life, and for such uses, estates, intents and purposes, and in such manner as the said [feoffor] and [christian name] his wife, at any time or times, by any deed or deeds (either with or without power of revocation and new appointment) to be executed by them, in the presence of and to be attested by one or more witness or witnesses, shall jointly appoint, And in ―nse of feoffor for default of such appointment, To the use of the said [feoffor] and his assigns during his natural life without impeachment of waste; And after the determination of that estate by any means in his life-time, To the use of the said [feoffees] and support contingent their heirs during the natural life of the said [feoffor], upon trust to support the contingent remainders hereinafter limited, but to permit the said [feoffor] and his assigns to receive the rents and profits of the said hereditaments and premises -use of feoffor's during his natural life, And after the decease of the said [feoffor], To the use of the said [feoffor's wife] and her assigns during her natural life without impeachment of waste; And after the determination of that estate by any means in her life-time, To the use of the said [feoffees] and their heirs -use of trustees during his life to remainders, wife for life, -use of trustees during her life, confer upon B. and his heirs (the heirs taking as special occupants) an estate pur auter vie, (i. e. for the life of A.) The habendum is usually made to the feoffees or relessees to uses, and their heirs, and not to them, their heirs and assigns; and there seems to be a propriety in this, inasmuch as they have but a momentary title. The attraction of the uses, as magnetised (if such an expression be allowable) by the statute, instantly draws the possession from the feoffees or relessees, and executes it in the objects of the limitations. If no use, or only contingent or future uses, were limited, then, in the absence as well of a valuable consideration moving from, or on behalf of the feoffees or relessees, as of an apparent intent to be answered by vesting the estate in them, the use would instantly result to the feoffor or relessor, who would be reinstated in his former ownership, (but see 3 & 4 Will. 4, c. 106, s. 3): so, if the use were limited for particular estates, as for life or in tail only, the use of the ultimate fee would result, (suprà, 187). Abuse of the word It is a common error to express the grant, or the habendum, as made to the Resulting uses. survivor. grantees, and the survivor of them, &c. thus giving to the conveyance a contingent aspect. The word survivor is a rock on which the framers both of deeds and wills are very apt to split, as the reports abundantly prove. use of children of feoffor and wife in common in fee, with cross exebetween them in cutory limitations fee, during the life of the said [feoffor's wife], (45) Upon Trust to support the contingent remainders hereinafter limited, yet nevertheless to permit the said [feoffor's wife] and her assigns to receive the rents, issues and profits of the said hereditaments and premises during her natural life; And after the decease of the said [feoffor's wife], To the use of the child if only one, or the children if more than one, of the said feoffor and [christian name] his wife, and if more than one to take in equal shares as tenants in common, and the heirs (46) and assigns of such child or respective children: And in case any of the said children shall die under the age of twenty-one years without leaving issue living at his, her or their death or respective deaths, then as to as well the share hereinbefore limited to each child so dying as the share or shares limited to such child by this executory limitation, To the use of the other, if only one, or the others, if more than one, of the said children, and if more than one to take as aforesaid, and the heirs and assigns of such other or others respectively; but in case there shall be no child of the said [feoffor] and [christian name] his wife, or no such child who shall attain the age of twenty-one years, or who dying under that age shall leave issue living at his or her death, To the use of the said [feoffor], his heirs use of feoffor in and assigns for ever. And the said [feoffor] for himself, his heirs, executors and administrators, hereby covenants with the said [feoffees] and their heirs, that the said hereditaments quiet enjoy. and premises hereby enfeoffed or intended so to be, shall may at all times henceforth be peaceably held and enjoyed, or fee. Covenants by feoffor, for ment according to the limitations, tees to preserve. (45) This second limitation to trustees is not necessary to preserve the Limitation to trus. contingent remainders, but it protects the wife against the consequences of an inadvertent act of forfeiture. (46) The expense and inconvenience of fines and recoveries brought limitations to children as tenants in common in tail, with cross remainders in tail, into disrepute. In every point of view, limitations in fee, with cross executory limitations, are to be preferred. Indeed, where a small estate is to be distributed among several, the better plan is to impress it with a trust for conversion, and settle the produce. Tenancy in com mon in tail, with cross remainders. -freedom from incum brances, -further assurance. and the rents and profits thereof be received according to the limitations hereinbefore contained, without any eviction, interruption or denial from or by the said [feoffor], or any person or persons rightfully claiming or to claim through, under or in trust for him, or through or under any of his ancestors: Free and clear or by the said [feoffor], his heirs, executors or administrators, effectually kept indemnified from or against all former or other estates, titles and incumbrances created or occasioned by the said [feoffor], or any person or persons claiming or to claim through, under or in trust for him, or through or under any of his ancestors, or by his or their or any of their acts, defaults, privity or procurement. And further, that the said [feoffor] and every person rightfully claiming or to claim, through, under or in trust for him, or through or under any of his ancestors, will, at any time or times, at the request and costs of any person or persons for the time being entitled to any estate or interest under the limitations aforesaid, make, do and execute every such act, deed, conveyance or assurance for more effectually limiting the said hereditaments and premises or any part of the same, with the appurtenances, to the uses aforesaid, or such of them as shall be subsisting, according to the true intent of these presents, as by the person or persons making such request, or his, her or their counsel in the law, shall be reasonably advised and required, and as shall be tendered to be made, done or executed. [For powers of attorney to deliver and receive seisin, vide p. 198, suprà.] IN WITNESS, &c. * ** For form of Memorandum of livery to be indor sed, vide p. 200, suprà. No. 14. SETTLEMENT, by Lease and Release, in contemplation of THIS INDENTURE, made the day of -, in the year Parties. of our Lord --, Between [relessor], of, &c. of the first part, [intended wife of relessor], of, &c. of the second part, [re of intended of agreement to which the intended marriage, settle estates, of husband is seised in fee. lessees], of, &c. of the third part, and [trustees of term for of the said [intended wife], Hath granted, bargained, sold, Operative words. All estate, &c. Deeds, &c. HABENDUM. And also all the estate, right, title, interest, claim and demand, at law or in equity, of the said [relessor], in, to, out of or upon the said hereditaments and premises, and every part thereof, with their appurtenances. And also all deeds and writings relating to the title of the said [relessor] to the said hereditaments and premises, or any part thereof, now in his custody or power. To have and to hold the said manors and other the hereditaments and premises hereby released or otherwise assured, or intended so to be, with their appurtenances, unto the said [relessees] and their heirs. Nevertheless, TO THE USES, upon the trusts, and with and subject to the powers and provisions hereinafter expressed or contained, -use of husband (that is to say,) To THE USE of the said [relessor], his heirs and assigns, until the said intended marriage shall be solemnized, and immediately after the solemnization thereof, To -uses for securing THE USE (47) and intent that the said [relessees], their execu USES, viz. in fee till mar riage, rent charge to trustees for in tended wife's pinmoney. Executory uses. Classification of uses. (47) This limitation, and all the subsequent limitations, are, with reference to the limitation to the use of the relessor in fee till the marriage, shifting or executory uses. The powers of leasing, jointuring, &c. likewise belong to the same comprehensive class of limitations, which, though known under the various appellations of shifting, executory, secondary, springing and future uses, all acknowledge one leading principle. Uses may be shortly divided into vested, contingent, and executory ;-first, a vested use confers a legal estate, as, when land is limited to the use of A. for life; secondly, a contingent use confers a legal right, answering to a contingent remainder at the common law, as, when a limitation to the use of A. for life is followed by a limitation to the use of his unborn children in tail; and, thirdly, an executory use confers also a legal right, answering to an executory devise, as when a limitation to the use of A. in fee is defeasible by a limitation to the use of B., to arise at a future period, or on a given event. This third class may be infinitely subdivided; but, however widely those limitations which depart from the rules of tenure may appear to differ among themselves, it will be found upon examination that the common point of difference, namely, non-conformity to the ancient law, is the essential characteristic of each. They all take effect by divesting, wholly or partially, the vested fee, being neither dependent on the estate, nor destrnctible by the act of any preceding taker. |