does not prevent the operation of the statute,' and where there is a direction to convey at the termination of the life estate, the statute applies. Where, however, there is a discretion to terminate the trust, it has been said that the statute does not apply. It seems, however, on principle, that the title should remain in the trustee. It is difficult to see how he can sell, make partition or convey unless he has the legal title. The law on this point is far from clear. The Sole and Separate Use 129. The statute does not apply to the sole and separate use, even though there are no active duties in the trus 1 Dodson v. Ball, 60 Pa. 492 (1869); Chamberlain v. Maynes, 180 Pa. 39 (1897). In this case there was a vested remainder which became executed, if at all, immediately upon the execution of the trust, and not after the termination of the life estate, as argued by the counsel for the appellee. One of the remaindermen conveyed, and it was held that her grantee could maintain ejectment against the other remaindermen. If this was considered as a legal title, the reasoning of the court was confusing. To say that the statute executed the use, and that the power vested in the trustee to make partition could not prevail as against the cestui que trust who wished to terminate the trust, is correct, but in no case could the vesting of the legal title depend on whether the cestui que trust chose to treat it as in her. It would be in her either by force of the statute or by force of the conveyance from the trustee, and in no other way. The learned judge, Mitchell, J., seemed to think that the remainderman or woman or her grantee, had a title which was available in ejectment without a deed. If this is so, why say that she took the title without the deed? See, however, Smilie's Est., 22 Pa. 130 (1853). 2 Bacon's App., 57 Pa. 504 at 512 (1868); Earp's App., 75 Pa. 119 (1874), point not discussed here, decision not sustainable on any other ground; Armstrong's Est., 9 W. N. C. 289 (1880); Gray, Restraints on Alien., 2 ed. (1895), $216. The remarks of Penrose, J., in Snyder's Est., 180 Pa. 70 (1897), were dicta, for an equitable interest could vest and pass under the intestate laws as well as a legal interest could. Contra: Rice, P. J., in Rockhill's Est., 29 Super. Ct. 28 at 35 (1905). The learned judge, however, does not mention the statute of uses, and his language seems unnecessarily restricted to the case of a will. 3 Paxson, J., in Wallace v. Denig, 152 Pa. 251 (1893); see Bank v. Denig, 131 Pa. 241 (1889), and Wilson v. Denig, 166 Pa. 29 (1895). See, however, remarks of Rice, P. J., in Rockhill's Est., 29 Super. Ct. 28 at 35, 36 (1905). The clause of sole and separate use originally was "to permit and suffer the cestui que trust to receive and take the rents" for her sole and separate use, etc.; Pullen v. Rianhard, 1 Whart. 514 (1836); Dodson v. Ball, 60 Pa. 492 (1869). It was not until modern times that the words of activity, such as "to receive and collect the income" were inserted. 5 tee. The sole and separate use clause standing by itself does not necessarily prevent the operation of the statute of uses, since the incidents of the separate estate in equity can easily be carried over into the common law in the same manner as were the other peculiar incidents of the use. Since, however, the chief protection to the woman lay in the presence of the trustee to stand between her and the importunities of her husband, an application of the statute would have left her a free agent at law, and defenceless against his influence. Various reasons have been assigned for the non-application of the statute, but this is the principle underlying all of them.® Where the circumstances requisite to the validity of the sole and separate use have ceased to exist,' the statute applies and the beneficiary becomes immediately seised of the legal title, and entitled to deal with it as her own, and her life estate will unite with the legal remainders, under the rule in Shelly's case. If the active duties, however, have reference to some other object, or there is some other reason for continuing the trust, the termination of the sole and separate use will not entitle the cestui que trust to call for a conveyance," 10 unless she has a fee simple estate, in which case she is entitled to a conveyance, as the trust is a restraint on her absolute ownership. In a number of cases where there was an active trust, 9 5 Lancaster v. Dolan, 1 Rawle, 231 (1829), language of Gibson, C. J., at 247; Pullen v. Rianhard, 1 Whart. 514 (1836); Cochran v. O'Hern, 4 W. & S. 95 (1842) dictum. For a case where there were no words of separate use, and it was held that the statute applied, see Kinsel v. Ramey, 87 Pa. 248 (1878). The dictum contra in Carson v. Fuhs, 131 Pa. 256 (1889), may be disregarded. Grier, J., in Cochran v. O'Hern, 4 W. & S. 95 at 96 (1842); Lowrie, J., in Kuhn v. Newman, 26 Pa. 227 at 231 (1856). 7 As to what these circumstances are, see $570, post. Smith v. Starr, 3 Whart. 62 (1838); Steacy v. Rice, 27 Pa. 75 (1856); McKee v. McKinley, 33 Pa. 92 (1859). See §571, post. 9 Steacy v. Rice, 27 Pa. 75 (1856); Nice's App., 50 Pa. 143 (1865). The decision contra in Harris v. McElroy, 45 Pa. 216 (1863), may be considered 8 as overruled. Dodson v. Ball, 60 Pa. 492 (1869); Tucker's App., 75 Pa. 354 (1874). 10 Ash's App.. 80 Pa. 497 (1876); Delbert's App., No. 1, 83 Pa. 462 (1877); Dunn's App., 85 Pa. 94 (1877); Ingersoll's App., 86 Pa. 240 (1878), reversing 2 W. N. C. 13. Her life estate will not unite with the legal remainders; Earp's App., 75 Pa. 119 (1874); Ashhurst's App., 77 Pa. 464 (1875). The court will sometimes construe the active duties to relate solely to the sole and separate use, and not to the life estate. See Megargee v. Naglee, 64 Pa. 216 (1870). 1 See §516, post; Megargee v. Naglee, 64 Pa. 216 (1870). The court said in this case that the trust fell, but nevertheless directed a conveyance. The trust would remain until the cestui que trust chose to call for a conveyance; see §525, post. If the reasoning of the court, the court has said that the statute applied when the sole and separate use came to an end. No conclusion as to the law can be drawn from these cases. The author has discovered no principle upon which they can be reconciled, and the remarks of the judges shed no light on the question whatsoever. It is submitted that on principle the law should be as follows the circumstances requisite under the peculiar doctrine of Pennsylvania law to the validity of the sole and separate use must be present to defeat the operation of the statute. When those circumstances have ceased to exist, the statute at once applies when there are no other active duties. Where there are active duties, the statute does not apply, and the right of the cestui que trust to have a conveyance depends on whether she has a fee or a life estate. The trust only falls of itself in those cases where the statute applies; in other cases, the trust remains until the cestui que trust calls for a conveyance. Charitable Use 130. The effect of the statute of uses on a charitable use is not clear. In those cases where the cestui que use is indefinite, there would seem to be a practical bar to the operation of the statute, as there is no one to take the legal title.3 It seems that this is the case of a special trust, as the trustee has active and special duties to perform, to wit, to select the cestui que trust. It is true that the statute executes a contingent use. This case presents, however, no greater difficulty than that which exists in the case of a contingent legal remainder at law; whereas, in the case of an indefinite charitable cestui que trust, there is not, and never can be, anyone to take the legal title. Where there is a use for a definite charitable object, there is no difficulty and the statute executes the use in the cestui que use.* that the statute applied, had been correct, there would have been no conveyance decreed, as the title would have passed by force of the statute. See also Chadwick v. McCombs, 4 Sadler's Cases, 121 (1886). 2 Strong, J., in Kay v. Scates, 37 Pa. 31 at 38, 39 (1860); Strong, J., in Koenig's App., 57 Pa. 352 at 355 (1868), there was a conversion here, see §125, ante; Agnew, J., in Megargee v. Naglee, 64 Pa. 216 at 218 (1870). Clause Against Alienation-Spendthrift Trust 5 131. The clause against alienation, if valid at all, can affect a legal title as well as an equitable title. There is nothing, therefore, in the clause itself when attached to a bare use to prevent the application of the statute. Since, however, the clause is perhaps valid in equity, when it would be void at law, the Supreme Court has said that the clause prevents the operation of the statute, as it is necessary to support the use as a trust in order to keep the title of the beneficiary in equity where the restraint imposed will be upheld, and as this cannot be done without the legal title remaining in the trustee, it is necessary for him to retain it, and consequently the clause creates an active trust when attached to a life estate.R It is not very clear, therefore, what the law in Pennsylvania is, and the statement may perhaps be ventured that the clause, when attached to a life estate, will prevent the operation of the statute. There is, it is apprehended, a fallacy in this view of the case. The upholding of the clause in equity when it would be void at law, is a case where equity does not follow the law. There must, therefore, be an equitable limitation first present before the court can say that the clause is valid. The question whether there is an equitable limitation where the subject matter is real estate, depends on the nonapplication of the statute of uses. To say, therefore, that the statute does not apply where a a use for a county, the court seemed to think that the county had the equitable estate: Seebold v. Shitler, 34 Pa. 133 (1859). 5 It is the general practice in Pennsylvania, in drawing settlements and wills, to engraft the restraint against alienation on trusts which would be valid for some other reason. The case, therefore, where the clause stands alone, rarely arises. Rife v. Geyer, 59 Pa. 393 (1868), stated §314, post, semble, Gray, Restraints on Alien., 2 ed. (1895), §231, observes that the remarks in this case as to spendthrift trusts were dicta, as there was an equitable life estate and legal remainder which could not unite under the rule in Shelly's case. The question whether clause is present, is to defeat there was an equitable life estate, however, depended on whether the statute of uses applied. The court said that the words of the will were such that without the clause, the statute would apply. This is objectionable; there was plainly an active trust; see §133, post, n. 3. The court based the decision on the ground that the clause against alienation prevented the operation of the statute of uses. It seems, there fore, that the clause against alienation was the express ground of decision, although not necessarily involved in the case. Phila. Trust Co. v. Guillou, 100 Pa. 254 (1882), semble; see $315, post, as to this case. Carmichael v. Thompson, 8 Sadler's Cases, 120 (1886), s. c., 122 Pa. 478 (1888). the provision of a positive act of the legislature by the inter- position of an equitable doctrine which, strictly speaking, cannot prevail except where the statute does not apply. This view of the question does not seem to have been called to the attention of the Supreme Court." Where, however, the interest was in fee, the court held, as under the law as it stood at that time, the clause was invalid in equity, that it did not prevent the operation of the statute." The Modern Use 8 132. A use may be created as well today as before the passage of the statute of uses, and is called a passive or a dry trust. It only remains to collect a few instances of a use or dry trust.10 A trust to permit and suffer the cestui que use to take the rents and profits, is unquestionably a dry trust. This was the form in which the ancient use was gen 7 These remarks would also apply to the sole and separate use except that there is an absolute necessity for the trust to be active, as the chief benefit to the woman is in the interposition of the trustee between herself and the importunities of her husband. The chancellor, therefore, laid down the doctrine that the sole and separate use was an active trust. The doctrine as to the clause against alienation has grown up in the last century, and the sine qua non of its validity is the existence of a trust. 8 As to the present state of the law on this point, see §251, post. Keyser's App., 57 Pa., 236 (1868), stated §246, post, where the court held that all the active duties imposed by the will had been accomplished, and the only question remaining was whether the clause prevented the operation of the statute, and it was held that it did not, the interest of the cestui que trust being in fee. The reasoning of the court was that as the intention to tie up the equitable fee was against the law, and that there was a dry trust, no other reason remained to oppose the statute and the use was executed. It is believed |