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, perhaps, by bargain and sale,a a use *be limited to *244

■ 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. Schermerhorn 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 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

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 *245 contingent uses. The statute *draws the whole estate

in the 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 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: a

Mr. Preston, in his construction of the statute of uses, is also

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. NewYork Revised Statutes, vol. i. 727, sec. 45. Ibid. 725. sec. 35. Ibid. 738, 739. See, also, further on this subject, infra, 491.

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 the most remote possibility of *seisin, remains *246 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.a

I am not aware that the English doctrine of remainders and uses has undergone any essential alteration in the United States, except it be in the late Revised Statutes of New-York. The general doctrines of the English law on the subject constitute, as I presume, a branch of the municipal jurisprudence of this country. A statute of Virginia, in 1792, made some alteration of the law of remainders, by declaring that a contingent remainder to a son or daughter unborn, was good, although there was no particular estate to support it after the father's death. But, in New-York, very deep innovations have recently been made upon the English system. No valid remainder can be defeated by the determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; and the remainder takes effect when the contingency happens, in the same manner and to the same extent as if the precedent estate had continued. This relieves us in New-York, and fortunately and wisely relieves us, from the burden of investigating and following all the inventions and learning calculated to elude the fatal consequences of the premature destruction of the particular estate. But another and more momentous change

■ 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 the full and exhausting discussions in opposition to it, by such masters of the science as Preston and Sugden.

New-York Revised Statutes, vol. i. 725. sec. 34.

in the law, has annihilated at once all this doctrine of remainders by way of use. The New-York Revised Statutes *247 have abolished uses and trusts, except as *authorized

and modified in that article, and has turned them into legal rights. The article is a very short one, and allows resulting trusts, and four sorts of express trusts. Every contingent remainder which, under the English law, is by way of use, is now, in New-York, a strictly legal contingent remainder, and governed by the same rules. There is no longer any need of trustees to preserve contingent remainders; and they could not exist if they were necessary, for their duty is not one of the express trusts which may be created. It is declared, that every disposition of lands, whether by deed or devise, shall be directly to the person in whom the right to the possession and profits shall be intended to be invested, and not to any other, to the use of, or in trust for such person; and if so made, no estate or interest, legal or equitable, vests in the trustee.b

But, to proceed with the review of the general law on the subject of remainders, there is one case which forms an exception to the rule that a preceding particular estate of freehold is requisite to support contingent limitations, and that is where the legal estate is vested in trustees. The estate will continue in that instance, notwithstanding the failure of an intermediate life estate, until the persons who were to take the contingent remainder should come in esse, and in the interval the rents will belong to the grantor, or to his heirs, by way of resulting

trusts.c

* Vol. i. 727, sec. 45. 50. 55.

New-York Revised Statutes, vol. i. 728. sec. 49.

head Of Uses and Trusts.

See, also, infra, under the

Fearne on Remainders, 383, 384. Preston on Estates, vol. i. 241. In Hopkins v. Hopkins, Cases temp. Talb. 43, Lord Talbot considered such a limitation as good by way of executory devise; but afterwards, in Chapman v. Blissel, 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. 128, note,) and in Doe v. Henneage, (4 Term Rep. 13,) both the bar and bench assumed a conditional limitation to be, what Mr. Cornish says (Essay on Remainders, 221) it was not, viz., a contingent remainder. If this be

*VII. Of the time within which a contingent re

mainder must vest.

*248

The interest to be limited as a remainder, either vested or contingent, must commence or pass out of the grantor in the same instrument, and at the time of the creation of the particular estate, and not afterwards. It must vest in the

grantee, either in esse, or by right of entry, during the continuance of the particular estate, or at the very instant that it determines. The rule was founded on feudal principles, and was intended to avoid the inconvenience of an interval when there should be no tenant of the freehold to do the services of the lord, or answer to the suit of a stranger, or preserve an uninterrupted connection between the particular estate and the remainder. If, therefore, A. makes a lease to B. for life, with remainder over, the day after his death; or if an estate be limited to A. for life, remainder to the eldest son of B., and A. dies before B. has a son, the remainder, in either case, is void, because the first estate was determined before the appointment of the remainder. There must be no interval, or "mean time," as Lord Coke expresses it, between the particular estate and the remainder supported by it. If the particular estate terminates before the remainder can vest, the remainder is gone for ever; for a freehold cannot, according to the common law, commence in futuro. This rule, upon a strict construction, was held by the courts of law, to.. exclude a posthumous son from taking a contingent remainder,. when the particular estate determined before he was born.

so, the distinction must be very latent and fine spun, to have escaped detection by such judges as Lord Kenyon and Mr. Justice Buller!

Plowd. 25. 28. Co. Litt. 49. a. b.

b Colthirst v. Bejuskin, Plowd. Rep. 25. Archer's Case, 1 Co. 66. Chudleigh's Case, 1 Co. 138.

c 3 Co. 21. a. 2 Blacks. Com. 168. Preston on Abstracts, vol. i 114.. In Festing v. Allen, 12 Meeson & Welsby, 279, it was adjudged, that if there was a tenant for life under a devise, with a contingent remainder in fee for such of her children as should attain the age of twenty-one, and no child attained that age at her death, the estate as well as the limitations over were divested by her death, and the estate went to the heir at law. This was only a recognition of a settled principle, and yet the case was elaborately discussed. If the devise had been to the mother for life, and at her death to her children, than they would have had vested remainders in fee, according to the case of Doe v. Provoost, 4 Johnson's Rep. 61. See supra, 205.

VOL. IV.

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