statutes and decisions of the following States, it will be found that it has been abolished therein, as a rule of law.1 1 Alabama, Code, 1852, § 1304. - Connecticut, Comp. Stat. 1854, p. 630, § 5; Goodrich v. Lambert, 10 Conn. 448.- Kentucky, Rev. Stat. 1852, ch. 80, § 10; Williamson v. Williamson, 18 B. Mon. 329. - Maine, Rev. Stat. 1857, ch. 73, § 6. - Massachusetts, Gen. Stat. ch. 89, § 12, both in deeds and wills; Richardson v. Wheatland, 7 Met. 169, 172. An estate for life vests in the first taker, and a remainder in fee-simple in the heirs. Michigan, Comp. Laws, 1857, ch. 85, § 28. — Minnesota, Comp. Laws, 1859, ch. 31, § 28.- Mississippi. The rule seems to be abolished as to lands. Powell v. Brandon, 24 Miss. 343, 366.- Missouri, Rev. Stat. 1855, ch. 32, § 7. — New Hampshire. Abolished as to wills. Comp. Stat. 1853, ch. 165, § 5; Dennett v. Dennett, 40 N. H. 500.- New Jersey, Stat. tit. 10, ch. 2, § 10. The rule extends to devises of lands; Den v. Demarest, 1 N. J. 525.-New York, Rev. Stat. 4th ed. pt. 2, tit. 2, art. 1, § 28; Lalor, Real Prop. 96. Those who are heirs of the tenant for life at his death, take by such limitation; Moore v. Littel, 12 Am. Law Reg. 144. Ohio, abolished as to wills. Rev. Stat. 1854, ch. 122, § 53. - Rhode Island, abolished as to wills. Rev. Stat. ch. 154. § 2.- Tennessee, Code, 1858, § 2008. - Virginia, Code, Wisconsin, Rev. Stat. 1858, ch. 83, § 28. 1849, ch. 116, § 11. 4. Of the seisin where the use is created by covenant to stand seised. 1. IF the foregoing chapters upon Uses and Remainders have accomplished what was proposed by them, the reader will be prepared to understand the rules which apply to uses which are, by their limitation, to arise or be executed at a period subsequent to their creation. Mr. Sugden divides these into three classes, future or contingent uses, springing uses, and shifting or secondary uses, and to these it has seemed fit to devote a separate chapter in the arrangement of the topics of this work. 2. The first of these are, properly, uses limited to take effect as remainders, for remainders, whether vested or contingent, may be VOL. II. 1 Gilbert, Uses, Sugd. ed. 152, n.; 1 Prest. Abst. 105. 24 limited by way of sue as well as at common law, and, in this country such is the mode in which they are ordinarily, if not always, limited.1 This, of course, implies the existence of a particular estate upon which the remainder depends, created at the same time and by the same instrument as the remainder, as in case of remainders created at common law. In this respect they differ, as will be shown, from springing uses and executory devises, and courts always give to future contingent estates the character of remainders, where[*277] ever the terms, in which they are limited, will admit of such a construction. In the language of Lord Mansfield, "it is perfectly clear and settled, that where an estate can take effect as a remainder, it shall never be construed to be an executory devise or springing use." And it is stated by Mr. Sugden, that "it appears to be now well settled, that where an estate is limited previously to a future use, and the future use is limited by way of remainder, it shall be subject to the rules of common law, and consequently, if the previous estate is not sufficient to support it, shall be void." 2 3. It is hardly necessary to repeat here what these rules are, except that there is the same necessity of a freehold to precede and sustain a freehold contingent remainder, when limited by the way of use, as there is at common law. There must be in some one a seisin, ready to be executed to the use the moment the use vests by the happening of the contingency, in some known ascertained cestui que use in esse, or the remainder must fail. The question whether there is such a seisin and in whom it is in certain cases, has been previously discussed, and its examination is now resumed for the purpose of illustrating its bearing upon the subject under consideration. 4. To do this, an instance may be assumed of a contingent remainder limited by either of two different forms of conveyance which derive their validity from the statute of uses, covenant to stand seised, or feoffment to use. In the first, it will be remembered, the conveyance takes effect without a transmutation of possession of the premises conveyed. In the other, such a transmutation takes place. Sup 1 4 Kent, Com. 258. 2 Goodtitle v. Billington, Dougl. 758; Gilbert, Uses, Sugd. ed. 165, n.; Co. Lit. 217; Adams v. Savage, 2 Ld. Raym. 854; Fearne, Cont. Rem. 284, and Butler's note; 2 Sharsw. Bl. Com. 175, note for American Cases; Burt. Real Prop. § 797; 1 Prest. Abst. 108; Wilson, Uses, 47. 8 Gilbert, Uses, Sugd. ed. 167, n., 286. * Ante, p. *263. pose, then, a person covenants to stand seised to the use of A for life, remainder to his first and other sons in tail, while he has no son, remainder to B in tail, remainder to the covenantor in fee. Keeping in mind the rule that there can be no use upon a [*278] use, it is not difficult to discover in these limitations all the requisite elements for giving effect to the several estates thereby created. The seisin being in the covenantor, is, in the first place, exe cuted in A the tenant for life to whom the first use is limited, and as B is a known person in esse, the use in him, as a remainder, is vested and executed, whereby both A and B have a legal estate in them by force of the statute, the one in possession, the other in remainder. But as the seisin in A cannot serve the use in the son of A, to whom the contingent remainder by way of use is limited, so as to give him a legal estate in remainder when he shall come in esse, such seisin is to be sought elsewhere, and is found in the covenantor himself, in whom the seisin originally was, and who has the reversion in fee of the legal estate.1 5. To illustrate the application of the principle requiring a seisin to be in some one to serve the use to cases of the creation by way of use of a contingent remainder by a feoffment to use, lands were conveyed to one to the use of A for life, remainder to his first and other sons in tail, he then having no son, remainder to Bin fee. The use, as in the preceding case, became executed in A and B, and the use to B was a vested remainder for the reasons before stated. But when the question was made as to the seisin which was to support the contingent remainder in the son of A, and to be executed and become, with the use when vested, a legal estate in him, the difficulty was to ascertain the person in whom it was to be found. It was said not to be in the feoffor, for he parted with his seisin when he made the feoffment. It was said not to be in the feoffee, because the statute at once took the seisin from him and united it with the use in A, and it could not be in A, for, as it had become united with his use as cestui que use for life, a use could not be limited upon a use in favor of the contingent remainder-man.2 6. A vast amount of speculation and ingenious subtlety has been expended by judges and writers to get at some clue by which to reconcile and explain this seeming legal solecism of a 13 Prest. Conv. 400. 2 Gilbert, Uses, Sugd. ed. 293–296. [*279] *seisin which no one can find, though existing somewhere, and both operative and efficient. By some the seisin was thought to be in a state of suspended animation, or in technical phrase, that it was in nubibus, waiting for the occasion to arise when it should become active, in order to give effect to the limitations which depended upon it. Others thought that although the statute drew out of the feoffees the seisin which passed to them by the feoffment, and executed it with the use in the first taker of the life-estate, enough of seisin was left in him to serve the future contingent uses as they arose. To this shadowy something they gave the name of scintilla juris, a topic which fills an important place in the early doctrine of future contingent estates.1 A more rational view is taken of this subject by modern writers, especially Mr. Sugden and Mr. Hayes, whose notions are approved by Chancellor Kent and Mr. Coventry. The language of the former is: "The true construction of the statute appears to be, that, upon a conveyance to uses operating by trasmutation of possession, immediately after the first estate is executed, the releasees (feoffees) to uses are divested of the whole estate, the estates limited previously to the contingent uses take effect as legal estates, the contingent uses take effect as they arise, by force of and relation to the seisin of the releasees (feoffees) under the deed, and any vested remainders over take effect according to the deed, subject to open and let in the contingent uses." This, if established, would overthrow the fiction of scintilla juris, and with it the necessity of an actual entry to revive contingent uses, and would, in many other respects, place contingent uses on the footing of contingent remainders.2 Mr. Hayes uses this language: "This scintilla is a thing of which neither the statute nor the common law affords us an idea. It appears to be an invention to get rid of an assumption."-" But though we may be at a loss to discover how the seisin can return, much less partially return to the feoffees, &c., for the purpose [*280] of serving a contingent use, there is no difficulty in suppos ing it may retain the impression of that use and be transferred, subject to all the confidences which attached upon it during its momentary residence in the feoffees. The seisin is presently executed 1 Brent's case, Dyer, 340; Chudleigh's case, 1 Rep. 120; Sugd. Pow. 20-48; 4 Kent, Com. 238-247; Gilbert, Uses, Sugd. ed. 296, note. 2 Gilbert, Uses, Sugd. ed. 297, n.; 4 Kent, Com. 244; Watk. Conv. 244, Coventry's note. |