Conveyance, by ecuted. An infant trustee conveys in person (see s. 13), unless out of whom to be ex- the jurisdiction, &c. (s. 8), when a substitute will be appointed to convey; but orders inadvertently appointing a person to convey for the infant, as in the case of a trustee within the eighth section, have occurred. A trustee of unsound mind conveys, if found lunatic by inquisition, by his committee (s. 3), otherwise by a person appointed to convey (m). It has happened that the ephemeral office (n) of conveying under this act has been matter of serious contest, and that the Master has had to decide between several competitors (o). Unsatisfactory state of this branch of the law. This act, though a manifest improvement on the former acts, has not been fortunate. The framer has put one construction upon it (p), the legislature another (q); the practice, when ap parently settled by decision (r), has been entirely overturned (8); and, either from want of attention on the part of the practitioner, or from some defect of expression or arrangement in the act itself, there has been a constant struggle to accomplish, by its summary means, objects which it was never intended to facilitate. The distinctions, not always well defined, are too numerous and too nice, and are now rendered more perplexing by a partial departure from the cautious views of the framer. When it is considered that "the great mass of landed property is equitable," and that fiduciary estates are so many, and so various in kind, degree, and circumstance, hardly any object, connected with the amendment of the law, will appear to be more important than the means of calling in the legal estate at once expeditiously, cheaply, and safely. But the present machinery is to the last degree intricate and operose; private property, and the public time, are wasted in idle inquiries, (analogous to those under the old entailed money act (t)), for the purpose of ascertaining whether trustees are out of the jurisdiction, or have died (m) See In re Piggott, 2 Russ. & M. 683. parte Whitton, 1 Keen, 278. (q) Fellowes v. Till, 5 Sim. 319; (n) See Reg. v. Pitt, 2 Per. & D. Prytharch v. Havard, 6 Sim. 9. 585; 3 Jur. 1028. (r) Miller v. Knight, 1 Keen, (0) In re Goddard, 1 Myl. & K. 25. See Prendergast v. Eyre, 1 Lloyd & Goold, temp. Sugd. 11. (p) 4 & 5 Will. 4, c. 23, s. 2; Ex 129. (8) See In re Fitzgerald, 1 Lloyd & Goold, temp. Sugd. 20. (t) Ante, 204. without known heirs, and to whom the beneficial interest belongs, even in cases where it is proposed only to shift the legal estate to new trustees, without any disturbance of the equities. There are six acts of Parliament (u), bearing directly or indirectly upon trust estates, all in concurrent and not very harmonious operation; and to increase the confusion, the decisions and the practice of the Courts and Masters fluctuate and conflict. The law should be enlarged, simplified, and consolidated. Why Suggestion of a should not the Court be enabled at once, by its order, to vest remedy. comprehensive the legal estate where it ought to be vested, or the beneficial owner be enabled, by his own act, to clothe himself with that quantum of legal estate of which he might clearly enforce a conveyance? We appear to be fast drawing to a crisis, when it will be found necessary to consider the inconveniences arising from outstanding legal estates, with a view to some less costly and more comprehensive remedy. The expense and inconvenience of applications to the Court in the case of mortgagees, might be avoided in a great measure by improvements in the form of mortgage securities (x). (u) 1 Will. 4, c. 36; 1 Will. 4, c. 47; 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23; 1 & 2 Vict. c. 69; 2 & 3 Vict. c. 60. (a) See Vol. II. Prec. Nos. 24, 26, 27, 28, 29, and notes. 480 QUESTIONS AS TO THE DIVISION OF PROPERTY 2. Questions concerning the existing Division of the Ownership into Legal and Equitable. These Questions were suggested to the author by the project for a General Register, though the connexion may not be immediately apparent (a), and were drawn up in consequence of certain alterations in the law contemplated by the Real Property Commissioners, and of certain questions (b) prepared by them. 1. IF the limitation of a use had not been excluded from the operation of the Statute of Uses, what would have been the state of the law of real property under that statute, with reference as well to passive uses, imposing no duty upon the grantee, as to active uses, imposing a duty upon him? 2. Was not the construction put upon the statute absurd (c), inasmuch as if, before the statute, land had been conveyed to A. to the use of B., to the use of C., a purchaser, the use would have belonged to C., and not to B., in whom, nevertheless, a statute designed to transfer uses into possession is made to deposit the estate? 3. Has not this construction led to the frequent separation of the equitable or beneficial right from the legal estate, and has not such separation rendered titles complex and precarious, and judicial proceedings vexatious and circuitous? 4. Is not the legal estate often fixed in a stranger, contrary to the manifest intention; as where an appointment is made unto A., to the use of B.; or it is declared that a fine or recovery shall enure unto A., to the use of B.; and is not such an accidental disunion of the legal estate, and the beneficial right, often productive of much expense and inconvenience? 5. Have not courts of law struggled to mitigate the inconvenience of passive trusts, by presuming re-conveyances and surrenders of legal estates; and has not the doctrine of presumption, regardless alike of moral probability, and of the practice of conveyancers, aggravated the evil, by introducing great uncertainty into titles? 6. Do not parties incur great expense and delay in obtaining conveyances of dry legal estates from infants, lunatics, &c.; and ought not a direct and simple adjudication to be substituted for the operose and seemingly absurd expedient of directing an infant or a mere stranger to convey (b), like a mere machine, the one incapable of volition, and the other destitute of both discretion and estate? 7. What are the principal motives inducing the intentional creation of passive trusts? 8. Is not the existence of such trusts attributable mainly to two causes-first, the difference between the condition of the legal estate and equitable right (the latter enjoying an exemption from the rules of tenure, &c.); and, secondly, the continued residence of the estate in trustees and mortgagees after the purposes for which it was conveyed have been ful filled? 9. Do not active trusts commonly exceed their just limits, as well by absorbing a larger portion of the legal estate than their purposes require, as by intercepting, while in a quiescent state, the legal dominion of the persons, who, subject to such trusts, are entitled to the ownership of the land? 10. If the legal ownership could be modified and aliened with as much facility as the equitable right, and were relieved from certain consequences of tenure, (as liability to forfeiture), would any inconvenience arise from all interests in land being purely legal; and is it not fit that the artificial distinction between common law estates, uses, and trusts, should be taken away, and all the purposes of settlement and alienation be attainable at law by direct means? 11. Would the effect of such a change be, to enable parties, with facility, to make dispositions, and assert rights, which at present can be made or asserted only by artificial and indirect methods? 12. When those interests which are now dependent on the accident of notice (i. e. equitable interests) shall be rendered permanent by means of a register, would they not become, in 482 QUESTIONS AS TO THE DIVISIONS OF PROPERTY effect, ownerships of the land itself, and, as such, proper objects of legal jurisdiction? 13. Upon what footing ought active trusts to be placed, so as to confine their interference with the legal ownership of the land strictly to the purposes of their creation? 14. Do not legal rights of entry, and legal authorities, as distinguished from legal estates, afford the means of investing active trustees with a dominion exactly commensurate with the purposes of the trust? 15. Considering that the grant of a growing crop would confer on the grantee a right of entry for the purpose of reaping and carrying it away, why should a conveyance of the land to him upon trust to effect that single purpose have any other or greater effect, seeing that the transactions are substantially the same; and why should not a court of law be authorized to hold equally in the latter case, as in the former, that the dominion is restricted to the act to be performed? 16. Is not the common law judge in the habit of looking at the nature and scope of the trust, in order to determine what estate ought to be taken by the trustee where the disposition is indefinite? 17. If A., owner of an equitable fee, assume to convey to B. and his heirs, upon trust that B. or his heirs shall sell the land, will not B. have merely an office, and if he die before a sale, will not such office descend or devolve upon his heir—either the hæres natus or the hæres factus ? 18. If A., owner of an equitable fee, assume to convey to B. and his heirs, upon trust that B. or his executors or administrators, shall sell the land, will not B. have merely an office; and, if he die before a sale, will not such office be transmitted to his executor or administrator, nothing descending to his heir? 19. If A., owner of an equitable fee, assume to convey to B. and his heirs, by way of mortgage, has not B. merely a pledge, enabling him to sequestrate the estate to the extent of satisfying the debt; and, on his death before payment of the money, is not his whole interest transmitted to his executor or administrator, nothing descending upon the heir? 20. In each of the preceding examples of a conveyance by A., |