the feoffees, or releasees to uses, and thereby enable them to support the contingent springing or shifting use when it arises. There must be either an actual seisin to support the contingent use, or this possibility of entry or scintilla ; and if such seisin or scintilla be devested before the use aries, as was the fact in Chudleigh's case, the use is totally destroyed.a

This view of the subject has been met and opposed by some of the most distinguished writers on real property at the present day.

Mr. Fearne questions the existence and application of the doctrine of the scintilla juris to that extent, and denies the necessity of actual entry, any more in the case of contingent uses, than in the case of contingent remainders, in order to regain the requisite seisin to serve the contingent uses. He denies the necessity of actual entry by any person to restore a contingent use, so long as a right of entry subsists in the cestui que use, and the scintilla juris, if of any real efficacy, must be competent to serve contingent uses without the necessity of actual entry. The whole controversy relates to the common law conveyances, as feoffments, releases, fines, and recoveries, which operate by transmutation of possession, and under which the fee simple vests in the feoffees, and the uses arise out of their seisin. Mr. Sugden takes a higher and bolder stand, and, by a critical review of all the cases, puts to flight this ignis fatuus of a scintilla, and shows that it never had any foundation in judicial decisions, but was deduced from extrajudicial dicta. He considers that the fiction operates mischievously, by requiring actual entry to restore the devested estate, or a feoffee to uses actually existing when the contingent uses arise. The sound construction of the statute

a Preston on Estates, vol. i. 159. Cruise's Dig. tit. Remainder, eh. 5. sec. 3. 5. ch. 6. sec. 37. 39.

b Fearne on Rem. 377-380.

regres, that limitations to uses should be construed in ke manner as limitations at common law. Thus, if by feoffment, or release to some third persons, (who are generally strangers in interest to the estate,) or by covenant to stand seised, or perhaps by bargain and sale," a use

a Mr. Sugden, in his Treatise on Powers, p. 38. says, that covenants to stand seised are, at this day, wholly disused. This I should not have supposed from the great use of them in the precedents, and Lord Ch. J. Pollexfen, in Hales v. Risley, (Poller. Rep. 383.) speaks of covenants to stand seised, as one of the usual modes of raising uses in marriage settlements. It was said by Newdigate, J. in Heyns v. Villars, (2 Sid. Rep. 158.) that a contingent use could not be raised by bargain and sale; and Mr. Sugden is of the same opinion, because a bargain and sale requires a consideration, and the intended cestui que use, not in esse, cannot pay a consideration, and a consideration paid by the tenant for life, would not extend to the unborn son. (Gilbert on Uses, by Sugden, p. 398.) Lord Ch. Baron Gilbert raises a doubt upon the same point, and this is no doubt the settled English rule, but it is a hard and unreasonable technical objection, and the good sense of the thing is, that the consideration paid by the tenant for life, should enure to sustain the deed throughout, in like manner as a promise to B., for the benefit of C., will enure to the benefit of C., and give him a right of action. (Dutton v. Pool, 2 Lev. 210. T. Raym. 302. Schermerhorne v. Vanderheyden, 1 Johns. Rep. 139. Owings v. Owings, 1 Harr. & Gill, 484.) The consideration requisite is merely nominal. A peppercorn is a sufficient consideration to raise a use. (Anon. 2 Vent. 35.) If no consideration be stated in the pleadings, setting forth a deed of bargain and sale, the omission is but matter of form, and can only be objected to on special demurrer. (Bolton v. Bishop of Carlisle, 2 H. Blacks. Rep. 259.) And why should not the courts admit the consideration paid by the tenant for life to enure to sustain the deed, with all its contingent uses? An assignment of property to a creditor is good without his knowledge, if he comes in afterwards and assents to it, (7 Wheat. Rep. 556. 11 ibid. 97.) and why should not the son, when he comes in esse, be permitted to advance a consideration, and give validity to the use? In NewYork, the question can never hereafter arise, for we have no longer any conveyances to uses. The statute of uses is repealed, and uses are abolished and turned into legal estates, except so far as they may exist in the shape of trusts, or be attendant on powers. All future or

be limited to A. for life, remainder to trustees to preserve contingent uses, remainder to the first and other unborn sons in tail, the use is vested in A., and the uses to the sons are contingent, depending on the particular estate; and in case of a feoffment or release by A. the tenant for life, the uses would be supported by the right of entry in the trustees. The feoffees, or releasees to uses, could neither destroy nor support the contingent uses. The statute draws the whole estate in the land out of the feoffees, and they become devested, and the estates limited prior to the contingent uses, take effect as legal estates, and the contingent uses take effect as they arise by force of the original seisin of the feoffees. If there be any vested remainders, they take effect according to the deed, subject to devest, and open, and let in the contingent uses, in the proportions in which persons afterwards arising may become capable of taking under the limitation. To give a fuller illustration of this abstruse point, we may suppose a feoffment in fee to A., to the use of B. for life, remainder to his first and other sons unborn, successively in tail, remainder to C. in fee, the statute immediately draws the whole estate out of A., and vests it in B. for life, remainder to C. in fee, and those estates exhaust the entire seisin of A., the feoffee. The estate in contingency in the unborn sons, is no estate until the contingency happens; and the statute did not intend to execute contingent uses, but the contingent estates are supported by holding that the estates in B. and C. were vested sub modo only, and would open, so as to let in the contingent estates as they come in esse. There is no scintilla whatever remaining in A., the feoffee, but the contin

expectant estates, and all vested estates and interests in land are equally conveyed by grant. Feoffments and fines are abolished, and though deeds of bargain and sale, and of lease and release, may continue to be used, they shall be deemed grants. N. Y. Revised Statutes, vol. i. 727. sec. 45. Ibid. 725. sec. 35. Ibid. 738, 739. See, also, further on this subject.infra.

gent uses, when they arise, take effect, by relation, out of the original seisin. By this clear and masterly view of the subject, Mr. Sugden destroys all grounds for the fiction of any scintilla juris in A., the feoffee, to feed the contingent uses.a

Mr. Preston, in his construction of the statute of uses, is also of opinion, that limitations of contingent uses do give contingent interests, and that the estate may be executed to the use, though there be no person in whom the estate thus executed may vest. The statute passes the estate of the feoffees in the land, to the estates and interests in the use, and apportions the estate in the land to the estates and interests in the use. Immediately after the conveyance to uses, no scintilla juris, or the most remote possibility of seisin, remains with the trustees. But Mr. Preston speaks with diffidence of his conclusions, and he is of opinion, that the doctrine respecting the scintilla juris requires to be settled by judicial decision."

I ap not aware that the English doctrine of remainders and uses has undergone any essential alteration in these Vated States, except it be in the late revised statutes of New-York. The general doctrines of the English law on the subject constitute, as I presume, a branch of the municipal jurisprudence of this country. A statute of Virginia, in 1792, made some alteration of the law of remainders, by declaring that a contingent remainder to a son or daughter unborn, was good, although there was no particu

a Sugden on Powers, ch. i. sec. 3.

b Preston on Estates, vol. i. 164-184. It is very extraordinary that Mr. Cornish should undertake to write and publish from the temple, an Essay on the Doctrine of Remainders, so late as 1827, and assert that the doctrine of scintilla juris rested on paramount authority, without even once taking notice of such full and exhausting discussions in opposition to it, by such masters of the science as Preston and Sugden. Is it possible that he had never read these treatises? If not, pro pudor!

But, in

lar estate to support it after the father's death. New-York, very deep innovations have recently been made upon the English system. No valid remainder can be defeated by the determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect, but the remainder takes effect when the contingency happens, in the same manner, and to the same extent, as if the precedent estate had continued. This relieves us in New-York, and fortunately and wisely relieves us, from the burden of investigating and following all the inventions and learning calculated to elude the fatal consequences of the premature destruction of the particular estate. But another, and more momentous change in the law, has annihilated at once all this doctrine of remainders by way of use. The New-York Revised Statutes have abolished uses and trusts, except as authorized and modified in that article, and has turned them into legal rights. The article is a very short one, and allows resulting trusts, and four sorts of express trusts. Every contingent remainder which, under the English law, is by way of use, is now, in this state, a strictly legal contingent remainder, and governed by the same rules. There is no longer any need of trustees to preserve contingent remainders, and they could not exist if they were necessary, for their duty is not one of the express trusts which may be created. It is declared, that every disposition of lands, whether by deed or devise, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for, such person, and if so made, no estate or interest, legal or equitable, vests in the trustee.

But to proceed with the review of the general law on

a N. Y. Revised Statutes, vol. i. 725. sec. 34.

b lbid. vol. i. 727. sec. 45. 50. 55.

c Ibid. vol. i. 728. sec. 49. See also, infra, under the head of Uses and Trusts.