the seisin must be vested in a different person from the cestui que use himself; for otherwise the case does not arise of one person being seised to the use of another (0). And the seisin should be for an estate as extensive as the Use itself; for the statute only executes the Use so far as there is a corresponding seisin. Thus, if land be conveyed to A. for life, to the use of B. in fee, the statute will vest the legal estate in B. only during the life of A. (p). The strictness of this technical rule was the cause of a curious abstract controversy, which long agitated the legal profession. Thus, when land was conveyed by feoffment to A. and his heirs, to the use of B. for life, remainder to the use of his unborn sons successively in tail, remainder to the use of C. in fee, it was necessary, in order that the statute should transmute all these Uses into legal estates, that there should be a seisin out of which to execute not only the Uses in esse to B. and C., but also the Uses in futuro to the unborn sons of B. The question arose, where, after the execution of the feoffment, was the seisin out of which their future Uses were to arise. The doctrine which found most general favour was, that there remained in the feoffee, though not an actual seisin, yet a scintilla juris, or possibility of future seisin, to serve the future Uses as they came into esse. But now, by the Law of Property Amendment Act, 1860 (q), such future Uses are to take effect when and as they arise, by force of, and by relation to, the original seisin in the feoffee to Uses; but no scintilla juris is to be deemed to remain in the original feoffee to Uses.

The Statute of Uses has been, in other respects also, very rigorously construed by the judges. For, first, it was held that no Use can be limited upon a Use. The case which is usually quoted as the authority for this important rule is apt to be misunderstood, because the word "Use "does not appear in the first of the limitations

(o) Meredith v. Joans, (1632) Cro. Car. 244.

(p) Meredith v. Joans, ubi sup. (q) Sect. 7.

described in it. J. bargained and sold to G. and his heirs, to the use of herself (J.) for life, remainder to the use of G. in tail. But the effect of the "bargain and "sale" was (as we have said) to make J. seised to the Use of G. and his heirs, which Use was at once executed by the statute. Consequently, all the subsequent Uses were Uses upon Uses; and these the Court declared not to be executed, because "an Use cannot be ingendered of an Use" (r).

It was held also, that where the person entrusted has any active duty to perform, he cannot be considered as holding to an Use, or at least not to such an Use as the statute executes. Thus, if lands be given to B. and his heirs, with a direction to receive and pay over the profits to C., this shall be no Use in C.; though, on the other hand, if the direction were to permit C. to take the profits, this would be an Use executed in C., there being no active duty in this latter case for B. to perform (8).

It will thus be seen, that, while the Statute of Uses effected a revolution in the creation and transfer of legal interests (a matter with which we shall deal in the chapter on Conveyances under the Statute of Uses) (t) it left practically untouched a large number of equitable interests, or Uses of the old kind, which are the proper subject of this chapter.

The Uses which were thus in courts of law excluded from the operation of the statute, did not fail to obtain protection from the courts of equity. For it was evident, that the person directed to hold to the Use was never intended by the parties to have any beneficial interest, and that his capacity was merely fiduciary. Therefore, the Court of Chancery determined, that though the purposes pointed out were not Uses executable by the statute, yet a trust subsisted in the person directed to

(r) Tyrrell's Case, (1557) Dyer, 155,

(s) See the decisions in 1 Eq. Ca. Ab. 383-4.

(t) Post, bk. ii., pt. i., ch. xvijį

perform the purpose; and that such trust was binding, if not at law, yet in equity. Accordingly, the interests in question, though rejected at law as Uses, became established in equity as trusts. And, with regard to these, the Court of Chancery soon established certain important rules, of which the principal are as follows:

1. Trusts are frequently distinguished as executory or executed. They are executory, where the cestui que trust is to take through the medium of a future instrument of conveyance which the trustee is directed to execute for the purpose; they are executed, where no such future conveyance is contemplated, but the trust estate is completely limited in the first instance. Thus, where a settlement not only vests property in trustees, but goes on to prescribe in detail the objects of the trust and the duties of the trustees, the trusts are said to be executed, and the exact language of the settlor must be followed. But, if the settlement is merely in the nature of preliminary articles, or general directions, which will have to be carried out by a subsequent instrument, the trusts created by it are executory. And, in carrying out the articles, the Court will allow itself greater latitude in construing the settlor's words, so as to effect his real intention (u).

2. Trusts may be either express or implied. If, for example, the legal estate in land be conveyed to A. upon such trusts as the grantor shall afterwards appoint, or upon trusts which fail, it is clear that A. is not intended to hold the land for his own benefit. There arises, therefore, by necessary implication, until the appointment be made, and after the trusts have failed, a trust for the grantor (r). And such trusts, so raised by implication for the benefit of the grantor himself, are called resulting trusts. So also, if an estate be purchased in the name of one person, and the consideration-money is paid by

(u) Stamford v. Hobart, (1710) 3 Bro. P. C. 33,

(x) Cottington v. Fletcher, (1740) 2 Atk, 155,

another, the land purchased will be subject to a trust for the person by whom the money was paid (y). And an agreement for the sale of land, when once concluded, will create an implied trust in equity for the purchaser (z).

3. Though neither the Crown nor a corporation aggregate could be seised to any Use but its own, the case is said to be otherwise with respect to a trust (a); and it may be laid down generally, that every description of person capable of holding land, is capable also of being a trustee. It is also a maxim in equity, that a trust shall never fail on account of the disability of the person appointed to perform it, or even from the omission to appoint any trustee at all. For the court will in either case compel the execution of the trust, by the person in whom the legal estate is vested.

4. The estate of the trustee is subject at law to all the incidents which attend an ordinary ownership of land. It devolves, therefore, when he dies, to his legal representative; and is liable, while he lives, to alienation by himself. But the claim of the representative, and in general also of the alienee, is subject, in contemplation of equity, to the original trust. The only exception is with regard to alienees, who become such by purchase, for valuable consideration, and without notice of the trust. For here, if they actually acquire the legal estate, they are not bound by the trust, nor compellable in equity to its observance (b). For their claim is not inferior, in point of equity, to that of the cestui que trust; the consequence of which is, that the legal title of the purchasers takes effect for their benefit,

while the cestui que trust is left to his remedy against the alienor personally, for his breach of trust. On the other hand, where the legal estate still remains in the trustee or his legal representative, but the purposes of the trust are satisfied, he is always compellable to divest himself of the legal estate, by executing a proper conveyance to or in favour of the person beneficially entitled.

It is further to be noticed that, at law, the estate of the trustee was liable to be taken in execution for his debts, his wife was entitled to dower, and the husband of a female trustee was entitled to curtesy. But in equity, after some hesitation, the estate of the cestui que trust was ultimately protected against all these inconveniences resulting from the trustee having the estate at law (c). And, although the estate of the trustee was formerly liable also to forfeiture and to escheat, that was altered by the Trustee Act, 1850 (d), which provided that no lands, stock, or chose in action, held in trust or by way of mortgage, should escheat or be forfeited, so as to affect the interest of the cestui que trust or mortgagor.

5. As we have pointed out, the interest of the cestui que trust was not originally the subject of protection at all at law, but subsisted only in contemplation of equity. In contemplation of equity, however, it was the actual beneficial ownership, the cestui que trust's interest being modelled, in general, upon the rules of the common law with regard to legal estates, for æquitas sequitur legem. Thus, there may be an equitable interest (just as there may be a legal estate) for life or for years, in fee or in tail; and, in the case of an equitable estate tail, the method of barring the entail is the same as if the estate were legal. So, an equitable interest may be either in possession or in expectancy, as in the case of a legal

(c) Finch v. E. of Winchelsea, (1715) 1 P. Wms. 278 (debts); Noel v. Jeron, (1678) Freeman

Ch. Ca. 43 (dower); Gilbert Uses (ed. Sugd.) 18 n. 1 (curtesy).

(d) Sect. 46.