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 prior particular estate of freehold 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 other executory limitation.

4. The grantor, in a common law conveyance, could not reserve to himself, nor confer on any other person, the power of revoking or altering the grant, by any future act or instrument; for that was deemed repugnant to the conveyance itself (k). The utmost that the common law allowed was a deed of defeasance (coeval with the grant, and therefore esteemed a part of it) upon events specifically mentioned (1). But the limitation of a Use, subject to a power of this description, was not considered as involving any repugnancy. A Use was originally a mere direction to the trustee how he was to deal with the legal estate, and the direction might be recalled or changed (m). In a conveyance, therefore, under the Statute of Uses, a proviso giving to the grantor, the grantee, or a stranger, authority to revoke or alter, by a subsequent act, the estate first granted, would be valid, being in effect no more than an authority to revoke the Use first limited, and to declare a new one (n). Such provisoes are called powers, a term properly applicable to all authorities, as distinguished from estates. Such powers are either mere powers of revocation, enabling the grantor simply to recall what he has bestowed; or they are powers of revocation and of new appointment (o), or of appointment simply, authorizing the grantor, or some other person, to make a new disposition of the estate. Powers of

(k) Co. Litt. 237 a; 2 Fonb. 158,

159.

(1) Ante, p. 317.

(m) Sugd. Gilb. 158, (n.).

(n) Ibid.

(0) 1 Sand. Uses, p. 155; 4 Cruise, Dig. 228.

revocation and of new appointment are of frequent occurrence in family settlements, their object being to carry into effect with greater convenience the arrangements actually contemplated. Thus, if a life estate be limited to the settlor, with remainder over, it was, before the Settled Land Act, 1882, common to insert a power enabling him from time to time to make effectual leases of the property in possession, for terms not exceeding twenty-one years, a privilege reasonable and convenient in itself, but which (apart from statute) was not incident. to the estate of a tenant for life generally. Of the same nature, in general, are the usual powers of jointuring, selling, charging land with the payment of sums of money, and the like (p). All these are technically described as powers of revocation and of new appointment, because, in authorizing a new disposition not made by the conveyance itself, they operate pro tanto as a revocation of those which it contains (q). Such a power, if closely considered, will be found to amount to an authority to create a Use, to take effect in derogation, to a certain extent, of the Uses first limited; or rather to the virtual limitation of an executory Use of that description, in favour of such person, and for such estate, as shall be defined by the subsequent act of the donee of the power (r).

The subsequent exercise of the power is called an appointment. Its effect is to raise, in favour of the appointee, a Use corresponding to the estate appointed. This Use being served out of the original seisin, is immediately executed by the statute, and transmuted into the equivalent legal estate (s). As a general rule, the mode of exercising the power prescribed must be strictly followed; but where the power is to be

(p) 2 Sand. Uses, p. 81.

(9) Ibid. p. 155; 4 Cruise, Diy. 228.

(r) Sugd. Gilb. 152, 153, (n.) ; 2 Sand. Uses, p. 81.

(s) 2 Sand. Uses, p. 82; 4 Cruise, Dig. 228.

exercised by deed, a deed attested by two witnesses is now in all cases sufficient (t). An appointment is not considered as an independent conveyance (u). It is merely ancillary to the deed creating the power; which (as already observed) contains, in effect, a prospective limitation of the new Use. The appointee, therefore, is considered for most purposes as deriving his title under the original conveyance, and to be in the same position as if that instrument had actually contained a limitation in his favour, to the extent of the estate appointed (x). And with regard to such powers generally, the Conveyancing Act, 1881 (y), sect. 52, enables the donee of a power, whether coupled with an interest or not, to release the power by deed, or by deed to contract not to exercise the power; and the Conveyancing Act, 1882 (z), sect. 6, enables him to disclaim the power.

Uses, quite as

Not only as to the limitation of estates, but in other particulars, there are differences between conveyances to Uses and conveyances at common law. The possession was indeed given by the conveyance to effectually as if the alienee had received livery of seisin, or had made actual entry (a); but as the conveyance to uses, e.g., a bargain and sale, conveyed the possession by construction of law only, so it differed from a feoffment in such incidents as resulted from delivery of possession in point of fact. Therefore, though a feoffment, when made by the tenant in actual possession, was capable of passing a wrongful estate of freehold, and, when made by a particular tenant for a greater estate than he could lawfully convey, occasioned a forfeiture (or, in the case of a tenant in taily a discontinuance) of the particular estate, and the contingent remainders dependent on that estate (t) Law of Property Amendment Act, 1859, s. 12.

(u) 2 Sand. Uses, p. 84.

(x) 4 Cruise, Dig. 282, 497; Bringloe v. Goodson, (1838) 4 Bing.

N. C. 734; Sugd. Powers, p. 470.

(y) 44 & 45 Vict. c. 41.
(z) 45 & 46 Vict. c. 39.

(a) 2 Sand. Uses, p. 52.

were defeated, no such results followed from any con-
veyance by way of Use (b). For by the feoffment there
was an actual investiture of the possession, as for an estate
of freehold, which, it was held, must take effect, either
lawfully, or tortiously (as it was called). On the other
hand, conveyances by way of Use could, in their nature,
pass no more than the grantor might lawfully transfer (c).
They received accordingly the appellation of lawful or
innocent conveyances (d). Since the Real Property Act,
1845, s. 4, which enacts that henceforth a feoffment shall
not have any tortious operation, this distinction has so far
lost its importance.

The Statute of Uses, while it thus enabled owners to
dispose of their lands in methods more suitable to the
exigencies of social life, opened the door at the same time
to inconveniences of a different description. These the
policy of the law thought fit to regulate by the rule, called
the Rule against Perpetuities, against the creation of
too remote limitations. This rule we shall now proceed
to explain (e). We have seen as regards remainders, that,
even under a strict settlement, an estate tail could not,
after Taltarum's Case, be preserved from alienation longer
than during the life of the taker of the first estate of
freehold and the nonage of the tenant in tail next in
remainder for, on attaining the age of twenty-one, the
latter was competent, with the concurrence of the former, fed.
to suffer a recovery. By analogy to that limit (ƒ), it was
settled that, as regards executory interests, and springing
or shifting Uses, an estate limited by way of executory
Use must vest within, at the latest, some life or lives in
being, and twenty-one years afterwards (g). For example,

(b) 2 Sand. Uses, p. 73.

(c) Fearne by Butler, p. 322.
(d) Ibid. p. 322.

(e) Co. Litt. by Butler, 379 b,
citing 327 a; Reeves, Hist. Eng.
Law, vol. iii. p. 324; Cadell v.
Palmer, (1835) 10 Bing. 140; In

re Mervin, [1891] 3 Ch. 197.

(f) Co. Litt. by Harg. 20 a; note (5).

(g) Cadell v. Palmer, (1835) 10 Bing. 140; S. C. 7 Bligh (N.S.) 202.

if a man be seised in fee of lands, and gives them to the first son of J. S. that shall attain the age of twenty-one years, this limitation is good within the rule. Here the estate, must at the latest vest on the expiration of J. S.'s life and the infancy of his son. Such infancy, generally speaking, will not endure beyond twenty-one years after J. S.'s death: but if the son is born posthumously it will endure a short further time, namely, the time of gestation in utero which follows upon J. S.'s death. Again, when the period at which the estate is limited to vest comprises no life or lives in being, it is not allowed to exceed twentyone years from the time when the limitation is created (h),

together with, of course, the period of gestation, if any. And all limitations following a limitation void as contrary to the rule against perpetuities are also void (i). And the law so much abhors a perpetuity (k), that any limitation, either for a legal or for an equitable interest, by way of executory Use, or otherwise, of such a nature as to lead to the possibility, if it were allowed, of exceeding the limit of time prescribed by this Rule against Perpetuities, is absolutely void (1). And the rule applies also to terms of years and to purely personal property (m), but not to covenants running with the land or to personal contracts. In furtherance of the rule, it has been enacted by the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 10, with regard to instruments coming into operation on or after the 1st January, 1883, that an executory interest, in land, to take effect in default of issue, or on failure of the issue, of the tenant of the executed estate, shall become void as soon as any of such issue attains the age of twenty-one