Alienation of possibility an interest. taking effect under that Act, we will content ourselves for the present with noticing the fact of their existence, and reserve the consideration of them for the next chapter. We have already spoken generally of the alienation coupled with of remainders, but must add a few words on this point with reference to contingent remainders. Such of these as are contingent on the birth of some unborn person are evidently inalienable. But one which depends upon the happening of a future event (as, to repeat a former example, an estate given to A. for life, and if B. survives him, then to B. in fee), and which is sometimes spoken of as a possibility coupled with an interest, is in a different position. In early times, indeed, it could not be disposed of either by deed or by will (e). Afterwards, however, it became disposable by will (f), and now it has been enacted Real Property by the Real Property Amendment Act (g) that a possibility coupled with an interest, in any tenements or hereditaments, of any tenure, whether the limitation of such interest or possibility be or be not ascertained, may be disposed of by deed. And the Wills Act (h) provides that the power of disposition by will shall extend to all contingent interests in any real or personal estate, whether the testator may or may not be ascertained as the person, or one of the persons, in whom the same may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any dispositions thereof by deed or will. Amendment Act. Wills Act. Trustees to preserve contingent remainders. The fact that a contingent remainder was destroyed if not capable of vesting at the moment when the particular estate came to an end, made it necessary (e) Bishop v. Fountaine, 3 Lev. 427. (h) 7 Wm. IV. and i Vict. c. 26, s. 3. formerly to take special precautions with reference to this point. For the particular estate might be destroyed by some act of the tenant; as if he did anything which caused it to be forfeited, or if he surrendered it to the owner of the reversion, or obtained a release of the reversion to himself, by both of which means the particular estate was merged in the reversion. In order to prevent this, it was usual to interpose another estate between those of A. and of his issue, by giving to trustees, "upon trust to preserve contingent remainders," an estate which was to take effect if A.'s estate came to an end during his lifetime, and in that case to endure so long as A. lived. By this means the contingent remainder was protected against anything which A. could do; and as to the trustees, the Court of Chancery would interfere to prohibit them from doing anything which would amount to a breach of their trust (). necessary. But limitations to trustees in order to preserve Now uncontingent remainders have been rendered unnecessary by the provisions, already cited, of the 8 & 9 Vict., c. 106. Hence, the only contingent remainders now liable to be destroyed by the determination of their particular estates are those which do not come within the 40 & 41 Vict., c. 33,-a number which is naturally constantly diminishing, and perhaps in time may altogether cease to exist. (i) See Moody v. Walters, 16 Ves. 283; Biscoe v. Perkins, 1 Ves. & B. 485. CHAPTER X. terests a conse Statuteof Uses. May take effect under the statute or by will. OF AN EXECUTORY INTEREST. Executory in EXECUTORY interests, the explanation of which will be quence of the attempted in this chapter, came into existence as a consequence of the passing of the Statute of Uses (a). They may be created by deed or by will. If by deed, they can only take effect by virtue of the statute; but if by will, they may or may not be limited so to take effect by way of use (b). We will begin with the consideration of those executory interests which are created under the statute. It has been already shown how limitations of legal estates by way of remainder are subject to various restrictive rules, amongst which we may specially mention that which forbids the limitation of any estate after a fee-simple, and that which compels every remainder to await the determination of its particular estate before it can take effect. Prior to the passing of the Statute of Uses (c), uses, being subject to the rules of Equity only, might be limited in ways not permissible in the case of legal estates. Thus, if land were given to A. and his heirs, to hold to the use of B. and his heirs until the happening of some future and uncertain event, and then to the use of C. and his heirs; the Court of Chancery would compel A., on the happening of that event, to hold the land to the use of C. and his heirs (d). But it is plain that this (a) 27 Hen. VIII. c. 10. limitation was one which, if made of a legal estate, would have been invalid, as being obnoxious to the rules to which we have just referred. after the After the Statute of Uses (e) was passed, uses con- Limitations by ferred legal as well as equitable estates; limitations way of use of them became, therefore, subject to the jurisdiction statute. of law. But, nevertheless, they were still allowed to retain, in a great measure, the freedom which they had acquired when mere creatures of Equity; for now, if land were limited by its owner to the use of himself and his heirs until the happening of some future event, and then to other uses, this would be perfectly good (f), although it would be a limitation of an estate after a fee-simple. And an estate may also be well limited by means of uses, although it is to take effect by destroying a preceding estate, and is thus opposed to the rule governing remainders, which requires a subsequent estate to await the natural determination of that which precedes it. Thus, a limitation would be valid by which an estate was given to A., to hold to the use of B. until C. pays a sum of money (g), or until B. acquires some other property (h), with a proviso that on the happening of either of these events the estate is to be held to the use of C. It may be noticed that it is the power of limiting an estate after a fee-simple that enables a landowner about to be married to effect a settlement for the benefit of himself alone until marriage, and then for that of himself, his wife, and children. The uses by means of which executory interests can Springing and be thus created are divided into Springing Uses and Shifting Uses. Shifting Uses. Springing Uses are those which, as in the first of the examples just given, are limited to (e) 27 Hen. VIII. c. 10. (f) Woodliff v. Drury, Cro. Eliz. 439. (g) Lloyd v. Carew, Prec. Ch. 72. (h) Nicolls v. Sheffield, 2 Bro. C. C. 214; Carr v. Erroll, 6 East, 58. Executory De vise. arise on the happening of a future event, where no preceding use is limited; they do not, consequently, take effect in derogation of any interest other than that which results to the grantor, or remains in him in the meantime. Shifting uses are those which, as in our second example, do take effect in derogation of some other estate; they are either expressly limited by the deed, or are authorised to be created by some person named in the deed (i). In this latter case, the person so named acquires a Power of Appointment, a subject which it will be more convenient to discuss by itself later on. An executory interest may also be created by a will, without calling in the aid of the Statute of Uses (j), and is, in that case, distinguished as an Executory Devise, the rules which govern it being nearly, if not entirely (k), the same as those to which such an interest is subject when created by way of use. Origin of Exe- We have seen that, before the passing of the statute, cutory Devises. the use in land could be devised, whilst the legal estate in it, as a rule, could not, but that there were some exceptions to this rule, arising out of special local customs. It is probable that where land could be devised under a custom, limitations of it, similar to those permitted in a devise of uses were sometimes attempted and, from the liberality which our courts have always adopted in the construction of wills, were often allowed (). When the Statute of Uses (m) was passed, both the legal and equitable estates in land ceased, for a time, to be devisable; but that statute was shortly afterwards followed by another (n), which permitted all land held in socage to be disposed of by (i) Gilb. Uses, 152n. (j) 27 Hen. VIII. c. 10. (k) See Fearne, C. R. 40; Gilb. Uses, 35". (m) 27 Hen. VIII. c. 10. (n) 32 Hen. VIII. c. 1. |