Of trusts, as more immedi ately referring to the person and acts of cestuique trust. SECT. VIII. tail. But this case cannot be relied upon. If the equitable tenant in tail has the immediate reversion in fee, he may acquire the equitable fee-simple by a fine; but if there are equitable remainders expectant upon his estate tail, it will be necessary for him to suffer a recovery". But where there is an equitable estate tail, attached to, or arising from, a legal estate of the same extent, with legal remainders, an equitable recovery will not bar the legal remainders. The rule may be generally stated, that where the tenant, against whom the writ in a common recovery is brought, has only an equitable estate of freehold, the recovery, suffered upon that equitable freehold, cannot bar a legal estate tail vested in the vouchee, or any legal remainder. But the converse is not true; for if a legal, as well. m Bowater v. Elly, 2 Vern. 344. Indeed it has been said, that a common bargain and sale by cestuique trust, is alone sufficient to bar the entail. 1 Vern. 440. 2 Vern. 183. But that opinion has been overruled. 1 P. W. 91. 1 Ves. 260. Legate v. Sewell, 2 Vern. 552. Kirkham v. Smith, Amb. 518. With respect to copyhold lands, where there is no particular custom to bar the entail of the legal estate, it seems, that a mere devise by cestuique trust is sufficient to bar the entail of the trust. See Otway v. Hudson, 2 " North v. Champernoon, 2 Cha. Ca, 63. 78. 1 Vern. 13. S. C. 1 P. W. 91. S. C. Carpenter v. Carpenter, 1 Vern. 440. Beverley v. Beverley, 2 Vern. 131. Boteler v. Allington, 1 Bro. Cha. Ca. 72. • Robinson v. Cuming, 1 Atk. 473. Salvin v. Thornton, 1 Bro. Cha. Ca. 73. in note. Amb. 545. 699. S. C. Shapland v. Smith, 1 Bro. Cha. Ça. 74. as beneficial, estate of freehold is conveyed SECT. VIII. to the tenant to the writ, the recovery will of trusts, as bar an equitable estate tail in the vouchee, ately referring and all equitable remainders expectant upon and acts of cesitp. more immedi to the person tuique trust. men. When a married woman is entitled to an Married woequitable freehold interest, not settled to her separate use, it is necessary, that she should concur with her husband in levying a fine, in order to pass it: but when personal property is settled to the separate use of a feme cover't, she is, generally speaking, entitled to disposé of it, in the same manner, as if she were a feme sole, although there be no express power of disposition reserved to her. But where an annuity, or annual income, is settled to the separate use of a married woman, she may be restrained from appointing the unaccrued payments of it". SECT. VIII. Of trusts, as more immedi ately referring to the person and acts of ces tuique trust. (225.) Tenants for life. There is a difference as to real property. In the anonymous case, 2 Ves. 192. it is said, that as to real estate, there must be an express power of appointment, in order to enable a feme covert to devise or convey it; but as to personal estate, the separate property of the wife, it is incident to it; that she may make a will or appointment of it. It has since been helds, that where a real estate is settled to the separate use of a married woman during her life, she may, without any express power of appointment for that purpose, convey her equitable estate for life by deed, without the aid of a fine. I apprehend however, that when. an estate in fee-simple is conveyed for the separate use of a married woman, without an express power of appointment reserved to her, she cannot, during her coverture, dispose of the fee-simple without concurring with her husband in levying a fine. (4. c.) It has been decided, that a fine, or other alienation by cestuique trust for life, will not operate as a forfeiture of his trust estate; nor will such fine, or other conveyance, by him, destroy any contingent remainders expectant upon his life estate". IX. It remains for me to consider the SECT. IX. trustee, and the nature of his estate and office. Of the trustee, (1.) The modern doctrine of trusts differs perhaps in no instance so essentially from the system of uses, as in the construction of courts of equity, upon the capacity or liability of persons to act as trustees. Formerly, we have seen, that the intention of the parties has been frequently frustrated by the rigid adherence of the Court of Chancery to the technical scruples of the common law; for uses were considered as annexed to the estate of the feoffees in the land, and not to the land itself. Against the notion of an use attaching upon the land, we find the following curious argument:-" It is absurd to say, that confidence and trust can be re his estate and office. (226.) Who may be trustees. posed in land, which wants sense; and "which in regard of sense is inferior to brute "beasts; and it would be less absurd to say, "that beasts may be trusted, who have sense "and want reason, than land, which wants "sense and reason also, should be trusted". But notwithstanding the force of this grave argument, the courts of equity in later times. have said, that a trust shall never fail on account of the disability, or non-appointment, of the trustee; because they hold, that the (227.) Co. 127. Of incum st) was vo.. ain, the court de at law of the devisor tee for the purposes of his at although the courts now generally conider the trust as attaching upon the land itself, so as to convert all persons, seised of, or acquiring the legal interest, into trustees, yet this rule has an exception in the case of a conveyance by a trustee for a valuable consideration to one, who has no notice of the trustc. In this instance the purchaser shall not be affected by the trust. (2.) The rule will be further exemplified brances of, and by considering, how the estate of the trustee is affected by his own acts or incumbrances. forfeitures by, the trustee at law. * Moggridge v. Thack well, 3 Bro. 517. y Kildare v. Eustace, 1 3 Atk. 309. * Bennett v. Davies, 2 P. W. 316. 2 Ves. 665. b Sonley v. Clock-makers' Company, 1 Bro. 81. Snagg's case, cited 2 Freem. 43. pl. 47. 1 P. W. 273, 279. |