and profits; and also for an assignment for the term itself. 3. The cestui que trust of a term has the same power of alienating and devising it, as if he had the legal estate. But it should be observed, that the Tit. 11. c. 2. stat. 1 Rich. III. does not extend to trust terms; § 24. 1 Sanders on therefore the assignment of the trust of a term, by the cestui que trust, will not pass the legal estate in the term. Uses, 41. Tit. 8. c. 1. § 28. 4. The right to a trust term in gross, vests in the executors or administrators of the cestui que trust; Prec. in Cha, and where a married woman is cestui que trust of a term, her husband has the same rights as if she had the legal estate. 418. 1 Inst. 351 a. n. 1. King v. Bal let, 2 Vern. 248. Creditors of Sir C. Cox. Tit. 15. c. 3. 5. It is said in Vernon's Reports, that the trust of a term is not assets at law, within the statute of frauds, for that statute only extends to a trust of lands held in fee simple. But it is equitable assets, in the hands of the executor. 6. Terms of this kind are in general governed by the same rules as legal ones; except that trust terms in gross are capable of being settled in a manner not Tit. 38. c. 19. allowed in the limitation of legal terms; of which an account will be given hereafter. Terms at tendant on auce. 7. With respect to terms attendant on the inherithe Inherit- tance, they owe their existence to the following circumstances:-When terms for years became fully established, and the interest of the termor was secured against the effect of fictitious recoveries, long terms for years were frequently created; and although the purposes for which such terms had been raised were fully satisfied, still the terms continued to exist, the legal interest remaining in the personal representatives of the persons to whom they were originally limited. But as the owners of the inheritance were entitled to the benefit of them, the terms became in fact united to the inheritance, and acquired the name of terms attendant on the inheritance; for otherwise the right to such terms would have gone to the executors or administrators of the persons entitled to the trust of them, as part of their personal estate; and the freehold and inheritance would descend to the heir at law. R. 763. 8. Thus Lord Hardwicke has said, "The atten- Willoughby dancy of terms for years upon the inheritance, is the by, 1 Term v. Willoughcreation of a court of equity; invented partly to protect real property, and partly to keep it in the right channel. In order to it, this Court framed the distinction between such attendant terms, and terms in gross; notwithstanding that in the consideration of the common law they are both the same, and equally keep out the owner of the fee, so long as they subsist. But as equity always considers who has the right in conscience to the land, and on that ground makes one man a trustee for another; and as the common law allows the possession of the tenant for years to be the possession of the owner of the freehold; this Court said, where the tenant for years is but a trustee for the owner of the inheritance, he shall not keep out his cestui que trust; nor, pari ratione, obstruct him in doing any acts of ownership, or in making any assurances of his estate. Therefore, in equity, such a term for years shall yield, ply, and be moulded, according to the uses, estates, or charges which the owner of the inheritance declares or carves out of the fee. Thus the dominion of real property was kept entire." 9. Mr. Fearne has also observed, that "without Collect Jur. such attendancy, property in the same lands, united Vol. 2. N° 6. How Terms become attendant. Francis Max. in Eq. 21,22. Treat. of Eq. B. 2. c. 4 §5. in the same owner, would take different channels the dominion of real estates, instead of being entire, become split and divided, between the personal and real representatives; and indeed leave the real representatives very little but the mere name of property. For an inheritance expectant on a term of any considerable duration, is of very little value. So necessary therefore is the attendancy of terms, under the circumstances above mentioned, to keep real estates in a right channel, that the very existence of real property, as distinguished from the personal, seems in a great measure to depend upon it. For as there are few estates in which there are not such terms, if they are not to be considered as attendant, the whole substance and value of the estate would in them devolve to the executor, as personal property; whilst the heir or real representative would be left destitute of every thing but the shadow of the inheritance." 10. A term may become attendant on the inheritance, either by an express declaration of trust, or by implication of law. Thus, where a satisfied term is assigned to a trustee, upon an express trust to attend the inheritance, the owner of such inheritance acquires a right to the term, by the declaration of the parties. But there are many cases where no such declaration is made; it then becomes a question in equity, whether it is a term in gross, or a term attendant. 11. In consequence of the maxim in equity that That should have the satisfaction, which has sustained the loss;" it has been often determined, that where a term is carved out of the inheritance for any particular purpose, when that purpose is satisfied, the term becomes attendant on the inheritance; for the inheritance sustains the loss, by keeping the term on foot, and therefore should have it in satisfaction, 12. A woman before marriage raised a term of Best v. Stampford, 1,000 years, upon trust that her intended husband should receive the profits during their joint lives; if 374. they should have any children, in trust for such children during the residue of the term. The husband died without children; the wife survived, married another husband, who survived, and took out administration to her. The question was, whether the term should go to the husband, or attend the inheritance. Lord Cowper said, this was only an unskilful declaration, not the intent of the party: the particular purpose being served, it must attend the inheritance. If the term and inheritance had been in the same hands, it would have merged; so here it should be attendant in equity. v. Huntingdon, 2 Bro. Parl. Ca. 1. 13. Lord and Lady Huntingdon settled lands Huntingdon which were the estate of Lady H. to the use of Lady H. for life, remainder to their eldest son in tail; with a power to Lord and Lady H. to revoke and limit new uses. Lord H. prevailed on Lady H. to exercise this power so far as to demise the premises for 1,000 years by way of mortgage, for raising 4,5007. for Lord H., who covenanted to pay off the money. Lord H. paid off the mortgage, took an assignment of the term to a trustee for himself; and devised it for the benefit of his younger children. Upon the death of Lord H. his eldest son, who took the inheritance, filed his bill against the personal representatives of his father, and the trustees of the term, praying that it might be assigned to attend the inheritance, free from incumbrances. Lord K. Wright decreed that the plaintiff must redeem the mortgage. Davidson v. Foley, ante, c. 1. § 55. Tiffin v. 1 Vern. 1. Whitchurch v. Whit But on an appeal to the House of Lords, the decree was reversed, and the term directed to be assigned to the appellant; because, when Lord H. paid off the mortgage, the purpose for which the term was created being satisfied, it became attendant on the inheritance. 14. Where a person purchases the freehold and inheritance of lands in his own ame, and obtains an assignment of an outstanding term to a trustee for himself; such term will be considered as attendant on the inheritance. 15. R. Tiffin purchased a freehold estate, took the conveyance in his own name, and an assignment of a mortgage term for years in the names of two truschurch, 2 P. tees. Lord Nottingham held that this term was attendant on the inheritance. Wms. 236. 9 Mod. 124. Goodright v. Shales, 2 Wils. R. $29. v.Lang ton, 2 Cha. Ca. 156. 16. J. Hoole took an assignment of a term for years, which was in mortgage to one Shepherd, who was a trustee for him; and afterwards purchased the inheritance of the same premises, in his own name. Lord C. J. Wilmot said, when Hoole purchased the fee, he became both the hand to receive, and the hand to pay off the mortgage money. It wrought an extinguishment of the debt due on the mortgage, and the term was gone; though not extinguished in point of law, because it was in Shepherd. Yet it became attendant on the inheritance, and must follow it in point of law, as much as if it had been made to do so by the act of the party. 17. Where a person takes a conveyance of the freehold in the name of a trustee, and an assignment of the term in his own name, the consequence is the same. 18. A woman took a mortgage for 1000 years in the name of her brother, afterwards purchased the |