Springing and Executory Origin of The uses, by means of which executory interests can be thus created, are divided into Springing Uses, and Shifting Uses. Springing uses are those which are limited, as in the first of the examples just given, to 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 mean time. 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 authorized to be created by some person named in the deed. 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,2 and is, in that case, distinguished as an Executory devise, the rules which govern it being nearly, if not entirely,3 the same as those to which such an interest is subject when created by way of use. We have seen that, before the passing of the statute, 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 was passed, both the legal and equitable estate 5 1 Gilb. Uses, 152 n. 2 27 Hen. VIII. c. 10. 8 See Fearne, C. R. 40; Gilb. Uses, 35 n. 5 27 Hen. VIII. c. 10. in land ceased, for a time, to be devisable; but that statute was shortly afterwards followed by another,1 which permitted all land held in socage to be disposed of by will; and when the greater part of the land in the kingdom became afterwards subject to this tenure, devises of land became general. Under these circumstances, the courts of law permitted direct limitations of it by will, similar to those already allowed in the creation of an executory interest, taking effect under the Statute of Uses. But it is to be remembered that every gift of real estate by will confers a use. For since every devise imports a consideration, there is also an implied use, by the common law, to the devisee, unless there is an express use to some other person, in which case the express use must prevail, and is executed by the statute.* Blackstone defines an executory devise of lands as such a disposition of them, by will, that thereby no estate vests on the death of the testator, but only on some future contingency. It differs (he goes on to say) from a remainder in three very material points1st, That it needs not any particular estate to support it. 2d, That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3d, That by this means a remainder may be limited of a term of years, after a particular estate for life created in the same. The two first points apply, as we have seen, equally, to the case of an executory interest. As to the third, Executory we have already said that such a limitation, if made term. by deed, would give the whole term to the person named as tenant for life. 1 32 Hen. VIII. c. 1. 8 27 Hen. VIII. c. 10. 5 2 Bl. Com. 172. The same rule was for 2 12 Car. II. c. 24. 4 Gilb. Uses, 356, and note (2). [That is, if a tenant of an estate for years, albeit of a thousand years, made a lease for life, he exhausted his interest (for the techni devise of a Rules for the creation of executory interests. merly held to apply also if the limitation were made by will, and although, afterwards, the remainderman was allowed to take the term, provided it had not been alienated by the first taker during his own lifetime, he had no remedy if it had been so disposed of. But later on, after the passing of the Statute of Uses, it was held that a limitation of the kind which we have been describing was to take effect as an executory devise, and not as a remainder, and could not be destroyed by any act of the first devisee. Such limitations were not, however, at first held to be good, unless all the persons named to take the term were in being and alive together; "so that," as it was said, "all the candles might be lighted and consumed together." But this doctrine was subsequently overruled, and it is now settled that executory devises, of both real and leasehold estate, are subject, as to their creation, to the same rules. These, again, ap ply to the creation of all executory interests, whether under the Statute of Uses 8 or not, and we will next proceed to inquire what they are. It is evident that limitations by way of executory interest allow much more freedom of action than is attainable in the creation of remainders. For an estate which is thus limited has no dependence upon any preceding particular estate, but, on the con cal reason that an estate for life was greater than an estate for years), and any limitation over after the life estate was void. But lessees contrived a method of accomplishing the object by means of executory devises, and by limitations of trusts, which were supported in equity. See Theobalds v. Duffoy, 9 Mod. 102.] 1 Love v. Windham, 1 Sid. 450. 2 Anon., Dyer, 74 b. 8 27 Hen. VIII. c. 10. 4 Manning's Case, 8 Rep. 94b; Lampet's Case, 10 Rep. 46 b. 5 Goring v. Bickerstaffe, 2 Free. 163. 6 2 Bl. Com. 175. 7 Howard v. Norfolk, 2 Free. 72, 80; 2 Jur. Arg. 47. 8 27 Hen. VIII. c. 10. trary, may take effect by destroying it, and cannot therefore be affected by any accident which may befall it. Being thus indestructible they might, if not restrained by the law, be so created as to render land inalienable for a very long period, and thus cause what is known as a perpetuity. To prevent this from being done, two principal rules have been framed. take effect as The first of these is that when an estate can take First Rule. effect as a remainder, it shall never be construed to interest where No executory be an executory limitation. Thus in one case,2 by limitation can a settlement, made before marriage, land was con- remainder. veyed to trustees to the use of A for life, with remainder to B, his intended wife, for life, with remainder to their issue in tail; but with a proviso that if A should die leaving such issue, and not having made provision for any of them during his lifetime, then the trustees should stand seised of one moiety of the settled estate upon trusts for the benefit of such issue. It was held that this proviso only created a contingent remainder, and not an indestructible executory interest, in favor of such of the issue as were left unprovided for. For, being preceded by, and bound to await the determination of, a particular estate, it was capable of being construed as a remainder, and came, therefore, within the rule. And the result is the same where a limitation which was originally an executory devise becomes capable, by some change of circumstances, of being construed as a remainder. For instance, land was devised to A for life, with remainder to B in fee-simple; this being followed by a proviso that if B should happen to die before A, and A should have no child living at her death, she might devise the premises to whom she 1 Goodtitle v. Billington, 2 Doug. 753 a, 757. 2 Carwardine v. Carwardine, Fearne, C. R. 888, and 1 Eden, 27. 3 Doe v. Howell, 10 B. & C. 191. Second Rule. tion to take effect within being and twenty-one years afterwards. thought proper. The other rule to which we have referred is that tory limita- generally known as the Rule against Perpetuities; the object of it is to prevent property becoming inlife or lives in alienable beyond a certain period, by fixing a time within which every executory limitation must take effect. The necessity for such a rule became apparent as soon as executory limitations were permitted, but no definite period appears, at first, to have been fixed upon; the courts being content, for a while, with defeating various attempts at creating perpetuities, as where land was given in tail, with a proviso that the estate should be forfeited if any attempt were made to bar the entail; 3 where it was given to a succession of unborn children for life; or where it was, indeed, given to an unborn person in tail, but with a proviso that, on his being born, his estate tail should be converted into one for life, with remainder (subject to similar conditions) to his issue in tail.5 1 Archer's Case, 1 Rep. 66 b, 67 a. 2 See 2 Jur. Arg. 7. 3 Corbet's Case, 1 Rep. 83b; Portington's Case, 10 Rep. 85b. 4 Humberston v. Humberston, 1 P. Wms. 333. 5 Spencer v. Marlborough, 8 Bro. P. C. 232. |