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sprising use must be limited at once, independently of
Es preceding estate, and not by way of remainder, for It then becomes a contingent, and not a springing use, and contingent uses, as we have already seen, are subject to the same rules precisely as contingent remainders. The other mode of conveyance by which uses may be raised, operates, not by transmutation of the estate of the grantor, but the use is severed out of the grantor's seisin, and executed by the statute. This is the case in covenants to stand seised, and in conveyances by bargain and sale. (3. Euture, or contingent uses, are limited to take effect as remainders. If lands be granted to A. in fee, to the use of B., on his return from Rome, it is a future contingent use, because it is uncertain whether B. will ever return.a (4.) If the use limited by deed expired, or could not vest, or was not to vest but upon a contingency, the use resulted back to the grantor who created it. The rule is the same when no uses are declared by the conveyance. So much of the use as the owner of the land does not dispose of, remains with him. If he conveys without any declaration of uses, or to such uses as he shall thereafter appoint, or to the use of a third person on the occurrence of a specified event, in all such cases there is a use resulting back to the grantor.
In the remarks which accompanied the bill for the revision of the New-York statutes, relative to uses and trusts, the following objections were made to uses as they now
a Sir Edward Sugden, in a note to his edition of Gilbert on Uses, p. 152 to 178. has given a clear and methodical analysis, definition, and description, of these various modifications of future uses. In Mr. Preston's Abstract of Titles, vol. i. 105, 106, 107. and vol. ii. 151. we have also illustrations of the various shades of distinction between them.
6 Co. Lill. 23. a. 271. b. Sir E. Clere's case, 6 Co. 17. b. Armstrong v. Wholesey, 2 Wils. Rep. 19.
exist. (1.) They render conveyances more complex, verbose, and expressive, than is requisite, and perpetuate in deeds the use of a technical language, unintelligible as a “ mysterious jargon,” to all but the members of one learned profession. (2.) Limitations intended to take effect at a future day, may be defeated by a disturbance of the seisin, arising from a forfeiture or change of the estate of the person seised to the use. (3.) The difficulty of determining whether a particulærtimitation is to take effect as an executed use, as an estate at common law, or as a trust. These objections were deemed so strong and unanswerable as to induce the revisers to recommend the entire abolition of uses. They considered, that by making a grant, without the actual delivery of possession, or livery of seisin, effectual to pass every estate and interest in land, the utility of conveyances deriving their effect from the statute of uses would be superseded; and that the new modifications of property which uses have sanctioned, would be preserved by repealing the rules of the common law, by which they were prohibited, and permitting every estate to be created by grant, which can be created by devise. The New-York Revised Statutesa have, accordingly, declared, that uses and trusts, except as authorized and modified in the article, were abolished ; and every estate and interest in land is declared to be a legal right, cognizable in the courts of law, except where it is otherwise provided in the chapter. The conveyance by grant is a substitute for the conveyance to uses, and the future interests in land may be conveyed by grant, as well as by devise, 6 The statute gives the legal estate, by virtue of a grant, assignment, or devise, and the word assignment was introduced to make the assignment of terms, and other chat. tel interests, pass the legal interest in them, as well as in freehold estates, though, under the English law, the use in chantel interests was not executed by the statute of uses.
a Vol. i. 727. sec. 45, 46.
b N. Y. Revised Statutes, vol. i. 724. sec. 24. 137, 138. 142. 146. Ibid. 727. sec. 47.
Ibid. 738, 739. ser.
The operation of the statute of New York, in respect to the doctrine of uses, will have some slight effect upon the forms of conveyance, and it may give them more brevity and simplicity. But it would be quite visionary to suppose that the science of law, even in the department of conveyancing, will not continue to have its technical language, and its various, subtle, and profound learning, in common with every other branch of human science. The transfer of property assumes so many modifications to meet the varying exigencies of speculation, wealth, and refinement, and to supply family wants and wishes, that the doctrine of conveyancing must continue essentially technical, under the incessant operation of skill and inven tion. The abolition of uses does not appear to be oft much moment, but the changes which the law of trusts has been made to undergo, becomes extremely important.a
(2.) Of trusts.
The object of the statute of uses, so far as it was intended to destroy uses, was, as we have already seen, subverted by the courts of law and equity.
a Lord Hardwicke is reported to have said, in the course of his opinion in Hopkins v. Hopkins, (1 Atk. Rep. 591.) that the statute of uses had no other effect than to add, at most, three words to a conveyance. This was rather too strongly expressed; but I presume the abolition of uses with us will not have much greater effect. It was the abolition of a phantom. The word grant is not more intelligible to the world at large, than the words bargain and sale ; and the fiction indulged for 200 years, that the bargain raised a use, and the statute transferred the possession to the use, was as cheap and harmless as any thing could possibly be. It would, perhaps, have been as wise to have left the statute of uses where it stood, and to have permitted the theory engrafted upon it to remain untouched, considering that it had existed so long, and had insinuated itself so deeply and so thoroughly into every branch of the jurisprudence of real property.
It was held, that the statute executed only the first use. and that a use upon a use was void. In a feoffment to A., Ao the use of B., to the use of C., the statute was held to execute only the use to B., and the use to C. did not take effect. In a bargain and sale to A. in fee, to the use of B. in fee, the statute passes the estate to A., by executing the use raised by the bargain and sale; but the use to B. being a use in the second degree, is not executed by the statute, and it becomes a mere trust. Shifting, or substituted uses, do not fall within this technical rule at law, for they are merely alternate uses. Thus, a deed to A. in fee, to the use of B. in fee, and if C. should pay a given sum in a given time, then to C. in fee, the statute executes the use to B. subject to the shifting use declared in favour of C. Chattel interests were also held not to be within the statute, because it referred only to persons who were spised, and a termor was held not to be technically seised ; And so the statute did not apply to a term for years. An assignment of a lease to A., to the use of B., was held to be void as to the use, and the estate was vested wholly in A. This strict construction at law, of the statute, gave a pretext to equity to interfere, and it was held in chancery, that the uses in those cases, though void at law, were good in equity, and thus uses were revived under the name of trusts. A regular and enlightened system of trusts was gradually formed and established. The ancient use was abolished, with its manifold inconveniences, and a secondary use or trust introduced. Trusts have been modelled and placed on true foundations since Lord Nottingham succeeded to the great seal; and we have the authority of Lord Mansfield for the assertion, that a rational and uni
a Dyer, 155. 1 And. 37. Meredith v. Jones, Cro. C. 244. Lars Whetstone v. Bury, 2 P. Wms. 146. Doe v. Passingham, 6 Barit. & Cress. 305.
b Jackson v. Cary, 16 Johns. Rep. 302.
for system has been raised, and one proper to answer the Agencies of families, and other civil purposes, without hy of the mischiefs which the statute of uses meant to avoid."
Trusts have been made subject to the common law canons of descent. They are deemed capable of the same limitations as legal estates, and curtesy was let in by analogy to legal estates, though, by a strange anomaly, dower has been excluded. Executed trusts are enjoyed in the same condition, and entitled to the same benefits of ownership, and are, consequently, disposable and devisable exactly as if they were legal estates; and these rights the cestui que trust possesses without the intervention of the trustee. Any disposition of the land by the cestui que trust, by conveyance or devise, is binding upon the trustee. In limitations of trusts, either of real or personal estates, the construction, generally speaking, is the same as in the like limitations of legal estates, though with a much greater deference to the testator's manifest intent. And if the statute of uses had only the direct effect of introducing a change in the form of conveyance, it has, nevertheless, gradually given occasion to such inodifications of property as were well suited to the varying wants and wishes of mankind, and afforded an opportunity to the courts of equity of establishing a code of very refined and rational jurisprudence.
u Lord Mansfield, in Burgess v. Wheate, 1 W. Blacics. Rep. 160.
6 North v. Champernoon, 2 Ck. Cases, 78. Lord Alvanley, in Philips v. Brydges, 3 Vesey's Rep. 127.
c Lord Hardwicke, in Garth v. Baldwin, 2 Vesey, 655. Sonder's on Uses, 187. Phil. edit. 1830.
d Sugden's Int. to Gilbert on Uses, contains an interesting summary of the rise and progress of uses, down to the statute of uses. A masterly sketch is given by Lord Mansfield, in his opinion in Burgess VOL. IV.