CHAP. XII.

Child fully advanced.

Purchase in pursuance of covenant.

Transfer of trusts.

When stock invested in the joint names of a husband and wife is sold out, the proceeds, though retained by the wife, are nevertheless the property of the husband. Thus, where a sum of money was invested in the funds in the joint names of a husband and wife, and she, by power of attorney from him, sold out a portion, and with his knowledge kept it locked up in her own special custody until his death, it was held that the portion which remained in the funds in the joint names of the husband and wife survived to the wife, but that the other portion which was sold out by her and kept in her custody, formed, on the husband's death, a part of his general personal estate. (a)

If a purchase is made in the name of a child who is already fully advanced, by the parent, there will be a resulting trust for the father; (b) but if the child be not at all or only in part advanced, the presumption of advancement will not be turned into a trust. (c)

Where lands are purchased in a certain place in the name of a child by a father, but it appears that the father is bound to settle lands so purchased in a particular manner, there will not be any advancement, but the child will be a trustee merely.(d)

By the ninth section of the Statute of Frauds, “all grants and assignments of any trust or confidence shall likewise be in writing signed by the party granting or assigning the same, or by such last will or devise, or else shall likewise be utterly void and of none effect."

(a) Re Gadbury, 11 W. R. 895. (b) Loyd v. Read, 1 P. Wms. 608; Pole v. Pole, 1 Ves. S. 76. (c) Grey v. Grey, 2 Swanst.

600; Elliot v. Elliot, 2 Ch. Cas. 231.

(d) Blake v. Blake, 7 Bro. P. C. 241.

This section refers to assignments by the cestui que trust.(a)

Before the statute the transfer of an equitable interest might have been made by parol. A writing is all that is now necessary, but it is the practice to employ the same species of instrument and the same form of words in the transfer of equitable as of legal estates. (b)

(a) Jerdein v. Bright, 2 J. & H. 325.

(b) Lewin on Trusts, 6th ed. 573.

CHAP. XII.

CHAPTER XIII.

CHAP. XIII.

Estates pur

autre vie devisable.

If no devise

assets in hands of heir.

If no special occupant shall

go to executors.

B

ESTATES PUR AUTRE VIE.

Y the common law, where an estate was held pur autre vie, as where lands were limited to A for the life of B, if the tenant pur autre vie died during the life of the cestui que vie,

an estate arose by general occupancy, inasmuch as the heir could not take the estate as there were no words of inheritance, and the executor or administrator could not take it because it was a freehold; the law accordingly gave the estate to the first person who entered, who was called a general occupant. (a) If words of limitation were added in the grant, the person or persons so entitled took an estate by special occupancy.(b)

It was generally held that estates pur autre vie were not devisable, (c) and this being found inconvenient, it was provided by the twelfth section of the Statute of Frauds," that from henceforth any estate pur autre vie shall be devisable by a will in writing signed by the party so devising the same, or by some other his presence and by his express directions, attested and subscribed in the presence of the deviser by three or

(a) Co. Litt. 41 b.

(b) See as to estates pur autre vie generally, 1 Wms. Exors.

person

in

681; Tudor L. C. 40; notes to Lewis Bowle's Case.

(c) 1 Wms. Exors. 682.

more witnesses; and if no such devise thereof be made, CHAP. XIII. the same shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands."

estates pur

autre vie has to pass if not devised.

Under this section doubt arose, where no devise had Surplus of been made of such estates, as to whom the surplus of such estates, after the debts of deceased owners were fully satisfied, should belong; and it was accordingly enacted by the 14 Geo. II. c. 20, s. 9, that "such estate pur autre vie, in case there be no special occupant thereof, of which no devise shall have been made according to the said act for prevention of frauds and perjuries, much thereof as shall not have been so devised, shall go, be applied and distributed, in the same manner as the personal estate of the testator or intestate."

Both the above enactments were repealed by the Wills Act, (a) which provides,(b) "That it shall be lawful for every person to devise, bequeath, or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of, would devolve upon the heir-at-law, or customary heir of him, or, if he became entitled by descent, of his ancestor, or upon his executor or administrator; and that the power hereby given shall extend to . . . estates pur autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be freehold, (a) 1 Vict. c. 26. (b) S. 3.

Estates pur

autre vie devis

able by will.

Descent of estates pur autre vie.

CHAP. XIII. customary freehold, tenant-right, customary or copyhold, or of any other tenure, and whether the same shall be a corporeal or an incorporeal hereditament;" and (a) “That if no disposition by will shall be made of any estate pur autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold lands in fee-simple; and in case there shall be no special occupant (b) of any estate pur autre vie, whether freehold or customary freehold, tenant-right, customary or copyhold, or of any other tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate."

By the thirty-fourth section of the same act, it was provided that the act shall not extend to any estate pur autre vie of any person who died before the 1st day of January, 1838.

Where a lessee of lands devised to him, his heirs and assigns, pur autre vie, demised them for the residue of the term to JS and his assigns; and J S died intestate, the question was, which was entitled, the heir or the executor of JS? And the Court of Exchequer

a) 1 Vict. c. 26, s. 6.
(b) These words include both
the case where there is no
special occupant named in the
grant, as also the case where

the heir is named as special occupant, but the grantee dies without leaving an heir; Plunket v. Reilly, 2 Ir. Ch. R. 385.