A shifting use is where a use has been properly created, and then upon the happening of some specified event the interest first created passes away from the person enjoying it, and vests, partially or wholly, in some other person. For instance, if lands are given to A. and his heirs to the use of B. and his heirs, but if B. die in the lifetime of A. then to the use of C. and his heirs. Upon the death of B. in A.'s lifetime the use is said to shift to C. Again, a provision is often made by way of the creation of a shifting use for an estate shifting away from the person to whom it is first. given to some other member of the family on the acquisition of some other estate. Thus by the aid of shifting uses the old rules as to the creation of future estates by way of remainder may be evaded, a future freehold interest can since the Statute be created by way of shifting use to take effect without waiting for the determination of a particular estate, and an estate in fee simple can by the same method be made to pass from one person to another. Nor can any alienation or disposition of the lands by the first cestui que use affect the interest of the person who, upon the happening of the specified contingency, is entitled to the use of the lands.

Springing uses differ from shifting uses merely in the fact of their arising by virtue of the mode of their creation as new uses, and not operating by way of shifting of a use already created from one person to another.1

Examples of springing uses occur-upon a bargain and sale to another after seven years, or after the death of the bargainor, or upon any other specified future event. Also upon a covenant to stand seised to the use of another, after the covenantor's-death, or to the use of the heirs or heirs of the body of another after his death. So upon a conveyance operating to transfer the legal estate, with a declaration of the use to A. and his heirs after four years, or after the death of the grantor, or to the use of the heirs of A., after the death of A., such uses are good springing But though the uses are deferred, the conveyance of the seisin to serve the uses must be immediate, because a freehold cannot be conveyed in futuro by any mode of conveyance operating only at common law.-Leake, Land Law, 350.

uses.

Future or contingent uses, or, as they might be called, uses limited as remainders, present somewhat different features, though the importance of the distinction is much diminished by the recent Act 40 and 41 Vict., c. 33. By a series of decisions a rule was established that if a limitation could be regarded as a remainder it should not be regarded as a springing or shifting use. Nor was this rule affected by the consideration that the use might be void if the stringent requirements which the common law demanded in the case of contingent remainders were not complied with. Thus, if it unfortunately happened that the conveyancer, in drawing the deed, expressed the conditions on which the future use was to arise in such a way that the future estate could be construed as a remainder, and if, at the same time, such remainder was contrary to the old common law rules affecting remainders, which had long ceased to be founded on any substantial reason, the future interest was invalid in consequence of this defect in point of law. For instance, if a conveyance was made to B. and his heirs to the use of A. for 10 years, remainder to the use of the heirs of J. S., the remainder was void, being a contingent remainder limited upon an estate for years. The fact that if the limitation did not happen to fall within the definition of a remainder, it might be good as a springing use, was utterly disregarded. Perhaps in no point was the extreme technicality of the rules relating to uses more conspicuous. A partial remedy for this injustice in the case of contingent remainders created by instruments executed after August 2, 1877, has been provided by the Statute 40 and 41 Vict., c. 33, by which it is provided that every contingent remainder in tenements or hereditaments of any tenure which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a

springing or shifting use or executory devise or other executory limitation.

SUG. GILB. USES, 176. The result of the authorities seems to be that to create a good springing use it must be limited at once independently of any preceding estate, and not by way of remainder, for, if it be, it shall be construed a contingent, and not a springing use, and shall be subject to the laws which govern contingent remainders. By a train of decisions springing uses are thus confined within very narrow limits, and future or contingent uses are placed on exactly the same footing with contingent remainders.— Sugden's note.

GRAY, PERPETUITIES, § 58. Is a Contingent Use good although preceded by an Estate for Years? In two cases, Adams v. Savage1 (1703), and Rawley v. Holland2 (1712), it was held that a use limited after an estate for years to a person not in esse, was bad as a contingent remainder unsupported by a freehold.

$ 59. The soundness of these two decisions is very questionable. It is well settled that if a future limitation can be construed as a remainder it must be so construed, and not as a springing use; but it is a very different thing to say that a good springing use must be construed into a bad remainder, because it is preceded by an estate which is insufficient to support a remainder. To construe a limitation as a remainder, if it can be a remainder, is one thing; but to insist upon construing it as a remainder, when it cannot be at remainder, seems the very wantonness of destruction. In fact, an estate after an estate for years, though commonly called a remainder, is not strictly so; a remainder is an estate after a freehold; a remainder-man, so called, after an estate for years, has the present seisin, and the reason why at common law an estate cannot be given to a person not 12 Ld. Raym. 854; 2 Salk. 679.

22 Vin. Ab. 189; 2 Eq. Cas. Ab. 753.

in esse after an estate for years is, that there is no one to take the present seisin, and that a freehold cannot be granted in futuro. But, by way of use, a freehold can be granted in futuro.

§ 60. The cases of Adams v. Savage and Rawley v. Holland have, accordingly, been much criticised. But, further, they must be considered as overruled by cases in which it has been repeatedly held that a future contingent devise after an estate for years is a good executory devise, and not a bad remainder. There is no intelligible distinction in this respect between springing uses and springing executory devises, and if Adams v. Savage and Rawley v. Holland have not been formally overruled, it is in all probability because the question has not arisen under a deed, as it has under wills. The statement may therefore be ventured that a contingent use is good although preceded by an estate for years. 1 Gore v. Gore, 2 P. Wms. 28 (1722).

CHAPTER II.

EXECUTORY DEVISES.

2 BL. COM., 172-175. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: 1. That it needs not any particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heirs at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder, without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise. For, since by a devise a freehold may pass without corporal tradition or livery of seisin (as it must do, if it passes at all), therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in praesenti. And, since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.