| 
1. Co. Litt. 49. a. 143. a. 2 Blacks. Com. 163. Preston on Estates, vol. i. 90, 91.
2. N.Y. Revised Statutes, vol. i. 723. sec. 10, 11.
3. Cornish's Essay on the Doctrine of Remainders, 1827, p. 96. Mr. Cornish pronounces his own definition to be accurate, but he is not remarkably happy, either in brevity, or neatness, or clearness of expression. He ought to be accurate ad unguem, for he has occupied upwards of seventy pages in a labored analysis to produce his definition; and some parts of his inquiry involve critical discussions upon the most abstruse, subtle, and artificial distinctions in the law. They could not be made intelligible without giving more space to them than these lectures will allow.
4. 2 Blacks. Com. 164.
5. Mr. Cornish has detected, in some ancient authorities, the evidence that partial interests, carved out of the inheritance, with a limitation of remainders over, existed among the Anglo Saxons.-Essay on Remainders, p. 3.
6. This is a clear principle of the common law; but the New York Revised Statutes, vol. i. 723. sec. 16. have changed the whole doctrine on this point, and allowed a contingent remainder in fee to be created on a prior remainder in fee, and to take effect in the event that the persons to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age. So, a fee maybe limited upon a fee, upon a contingency which, if it should occur, must happen within the period prescribed by the article, that is, two lives in being, at the creation of the estate. Ibid. sec. 24.
7. 10 Co. 97. b. 1 Eq. Cas. Abr. 186. E. 1. vide supra, p. 10. in notis.
8. 2 Inst. 336. Fearne on Rem. p. 7, 8.
9. Doe v. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 ibid. 253. Dansey v. Griffith, 4 Maule & Selw. 61. The series of cases on this subject, as Mr. Humphreys expresses it, in his Observations on Real Property, have been "obscurely shading down from a fee simple to a fee tail." The N.Y. Revised Statutes, (vol. i. 722. sec. 3, 4.) have provided for the preservation of valid remainders, limited upon every estate, which, under the English law, would be adjudged an estate tail. They are declared valid, as conditional limitations upon a fee, and vest in possession on the death of the first taker, without issue living at the time of his death.
10. Luddington v. Kine, 1 Lord Raym. 203. Doug. Rep. 505. note,
11. Cornish on Remainders, p. 27-29.
12. Doug. ub. sup.
13. N.Y. Revised Statutes, vol. i. 724. sec. 25.
14. Chadock v. Cowly, Cro. J. 695. 2 Blacks. Com, 381.
15. Preston on Estates, vol. i. 94, 98.
16. Preston on Estates, vol. i. 64. Mr. Preston says, there may be an executory interest, which is neither vested nor contingent, and yet carries with it a certain and fixed right of future enjoyment; and he instances the case of a devise of a freehold, to commence on the death of B. This, he says, is a certain interest, which is not executed immediately, so as to be vested; but this is excessive refinement. Is it not a vested right of future enjoyment? The distinction appears to be fanciful.
17. N.Y. Revised Statutes, vol. i. 723. sec. 13.
18. Fearne's Int. to his Treatise on Remainders.
19. 10 Co. 85. a.
20. Parkhurst v. Smith, Willes' Rep. 337. Fearne on Rem. 277.278. Mr. Cornish, however, observes very justly, that there are cases in which a remainder is vested, without a present capacity for taking effect in possession, if the particular estate were to determine immediately.-Essay on Rem. 102.
21. Fearne, 279-286.
22. Badger v. Lloyd, 1 Salk. 232. 1 Lord Raym. 523. S. C. Ives v. Legge, 3 Term Rep. 488. note. Thus, in a case of a devise to A. and the heirs of his body, and in default thereof to B.; or in the case of a devise to B., and after his death, without male issue, to C.; and after his death, without male issue, to D.; and if D. die without male issue, none of these prior devisees being living, to E. in fee; here the remainder to B., in the one case, and to E., in the other, is vested. There was a like decision in Luddington v. Kime, 1 Lord Raym. 203. though the judges were not unanimous on the question, whether the remainder was vested or contingent.
23. Willes' Rep. 337.
24. Cunningham v. Moody, 1 Vesey's Rep. 174. Doe v. Martin, 4 Term; Rep. 39.
25. Doe v. Lea, 3 Term Rep. 41. Stanley v. Stanley, 16 Vesey's Rep. 491. Doe v. Nicholls, 1 Barnw. & Cress. 336. Mr. Cornish, in his Essay on Remainders, 105. 107. considers this principle as a glaring anomaly in the law, holding an estate with words of inheritance, a mere chattel devolvable upon executors; and that if it was to be applied to conveyances instead of wills, it would extirpate the most rooted principles of the system of property.
26. Litt. sec. 416. Co. Litt. 252. a.
27. Fearne, p. 394-396. Doe v. Perryn, 3 Term Rep. 484. Lawrence v. Maggs, 1 Eden, 453. Doe v. Provoost, 4 Johns. Rep. 61. Right v. Creber, 5 Barnw. & Cress. 866. Annable v. Patch, 3 Pickering, 360.
28. Fearne on Rem. 3. Preston on Estates, vol. i. 71. 74.
29. The Mayor of London v. Alford, Cro. C. 576. 2 Co. 51. Cholmley's case. This difficulty is provided for by the N.Y. Revised Statutes, vol. i. 724. sec. 26. which declare that no future estate, otherwise valid, should be void, on the ground of the probability or improbability of the contingency on which it is limited to take effect.
30. 3 Co. 20. a. b. Lovie's Case, 10 Co. 85. a.
31. 3 Co. 20. a. Co. Litt. 378. a.
32. 3 Co. 20. a.
33. Cro. C. 102. 3 Co. 20. a. Fearne, p. 3-6. The examples which are here cited by Mr. Fearne to support and illustrate this classification of contingent remainders are mostly taken from Boraston's case, 3 Co. 19. As Mr. Fearne's treatise has attained the authority of a text book on this abstruse branch of the law, I have followed, though without entirely approving of his arrangement. The more comprehensive division by Sir William Blackstone, has the advantage of being less complex, and more simple. The definition in the N. Y. Revised Statutes, vol. i. 723. sec. 13. is brief and precise. A remainder, says the statute, is contingent, whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. Contingent remainders are divided by Sir William Blackstone into two kinds, viz. remainders limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event. The three first of Mr. Fearne's remainders are all resolvable into the contingency of a dubious and uncertain event, and it is only the last that is limited to a dubious and uncertain person. Lord Ch. J. Willes, in the opinion which he gave before the House of Lords, on behalf of all the judges, in the case of Parkhurst v. Smith, (Willes' Rep. 327.) declared, that there were but two sorts of contingent remainders; (1.) Where the person to whom the remainder was limited was not in esse; (2.) Where the commencement of the remainder depended on some matter collateral to the determination of the particular estate. He put, as an instance of the second kind, the case of a limitation to A. for life, remainder to B. after the death of C., or when D. returns from Rome; and Mr. Fearne's three first species of contingent remainders are included under the second class here stated. It must be admitted, in the words of Ch. J. Willes, that "the notion of a contingent remainder is a matter of a good deal of nicety." Professor Wooddeson, in his Vinerian Lectures, (vol. ii. 191.) though he had the classification of Mr. Fearne before him, followed that of his illustrious predecessor. Mr. Counish, in his recent work, severely criticises Mr. Fearne's classification of contingent remainders as not being tenable, though he admits that. it imparted a beautiful and scientific arrangement to his essay. Three of Mr. Fearne's sorts of remainders are avowedly identical. Mr. Cruise, on the other hand, in his Digest, has closely copied the arrangement of Mr. Fearne. On this vexatious subject of classifications, I am disposed to concur in the criticisms of Mr. Cornish; but in recurring to the chapter on expectant estates, in the commentaries of Sir William Blackstone, what a relief to the patience and taste of the reader! The doctrine of remainders, whether vested or contingent, is there most ably digested, and reduced to a few simple elementary principles. Its merits have never been duly acknowledged by subsequent writers on the subject. It far surpasses them all, if we take into one combined view, its perspicuity, simplicity, comprehension, compactness, neatness, accuracy, and admirable precision. I have read the chapter frequently, but never without a mixture of delight and despair.
34. Napper v. Sanders, Hutten, 118. Opinion of Lord Ch. J. Hale, in Weall v. Lower, Pollexfen, 67. Fearne, p. 17-23.
35. Shelley's case, 1 Co. 104. 2 Rol..Abr. 417.
36. Fearne on Rem. 32.
37. Fearne, 36.
38. Tippin v. Cosin, Carth. 272. 4 Mod. Rep. 380. S. C. Jones v. Lord Say and Seal, 8 Viner, 262. pl. 19. Shapland v. Smith, 1 Bro. 75. Silvester v. Wilson, 2 Term Rep. 444. Mr. Fearne on Remainders, p. 67. supposes the rule to be the same if the case was reversed, and the ancestor had the legal estate, and the limitation over to his heirs was ail equitable estate, as in a devise to A. for life, and after his death to the use of trustees, in trust for the heirs of his body. If such a devise in trust would not be a trust or use executed by the statute of uses, or entitled to the same construction as a legal estate, as I should think that it ought under the doctrine in Wright v. Pearson, (i Eden, 119.) yet the N.Y. Revised Statutes would operate to destroy such a trust, for it is declared, (vol. i. 727, 728. sec. 47. 49.) that every disposition of lands by deed or devise, shall be directly to the person in whom the right to the possession and profits shall be intended to be vested, and not to any other to the use of, or in trust for, such person; and if made to one or more persons, to the use of, or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee. The legal estate is attached to the beneficial interest. There would be no difficulty, therefore, under that statute, of the union of the two estates in the case stated by Mr. Fearne, for they would both be legal estates; and, upon the doctrine of the English law, the devisee for life would take an estate tail. But another insuperable obstacle to that conclusion occurs under the N.Y. Revised Statutes, which have destroyed the rule in Shelley's case, root and branch. It is declared, (N.Y. Revised Statutes, vol.i. 725. sec. 28.) that where a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body, of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. The limitation, then, in the case stated by Mr. Fearne, instead of being an estate tail, settles down into a contingent remainder. This is arriving, diver so intuitu, to the same result with the English theory. The extent and consequences of this alteration in the doctrine of real estates, we shall have occasion to consider hereafter.
39. Moore v. Parker, 1 Lord Raym. 37. where Lord Ch. J. Holt traces hack the distinction to 29 Edw. III. Doe v. Founereau, Doug. Rep. 487.
40. Butler's note, 261. to 2 Co. Litt. 299. b. The observations of Mr. Fearne, on this point, are with his usual acuteness.-Fearne on Rem. 85.
41. Mr. Preston, on Abstracts of Title, vol, i. 115. speaks too generally, when he says that all estates, arising from the execution of powers, operate by way of executory devise, or shifting use. There is no doubt that a remainder may arise under the execution of a power. Cornish on Remainders, p. 45.
42. Burchett v. Durdant, 2 Vent. 311. James v. Richardson, 2 Jones' Rep. 99. 2 Lev. 232. S. C. Goodright v. White, 2 Blacks. Rep. 1010. Lord Coke says, (Co. Litt. 24. b.) that if lands be given to A. and the heirs female of his body, and he dies leaving a son and daughter, the daughter shall inherit. But if A. has a son and daughter. and a lease for life be made, remainder to the heirs female of the body of A., the heir female takes nothing, for she must be both heir and heir female to take by purchase, and her brother and not she is heir. The distinction turns on the difference between the operation of words of limitation, and words of purchase. In the first case, the daughter takes by descent. and in the second she takes by purchase. and must answer to the whole description, of being both heir and female. Mr. Hargrave, in a long and learned note, (note 145.) undertakes to vindicate the reasonableness and solidity of this distinction of Lord Coke, against the severity of modern criticism. Mr. Fearne, (p. 277.) refers with great approbation to this note of Mr. Hargrave; but I notice it only as one strong illustration of the fact, that the English law of real property has, in the lapse of ages, become encumbered with much technical and abstruse refinement, which destroys its simplicity and good sense, and renders it almost impossible for ordinary minds to obtain the mastery of the science. Lord Chancellor Cowper's scorn of this distinction is very apparent in his powerful and spirited opinion in Brown v. Barkham, (Prec. in Chan. 461.) where he says, that "it has no foundation in natural reason, but is raised and supported purely by the artificial reasoning of lawyers. "Lord Hardwicke, also, when the same case was brought before him, on a bill of review, declared himself "fully convinced of the unreasonableness of the rule," though he bowed to the authority of it.
43. Essay on Rem. p. 300.
44. Napper v. Sanders, Hutton, 119, Tracey v. Lethieulier, 3 Atk. Rep. 774. Amb. 204. S. C. Horton v. Whitaker, 1 Term Rep. 346.
45. Davis v. Norton, 2 P. Wms. 390. Doe v. Shippard, Doug. Rep. 75.
46. Scatterwood v. Edge, 1 Salk. Rep. 229. Avelyn v. Ward, 1 Vesey's Rep. 422. To those who wish to pursue into greater detail these abstruse distinctions, I refer to Mr. Fearne's analysis of the cases which declare and enforce them, in order to carry into effect the intention of the testator.-Fearne on Rem. p. 300-317. It would certainly be incompatible with the general purpose of these essays, to be raking in the ashes of antiquated cases, and critically sifting dry facts and circumstances arising on wills and settlements, merely to arrive at some technical reasoning, adapted to promote the testator's or the settlor's views. As far as it is necessary, on this subject, it is happily done to our hand, by the acute investigations of Mr. Fearne himself.
47. 1 Co. 104.
48. 1 Preston on Estates, vol. i. p. 263--419.
49. I have ventured to abridge the definition in a slight degree, and with some small variation in the expressions, without intending to impair its precision.
50. Pibus v. Mitford, 1 Vent. 372. Hayes v. Foorde, 2 Blacks. Rep. 698. Fearne on Rem.42. 52, 53.
51. The case of the Provost of Beverley, 40 Edw. III. Preston on Estates, vol. i. 304.
52. Harg. Law Tracts, 501.
53. Fitz. Abr. tit. Feoffment, p.109. Co. Litt. 22. b. 319. b. 2 Rol, Abr. 417.
54. Harg. Law Tracts, 489.
55. Ibid. 551.
56. 2 Burr. Rep. 1100.
57. Trevor v. Trevor, 1 Eq. Cas. Abr. 387. pl. 7. Jones v. Laughton, ibid. 392. pl. 2. Streatfield v. Streatfield, Cases temp. Talb. 176. Honor v. Honor, 2 Vern. 658. Bale v. Coleman, 1 P. Wms. 142 Highway v. Bonner, 1 Bro. 584.
58. Fearne. p. 141.
59. Yates J., in Perrin v. Blake.
60. 1 Vesey's Rep. 142. 2 Atk. Rep. 346. 570. 1 Coll. Jurid. No. 15. In this last work, the case is very fully reported, and taken from an original MS.
61. Fearne, 141. 175-181.
62. 2 Atk. Rep. 246. Str. 1125.
63. 1 Eden, 119. Fearne on Rem. 159-169.
64. 1 Bro. 206.
65. In Papillon v. Voice, 2 P. Wms. 471. Lord King very clearly illustrated the distinction between executory and executed trusts. Where the devise was of lands to B. for life, with remainder to trustees, to support contingent remainders, remainder to the heirs of the body of B., the limitation was held to be an estate tail in B.; but so far as the will directed lands to be purchased, and settled in the same way, it was an executory estate, or trust, and the intention was to govern, and not the rule of law.
66. Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Co. Litt. 319. b.
67. Burchett v. Durdant, 2 Vent. 311. Carth. 154. S. C.
68. Archer's case, 1 Co. 66. Lisle v. Gray, 2 Lev. 223. T. Raym. 315. S. C. Luddington v. Kime,1 Lord Raym. 203. Backhouse v. Wells, 1 Equ. Cas. Abr. 184. pl. 27. Doe v. Laming, 2 Burr. Rep. 1100. Mr. Justice Blackstone's argument in Perrin v. Blake, Harp;. Law Tracts, 504, 505.
69. 1 Col. Jurid. No. 10. 4 Burr. Rep. 2579.
70. The case of Perrin v. Blake was first brought into discussion before the K. B. in 1769, and decided there in February, 1770, but the litigation upon that will involving merely the validity of a widow's jointure of 1000 pounds a year, was first commenced by an action of ejectment in the Supreme Court of the island of Jamaica, as far back as the year 1746; and after the question had traveled, in two ejectment suits, through the Supreme Court, and the Court of Appeals and Error in Jamaica, it passed the Atlantic on appeal in each suit to the king in council. After a reversal in one suit, a new ejectment was instituted in the island of Jamaica, and it passed through the Court of Appeals and Errors there, and back again to the king in council, and then, upon recommendation, the question was brought before the K. B. as already stated. The final termination (by mutual consent) of this protracted litigation, was in 1777, after an exhausting strife of upwards of thirty years. See Barg. Law Tracts, 489-493. in the notes.
71. Archer's case, 1 Co. 66. Waker v. Snowe, Palm. 359. Lisle v. Gray, 2 Lev. 223. and these two last cases arose upon deeds. Backhouse v. Wells, 1 Equ. Cas. Abr. 184. Luddington v. Kime, 1 Lord Raym. 203. Bagshaw v. Spencer, 1 Coll. Jurid. No. 15.
72. Lord Mansfield's opinion does not appear, upon the whole, to be equal to the occasion, or on a level with his fame. It is not to be Compared, in research or ability, to that of Lord Hardwicke in Bagshaw v. Spencer, and some of his reflections had a sarcastic allusion. "There are, and have been always," he observed, "lawyers of a different bent of genius, and different course of education, who have chosen to adhere to the strict letter of the law, and they will say that Shelley's case is uncontrollable authority, and they will make a difference between trusts and legal estates to the harassing of a suitor." Mr. Justice Yates, who dissented from the opinion of his brethren in this case, and in whose presence these words were pronounced, immediately resigned his seat as a judge, and was transferred to the C. B. He resigned, says Junius, (Letter to Lord Mans, field,) because, "after years of ineffectual resistance to the pernicious principles introduced by his lordship, and uniformly supported by his humble friends upon the bench, he determined to quit a court whose proceedings and decisions he could neither assent to with honor, nor oppose with success." But all this was monstrous exaggeration, and that celebrated and still unknown author was, in this instance, so far overcome by the malignity of his temper, and the bitterness of his invective, as to be utterly regardless of truth. Mr. Justice Yates had been associated with Lord Mansfield on the bench from January, 1764, to February, 1770, and, with the exception of this case of Perrin v. Blake, and the great case of Miller v. Taylor, concerning copyright, there was no final difference of opinion in the court in any case, or upon any point whatsoever. Every order, rule, judgment, and opinion, until the decision in the latter case, in April, 1769, had been unanimous. (See 4 Burr. Rep. 2395. 2582.) It was, however, greatly to the credit of Judge Yates's abilities as a lawyer, that in both of these cases in which he dissented from the decision of the K. B., and on very nice and debateable questions, the decision was reversed upon error.
73. 2 Burr. Rep. 1100.
74. Harg. Law Tracts, 489.
75. 1 Bro. 206.
76. My objection to the work of Mr. Preston is, that he has analysed, and divided, and subdivided the subject, already sufficiently intricate., until he has involved it still deeper in "involutions wild."
77. Mantica, a civilian, wrote a learned treatise, de conjecturis ultimarum voluntatum, and Sir William Blackstone hoped never to see such a title in the English law.
78. Fearne on Rem. 223.
79. 1 Bro. 206,
80. Doug. Rep. 337.
81. 7 Term Rep. 531.
82. Doe v. Colyear, 11 East's Rep. 548. Doe v, Jesson, 2 Bligh, 2. Doe v. Harvey, 4 Barnw. & Cress. 610.
83. Dott v. Cunnington, 1 Bay, 453.
84. Carr v. Porter, 1 McCord's Ch. Rep. 60.
85. 2 Wash. Rep. 9.
86. 4 Harr. & Johns. Rep. 431.
87. 6 Harr. & Johns. Rep. 364.
88. 1 Dallas' Rep. 47.
89. 3 Binney's Rep. 139.
90. 1 Day's Rep. 299.
91. 5 Conn. Rep. 100. I have not seen the statute, and am not informed to what extent it goes with the rule.
92. 2 John. Gas. 384.
93. N.Y. Revised Statutes, vol. i. 725. sec. 28.
94. The juridical scholar, on whom his great master, Coke, has bestowed some portion of the "gladsome light of jurisprudence," will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict, as sweeping and unrelenting as the torch of Omar. He must bid adieu for ever to the renowned discussions in Shelley's Case, which were so vehement and so protracted as to arouse the scepter of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skillful criticism, and refined distinctions, which pervade the varied cases in law and equity, from those of Shelley and Archer, down to the direct collision between the courts of law and equity, in the time of Lord Hardwicke. He will have no more concern with the powerful and animated discussions in Perrin v. Blake, which awakened all that was noble and illustrious in talent and endowment, through every precinct of Westminster Hall. He will have occasion no longer, in pursuit of the learning of that case, to tread the clear and bright paths illuminated by Sir William Blackstone's illustrations, or to study and admire the spirited and ingenious dissertation of Hargrave, the comprehensive and profound disquisition of Fearne, the acute and analytical essay of Preston, the neat and orderly abridgment of Cruise, and the severe and piercing criticisms of Reeve. What I have, therefore, written on this subject, may be considered, so far as my native state is concerned, as a humble monument to the memory of departed learning.
95. Plowd. 25. a. Dr. & Stud. Dial. 2. ch. 20. Moor v. Parker, 4 Mod. Rep. 316.
96. Barwick's Case, 5 Co. 94. b.
97. 2 Blacks. Com. 166.
98. Litt. sec. 60. Co. Litt. ibid. Co. Litt. 217. a. Plowd. 25. The refinements anciently adopted upon this rule were very subtle and technical. Thus, to use the illustrations made by one of the sergeants in the case from Plowden, if a lease be made to A. for years, and the lessor afterwards confirms the estate for years, with remainder over in fee, the remainder is void, because the estate for years was created before, and not at the time of, the confirmation and the remainder. And if the lessor disseize his tenant for life, and then grants him a new lease, with remainder over in fee, the remainder is void, because the tenant for life is remitted to his first estate. So, if the heir endows the widow with remainder over in fee, the remainder is void, though livery of seizin be made to the widow, because the dower has relation back to the death of the husband, and therefore the remainder was not coeval with it in point of time. To destroy an estate by the operation of such legal fictions, is very unreasonable and absurd. It is actually reversing the maxim, that in fictione juris semper cequitas existit.
99. Bacon's Abr. tit. Remainder and Reversion, G. This head of G willim's Bacon was taken from a MS. treatise, by Lord Ch. B. Gilbert, furnished by Mr. Hargrave.
100. Supra, p. 122.
101. Wms. Jones' Rep. 58. Co. Lint. 298. a. 1 Rot. Abr. 474. P.
102. Co. Litt. 298. a.
103. 3 Bro. C. C. 393.
104. Plowd. 35. a. Dyer, 140. b.
105. Sergeant Rolle cites for this 9 Hen. VI. 24. b. and he raises the true distinction in this respect between a grant and a devise. 2 Rol. Abr. 415. C. The same examples, byway of illustration, taken by Rolle from 9 Hen. VI. are relied on in Plowden, 35. a. 414. a. and in Comyn's Dig. tit. Estate, B. 14. in support of the same rule.
106. Co. Litt. 217. a. 1 Co. 130. 134. b.
107. Goodright v. Cornish, 1 Salk. Rep. 226.
108. Ellie v. Osborne, 2 Vern. Rep. 754.
109. Lord Mansfield, 1 Burr. Rep. 107.
110. T. Raym. 140.
111. 12 Mod. Rep. 174.
112. Delamere v. Sermon, Plowd. Rep. 346.
113. Sugden on Powers, 2d London ed. 13,14.
114. Dyer, 340. a. 2 Leon. 14.
115. 1 Leon. 256.
116. 1 Co. 120. 1 Anderson, 309. Mr. Sugden says, that Ch. J. Anderson's report of this case is indisputably the best, and an abstract of the translation of it is in Gilbert's Uses, by Sugden, App. p. 521
117. Chudleigh's case was argued several times before all the judges of England, and we find the great names of Bacon and Coke among the counsel who argued the cause. The case is replete with desultory and curious discussion, and some of it Lord Hardwicke admitted to be so refined and speculative, as not to be easily understood. The disposition and policy of the judges' was to check contingent uses, which they deemed to be productive of mischiefs, and tending to perpetuities. They regarded the statute of uses as intending to extirpate uses, which were often found to be subtle and fraudulent contrivances, and their evident object was to restore the simplicity and integrity of the common law. Notwithstanding the scholastic and mysterious learning with which this case abounds, it carries with it decisive evidence of the acuteness, industry, and patriotic views of the sages of the law at that day.
118. 1 Vent.306.
119. See Sugden on Powers, ch. 1. sec. 3. who has ransacked all these cases, and whose clear analysis of them has guided, and greatly assisted me. Mr. Preston, in his Treatise on Estates, vol. i. 160-171. has gone over the same cases, though riot in the same critical and masterly manner.
120. Chudleigh's Care, ub. sup. Wegg v. Villers, 2 Rol. Abr. 796. 11-16.22. Viper. 228. 229. S. C.
121. Preston on Estates, vol. i. 159. Cruise's Dig. tit. Remainder. ch.5 sec. 3. 5. ch. 6. sec. 37. 39.
122. Fearne on Rem. 377 - 380.
123. Mr. Sugden, in his Treatise on Powers, p. 38 says, that covenants to stand seized are, at this day, wholly disused. This I should not have supposed from the great use of them in the precedents, and Lord Ch. J. Pollexfen, in Hales v. Risley, (Pollex. Rep. 383.) speaks of covenants to stand seized, as one of the usual modes of raising uses in marriage settlements. It was said by Newdigate, J. in Heyns v. Villars, (2 Sid. Rep. 158.) that a contingent use could not be raised by bargain and sale; and Mr. Sugden is of the same opinion, because a bargain and sale requires a consideration, and the intended cestui que use, not in esse, cannot pay a consideration, and a consideration paid by the tenant for life, would not extend to the unborn son. (Gilbert on Uses, by Sugden, p. 398.) Lord Ch. Baron Gilbert raises a doubt upon the same point, and this is no doubt the settled English rule, but it is a hard and unreasonable technical objection, and the good sense of the thing is, that the consideration paid by the tenant for life, should enure to sustain the deed throughout, in like manner as a promise to B., for the benefit of C., will enure to the benefit of C., and give him a right of action. (Dutton v. Pool, 2 Lev. 210. T. Raym. 302. Schermerhorne v. Vanderheyden, 1 Johns. Rep. 139. Owings v. Owings, 1 Harr. 4 Gill, 484.) The consideration requisite is merely nominal. A peppercorn is a sufficient consideration to raise a use. (Anon. 2 Vent. 35.) If no consideration be stated in the pleadings, setting forth a deed of bargain and sale, the omission is but matter of form, and can only be objected to on special demurrer. (Bolton v. Bishop of Carlisle, 2 H. Blacks. Rep. 259.) And why should not the courts admit the consideration paid by the tenant for life to enure to sustain the deed, with all its contingent uses? An assignment of property to a creditor is good without his knowledge, if he comes in afterwards and assents to it, (7 Wheat. Rep. 556. 11 ibid. 97.) and why should not the son, when he comes in esse, be permitted to advance a consideration, and give validity to the use? In New York, the question can never hereafter arise, for we have no longer any conveyances to uses. The statute of uses is repealed, and uses are abolished and turned into legal estates, except so far as they may exist in the shape of trusts, or be attendant on powers. All future or expectant estates, and all vested estates and interests in land are equally conveyed by grant. Feoffments and fines are abolished, and though deeds of bargain and sale, and of lease and release, may continue to be used, they shall be deemed grants. N.Y. Revised Statutes, vol. i. 727. sec. 45. Ibid. 725. sec. 35. Ibid. 738, 739. See. also, further on this subject, infra.
124. Sugden on Powers, ch. i. sec. 3.
125. Preston on Estates, vol. i. 164-184. It is very extraordinary that Mr. Cornish should undertake to write and publish from the temple, an Essay on the Doctrine of Remainders, so late as 1827, and assert that the doctrine of scintilla juris rested on paramount authority, without even once taking notice of such full and exhausting discussions in opposition to it, by such masters of the science as Preston and Sugden. Is it possible that he had never read these treatises? If not, pro pudor!
126. N.Y. Revised Statutes, vol. i. 725. sec. 34.
127. Ibid. vol. i. 727. sec. 45. 50. 55.
128. Ibid. vol. i. 728. sec. 49. See also, infra, under the head of Uses and Trusts.
129. Fearne, p. 383, 384. Preston on Estates, vol. i. 241. In Hopkins v. Hopkins, Cases temp. Talbot, 43., Lord Talbot considered such a limitation as good by way of executory devise, but, afterwards, in Chapman v. Blissett, ibid, 145. he held it to be good either way, and might be taken as a future limitation, or as a contingent remainder of a trust. A strict conditional limitation does not require any particular estate to support it. But the difficulty of distinguishing between such a limitation and a contingent remainder, has been already noticed, (see supra, p. 123.) and in Doe v. Heneage, (4 Term Rep. 13.) both the bar and bench assumed a conditional limitation to be, what Mr. Cornish says (Essay on Remainders, p. 221.) it was not, viz. a contingent remainder. If this be so, the distinction must be very latent and fine spun, to have escaped detection by such judges as Lord Kenyon, and Mr. Justice Buller!
130. Plowd. 25. 28. Co. Litt. 49. a. b.
131. Colthirst v. Bejuskin, Plowd. Rep. 25. Archer's case, 1 Co. 66. Chudleigh's case, 1 Co. 138.
132. 3 Co. 21. a. 2 Blacks. Com. 168. Preston on Abstracts, vol. i. 114.
133. Cogan v. Cogan, Cro. Eliz. 360. Plowd. Rep. 24. b. 29. a. b.
134. Plowd. Rep. 29. b.
135. Fearne, p. 332.
136. Fearne, 319.
137. See supra, p. 123
138. Vol. i. 725. sec. 27.
139. N.Y. Revised Statutes, vol. i. 723. sec. 16.
140. N.Y. Revised Statutes, vol. i. 724. sec. 16.
141. ibid. sec. 19. Vide supra, p. 17.
142. Ibid. sec. 20.
143. Ibid. sec. 21
144. Ibid. sec. 24.
145. Ibid. sec. 25, 26.
146. N.Y. Revised Statutes, p. 725. sec. 29.
147. Ibid. sec. 32, 33, 34.
148. Ibid. vol. i. 750. sec. 1l.
149. Bro. tit. Done and Rem. pl. 21. Matthews v. Temple, Comb. 467. Fearne, p. 393.
150. Fearne, p. 426. Lane v. Pannel, 1 Rol. Rep. 238. 317. 438. Harrison v. Belsey, T. Raym. 413.
151. Archer's Case, 1 Co. 66. Chudleigh's Case, 1 Co. 120. 137. b. 2 Rol..Abr. 418. pl. 1, 2. Purefoy v. Rogers, 2 Lev. 39. Chudleigh's case is a strong authority to prove that a feoffment, without consideration, and even with notice in the feoffee of the trust, will destroy a contingent remainder. It is a doctrine flagrantly unjust, and repugnant to every settled principle in equity, as now understood.
152. Co. Litt. 252. a. There has been a long and vexed question in the English law, how far a common recovery, suffered by a tenant in tail, would bar a remainder to the king. It was declared by the highest authorities in the House of Lords, in the late case of Blasse v Clanmorris, (3 Bligh, app. 62.) to be still a doubtful point of law. I allude to it merely as fresh proof of the everlasting uncertainty that perplexes this branch of legal science.
153. Purefoy v. Rogers, 2 Saund. Rep. 386.
154. Fearne on Rem. p. 432-434.
155. 7 Taunton's Rep. 362. This is one among a thousand samples of the refinements which have gradually accumulated, until they have, in a very considerable degree, overshadowed and obscured many parts of the English law of real property. It has become almost as laborious a task to undertake to master the science, as it would be to understand the scholastic subtleties of the schoolmen of the middle ages, or the mystical metaphysics of the modern Germans. I am more and more impressed with a sense of the great utility of the New York provision, rescuing contingent remainders by legislative authority, from all perplexing dependence on the particular estate.
156. Lord Hardwicke, in Lethieullier v. Tracy, 3 Atk. Rep. 730.
157. 5 Vesey's Rep. 648. This has been done, as we have already observed, in New York, by the N.Y. Revised Statutes, vol. i. 725. sec. 32. 34. rendering expectant estates or remainders no longer dependent on the continuance of the precedent estate. Mr. Cornish thinks that the doctrine of remainders can scarcely be said to apply to equitable estates, for every ulterior limitation of a trust is, in substance, an executory trust, and more analogous to a future use or executory devise, than to a remainder.-Cornish on Rem. 208.
158. Gilbert's Law of Uses, by Sugden, 312. Litt. sec. 600. Magennis v McCullough, Gilbert's Rep. 236.
159. Fearne, p. 405, 406.
160. Thompson v. Leach, 2 Salk. Rep. 576. Hale, Ch. J. in Purefoy v. Rogers, 2 Saund. Rep. 387. Fearne, p. 438, 439. 2 Woodd. Lec. 196, 197.
161. 2 Blacks. Com. 171. Fearne, 409, 410,
162. Mansel v. Mansel, 2 P. Wms. 678.
163. Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Platt v. Sprigg, 2 Vern. Rep. 303. Frewin v. Charleton, 1 Equ. Cas. Abr. 380. pl 4. Symance v. Tattam, 1 Atk. Rep. 613. Fearne, 410-423. Biscoe v. Perkins, 1 Ves. & Beames. 485.
164. Sir Edward Cleve's case, 6 Co. 17. b. Davies v. Speed, Carth. Rep. 262. Purefoy v. Rogers, 2 Saund. Rep. 380. Plunkett v. Holmes, T. Raym. 28. Lord Parker. in Carter v. Barnadiston. 1 P. Wms. 516.
165. Preston on Estates, vol. i. 240. 242.
166. 1 P. Wms. 505.
167. In New York, the conveyances by feoffment, with livery, and by fines, and common recoveries, are abolished. N.Y. Revised Statutes, vol. i. 738. sec. 136. Ibid. vol. ii. 343. sec. 24. All conveyances are now to be deemed grants, and though deeds of bargain and sale, and of lease and release, may be used, they are to be deemed grants. This was a common law conveyance, and it is now declared to pass all the interest of the grantor, if so intended. (Ibid. 739. sec. 138. 142. Ibid. 748. sec. 1, 2.) I see no reason why the question in the text should not apply to grants in New York, equally as it would have done to feoffments with livery before they were abolished.
168. Fearne, p. 452-458. That an estate in abeyance is to be considered as in nubibus, was a doctrine frequently suggested and admitted in Plowden. (p 29. a. 35. a. 556. 563, 564.) and Lord Coke, in Co. Litt. 342. b. said, that an estate placed in such a nondescript situation, had the quality of fame-inter nubile caput. This does not help the matter, but such an occasional glimpse at fairy land, serves at least to cheer us amidst the disheartening gloom of the subject.
169. Bro. tit. Done Rem. pl. 6.. Gawdy, J. in Chudleigh's case, 1 Co. 135.
170. Hob. 153
171. Hob. 153. Sir William Blackstone's argument in Perrin v. Blake. Preston on Estates, vol. i. 220. 249-255.
172. Preston on Estates, vol. i. 255. Preston on Abstracts, vol. ii. 103-106.
173. Cornish's Essay on Remainders, p. 175.
174. There can be no doubt, though good sense was with Mr. Fearne, that the book authorities are against him. We cannot surmount the technical rule, if technical rules are binding in questions on property. The one in this case deduces its lineage from high antiquity. It is found in the Year Books, and is dispersed over Plowden and Coke. Mr. Preston and Mr. Cornish have the undoubted advantage, and though Mr. Fearne's Treatise on Remainders is distinguished for its searching analysis of cases, he has abandoned them in this instance, and followed the irresistible impulse of his judgment. Those other writers are equally masters of abstruse law, and the latter in particular is a shrewd and dry critic, dealing in occult points. The fee will take an occasional flight to the clouds, and cannot be stayed, for common sense is disabled, and pierced by the longe fallente sagitta!
175. Co. Litt. 352. a.
176. Weale v. Lower, Pollex. Rep. 54. 61.
177. Co. Litt. 45. a.
178. Roe v. Jones, 1 H. Blacks. Rep. 30. Moor v. Hawkins, cited in 1 H. Blacks Rep. 33. Jones v. Roe, 3 Term Rep. 88. Roe v. Griffiths, 1 Wm. Blacks. Rep. 605.
179. Fearne, 459. Preston on Abstracts, vol. ii. 119. I apprehend, that the rule at the common law, that executory interests cannot be transferred by deed, except by way of estoppel, no longer exists in New York. By the N.Y. Revised Statutes, (vol. i. 723. sec. 9, 10. 13. ibid. 725. sec. 35.) estates in expectancy include all future estates, vested and contingent, and all expectant. estates are descendible, devisable, and alienable, in the same manner as estates in possession. This sweeping provision would seem to embrace every executory and contingent interest, and all conveyances whatsoever are reduced to simple grants.