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deeds, and require writing only to satisfy the Statute of Frauds. The legal estate and the so-called equitable estate cannot be held by the same person,—no man can hold property in trust for himself. When the cestui que trust gives up his interest to the trustee, there is no merger of estates. The trustee acquires nothing that he did not have before, but the cestui’s right of action is extinguished, for no man can have a right of action against himself. The trustee’s estate is not enlarged; it is only his liability that has changed. He holds the legal estate as he held it before; but the “equitable estate” is extinct.

This becomes important in cases like In re Van Hagan.[1] Here the testator gave to his mother a general power of appointment over certain real estate, and provided that if this power should not be exercised the estate should go to C. The mother, by her will, gave the property in question to certain trustees in trust for one G, who died during the testator’s lifetime. The court held that the trustees should hold in trust for the heir-at-law of the mother. The testator had parted with his whole interest, leaving nothing which his heir could take; the power of appointment had been exercised, shutting out C; there was never any intent that the trustees should take for their own benefit; and the mother, having exercised her power, was in the position of an owner who had conveyed upon a trust which could not be fulfilled, and there was therefore a resulting trust in her favor.

Now, if the interest granted by the mother to G had been an estate, properly so called, the appointment as to that estate would have failed, and the estate would have passed to C. If she had appointed to G directly, G dying before the testator and no other appointment having been made, C would have taken the estate. So, if she had given the estate to another for years with remainder to G, G dying before the testator, it would seem that no appointment as to the remainder had been made, and this remainder would, by the testator’s will, have gone to C. But as the interest given to G was not an estate, but an interest only, the whole estate being vested in the trustees, there was no failure of appointment, and C was barred.

The distinction between an estate, properly so called, and an equitable interest is overlooked in Massachusetts when property is devised by a will that discloses a trust, but keeps the object of the trust a secret between the testator and the trustee. Such property goes, in Massachusetts, by way of resulting trust, to the heirs or next of kin of the testator, as property not disposed of by the will, the secret trust being set aside as too indefinite.[2] This theory seems unsound. The testator cannot, as has already been said, hold both the legal estate and the equitable estate, so called—his entire interest was the right in rem which he devised to the trustee, and, consequently, nothing remains that the heirs or next of kin can take as property not disposed of by the will. The testator, it is true, created a right in personam against the trustee of which the heirs or next of kin may, in certain contingencies, obtain the benefit; but this right was not property of the testator.


Liability of an Infant for Deceit in Inducing a Sale.—(From Prof. Gray’s Lectures.)—Cases of some difficulty in regard


  1. Weekly Notes (1880) 164 (Ames’ Cas. on Trusts, 239).
  2. Gray, J. in Oliffe v. Wells, 130 Mass. 221. But see Riordan v. Bannon, Irish Rep. 10 Eq. 469 (Ames’ Cas. on Trusts, 308); Crook v. Brooking, 2 Vern. 50, 106; Smith v. Attersoll, 1 Russ. 266; In re Fleetwood, 15 Ch. D. 594; Scott v. Brownrigg, L.R. 9 Irish, 246 (Semble); Saylor v. Plaine, 31 Md. 158, 167 (Semble), contra.