that contingent remainders might be thus destroyed, and that was to prevent perpetuities, which were so odious in the ancient law." The decision in Chudleigh's case settled the doctrine, that contingent remainders, even by way use, were destroyed by the destruction of the particular estate. The judges gave the same operation to a feoffment in regard to contingent uses, as they did in respect to contingent remainders."

The fiction of a scintilla juris, or possibility of entry in the feoffees, or releases to uses, sufficient to feed the contingent uses when they come into existence, and thereby to enable the statute to execute them, has been deduced from these ancient cases. Such a par*242 ticle of right or interest *has been supposed to be indispensable, to sustain the contingent use. Upon conveyances to uses, when there is a person in esse seised to the uses, the seisin is immediately transferred to the cestui que use, and the whole estate is divested and drawn out of the feoffee or release. But contingent uses cannot be executed when there is no cestui que use in existence; and the doctrine has been stated, (and it was assumed by the judges in Chudleigh's case,) that there was a necessity of supposing some person seised to the use, when the contingency arose, to enable the statute to operate. There must be a person seised, and a use in esse, or there cannot be an execution of the possession to the use. The estate in the land is supposed to be transferred to the person who hath the estate in the use, and not to the use; and it is inferred, that no use can become a legal interest, until

* See 1 Vent. 306, where this principle is asserted.

See Sugden on Powers, c. 1, sec. 3, who has examined 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 not in the same critical and masterly manner.

22.

• Chudleigh's case, supra.

Wegg v. Villers, 2 Rol. Abr. 796, pl. 11—16.

Viner, 228, 229, S. C.

there shall be a person in whom the estate may vest. When the estate of the use is divided into portions, and there is a discontinuance of the legal estate, the contingent remainder by way of use cannot be continued, until the trustee, or the tenant of some preceding vested estate, hath by entry or action regained the seisin, so as to serve and supply the contingent uses when the contingency happens. To meet the difficulty, recourse was had to the refinement of a scintilla juris remaining in the feoffee to uses; and if the contingent use, limited upon a precedent estate of freehold, should be divested, actual entry was deemed necessary to revest the scintilla juris of the feoffees, or releases to uses, and thereby enable them to support the contingent, springing, or shifting use when it arises. There must be either an actual seisin to support the contingent use, or this possibility of entry or scintilla; and if such seisin or scintilla be divested before the use arises, as was the fact in Chudleigh's case, the use is totally destroyed."

*This view of the subject has been met and *243 opposed by some of the most distinguished writers on real property at the present day.

Mr. Fearne questions the existence and application of the doctrine of the scintilla juris to that extent, and denies the necessity of actual entry, any more in the case of contingent uses, than in the case of contingent remainders, in order to regain the requisite seisin to serve the contingent uses. He denies the necessity of actual entry by any person to restore a contingent use, so long as a right of entry subsists in the cestui que use; and the scintilla juris, if of any real efficacy, must be competent to serve contingent uses without the necessity of actual entry. The whole controversy relates to

* Preston on Estates, vol. i. 159. Cruise's Dig. tit. Remainder, c. 5, sec. 3. 5, c. 6, sec. 37. 39.

Fearne on Remainders, 377–380.

the common law conveyances, as feoffments, releases, fines, and recoveries, which operate by transmutation of possession, and under which the fee-simple vests in the feoffees, and the uses arise out of their seisin. Mr. Sugden takes a higher and bolder stand, and, by a critical review of all the cases, puts to flight this ignis fatuus of a scintilla, and shows that it never had any foundation in judicial decisions, but was deduced from extra-judicial dicta. He considers that the fiction operates mischievously, by requiring actual entry to restore the divested estate, or a feoffee to uses actually existing when the contingent uses arise. The sound construction of the statute requires, that limitations to uses should be construed in like manner as limitations at common law. Thus, if by feoffment, or release to some third persons, (who are generally strangers in interest

to the estate,) or by covenant to stand seised, or, *244 perhaps, by bargain and sale, a use *be limited

a

Mr. Sugden, in his Treatise on Powers, 38, says, that covenants to stand seised 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 the covenants to stand seised, as one of the usual modes of raising uses in marriage settlement. 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, 398. Lord Chief 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. & Gill, 484. Sailly v. Cleveland, 10 Wendell, 156. Kemper v. Smith, 3 Martin's Louis. Rep. 622. Carnegie v. Morrison, 2 Metcalf Rep. 381. 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 plead

to A. for life, remainder to trustees to preserve contingent uses, remainder to the first and other unborn sons in tail, the use is vested in A., and the uses to the sons are contingent, depending on the particular estate; and in case of a feoffment and release by A., the tenant for life, the uses would be supported by the right of entry in the trustees. The feoffees, or releases to uses, could neither destroy nor support the contingent

uses.

The statute *draws the whole estate in the *245 land out of the feoffees, and they become divested, and the estates limited prior to the contingent use, take effect as legal estates, and the contingent uses take effect as they arise by force of the original seisin of the feoffees. If there be any vested remainders, they take effect according to the deed, subject to divest, and open, and let in the contingent uses, in the proportions in which persons afterwards arising may become capable of taking under the limitation. To give a fuller illustration of this abstruse point, we may suppose a feoffment in fee to A., to the use of B. for life, remainder to his first and other sons unborn, successively in tail, remainder to C. in fee; the statute immediately

ings, 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 adinit 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. New-York Revised Statutes, vol. i. 727, sec. 45. Ibid. 725, sec. 35. Ibid. 738, 739. See also further on this subject, infra, 491.

draws the whole estate out of A., and vests it in B. for life, remainder to C. in fee, and those estates exhaust the entire seisin of A., the feoffee. The estate in contingency in the unborn sons, is no estate until the contingency happens; and the statute did not intend to execute contingent uses, but the contingent estates are supported by holding that the estates in B. and C. were vested sub modo only, and would open, so as to let in the contingent estates as they come in esse. There is no scintilla whatever remaining in A., the feoffee, but the contingent uses, when they arise, take effect, by relation, out of the original seisin. By this clear and masterly view of the subject, Mr. Sugden destroys all grounds for the fiction of any scintilla juris in A., the feoffee, to feed the contingent uses."

Mr. Preston in his construction of the statute of uses, is also of opinion, that limitations of contingent uses do give contingent interests, and that the estate may be executed to the use, though there be no person in whom the estate thus executed may vest. The statute passes the estate of the feoffees in the land, to the estates and interests in the use, and apportions the estate in the land to the estates and interests in the use. Immediately

after the conveyance to uses, no scintilla juris,or *246 the most remote possibility of seisin, remains with the trustees. But Mr. Preston speaks with diffidence of his conclusions, and he is of opinion, that the doctrine respecting the scintilla juris requires to be settled by judicial decision.

I am not aware that the English doctrine of remain

b Preston on Estates, vol. i. 164-184. It is rather 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 taking notice of such full and exhausting discussions in opposition to it, by such masters of the science as Preston and Sugden.