SECT. I. Of the intro duction and system of trusts since the sta tute. Of the trust estate. SECT. II. Of the defini tion and several kinds of trusts. (203.) Difference between a trust and equity of redemption. The trust, occasioned by the statute of uses, is of a permanent and general nature, or a secondary use. But the system introduced by the Court of Chancery, relative to trusts since the statute, extends not only to trusts declared upon a legal estate in fee, but to those declared upon the estates of tenants in tail, for life and years, and to the special trust before noticed. II. A trust, generally speaking, is a right on the part of the cestuique trust to receive the profits, and to dispose of the lands in equityd. But there may be special trusts for the accumulation of profits, the sale of estates, or the conversion of one trust fund into another, which may preclude all power of interference on the part of cestuique trust, until such special trust be satisfied; and there is a distinction between trusts executed and trusts executory. A trust does not include every equitable interest. An equity of redemption is said to be a title in equity, and not merely a trust. In Pawlett v. the Attorney-general, sir Matthew Hale observes, "there is a diversity d 1 Mod. 17. Hard. 465. In Tucker v. Thurstan, 17 Ves. 133. lord Eldon observes, that a trust estate and an equity of redemption, are in many respects most materially different. See also post, 205, "betwixt a trust and a power of redemption; "for a trust is created by the contract of the party, and he may direct it as he pleaseth; "and he may provide for the execution of it: "and, therefore, one that comes in in the post "shall not be liable to it, without express "mention made by the party. And the "rules for executing a trust have often va"ried; and, therefore, they only are bound 66 by it, who come in in privity of estate. A "tenant in dower is bound by it, because she "is in in the per, but not a tenant by the curtesy, who is in in the post. So all who come in in privity of estate, or with notice, or without a consideration. But a power of "redemption is an equitable right inherent "in the land, and binds all persons in the post, or otherwise; because it is an ancient right, which the party is entitled to in equity." 66 III. It has been intimated, that the courts of equity, in forming a system respecting the secondary use, or modern trust, occasioned by the statute of uses, have endeavoured to avoid the mischiefs, arising from the ancient use. It will be now necessary to state the properties of the trust estate, as distinguished from the legal seisin of the trustee, and to inquire into the rules, by which trusts are governed. SECT. II. of the definikinds of trusts. tion and several SECT. UI. (204.) SECT. III. In what cases It is a maxim generally received, that in the construction of trusts, the courts of verned by, or equity adopt the rules of law applicable to laws relative to legal estates. In some cases, however, the assistance of the legislature has been required to preserve the uniformity. similar to, the legal estates. Limitations of trust estates. Estates tail. (1.) If a term of years be assigned to A. in trust for B. and his heirs, the trust of the term will, notwithstanding, be personal estate in the cestuique trust, and will consequently devolve upon his executors. The converse of this rule is also adopted. The equitable interest in a freehold estate, cannot be so framed, as to make it go perpetually to the executor of cestuique trust, as personal estate. In the case of trusts executed, words of limitation, which if applied to real property would create an estate tail, will also create an estate tail in the trust or beneficial interest; and, therefore, the rule of law will prevail, although the intention of a testator, in the case of wills, may be inferred to the contrary, by his expressly restraining the See 1 Vern. 164, and Hunt v. Baker, 2 Freem. 62. "In limitations of a "trust either of real or "personal estate, the con*struction ought to be "made according to the "construction of limita❝tions of a legal estate." Per lord Hardwicke, in Garth v. Baldwin, 2 Ves, 646.655, trusts are go similar to, the equitable estate of the first taker, to an es- SECT. III. tate for life, or by making it unimpeachable In what cases for waste, or by using the word issue, in- verned by, or stead of the word heirs of the body, or by laws relative to granting to the first taker a power of leas- legal estates. ing, or by introducing a limitation to trustees to preserve contingent remainders m, or by adding after a limitation "to the heirs. "male of the body" of the first taker, words, which denote an intention, that such heirs male should take in succession according to seniority of age". estates. (2.) Trust estates descend according to the Descent of trust rule of descents of legal estates; and, therefore, in the case of gavelkind and boroughenglish lands, trusts affecting them will descend according to the descendible quality of the tenure. There shall be a possessio fratris P of a trust; and where the ultimate limitation of a trust is to the right heirs of the person creating or conveying it, the heirs will take by descent, notwithstanding the grantor has no particular estate ¶ h Shaw v. Weigh, 1 Eq. Ab. 184. pl. 28. 8 Vin. 257. pl. 25, 26. S. C. Morgan, i Ibid. Jones v. Morgan, 1 Bro. Cha. Ca. 206. * Shaw v. Weigh, supra. Bale v. Coleman, 1 P. W. 142. m Jones v. Morgan, supra Poole v. Poole, 3 Bos. and Pull, 620, n Ibid. • 2 Ves. 304. in the case of Fawcet v. Lowther. Jones v. Rensbie, 22 Vin. 185. pl. 7. P 2 P. W. 713. 736. Godolphin v. Abington, 2 Atk. 57. Watk. Descent, 264. See ante 59. note a. as to uses before the statute. SECT. III. In what cases trusts are governed by, or similar to, the legal estates. (3.) Not only a trust in esse, but the possibility of a trust, may be assigned in equity"; and it has been determined, that a husband laws relative to may dispose of the trust of a term, to which. he is entitled in right of his wife; and it should seem, that in case the husband shall survive his wife before such disposition made by him, he will be entitled to the trust upon the survivorship, without taking out letters of administration to the wife t. Trust estates may be con. veyed. (205.) Trust estates may be devised. Execution may issue upon the trust estate. (4.) A trust may also be devised", with the solemnities required by the statute of fraud. upon the devise of legal estates; and as copyhold estates are not within that statute, trusts declared upon them will pass by an un attested will w. (5.) By virtue of the statute of frauds, trust estates are made liable to executions upon judgments, statutes, and recognizances*. Warmstrey v. Tanfield, 1 Cha. Rep. 29. 1 Cha. Ca. 8. See cases collected in note 21 Vin. 516. pl. 1. Tudor v. Samyne, 2 Pale v. Michell, 2 Eq. " See Fearne, 539. 1 Wagstaff v. Wagstaff, 2 |