1 definite number of years (r), or to raise a sum of money by sale (y), and subject thereto to uses in strict settlement, the trustees will not be held to take a mere power so as to let in the statute to execute the uses, but will be construed to take the legal estate in fee, and the uses that are limited will stand as equitable interests. It has been observed in the " Treatise of Powers "(≈), that this rule was not attended to in the case of Hawker v. Hawker (a). The devise in that case was to three trustees and their heirs upon trust to sell the testator's lands at H. for payment of his debts, and, in case the proceeds should be insufficient, then as to his lands at F. upon trust to sell for the like purpose, and to dispose of the surplus moneys in manner thereinafter directed, and, in case it should not be necessary to dispose of the said lands at F., then as to such his lands (inter alia) upon trust for the maintenance of his daughter till twenty-one, and, on her attaining twenty-one, to the use of the trustees during her life, and after her decease to the use of her children, and the Court certified as to the lands at F., that the trustees did not take a larger estate than for the life of the daughter. The devise was probably considered to be of a double aspect, viz. to the trustees and their heirs upon trust to sell &c. if one event happened, and upon trust for the daughter, &c. if another event happened. The latter series of limitations took effect, and therefore, as no (x) Doe v. Willan, 2 B. & Ald. 84; but see Heardson v. Williamson, 1 Keene, 33. (y) Wright v. Pearson, 1 Ed. 123; Bagshaw v. Spencer, 1 Ves. 142; Glover v. Monckton, 3 Bing. 13; Bale v. Coleman, 2 Eq. Ca. Ab. 309, note (e); Sanford v. Ir- (z) Ch. 2, sect. 1. power of sale was to be exercised by the trustees, it was not necessary under the circumstances to arm them with the inheritance. pro The case of Warter v. Hutchinson (b) is more difficult to be reconciled with the rule we are discussing. The limitations, so far as they concern the present subject, were to trustees and their heirs to the following uses, viz. to the trustees their heirs and assigns until A. attained twenty-one, upon trust as soon as convenient after the testator's decease to raise out of the rents and profits, or by sale or mortgage thereof, a sum sufficient for the payment of debts, funeral expenses, and the costs of the trustees, and also the sum of 2,000l. to be applied in manner therein directed, the residue of the rents and fits, after payment of debts, funeral expenses, and the sum of 2,000l., to be paid to A. on his attaining twenty-one, and when A. should attain twenty-one the testator devised the premises to the trustees and their heirs to uses in strict settlement; and the Court certified that the trustees took a chattel interest, and not the fee-simple. The construction appears to have been, that, as the limitation to the trustees and their heirs was expressly limited to the period until A. attained twenty-one, the estate was intended to be a chattel interest only, and the charges were to be raised either by sale or mortgage of that chattel interest, or out of the inheritance by virtue of an implied power. (b) 5 Moore 143; S. C. 1 B. & C. 721. Ꭱ 242 CHAPTER XIV. THE DEVOLUTION AND PROPERTIES OF THE LEGAL ESTATE IN THE TRUSTEE. THIS branch of our subject we propose to consider, first, with reference to the common law; and, secondly, with reference to the construction of particular statutes. I. As regards the common law, it may be stated as a general rule, that the legal estate in the hands of the trustee will have precisely the same properties and incidents as if the trustee were the usufructuary owner. Thus, the trust estate will be subject to curtesy (a), dower (b), and freebench (c), will be liable to forfeiture (d), on the decease of the trustee will descend to his heir, and, failing the heir, will fall by escheat to the lord (e). So personalty held upon trust will be forfeitable for the offence of the trustee (ƒ), (but in the case of two joint (a) Bennet v.Davis, 2 P.W. 319. (b) Noel v. Jevon, Freem. 43; Nash v. Preston, Cr. Car. 190. (c) Hinton v. Hinton, 2 Ves. 631, 638; Bevant v. Pope, Freem. 71; and see Brown v. Raindle, 3 Ves. 256. (d) Pawlett v. Attorney-General, Hard. 466, per Lord Hale; Geary v. Bearcroft, Cart. 67, per cur. (e) Jenk. 190, c. 92. (f) Pawlett v. Attorney-General, Hard. 466, per Lord Hale; trustees a moiety only will be forfeited, and the King and the other trustee will be tenants in common (i), and on the decease of the trustee the chattel, as part of the personal estate, will devolve on the executor or administrator. And it seems the better opinion, that a chattel interest held upon trust may be taken in execution for the debt of the trustee; for, so soon as the writ of execution reaches the sheriff's office, it binds the goods and chattels of which the debtor is then possessed, and a trust estate, as well as a beneficial ownership, must be subject to the lien, for the common law can scarcely operate differently where it recognises no distinction. The sheriff is a mere instrument for the execution of the legal process, and property, which the common law holds liable, the sheriff can have no discretion to exempt upon grounds of equity. It was said, however, by Mr. Justice Ashhurst, "Suppose a person has goods as a trustee for certain purposes, which was made known to the sheriff before the sale, if the sheriff persist in selling, it would in my opinion be a tortious act in him (h);" but the doctrines which in the last century confounded the legal and equitable jurisdictions have been since overruled; and Lord Thurlow seems to acknowledge the legal right against the trustee, by observing, that, if a creditor of the trustee take the goods in execution, he will himself become a trustee by construction of equity (i). Assets in the hands of an executor are regarded even by the common law as a species of trust property, and in respect of them has ingrafted upon itself a quasi equitable jurisdiction: thus, if an executrix marry, the goods and chattels of the testator do not, even at law, vest in the husband, though he survive (k); nor can they be taken in execution for the debt of the executor (); and, if he commit felony or treason, they are exempted from forfeiture to the King (m); and if the executor die intestate, instead of vesting in his administrator, they vest in the administrator de bonis non of the testator (n). A trust estate, whether real or personal, may, like a beneficial estate, be conveyed, assigned, or incumbered by the trustee at law; and, if there be co-trustees, each may exercise the like powers of ownership over his own proportion. And, as the trustee may dispose of the property in his lifetime, so he may devise or bequeath it at his death. But a trust estate will not in all cases pass by the same words in a will as a beneficial ownership would, for wherever the law does not operate solely, but through the medium of the intention, it becomes necessary, in order to ascertain the effect of the instrument, to take into consideration the particular circumstances of the trust. Whether a trust estate shall pass inclusively in a general devise, is a question that has been frequently under discussion. The rule as originally established was, that a general expression would carry a dry trust estate (0), but afterwards there were some misgivings upon the sub |