SECT. VIII. of uses which are not exe cuted by the sta tute. (196.) and 34 Hen 8., it seems to follow, that the former does not extend to devises to uses; for a statute cannot be considered to extend to any thing, which at the time of the mak ing of it did not exist. Sid. 26. in Hore v. Dix. Note, 1 Co. Litt. 271. b. under fol. 277. a. Uses limited upon a seisin created by devise are no doubt executed and become legal estates; and whether they be executed by the operation of the statute of uses, or by virtue of the principle of decision in courts of justice, which gives effect to the devisor's intention, is of no real prac. tical importance. The position, however, that an act cannot extend to any thing not existing at the time of its passing into a law, is too generally stated. The author thinks it necessary to subjoin the following extracts from Vernon's case, 4 Co. 4. a. "Note reader "in the said case reported "by the lord Brook, it is fur"ther said, that a devise of "land by the husband to "the wife by will, is no bar "of her dower, for it is a "benevolence and not a "jointure, per justiciar. as "it is there reported; and "that is good law, if it is "well understood. And as "to that, some have said, "that no estate devised by "will can be a jointure "within 27 H. 8. c. 10., for "two reasons:-1. That by "the said act of 27 H. 8. But as the testa Vise takes its effect after "the husband's death: but "that neither of these is 66 any reason in law, appears "by the resolution follow"ing, Mich. 38 and 39 Eliz. "between Leak and Ran"dall in the Court of "Wards, it was resolved by "the two chief justices, and "tot. cur. that if a man de"vises land to his wife for "term of her life generally, "it cannot be averred to be "for the jointure of the "wife, and in satisfaction. "of her dower, for two rea "sons:-1. Because a de"vise implies a considera"tion in itself; and there"fore as a devise cannot be "averred to be to the use "of another than of the de tor's intention is generally the guide in cases of devises, it has been repeatedly determined, that if A. devise to B. and his heirs, to the use of, or in trust for, C. and his heirs, or in trust to permit C. and his heirs to take the profits, it shows, that the testator intended, that C. should have the legal estate in fee; and the law, upon this interpretation of the testator's meaning, will give the devise such an operation. But it is clear, that if there be a devise to the use of A. for life, remainder "tate for life devised to a "visee, unless it is express- 66 quent in our books, that "an act made of late time "shall be taken within the equity of an act made long "time before." Sir Edward Coke then proceeds to state several instances, establishing this SECT. VIII. of uses which construction. See also 2 81 Vern. 79.415. 2 Salk. are not exc cuted by the sta tute. SECT. VIII. of uses which are not exe cuted by the sta tute. Trusts to pay over, &c. over, this cannot take effect by way of use, executed by the statute, because there is no seisin to serve the use: but still the cestuique use will have the legal estate. (4.) Very soon after the statute of uses an opinion was delivered, that though a feoffment in fee to the use of the feoffor for life, and after his decease that J. N. shall take the (197.) profits, be an use executed in J. N.; yet if it had been, that after his death the feoffees should receive the profits, and pay them over to J. N.; this would not be executed by the statute, because the legal estate must be in the feoffees in order to enable them to pay over the profits. This construction has ever since prevailed; and therefore it is now clear, that if there be a conveyance in trust to pay over the profits, or to conveyk, or to sell, &c. the legal estate must, in these cases, necessarily vest in the trustees. So it is of a trust to permit a feme covert to receive the profits for, or to pay the same to, her separate use m. 36 Hen. 8. al. Uses, 52. 282. Bro. Feoff. iSymson v. Turner, 1 Eq. Ab. 383. Silvester v. Wilson, 2 Term Rep. 444. 15 Ves. 371. and Shapland v. Smith, I Bro. Cha. Ca. 75. Roberts v. Dixwell, 1 Atk. 607. Bac. Uses, 8. Pybus v. Smith, 3 Bro. Cha. Ca. 340. Henry v. Purcell, Fearne, 75. Nevill v. Saunders, 1 Vern. 415. See Bush v. Allen, 5 Mod. 63. It is sometimes difficult to determine the extent of the legal estate vested in trustees under trusts of the above description. In the case of Doe on the demise of White v. Simpson", there was a devise to trustees and the survivor of them, and the executors and administrators of such survivor, of real estate, in trust, "out of the rents and profits "of the said estate and the arrears due," to pay certain annuities, and a gross sum of 8001.; and from and after payment of the said annuities, and the said sum of 800%., the testator devised the estate to his brother William for life. Lord Ellenborough said, that he and the other judges were of opinion, "that the "trustees took an estate by implication for "the lives of the annuitants, with a term of years in remainder for the purpose of rais"ing the sum of 800%.; and that after those "trusts were satisfied, the several limitations "for life and in tail, took effect as legal li"mitations." In the case of Jones v. Say and Sele (which lord Kenyon said was a case by itself), there was a devise of manors, and other hereditaments, to trustees and their heirs; in trust, out of "the rents, issues, and n 5 East, 162. 8 Vin. 262. pl. 19. 3 Bro. Par. Ca. 113. S. C. 1 Ves. 144. S. C. sited. 7 Term Rep. 654. SECT. VIII. of uses which are not exe cuted by the sta tute. SECT. VIII. "profits," to pay the several legacies, devises, Of uses which and bequests, thereinafter mentioned: then cuted by the sta- follow bequests of annuities and pecuniary le -are not exe tute. gacies; and after reimbursing the costs and expenses of the trustees, and paying the annuities and legacies, in trust to pay all the residue of the rents and profits to Cecil Fiennes, during her life, for her separate use; and after her death, the trustees were to stand seised of the premises, to the use of the heirs of her body, subject to the payment of the annuities and legacies. It was determined, that the legal estate vested in the trus tees, during the life only of Cecil Fiennes, and that the limitation to the use of the heirs of her body carried the legal estate. It is presumed, that in both the cases above stated, the ground of determination was, that the words, rents and profits, did not create a trust for sale of the devised estate"; for it seems to be clear, upon principle as well as authority, that where a trust authorizes the trustees to sell, the legal estate in fee-simple must necessarily vest in them, in order to enable them to perform their trust. See 3 Bro. Par. Ca. 113. • Perhaps the words, " and arrears due,” in the one case, and " subject to "the payment of the an"nuities and legacics," in 8 the other, were considered as explanatory of the tes tator's intention, to confine the words, rents and profits, to annual rents. |