maxim generally received, that Equity adopts, with reference to equitable estates, the rules of law applicable to legal estates (). Our task will, therefore, be limited to pointing out the principal instances in which this maxim does not hold good. and transfer. The first which we have to notice applies to the Their creation creation and transfer of equitable estates. We have already seen that every legal estate of freehold, and most terms of years, must be created by deed. But this is not so with equitable estates, even of the highest nature. Suppose, for instance, that A., the owner both at law and in equity of an estate in feesimple, agrees to sell it to B., and afterwards refuses to perform his agreement. At law, A. will be considered as having entered into a contract, for the breach of which the law will punish him, by making him pay a sum of money to B. by way of damages. But the law does not consider that the estate has become the property of B. by the contract, and will not therefore compel A. to give him a deed formally evidencing that fact. Equity, however, considers that, from the moment when the agreement was made, the estate balonged to B. and the purchase-money to A. It will, therefore (subject to the statutory provisions to be presently mentioned), if requested by B., and provided that he is prepared to pay the purchase-money, compel A. to give him that legal title which is necessary to perfect his estate. A mere verbal agreement to buy and sell may therefore, in Equity, apart from statute, operate to create an equitable estate in feesimple. And similarly, if the owner of a fee-simple were verbally to declare himself a trustee for A., or to convey his estate to another, with verbal directions to hold in trust for A., A. would have an equitable estate in fee-simple created by parol. (1) Sand. Uses, 280. N Statute of But the power of Equity to act upon the assumption that an equitable estate has been created has been restricted by statute. For it has been enacted by the Statute of Frauds (m) that (n) no action (a term which includes a suit in Equity) shall be brought to charge any person upon any contract or sale of lands, tenements, or hereditaments, or of any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised; and (0) that all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments shall be manifested and proved by some writing, signed by the party who is by law enabled to declare such trust (that is, by the beneficial owner of the property (p) ), or by his last will in writing, or else they shall be utterly void and of none effect. Nor is there anything 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 (9) has interposed, by enacting (r) 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 (s): 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 (†). 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, 1 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 (2), 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 legal estates. (x) Sweetapple v. Bindon, 2 Ver. 536. (y) 3 & 4 Wm. IV. c. 105. (z) 3 & 4 Wm. IV. c. 74; 1 Hayes, Con. 155. govern 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 remainder cannot arise by operation of law, but must law. Re (a) Co. Litt. 142a. always created |