legal vs equitable etc
Posted by Kate on November 28, 1997 at 11:28:10:
In response to law geek talk, written by Laura W on November 26, 1997 at 13:29:24
] ] The rule against perpetuities has been around for a long time. But I'm not sure that it applied necessarily to entails, I thought it only applied to beneficial ownership (trusts) not legal estates - and an entail is a form of legal, not equitable estate, isn't it?
] Short answer: I don't know.
] After a perusal through Black's, I'm even more confused. What is a "legal" vs. "equitable" estate?
An equitable estate is held according to the rules of equity (ie a trust) whereas a legal estate is held according to "law". The difference in english property law was (and is) quite important - particularly prior to the 1870s when the courts of equity and courts of law were combined. Until then, you actually had to bring an equitable claim in the Lord Chancellors court (this is what much of the story in Dicken's Bleak House is about) and a legal claim in the law courts.
] I think an entail could logically be classified as a trust; the holder only has it for life; he may not alienate the property, or dispose of it as he chooses. In many ways he is a trustee.
But I have this feeling (totally unsupported by sources - I'll have to look up a legal history text) that an entail was NOT a trust, but a legal estate.
] I don't practice real estate law, and my property professor was hands-down the worst professor I've ever had in my entire life, and I have never yet found an explanation of entails which satisfies me. If you have a reference to suggest I would be grateful!
I'm going to go looking for one in the law library
] There is one particular point I am unclear on: can an entail be created, like a trust, in the grantor's lifetime, or must it be created by will?
I'm fairly certain it's created by will.
Again, this is just a hazy idea, so I will post again when I have some firm basis for this!
Posting followups to old messages is disabled; instead go to the main index and post a new message which mentions this one.