Shelley's Case (w), to which we have before adverted, the grand-daughter, having an estate for life, followed by an estate to the heirs of her (t) See Lester v. Foxcroft, and the notes to this case, I L. C. 828. (u) Lewin on Trusts, 594. (v) Glenorchy v. Bosville, Ca. t. Talb. 3, and, with notes, I L. C. I. (w) 1 Rep. 93. Incidents of an equitable estate. Alienation of equitable estates. Descent of equitable estates. body, would, if there had been a direct devise of the estate to her, have taken an estate tail by barring which she might have deprived her issue of their chance of succession. But since the estate given to her by the will was only equitable, and the trust itself executory, the Court decided to carry out the clear intention of the testator, and therefore only permitted the grand-daughter to take an estate for life, with remainder to her issue in tail. The incidents of an equitable estate are also, generally, the same as in a legal estate of a corresponding nature. For instance, there may be an estate by curtesy (x), and now, under the Dower Act (y), an estate in dower, in equitable estates of inheritance. An equitable estate tail may also be barred by the same means as a legal estate tail (2). But an equitable estate was never liable to escheat (a), a very considerable advantage in the turbulent days of our earlier history. An equitable estate may, as we have seen, be alienated by writing during the owner's lifetime. It may also be disposed of by his will. And it is in the same position as a legal estate as to liability to involuntary alienation under the statutes relating to judgments, bankruptcy, or the payment of the debts of a deceased person. Finally, it is to be mentioned that equitable estates are subject to the rules of descent which govern legal estates. (x) Sweetapple v. Bindon, 2 Ver. 536. (y) 3 & 4 Wm. IV. c. 105. (2) 3 & 4 Wm. IV. c. 74; I Hayes, Con. 155. CHAPTER IX. OF A REVERSION AND OF A REMAINDER. reversion and WE come now to the discussion of those estates which confer a present interest in land, but with a deferred possession. There are two ways in which an estate of this description may arise. For if A., the owner of an Creation of a estate in fee-simple, should part with a portion of it, of a remainder. as by giving out of it an estate to B. for life; or if he should part with all of it, dividing it amongst different persons, as by giving C. the rest of the estate, subject to B.'s life estate; then, in either case, A. and C. have no right to the possession of the land, so long as B.'s life estate continues to exist. But they have each an actual present estate, created at the same moment as that of B., and giving an immediate interest in the land, only with deferred possession. B. has consequently a particular estate, whilst A. and C. have, Particular respectively, an estate in reversion and in remainder, estate. expectant on the determination of B.'s estate. A remainder. reversion has therefore been defined as the returning Definition of a of land to the grantor or his heirs, after a grant of it is over (a); and a remainder as an estate limited to and of a retake effect and be enjoyed after another estate is determined (b). It is of reversions and remainders that we propose to treat in this chapter. Reversion and reversion. mainder. The first point which we will notice is one implied by the above definitions of these estates. It is, that a Reversion reversion always arises by operation of law, whilst a by operation of always created remainder cannot arise by operation of law, but must law. Re (a) Co. Litt. 142a. mainder al- always be the result of some direct act of parties, ways by act of which act may be repeated several times. Hence, parties. Remainder may be created But no re mainder in a there can be only one reversion, but almost any number of remainders, in the same estate. Thus, if land be granted to A. for twenty-one years, and after the expiration of that time, or (as it is more shortly put) "with remainder" to B. for life, with remainder to C. in tail, B. and C. will each have an estate of freehold in remainder. And the same person may have both a remainder and a reversion in the same estate. If, for instance, a tenant in fee-simple grants out of it an estate to A. for life, with remainder to himself for life, with remainder to his son in tail, he will still have a reversion in fee-simple, which may take effect after the determination of the estate tail. A remainder may be created in freeholds or copyby deed or will. holds by either deed or will, but a remainder, properly so called, cannot be created in a term of years. For a term of years. term of years is personal property, and personal property is essentially the subject of an ownership which is absolute, and has no relation to property in others. If, therefore, the owner of a long term of years were to create out of it a series of terms, each to take effect after the determination of that preceding it, these would become independent interests, complete in themselves, and not related to one another. And if he were to attempt to assign the term to one person for life, and limit remainders after the life interest, the assignee for life would get the whole term, however long it might be, and the remainders over would be invalid. But so far as regards limitations of terms of years by will, this doctrine has been modified in modern times; for a limitation in a term, although after a life interest in the same term, can, at the present day, take effect if created by way of executory devise, the explanation of which will be attempted in the next chapter. The few remaining remarks which we have to make on the subject of a reversion apply equally to a remainder, and since we have already noticed the incidents of these estates when considering the subject of estates in possession, it will be more convenient to pass on now to such points as are common to both of them, and then return to those which relate to remainders only. reversion or a A reversion or remainder may be alienated by the Alienation of a tenant of such an estate, if in other respects competent, remainder. by either deed or will. And if transferred to the tenant of the particular estate, it is said to be " released" to him. At one time, the transfer of a rever sion or a remainder was not complete unless accompanied by the "attornment," or formal consent, of the Attornment. tenant in possession of the land. Attornment had its origin in the feudal rule which prohibited the transfer of a fee without the consent of the tenant from whom military and other services were due to his feudal lord. This was afterwards extended to all cases where a tenant's rights might possibly be affected by a transfer of the fee, although in some, as for instance that of a tenant for life and remainder-man, there was never any feudal relation between the tenant of the estate to be transferred and the tenant whose consent was made requisite. An attornment was not, however, necessary in those cases where the party came to the reversion by matter in law, as heir, &c., but only where he acquired the reversionary interest by his own act as a purchaser; and even then, if the alienation were by fine, the tenant was not allowed to frustrate the act of the Court by withholding his attornment. Nor was an attornment necessary where the estate vested by the Statute of Uses or of Wills, and not under an instrument taking effect by the Common Law only (c). And it was subsequently enacted by the (c) See note to Brown v. Storey, I Man. & Gr. 128. |