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or by his last will in writing, or else they shall be utterly void and of none effect.
Nor is there any thing in the doctrines of equity which forbids the owner of an equitable estate from transferring it to another person by mere word of mouth. But here again, the Statute of Frauds 1 has interposed, by enacting? that no grants and assignments of any trust or confidence shall have any effect, unless in writing, signed by the party granting or assigning the same. Since however, in all these cases, the writing only serves to prove the existence of the equitable estate, not to create it, the Court of Chancery may act upon a writing, although it professes to prove the existence of an equitable estate created some time previous to the date of the writing. 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.4
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.5
Equity also requires, in general, that the words 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,' A devised land to trustees upon trust on the marriage of his granddaughter 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,2 to which we have before adverted, the granddaughter, having an estate for life, followed by an estate to the heirs of her 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 granddaughter to take an estate for life, with remainder to her issue in tail.
Form of words.
1 29 Car. II. c. 3.
2 S. 9. 3 Gardner v. Rowe, 2 S. & S. 346; 5 Russ. 258. • See Lester v. Foxcroft, and the notes to this case; 1 L. C. 708. 5 Lewin on Trusts, 59.
The incidents of an equitable estate are also, gen- Incidents of
an equitable erally, the same as in a legal estate of a corresponding estate. nature. For instance, there may be an estate by curtesy, and now, under the Dower Act,4 an estate in dower, in equitable estates of inheritance. An equi
1 Glenorchy v. Bosville, Ca. t. Talb. 8, and, with notes, 1 L. C. 1. 2 1 Rep. 93. 8 Sweetapple v. Bindon, 2 Ver. 536. 4 3 & 4 Wm. IV. c. 105.
table estate tail may also be baired by the same means as a legal estate tail. But an equitable estate was never liable to escheat, 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.
Alienation of equitable estates.
Descent of equitable estates.
1 3 & 4 Wm. IV. c. 74; 1 Hayes, Con. 155. 2 Burgess v. Wheate, 1 Eden, 177.
OF A REVERSION AND OF A REMAINDER.
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 Creation of a
reversion and owner of an estate in fee-simple, should part with a of a remainportion of it, as by giving out of it an estate to B for der. 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, Particular whilst A and C have, respectively, an estate in rever-Reversion and sion and in remainder, expectant on the determina- Remainder tion of B's estate. A reversion has therefore been Definition of defined as the returning of land to the grantor or his a reversion. heirs, after a grant of it is over;and a remainder And of a
. as an estate limited to take effect, and be enjoyed, remainder. after another estate is determined. It is of reversions and remainders that we propose to treat in this chapter.
The first point which we will notice, is one implied by the above definitions of these estates. It is, that a
1 Co. Litt. 142 a.
2 2 Bl. Com. 164.
Reversion al- reversion always arises by operation of law, whilst a ways created remainder cannot arise by operation of law, but must by operation of law. always be the result of some direct act of parties, Remainder always by act which act may be repeated several times. Hence, of parties.
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 carves out of it a life estate for himself, and a 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.
Remainder A remainder may be created in freeholds or copyated by deed holds by either deed or will, but a remainder, propor will.
erly so called, cannot be created in a term of years. But no remainder in a For a term of years is personal property, and personal term of years. 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