« PrejšnjaNaprej »
tion, in his use of the words, heirs, &c., we cannot refer the student to a better medium than the principles laid down by Mr. Hargrave, in his masterly observations on the rule in Shelley's case. That profound writer observes, that when it is once settled, that the donor or testator has used words of inheritance according to their legal import; has implied them intentionally to comprise the whole line of heirs to the tenant for life; and has really made him the terminus or ancestor, by reference to whom the succession is to be regulated; then it will appear, that being considered according to those rules of policy from which it originated, it is perfectly immaterial whether the testator meant to avoid the rule or not; and that to apply it, and to declare the words of inheritance to be words of limitation, vesting an inheritance in the tenant for life as the ancestor and terminus to the heirs, is a mere matter of course. That on the other hand, if it be decided, that the testator or donor did not mean by the words of inheritance after the estate for life, to use such words in their full and proper sense; nor to involve the whole line of heirs to the tenant for life, and include the whole of his inheritable blood, and make him the ancestor or terminus for the heirs; but intended to use the word heirs in a limited, restrictive, and untechnical sense, and to point at such individual person, as should be the heir, &c., of the tenant for life at his decease; and to give a distinct estate of freehold to such single heir, and to make his or her estate of freehold the groundwork for a succession of heirs; and constitute him or her the ancestor terminus and stock for the succession to take its course from; in every one of these cases the premises are wanting, upon which only the rule in Shelley's case interposes its authority, and
that rule becomes quite extraneous matter. The previous inquiry, therefore, will be, whether, by a remainder to the heirs, either general or special, of a preceding tenant for life, it is the meaning of the instrument to include the whole of his inheritable blood, the whole line of his heirs; or to design only certain individual persons answering to the description of heirs at his death. If the former is the sense, the rule always applies; and, by vesting the remainder in the tenant for life, forces it to operate by limitation, even though the instrument should contradictorily and inconsistently add in express terms, that the remainder shall operate as a contingent one, and enure so as to make the heirs purchasers. If the latter sense is adopted, the rule is as invariably foreign to the case; and the remainder consequently is contingent till the death of the tenant for life, upon which event his heir takes it by purchase. 1 Hargr. Law Tracts, 575, 577. This idea of the rule, which will be ever admired for its simplicity and clearness, has been confirmed by Lord Thurlow, in his determination in the case of Jones vs. Morgan, 1 Bro. C. C. 220, and by Mr. Fearne, in his elaborate Essay on Contingent Remainders.'
SECTION 82. LEGAL AND EQUITABLE ESTATES.
A classification of estates not yet referred to is that of legal and equitable estates. This subject has so far been taken up with the treatment of legal estates.
An equitable estate is one where there is a separation of the legal title and the beneficial use, and which a person known as the trustee holds for the benefit of the other person known as cestui que trust.
Trust is a separate subject in this work, and to • Vol. 7, Sub. 21.
avoid repetition on matters relative to equitable estate, including the subjects of contingent, springing and shifting uses, will be taken up at that place. The rule against perpetuities, and the rule against accumulations, will also be treated under that subject.
SECTION 83. TESTAMENTARY CONVEYANCES.
The law is much more liberal as to conveyances by will than as to conveyances by deed. Many conveyances which would be void if created in a deed are valid if made by will. Such conveyances are known as executory devices and will be considered under the subject of wills.?
SECTION 84. MERGER.
A merger is the absorption of a smaller estate into a greater. A merger will take place where two estates come into the possession of the same party, where there is no intermediate estate and where the interests of third persons will not be affected by such merger. 1 Vol. X, Subject 32.
FORMS OF CONVEYANCES.
SECTION 85. IN GENERAL. "All of the various forms of deeds now in common use in this country derive their origin from the land and conveyancing system of Great Britain, and are but modifications of two species, one of which was developed by the common law, while the other was created under the operation of the statute of uses. From these two species the conveyancers evolved a number of divergent and complex forms, characterized, in the main, by much ingenious subtly and legal refinement.” 1
SECTION 86. COMMON LAW ORIGINAL DEEDS.
The original method of transferring land under the common law was by what was known as livery of seisin,' without any written deeds, these only coming in at a later period. Five forms of original land conveyances were recognized by the law writers: Feoffment, gift, grant, lease, exchange and partition.
Feoffment was used to create estates in fee-simple; gift to create estates in fee-tail; grant to create an incorporeal hereditament; lease to create an estate less than fee-hold.
SECTION 87. COMMON LAW DERIVATIVE DEEDS.
Five forms of derivative conveyances were also recognized: release, confirmation, surrender, assignment, and defeasance. 1 Warvelle on Real Property, page • See Chapter I on this subject, and 319.
also subject of Legal History,
Vol. I of this series. Vol. VI.-10.