when a man bargains, and fells his lands to another for money, which raifes a ufe by implication to the bargaince, the limitation of a further ufe to another perfon is repugnant, that the statute did not extend to terms of years, or other chattel interests, becaufe the expreffion was only feifed, and the termor is not feifed but pofleffed, and that where lands are given to one, and his heirs, in trust to receive the profits, and pay over to another, this ute is not executed by the ftatute: for the land must remain in the truflee to enable him to perform his truft.

Thefe decifions of the courts of law rendered neceffary a recurrence to the chancellors, who took cognizance of fuch cafes, and in a fhort time revived under the denomination of trufts, their jurifdiction of ufes, for it was eafy to vary the form of words, by which the conveyance was expreffed, fo that according to the decifion of the courts of law, the ftatute of ufes would not execute the ufe, or transfer the ufes into poffeffion; and then the courts of chancery would take cognizance of them as trufts.

So that the whole effect of the Statute of Henry, VIII. on uses, was to render it neceffary for the chancery to elude it, to change the name of ufes into trufts. This ftatute however gave efficacy to certain new modes of conveyance, calculated to render thefe tranfactions fecret and fave the trouble of livery of feifin. Such as a covenant to fland feifed to uses, and lease and release, which are the common modes of convey ance in England.

But when the courts of chancery refumed their jurifdiction over ufes under the name of trufts, they adopted rules which were calculated to avoid the inconveniences that were derived from ufes. They confidered a truft eftate to be equivalent to a legal ownerfhip, governed by the fame rules of property, and liable to every change in equity which the other is in law. The ceftui que ufe, has no right in, or to the thing in law, but in equity he has. The trufice is confidered as the mere inftrument of conveyance, and cannot effect the eftate. Yet in confideration of law he is the proprietor of the eftate, but not in equity. The truft will de. fcend, may be aliened, is liable to debts, to ferfeiture, to leafes,

and

and other encumberances, and to the curtesy of the hufband as if it were an estate at law. The trustees may be compelled in chancery to make conveyances to the ceftui que truft, or fuch other perfons as equity may require. Such is the law of England, refpecting ufes and trusts.

But as in this ftate, none of the reafons exift that did in England, for their introduction, and as no advantages can be derived from them it is not probable that they will ever be adopted. The recording of our deeds, precludes the poffibility of a fecret mode of conveying eftates, by which the legal estate can be concealed, or rendered uncertain, and a provifion for prodigal children may as well be made by giving them the ufe of the estate during life, or to another in trust for him-as in both instances, the estate will be equally at his controul and equally liable for his debts. The truth is, our general law has given the proprietors of land, every honeft privilege that can be derived from uses, and trusts; that is, exemption from forfeiture and the feudal incidents, and the power of devifing, and has deprived them of every unjust privilege, that was acquired by the ceftui que truft, that is, exemption from liability to be taken for debts, and the power of fecret conveyances, tho there be no neceffity of a formal public delivery of poffeffion.

If the decision of the fuperior court in the only cafe which has come before them, be confidered as law, the bufinefs of ufes and trusts, is at an end. They have adjudged that the cestui que use, fhall take the estate in the fame manner, as tho it had been directly granted to him; and that the feoffee, or trustee has no property in the estate, even at law. As this is the only cafe that has been adjudged on this point, it is neceffary to confider it at large. The cafe was, Nathaniel Cornwell in confideration of love and good will to Abigail Taylor, his neice, and wife of Joseph Taylor, granted to Jeremiah Bacon, his heirs and affigns, the lands in queftion, to hold in truft for the faid Abigail during life, and then for her children, born, or to be born, and to their heirs and affigns forever. Abigal died leaving four children, and Joseph Taylor as their guardian was in poffeffion of the lands, and action VOL. I. T t

с

c Kirb. 368.

of

of diffeifin was brought against him, by faid Jeremiah, to recover the poffeffion; the court determined, that the children of Abigail had an abfolute eftate in the lands in queftion, and that the poffef fion follows the ufe, that faid Jeremiah being only a mere nominal perfon in the deed, and no confideration arifing from him, he is confidered as having no legal eftate in the premises, by which to recover poffeffion. Their opinion is grounded upon the principle that the doctrine refpecting ufes eftablished by the ftatute of ufes in England, was in the idea of our ancestors, at the time of their emigration, the law, and that to establish a doctrine of ufes here, which would neceffarily acquire a number of ftatutes to remedy the inconvenience, refulting from it, would neither be wife or prudent.

By this decifion, it is established that ceftui que use, will take abfolutely as large an eftate, as the ufe or truft given to him. If the ufe be to him, and his heirs, then he takes an abfolute estate in fee-fimple; if for life, or years, then an abfolute eftate for life or years, while the feoffee or trustee takes not even the fhadow of a legal estate. This extends the statute of uses to trufts, as well as ufes, and annihilates all fuch eftates at a fingle ftroke. This was not however a unanimous decifion of the court, and the reasoning of the minority demonftrate that the judgment of the majority was against the then exifting law.

The courts of common law in England, always recognised the principle, that feoffee or trustee had an absolute estate at law in the lands, and that the ceftui que ufe had nothing but an equitable right, which courts of chancery only could make effectual. The power of a proprietor of lands at common law, to make fuch conveyances has never been queftioned, and certainly, this power exists in the very nature of the title. I may give the ufe and inrprovement of my eftate to one for years, and then to another in fee. Here the tenant for years, has nothing but the right to use, while the fee is in another perfon. By the fame principle I may give my eftate abfolutely to one, to hold in truft for the ufe of another. In both cafes, the ufe and the fee are in different perfons.

The

The ftatute of uses, has no more force in this ftate than the ftatute of Westminster the fecond, and our courts may as well make ftatutes at home, as import them from abroad. Here was a right existing at common law, to create a certain fpecies of estate, and which never had been taken away by ftatute. No judicial tribunal can take away the right, without exercifing legislative powers. To have been confiftent, the court should have faid, that a perfon had no right to make fuch eftate, that nothing was paffed by the conveyance, and the property was in the original grantor, but to deny him the right of making fuch an estate, and then velting the property different from what he intended, is an affumption of power, on the part of the court, to make a difpofition of a man's estate, not only without his confent, but against his will might as well have directed this land to have vested in. mode, as conformable to the English statute of uses.

for they

any other

That our progenitors confidered the doctrine of ufes, as fettled by the ftatute of Henry VIII, to be law, at the time of their emigra rion, is at least problematical: for at that time, which was in the reigns of James I. and Charles I. it is a well known fact, that ufes had been reftored under the name of trufts; and were then recognized by the courts of law, and effectuated by the courts of chancery. Our ancestors therefore, if they knew any thing of this fubject must have had an idea, that truft ellates were confiftent with the law of England. But at any rate, it is a very far-fetched argument, indeed to fay, that the idea of our ancestors respecting the operation of a ftatute in England, at the time of their emigra tion, fhall be the rule to decide what the common law is, upon a cafe arifing, oue hundred and fifty years afterwards.

Confidering our general regulations refpecting landed property, there can be no reason for apprehending that any inconvenience as the court have fuggefted, tho they have pointed out noue, could refult from adopting the doctrine of ufes. It therefore would have been better, and much more confiftent with law, if Taylor had applied to a court of chancery, and obtained a decree, which unqueft. ionably would have been in the power of the court, that Bacon fhould have releafed his right at law, to the children of Abigail, for

Tt2

for whofe ufe he held it. This would have been no violation of the common law. A ufe or truft would then have been defcendable, devifeable, transferable, and liable for debts, like an eftate at law, and the trustee under the power of courts of equity, and compellable to make fuch conveyance, as juftice required. Whether our courts in future, will confider this decifion to be law, it is not probable will ever be determined; as there is but little prospect that another fuch cafe will ever come before them.

A

CHAPTER SEVENTEENTH,

OF TITLE BY DEVISE.

Devife is a difpofition of real estate in a man's last will and teftament. The power of devifing has been generally permited by all laws but thofe of feudal origin. In England, lands were devifeable before the conqueft, but the introduction of the feudal tenures, deprived the fubjects of that right, until it was restored by ftatute in the reign of Henry VIII. At the time when our forefathers came from England, the power of devifing, was poffeffed by the people, and they eftablished it here in the fullest extent. Our ftatute law declares, & that all perfons of the age of twenty-one years, of right understanding and memory, whether excommunicated, or other, (not otherwife legally incapable,) fhall have full power, authority, and liberty to make their wills, and testaments, and all other lawful alienations of their lands and other eftates, and that no wills or teftaments, wherein there fhall be any devife, or devifes of real estate, shall be held good and allowed for any fuch devise or devises, if they are not witnessed by three witneffes, all of them figning in the prefence of the teftator.

In this place, it is not my intention to enter into a general confideration of wills, which will be referved till I come to treat of perfonal property. I fhall fay nothing more concerning them than what is neceflary to explain the law refpecting devifes.

All

d Statutes. 3. It is fingular, that the word "excommunicate," (hould have been introduced into the flatute, or continued in the revilions, when it is well known that there never was an ecclefiaftical tribunal in this fate that could denounce a fentence of excommunication, or any other decree, that could effect a man's civil rights. e Statutes 125.