The English Statute of Uses not extending to the Isle of Man, and there not being any similar Insular enactments, the law of the Island respecting uses or trusts is, therefore, analogous to the law of England, as it existed prior to that statute. Indeed, as we have no written Insular law of any kind on the subject, the English text books and decisions have always been referred to as the only guide and authority upon the law of trust in the Insular Courts. The estate, called in England the Use, as distinguished from the Trust, or pure equitable interest, being here unknown, there are, consequently, only two modifications of the ownership of property in the Island, viz., the legal estate and the equitable estate, so that whenever a trustee is interposed in a deed or will the beneficial interests are trusts in equity. In the Isle of Man, as in England, trusts or equitable interests pursue the course of succession appointed by law for the ownership of legal estates of a corresponding description. They are expounded, too, by analogy to the rules of legal construction. Respecting trust estates, Mr Hayes, in his introduction to conveyancing, concisely remarks that strictly speaking an equitable interest is not an estate in the land, it is a mere charge on the conscience of the trustee, enforcibJe in equity against his person. The equity, therefore, being a creature of conscience, cannot be affected by the rules of tenure. In [131] accordance with this rule Mr Hayes explains at considerable length that even before the English Statute of Wills, which made freehold land devisable by wil1, and afterwards as to copyholds not devisable, an equltable interest was always devisable by wil1, the rule of tenure affecting the devisability of the legal estate not affecting the equitable estate, and no particular form of instrument being required in equity to transfer or appoint it. Although no case on the point has ever yet been determined in the Island, the writer presumes that on principle the whole of the law as laid down by Mr Hayes on the above subject, is applicable to equitable estates in the Isle of Man. Consequently, the writer ventures to think that the Manx rule of tenure by which the legal estate in a quarterland acquired by inheritance, devise, or settlement cannot be devised by will does not apply to a corresponding equitable interest, and therefore, that equitable estates in land in the Island, however acquired, are devisable by wil1. Mr Adamson (Her Majesty's Seneschal in the Island), in his letter on the Manx law of real property, published in 1842, says: "A mere equitable interest in copyholds and customary freeholds could, however, always be given by will whether the legal estate might be so given or not (Hussey v. Gulley, Amb. 299; Doe v. Danvers 7 East, 299; Davies v. Beversham, 3 Cha. Rep.) It should appear, therefore, that the customary freeholds of the Isle of Man might be rendered devisable by will by merely turning them into equitable interests, and by a modification of the present form of conveyancing. This, however, is never attempted." The writer is not aware [132] that the point has ever yet arisen in the Island, and has not met with any authority of any kind to induce him to think that the principles before stated do not apply, and he conceives that to sanction the application of a rule of tenure to any interest not the subject of tenure would require very strong authority indeed. The departure from the rule that equitable estates as to their ownership devolve according to the laws respectihg legal estates sanctioned by legal decsions in England in the case of a widow's dower out of an equity, but which was always regretted as an anomaly, and has since been rectified by statute, has not been followed in the Isle of Man where it has been decided that dower out of an equitable estate is allowed as out of a corresponding legal estate. [note 1]
In case of the death of a trustee and the refusal of his heir-at-law to act, or in the case of his heir-at-law residing abroad, the insular Court of Chancery will generally on the application of a cestui que trust, or other person interested, appoint a new trustee in his place. [133] By virtue of such appointment by decree of the Court, the legal estate is held to vest in the new trustee ipso facto without any conveyance from the heir-at-law or any other person. Although this practice is certainly convenient, its legality originally may be doubted. It has, however, been sanctioned by long practice of the Insular Courts.
Under a bill filed by an administrator to have lands devised to trustees sold for payment of debts, the personal estate being insufficient, the Court ordered the lands to be sold by the administrator himself. Upon an objection being made by a purchaser, it was decided by the Court of Chancery that the conveyance executed by the administrator to carry out the sale under the decree of the Court conveyed the legal estate to the purchaser, and that the purchaser was not entitled to call for the execution of the conveyance by the defendants, the devisees in whom the legal estate was vested by the will of deceased (Harris, Admr. of Holmes v. Petrie, April 1858). [note 2]
In the case of a conveyance in trust, whereby a power to revoke the deed and all trusts created thereby was reserved to the grantor, it was held by the House of Keys, on appeal, that the grantor had power to revoke not only the trusts, but the legal estate also, and that by the exercise of the power revoking the deed, the legal estate revested in the grantor without any reconveyance from the trustees. [134] (Orrisdale Case, Woods v. Academic Fund, Lib Plitor 1848). [note 3]
The rules of the English Law respecting powers may be said to be generaI1y applicable in analogous cases here, excepting, of course, such as relate to powers operating under the statute of uses which does not exist here. Many powers, therefore, which in England would be executed under the [135] statute of uses, operate in the Island upon the equitable estate only, and in such cases a conveyance from the trustee is requisite to clothe the appointee with the legal estate. Held by Deemster Stephen in Cowell v. Thompson Lib Plitor 1859, that a devise to the testator's wife to enjoy for life, and at her decease "to give, grant, or bequeath to any person she thinks proper," did not pass the fee simple to her, but that she had an estate for life with a Common Law power to appoint the fee, in default of the exercise of which the lands would have reverted to the heir-at-law of the husband. Held a1so in the same case that a devise of the specific property, without any reference being made to the power, was a sufficient execution of the power. [note 4]
A husband having no power to bar his wife's dower by deed or will as before explained, in case it is desired that lands intended to be conveyed or devised to him should be free from any right of dower, or at his disposal without the necessity of obtaining his wife's concurrence, they should be conveyed or devised to a trustee for his benefit upon trusts, nearly similar to the trusts to prevent dower which were usual in England before the late Dower Act. It must, however, be recollected that the objects effected in England by the operation of the Statute of Uses cannot be effected in the same way in the Island, where, whenever lands are conveyed for this purpose, the legal estate should be in a trustee, the husband and his appointees having the [136] equitable estate. only. By simply purchasing, therefore, in the name of a trustee in trust for such person and purposes as the husband shall by deed or will appoint, and in the meantime and in default of such appointment in trust for. the husband, his heirs and assigns, or upon trusts conferring a power of appointment on the husband, lands in the Isle of Man may be enjoyed free from the dower of a wife, the only objection, (if indeed it is an objection), being that the husband has an equitable instead of a legal estate. This simple mode of effecting this object is, however, very seldom adopted by Manx conveyancers, the method resorted to generally being the objectionable one of procuring a sale of the lands by the coroner under execution against the husband.
Note 1: The remarks in the text as to a trust being a mere charge on the conscience of the trustee enforceable in equity might well be applicable to secret trusts. but since the introduction of trust deeds, that is, deeds by which the legal estate is conveyed to a trustee, subject to trusts declared in the deed, it can hardly be considered that the trusts are not estates in the lands. Though such estates are called equitable, the expression is commonly used merely to show that the legal estate is outstanding in a trustee, and though to enforce the execution of trusts the remedy of a cestui que trust is in a Court of Equity, the construction of the trusts is practically as much a matter of law, as a determination of legal rights in a Court of Law where no trusts are involved. Until the question was raised in the Orrisdale case (referred to later on) there is not any known case in which it had ever been sought in the Isle of Man to distinguish between the rules which govern the descent of or succession to equitable and legal interests in lands, and, therefore, the principles laid down by Mr Hayes are not considered applicahle to the Island, and the opinion of Mr Adamson (an English lawyer who devoted much time to the study of Manx law), is more an opinion of what he considered the law of the Island should be, rather than what it was.
Note 2: The Insular Courts have, it is believed, always held that in all such cases as that referred to in the text, that a sale under a Decree of the Court suffices to vest in a purchaser all the estates legal and equitable of the parties to the suit in the lands ordered to be sold. In the case referred to in the text, the trustees were parties.
Note 3: In the Orrisdale case — George Augustus Woods v. Lieut-Governor the hon. Charles Hope and others, Trustees of the Academic Fund — it has not been usually considered that the House of Keys decided that the grantor of a Trust Deed having power to revoke, could so exercise the power as to re-vest the Trust property in the grantor without a re-conveyance from the Trustees. No such decision can be found in either the journals of the House or in the Rolls Office. The case has been frequently referred to as a leading one on the law of election — the main contention in the case. The facts are these:— Margery Kerwan, widow of Thomas Kerwan, on the death of her husband in November, 1808, became entitled to the estate of Orrisdale (land of quarterland tenure). By deed of November, 1808, she settled the estate on her daughter, by a former husband, Margaret Christian Stevenson, who afterwards became the wife of Capt. John Quilliam, R.N., and survived him in 1829. The estate had, in 1817, been conveyed to Trustees on trusts set forth in the Deed, but subject to a power of revocation. In August, 1830, Mrs Quilliam, by a Memorandum written at the foot of the Trust Deed, revoked it. The original Trust Deed had always been kept in the possession of the Grantor, amongst whose papers it was found after her death. She afterwards made a will by which she devised the estate to her sister, Charlotte Woods, for life, with remainder to her niece, Charlotte Woods, and in case she died without issue with remainder to the Trustee Defendants. Mrs Quilliam died in 1844, her sister, Charlotte Woods, having predeceased her. The niece, Charlotte, then Mrs Gunter, took possession of the estate, and died without issue in 1847, whereupon the Defendants entered into possession of it. The plaintiff had become entitled to considerable property under the will of Mrs Quilliam, who was his aunt, and he was her heir-at-law. He sought to recover the estate inasmuch as Mrs Quilliam had not power to devise it, it being land of quarterland tenure, acquired by voluntary settlement from her mother. The defence was (1) that the plaintiff was put to his election, to take the property given to him by the will, and otherwise give effect to the will by relinquishing his legal right to any undevisable property professedly devised by the will, and that he had elected: and (2) that by the Insular law the restraint on devising applied to legal interests, not to equitable, and that the revocation of the Trust Deed took effect on the trusts only, the legal estate heing still outstanding in the Trustees. To the latter defence the Plaintiff replied that the Trust Deed was absolutely revoked, and especially as it did not appear that it had been actually or constructively delivered. The verdict of the Jury in the Court af Common Law was for the defendants, and it was affirmed by the House of Keys. The chief point in the case was that as to election.
Assuming that the Trust Deed had not as to the legal estate been revoked, the action was one at law between two parties, each of which claimed the equitable and beneficial interest, with the right of possession, and either of the parties in whose favour the final decision might be, had a right to call on the Trustees to convey to such party, the legal estate outstanding in the Trustees.
Note 4: It was considered, however, that there was sufficient in the will to indicate that the appointment was made in execution of the power.