CHAP. XX. 2 Bl. Com. 327. Butl. n. (1.) to OF USES AND TRUSTS. It is necessary to the creation of such an use Co. Litt. 271 b. as may be executed by the statute, that there (1.) to 290 b. 384 a. and add. notes. *This statute enacts, "That where any person shall be seised of any lands, rent, services, reversions, or other hereditaments, to the use, confidence, or trust of any other person or body politic, by any means whatsoever, every such person and body politic, having such use, confidence, or trust, shall henceforth be deemed and adjudged to be in lawful seisin, estate, and possession of and in the same lands, &c., with their appurtenances, to all intents and purposes in the law of and in such like estates as they had in use, trust, or confidence; and that the estate, title, right and possession of the person seised of any lands, &c. to the use, confidence, or trust of any such person, or of any body politic, shall be deemed and adjudged to be in him or them that have such use, confidence, or trust, after such quality, manner, form, and condition as they had before in or to the use, confidence, or trust that was in them." 27 Hen. 8. c. 10. 1536. Before the passing of this statute, the use was cognizable in a court of equity only, and was in fact what a trust is now. Thus, under a feoffment to A. to the use of B., B. had not a legal estate; that is, an estate which he could sue upon in a court of law he had merely a confidence in A. to pay over the rents and profits to him B., which if A. failed to do, B.'s be a person to stand seised of certain hereditaments to such an use; that there be a person capable of taking that use; and that there be privity of estate and privity of person. remedy was by suit in equity, not by action at law. Hence, A.'s estate was called the legal, and B.'s the equitable estate. The effect of the above statute was, and still is, to convey the legal estate of A. to the equitable estate of B.; and, contrary to the usual doctrine of merger, it in effect declares that the legal estate shall merge in the equitable, [or rather it transfers the legal estate to B. to the extent of the use limited to him.] It first enacts that B. shall have the seisin and possession, and then, by a second limb (rather redundantly), declares, that A.'s legal estate and possession shall be deemed and taken to be in in the same condition as B. previously had in the use, From the words of this statute it will be perceived, that it relates to hereditaments, and not to chattels; that it applies only where one person is seised to the use of another person, and not where one person is seised to the use of himself; and, thirdly, that the cestui que use now takes the legal estate, which is measured by the previous estate in the use, and not by the previous estate in the seisin. Therefore, if a conveyance be made to A., his heirs and assigns, to the use of B. in tail, B. will take an estate tail, and not an estate in fee; the residue of the use in fee, that is, the reversion expectant on the estate tail, will result to the grantor, who will be in of his former estate; so that, if he derived that estate from his mother, it will still continue descendible to his heirs ex parte materná. [But if by a deed executed after the 31st day of December 1833, the ultimate limitation of the use were to the grantor and his heirs, or to the right heirs of the grantor, he will acquire a new estate by purchase, and will not be in of his former estate as he would where the ultimate use undisposed of Booth's Opin. at the end of Touchst, and in 421. 1 Coll. Jurid. Sand. Uses. passim. ide infra, pp. 236 243. Sund. 446. 1st, There must be a person seised; for a corporation cannot stand seised to an use; and, therefore, if a corporation convey, it must be by feoffment, lease (with an actual entry) and results to him; statute 3 & 4 Will. 4. c. 106. s. 3.] The This Much doubt was formerly entertained, whether the statute of uses could apply to wills, which did not exist in the shape they do now, at the time the statute of uses was passed. The mention of wills in the statute of uses referred only to the customary wills then in existence, and not to those which were introduced a few years afterwards by the statute of wills. Lord Coke says, "It is frequent in our books, that an act made of late times shall be taken within the equity of an act made long before." 4 Rep. 4 a. b. And in Broughton v. Langley, 2 Lord Raym. 873. 2 Salk. 679., it was admitted that a devise of lands may by express words be limited to the use of another person than the devisee, and that such devise will be executed by the statute of uses; and in Thompson v. Lawley, 2 Bos. & Pull. 311., the same doctrine was expressly acknowledged. But there is not any necessity for a seisin to supply the use in a will; and therefore if the devisee to a use die in the lifetime of the testator, it should seem that the use release, &c.; though the courts will, if possible, support a bargain and sale by a corporation as some other species of conveyance, rather than that it should avoid its own act.* 2ndly, There must be a person seised of hereditaments; for chattels, whether real or personal, are not within the statute: though a person may stand seised of the freehold to the use of another for a chattel interest; as A. B., being seised in fee, may covenant to stand seised to the use of C. D. for years; and such use will be executed by the statute. And this is every day seen by the lease, or more properly by the bargain and will not lapse, because it would be as good without that previous seisin as with it; and the courts will overlook a devise which in event proves to be a mere nullity. 3 Atk. 408. 3 Bro. C. C. 30. But if there be a devise to one person to the use of another, and the cestui que use or beneficial devisee dies in the lifetime of the testator, then it is conceived that the devisee himself will not be entitled to the estate discharged of the use; for the testator has shown a clear intention that the beneficial interest should not rest with him, by directing it over to another person. * If an alien be enfeoffed to uses, the statute executes the uses [limited on his seisin] until office found: but upon inquisition the uses are destroyed by relation, and the king holds absolutely. Bac. 59. King v. Boys, 3 Dyer, 283 b. pl. 31. So if a person, having committed treason, be made grantee to uses, the use will fail for the benefit of the crown, if the grantee be afterwards attainted. Throgmorton's case, Moor, 390, 391. But sale, upon which a release is grounded. chattel interests may be conveyed subject to certain trusts, as commonly practised.* It is generally understood that copyhold lands are not within the statute of uses, and consequently that a power to revoke uses once vested cannot be reserved in a surrender of that species of property as it can in a conveyance to uses of freehold. 1 Watk. Cop. [198.] 265. A late case, however, has deranged this generally acknowledged doctrine. By marriage settlement freehold lands were conveyed to the use of the husband for life, with remainder to the wife for life, with remainder to trustees to preserve contingent remainders; with remainder to the children of the marriage, with remainders over. Then followed a provision, that it should be lawful for the trustees, with the consent of the intended husband and wife, to dispose of and convey, either by sale or exchange, the freehold property in question; and that, for the purpose of effecting such sale or exchange, they, with the consent of the husband and wife, should be at liberty to revoke the before-mentioned uses, and to appoint others in favour of the person with whom the sale or exchange might be effected. The deed then contained a covenant to surrender copyhold premises, the subject in question, to the trustees of the settlement and their heirs, to hold to the same uses and subject to the same powers as were before declared concerning the freehold property. The marriage took effect, and the copyhold premises were surrendered to the uses and subject to the provisions in the indenture of settlement mentioned; and the husband, pursuant thereto, was admitted to the copyhold premises as tenant for life. In 1805, the trustees contracted to sell these freehold and copyhold estates to Boddington in fee, and for that purpose they, with the consent of the husband and wife, revoked all the uses declared by the said marriage settlement, and limited a fresh and substituted use to Boddington in fee, and the husband surrendered the premises to |