Brydges, only son and heir at law of the surviving trustee in the will of William Brydges, might be decreed to convey the estates settled by the deeds of July, 1785, to the uses and trusts of those deeds, and to convey such of the estates of the testator William Brydges, as were sold, to the use of the purchasers, and the residue of the said estates to the uses of the will of Francis William Thomas Brydges.

The Defendant Kempe Brydges by his answer insisted, that by the union of the equitable and legal estates in his father he had a legal remainder in tail in the estates, whereof the recovery was suffered; and therefore such remainder was not barred for want of a legal tenant to the præcipe.

The former decree was afterwards ordered to be carried on ; and it appeared by the report, that all the debts and charges were paid.

Mr. Lloyd, Mr. Grant, Mr. Richards and Mr. Romilly, for the Plaintiffs. There is no doubt upon Bale v. Coleman, 1 P. Will. 142, that by the limitation to F. W. T. Brydges for life, with remainder to the heirs male of his body, no trustees being interposed, he took an estate in tail male. According to Bagshaw v. Spencer, 1 Ves. 142. 2 Atk. 570, and many other cases, the legal estate being given to the trustees in the most ample words, and the purpose requiring, that they should have the whole fee, the subsequent estates are equitable only; and it is still clearer as to the Bosbury estate; for * that was mortgaged (1); and therefore the devisor had [124] only an equitable interest to devise. The equitable recovery therefore by an equitable tenant in tail barred all remainders in their nature equitable, and therefore the remainder in tail to Kempe Brydges. In Champernoon v. Williams, 2 Ch. Ca. 63, 78. 1 Vern. 13, the same argument from the union of the estates might have been used; for the reversion in fee in equity was in the trustee. Baskett v. Pierce, 1 Vern. 226 is strong; for there was only a fine. Robinson v. Cummings, For. 164. 1 Atk. 473, cannot be distinguished from this. Boteler v. Allington, 1 Bro. C. C. 72. Salvin v. Thornton in a note to that case, 73, and Amb. 545, 699, has no analogy to this; the estate for life being equitable and the remainder legal. 1 Eq. Ab. 256.

Mr. Piggott and Mr. Benyon, for the Defendant. The tenant in tail might at any time before the year 1780, when by the death of the other trustee Kempe Brydges became solely seised, have barred all the equitable remainders. It is clear, no legal remainder can be touched by an equitable recovery. To support that there must be equitable remainders and an equitable tenant to the præcipe. Salvin v. Thornton is a very remarkable case; for the Master of the Rolls changed his opinion; and the decree was affirmed by Lord Camden. The principle is also confirmed by Lord Thurlow. The equitable and legal estate cannot subsist together in the same person; for he

(1) That did not appear in the pleadings.

cannot be both cestuy que trust and trustee for himself: he cannot compel execution of the trust from himself to himself. In Robinson v. Cummings there were reasons for keeping the estates separate: 1st, Their union would have destroyed the remainder in its creation: 2dly, It would have discharged the condition, upon which that remainder was given; but this is not a case, where the testator has given legal and equitable estates to the same person, at the time of their creation intending them to subsist together. Here the union results from subsequent accidents. The rule, that the equitable estate shall merge by union with the legal, is universal and without exception: Goodright v. Wells, Doug. 771. Wade v. Paget, 1 Bro. C. C. 363. Are there any words, by which he could convey the one and not the other? In Challoner v. Murhall, ante, Vol. II. 524, an estate tail was merged by union with the fee.

[* 125]

* MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This case, which has been extremely well argued, at the same time that it is involved in a great deal of technical learning and some degree of artificial reasoning, does not admit of considerable doubt, if any; and I should have given my opinion upon the close of the argument for the Defendant, if there had been time to give it so much at large, as I thought necessary to obviate consequences being drawn from that opinion, which are by no means involved in it.

The question is clear as to the Bosbury estate, if, as it was said in the argument, there was a mortgage upon it: but I will now suppose, and give my opinion as if the testator had the legal estate, and was seized in fee of the whole estate. I desire it to be understood, that though he calls these estates uses, they are all trust estates. There was no argument against the estate tail of F. W. T. Brydges; and after the case of Bale v. Coleman, notwithstanding what was said by Lord Hardwicke in Bagshaw v. Spencer, there is no doubt, that he was tenant in tail male in equity. No trustees are interposed; and Lord Hardwicke relied much upon the interposition of trustees in that case; which is not perfectly acquiesced in (1), and in which I do not acquiesce; for I think now the same words, that create an estate tail in a legal estate, will, if applied to an equitable estate, create an estate tail in that. But the Defendant has not contended against his equitable estate tail under these words. The trustees having sold part of the estates for the debts let him into possession of the remainder: but that was not necessary to give validity to the recovery suffered. The objection to the recovery, upon which the question arises, is, that at the time it was suffered the remainder in Kempe Brydges was, not an equitable, but a legal remainder; and therefore according to the doctrine now fully established here, that in order to make a good equitable recovery the remainders must be equitable, and there must be an equitable tenant to the præcipe, this recovery is void as to him.

(1) See Mr. Fearne's observations on that case, and Wright v. Pearson, Amb. 358. Cont. Rem. 4th edit.

I wish, before I proceed to give my opinion upon the question, whether Kempe Brydges had a legal or equitable estate, to guard against the generality of words. I admit that an equitable tenant to the præcipe will not be sufficient to bar a legal remainder; which was the case of Salvin v. Thornton: but the converse is supposed, that an equitable remainder cannot be barred, where there is

a legal tenant to the præcipe. I do not * admit that to the [* 126] length of defeating the recovery, where there is both a legal and equitable tenant to the præcipe; for that would take away the right of the owner of the estate, which by the course of the Court is vested in him. It must therefore be understood with this restriction, that if it should happen, that the equitable tenant for life has also the legal estate for life, that is no objection to the recovery; and with that restriction I acquiesce in what is so fully established in Salvin v. Thornton. Another position was maintained, in a latitude that would create infinite confusion: that where there is in the same person a legal and equitable interest, the former absorbs the latter. I admit, that where he has the same interest in both, he ceases to have the equitable estate, and has the legal estate; upon which this Court will not act, but leaves it to the rules of law. (a) But it must be understood always with this restriction; that it holds only, where the legal and equitable estates are co-extensive and commensurate: but I do not by any means admit, that where he has the whole legal estate and a partial equitable estate, the latter sinks into the former; for it would be a disadvantage to him (1). All this depends upon the misuse of words.

It has been very ably argued, that there seems an absurdity in saying, he had an equitable remainder for himself, where he had the whole legal fee; but it is much more absurd to say, he had a legal remainder. It is impossible, it would be a solecism to state to a lawyer, that he could have an estate in fee with a remainder in tail expectant in law upon it; but there is no such absurdity in saying, he might have the whole legal estate, and a limited interest in the beneficial interest of that estate. That is the very case here. Kempe Brydges had the whole legal fee for certain purposes, and among the rest, for himself and his heirs male. I have looked into all the cases, that were quoted. It is supposed, that in Champernoon v. Williams the reversion in equity was in the trustee: but it does not appear so to me. That case, coupled with Robinson v. Cummings, has completely established the point for the Plaintiff; that an estate in fee may exist in trustees, and a partial interest in the beneficial or equitable interest may at the same time subsist

(a) Where the legal and equitable estates in land, being co-extensive, unite in the same person, the equitable is merged in the legal estate, which descends according to the rules of law. Nicholson v. Halsey, 1 Johns. Ch. 422; see, also, Gardner v. Astor, 3 ib. 53; 1 Maddock, Ch. 457.

(1) Post, vol. xviii. 418; Wykham v. Wykham; Merest v. James, 6 Madd. 118. Upon this distinction Lord Alvanley decided Williams v. Owens, ante, vol. ii. 595. See the note 606, as to that decision.

and continue for the benefit of the person so seised of the legal estate.

I have no difficulty in saying, that the common sense stripped of all technical and artificial reasons is, that the equitable estate is a mere creature of this Court, and subsists in idea only as to any legal

consequences, that might result from the possession of it, [*127] *but totally distinct from the legal estate. This Court has determined, that such equitable estates are to be held perfectly distinct and separate from the legal estate. They are to be enjoyed in the same condition, entitled to all the same benefits of ownership, disposable, devisable and barrable, exactly as if they were estates executed in the party; and the persons having them may, without the intervention of the trustees or the possibility of their preventing them from exercising their ownership, act, as if no trustees existed; and this Court will give validity to their acts; and when I am told that legal and equitable estates cannot subsist in the same person, it must be understood always with this restriction; that it is the same estate in equity and at law. There is then no person, upon whom this Court can act; and I am amazed, when I read Goodwright v. Wells, that it went to law at all. It was a clear case, and cannot bear upon this. I admit, where the person is seised of the estate at law and of the same estate in equity, he cannot have a subpoena against himself. There is nothing, upon which equity can act. The equitable estate is absorbed: the better phrase is, that it no longer exists. But when for the purposes of justice it is necessary, it should exist, that circumstance shall not put the party entitled into a worse condition. There is no occasion for a legal estate at all to support a trust estate. Even an heir at law is made a trustee by a Court of Equity. No act of the trustee can prejudice and narrow the title of the cestui que trust (1). The argument is, that the trustee happening to become sole owner of the legal estate, something has happened, that takes away from the cestuy que trust that interest, which belongs to the nature of the estate he has; and that he cannot suffer a recovery without the intervention of the trustee. The trustee would have said, he would not join; because he would not bar his own remainder. Suppose, a bill had been filed to compel him; and he had died without it; suppose he had died in the Fleet, refusing to do it. In Pig. Rec. 104, there is a quotation extremely well expressed from Lord Nottingham, the father of equity almost, I may say, in this Court. I do not think it possible to put a case, that will narrow what is there laid down. It is impossible to argue, that this is a legal remainder in tail. Either it is totally gone, or it is an equitable remainder. There is another remainder here beyond that to Kempe Brydges. What is to become of that? Could he by any act of his [*128] bar or destroy that? Certainly not. The late case * of Challoner v. Murhall was mentioned. The very doctrine

(1) Post, 341.

is there laid down; and it is clearly corroborative of what is contended by the Plaintiff. The point there is, that the enfranchisement barred the remainders over, because, if not barred that way, they could not be barred any other. He could not bar them by surrender; for he had no copyhold to surrender. He could not bar them at all; therefore the opinion of the Lord Chancellor was, that from that moment he became tenant in fee. Boteler v. Allington, I admit, if it proves any thing, is in favor of the Defendant: but there the tenant in tail in equity was alive; and it was no matter to him, provided he made a good title: and the Chancellor's order was, that a conveyance should be made to him. I desire to be understood, that there is no exception to this that a legal remainder cannot be affected by a recovery with an equitable tenant to the præcipe; but that the converse is not true; for a legal estate in the tenant to the præcipe is no objection. The very point was determined in the famous case of Marwood v. Turner, 3 P. Wms. 171; the last point. Sir Henry Marwood upon his marriage articled to purchase lands, which he was to settle upon himself in tail male; remainder to the Plaintiff's father in tail male. He purchased, but did not settle; so that he was tenant in fee; and it was held, that his recovery barred the remainder. This is exactly the point. He was tenant in fee, but was trustee according to the articles. After this I have no difficulty. I have taken the more pains to explain my opinion from wishing a general rule not to be misunderstood or misapplied. I am of opinion, that Kempe Brydges was only trustee for himself in remainder after an estate tail in F. W. T. Brydges; and that the recovery well barred that remainder; therefore the Defendant must join in the conveyances according to the prayer of the bill (1).

1. IN Washbourn v. Downs, 1 Ch. Ca. 213, it was said, that Goodrick v. Brown, 2 Freem. 180, was the first case which recognized the validity of equitable fines and recoveries; a doctrine now abundantly established. That equitable estates are barred by an equitable recovery, if there was an equitable tenant to the præcipe, has been long unquestioned; but the report of Shapland v. Smith, 1 Brown, 75, though obscure, seems to represent Lord Thurlow as of opinion that an equitable remainder cannot be barred, where the tenant to the præcipe has the legal as well as the equitable estate. Mr. Sugden, however, in his learned Treatise on the Law of Vendors, chap. 7, sect. 4, has satisfactorily shown, that this dictum is neither supported by principle nor authority; and that, in all probability, Lord Thurlow was misunderstood by the reporter. If any doubt, as to this point, previously remained, it must have been set at rest when the doctrine held by Lord Alvanley in the principal case, was recognized by Lord Eldon in Wykham v. Wykham, 18 Ves. 418, in which case it was also declared, that, it is in the power of those cestui que trusts who have the substantial equitable interests, to suffer an equitable recovery, whenever there are no other than equitable interests interposed between the legal estate and the ulterior equitable interest; there may be several equitable estates in different sets of trustees, but this will not disable the equitable tenant in tail from suffering a good recovery.

2. An equitable estate merges in the legal estate, only when the same person has a co-extensive interest in each. Merest v. James, 6 Mad. 119; Selby v. Alston, 3 Ves. 339.

(1) See, as to equitable recovery, post, Burnaby v. Griffin, 266; Pigott v. Waller, vol. vii. 98; Lord Grenville v. Blyth, xvi. 224.