Sacr. VIII. of uses which are not exe tute. In Bagshaw v. Spencer, the devise was to several trustees, their heirs and assigns, upon trust out of the rents, or by sale or mort- cuted by the sta gage, to pay the testator's debts; and after payment thereof, the testator devised the same estates to three of the same trustees for a term of years, and after the determination of the said term, he devised the same estates to all the trustees and their heirs, upon certain trusts. Lord Hardwicke said, "The devise is to trustees and their heirs, "which carries the whole fee in law; the de"vise to sell would have carried the fee, if "the word heirs had not been mentioned.". "In the present case, the whole fee being de"vised to the trustees, no legal fee could be "limited upon it." Next as to its being good by way of executory devise, his lordship said, it was too remote, it being after all the debts paid, which might take in a much further time, than the law allows. In Gibson v. Rogers, there was a devise of freehold, leasehold, and personal estates to trustees, their "executors, administrators," and assigns, in trust to pay certain annuities and legacies out of the rents and profits of the personal estate; and if that should be 2 Atk. 570. 577. 1 Ves. * Amb. 98, 142. 144. S. C. SECT. VIIL deficient, then out of the "rents and profits" of uses which of the real estate; and as to the residue of are not exe tute. cuted by thesta- the real and personal estates after provision for payment of the annuities and legacies, the testator gave the same to the children of Frances Gibson. Lord Hardwicke, in this case, thought, that the words, rents and profits, would authorize the trustees to sell the real estate; and that the legal estate in fee-simple vested in the trustees. The same rule of construction is adopted in the case of Wright v. Pearson ". Terms of years and other chat tels. (198.) In a case, where there was a devise to trustees and their heirs, in trust to permit a feme covert to receive the rents and profits for her separate use for life, and after her decease, to the use of the first and other sons of her body, &c., with other limitations over, in default of issue, for the separate use of other femes covert, it was determined, that the legal estate in fee-simple vested in the trustees". (5.) As the statute says, that when any person or persons stand scised to the use of another, &c., it has been resolved, that a term of years or other chattel interest cannot be limited to a use ". after the (6.) When the courts of law, statute of Hen. 8., took cognizance of uses, they held, that no use limited upon a use could be executed by the statute; and therefore if there be a conveyance to the use of A. and his heirs, to the use of B. and his heirs, this use cannot be executed in B. *. So if land be limited to A. and his heirs to the intent or in trust, that B. and his heirs may receive a rent thereout to the use of C. and his heirs, the legal estate in the rent will vest in B. by the fifth clause of the statute y; because the seisin, out of which the rent arises, is conveyed to A., and upon the limitation of such rent to B., the statute is satisfied. There has been however an exception, and I believe only one exception, to this rule. A recovery was suffered of lands to the use of A. and his heirs, yielding for the same a rent to B.; it was urged, that the rent ought to have been limited out of the estate of the recoverors; and not out of the possession of cestuique use; yet it was determined, that the rent was well executed by the statute ". * 36 Hen. 8. B. N. C. 284. Tyrrel's case, Dyer, 155. a. Samback v. Dalton, Tothil, 1 Atk. 591. Chaplin v. Chaplin, S 2 Cromwell's case, 2 Co. .. CHAP. III. SECT. I. Of the introduction and since the sta tute (200.) (201.) Of Trusts since the Statute 27 Hen. 8. c. 10. I. THE Construction adopted by the courts of law upon the statute of uses obliged cestuisystem of trusts que trust, entitled to a beneficial interest, not executed by the statute, to apply for redress to the Court of Chancery; and the consequence of the statute has been, that the ancient use has been abolished with its inconveniencies, and a secondary use has been introduced under the name of trust, modelled by the Court of Chancery, after its own fashion, and being, as it is properly called, a creature of equity. The Chancery was aware of the mischiefs attendant upon uses before the statute; and, therefore, in exercising an exclusive controul over these trusts, it has formed them, so as to answer all the contingencies of family settlements and domestic provisions. The observation, therefore, of lord Hardwicke 2, that the statute of uses has had no other effect, than to add at most "three words to a conveyance," is not substantially correct; for by extinguishing the 1 Atk. 591. a fiduciary existence of the use, the statute 66 An expression is sometimes to be found in the books, that trusts are now, what uses formerly were. A use, indeed, before the statute of uses, was, as a trust since is, a fiduciary or beneficial interest, distinct from the legal estate; and so far the expression is correct: but, abstractedly no objection can arise to the essence or quality, either of the use or trust. It was the system, adopted with respect to uses by courts of justice, which gave rise to the necessity of passing the statute of uses; and the difference between uses before, and trusts since, the statute, consists in the opposite construction adopted by the Court of Chancery respecting them; or, as it has been said, "there is no difference in the principles, but there is a wide difference in the "exercise of them "." |