reversion, and another the life-estate on which the reversion depends, and a use results, it is to them in the same character and quality. Or if A and B join in conveying B's land, and a use results, it is to B alone.1

47. If a use is limited in terms after another use to the same effect as it would have resulted in favor of the grantor, the grantor is in of his old use, and such limitation is void. Thus if the limitation were to the use of one and his heirs, during the life of the grantor, to the use of the grantor's heirs generally, after his death his heirs would not take by purchase as remainder-man, but by descent as reversioners.

*

And the distinction between this and a former prop- [*136] osition, where the limitation over was to the use of the heirs of the grantor's body, will be obvious upon reflection, since, in the latter case, the heirs take a different estate from that of their ancestors, and take a contingent remainder.2 And the same principle is applied to cases of devises to heirs at law. 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.1

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.

1 1 Prest. Est. 195; Beckwith's case, 2 Rep. 58; 1 Cruise, Dig. 373.

2 Shelley's case, 1 Rep. 95; Co. Lit. 22 b; Else v. Osborn, 1 P. Wms. 386; Fenwick v. Mitforth, F. Moore, 285; Sand. Uses, 133; Watk. Conv. White's ed. 1838, 172, n.; Co. Lit. 22 b, n. 134; Id. n. 135; Tippin v. Cosin, Carth. 273, Le Countee de Bedford's case, F. Moore, 720.

• Wms. Real Prop. 181; 1 Jarm. Wills, 67; Stat. 3 & 4 Wm. IV. c. 106, § 3. 4 Le Countee de Bedford's case, F. Moore, 720; Co. Lit. 22 b; Read v. Erington, Cro. Eliz. 321.

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 reconvey 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 [*137] the competency of * parol evidence to control a re

sulting 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; 2 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; 3 though, as heretofore stated, where 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.5 Nor will a use result to one man where another has paid the consideration for the conveyance.

1 Winnington's case, Jenkins, 44.

2 Capen v. Richardson, 7 Gray, 369; Walker v. Locke, 5 Cush. 90; Browne, Stat. Frauds, § 83 et seq.

Botsford v. Burr, 2 Johns. Ch. 405.

4 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 v. 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.

5 Graves v. Graves, 9 Foster, 121.

6 Capen v. Richardson, 7 Gray, 370.

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 feofment 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 feofment in the * feoffee [*138] altogether. So 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.2

SECTION III.

OF USES RAISED BY DEVISES.

1. The doctrine of uses as applied to devises.

2.

As to presumption of a resulting use in case of a devise.

3. Of the effect of the failure of a use in a devise.

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,

11 Cruise, Dig. 376; Le Countee de Bedford's case, F. Moore, 720; Tud. Lead. Cas. 258; 1 Prest. Est. 195.

2 Adams v. Savage, 2 Salk. 679; Rawley v. Holland, 2 Eq. Cas. Abr. 753; 1 Prest. Est. 195; Sand. Uses, 142.

the statute would execute it at once in B. So a devise by a testator of his lands to his executor in trust for his brother and wife, that he should permit them to occupy the same during their lives, is an executed use for life in husband and wife. 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. 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 [*139] trust, the legal 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."

*

66

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.7

3. But if a person be merely named as a devisee to uses,

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 Upham v. Varney, 15 N. H. 464.

32 Jarm. Wills, 197.

4 Co. Lit. 271 b, n. 231, § 3, pt. 5; Sand. Uses, 242; Broughton v. Langley, 1 Lutw. 823; Bagshaw v. Spencer, 2 Atk. 576.

5 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. 253; Upham v. Varney, 15 N. H. 467; Norton v. Leonard, 12 Pick. 152; Ayer v. Ayer, 16 Pick. 327; Braman v. Stiles, 2 Pick. 460; Wood v. Wood, 5 Paige, 596.

6 Doe v. Collier, 11 East, 377.

7 Gilbert, Uses, 162; Sand. Uses, 242; Vernon's case, 4 Rep. 4 a; 1 Lutw 823; 1 Cruise, Dig. 378.

and the use fails, there will be a resulting use to the heir of the devisor. 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.2

SECTION IV.

OF DESTROYING OR SUSPENDING USES, AND OF THEIR APPLICATION.

1. How uses may be destroyed or suspended.

2. Of revoking uses under powers.

8. Of the source of the seisin in executory uses.

4. Importance of uses in conveyancing.

5. Of springing uses, &c., in marriage settlements.

6. Of the clauses as to consideration and uses in deeds.

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 feofment to the use

of B and * the wife he shall marry, and the feoffees [*140] make a feofment 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 effect if the feoffee to use were disseised before the contingent use vested, with this difference, that, if the feoffee were to re-enter and regain the seisin, the old use would revive, so that, instead of being destroyed, it would only have been suspended. So if the feofment 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.,

1 Ellis Hartop's case, 1 Leon. 254; Gilbert, Uses, Sugd. ed. 486, note.

2 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.