Cushing v. Blake , 30 N.J. Eq. 689 ( 1879 )

Depue, J.

The doctrine of courts of equity is that equitable estates are considered, to all intents and purposes, as legal estates. In construing the limitations of a trust, courts of equity adopt the rules of law applicable to legal estates. The cestui que trust takes the same interest in duration as in a legal estate. Trust estates are subject to the same incidents, properties and consequences as, under like circumstances, belong to similar estates at law. They are alienable, devisable and descendible in the same manner. Though an equitable estate is incapable of livery of seizin, yet conveyances which operate by the statute of uses will transfer the equitable fee. Though the peculiar process of fines and recoveries is inappropriate to them, entails of equitable estates may nevertheless be destroyed by this process. The canons regulating the descent of legal estates govern the transmission of equitable estates. 2 Spence Eq. Jur. 876; 2 Story Eq. Jur. § 974; Co. Lit. 290b, Butler’s note XVI; Croxall v. Shererd, 5 Wall. 268; Mullany v. Mullany, 3 Gr. Ch. 16; Price v. Sisson, 2 Beas. 168. In the note above referred to, Mr. Butler says : “ The cases where the analogy ” [between equitable and legal estates] “ fails, are not numerous, and there is scarcely a rule of law or equity of more ancient origin, or which admits of fewer exceptions, than the rule that equity followeth the law.”

A notable exception to the identity of equitable and legal estates formerly existed, in that a widow was not dowable in a trust estate. The grounds on which this exception rested are explained by Lord Redesdale, in D’Arcy v. Blake, 2 Sch. & Lef. 387. This anomaly was removed in this state by the statute of 1799 (Pat. 343), and in England by act of parliament, 3 & 4 Wm. IV, c. 105 (Smith v. Spencer, 2 Jur. (N. S.) 778, S. C. on appeal, 3 Id. 193); and, both in England and in this state, a widow is now entitled to dower in an equitable estate of her husband, the same as in his legal estates.

With regard to curtesy, an equitable estate of inheritance in the wife always conferred on the husband an estate as tenant by the curtesy, if the requisites of such a title in a legal estate existed. Actual" possession of the estate, or the receipt of the rents, issues and profits by the wife, or possession by her trustee for her benefit, is considered as such seizin of the equitable estate as is equivalent to legal seizin. Lewin on Trusts 622; Watts v. Ball, 1 P. Wms. 108; Parker v. Carter, 4 Hare 400. That the limitation of the equitable estate is to the sole and separate use of the wife during her life, will not defeat the husband’s right as tenant by the curtesy. In Roberts v. Dixwell, 1 Atk. 607, it was said by Lord Ilardwicke that, on a devise to a wife for her separate use, the husband is not barred of his tenancy by the curtesy. In a later case the same chancellor held that the husband was not entitled to curtesy in lands devised to the wife for her sole and separate use during her life, to be at her disposal, and not subject to the debts, power or control of her husband, with a power in her to dispose of the whole inheritance by deed or will, for the reason that the husband, being excluded from the possession and profits, had no seizin of the inheritance during coverture. Hearle v. Greenbank, 3 Atk. 695, Hearle v. Greenbank, though followed by V. C. Stuart, in Moore v. Webster, L. R. (3 Eq.) 267, has been overruled both in England and in this state. Morgan v. Morgan, 5 Madd. 408; Follett v. Tyrer, 14 Sim. 125; Appleby v. Rowley, L. R. (8 Eq.) 137; Mullany v. Mullany, 3 Gr. Ch. 16. Upon principle, as well as by the weight of authority, it may be regarded as settled that the husband’s estate by the curtesy will arise in him at the death of his wife, though the limitation to her during her life is for her sole and separate use, exclusive of any interest or control on the part of the husband. The limitation for her separate use terminates at her death. Seizin by the husband during coverture is not necessary to his curtesy. Possession in conformity with the equitable interests of the cestui que trust, whether by the cestui que trust, or by the trustee, is all that is essential to support the title of the husband as tenant by the curtesy. Parker v. Carter, 4 Hare 400. The husband will be entitled as tenant by the curtesy to the interest, during his life, of money directed to be invested in the purchase of land to be settled on a married woman, in fee or in tail, though no rent or interest was paid during the coverture. Sweetapple. v. Bindon, 2 Vern. 536; Otway v. Hudson, Id. 583; Dodson v. Hay, 3 Bro. C. C. 404; Lewin on Trusts 622. Curtesy is a legal incident of the wife’s estate of inheritance, and is a right favored in the law. A husband will not be excluded from rights in the property of the wife springing from the marital relation, except by words that leave no doubt of the intention to do so. Massey v. Parker, 2 Myl. & K. 174, 181. The married woman’s act most effectually makes the estate of the wife her separate estate, and yet it has not abolished the husband’s curtesy after her death. Johnson v. Cummings, 1 C. E. Gr. 97; Porch v. Fries, 3 Id. 204.

In the present case the limitation over after the death of the wife,'in default of an appointment by her, is to her heirs at law, to hold to them, their heirs and assigns, forever. Under the rule in Shelley’s Case, such a limitation gives to the wife an estate in fee-simple in which the husband, having issue by her, would be entitled to curtesy, if her estate was a legal estate. The rule in Shelley’s Case is applicable to equitable as well as legal estates. Croxall v. Shererd, 5 Wall. 268; and in no case whatever of a trust executed, have the words heirs, or heirs of the body, following a limitation to the ancestor for life, received a construction in equitable estates different from that which the same limitations would receive in legal estates. 1 Preston on Est. 386.

The counsel who argued this case on hehalf of the defendant has, therefore, placed his denial of the right of the husband to curtesy on the ground that the trust in this instance was an executory trust. In some cases, and for certain purposes, a court of equity, where the trust is what is known as an executory trust, will so deal with it as to give effect to the general intent of the creator of it, without adherence to the strict legal effect of the terms in which it is expressed.

In one sense every trust is executory. At common law every use was a trust. But by the statute of uses, certain uses were converted into legal estates, and, strictly speaking, every trust executed is a legal estate. In this sense the trust must be executory to bring the case at all within the jurisdiction of chancery. Bagshaw v. Spencer, 1 Ves. 142, 152. But this is not the sense in which the term executory trust is used as applicable to that class of cases in which equity will deal with the subject, without regard to the legal signification of the terms in which the trust is declared.

The earliest reported case in which the distinction is taken between executed and executory trusts, as administered in the court of chancery, is Leonard v. Countess of Sussex, 2 Vern. 526. This difference was first fully explained by Lord Chancellor Cowper, in Earl of Stamford v. Hobart, 1 Bro. P. C. 288; and, notwithstanding the doubt expressed by Lord llardwicke in Bagshaw v. Spencer, this distinction is completely settled in the English courts. The leading cases on the subject are Wright v. Pearson, 1 Eden 119; Austin v. Taylor, Id. 361; Jervoise v. Duke of Northumberland, 1 Jac. & W. 559; Boswell v. Dillon, Drury 291, and in Rochfort v. Fitzmaurice, 2 Dru. & War. 1, in which Lord Chancellor Sugden discusses the earlier cases on the subject. From an examination of these cases, and many others which might be cited, the distinction will be found to rest on the manner in which the trust is declared.

Where the limitations and trusts are fully and perfectly declared, the trust is regarded as an executed trust. In such & case, equity will not interfere and give effect to it on a construction different from what it would receive in a court of law. It is only where the limitations are imperfectly declared, and the intent of the creator is expressed in general terms, leaving the manner in which his intent is to be carried into effect substantially in the discretion of trustees, that a court of equity regards the trust as an executory trust, and will assume jurisdiction to direct the trust to be executed upon a construction different from that which the instrument creating it would receive in a court-of law. These principles are so clearly and fully stated by Lord Chancellor Sugden, in Boswell v. Dillon, that the following quotation from his •opinion may profitably be made : “ By the term an executory trust, when used in its proper sense, we mean a trust in which some further act is directed to be done. Executory trusts in this way may be divided into two classes: one, in which, though something is required to be done (for ■example, a settlement to be executed), yet the testator has acted as his own conveyancer, as it is called, and defined the settlement to be made, and the court has nothing to do but to follow out and execute the intentions of the party, as appearing in the instrument. Such trusts, though executory, do not differ from ordinary limitations, and must be construed according to the principles applicable to legal estates depending upon the same words. The other species •of executory trusts is, where the testator, directing a further act, has imperfectly stated what is to be done. In such •cases, the court is invested with a larger discretion, and gives to the words a more liberal interpretation than they would have borne if they had stood by themselves.”

This distinction between executed and executory trusts has been adopted by the courts of this state. Mullany v. Mullany, 3 Gr. Ch. 16; Price v. Sisson, 2 Beas. 168; S. G. on appeal, sub nom. Weehawken Ferry Co. v. Sisson, 2 C. E. Gr. 476. In the case last cited, Chief Justice Beasley, •delivering the opinion of this court, said: “A critical •examination of the decisions will show that, to be executory, so as to fall within the relaxation of the ordinary rules of' construction, the limitations of the equitable interest must be incomplete, and something must be left to the trustee to define and settle.”

It is obvious, from -what has already been said, that a-mere direction to the trustee to convey, in accordance with trusts which have been fully defined, will not convert a trust-into an executory trust in the sense which will sustain the views of the. defendant’s counsel. It is an essential part of every trust that the trustee shall convey the estate, when his duties require it, whether he has been expressly directed to do so or not. Bagshaw v. Spencer, 1 Ves. 152. “All trusts,” says Lord St. Leonards, “ are in a sense executory,, because a trust cannot be executed except by conveyance, and, therefore, there is always something to be done; but this is not the sense which a court of equity puts upon the term executory trusts.” Egerton v. Earl Brownlow, 4 H. of L. Cas. 1210.

In Price v. Sisson, supra, the deed creating the trust contained a direction to the trustee to convey, and yet the chancellor, and this court, regarded it as creating an executed trust, and subject to have its limitations construed by rules applicable to legal estates. The cases to the contrary are those in which the intent is expressed in general language, and the trusts, therefore, are imperfectly declared, so that it is apparent, on the face of the instrument, that it was contemplated that they should be executed by the trustees in a. more accurate manner, to give effect to the intent expressed (Lord Glenorchy v. Bosville, Cas. temp. Talb. 3; Leonard v. Countess of Sussex, 2 Vern. 526; Rochfort v. Fitzmaurice, 2 Dru. & War. 1); or where some of the limitations are illegal, and the court is called upon to carry into effect the trusts declared, so far as the rules of law will permit. Earl of Stamford v. Hobart, 1 Bro. P. C. 288; Humberston v. Humberston, 2 Vern. 737. A conveyance by the trustee may be necessary for the purpose of investing the cestuis que trust with the legal estate; but if the trusts are fully and accurately expressed, the rights of the beneficiaries are not affected by the direction to convey; the conveyance must conform to their rights as declared, and the equitable estate immediately vests accordingly. Stanley v. Stanley, 16 Ves, 491; Phipps v. Ackers, 9 Cl. & Fin. 583, 594, 599, 601, 604; Bowan v. Chase, 94 U. S. 818.

It was further contended, that this case is excepted out of these rules for the construction of trusts in a court of' equity, by the fact that the trust in (question was in the nature of a marriage settlement.

There is a difference, in one respect, between marriage articles and a devise by will. Under the artificial rule in Shelley’s Case, a gift to the ancestor for life, with a limitation over to heirs, or heirs of the body, creates in him an estate in fee or in tail, and the limitation over is capable of destruction by him, by conveyance or devise if the estate be a fee-simple, or by fine and common recovery if it be a fee-tail. When these technical terms are used in an agreement for a settlement, in view of marriage, the court will infer, from the nature of the agreement, that the parties contemplated provisions for the issue of the marriage, which should not be liable to immediate destruction by the act of the parties, and will direct the settlement to be made in such a manner as will prevent the destruction of the limitations over to issue. Blackburn v. Stables, 2 V. & B. 367; Jervoise v. Duke of Northumberland, 1 Jac. & W. 559; Rochfort v. Fitzmaurice, 2 Dru. & War. 18; Sackville v. Viscount Holmesdale, L. R. (4 H. of L.) 543. But this doctrine of the court is applicable only so long as the agreement for a settlement remains a matter of contract. If the parties have themselves completed the settlement by a deed, complete in itself, and perfect, so that it requires only to be obeyed and fulfilled by the trustees, according to the provisions of the settlement, the trust will be construed in the same manner as similar trusts created for other purposes. Neves v. Scott, 9 How. 196; Tillinghast v. Coggeshall, 7 R. I. 383; Carroll v. Renich, 7 Sm. & M. 798. A settlement intended as a final and complete act, and not mere heads or minutes from which to prepare a settlement at a future time, will be construed according to strict legal rules, though the subject of the settlement be equitable property. Atherly on Marriage Settlements 151; 2 Story Eq. Jur. § 983.

In this case the trusts upon which the trustee was required to hold the estate, were definitely and perfectly expressed in the declaration of trust accompanying the -conveyance, and he had no duties to perform but to hold and convey accordingly. The trusts are such as are regarded as executed trusts in a court of equity, and the estates created by the trust, and all the incidents connected therewith, are the same as would arise in law upon a legal conveyance expressed in the same language. Among these incidents is the right of the husband to his curtesy estate. Morgan v. Morgan, and Follet v. Tyrer, supra, are directly in point. These cases were decided upon conveyances to trustees by way of marriage settlements, in trust for the separate use of the wife during life, with power to appoint by deed or will, and, in default of appointment, in trust for her right heirs. In both cases the husband was adjudged his tenancy by the curtesy. In Cunningham v. Moody, 1 Ves. 174, the husband was allowed curtesy in money, agreed in marriage articles to be laid out in the purchase, of lands, to be settled on the wife in tail.

The chancellor’s decree should be affirmed.

Decree unanimously affirmed.