Gambar halaman

conformity to the opinion of the Judges of the Court of C. P., as being within the period allowed for the

vesting of an executory estate, in the case of MassenTit. 38. c. 19. burg v. Ash, and several other cases, which will be

stated in a subsequent title. 2 P. Wms. 15. In the case of Stanley v. Leigh, Sir J. Jekyll 689.

said, he had informed himself of the common course of settling terms for years, and found it usual in marriage settlements to limit them thus : To trustees for the whole term, in trust to permit the husband and wife, and the survivor, to receive the rents and profits during so long of the term as they should live; and after the death of the survivor, to permit the

first son of the marriage to receive the rents and proGower v.

fits till he attained 21 ; and if he attained that age, Grosvenor, Barnad. R. then the trustees to assign the residue of the term to 54.

him : but if such first son died under 21, then in trust for the second and other sons, in like manner.

16. In a settlement, by which freehold estates were limited to the husband for life, with remainder to his first and other sons in tail; a covenant was inserted to assign terms for years to trustees, for such persons, estates, intents and purposes, as were mentioned concerning the freeholds, or as far as the law would in that case allow or permit. And the Court of Chancery directed such terms for years to be limited

in the manner above mentioned. Newcastle v. 17. Upon the marriage of Henry Earl of Lincoln Lincoln, 3 Ves. 387.

in 1772, he joined his father, Henry Duke of Newcastle, in settling several freehold manors, &c. to the use of the Duke for life, remainder to Lord Lincoln for life, remainder to his first and other sons in tail male, remainder to his next brother Lord Thomas Clinton for life, remainder to his first and other sons in tail male, remainder to Lord John Clinton in the

same manner. And the Duke covenanted that he would assign to the trustees of the settlement the manor of Newark, which he held by a lease for years from the Crown; to hold the same in trust for, and for the benefit of such person and persons, and for such or the like estate or estates, and for such and the like ends, intents, and purposes, as were therein-before mentioned of and concerning the said manors, &c. thereby granted and released, as far as the law would in that case allow or permit.

Henry Earl of Lincoln died in the lifetime of his father, leaving a son and a daughter; and the son died an infant in the lifetime of the Duke of New. castle, who never executed any assignment of the leaseholds, pursuant to the covenant.

On the death of Henry Duke of Newcastle, Lord Thomas Clinton succeeded him, and died in 1795, leaving Henry his eldest son, and Thomas his second son, infants : who filed their bill against Lady Lincoln, the widow of Henry Earl of Lincoln, who had taken out administration to her infant son ; stating, that Lady Lincoln had been permitted to take possession of the said manor of Newark ; and praying that the settlement made on the marriage of Lord Lincoln, as far as respected the performance of the covenant to convey the leasehold premises, might be established, and carried into execution; and that it might be referred to one of the Masters to settle a proper conveyance of the same; and that such a clause might be inserted therein, as should prevent the absolute vesting of the said leasehold property, until the persons successively entitled to the possession of the same should have attained the age of 21 years. To this bill Lady Lincoln put in her answer, and thereby insisted that the infant son of Lord Lin. coln, having survived his father, became entitled to the said leasehold premises, for his own use and benefit; and that, in consequence of his death, and by virtue of the statute of distributions, Lady Lin. coln and her daughter became entitled to the said leaseholds.

The case having been fully argued, Lord Loughborough said, the question arose upon the leasehold property at Newark, which, by the articles made upon the marriage, was to be settled in the same manner as the freehold estates, as far as the rules of law would admit. He meant to be extremely short in stating his opinion, which was decidedly that in cases of marriage articles, where leasehold property was to be subject to a settlement of freehold estates, and the limitations of the freehold went to all the sons in succession, the settlement to be made of the leasehold was to be analogous to that of the freehold ; so that no child born, and not attaining the age of 21, should, by his birth, acquire a vested interest, to transmit it to his representatives, and thereby defeat the ulterior objects of the articles; which were not decidedly in favour of one son, but equally extended to every son: and that he took, from all the course of the cases, to be the settled rule and established practice. He therefore directed a clause to be inserted in the settlement, that no person should be entitled to the absolute property unless he should attain to the age of 21 years, or die under that age, leaving issue male.

On an appeal to the House of Lords, this decree

was affirmed, after a long discussion, of which Mr. 12 Ves. 217. Vesey has given a full account. Alienation may be re

18. In consequence of the general admission of strained dur- these modes of settling estates, it became fully esta

blished, that real property might be rendered un-ing Lives in alienable during the existence of a life in being, and being, and 21 years after ; that is, till the son of a tenant for after. life attained his full age. From one life the courts gradually proceeded to several lives in being at the same time ; for this, in fact, only amounted to the life of the survivor ; and as it might happen that a tenant for life, to whose unborn son an estate tail was li. mited, might die, leaving his wife ensient, an allowance has also been made for the time of gestation of a posthumous son.

19. It may therefore be now laid down as a general rule of law, that an estate may be rendered unalienable during the existence of a life, or any number of lives in being, and nine months and 21 years after ; but that all restraints on alienation which exceed that period are void : and in the case of deeds, all the limitations are also void.

20. It should however be observed, that the term of 21 years was probably adopted, because that is the period which must elapse, before an infant can bar an entail. For Lord Alvanley, in the case of Thelus. 4 Ves. 337. son v. Woodford, has said, that the period of 21 years had never been considered as a term that might at all events be added to an executory devise or trust. He had only found this dictum, that estates might be unalienable for lives in being, and 21 years,' merely because a life may be an infant, or in ventre matris : therefore he was clearly of opinion, that expression could not be held to mean more than children in the womb at the testator's death.

21. We have seen that in conveyances deriving This Rule their effect from the statute of uses, springing and springing and shifting uses might be created to arise upon, or after shifting Uses


Tit. 16. c. 5. a limitation in fee simple. And it having been deter

mined, that neither a fine nor recovery, or any other act of the first taker, should defeat such springing or shifting use, it became therefore necessary to ascertain the time when such use should become vested: for otherwise uses of this kind might be limited on such remote contingencies, as to create perpetuities. It was therefore established, that if an estate in fee simple was first limited, the event on which it was to change must be such, that it must either take place, or become incapable of taking place, during the existence of one or more life or lives then in being, and nine months and 21 years after; otherwise it will be

void, as tending to a perpetuity. Davies v.

22. Thus, where husband and wife levied a fine of Speed, Show. Parl.Ca. 104. the wife's estate, to the use of the heirs of the body

of the husband on the wife begotten, remainder to the use of the right heirs of the husband; the limitation to the heirs of the body of the husband was held

to be void as a contingent remainder, for want of a Cont. Rem. preceding estate of freehold to support it. And Mr. Ex. Dev. Fearne observes, there was no sort of ground to 111.

maintain the validity of the limitation to the right heirs of the husband, as a future use, as it was postponed to a general failure of heirs of the body of the husband by the wife, which was too remote.

23. But if there be a limitation of a use to A. and his heirs ; with a. proviso, limiting the estate to B. if A. dies without issue living at the time of his death; or if A. and B. both die without issue living at the decease of the survivor of them ; or if A. has no child who attains the age of 21 ; or if neither A. nor B. have a child who attains the age of 21 ; it is a good proviso: for these events are such, that they must happen, or become incapable of happening, within the period above mentioned.


« SebelumnyaLanjutkan »