lands would be free from the control of her husband. The Court of Chancery even went the length, in order effectually to protect the woman from losing her property, of allowing the validity in this case of a clause in the settlement restraining the power of the woman during the coverture to alienate her interest in the lands-an exception to the general rule of law1.

Such are the main features of this large and important branch of the law of real property. To go further into detail is beyond the scope of the present treatise.

TYRRELL'S CASE. Michaelmas Term, 4 and 5 Philip and Mary. In the Court of Wards. (Dyer's Reports, 155 a.)

Jane Tyrrell, widow, for the sum of four hundred pounds paid by G. Tyrrell her son and heir apparent, by indenture enrolled in Chancery in the 4th year of Edward VI, bargained, sold, gave, granted, covenanted, and concluded to the said G. Tyrrell all her manors, lands, tenements &c., to have and to hold the said &c. to the said G. T. and his heirs for ever 2, to the use of the said Jane during her life without impeachment of waste; and immediately after her decease to the use of the said G. T. and the heirs of his body lawfully begotten; and in default of such issue, to the use of the heirs of the said Jane for ever. Quaere well whether the limitation of those uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facie? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the inrollment &c. And this case has been doubted in the Common Pleas before now; ideo quaere legem. But all the Judges of C. B. and SAUNDERS, Chief Justice, thought that the

3

1 See Haynes, Outlines of Equity, p. 211. The clause restraining anticipation, as it is called, was first inserted at the suggestion of Lord Thurlow in a settlement of which he was trustee.*

2 This conveyance would take effect by way of use under the statute, and thus a legal estate in fee simple would be given to G. T.

3 The habendum is the part of the deed which designates the estate for which the grantee is to hold, 'to have and to hold,' etc.

Ilmitation of uses above is void, &c.; for suppose the Statute of inrollments (cap. 16) had never been made, but only the Statute of Uses (cap. 10) in 27 Henry VIII, then the case above could not be, because an use cannot be engendered of an use.

GIRLAND V. SHARP.

37 Elizabeth. (Croke's Reports, Eliz. p. 382.)

Trespass1. Upon demurrer2 the case was that one infeoffed his two sons to the use of himself for life, and after to the use of them and their heirs, ad ultimam voluntatem suam perimplendam; and afterwards devised it to Sharp, the defendant, in fee; and whether Sharp hereby shall have the land or not was the question. Gawdy conceived that he should not; for an use cannot be limited upon an use; then when he limits it to the use of his two sons and their heirs, he cannot afterwards limit it to the uses of his last will. But the words ad performandum ultimam voluntatem, as to limit any uses thereby, are void words. And to that opinion Clench agreed, but Fenner doubted thereof. Wherefore it was adjourned.

NEVILL V. SAUNDERS. Mich. 1686. (1 Vernon's Reports, 415.)

Lands were given by will to trustees and their heirs in trust for Anne the defendant's wife and her heirs, and that the trustees should from time to time pay and dispose of the rents and profits to the said Anne or to such person or persons as she by any writing under her hand, as well during coverture as being sole, should order or appoint the same, without the intermeddling of her husband, whom he willed should have no benefit or disposal thereof; and as to the inheritance of the premises in trust for such person or persons and for such estate or estates as the said Anne by any writing purporting to be her will, or other

1 The action was for breaking and entering the plaintiff's land.

2 That is, the facts as stated upon the record or pleadings are admitted to be true, and the question is what is the legal result of the admitted facts.

writing under her hand, should appoint; and for want of such appointment in trust for her and her heirs. The question was whether this was an use executed by the statute, or a bare trust for the wife, and the Court held it to be a trust only, and not an use executed by the statute.

CHAPTER VIII.

HISTORY OF THE LAW OF WILLS OF LAND.

IT has been seen that one of the most marked effects of the growth of feudalism was the abolition, except in certain localities, of the practice of devising interests in lands by will'. Such a disposition would have defeated the most valuable rights of the lord-relief, wardship, and marriage. It was therefore wholly inconsistent with feudal theories. In a great many boroughs, and in gavelkind lands, local customs were sufficiently strong to preserve the ancient liberty of disposition by will, and cases relating to 'burgages devisable' are common in the Year Books.

It has also been seen how the practice of disposing of uses of land by will became prevalent under the protection and encouragement of the Chancellors. One of the earliest of the recorded cases on this branch of the law contains a disposition by will, or rather perhaps settlement, of the use of lands made in the 6th year of Richard II 2. Except therefore in the case of burgages devisable, a devise, before the legislation presently to be noticed, was simply a declaration by the legal tenant of the uses to which his heir at his death should hold the lands, or of the uses to which he had conveyed the lands to feoffees (such conveyance having been expressed to be to the use of his will), or else a disposition of a use which had already been created in favour of himself.

1 See above, pp. 29, 91.

Rothanhale v. Wychingham, above, p. 289, n. a.

In order therefore that the devisee of the use might enforce the disposition of the will, the aid of the Chancellor was called. in. The Chancellor would compel, if necessary, the tenant of the legal estate to convey the land devised to cestui que use, the devisee.

It appears from the title and preamble of the Statute of Uses that one of its principal objects was to abolish the power of disposing of interests in lands by will, and thereby to restore to the king and the great lords the feudal dues which they could not claim if the estate of the heir were defeated by a devise.

The Statute of Uses contained a saving in favour of wills made before the first day of May, 15361, the year following that of the passing of the Statute. Between that time and July 20, 1540, the power of testation was, as regards freehold interests in lands, wholly abolished, except in the localities mentioned above. It may however be well believed that it was impossible for the legislature, arbitrary and thorough-going as it was, to maintain a restriction so opposed to the habits and practices which had prevailed throughout the country ever since Uses had been understood and protected by the Chancellor. Accordingly in the 32nd year of Henry VIII (1540), it was found necessary to restore a large measure of the power of devising interests in lands. The provisions of the Statute 32 Henry VIII, c. 1, are somewhat complicated; but the upshot of them is that power is given to every tenant in fee simple to dispose of all his lands held by socage tenure, and of two thirds of his lands held by knight-service. Careful provision is made by this Statute for the saving of primer seisins, reliefs, and fines on alienation, in the case of socage lands, and of the rights of wardship over the third part of knight-service lands, in favour of the king or other lord.

1 Sect. 9.

2

2 So interpreted by 34 and 35 Henry VIII, cap. 5. sect. 3.