drawn, and the cunning manner in which he arranged its [295] provisions, so as to defeat it or let it stand good as he might choose, will be perceived by recurring to its terms, and remembering and applying the idea advanced in Chudleigh's case, that the uses so far as contingent, must have an actual seisin in some one, answering to a feoffee's, to sustain them. In the first place, the conveyance was made by covenant to stand seised on his part, and the limitations derived their force and effect from the seisin in himself, for he covenanted to stand seised, to the use of himself for life, remainder to the use of his wife for life, remainder to the use of his daughter for life, remainder to her first and other sons in tail, reversion to his own right heirs. This gave an estate to him for life in possession, a vested estate for life in remainder to his wife, and the same to his daughter for life in remainder, with contingent uses by way of remainder to unborn sons in tail, reserving to himself, after and above all these limitations, a reversion in fee. Lord Coke then made a deed of grant of this reversion to a third person without consideration, and in his deed recited the foregoing settlement. He then made a feoffment in fee of the lands thus settled, with livery of seisin. As all the estates but the reversion were by way of use, it was the seisin that was in him as covenantor and reversioner which was to support them, and if this was destroyed, so far as these were contingent, they would be defeated. But as his grant of this reversion was to one having notice, it remained subject to the settlement, and the seisin of this grantee was that out of which these uses were to arise in the same way, as from the seisin which Lord Coke had had before the grant. But as he was also in possession for life, the effect of his feoffment was not only to destroy his own seisin and estate, but to make a discontinuance of that of his grantee the reversioner, together with the estate of the wife and daughter. But it left a right of entry in the daughter. But as this discontinuance was a forfeiture of the father's life-estate, and that of his wife during coverture, it gave a right of entry in the daughter as holder of the next vested estate, and a contingent right of entry to the wife, dependent on her surviving her husband. The former was sufficient to support the contingent use to the daughter's first son, provided there should be a seisin to serve such use when it should arise. As it [*296] turned *out, Lord Coke's wife survived him, and having, by the right of entry which she thereby acquired, entered upon the estate, reinstated the divested estates, including that of the grantee of the reversion, out of whose seisin the contingent uses were to arise, and the limitations all took effect in their order. If, however, Lord Coke had made his feoffment before making the grant of the reversion, the effect would have been to have worked a disseisin and divested all the then subsisting estates, including the estate or seisin out of which the contingent uses were to arise, and which was to serve them. For as there was no privity between his feoffee, his wife or daughter and his heirs, whose seisin alone could support their contingent uses, no entry by the wife or daughter could restore the estate and seisin of Lord Coke or his heirs, contrary to his own feoffment, since he himself could not have entered against such a feoffment. Now the cunning part of the arrangement, which was defeated by his dying while things were in the above state, was this. If he had seen fit to sustain the remainders, he would have suppressed the feoffment, and only have shown the grant of the reversion, to counteract the feoffment, if that should be set up by any one. Whereas if he had wished at any time to destroy the remainders, he would have suppressed the grant of the reversion and left the feoffment to have its effect. As he left both these in force, it gave rise to the action above named, and an indefinite amount of refinement and ingenious discrimination upon a rule of law too subtle to be apprehended by ordinary minds.1 18. There is what may be deemed to be an exception to the general rule, that no act of the holder of prior estate can operate to bar a springing or shifting use when it shall arise, and that is, if the prior estate be an estate tail. In that case the tenant in tail, by suffering a recovery, may defeat the use which awaited the contingent event which was to have determined such estate. Thus where the limitation is to A and his heirs, to the use of B in tail, pro- [*297] vided that if C return from Rome, then to D in fee. Now D's interest is a shifting use, and yet if B were to suffer a recovery, he would bar the limitation over, if done before C's return from Rome.2 1 Biog. Dict. Lond. 1798, "Coke "; Wegg v. Villers, Rolle, Abr. 796; Fearne, Cont. Rem. 295-298; Sugd. Pow. 32; Gilbert, Uses, 194-197; Gilbert, Uses, Sugd. ed. 395, n. See, as to the general doctrine of the above case, Lloyd v. Brooking, Ventr. 188. 2 Tud. Lead. Cas. 263; Wilson, Uses, 64; Sand. Uses, 153; Fearne, Cont. Rem. 17; Gilbert, Uses, Sugd. ed. 157, n. 19. For this reason, shifting uses limited after estates tail are not within the rule of law against perpetuities, as it is called, which was made to prevent the locking up of estates for an undue period of time, because the tenant in tail, under such circumstances, has full power of defeating such a use and of converting it into an alienable estate, instead of its being held as not susceptible of alienation.1 20. So if a future limitation by the way of use can take effect as a remainder, no remoteness of time or event, however great, can affect the validity of such a limitation.2 3 21. The time within which a springing or shifting use must be limited to take effect, in order to be valid within the rule against perpetuity, is, by the English law, and that of such of the States as have not adopted special rules upon the subject, a period within a life or lives in being and twenty-one years and a fraction afterwards. If the time at which it is to take effect may exceed that period, it will be a void limitation. But it is enough that the freehold is to vest within that time, though it may not come to be enjoyed till long afterwards. Thus a limitation to A for two hundred years, with remainder to the use of the unborn son of B in fee, would be good as a springing use; first, because being limited after a term for years, it could not take effect as a contingent remainder; second, because the event on which the remainder must vest, if ever, must happen within the prescribed term, as it must be within the fraction of a year after a life in being.* 1 Gilbert, Uses, Sugd. ed. 157, n.; Wilson, Uses, 74; Goodwin v. Clark, 1 Lev. 35. 2 Cole v. Sewell, 4 Dru. & Warr. 28; ante, p. *235. 8 Co. Lit. 271 b, n. 231, § 3; Cadell v. Palmer, 1 C. & Fin. 372; Lewis, Perpet. 160; Wilson, Uses, 148, 721; Proprs. Brattle Sq. Church v. Grant, 3 Gray, 146, 153. + Wilson, Uses, 68, 71; Gore v. Gore, 2 P. Wms. 28. There are statute provisions in several of the States prescribing the time within which future estates must vest and become the subjects of alienation, which will be found mentioned at the close of the chapter on Executory Devises. CHAPTER VI. SECT. 2. SECT. 3. SECT. 4. POWERS. SECT. 1. Of their nature and classification. Of Suspending or Destroying Powers.. Powers applied both in American and English Law. SECT. 5. By whom and how a Power may be executed. SECT. 6. SECT. 7. Of Excessive or Defective Execution of Powers. SECT. 8. How far Equity aids the Execution of Powers. *SECTION I. OF THEIR NATURE AND CLASSIFICATION. 1. Powers defined. 2. Powers derived from the statute of uses. 3. Their analogy to springing and shifting uses 4. How derived from the statute of uses. 5. Powers illustrated and their terms defined. 6. Powers, how executed through the statute of uses. 7. Power and estate may be in the same person. 8. A use created upon a use by a power is a trust. 9. Classification of powers. Powers appendant. 10. Powers in gross. 11, 12. Powers appendant and in gross illustrated. 13. Powers, how affected by conveyance of the land. 14. Powers general, and special or particular. 15. How far every power is one of appointment and revocation. [*300] 1. BEFORE proceeding to consider the law of executory devises, and with it what remains to be distinctively said of springing and shifting uses, it seems proper to treat of another mode of changing and affecting the limitation of estates, which is derived from the statute of uses, and is intimately connected with this last-mentioned class of uses, and that is, by what are in law called Powers, "which are methods of causing a use with its accompanying estate to spring up at the will of a given person. "1 2. Powers, as thus applied, do not come within the popular meaning of the term when used in reference to acts done by one as the agent or attorney for another.2 They derive their origin and character directly from the doctrine of uses. It will be recol[*301] lected, that prior to the statute of 27 Henry VIII., any *one upon parting with his legal seisin and estate to the feoffee to whom he saw fit to transfer it for the purpose of raising a use out of the same, if he did not then desire to make a full and final disposal of the use, might reserve to himself the right of declaring, at a future time, to whose use the lands should be held, or to whom the feoffee should convey them, which right he might exercise, though by so doing he might defeat a present use which he had declared at the time of making the feoffment, or he might, when making such feoffment, provide for such a future disposition of the use by some third person, and that the feoffee or trustee should convey the lands as such third person should appoint. At common law, however, no one could reserve to a stranger a power of entering upon land and defeating the title of one in possession thereof, for a condition broken.3 3. This is the principle from which are derived springing and shifting uses, by which, as previously explained, one conveying land might provide by the same instrument, that, upon the happening of some future event, a use should spring up, or one thereby declared, should shift from one person to another, without requiring any other act to be done in the way of transfer, the appointment by the one having the power, being in effect tantamount to the happening of the event which was to cause the future use to spring up or shift.1 4. In giving effect to these, chancery further seized upon that expression in the statute of uses by which the estate of the feoffee 1 Wms. Real Prop. 245. 2 Hunt v. Rousmaniere, 8 Wheat. 174; Combe's case, 9 Rep. 76. 8 Sugd. Pow. 4; Cornish, Uses, 19; Co. Lit. 237, a. 41 Spence, Eq. Jur. 455; Bac. Law Tracts, 314; Cornish, Uses, 19; Co. Lit. 271 b, note 231. |