the rule in Shelley's case to be a fee. But if the instrument were designed to be merely a minute or draft of a scheme for settling an estate, the same provisions would be construed as indicating an intention to give B. an estate for life only, and that his heirs should take by purchase. When, therefore, the formal instrument, by which the minute is to be carried out, comes to be drawn, a court of equity will see that a settlement is made which will in due form of legal conveyancing carry out the intention of the creator of the trust-that is, the conveyance will be drawn in such a way that B. will take but a life estate, and the parties intended to be described by the word "heirs," will take as purchasers in remainder.1

The distinction between executed and executory trusts was once much shaken by the decision of Lord Hardwicke, in Bagshaw v. Spencer;2 but that learned chancellor subsequently receded from his position, and the difference between the two classes of trusts is now well settled, both in England and America.1

In ascertaining the intention in cases of executory trusts, it must be remembered that in marriage articles there is always supposed to be a design to benefit the issue of the proposed marriage; but no such intention is presumed to exist in regard to wills. A chancellor, therefore, in decreeing a settlement in conformity with marriage articles, will always take care that the issue are provided for; but no such care will be taken in the case of wills, unless in obedience to some intention expressed in the will. As to what will be sufficient evidence of intention, the authorities are not, perhaps, altogether uniform."

Where, however, the intention of the testator to benefit the issue sufficiently appears, the settlement will be made in such a

1 Sackville-West v. Holmesdale, L. R. 4 H. L. Cas. 565; Wood v. Burnham, 6 Paige, 513; 26 Wend. 9; Porter v. Doby, 2 Rich. Eq. 49; Glenorchy v. Bosville, 1 Lead. Cas. Eq. 20, and notes; Perry on 'Trusts, 359.

22 Atk. 142; 1 Ves. 142, 152.
Exel v. Wallace, 2 Ves. 323.
Dennison v. Goehring, 7 Barr, 177;
Wood v. Burnham, 6.Paige, 518; 26 Wend.

9; Horne v. Lyeth, 4 H. & J. 434; Garner v. Garner, 1 Dessaus. 444; Loving v. Hunter, 8 Yerger, 31; Edmundson v. Dyson, 2 Kelley, 307; Berry v. Williamson, 11 B. Mon. 245.

5 Blackburn v. Stables, 2 Ves. & B. 369; Sweetapple v. Bindon, 2 Vern. 536; Perry on Trusts, 360, 366

6 See Am. note to Glenorchy v. Bosville,

ut sup.

manner as to effectuate that intention. There is, indeed, no difference between the rules applicable to marriage articles and those in regard to wills, further than this, viz., that in the former instruments res ipsa loquitur, the occasion itself testifies what the paramount object of the parties must have been.2

Where there are executory trusts of personalty, heirlooms, etc., as to which the ordinary limitations applicable to real estate would defeat, in many instances, the intention of the testator, because it would give a tenant in tail (for instance) absolute control, equity will see that the limitations are of such a nature as to prevent the intention from being defeated.3

58. A court of equity will entertain jurisdiction not only for the purpose of carrying out executory trusts, and seeing that the instrument which purports to fulfil the intention of the settlor really does so, but also for the purpose of reforming conveyances which have been improvidently drawn, and by which the objects sought to be reached by the executory minute or draft have not been attained. Where such an improvident instrument has been executed, equity will, as a general rule, reform it, and order it to be re-drawn in such a way as to effectuate the intention of the parties. But where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them, and will control the articles."

If the intention expressed in the minute cannot be carried out without violating some statute or policy of the law, equity will carry it out as nearly as possible, so as to reconcile, as far as may be, the law and the intention of the settlor."

59. In regard to the division of trusts into public and private trusts, it will be sufficient to remark that public trusts are such

1 Sackville-West v. Holmesdale, L. R. well, 1 Hill Eq. 101; Allen v. Rumph, 2 4 H. L. Cas. 565.

2 Id. This case contains a very full discussion of the law upon this point.

3 Stanley v. Leigh, 2 P. Wms. 690; Scarsdale v. Curzon, 1 Johns. & H. 40; Shelley v. Shelley, L. R. 6 Eq. 546.

4 Warrick v. Warrick, 3 Atk. 293. See also Neves v. Scott, 9 Howard, 197; Gause v. Hale, 2 Ired. Eq. 241; Smith v. Max

Id. 1.

5 Legg v. Goldwire, Cas. t. Talbot, 20; 1 Lead. Cas. Eq. 17. Unless it is shown that the discrepancy arose from a clear mistake, in which case the settlement will be reformed. Bold v. Hutchinson, 5 D. M. & G. 558.

6 Humberston v. Humberston, 1 P. Wms. 332; S. C., 2 Vern. 737; Prec. Ch. 455.

as are constituted for the benefit either of the public at large, or of some considerable portion of it answering a particular description; and that private trusts are those wherein the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained, and to whom, therefore, collectively, unless under some legal disability, it is competent to control, modify, or determine the trust. The principal difference in the nature of the two kinds of trusts is that those of a public character are not confined within the limits prescribed for settlements upon private trusts, but are of a more permanent and lasting character. This distinction will be more fully noticed when the subject of charitable trusts (which, indeed, have been said to be synonymous with public trusts) is considered.3

In private trusts the devolution of the cestui qui trust's estate, and the incidents of his ownership, are, as a general rule, the same as those of legal estates.

60. The rules for the descent of equitable estates are the same as those which regulate the devolution of legal titles; equitable interests are within the statute of distributions; and, it is presumed, fall under the operation of the intestate acts throughout the United States. Whatever would be the rule of law, if it was a legal estate, is applied in equity to a trust estate. A husband is entitled to an estate by the curtesy in his wife's equitable estates of inheritance; and he will be entitled, at common law, to her equitable personalty except in so far as his rights are controlled by the doctrine of the wife's equity to a settlement. By an anomalous decision, however, a wife in England is not dowable of a trust estate. But the rule in most of the United States appears to be different, it having, in some States, been altered by statute; and the point in England has ceased to be of practical importance."

1 Lewin, 23.

2 Id.

3 Post, chap. V.

Lewin on Trusts, 680; Fairies' Appeal, 11 Harris (Pa.), 29.

5 Burgess v. Wheate, 1 Black. R. 155, 161; Croxall v. Shererd, 5 Wallace, 281; 1 Cruise on Real Prop. 387.

6 Hill on Trustees, 405; 4 Kent's Com., 30; post, chap. IV.

7 D'Arcy v. Blake, 2 Sch. & Lef. 387. 8 Williams on Real Prop. 214, note; Dubs v. Dubs, 7 Casey, 149.

9 By the passage of the Dower Act, 3 and 4 Wil. IV., c. 105.

Before the statute of uses it had been decided that the estate of the cestui qui use was not subject to forfeiture and escheat, but that the feoffee to uses became, thereupon, the absolute owner. After the statute the same rule was applied to trusts.2 By subsequent statute the estate of the cestui qui trust was forfeited for treason;3 but upon forfeiture for felony or escheat, the trustee took the estate discharged of the trust. But this rule does not apply to chattels nor to an equity of redemption.

In the United States, the opinion is that the State would take both real and personal property as ultimus hæres. If the legal title to real estate cannot be taken by an alien, the beneficial ownership cannot be enjoyed by him."

61. The right of alienation, by deed and will, attaches to equitable estates, and any restrictions upon that right are invalid, and moreover the incident of involuntary alienation, or, in other words, the liability of the estate to be taken in execution for the debts of the beneficial owner, also applies to such estates. There may, indeed, be a limitation over upon the bankruptcy or insolvency of the cestui qui trust, or upon the happening of any event whereby the property may belong to some other person; and such limitations are of frequent occurrence. But the cestui qui trust cannot hold the property for the purposes of enjoyment freed from the duty of applying it in discharge of his obligations." It is a settled rule of law that the beneficial interest of the cestui qui trust, whatever it may be, is liable for the payment of his debts, and it cannot be so fenced about by inhibitions and restrictions, as to secure to it the inconsistent characteristics of right and enjoyment to the beneficiary and immunity from his creditors. A condition precedent that the provision shall not vest until his debts are paid, and a condition subsequent that it

1 See Burgess v. Wheate, 1 Eden, 199. Att. Gen. v. Sands, 1 Hale P. C. 219. 333 Hen. VIII., c. 20.

4 Att. Gen. v. Sands; Burgess v. Wheate. See also Onslow v. Wallis, 1 Mac. & G. 506; Sweeting v. Sweeting, 33 L. J. Ch. 211:

5 Du Hourmelin v. Sheldon, 1 Beav. 79; 4 M: & C. 525; Atkins v. Kron, 5 Ired. Eq. 207; Hubbard v. Goodwin,

3 Leigh, 492; Leggett v. Dubois, 5 Paige, 114; Taylor v. Benham, 5 Howard, 270. See also Sharp v. St. Sauverne, L. R., 7 Ch. App. 352; overruling Rittson v. Stordy, 3 Sm. & Giff. 230; and approving Barrow v. Wadkin, 24 Beav. 1.

6 See Williams on Real Prop. 87, and notes.

7 Dumpor's Case, 1 Sm. Lead. Cases, 119, Judge Hare's note.

shall be divested and forfeited by his insolvency, with a limitation over to another person, are valid, and the law will give them full effect. Beyond this, protection from the claims of creditors is not allowed to go. This is the general rule throughout the United States and in England. In some of the States of the Union, however, a different doctrine has been held. Thus in Pennsylvania it is now firmly established by many authorities that a proviso exempting the estate of the cestui qui trust from liability for his debts, and where he is excluded from the control of the property,2 will be good without any limitation over. And this rule seems also to exist in Connecticut, Virginia, Kentucky, and Alabama.*

62. Certain exceptions to the rules above stated, in regard to the devolution of trust estates, and the powers of the cestui qui trust, exist in the case of trusts for married women, and will be noticed when that particular class of trusts comes under consideration.

Another exception formerly existed in England in relation to attendant terms, trusts of which, though of chattel interests, followed the descent of the inheritance which they were designed to protect. But the doctrine of attendant terms is now obsolete in England;5 and was never of any practical importance in this country."

Trust estates also follow the law of legal estates as to the injuries which may affect them and the consequences of these injuries. Thus, although the terms seizin and disseizin are not strictly applicable to equitable estates, a court of equity regards

1 Nichols v. Levy, 5 Wallace, 441; Hallett v. Thompson, 5 Paige, 583; Dick v. Pitchford, 1 Dev. & Bat. (Eq.) 480; Blackstone Bank v. Davis, 21 Pick. 42; Brandon v. Robinson, 18 Vesey, 429. See Hutchins v. Heywood, 50 N. Hamp. 491, where it was held that a resulting trust (arising from the payment of the consideration by one man, where the title was taken by another) was executed by the statute of uses, and could be levied upon and sold under ordinary process. 2 See Adams's Eq. 43.

3 Fisher v. Taylor, 2 Rawle, 33; Ash

hurst v. Given, 5 Watts & Serg. 323; Vaux v. Park, 7 Id. 19. But even in Pennsylvania a person sui juris cannot make a settlement on himself free from liability for debts. MacKason's Appeal, 6 Wright, 330.

4 Leavitt v. Beirne, 21 Conn. 8; Markham v. Guersant, 4 Leigh, 279; Johnson v. Zanes's Trustees, 11 Grat. 570; Pope v. Elliott, 8 B. Mon. 56; Hill v. McRae, 27 Ala. 175; and see Genet v. Beekman, 45 Barb. 382.

5 Stat. 8 and 9 Vic., c. 112.

6 See 4 Kent's Com. 87.