PART III. CHAPTER II. Div. I. SECT. 1. The lord's estate supports contingent remainders of copyholds. Effect of 7 & 8 Vict. c. 76, s. 8, in abolishing contingent remainders. Origin of at tendant terms. himself or another for the purpose of cutting timber (e). And, to enable them to discharge this duty, the trustees may have an injunction against the tenant for life, to restrain the commission of the waste before the contingent remainder-man comes into esse (ƒ). If the trustees consent to the commission of the waste, and bind themselves not to sue for an injunction, they will be personally liable for the value (g). But this liability will not exist, if they have not acted in the trust, or have no notice of the waste (h). In the case of copyholds the lord's estate will suffice to support the contingent remainders, without any express appointment of trustees for that purpose. But it does not appear to be the duty of the lord, (though a trustee by legal construction,) to interpose actively to prevent waste (i). The recent act of 7 & 8 Vict. c. 76, has made a very important alteration in the law affecting contingent remainders. The 8th section enacts, that after that act comes into operation [from the 31st of December, 1844,] no estate in land shall be created by way of contingent remainder, but every estate, which before that time would have taken effect as a contingent remainder, shall take effect (if in a will or codicil) as an executory devise, and [if in a deed] as an executory estate of the same nature and having the same properties as an executory devise: and contingent remainders existing under deeds, wills, or instruments, executed or made before the time, when that act comes into operation, shall not fail or be destroyed or barred merely by reason of the destruction or merger of any preceding estate or its determination by any other means, than the natural effluxion of time, or some event, on which it was in its creation limited to determine. The effect of this enactment is to do away with the necessity of creating trustees for the preservation of contingent remainders for the future; as well as to remove the probability of any question arising hereafter, as to the duties or powers of the trustees already created for that purpose. It is to be observed, that the 13th section declares, that the act shall not extend to any estate, right, or interest created before the 1st of January, 1845, except so far as regards the provisions as to existing contingent remainders. III.-Of Trustees of Attendant Terms of Years. Where a term of years is created by deed or will, either by way of mortgage, or for securing jointures, or portions, or any other particular purpose, and there is no proviso for its cesser or determination, upon the satisfaction of the trusts, the term upon the accomplishment of the (e) 10 Ves. 278. (f) Garth v. Cotton, 3 Atk. 754. (h) 3 Atk. 754. (i) Stansfield v. Habergham, 10 Ves. 282. PART III. CHAPTER II. Div. I. SECT. 1. particular purpose will in general remain vested in the termor, as a trustee for the owner of the inheritance :-And it is then technically known as an attendant term, in contradistinction to a term in gross (k). A term may become attendant, either by an express declaration, or Terms become by the construction of law: the powers and duties of the trustee of the attendant,either by express determ are the same in either case (1). claration, or by It has been long established, that wherever the title to the inheri- construction of tance, and the term of years is so situated, that the whole legal inter- When terms beest in the one, and the whole equitable interest in the other, are vested in the same person, so that if they were both legal estates the term would merge, then the term will in equity become attendant on the inheritance, although there may be no express declaration to that effect (m). law. come attendant by construction of law! to the term and the inheritance person. Therefore where a purchaser of land took a conveyance of the fee to Where the title himself, and an assignment of an outstanding term of years to two persons in trust for him, but without declaring that the term was becomes vested to attend, Lord Nottingham decided, that the trustees held the in the same term for the benefit of the heir of the purchaser as the owner of the inheritance, and that his executrix who laid claim to it as a chattel or term in gross, had no interest (n); and it is immaterial whether the term or the legal fee, be vested in the trustee for the purchaser (o). So where a person entitled as mortgagee to a long term of years, which was vested in a trustee for him, purchased the inheritance, and devised the fee by a will not attested by three witnesses; it was held, that the devisee should not take the trust of the term under the will, but that it went to the heir at law as attendant on and part of the inheritance (p). And the law is the same, where the termor for years subsequently to his will contracts to purchase the inheritance, and dies before conveyThe residuary legatees in that case will have no claim to the legal term, which will in equity belong to the heir, as attendant upon his equitable title to the inheritance (q). ence. And where a testator devised an estate to trustees for a term of ninety-nine years, but declared no trust of the term, and went on to devise the estate to persons for life with remainders over; it was held, (k) Willoughby v. Willoughby, 1 T. R. 765; S. C. Ambl. 282; Best v. Stamford, 1 Salk. 154; S. C. 1 P. Wms. 374; Prec. Chan. 252; 2 Vern. 520; Wynch v. Packington, 2 Eq. Ca. Abr. 507; S. C. 1 Bro. C. C. 90, cited; Hayter v. Rod, 1 P. Wms. 373; Maundrell v. Maundrell, 10 Ves, 259; 2 Fonbl. Eq. B. 2. Ch. 4, Sect. 4, 5; Co. Litt. 290, b. Butl. note, XV. (1) Cholmondley v. Clinton, 1 Sugd. V. & P. 506, 7, 9th ed.; 1 Cruis. Dig. Tit. 12, Ch. 3, Sect. 9; 1 Sugd. V. & P. 521, &c. 9th ed. (n) Tiffin v. Tiffin, 1 Vern. 1; S. C. 2 (0) Langton's case, 2 Chan. Ca. 156; Dowse v. Percival, 1 Vern. 104. (p) Witchurch v. Witchurch, 2 P. Wms. 236; Goodright v. Shales, 2 Wils. 239. (a) Capel v. Girdler, 9 Ves. 509; and see Cooke v. Cooke, 2 Atk. 67. PART III. that there was no resulting trust of the term, but that it attended the Div. I. CHAPTER II. faction of the particular purpose for which inheritance (r). So where a term is carved out of the inheritance for any particular Upon the satis- purpose, when that purpose is satisfied, the term becomes attendant on the inheritance without any express declaration: and this is in accordance with the maxim of equity, that "that should have the satisfaction, which has sustained the loss" (s). And this doctrine will hold good, whatever may have been the purpose, which the term was destined to answer; whether to secure a mortgage debt-or any pecuniary charge for a wife or children-or to carry out any other temporary arrangement (t). the term was created. Anintermediate estate will pre vent a term from becoming attendant. Attendant term may be disannexed from the inheritance. Therefore where the owner of the inheritance, though only tenant in tail (u) pays off a charge, secured by a term of years, it will be presumed, in the absence of a declaration to the contrary, that he acted for the benefit of the inheritance, and the term will become attendant (x). But it is otherwise where the incumbrance is discharged by a tenant for life (y); or tenant in tail in remainder (z). Although if the tenant for life, or a tenant for any other partial estate, pay off the charge, and afterwards acquire the inheritance; the charge, although kept on foot up to that time, will then merge, and the term will become attendant (a). If there be any intermediate legal estate and beneficial interest between the term and the inheritance, the term will not be attendant, but will remain in gross; for in that case it would not merge, if vested in the owner of the legal inheritance. For instance, where the trustee of an outstanding term, granted a derivative lease of it to a trustee for the purchaser, reserving a nominal reversion of eleven days, instead of assigning over the entire interest, the derivative term was held not to be attendant (b). A term may be prevented from becoming attendant, although the beneficial title to it becomes vested in the owner of the inheritance, if in creating it there was an obvious intention, that it should be separated from the inheritance, and held in gross (c). And so a term, having become attendant, may be disannexed, and turned into a term in gross by the act of the owner of the inheritance (d). (r) Sidney v. Miller, Coop. 206, and 19 Ves. 352; Anon. 2 Ventr. 359; see Brown v. Jones, 1 Atk. 191. (8) Francis Max. p. 21, 22; 2 Fonbl. Eq. B. 2, Ch. 4, Sect. 4, 5; 1 Cruis. Dig. Tit. 12, Ch. 3, Sect. 10; Co. Litt. 290, b. Butl. note, XV. (1) Bodmin v. Vandebendy, 2 Chan. Ca. 172; Gore v. Black, 2 Vern. 139, cited; Best v. Stampford, Prec. Chan. 252; S. C. 2 Vern. 520; Maundrell v. Maundrell, 10 Ves. 270. (u) Jones v. Morgan, 1 Bro. C. C. 206; St. Paul v. Lord Dudley and Ward, 15 Ves. 173; Astley v. Milles, 1 Sim. 298; Lord Selsea v. Lord Lake, 1 Beav. 146. (y) Wyndham v. Earl of Egremont, Ambl. 753; Countess v. Earl of Shrewsbury, 1 Ves. jun. 227. (z) Wigsell v. Wigsell, 2 S. & St. 364. (a) Astley v. Milles, 1 Sim. 298; Lord Selsea v. Lord Lake, 1 Beav. 146. (b) Scott v. Fenhouillet, 1 Bro. C. C. 69. (c) Hayter v. Rodd, 1 P. Wms. 362; see Nourse v. Yerworth, 3 Sw. 612. (d) Per Lord Hardwicke in Willoughby v. Willoughby, 1 T. R. 763; S. C. Ambl. 283; Duke of Norfolk's case, 3 Chan. Ca. 46. Div. I. CHAPTER II. Terms attendant on the inheritance, are considered as absolutely PART III. annexed to it; and the beneficial title to them follows all alienations of the inheritance, or any partial estate created out of it by deed or will or act of law (e). SECT. 1. Attendant terms follow all alienations of the inheritance. The legal ownership of the term devolves upon the death of the original trustee in the usual course of representation, where it has not been previously assigned to a new trustee. But in all cases the legal holder of the term will hold in trust for the person entitled for the time being to the inheritance, and will be bound to exercise his legal powers only according to his direction, or for his benefit (ƒ). It has been already seen, that as the legal estate is vested in the Utility of attentrustee of the term, any action at law respecting the title to the property can be tried only in his name (g). And hence arises the security to a purchaser by having an outstanding term vested in a trustee for him; for if an ejectment be brought against him by any incumbrancer or other adverse claimant, and the origin of the adverse title be subsequent to the creation of the term, the plaintiff in such an action cannot recover during the continuance of the prior legal estate (h). dant terms. tee of term. The duties of the trustee of an attendant term therefore are mainly, Duties of trusto suffer his name to be used by the owner of the inheritance in any action at law respecting the title, and to assign or dispose of the term according to the requisitions of the same party. Where a person, who lays claim to the inheritance, requires an assignment of an attendant term, which has not been expressly assigned to a trustee for himself, the trustee of the term is of course entitled to clear proof of the right of the party to have the required assignment, and for that purpose to require the deduction of his title from the person for whose benefit the term was last assigned to attend. And in the absence of such proof the trustee would unquestionably be justified in refusing to make the assignment except under the sanction of the court (i). This leads to the observation, that if the trustee of the term have notice of any disposition, or incumbrance, created by the owner of the inheritance, he cannot safely make any assignment of the term, or suffer any proceeding to be carried on in his name to the prejudice of the party taking an interest under that disposition or incumbrance; and Lord Eldon has intimated, that the trustee in such a case might be restrained by injunction from permitting his name to be used for such a purpose (k). (e) Willoughby v. Willoughby, 1 T. R. 763; Ambl. 282; Maundrell v. Maundrell, 7 Ves. 567, and 10 Ves. 246; Co. Litt. 290, b. But. note, XV.; 2 Fonbl. Eq. B. 2, Ch. 4, Sect. 4, 5; 1 Mad. Chan. Prac. 636; 3rd ed.; Earl of Buckinghamshire v. Hobart, 3 Sw. 201. (f) 1 Sugd. V. & P. 519, 520, 9th ed. (g) Ante, Pt. II. Ch. III. (h) Co. Litt. 290, b. Butl. note, XV.; 2 Fonbl. Eq. B. 2, Ch. 4, Sect. 4; 1 Mad. Chan. Prac. 636. (i) Ante, Pt. II. Ch. IV. Sect. 1; and see Goodson v. Ellisson, 3 Russ. 583. (k) Ex parte Knott, 11 Ves. 613; 1 Sugd. V. & P. 520, 9th ed. He must assign by direction of the term only the party enti tled to the inhe ritance. Cannot safely assign after no tice of an in cumbrance. PART III. SECT. 1. If a trustee of a term refuse to assign it, when required by the party CHAPTER II. Who is clearly entitled to the inheritance, he will be compelled to do so by the decree of the court (1): and if the refusal be unreasonable or proceed from any improper motive, the decree would be made against the trustee with costs (m). Will be decreed to assign, if he refuse. Cannot use his legal powers to prejudice owner of inheritance. Presumption of surrender. No merger by marriage of trustee of term with owner of freehold. Trustee entitled to costs of taking legal opinion, &c. Prerogative probate requi site to pass a trust term, when? A court of equity will not suffer the trustee of an attendant term to use his legal powers for the purpose of defeating or opposing the title of the owner of the inheritance; and even the courts of law will lay hold of any circumstance in order to prevent so gross an injustice, and will presume the surrender of the term (n). The other cases, in which the surrender of an attendant term may, or may not, be presumed, have already been considered at large in a previous chapter (o). Where the trustee of a term marries a woman, who has an estate of freehold in the property, the term will not by this means become merged in equity, whatever may be the case at law (p). And in like manner if an attendant term become vested in the wife of the owner of the inheritance, as administratrix of the previous trustee, there will be no merger; nor will the wife thus acquire any right, which she would not have had, if the term had been vested in a third person as trustee (q). A trustee of a term, who is required to assign it, is unquestionably entitled to satisfy himself as to the right of the party requiring the assignment, by taking legal advice, and the costs and expenses thus incurred must be defrayed by the persons by whom the assignment is required. It may be observed, that where the trust term is in a different diocese from that in which the trustee is domiciled, a prerogative probate or administration will be requisite to enable his representative to transfer the term (r). SECT. 2.-Of Trustees of an Estate clothed with Active Duties. II.-Of Trustees for the Payment of Debts. V.-Of Investment by Trustees. VIII.-Of Trustees for Married Women. (1) Mole v. Smith, Jac. 490. (m) Willis v. Hiscox, 4 M. & Cr. 197; vide ante, Pt. II. Ch. IV. Sect. 1, and post, [Costs]. (n) Lade v. Holford, Bull. N. P. 110; Doe v. Staple, 2 T. R. 696; Doe v. Sybourn, 7 T. R. 2; Goodtitle v. Jones, ib. 47; Bart lett, v. Downes, 3 B. & Cr. 616. (r) 3 Sugd. V. & P. 14, 10th ed.; Crossley v. Archdeacon of Salisbury, 3 Hag. 201. |