haps the plainest enactment that ever appeared on the statute book." ." But the opposition led to the passing of the act of the following session, repealing this section and substituting for it a provision which only saved a contingent remainder from destruction by reason of the forfeiture, surrender, or merger of any preceding estate. If however this section of the act of 1844 had not been so repealed, most of the misfortunes that have since been experienced in regard to contingent remainders would have been averted.

9

8 10 JUR., pt. 2, pp. 14-16. This article is signed with the initials "G. S." and it may fairly be inferred that the author was the late George Sweet. The following specimen is there quoted from Mr. Ker's letter: "As a contingent devise or use, though by way of remainder, is necessarily unexecuted (while an executory devise or use is not necessarily contingent), the term 'executory' does not, in strictness, ascertain the peculiar species of limitation with which, by this enactment, all contingent remainders, whether created at the common law or by way of use or devise, are intended to be identified. The executory devise or estate to which reference is intended to be made is, of course, a contingent devise or use, so limited as to be incapable of taking effect as a remainder; and the true interpretation, therefore, of the enactment is, that 'a contingent limitation by way of remainder, whether created at the common law or under the Statute of Uses, or by devise, shall take effect in the very same manner as a contingent use or devise not limited by way of remainder.' Now, in order to satisfy the terms of this enactment, it appears to be necessary that we should, in the first place, apply the learning of contingent remainders, for the purpose of ascertaining whether the given limitation would, under the old law, have taken effect as a contingent remainder or not; and, in the next place, apply the learning of executory devises or uses for the purpose of inventing an hypothesis adequate to give that limitation all the effect of an executory devise or use. And we must, if possible, so work out this process, as that, while we attribute to the limitation (for this the enactment expressly requires) all the peculiar qualities of an executory devise or use, none of the beneficial properties which the same limitation, taking effect as a remainder, would have possessed, may be sacrificed. But, having ascertained that the given limitation would have been valid as a contingent remainder, then, as it is of the very essence of an executory devise or use to have (in contradistinction to a remainder) a substantive self-dependent existence, and to be incapable of taking effect as a remainder, we are compelled to disconnect the limitation, in construction or supposition of law, from the particular estate." The whole of this letter is printed in several of the early editions of DAVIDSON, CONCISE PRECEDENTS (2–5 ed.). It would have been more useful to have printed Mr. Sweet's answer to it, in which, after saying that, as the text of the act conveys its meaning much more shortly and with greater perspicuity than Mr. Ker's commentary, the latter must be regarded as a piece of mere mystification, he proceeds to discuss the provisions of the act and to show how groundless were the difficulties imagined by Mr. Ker (10 JUR., pt. 2, pp. 14–16).

• In SWEET, CONVEYANCING Statutes of 8 & 9 VICT. (1845), p. 1, the author says of the later act: "The last-mentioned statute has effected a retrograde step in law reform; it has repealed some useful provisions of the act of the preceding session, and, without settling any of the doubts which exist as to the construction of that act, has substituted for many of its clauses others not better in design and much more inaccurate in expression." See also 61 L. T. 335 (1876).

In 1843, shortly before these statutes, the case of Festing v. Allen 10 had been decided. There a testator had devised his lands to certain persons and their heirs to the use of his granddaughter during her life and after her decease to the use of all her children who should attain the age of twenty-one years, as tenants in common, and their heirs. The granddaughter survived the testator and died leaving three minor children. As there was no gift except to children who attained twenty-one and there was no child answering that description when the granddaughter's estate determined, it was held that the remainder was necessarily defeated. This case must have been present to the minds of the authors of the act of 1844, and under its provisions no such calamity could ever have happened in the case of any future will or deed. Under the act of 1845 the same thing was very likely to happen and actually did happen.

The difference between a contingent remainder and an executory estate (i. e., a springing or shifting use or an executory devise) was that a contingent remainder depended upon the continued existence of a preceding estate of freehold until it vested, while an executory estate was entirely independent of the existence of any previous estate or interest.

This rule regarding contingent remainders was a result of the simplicity of the forms of conveyance allowed by the common law. The owner of a present estate of freehold could convey the land only by a feoffment with livery of seisin, which meant an actual delivery of the feudal possession of the land." He could not convey it for an estate to commence in the future and retain the land in the meantime, because that was inconsistent with the present delivery of the seisin. The only occasion on which a future estate could be created was when a present feoffment was made with livery of seisin to someone for an estate less than a fee simple. A provision might then be added that upon the determination of that estate the land, instead of reverting to the feoffor, should remain to another for some other estate. The future estate during which the land was so to remain away from the feoffor was called a remainder.12 It was not admissible that there should be any inter

10 12 M. & W. 279, 300 (1843); WILLIAMS, SEISIN, 200.

11 2 BL. COMM. 310-14; 2 POLLOCK & MAITLAND, ENG. LAW, 82-84; WILLIAMS, REAL PROPERTY, 13 ed., 143 (the last edition prepared by the author).

12 Mr. Maitland has shown that the word remainder is not applied to the estate because it is a remnant or part of the feoffor's estate that is left over when a particular

man.

val between the present estate and the remainder, for, if there were, the land could not at the end of the present estate remain to the new owner, but would immediately revert to the feoffor, or, if there was a subsequent vested remainder, it would go to the remainderWhen the time arrived afterwards for the future estate to take effect, the land could not then remain to the person for whom it was intended, because it would have already reverted to the feoffor, or passed to the owner of the vested remainder, and the law provided no means whereby it could be got away from him without a new conveyance.13 Accordingly, if a contingent remainder was still contingent when the previous estate came to an end, it failed entirely.

Executory estates derived their origin from uses, which required at common law a seisin in some person other than the one that had the use. They might therefore be created and transferred independently of the seisin. The owner of a piece of land might enfeoff one person to the use of another upon a contingent event, either disposing of the use in the meantime or leaving it wholly or partly undisposed of. So far as the use was not disposed of, it would

estate has been taken out, but that it derives its meaning from the language of the conveyance, which was that the land, after the determination of the particular estate, should remain to another for a specified estate. Any remnant of the feoffor's estate not disposed of was called the reversion. 2 MAITLAND, COLL. PAPERS, 178, 180 (6 L. QUART. REV. 25); 2 POLLOCK & MAITLAND, ENG. LAW, 21; FLETCHER, CONTINGENT Rem. 7. The Latin word employed in conveyances was remanere, but Lord Coke's connection of the word with remnant seems to have been a fanciful one and not in accord with the use of remanere in conveyances (Co. LIT. 143 a). The following is a form of feoffment with remainders in MADOX, FORMULARE ANGLICANUM, 409: "Know &c. that we [the feoffors] have delivered, enfeoffed, and by this present charter confirmed to Mary Howard our manor of Peldon, &c. To have and to hold all the said manor &c. to the said Mary for the term of her life; And after the decease of the said Mary the said manor &c. shall remain (remaneant) to John Teye and the heirs of his body lawfully begotten; And if it happen that the said John Teye die without heir of his body lawfully begotten then the said manor &c. shall remain to Robert Teye and the heirs of his body lawfully begotten; And if it happen that the said Robert Teye die without heir of his body lawfully begotten then the said manor &c. shall remain to Grace and Constance daughters of J. T. and the heirs of their bodies lawfully begotten; And if it happen that the said Grace and Constance die without heir of their bodies lawfully begotten then the said manor &c. shall wholly revert (revertantur) to us the said [feoffors] and our heirs and assigns forever; In witness &c." [25 HEN. 6]. See also other forms, id., pp. 401-12. In making a feoffment the verb "enfeoff" (feoffare) was seldom employed, and the usual phrase was "give and grant" (dare et concedere) (2 POLLOCK & MAITLAND, ENG. LAW, 82). It is unnecessary to provide for the reversion, but it was often done (Id., 7).

13 WMS. R. P., 13 ed., 271-73; FEARNE, CON. REM. 281, 504-505.

result to the feoffor, and when the contingent event happened, the feoffee would hold the land to the use that would then spring up. If the use was disposed of until the contingent event, then it would shift upon the happening of the event. The owner might also, without parting with the seisin, create a future use by a bargain and sale of the land from a future time or contingent event,14 or by a covenant that he would thereafter stand seised of the land to the use of another.15 In all these cases the persons that had the seisin were bound to deal with the land in accordance with the wishes of those that had the use.

The Statute of Uses 16 transferred the seisin and possession from the persons in whom it was vested to the persons entitled to the use for the like estate as they had in the use, but it did not attempt to interfere with the creation of uses. Land might still be limited to uses in the same manner as before the passage of the act and the uses would become by force of the statute legal interests. A future use would become a future legal interest, and would be valid although there might be no preceding estate. But where a use for a freehold interest was preceded by an estate that would support a contingent remainder, the common law courts gave to the legal estate into which the use was converted the same effect as if it had been limited, as at common law, by way of remainder after the preceding estate without any mention of uses. A feoffment to the use of one for life and after his death to the use of his children who should attain the age of twenty-one years, in equal shares, had accordingly the same effect as if the feoffment had been made to the same person for life with remainder to his children attaining that age in like manner. The future use, having become a legal estate, had the incidents of the like estate at common law, and, if it was still contingent when the preceding estate determined, it failed to take effect at all. Accordingly it was an established rule of law "that no limitation shall be construed to be an executory or shifting use which can by possibility take effect by way of remainder." 17 It was plain that

14 I SANDERS, USES, 142; 7 BACON'S WKS. (Spedding's ed.), USES, 440; Davis v.

Speed, 12 Mod. 39 (1694); GRAY, PERPETUITIES, 3 ed., § 56.

15 Co. LIT. 271 b, Butler's note, VI, 1; Gilbert, USES (Sugden's ed.), 92, 108. 16 27 HEN. VIII, C. 10.

17 Cole v. Sewall, 4 Dr. & War. 1, 27 (1843); 2 Con. & Law. 344, 359; Carwardine

v. Carwardine, 1 Eden 27, 34 (1757); GILBERT, USES (Sugden's ed.), 176; FEARNE, CON. REM. 392; BURTON, COMPENDIUM, 7 ed., 261.

this rule disregarded the intention of the settlor, for it was never doubted that it was intended in such cases as that just mentioned that all the children should be entitled whenever they attained the specified age. But at common law effect could not be given to this intention, unless they had attained that age when the preceding estate determined. And when the statute turned the use into a legal estate, the courts of law applied to it the same rules that had previously governed legal estates, if the estate was one that could have been created at common law. It was only in the case of springing and shifting uses, which did not correspond to any common law estates, that the rules of the Court of Chancery continued to be applicable.1

18

Executory devises were formed on the model of springing uses.19 At common law there was no power of disposing of land by will, except in some places by custom.20 But the purpose of a will was accomplished by a feoffment to the use of the feoffor and his heirs or to the uses of his will, and the Court of Chancery, which allowed a devise of the use, would compel the feoffees to deal with the land according to the will. When however the Statute of Uses turned the use into a legal estate, it became property that the owner had no power to devise.22 The inconvenience of thus taking away a power to which people had become accustomed soon led to the passing of the Statute of Wills.23 After this statute, by an indulgence in favor of wills, a testator was permitted to make a devise directly and without the interposition of a third person for any interest that might previously have been created by a springing or shifting use, and such a limitation was called an executory devise.24

18 White v. Summers, [1908] 2 Ch. 256, 262–65.

19 BURTON, COMPENDIUM, 7 ed., 104; Purefoy v. Rogers, 2 Saund. 388, note. 20 2 BL. COMM. 374; BURTON, COMPENDIUM, 7 ed., 91; Wìs. R. P., 13 ed., 205. 21 MADOX, FORMULARE ANGLICANUM, 438, gives a form of will (2 HEN. 7) in which, after reciting a feoffment to the use of the testatrix and her heirs and to perform and fulfill her will, she proceeded to declare the manner in which the feoffees should deal with the lands. For examples of bills to enforce the uses, see SELECT CASES IN CHANCERY (Selden Soc.), cases 118, 127.

22

2 BL. COMM. 375; BURTON, COMPENDIUM, 7 ed., 91; Wмs. R. P., 13 ed., 205. But see BACON, USEs (Rowe's ed., 1806), 140, note 80.

23

32 HEN. VIII, c. 1; 34 HEN. VIII, c. 5; 2 BL. COMM. 375; BURTON, COMPENDIUM, 7 ed., 91; Wмs. R. P., 13 ed., 205.

24 FEARNE, CON. REM. 386; BURTON, COMPENDIUM, 7 ed., 104; Wмs. R. P., 13 ed., 316-17; Purefoy v. Rogers, 2 Saund. 388, note.