John Wilson.

A treatise on springing uses, and other limitations by deed, corresponding with executory devises; according to the arrangement in Mr. Fearne's essay online

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Online LibraryJohn WilsonA treatise on springing uses, and other limitations by deed, corresponding with executory devises; according to the arrangement in Mr. Fearne's essay → online text (page 1 of 10)
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MR. FEARNE, in his essay on contingent re-
mainders and executory devises, intimates (a),
that future and shifting uses, and other
springing and executory interests, which
are not remainders, are to be considered as
subject to the same limits and restrictions as
executory devises. His very learned Editor
also observes (b) 9 that executory devises are
the immediate subject of the second part of
Mr. Fearne's essay, but that his positions and
illustrations are always, either directly or in-
directly, referrible to the general doctrines of
law, on all limitations of this description either
in deeds or wills.

It appeared to the compiler of the present
treatise, that Mr. Fearne's inestimable work
might be rendered in some degree more per-

(a) P. 441. (6) Mr. Butler's edition, p. 385.

A 2



feet, and its utility increased, by a collection
and analysis of authorities, in illustration of
his positions with reference to such limit-
ations by deeds ; and particularly as, from
the difference in the nature and construction
of deeds and wills, some distinctions must
necessarily exist between those limitations
and executory devises.

To supply such a collection, and exemplify
such distinctions, is the principal object of
the following pages, which are submitted to
the profession, with the consciousness that a
charge of temerity may be incurred by the
attempt, but in the hope that it has not been
made without due consideration.

The arrangement of Mr. Fearne has been
closely adhered to, and the subdivisions of
Mr. Butler have been adopted, so that the
corresponding passages in the two books will
be found under the same chapter and section.

2. New Square, Lincoln's Inn,
August 1st, 1824.


Abraham i>. Twigg, 101, 115
Adams v. Savage, 69, 154
Arundell, Lady, v. Phipps &

Taunton, 4-3, 45, 46

Avelyn v. Ward, 57

Baker v. Bay ley, 138

Barlow v. Salter, 121

Battersbee v. Farrington, 43
Beck's Case, 99

Benson v. Hodson, 64

Blake v. Blake, 138, 141

Boreton v. Nichols, 99

Bostock's Case, 67

Bromfield v. Crowder, 21
Buckler's Case, 164

Buckmere's Case, 77

Bullock v. Knight, 87

Burnell v. Crutchley, 94, 96
Cadogan v. Kennett, 30, 34,
35, 38, 45, 62

Campbell v. Sandys, 139

Campion v. Cotton, 39, 45
Carpenter v. Smith, 9, 25, 67
Carwardine v. Carwardine, 8,

Cholmondely, Marquis of, y.

Lord Clinton, 80

Clere's Case, Sir Edward, 151

Clifton v. Chancellor, 37

Coltman v Senhouse 78

Crisp v. Pratt, 44

Crump d. Woolley v. Norwood,


Dafforne v. Goodman, 126
Davies v. Speed, 8, 66, 73, 144
Dillon v. Dillon, - 141

Doe d. Davy v. Burnsall, 13,


Doe v. Lyde, 119

Doe d. Roake v. Nowell, 22
Doe d. Roake v. Randall, 22
Doe u.Webber, 116

Doe d. Dyke u. Wittingham,

25, 72

Edwards v. Hammond, 20
Emily t). Grey, 44

Exel o. Wallace, 106, 116, 131
Focus v. Salisbury, 52

Foley B. Burnell, 46, 93

Fonnereau v. Fonnereau, 145
Forster v. Forster, 134

Forth v. Chapman, 111

Fryer v. Flood, 44

Glaister t>. Hewer 44

Goodman v. Goodright, 81
Goodtitle v. Billington, 6



Goodtitle d. Weston v. Bur-

tonshaw 71, 156

Goodtitle v. Morse, 160

Goodwin v. Clark, 109

Gore v. Gore, 68

Goring v. Bickerstaff, 27

Gower v. Grosvenor, 93

Grafton, Duke of, v. Lord Eus-

ton, 133

Grey v. Mannock, 140

Gulliver v. Wickett, 11,26,54

Halloway & others v. Millard

& others, 43

Hartop v. Hoare, 46

Harwell v. Lucas, 67

Haselington & another v. Gill

& another, 45

Havergill v. Hare, 167

Helps v. Hereford, 160, 3

Hey wood v. Maunder, 104,

109, 117, 147

Higgins v. Dowler, 29, 147
Hoare v. Parker, 46

Hobson v. Trevor, 160

Hodgson v. Bussey, 127, 131
Hoi croft's Case, 155

Idle v. Cook, 99,115

Jarman v. Woollaston & an-
other, 45
Jervoise v. the Duke of North-
umberland, 97
Jones v. Morgan, 79
Jones d. Roe v. Perry, 157
Kent, the Earl of, v. Seward &
Scott, 165
Kentish v. Newman, 61
King v. Cotton, 123
Kirsley v. Duck, 82
Lamb v. Archer, 150
Lilly v. Osborn, 44

Littleton v. Marlow, 44

Lockyer & others v. Savage &

others, 44

Loddington v. Kime, 14

Loeffes v. Lewen, 43

Longhead d. Hopkins v.Phelps,

85, 109

Lloyd v. Carew, 9, 26, 48, 73

Lytton v. Lytton, 79

Macclesfield, Earl of, v. Davis,


Mainwaring v. Baxter, 82

Marsden v. Panshall, 46

Massenburgh v. Ash, 30, 73,

75, 105, 147

Milborn v. Dashburne, 78

Moore Nicholas, Case of, 50

Moore v. Parker, 81

Mullineux's Case, 51

Newcastle, Duke of, v. the

Countess of Lincoln, 89, 90,

94, 97, 147

Norfolk's Case, Duke of, 63,
103, 117

Norton v. Frecker, 132

Oakes v. Chalfont, 29, 121

Ormond's Case, the Earl of,


Parker v. Patrick, 46

Partridge v. Gopp, 43

Peacock u. Spooner, 125

Pearse v. Reeve, 81, 120

Peck v. Parrot, 170

Pells v. Brown, 49

Penhay <o. Hurrell, 152

Porter <o. Bradley, 115

Pybus v. Mitford, 152

Rawley v. Holland, 69, 154
Roe v. Griffiths, 156

Roe v. Jeffery, 116



Romilly, Knt. v. James, 51

Sackvile v. Dobson, 28

Selwyn v. Selwyn, 157

Shaftesbury v. Russell, 35

Smith v. Belay, 2

Smith v. Warren, 51

Southby v. Stonehouse, 113

Spalding v. Spalding, 61

Stansfield v. Habergham, 171

Taylor t>. Chambers, 37
Taylor v. Jones, 43, 44

Taylor v. Phillips, 161

Theebridge v. Kilburne, 88,
125, 128

Thomasin v. Mackworth, 52

Tomkins v. Pooley, 33

Tucker v. Cosh, 44

Vaughan v. Burslem, 93

Vick v. Edwards, 161, 3, 4
Walker v. Burrows, 44

Ward v. Bradley, 129

Ward v. Shallett, 43

Warman v. Seaman, 82

Wasteney's v. Chappell, 133
Weale v. Lower, 7, 25, 78, 151,

Webb v. Webb, 88, 125, 127

Williams v. Jekyl, 142

Wills & others t>. Palmer &

others, 154

Winchelsea, Earl of, v. Went-

worth, 9, 26, 73, 169.

Woodliffv. Drury, 8,27,150

Wright v. Cartwright, 30, 62

Wright v. Wright, 159, 163, 8




1. CONDITIONAL limitations, secondary, future,
springing, or shifting uses, are limitations of
future estates or interests in real property,
which the law admits, in deeds operating under
the statute of uses, though contrary to the
rules of limitation in conveyances at common
law. (a)

(a) The distinction be- Statute of Uses, is explained

tween conveyances at com- by Mr. Butler in a note to

mon law, and those which Mr. Fearne's Essay, p. 417.
derive their effect from the


Such of those limitations as arise from the
act of some person, authorised to raise or ap-
point them, are said to arise by the execution
of a power.

Such of them as arise upon an event pro-
vided for by the deed which creates them, and
limitations of personal property, are the sub-
ject of this treatise.

Whenever a future interest is so limited, as
to fall within the rules prescribed for the li-
mitation of contingent remainders, or that it
may take effect as a remainder, it can never
take effect as a conditional limitation or fu-
ture use.

The case of Smith v. Belay (b) was a limit-
ation to the use of R. for life, and after, of
his eldest issue which should be at the time
of his death, remainder in fee to S. R. had
issue J. ; R. and S. made a feoffment, and
levied a fine, with warranty and proclamation.
J. could not enter on the death of R., for the
limitation was a contingent remainder, and
was destroyed by the feoffment and fine.

The limitation to the issue did not operate
to divest or determine, but was to commence
from the expiration of the preceding estate,
which was capable in its nature, of supporting

(b) Cro. Eliz. 630.


a remainder ; nor was the limitation contrary
to the rules of conveyances at common law ;
it could not therefore, be construed a condi-
tional limitation.

Cawardine v. Cawardine (c) was the case
of a settlement, previous to the marriage of
J. C., by which the lands in question were
conveyed to trustees and their heirs, to the
use of J. C. (the settler) for life ; remainder
to M. W. (his intended wife) for life (except
in such cases as should be thereafter excepted)
for her jointure ; remainder to the heirs of the
body of the said J. C., begotten on his said
intended wife ; remainder to the said J. C. and
his heirs ; followed by a " proviso, and the
special trust and confidence in the said trus-
tees and their heirs were thereby declared to
be, that if the said J. C. should happen to die,
and leave such issue as aforesaid behind him,
he, the said J. C., not making otherwise a
provision for such child or children in his life-
time, then and in such case the said trustees
should stand seised of one moiety of the said
premises, from and immediately after the de-
cease of the said J. C., to the use of such
child or children as aforesaid, and be empow-
ered, out of the rents, issues, and profits of

(c} 1 Eden's Ch. Ca. 27.
B 2


the said moiety, to raise such provision for
such child or children as the said trustees and
their heirs should think fit."

J. C. and M. his wife, after their marriage,
joined in levying a fine ; and he, by will, de-
vised all his estate from his eldest son, who
was totally disinherited and left wholly un-
provided for.

The principal question in the case was,
whether the plaintiff, who was the eldest son
of J. C, was entitled to any, and what pro-
vision, under the proviso in the said settle-

The Lord Keeper Henley, after entering
into a consideration of the intention of the
parties, observed upon the legal operation of
the deed, that it was admitted it must be
either a springing use or a contingent re-
mainder ; whichever it was, the consequence
was also admitted, if that was once known.
That he did not know by what rule of law he
could construe that a springing use ; spring-
ing uses were introduced to answer the exi-
gencies of mankind, in providing for all the
contingencies in their families, in like man-
ner as executory devises were allowed of; in
order that, after a departure with the whole
fee, a new limitation of the fee might take
place, upon a contingency to arise within a


reasonable compass of time, and not within
the danger of a perpetuity ; not that a fee
could be limited upon a fee, but upon the
contingency happening, the former uses were
to give way. And he did not recollect any
case, where a springing use had been created
in the middle of other uses, but always de-
termined the first limitation of the fee, and
displaced the first gift, and changed the uses
in favour of other persons. And that it made
no difference, whether the whole fee was given
away at once, or in particular estates, and by
way of remainders. That it was a certain
rule of law, that if such a construction could
be put upon a limitation, as it might take
effect by way of remainder, it should never
take place as a springing use, or executory
devise. That the best construction he could
put upon the limitation, was that of its being
a contingent remainder ; and that the limit-
ations ought to stand thus : viz., to husband
for life ; remainder as to one moiety, to the
wife for life ; remainder as to the other
moiety, to the children during the wife's life,
if they are left unprovided for ; remainder as
to this moiety, to the wife for life ; remainder
of the whole, to the heirs of the body of the
husband ; remainder to the husband and his
heirs. Now if this estate was executed, he

B 3


could give it no other construction than what

a court of law would do ; and he was of opi-

* i.

nion it was executed, and not an estate exe-
cutory remaining in the trustees. That he
must determine according to the legal opera-
tion of this deed, and as he thought it was a
contingent remainder, the consequence was
clear, that the fine had destroyed it, and that
the plaintiff's bill must be dismissed.

And in Goodiitle v. Bittington (d) 9 Lord
Mansfield, in delivering the opinion of the
court, said, it was perfectly clear and settled,
that where an estate can take effect as a re-
mainder, it shall never be construed to be an
executory devise or springing use.

And where the contingent estate may, in
the nature of its original limitation, take effect
during, or at the time of the determination of
the particular estate, the possibility or pro-
bability of its not doing so, in the common
course of things, or from its relation to other
interposed limitations, will not take it out of
the general rule now under discussion.


Thus, if real estate be limited to the use of
A. for life, remainder to his wife for life, re-
mainder to E. (his son) for 99 years, if he
should so long live ; and after the deceases of

(rf) Dougl. Rep. 725.


A., and his wife, and E., to the sons of E,, as
tenants in common in tail : the death of the
father and mother during the life of. the son,
is highly probable, and is obviously contem-
plated in the creation of the limitations ; yet,
in that event, the limitation to the sons of E.
must fail as a remainder, for want of a parti-
cular estate to support it ; but A. or his wife
may survive E., and that limitation would
then take effect as a remainder, and it cannot
therefore be maintained as a springing use.

But where a future interest, without a pre-
ceding estate, or a contingent interest unsup-
ported by any preceding freehold, or any
estate after a preceding vested fee simple, is
limited by way of use, such limitation, as it
cannot be good as a remainder, may take effect
as a conditional limitation or springing use,
provided it falls within the limits which the
law prescribes, for the validity of such future
estates ; which limits will be hereafter stated j
and in this place, a few instances will be ad-
duced, of such limitations, and uses as have
been mentioned.

Thus, according to the dictum of Lord Hale
C. J., in Weale v. Lower (e), if a feoffment be

(e) Poll. C5.
B 4


made, to the use of C. and his heirs, after the
death of A. and B., this is no remainder, but
a future use. So if the limitation of a use be,
that after two years, or after the death of John
Stiles, it shall be to the use of J. N. in fee,
this is a future use.

And in Davies v. Speed (g), Holt C. J. said,
a feoffment to the use of another and his
heirs, to commence four years from thence,
is good as a springing use ; so it is if it [the
use] were to commence after the death of
another without issue, if he die within twenty

In these cases no preceding estate is sup-
posed to be limited, and the future interest
would be vested.

The effect is the same if the future inte-
rest be contingent.

Thus in the case (h) of a feofFment by A.,
to the use of himself and B. his feme, that
should be, after their marriage, and of the
heirs of their bodies ; on the marriage this
new use arises and vests.

So if there be a preceding estate, not capa-
ble in its nature of supporting a remainder :
as a limitation to the use of trustees for 500
years, in trust to pay an annuity to T. for

(g) Holt's Rep. 731. (A) Woodliff v. Drvry,

Cro. Eliz. 439.


Jife, remainder to the eldest son of T. (who
has no son at the time) this would be good as
a future use.

And the following are instances of limita-
tions, after a preceding vested fee-simple.

In Carpenter v. Smith (i) 9 land was limited,
by deed and fine, to the use of J. his heirs and
assigns for ever; and if J. died before W., then
to the next heir of ,W., and to the heirs and
assigns of such next heir. The court was of
opinion that the limitation, "being by way of
use, was good.

The Earl of Winchelsea v. Wentworth (k)
was a limitation to J., the second son [in fee],
proviso that if the eldest son died without
issue, J. should, within six months after the
death of the eldest son, pay 1500/. to a sister,
or in default thereof, the land to go to the sis-
ter and her heirs. The eldest son died with-
out issue, and the sister died within the six
months ; J. refused to pay the 1500/. It was
decreed that the land should go to her heir.

And in the case of Lloyd v. Carew (/),
where lands were limited, by marriage-settle-
ment, to the use of A. and his wife for their
lives, remainder to trustees and their heirs
during the lives of A. and his wife, to pre-

(/) Poll. 70. Keb. v. 3. (k) 1 Vern. 402.
p. 18. 92. 122. 176. (/) Show. Parl. Cas. 137.


serve contingent remainders, remainder to
the first and other sons of the marriage suc-
cessively in tail male, remainder to the right
heirs of A. ; with a proviso, that if no issue of
the marriage should be living, at the decease
of the survivor of the husband and wife, and
the heirs of the wife should, within twelve
months after the decease of the survivor of
the husband and wife, pay 4000/. to the heirs
or assigns of the husband, then the remainder
in fee-simple, so limited to the husband,
should cease, and thenceforth should remain
to the use of the heirs of the wife. The
House of Lords held this springing use to the
heirs of the wife to be good.

In the Treatise on Executory Devises, Mr.
Fearne states, that even where there is a limit-
ation after a devise in fee-simple, though such
antecedent devise in fee be not vested but
contingent, yet if the ulterior devise is so
limited as to take effect in defeazance of the
estate first devised, on an event subsequent
to its becoming vested, it has been held to
operate as an executory devise.

This doctrine is equally applicable to con-
ditional limitations and springing uses ; it has
been the subject of considerable discussion,
and deserves particular consideration.

Mr. Fearne cites, in exemplification of his


position, the case of Gulliver v. Wickett(m} 9
where a testator devised lands to his wife for
life, and after her death to such child as she
was then supposed to be ensient with, and to
the heirs of such child for ever ; provided,
that if such child as should happen to be born
should die before the age of C 2\ years, leaving
no issue of its body, the reversion should go

The wife of the testator was not with child,
and the question for the consideration of the
court was, whether the devise over was a
good devise or not ; and it was held that the
birth of a child was not a condition precedent,
and that whether the limitation to the child
never took effect, or whether it did and was
determined, was the same thing ; and that as
the remainder to the child never could take
place, the next devise over must take effect.

Mr. Fearne, in commenting on this case,
observes (n), that the court held it to be a
devise to the wife, remainder to the child in
contingency in fee, with a devise over, which
he says they held a good executory devise, as
it was to commence within 21 years after a
life in being, and that if the contingency of a
child never happened, then the last remainder

(m) 1 Wils. 105. (n) P. 396.


was to take effect upon the death of the wife.
And that the number of the contingencies
were not material, if they were all to happen
within a life in being, or a reasonable time after.
And after noticing an observation of the
reporter on this case, that the court used a
difference of phraseology, viz. executory and
remainder, in respect of the same limitation,
from whence it seemed to him uncertain,
whether they determined it an executory
devise or a contingent remainder, Mr. Fearne
intimates, that this doubt would have been
prevented, by adverting to the language of the
court, when they said it was good as an exe-
cutory devise, as it was to commence within
21 years after a life in being ; and that the
number of contingencies were not material, if
they were to happen within a life in being, or
a reasonable time after ; neither of which
circumstances hath any sort of relation to a
contingent remainder, or can be understood
as applicable to the idea of it. And he fur-
ther remarks, that although one of the con-
tingencies on which the ulterior devise was


construed to depend, viz. there being no
child to take as supposed, must have been
decided immediately on the determination of
the particular estate, without the antecedent
limitation in fee ever becoming vested, and


therefore such devise would, had it depended
on that event only, have been considered as
a contingent remainder, equally with the
alternative one to the child ; yet that the
other event, and that indeed on which the
limitation over was expressly limited to take
effect, viz. the death of the supposed child
under the age of 21 years, could not possibly
happen till after the fee-simple had actually
vested in such child on its birth ; in which
case it clearly could not operate as a remain-
der, and therefore must have been void in its
creation, if not allowed to ensue as an execu-
tory devise.

But it is difficult to distinguish the last
mentioned case from Doe d. Davy v. Burn-
sail (o), which was a devise of all the tes-
tator's estates, to M. and the issue of her
body, as tenants in common ; but in default of
such issue, or, being such, if they should all
die under 21, and without leaving issue, then
over. After the testator's death, M. suffered
a recovery and levied a fine of the lands, and
she never had any issue.

And Lord Kenyon C. J. observed, " the
devisor seems to have reasoned thus, if the
children of my niece live to attain the age

(o) 6 T. R. 30.


of 21, when they will be qualified to dispose
of this property prudently, I give it to them
in fee; if they happen to die under 21, and
without leaving issue, then I will consider to
whom I can best dispose of the estate, and in
such an event, I will give to my collateral re-
lations. That brings the present case within
that of Loddington v. Kime (p), which is the
leading case upon this subject, and converts
all the subsequent limitations into contingent
remainders. Those depended on the parti-
cular estate given to the niece, and she hav-
ing destroyed this particular estate, before they
could take effect, they consequently fell to the
ground. Perhaps the devisor was not aware,
that the niece could destroy the estate given
to her children ; but the plaintiff's argument
goes to admit that she had that power ; and
it is a necessary consequence of our putting
such a construction on the will, as will best
effectuate the intention of the devisor. In
determining the present case, I proceed on
the words of the will, giving legal effect to
every word contained it ; and they all lead to
this conclusion, that it was a contingency

O *'

with a double aspect ; if M. had any children,
the estate was limited to them in fee ; if she
had no children, or if she had any, and they

(p) Salk. 224-.


died under 21 and without issue, then it was
to go to the lessor of the plaintiff. But all
these rested in contingency ; and the parti-
cular estate of freehold, by which they were
supported, having been destroyed before they
were capable of taking effect, they were also
destroyed with it."

The case of Crump and Woolley v. Nor^
wood(q), is similar to Gulliver and Wickett, so
far as regards the question which arose in that
case. It was a devise of gavelkind land to
the testator's three nephews, sons of his bro-
ther J., during their lives, as tenants in com-
mon ; and after their respective decease, the
share of him or them so dying, unto the heirs
lawfully issuing of his and their body and
bodies respectively, and if more than one,
equally to be divided, as tenants in common ;

1 3 4 5 6 7 8 9 10

Online LibraryJohn WilsonA treatise on springing uses, and other limitations by deed, corresponding with executory devises; according to the arrangement in Mr. Fearne's essay → online text (page 1 of 10)