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(6.) Of Resulting and Implied Trusts: herein of
Purchases in the Name of a Stranger, a Child, or Wife, and of the Disposition of a Resulting Trust by Will.
Resulting trust. The trust of a copyhold may result in favour of one or
more persons; for if a grant or surrender be made to one, and the purchase-money be paid by another, the former
will be a trustee for the latter. (1) Purchase in And if one purchase for the lives of himself and others, name of others.
and alone pay the purchase-money, the other lives will be trustees. (2)
A copyhold estate was taken by A. for the lives of himself and two others: A. died intestate, leaving the others surviving : his administratrix was held entitled. (3) But where a copyhold was granted for three lives successivé, and there was no custom for the first taker to dispose of the estate, neither did it appear that the first life paid the purchase-money, the estate was held to go in succes
sion. (4) Purchase in On a purchase made by a parent in the name of a child, name of child or by a husband in the name of his wife, there will be no or wife implies an advance resulting trust in favour of the parent or husband in the
absence of contemporaneous evidence indicating a contrary intention; and the purchase will be presumed to have been intended as an advancement for the child, or a provision for the wife, a presumption however which may be rebutted by parol evidence. (5)
(1) 1 Vern. 366, 415. Dyer v. Dyer, 2 Cox C. C. 92. 1 Watk. Cop. 277, [4th ed.] Goodright v. Hodges, 1 Watk. Cop. 273, [4th ed.] 1 Swanst. 18.
(2) Smith v. Baker, 1 Atk. 385. Lewis v. Lane, 2 Myl. & Keen, 449. 1 Watk. Cop. 273, [4th ed.]
(3) Howe v. Howe, 1 Vern. 415.
(5) Benger v. Drew, 1 P. Wms. 780. Taylor v. Taylor, 1 Atk. 386. Murless v. Franklin, 1 Swanst. 13. Prankerd v. Prankerd, 1 Sim. & Stu. 1. I Watk. Cop. 274, [4th ed.]
· But if a father devise to another an estate purchased in Advanced
child put to the name of a child, and make some other provision for that election. child, the latter will be put to his election. (1) When the name of a child or wife is made use of in a Propriety of
declaring intenpurchase by a parent or husband, the cases on the sub- tion to rebut ject suggest the propriety of declaring by some contempo- presumed adraneous act, whether a trust be or be not intended. In Prankerd v. Prankerd, the intention that a trust only was intended, was held to be sufficiently indicated by a surrender to the use of the parent's will.
On a disposition of copyhold property for some partial Resulting trust object, as the security of money, the payment of debts, and in partial dis
positions. the like, there will be a resulting trust for the benefit of the copyholder or his heir, subject to the purposes intended to be effected.(2)
Where the custom of a manor authorized the granting Trust for next of copyholds to two persons for their joint lives only, and " the life of the longest liver, but allowed any tenant admitted for life to nominate by surrender in court, or by writing out of court, one or two persons to succeed him, and the tenant surrendered to the use of his executors or administrators, and afterwards died; intestate, the administrator was held not to be a trustee for the customary heir; but an inquiry was directed to ascertain the intestate's next of kin. (3)
The resulting trust in copyhold property might have Resulting trust been disposed of by will, before the recent statute for the dispos
by will before amendment of the laws respecting wills, though the cus- recent statute. tom of the particular manor did not recognise that mode of alienation, nor permit any trusts declared by deed or will to appear on the court rolls; and the will operated as a testification for whose benefit the trustee was to hold the estate. (4) The power to dispose of such an interest
(1) Sug. V. & P. 144, [9th ed.]
(2) Ackroyd v. Smithson, 1 Bro. C. C. 503. Williams v. Coade, 10 Ves. 500. Berry v. Usher, 11 Ves. 205. Ashby v. Palmer, 1 Mer. 296.
(3) Wellman v. Bowring, 1 Sim. & Stu. 38.
is now given by that statute, as will be afterwards more fully stated. (1)
In a recent case, (2) the custom of the manor appeared to be, for the lord to grant copyholds for two lives in succession, or for one life in reversion after an existing life, and that the tenant might at any time by surrender pass his estate for his own life, and the life in reversion, and that if no surrender was made, the widow of the tenant for life in possession became entitled on his death to the copyholds during widowhood as her free-bench, and that the copyholds were not devisable by custom. Of this manor a copyholder took a grant to himself and the defendant, paying all the purchase-money and fines, and by will devised the copyholds to his wife for life, and after her decease to the defendant. The testator died, leaving his wife and the defendant surviving, and on the second marriage of the wife, the defendant insisted that as the title of the widow had ceased by her second marriage, he was entitled by virtue of the grant, and that the testator had no right to devise to the widow for life : but it was held by Sir C. Pepys, Master of the Rolls, that the grantee had full power to devise the equitable interest in the copyholds, the trust therein resulting to him, and that the reversionary life was a trustee for the testator: and he observed, that in the case of Edwards v. Fidel, (3) Sir J. Leach considered this as a question of custom, and said it was a reasonable custom, and prevented disputes; but that he (the Master of the Rolls,) could not agree that this was a question of custom at all, or that if it were, it would be reasonable ; that so to consider it would be contrary to the principles of resulting trusts, and inconsistent with the decision in Smith v. Baker, (4) and assumed in Dyer v. Dyer.(5)
(1) Infra, sec. V.
(7.) Of future Uses: Semble, that Copyhold Property
ile ebon It has been a much debated question, whether copyhold Surrender to
future use. property could be limited by way of springing or future use, that is, whether it could be surrendered to a use to take effect at a future period, without the limitation of an intervening use, and so as not to take effect in derogation of any other interest than that which resulted to the surrenderor, or remained in him in the mean time, as after the death of the surrenderor. (1) It was clear, that an executory or future use might be created by a will made in pursuance of a surrender to the uses thereof, and recent cases appear to have decided, that an immediate use limited by a surrender may be made to cease, and a substitutionary use be limited in exercise of a power contained in such surrender. N o
If it be granted, that copyhold property is susceptible of a limitation by way of shifting or secondary use, there seems to be no reason why it may not be limited by way of springing or future use. OLISITI V busk
Mr. Fearne inclined to think that a limitation by way of Surrender by shifting use, might be introduced into a surrender of copyhold
condary use. property; accordingly, where there had been a surrender to uses in strict settlement, with powers of sale, &c., as in the case of freehold property, he was of opinion that by
(1) 1 Watk. Cop. 256, [4th ed.] V a
an exercise of the power by the tenant for life, the estates to the issue would be defeated, and the purchaser would acquire the legal fee. (1)
The late Mr. Sanders was also a strenuous advocate for the doctrine that future uses may be limited in a surrender. But Mr. Watkins was of a contrary opinion, and the impression of Sir E. Sugden was, that a vested estate in a copyhold could not be defeated by the execution of a power, although the power was contained in the surrender by which the estate was created. (2)
In the case of Boddington v. Abernethy, (3) where most of the authorities on the subject were fully gone into, the facts were these : by settlement on marriage freehold property was conveyed to trustees in fee, to the use of A. for life, with remainder over; and there was a power for the trustees to sell, and a covenant to settle certain copyhold property to the same uses, and subject to the same powers as were limited concerning the freehold. A surrender was subsequently made of the copyhold property to the uses, and subject to the powers contained in the settlement, and A. was admitted tenant for life. The trustees afterwards sold the copyhold property, in exercise of the power, to B. in fee, and A. surrendered the same to the use of the trustees in fee upon the trusts of the settlement, and they, on being admitted, surrendered to the use of B. in fee, who was admitted ; and he was held to have a good customary estate in fee.
Former cases seem to have warranted the position, that a power might be limited by a surrender to appoint the use by deed, and that an appointment in exercise of the power would be good, (4) the appointee when ascertained taking as if named in the surrender. (5) It was lately so
Appointment under power in surrender.
(1) Fearne C. R. 276. Sug. Gilb. 352, n.