2. Of the nature and properties of tho estate of the cestui que trust.
Equitable interests may be assigned, and the assignee may, like the original cestui que trust, compel a conveyance from the trustee by bill in equity, without making the assignor it party. (3 Russ. 533.) Feints covert entitled to equitable interests in Lands and equitable tenants in tail, might, before the Fines and Recoveries Act (3 & 4 Will. IV. c. 74), have passed their equitable estates by those as surances, and may now do so under that act by the same modes of assurance and with the same formalities as If the estates were The purchaser of an equitable interest should take care to inquire of the trustee whether he has had notice of any prior incumbranco upon the equity of the vendor, which will give the purchaser a remedy against the trustee in case of his misrepresentation (10 Yes. 470); and the purchaser should also, upon the execution of the conveyance, give notice to the trustee of his own equitable title, whereby be will secure precedence of all prior incumbrances who have not given such notice. (3 Russ. 30.) Equitable interests in property are transmissible by devise, and require the same solemnities as legal interests. (1 Viet. c. 26, s. 3.) Possession or receipt of the rents and profits of equitable estates is considered in equity equivalent to scisin at law, and adverse posses sion of the one is attended with the same on the title as disseisin of the other. (2 J. & W. 1, 153.) A trust of freeholds or copyholds is subject to the courtesy of tho husband, but was until Lately exempt from dower and freebench : now, however, by the 3 & 4 Will. IV. c.105, the title of dower attaches upon equitable in the same manner as upon legal estates, though subject in either case to be defeated by the alienation, devise, or other declaration of intention on the part of the husband.
The effect of marriage is the same upon equitable as upon legal interests, and therefore a husband may assign the trust of a term of years belonging to his wife, in the same manner that he may assign her chattels real at law. (9 Ves. 99.)
Judgment creditors have, by the Statute of Frauds, sec. 10, execu tion at law against the equitable freehold estate of a debtor in the hands of his trustee, when the debtor has the whole beneficial interest ; but if he have a partial interest only, or the estate be not freehold, the judgment creditor has no execution at law, but be may in a court of equity obtain the same satisfaction out of the beneficial interest as be would be entitled to at law out of a legal estate. (4 Mad. 504.) Tho estate of the cestui que trust is governed as to descent by the rules of the common Law.
Trusts of chattel interests were always considered as assets in equity, but it was a question whether a trust of a freehold was assets in the hands of the heir until the Statute of Frauds, by the 10th section of which a trust in fee-simple was declared to be assets by descent, in the same manner as a legal estate. The enactment however applies to simple trusts only, and not to special trusts or equities of redemption (2 Atk. 203); but now, by the 3 & 4 Wm. IV. c. 104, all a persons' estate or interest in lands, tenements, or hereditaments, corporeal or .incorporeal, or other real estate, whether " freehold, customaryhold, or copyliold" (which words apply equally to legal and equitable estates), arc made assets for the payment of debts as well by simple contract as on specialty. Trusts of chattel interests will be legal assets in the hands of the executor. (Mod. 858; 4 Veit 541.) Simple trusts of real estate are made legal assets by the above-mentioned section of the Statute of Frauds ; and it seems that complicated trusts and equities of redemption, which are not within the statute, will be considered legal assets as to specialty creditors by analogy to law. (2 'Ch. Rep.' 143.) It appears that under the 3 & 4 Win. IV. c. 104, real estates are, with respect to simple contract debts, to be taken as equitable assets, but that the act does not alter tho mode of administration of trusts of chattels nor of equitable freehold interests, in so far as they were assets before the act.