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Independent of statutes upon this subject, devises to heirs, of the same estates as they would have taken by descent were void, and the heirs took as heirs, and not as devisees or purchasers. But this is now altered in England by statute. So, upon the same principle, if one were to limit a use to his son and the heirs of his body, the son would take an estate tail as a purchaser. But if there had been a limitation over of a use to his own heirs by way of remainder, his heirs would take this as a resulting use and not as a remainder.2
48. The reader will already have perceived that the doctrine of a resulting use rests upon the presumption of equity, that the owner of land does not intend to part with the same without a consideration, in the absence of any evidence of such intention contained in the deed or instrument of conveyance. It may now be added, that like legal presumptions, this may be controlled by evidence that it was the intention of the grantor that the use should go with the legal estate. This evidence may be derived from circumstances or from positive evidence, and parol evidence is competent to establish such an intention. Thus, where A enfeoffed B, upon condition that B should re-convey to A for life, with remainder to the oldest son of A, it was held that no use resulted to A, but that the whole estate vested in B, as he could not, otherwise, convey an estate to A
and to his son. And in connection with the competency of [*137] *parol evidence to control a resulting use, it may be added,
that the seventh section of the statute of frauds, requiring declarations or creations of trust or confidence, &c. to be in writing, applies to uses and trusts declared or raised in favor of persons other than the one declaring or creating them, and the statute expressly excepts from its operation trusts or confidences which arise or result by the implication or construction of law. And accordingly where the plaintiff set up a resulting trust, verbal evidence of his admission that the whole land was the defendant's and that he had nothing to do with it, was held competent, though, as heretofore stated, where
1 Wms. Real Prop. 181 ; 1 Jarm. Wills, 67; Stat. 3 & 4 Wm. IV. c. 106, $ 3.
3 Le Countee de Bedford's case, F. Moore, 720; Co. Lit. 22 b; Read v. Erington, Cro. Eliz. 321.
8 Winnington's case, Jenkins, 44.
* Capen v. Richardson, 7 Gray, 369 ; Walker v. Locke, 5 Cush. 90; Browne, Stat. Frands, $ 83 et seq.
6 Botsford v. Burr, 2 Johns. Ch. 405.
there is a use declared by the instrument conveying the estate, it cannot be negatived or controlled by parol evidence. Nor will the law imply a use in favor of the grantor if the deed limits the estate to the use of the grantee, though it be made without any consideration. Nor will a use result to one man where another has paid the consideration for the conveyance.3
49. According to the principles above laid down, where the owner expressly limits a use to himself, it precludes the idea of his intending to reserve to himself a different use, and therefore the law will not raise one by implication which is inconsistent with the one so limited. Thus where one makes a feoffment to his own use for forty years, without limiting any other use, the effect will be to leave the inheritance in the feoffee, as otherwise the use for the forty years being expressly limited to the feoffor, if the remainder is his by implication or as a resulting use, it would be executed in him, and the term as a lesser estate, would be merged in the fee, and thereby defeat the feoffment in the *feoffee altogether. So [*138] where the use limited by the feoffor in his own favor, was for a term of years, with a remainder to take effect after his death, there would not be any use resulting or raised by implication, in his favor for life, by reason of the express limitation for years.5
1 Lewis v. Lewis, 2 Rep. in Chanc. 77; Lewin, Trusts, 27 ; 1 Spence, Eq. Jur. 451, 511; St. John v. Benedict, 6 Johns. Ch. 116, 117. And for the general principle of proving or controlling the intention of a grantor as to a use resulting, &c., see Walker r. Walker, 2 Atk. 98; Lake v. Lake, Ambl. 127; Sand. Uses, 104; 1 Cruise, Dig. 375; 1 Spence, Eq. Jur. 511; Browne, Stat. Frauds, \ 92 ; 3 Sugd. Vend. & P. Hamm. ed. 260; Roe v. Popham, Dougl. 25; Boyd v. M'Lean, 1 Johns. Ch. 582 ; Peabody v. Tarbell, 2 Cush. 232; Altham v. Anglesea, per Holt, C. J. 11 Mod. 210 ; Mass. Gen. Stat. c. 100, $ 19; Tud. Lead. Cas. 258 ; Lamplugh v. Lamplugh, 1 P. Wms. 112.
Graves v. Graves, 9 Foster, 121. Capen v. Richardson, 7 Gray, 370. * 1 Cruise, Dig. 376; Le Countee de Bedford's case, F. Moore, 720; Tud. Lead. Cas. 258; 1 Prest. Est. 195.
5 Adams v. Savage, Salk. 679; Rawley v. Holland, 2 Eq. Cas. Abr. 753; 1 Prest. Est. 195; Sand. Uses, 142.
OF USES RAISED BY DEVISES.
1. The doctrine of uses as applied to devises.
1. Thus far uses have been treated of as they relate to conveyances of land inter vivos. But though the statute of wills was not passed until the 32 Hen. VIII., estates created by will are governed by the rules derived from the statute of uses, the legal estate being transferred to the use in the same mode as by the operation of that statute. Thus, if there were a devise simply to A to the use of B or in trust for B, the statute would execute it at once in B. But if it had been to A and to his use, to the use of or in trust for B, it would be a use upon a use, and the legal estate would stop in A, but the equitable estate or trust would be in B.2 Whether the devise shall take effect as an executed use, or as a trust, depends upon the intention of the devisor, as expressed by the instrument creating the devise. If there is any active duty imposed upon the devisee of the legal estate, in carrying out the purposes of the devise in favor of the cestui que use, which requires him to be vested with the legal estate, it becomes a trust in the first taker, and the cestui que
use is, in modern language, a cestui que trust, the legal [*139] *seisin and estate vesting in the trustee. In the cases
supposed, it makes no difference in the effect, whether the word “use ” or “trust " be used by the devisor, in speaking of the equitable interest intended to be created.
1 Tud. Lead. Cas. 268; Gilbert, Uses, Sugd. ed. 356; Sand. Uses, 243; Co. Lit. 271 b, n. 231, $ 3, pt. 5; 2 Jarm. Wills, 196.
2 2 Jarm. Wills, 197.
8 Co. Lit. 271 b, n. 231, 3, pt. 5; Sand. Uses, 242; Broughton v. Langley, 1 Lutw. 823; Bagshaw v. Spencer, 2 Atk. 576.
4 Doe v. Field, 2 B. & Ad. 564; Sand. Uses, 244 ; Tenny v. Moody, 3 Bing. 3; Doe v. Homfray, 6 A. & E. 206; Tud. Lead. Cas. 268; Ellis Hartop’s case, 1 Leon.
5 Doe v. Collier, 11 East, 377.
2. But the doctrine of uses resulting to the one who creates them, where there is no consideration or express declaration of the use, does not apply to cases of devise, for a devise always implies a consideration, and the use will always be in the devisee, unless the contrary appears in the devise itself, and that what is thereby given, is not to be to the use of the devisee.1
3. But if a person be merely named as a devisee to uses, and the use fails, there will be a resulting use to the heir of the devisor.2 But if the limitation to the use be void, whether the devisee shall be seised to the use of the devisor and his heirs is doubtful.3
OF DESTROYING OR SUSPENDING USES, AND OF THEIR APPLICATION.
1. How uses may be destroyed or suspended.
1. Uses cannot be extinguished, destroyed, or suspended, if they have once been actually executed by the statute, since by such execution, the union of the seisin and use has created a legal estate. But contingent uses may be extinguished or suspended. Thus, if A makes a feoffment to the use of B and *the wife [*140] he shall marry, and the feoffees make a feoffment over before the marriage of B, the contingent use to the wife is gone; the seisin that was to sustain it, and by being united with it was to give effect to the use, is no longer in the feoffee. The same would be the
1 Gilbert, Uses, 162; Sand. Uses, 242; Vernon's case, 4 Rep. 4 a; 1 Lutw. 823; i Cruise, Dig. 378.
2 Ellis Hartop's case, 1 Leon. 254; Gilbert, Uses, Sugd. ed. 486, note.
3 Gilbert, Uses, Sugd. ed. 486, and note. In Propr. Brattle Sq. Church v. Grant, 3 Gray, 156, it was held, and many cases were cited to sustain the doctrine, that if there were a devise of a fee with an executory limitation over, upon the happening of some event which was to defeat the first and give effect to the second devise, and the. devise over was void, for remoteness, for instance, it left the first devise absolute.
effect if the feoffee to use were disseised before the contingent use vested, with this difference, that if the feoffee were to reēnter and regain the seisin, the old use would revive, so that instead of being destroyed, it would only have been suspended. So if the feoffment be to the use of feoffor for life, remainder to the use of the heirs of J. S. and the feoffor die before J. S., the contingent remainder is lost for want of a particular estate to sustain it. So where the estate out of which the uses arise is gone, the uses are gone also, as where a lease was made to A for life, to the use of B for life, and A dies, the estate in B is gone. This more naturally perhaps belongs to the subject of contingent remainders, which is yet to be treated of, but it seemed proper to notice it briefly in passing, though it may
be stated, that no conveyance under the statute of uses in this country, or by deeds authorized by statute here, has the effect to defeat contingent remainders.
2. It has already been stated, and will be more fully considered under the head of Powers, that uses are often so created as to be revocable by the grantor, who creates them, or some third person by him named in the instrument creating them. It is only necessary to observe, in this connection, that if this power is properly executed, the old uses ipso facto cease.3
3. Although it may be little more than a recapitulation, it may be proper to add, that the seisin which is to serve the uses in giving effect to conveyances under the statute of uses, in case these are by feoffment, is in the feoffee to use, and passes from him and is united with the use in the cestui que use. In case of bargain and sale, and
covenant to stand seised, the seisin is in the bargainor or [*141] covenantor, and passes from him * directly to the bargainee
or covenantee, the moment a use has been raised in favor of the latter as cestui que use, and becomes united therewith. In case of lease and release, the possession passes by the statute to the lessee, the seisin that serves this temporary use remaining in the lessor or bargainor for the term, and then the seisin and reversion pass by the common law, by the release of the lessor to the lessee, who is by the statute in possession, and thus completes his estate.
13 Wood, Conv. 296; Chudleigh's case, 1 Rep. 126.
2 Dennett v. Dennett, 40 N. H. 498; Gilbert, Uses, Sugd. ed. 232, n. 312; 2 Sand. Uses, 54; Den v. Crawford, 3 Halst. 107.
8 3 Wood, Conv. 297. 4 i Greenl. Cruise, Dig. 325, note; 2 Sand. Uses, 63.