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of B. should be charged on the estate of A. would be void;. a trust by which A.'s estate should be vested in B. in trust for A. himself would also be void; but a trust vesting Ai's estate in B. in trust to manage it, and to lease it, and to pay the rents and produce to A., would be good. Neither is the proposed abolition to extend to trusts arising by implication of law.
Having thus divested land of its feudal incidents, and simplified its legal qualities, the author commences his first title with a definition of real property according to his own system. He considers it to be land, with all that (following the old definitions) is above it and all that is under it; together also with such servitudes of light, way, water, &c. as are essential for its enjoyment. Then follow the various modes, by which he would direct that title should be acquired.
The first of these is Descent, under which head he recommends a departure from our existing rules of succession, in order, in some instances, to meet the ends of natural justice, in others for the sake of consistency and simplification. Having rejected the feudal incident of escheat, he assigns the estate, on a general want of heirs, to the crown; and this, in conformity with the law of every nation, which considers the state to be entitled to all property, of which there is no other owner. He obviates one of our worst anomalies, by admitting the half blood to the succession; with a preference of the full blood, however, iu the case of brothers and sisters and their issue; and with a preference also among the half blood itself, of the paternal, to the maternal line of inheritance. On failure of these near relations, the ascending line is admitted by him in preference to the collateral; and, under this last head, he introduces a novelty, borrowed from the Code Napoleon, by interposing a life interest to the father, on failure of lineal heirs, and a life interest to the mother on failure of brothers and sisters and their issue. · Whether the land come from the father or mother, he makes it descend, first in the paternal line; and failing this, in the ma terval. In this proposal, his great object is simplification; and his calculation is that, although the maternal line will thus be occasionally postponed, as to land strictly descended from a maternal ancestor, yet the maternal descendants will, in the greater number of cases, be gainers.
He allows of no right of representation beyond the issue of brothers and sisters; he proposes that more remote collaterals should take per capita; so that a junior uncle, surviving, would inherit, in preference to the issue of his deceased elder brother. This he justifies on the ground, that, in descent, the leading principle of precedence is proximity of blood, which is deviated from,
the benefit of strangers; as rights of way, water, and light, and the like) are technically termed incorporeal, in respect of their having no apparent existence but in their enjoyment: in reality, however, instead of constituting property of themselves, he views them as so many burdens or, as the civilians term them, servitudes on the land. The privileges thus enumerated are affirmed to be in their nature universal, wherever land is enjoyed in separate property; and to these he adds, for a substantial reason, rents for life, or for any more limited period.
The first part of the work, which is descriptive of the actual state of our laws of real property, is then divided (according to a method of arrangement which pursues in the main, though with some improvements, that of our prior commentators) into eight principal heads, or Titles. Of these the first treats (but more largely and more practically than before) of Tenures, Uses, and Trusts; and as these form, in the opinion of the author, the leading causes of the defects in the present system, we should hardly do justice to so important a subject, if we were to exhibit in any words but his own the view which he himself takes of it. Of Tenures, then, he thus writes :
'It was a maxim of tenure, that the tenancy should be always full, that is, there should be always a tenant or a succession of tenants to do the lord's service. Hence land could not be granted, to vest at a future day, or on a future event. It was frequently granted to one for life, with remainder to another in fee. In that case, the immediate tenant, being seised of the property, was entrusted with the protection of the possession. If he failed in this duty, it was a forfeiture of his estate. Ít was another rule, that land could only pass by delivery of the possession, or seisin, as it is technically called. This was accompanied by a feoffment, of which the livery of seisin was the essential part, the tenant for life accepting it on behalf both of himself and those in rem mainder ; while the deed only authenticated the transaction. This livery passed a fee, either by right or by wrong; since whoever had the seisin was competent to deliver it over. The same effect was attributed to a fine; a species of assurance, whereby the person seised in possession, acknowledged, in a feigned action at law, the right to be in another The result of these positions was, that an immediate interest in land could only be transferred on the spot or by a judicial acknowledgmentthat all in remainder took through the medium of the delivery of seisin to the first tenant,—that this tenant, being entrusted with the seisin, was competent, by the same mode of feoffment or fine, to transfer it, not merely for his own rightful interest, but absolutely to another. Such an act, indeed, was a forfeiture of his own estate ; and if the, grantee in remainder was in existence, and his interest was vested, and not depending on a future event, he might enter for the forfeiture. If, however, there was no such grantee, then, from the imaginary ouster or devestment of the seisin on which the limitations depended, and the VOL, XXXIÙ. NO. LXVIII.
want of an existing right of entry to restore it, the contingent remainders were destroyed. The grantor indeed, or his beir, might, in that case, re-enter, the seisin under the grant being at an end; but if the latter colluded with the tenant in possession, the whole grant might be defeated, and a complete estate acquired by wrong with impunity. After uses were converted into legal interests by the statute of Hen. VIII., the effect of this inconvenience was prevented, in settlements to uses, embracing provisions for unborn issue, by limiting to trustees an estate commensurate with that of the immediate tenant for life, for preserving these remainders, with a right of entry for that purpose. This cured the particular evil; but it introduced into settlements another system, that of trust, in order to remedy the inadequacy of the laws of tenure to the necessary modifications of landed property.
At common law, whatever was vested, in a legal sense, was alienable ; and dispositions were effected, where the estate was immediate, by feoffment or fine, with livery of the possession ; but, where it was expectant, by grant; as none but the tenant in possession could give seisin. Contingent remainders, however, or eventual interests, were inalienable to third persons; but they might be released, or extinguished in the fee.
. These different properties of destructibility and inalienableness in contingent remainders, bave occasioned distinctions between them and vested estates; and again, between them and the modifications of interests, called springing uses, and executory devises' (wbich he promises to notice afterwards). • The variety and nicety of these may be best depicted, by referring to two treatises of about half a century old on these subjects, which, for exact arrangement and acuteness of reasoning, stand almost unrivalled in English jurisprudence. It is to be regretted, that the times were not then ripe for directing the talent that produced them, towards simplifying, instead of systematizing, the refinements of landed property.'
This is followed by a section treating of' Uses.' 'The next creature of our laws of real property is Uses.' These were of ecclesiastical introduction, for the purpose of eluding the restrictions against mortmain. They were in time adopted by the laity; partly to avoid the rigour and inconvenience of tenures, and partly as admitting those modifications of property, demanded by the increasing intercourse and wants of society, which were incompatible with the maxims of feudality. After repeated attempts by the legislature to assimilate the two systems, uses were ultimately converted into legal estates by the statute of 27 Henry VIII. c. 10. By means of uses, thus legalized, various modifications of property were introduced, to which the system of tenures was a stranger. For instance, 'expectant interests by way of use did not require to be preceded by an estate in possession, nor to be a remnant of the original fee, like a remainder at common law; but they might be limited, upon any future event, bappening within the period for which, by the law of entails, property was usually tied up, namely, a life or lives in being, and twenty-one years and nine months afterwards, and that, although the whole in the use was first disposed of, if only defeasibly. They also, in their original character, introduced
and afterwards preserved a species of dominion almost unknown at common law, called powers. By means of these, a person, having merely a partial interest, or even none whatever, in the land, might dispose of or charge it, in the particular manner authorized.'
Uses, however, when legalized, assumed the properties of estates at common law, to which they were assimilated. The inberitance was subject to the legal incidents hereafter noticed, of curtesy and dower, in a surviving husband or wife. The partial owner in possession under the use (called the cestui que use in possession) bad the same capacity as a similar tenant at common law to destroy the subsequent uses, when bearing the character of contingent remainders. When, however, the whole fee was disposed of, though eventually, as to one and his heirs, if he attained the age of twenty-one; or defeasibly as to one and his heirs, but if be died under twenty-one, then to another, the subsequent limitations no longer bore any analogy to common-law interests, but were then called springing or executory uses ; and, as their existence did not technically depend upon the seisin of the tenant in possession, no act of his could destroy them, Powers, however, when they operate by way of use, are (witb some qualifications) destroyed by the feoffment or fine of the appointor; and that although he have no such intention, if he be also invested with any estate in possession, as for life, on account of the technical capacity attributed to him of disturbing, by these means, tlie seisin on which the power depends.'
The third section is given to Trusts.'
• Trusts are what uses were before they were legalized, a confidence reposed in the grantee of the land, which is enforced by a court of equity only. Their revival was chiefly occasioned by the narrowness of construction which the judges at common law put upon the statute of uses. in two instances. This act, it should be noticed, treats uses and trusts as convertible terms. Notwithstanding this, and the obvious intent to reduce the whole of them to estates at law, it was conceited, that no use could be limited on an use; and, therefore, on a feoftment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, the courts held, that the statute executed the first use only; and that the second was a mere nullity. Again, the statute mentions only such persons as were seised to the use of others. But of terms of years and other interests short of freehold in land, the person entitled is technically described as possessed only, and not seised. To these estates also it was held that the statute did not extend.
• Over the interests which were thus excluded from the operation of the statute, equity resumed its ancient jurisdiction ; applying to them the denomination of trusts in contradistinction to legalized uses. They are resorted to for various purposes, to which even uses, now coerced into the strict rules of legal estates, cannot accommodate themselves. Of these he gives various instances; and concludes with representing them and their like as not only allowable, but essentially necessary for the complete enjoyment of property. • The system, however,' he continues, as it stands, is liable to several
addition, that (unless our author has greatly erred in his estimate) all the inconvenience and expense of a partition among English coheirs occur, in a much greater proportion, in the case of every single succession, regulated by the provisions of the civil code of France. The author thus sunis up the comparison. :
From an engraftment of good sense on good fortune, the English law appears to possess the germ of a perfect system of succession,' (he speaks now of property, of every description,) ' with reference to our own constitution and habits. Its benefits, however, cannot be developed, till the present perplexed mode of administering assets, with their distinction of legal and equitable, their consequent marshalling, and the limited and circuitous liability of lands are removed. Justice, too, will not be done to the next of kin, until the executorship is treated as a mere office, and not as passing the residue, where undisposed of, to a stranger, in preference to the next of kin. Courts of equity have long revolted at this rule of law; and bave, as usual, corrected it, whenever the ivdividual case afforded evidence of intention to treat the executor as a trustee, by giving him a legacy, or, in the case of a bequest of the residue, which afterwards lapsed, by the legatee's death in the testator's lifetime. Here, however, as in many similar cases already noticed, the relief dispensed in particular instances is greatly diminished, if not counterbalanced, by the increase of judicial equity, and equitable distinctions,
We shall not travel step by step through the remaining divisions of the proposed code, but remark only such suggestions as arrest our attention by their apparent novelty or importance. .
Under the head of rights arising out of the relation of marriage, the author proposes to give to the surviving husband, in case of issue, the rents and profits only of one moiety of the wife's land during his life; in case of no issue, a life estate in the land itself; to the surviving wife, in the former event, a third part—in the latter, a moiety of the rents and profits of whatever land the husband may die possessed of; and he vindicates the distinction by observing, that the issue is the first object of a deceased. parent's duty and affection, and that the ties of collateral relationship are comparatively feeble. The restriction of the right of dower to whatever lands the husband may die possessed of, he defendsby the right of alienation, which should be inherent in a husband over his own property-by the brevity and simplification in the forms of conveyancing, which are in use to elude the present law of dower—and by the precedent of freebench, which, according to the usual custom of copyholds, attaches, in such lands only as the tenant may die possessed of. His reason for giving, in some instances, a share of the profits of the land, and, in others, the land itself, is in conformity with his general system, that the land should be left in the hands of the persons most interested in the good management of it. To avoid the present circuitous and