be recovered: (see 3 & 4 Will. 4, c. 27; Sug. R. P. Stats. 116, 131.) Since the 1st of January, 1879, the time is reduced to twelve years: (37 & 38 Vict. c. 57, s. 8.) A legacy given upon trust is exempt from this rule (Watson v. Saul, 1 Giff. 188); but if charged upon land is no longer so: (lb. sect. 10.) Q-Define the principles which guide equity in the construction of wills and legacies. A.-In deciding on the validity and interpretation of purely personal bequests, equity implicity follows the rules of the civil law as formerly recognised in the ecclesiastical courts, but as to the validity of devises and legacies charged on land, it generally follows the rules of the common law: (Sm. Man. sect. 217.) And all courts, as far as possible, in the construction of wills, are guided by, and try to carry out, the intention of the testator. Q.-Define donatio mortis causâ, and state in what particulars it differs from, and in what it resembles, a legacy. A.-A donatio mortis causâ is a gift of personal property made by one who is in peril of death, evidenced by a manual delivery of the property itself, or the means of obtaining possession of it, and conditioned to take effect in the event of his not recovering from his existing disorder, and not revoking the gift before his death. It differs from a legacy thus: 1. It takes effect sub modo from the delivery in the donor's lifetime, and cannot, therefore, be proved as a testamentary act in the Probate Division. 2. It requires no assent of the executor or administrator to perfect the donee's title. It differs from a gift inter vivos, and resembles a legacy in these particulars: (1) It is revocable during the donor's lifetime. be made to the wife of the donor. (3) It is liable for the donor's debts on a deficiency of assets. (4) It is liable to legacy duty : (see Sm. Man. sect. 221; Ward v. Turner, 1 L. C. Eq. 721, 2nd edit.; Wms. P. P. 368, 10th edit.) (2) It may Q. Can a good donatio mortis causa be made by delivery of a cheque ? of a bond? of a bankers' deposit note? or of a railway share certificate? A.-Cheques, bonds, and bankers' deposit notes (Amiss v. Witt, 33 Beav. 649) may be the subject of it: (Sm. Man. sect. 220.) But see the case of Hewitt v. Kaye (L. Rep. 6 Eq. 198), where a cheque which could not be presented before the donor's death was held not a good donatio mortis causâ. A railway share certificate cannot be the subject of it: (Moore v. Moore, L. Rep. 18 Eq. 474.) TRUSTS, TRUSTEES, &c. Question.-Define a trust. Answer. A trust, when used in the sense of an interest, is the equitable or beneficial interest in or ownership of real or personal estate, unattended with the possessory and legal ownership: (see Sm. Man. 118, 10th edit.) Q.-State the different kinds of trusts recognised in equity; and in what respect the legal differs from the equitable interest in the subjectmatter of the trust. A.-Trusts are either express, implied, or constructive. The person who has the legal interest in the subject-matter of the trust holds the direct and absolute dominion over the property in the view of the law; whilst he who has the equitable interest (called the cestui que trust) is entitled to the income and profits, or beneficial interest in the property: (St. Eq, § 964; Sm. Man. sect. 226.) Q.-Define (a) an express trust, (b) an implied, trust, and (c) a constructive trust. Give an illustration in each case. A. (a) An express trust is one which is clearly expressed by the author thereof, or may fairly be collected from a written document, as a devise to A. and his heirs upon trust to pay B. the rents and profits for life, and then upon trust for his children, as he should appoint : (Sm. Man. sect. 227.) (b) An implied trust is one founded upon an unexpressed but presumable intention of the parties, as where real estate is devised upon trust for sale for a statutory purpose, which fails, there will be a resulting trust to the heir: (Ib. sect. 282.) (c) A constructive trust is one raised by construction of equity in order to satisfy the demands of justice without reference to any presumable intention of the parties, as where a joint owner, acting bonâ fide, presumably benefits an estate by repairs or improvements, it arises in respect of the sum expended: (Ib. sect. 322.) Q.-Give some instances of the difference between a legal and equit able estate. A. The following may be mentioned: The owner of the legal estate could enforce his right at law, whereas the owner of the equitable estate could only do so in equity. The legal estate in land can only be transferred by deed or will, whereas any writing is sufficient in equity to bind the equitable estate. Legal assets are distributable according to legal priorities, whilst equitable assets are distributable pari passu. The enforcement of trusts is confined to the Chancery Division of the High Court (1873 Act, s. 34; sub-s. 3.) Q. How far will equity construe words of recommendation or request as creating a trust by implication? A. If the object and subject of the proposed trust are definite, and it can be gathered from the will, and the previous conduct of the testator, that the expressions appear to be imperative, words of recommendation or request create a trust: (Sm. Man. sect. 233.) Q.-Define trusts executed and trusts executory; and state if there is any, and what, difference in their construction? A.-Trusts executed are those which are formally and finally declared by the instrument creating them. A trust executory is one raised by a stipulation or direction to make a settlement upon trusts which do not appear to be formally and finally declared by the instrument creating them. Trusts executed are construed in the same manner as similar limitations of legal estates and interests were construed in courts of law. Trusts executory are not construed so strictly as the former, but more according to the presumable intention of the party creating, if construing them. strictly would render the settlor's directions to settle nugatory: (see Sm. Man. sect. 236; Lord Glenorchy v. Bosville, 1 L. C. Eq. 1, 2nd edit.) Q. What trusts will equity enforce, and what trusts will it not enforce? A.-Equity will enforce a trust where it is executed, or where it is raised by will, although it be a voluntary trust; but it will not enforce a mere voluntary executory trust raised by a covenant or agreement, unless for valuable consideration : (see St. Eq. §§ 793, 793 a; Sm. Man. sect. 245.) Q.-If a man conveys an estate to trustees upon trust to sell and pay his debts, will equity, in an action by a creditor, compel the performance of the trust? A. If the conveyance is not communicated to, or the creditors are not in any manner privy to the conveyance, the deed merely operates as a power to the trustees, and is revocable by the debtor. But if the creditors have notice of the trust, and assent to it, it seems that equity will enforce the performance of the trust (see Acton v. Woodgate, 2 Myl. & K. 492; Sm. Man. sect. 250.) Q. A man might be owner of a thing in equity when another man was owner at law. What is the meaning of the equitable ownership; how does it operate, and how does equity give effect to it? A. This question is illustrated by the ordinary case of trustee and cestui que trust. At law the trustee was absolute owner, the existence of the cestui que trust not being recognised; but in equity he was and is the real or beneficial owner. If the trustee refuses to perform his trust equity will, by acting in personam, compel him to perform his duties and pay over the profits of the estate to the cestui que trust or equitable owner: (see Sm. Man., sect. 389 et seq.; Haynes' Eq. 23, 96, 122, 129, et infra.) Q. What is the distinction between a cestui que vie and a cestui que trust? A.-A cestui que vie is he on the duration of whose life the interest of another depends-e.g., an estate to A. during the life of B., here B. would be termed the cestui que vie; while a cestui que trust is the person having himself the equitable or beneficial interest, the legal estate being held for him by the trustee. Q. Why and how did the Statute of Uses fail to accomplish its intended object; and what bearing had its failure on the modern jurisdiction of the Court of Chancery? A.-It failed to do so, because it was held that the Statute of Uses (27 Hen. 8, c. 10) only executed the first use, and that if a use was limited or engrafted upon a use, the statute did not execute the latter use, but that it remained a trust to be enforced in equity only. Thus arose the modern doctrine of uses and trusts: (Tyrrell's case, Tud. L. C. C. 251; Sm. Man. sect. 231.) Q.-Will equity recognise any period of time as a limitation to a suit. against a trustee who is charged with fraud in the execution of his trust, and is there practically any, and what, distinction to the rule? A.-Lapse of time is no bar to the claim of the cestui que trust against his trustee who has been guilty of fraud, and the cestui que trust is, without his default, in ignorance of that fraud. And this rule applies whether the trust be an actual or only a constructive trust (Rolfe v. Gregory, 12 L. T. Rep. N. S. 162, L. C.) Where there has been no fraud, however, it is presumed an express trust must still exist to constitute lapse of time no bar: (see Sm. Man. sect. 268; Rolfe v. Gregory, sup., and 1873 Act, s. 25, sub-s. 2; 37 & 38 Vict. c. 57, s. 10.) So, long acquiescence in the trustees' misconduct may bar the cestui que trust: (Sm. sup.) 2. Implied Trusts. Q. What is an implied trust? A.—One founded on an unexpressed but presumable intention: (Sm. Man. tit. 2, Ch. 5.) Q. What is a resulting trust? Give an instance. A.—It is one returning by implication for the benefit of the settlor or his representatives, either from the want of consideration or failure of the objects of the trusts, or the indefinite nature of or want of trusts. As where A. conveys land to B., without consideration and without any uses or trusts being declared: (Cruise, Uses, 194, St. Eq. § 1196 et seq., and see post.) Q. When property is given upon trusts which fail either in the whole, or partially, by deaths, or by illegality, or indefiniteness of the trusts themselves, or when they are finally fulfilled without exhausting the property, to whom does the resulting trust of such remaining property belong? A.—There is a resulting trust of such property, or of so much thereof as remains unexhausted, to the person creating the trust, or to his heir or legal personal representatives, unless there is sufficient evidence or presumption of a contrary intention: (Sm. Man. sect. 295; St. Eq. § 1196 a, and note; Ackroyd v. Smithson, 1 L. C. Eq. 783, 3rd edit.) Q.-State shortly the principle on which the leading case of Ackroyd v. Smithson was decided. A. The principle is that the heir must take all real estate which is not effectively disposed of by the will. The next of kin can take by intestacy no interest in the real estate. And, therefore, if real estate is by the will directed to be sold, and any part of the proceeds be undisposed of, there being an intestacy as to such part of the proceeds, it must result to the heir. Q. What is conversion, and who are entitled to enforce it? Can a trustee who happens to be beneficially entitled to the property elect to take it in either character, and, if so, upon whom does the onus probandi fall of showing the same? A.—It is a maxim that equity looks upon that as done which ought to be done; thus money directed to be laid out in land, and land directed to be turned into money, are in general regarded as that species of property into which they are directed to be converted. The persons to whom property directed to be converted is limited, and those who stand in their place arej entitled to enforce the conversion. The trustee, being absolutely entitled to the property, may as owner take it in either character, but until an election is made the property passes as if actually converted, and the onus lies on those who would show an election to take it in another character than that it would have if converted: (Sm. Man., sects. 41-47.) Q.-A. becomes absolutely entitled to a sum of 10007. in court, being money directed by a settlement to be laid out in the purchase of land, and subsequently dies intestate. The money is claimed by A.'s heir-at-law, and also by his administrator. On what does the title to the money depend? A.-A.'s heir-at-law will be entitled to the money, unless A. in his lifetime had elected to take it as personalty: (Sn. Eq. 206, 4th edit.) Q.-Where a conveyance or transfer of property, real or personal, is made without consideration, but upon trust, of which no distinct use or trust is stated, to whom, then, will the implied trust devolve? A. In this case there will be a resulting trust to the use of the grantor or his representatives, real or personal, as the case may require: (St. Eq. § 1197.) Q.-Land is directed to be sold. Money is directed to be laid out in land. How does this affect the devolution of the properties, and when does the conversion take place? A. The land is reputed as money, and will pass as such, and the money is considered as land, and descendible and devisable as such. For equity looks upon that as done which is agreed to be done. If the direction is by deed, the conversion will take effect from the date of the deed; if by will, from the death of the testator: (Sm. Man. sect. 42, &c.) Q.-Given in a will the ordinary trusts for conversion and investment, and bequest of the income to the testator's widow for her life, on what principles does the court act in dealing in the meantime with the income arising from the profits of the testator's business (say a brewer) coming within those trusts? A. The widow would be entitled until conversion to sums equal to the dividends which, had the testator's estate been converted and invested in Consols at the end of a year from his death, the estate would have received from the Consols: (Brown v. Gellatly, New Rep. 2 Ch. App. 751.) Q.-Devise of land in trust for sale to pay debts. After the payment of debts in full there is a surplus. Who is entitled to it? A. The heir-at-law of the testator is entitled to the surplus. For where real estate is directed to be sold for certain purposes, so much of the estate or its produce as is not effectually disposed of by the will results to the heir. There is here no out-and-out conversion, but only for the purpose of paying debts: (Sm. Man. sect. 295.) Q.-If money is directed by a testator to be laid out in land for F F |