Estates, Tenures and Equitable Interests

Question 1

Re Swan v Swan

Answer 1

1913 england. Trust used to create flexibile estate-like succession for personalty (splits legal title from use).

By viewing daughter as a trustee she had an obligation to maintain the personalty for the second beneficiary. Since she did not, she violated a proprietary interest so her estate had to provide compensation.

Courts have been reluctant to allow incorporeal interests from land law into personalty. Normally you own the property itself , it is allodial, but there is a need for estate-type things in personalty.

Judge considered 5 ways of making estate like bequest efffective.

Question 2

From Swan, What are the 5 ways the judge considered making the estate-like bequest effective?

Answer 2

1. Ownership in executors (trustees) where the executor keeps the legal title and the participants would only have the use of it, held in trust by the executors
2. Ownership in the ultimate taker, usufractory interest in the first taker. Remainderman is the legal owner.
3. Ownership in first taker, then subsequents have executory (yet to be performed) “gift over”. An interest created upon expiration of the first taker.
4. (This was the one used by the court) First taker is trustee for the remainderman, subject to their own life interest. Allodial ownership to the daughter as the trustee, she is the first beneficiary, Son is the second and when she dies her estate takes over as trustee for ultimate beneficary. Splits allidial legal title from equitable interests ( ieUse/benefit).
5. first taker is bailee (has lawful possession but not ownership) so still have to determine the owner in this option. Second preferred option of the court. Problem using this is that the remedy against a bailee is a tort so dies with wrongdoer.

Question 3

Re Fraser

Answer 3

Successive legal interests in personalty achieved with wills: title in ultimate holder, and other life interest. 
Since no estates in personalty, needed a conceptual theory to articulate how to give something to one person and then the next with allodial ownership. 
Ultimate holder (the charity) has the vested interest in the personalty but its enjoyment is postponed while the first holder has the life interest (use, usurfractury, possessory). The first holder can enjoy the revenue but no more. Cant encroach upon the corpus but rather must preserve the personalty in its entirety for the ultimate recipient. She Has a FIDUCIARY DUTY TO PRESERVE FOR THE ULTIMATE RECIPIENT. 

Court rejected that the wife obtained absolute ownership in the personalty subject to an executory(yet to be performed) bequest (must pass it on) upon her death to the charity.

Question 4

Define bequest and executory

Answer 4

executory = yet to be performed

bequest = must pass it on