vises and be Testamentary dispositions were placed upon a pecu- CHAPTER IV. liarly liberal basis. Every kind of disposition which Executory demight be effected by way of use, might be equally ef- quests. fected by a direct devise of the land itself. Whatever may be the true solution of the question, so much debated (y), as to the applicability of the Statute of Uses to wills, it is clear that whether land was devised to A. in fee, to the use of B. in fee, but in the event of B.'s death under twenty-one, then to the use of C. in fee, or was devised at once to B. in fee, and in the event of B.'s death under twenty-one, then to C. in fee, the shifting limitation in favour of C., though contravening the rules of the common law, was, in either mode, a valid legal limitation. In the hands of a testator, therefore, the legal estate in the land had, in point of direct dominion, all the flexibility of the statute-use. And as the Statute of Uses did not extend to leaseholds for years, they were susceptible of legal dispositions by testament which could not be accomplished by deed. Thus, if a term of years was assigned by deed to A. to the use of B., and in the event of B.'s death, under twenty-one, to the use of C., the legal estate vested and remained in A., and the uses limited to B. and C. were in effect merely trusts in equity; and, if the assignment was made to B., with a limitation over, in the event of B.'s death under twenty-one, to C., the legal estate vested indefeasibly in B. But a gift by will of a term of years to B., with a limitation over, in the event of his death under twentyone, to C., operated to vest the legal estate in C. on the happening of the event. Such future dispositions by will as were contrary to the rules of the common law were called executory devises or executory bequests. COPYHOLDS do not fall within the scope of these sheets; As to copybut we may shortly observe, that by custom, controlling conveyed, and (y) Ante, 82. HOLDS-how CHAPTER IV. the will of the lord, the copyhold tenant,-originally a of what limita- mere serf bound to toil and to obey,-had acquired an tions suscep tible. The dominion over real property was re interest sure and reputable, though not, indeed, in all respects so highly privileged as the freehold; that copyholds were unaffected by the Statute of Uses; that a copyhold tenement could be transferred at law only through the medium of a surrender into the hands of the lord of the manor, to the intent that the lord might admit into the tenancy the person in whose favour the surrender was expressed to be made, both the surrender and the admittance being entered upon the court-roll; that uses declared upon a surrender of copyholds were merely directions to the lord, in regard to the persons whom, and the estates or interests for which, he should admit; that such directions to the lord, though once received or rejected at pleasure as the humble petitions of the slave, were now recognised and enforced by the judicature as mandates of the lawful proprietor; that (notwithstanding some grave doubts (2) whether uses of copyholds must not conform to the rules of the common law) it was clear, upon principle and authority (a), that such directions might assume all the forms of future and shifting destinations, (including powers of appointment (b)), into which the freehold use was convertible; that the legal tenant might, as in the instance of freehold and leasehold property, be a trustee for the benefit of other persons, whose equitable rights, being incapable of tenure, were not cognizable by the lord (c), nor therefore necessarily apparent on the recorded proceedings of the manor. As to all other kinds of property, the fullest right of alienation existed, although the convenient exercise of (2) Watk. Cop. 99, 197, 208. the Manor of Oundle, 1 Adolph. (a) Sand. on Cop. Sur. Bod- & Ell. 283; 3 Nev. & Mann. 484. dington v. Abernethy, 5 Barn. (c) Lewis v. Lane, 2 Mylne & & C. 776. K. 449. (b) The King v. The Lord of CHAPTER IV. strained as regards only perpetuity and ac cumulation. The construc tion of deeds, and of wills, equally con that right was obstructed, in some instances, by the technicalities of the common law. Keeping within the salutary rule, commonly called the rule against perpetuities (d), which prohibited destinations calculated to withdraw the corpus of property from commerce beyond a period commensurate with the duration of a life or lives in being, and a term of twenty-one years afterwards, and also within a modern statute (e) imposing some equally wholesome restrictions on the accumulation of income (ƒ), to which the rule of law was too indulgent, almost every destination, compatible with the great principles of public policy, might be accomplished. Whatever objects were attainable by devise, might, with the help of uses and of trusts, be likewise attained by an instrument operating inter vivos, and the intention sulted the intengoverned the construction of both species of assurance, two exceptions. with almost universal and equal authority. Those rigid rules of tenure, which, in a few instances, dictated what should be the effect of a deed, as distinguished from a will, and, in a few others, what should be the effect of both deeds and wills, must be viewed as harsh exceptions to the general law, and as arbitrarily excluding the application of the ordinary rules of construction-rules, benignantly framed and applied by the judicature to elicit and promote the intention of all written instruments. Notwithstanding the position, so common as to be almost proverbial, that wills were to be expounded less strictly than deeds, and notwithstanding the peculiar emphasis placed, in the judicial exposition of wills, upon intention, it should seem that, with two exceptions in (d) Post, Illustrations, IV. (e) 39 & 40 Geo. 3, c. 98. (f) See Thellusson v. Woodford, 4 Ves. 227; 11 Ves. 112: Shaw v. Rhodes, 1 Mylne & C. tion, with only CHAPTER IV. favour of wills, (exceptions which permitted the inheritance to pass, even at law, without the word heirs, though not without some equivalent ingredient (g), and estates to arise by necessary implication), deeds and wills were really subject to the same canons of interpretation (h); but the lax language of the courts, in adjudicating upon wills, unfortunately laid them open to a kind of indefinite liberality. The generally liberal character of the law, as to both the substance and the form of dispositions. The law, in regard to the terms, as well as to the substance of the destination, even when effected by deed, was sufficiently indulgent. In framing deeds, no legal necessity imposed the observance of those forms which practice (and practice alone) had established, for the technical symmetry of a deed might be varied or discarded at pleasure; but an adherence to forms, approved and understood, conduces to perspicuity and certainty, and, strangely as this may sound, even to brevity. At the same time, the range allowed to the disposing power embraced almost every desirable modification of property. The ductility of our law, its capacity of ready adaptation to the progressive wants of society, was its great and peculiar merit. Indeed, without possessing that quality in an eminent degree, it could not have remained unassailed to so late a period in a country imbued with the free spirit of commerce, and ever intent on the increase and the various appropriation of its wealth. The skilful conveyancer, abundantly stored with such forms, and familiar with the flexible qualities of uses and trusts, executed the plans of pru (g) But see I Vict. c. 26, post, Chap. v. (h) "Deeds require particular words in particular cases to express a given purpose; but when that requisition is complied with, the rules of construction must be the same, for the intention is the object sought for in all alike." Wigram on Extrinsic Evidence, 2nd ed. 58, n.; and see Prest. Shep. Touch. 522, 534. dence, promoted the speculations of commerce, and not unfrequently humoured the schemes of vanity (i). CHAPTER IV. nendi an inse of property, Nor is it less worthy of remark, that, among all the The jus dispovarious interests which his art could raise in real property, parable incident but one solitary instance occurred of an interest absolutely with only one inalienable. If the income of an estate, or any con- exception. tinuing benefit to be derived out of it, was settled upon a woman for her sole use, free from marital control, with an express (k) prohibition against anticipation or alienation, she could not, while under coverture, dispose of her interest (1). With this exception, the impediments to alienation were entirely legal, resulting from the rules of tenure; for every other kind of equitable interest in land, from an equitable right to the fee-simple down to an equitable right to ten shillings out of the land, might be disposed of by a mere memorandum (m), drawn up in utter ignorance or contempt of technical form and phraseology. We have thus attempted to deduce the history of the law of real property down to a very recent period, and to make a practical application of the principles developed in its progress. In tracing the ownership of land from its originally simple uncompounded state, our attention has been fixed on the two great epochs formed by the early (i) See Hay. & Jarm. Concise Wills, 3rd. ed. 49, n. (y). (k) Sturgis v. Corp, 13 Ves. 190; Brown v. Like, 14 Ves. 302; Witts v. Dawkins, 12 Ves. 501; Glyn v. Baster, 1 Yo. & Jerv. 329. (1) Post, Illustrations, V. (m) "Any instrument which expresses an intention to transfer the beneficial ownership from one person to another is effective in a Closing reflectory of the law tions on the his of real proper ty; |