after the death of the testator the will should be proved before the ordinary, and the will having been proved, the mayor and bailiffs of the city ought to deliver seizin of the devised and devisable tenements (de tenementis legatis et que sunt legabilia) to the executors of the will saving the rights of every one. A little later the executor ceased to intervene at all, and the devisees might enter directly, or if the heir held them out, might have the writ Ex gravi querela.20

9919

If, as I think, it is sufficiently clear that in the reign of Edward I. the distinction between an executor and a feoffee to uses was still in embryo, it is unnecessary to search the English books for evidence of the first stage when the testator transferred possession in his own lifetime. A case in 55 Henry III. shows executors seized for the purpose of applying the land to pious uses under a last will, and defending their seizin in their official capacity, but does not disclose how they obtained possession." A little earlier

19 Abbr. Plac. 284, 285 (H. 19 Ed. I. Devon, rot. 51). Note the likening of such tenements to chattels, Bract. 407b; 40 Ass. pl. 41; Co. Lit. IIIa.

20 39 Ass. pl. 6, fol. 232, 233, where there is no question of the executor, but special custom determines whether the devisee shall enter, be put in by the bailiff, or have the writ. In Littleton's time the devisee's right of entry was general: § 167; Co. Lit. III. As to the writ, see 40 Ass. pl. 41. fol. 250; F. N. B. 198 L. et seq; Co. Lit. III. The only writ mentioned by Glanvill seems to be given to the executor, or if there is no executor to the propinqui; lib. VII., C. 6, 7. Of course I am not speaking of cases where the executors were also the devisees, although even in such cases there was a tendency to deny them any estate, if there was a trust; 39 Ass. pl. 17; Litt. § 169. 21 Abbrev. Plac. 179, col. 2; Norht, rot, 15 in dorso.

still Matthew Paris speaks of one who, being too weak to make a last will, makes a friend expressorem et executorem.22 It is a little hard to distinguish between such a transaction and a feoffment to uses by a few words spoken on a death-bed, such as is recorded in the reign of Henry VI.23 But the most striking evidence of the persistence of ancient custom was furnished by King Edward III. in person, who enfeoffed his executors, manifestly for the purpose of making such distribution after his death as he should direct; but because he declared no trust at the time, and did not give his directions until afterwards, the judges in Parliament declared that the executors were not bound, or, as it was then put, that there was no condition.24

Gifts inter vivos for distribution after death remained in use till later times.25 And it may be accident, or it may be a reminiscence of ancient tradition, when, under Edward IV., the Court, in holding that executors cannot have account against one to whom the testator has given money to dispose of for the good of his soul, says that as to that money the donee is the executor.26

22 4 Matt. Paris, Chron. Maj. (Rolls ed.), 605, A.D. 1247.

23 1 Cal. Ch. xliii; S. C. Digby, Hist. Law of Real Prop. (2nd ed.) 301, 302. Cf Heusler, Gewere, 478, citing Meichelbeck (1 Hist. Fris. Pars instrumentaria), No. 300; "Valida egritudine depressus traditionem in manus proximorum suorum posuit, eo modo, si ipse ea egritudine obisset, ut vice illius traditionem perfecissent.”

24 3 Rot. Parl. 60, 61 (2R. II Nos. 25, 26).

25 Babington v. Gull, I Cal. Ch. lvi, Mayhewe v. Gardener, 1 Cal. Ch. xcix, c.

26 Y. B. 8 Ed. IV, 5, pl. 12. In Mayhewe v. Gardener, 1 Cal. Ch.

27

At all events, from an early date, if not in Glanvill's time, the necessity of a formal delivery of devised land to the executor was got rid of in England as Beseler says that it was on the Continent. The law of England did in general follow its continental original in requiring the two elements of traditio and investitura for a perfect conveyance." But the Church complained of the secular courts for requiring a change of possession when there was a deed.28 And it was perhaps because wills belonged to the spiritual jurisdiction that the requirement was relaxed in the case of executors. As has been shown above, in the reign of Edward I. possession was not delivered until after the testator's death, and in that of Edward III. it had ceased to be delivered to them at all. Possibly, however, a trace of the fact that originally they took by conveyance may be found in the notion that executors take directly from the will even before probate, still repeated as a distinction between executors and administrators."

29

It is now time to consider the position of the cestui que use. The situations of the feoffor or

xcix, c. the defendant, who has received all the property of a deceased person by gift in trust to pay debts, etc., was decreed to pay dilapidations for which the deceased was liable.

27 Glanv. vii., Ch. 1, § 3; Annals of Burton (Rolls ed.), 421 (A.D. 1258); Bracton, fols. 38a, b, 39b, 169b, 194b, 213b, § 3, 214b; Abbr. Plac. 272 (H. 9 Ed. I), Suff. rot. 17; 1 Cal. Ch. liv, lv; Beseler, Erbverträgen, I. § 15, p. 261; § 16, pp. 277 et seq.; Heusler, Gewere, pp. 1, 2: Sohm. Ehschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R.u. Rechtsgesch, § 148 (5th ed.), pp. 480 et seq.

28 Annals of Burton (Rolls ed.), 421 (A.D. 1258).

29 Graysbrook v, Fox, Plowd, 275, 280, 281.

donor and of the ultimate beneficiaries were different, and must be treated separately. First, as to the former. In England, as on the Continent, upon the usual feoffment to convey after the feoffor's death, the feoffor remained on the land and took the profits during his life. Feoffors to uses are commonly called pernors of profits in the earliest English statutes and are shown in possession by the earliest cases.30 As Lord Bacon says in a passage cited above, pernancy of the profits was one of the three points of a use. It was the main point on the part of the feoffor, as to make an estate, or convey as directed, was the main duty on the side of the feoffee. But all the German authorities agree that the pernancy of the profits also made the gewere, or protected possession, of early German law. And in this, as in other particulars, the English law gave proof of its origin. In our real actions the mode of alleging seizin was to allege a taking of the esplees or profits.

31

32

If the remedies of the ancient popular courts had been preserved in England, it may be conjectured that a cestui que use in possession would have been

30 Stat. 50 Ed. III., Ch. 6; 1 R. II., Ch. 9 ad fin.; 2 R. II. Stat. 2, Ch. 3; 15 R. II., Ch. 5; 4 Hen. IV., Ch. 7; 11 Hen. VI., Ch. 3, 5; 1 Hen. VII., Ch. 1; 19 Hen. VII., Ch. 15; Rothenhale v. Wychingham, 2 Cal. Ch. 3. (Hen. V.); Y. B. 27 Hen. VIII. 8; Plowden, 352; Litt. §§ 462, 464; Co. Lit. 272b So 1 Cruise, Dig. Tit. 12, Ch. 4, § 9: "if the trustee be in the actual possession of the estate (which scarce ever happens)."

81 Heusler, Gewere, 51, 52, 59; Brunner, Schwurgerichte, 169, 170; Laband Vermogensrechtlichen Klagen, 160; I Franken, Französ. Pfandrecht, 6.

32 Jackson, Real Actions, 348 and passim. See Statutes last cited, and Stat. 32 Hen. VIII, Ch. 9, § 4.

34

33

protected by the common law." He was not, because at an early date the common law was cut down to that portion of the ancient customs which was enforced in the courts of the King. The recognitions (assizes), which were characteristic of the royal tribunals, were only granted to persons who stood in a feudal relation to the King, and to create such a relation by the tenure of land, something more was needed than de facto possession or pernancy of profits. In course of time the fact that the new system of remedies did not extend itself to all the rights which were known to the old law became equivalent to a denial of the existence of the rights thus disregarded. The meaning of the word "seizin" was limited to possession protected by the assizes, and a possession which was not protected by them was not protected at all. It will be remembered, however, that a series of statutes more and more likened the pernancy of the profits to a legal estate in respect of liability and power, until at last the statute of Henry VIII. brought back uses to the courts of common law.36

35

It is not necessary to consider whether the denial of the assizes to a cestui que use in possession was peremptory and universal from the beginning, because the feoffor had another protection in the covenants which, in England as on the Continent, it was

33 Franken, Französ. Pfandr., 6.

34 Heusler, Gewere, 126, 423, 424.

35 Heusler, Gewere, 424.

I

36 See Statutes before cited, p. 11 n. 30, and 1 R. III. Ch. 1; 27 Hen. VIII., Ch. 10.