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2.
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Settlements (Baker pp. 318–46)
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a.
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The fee tail and its durability—Maitland’s mistake
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i.
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Taltarum’s Case (1475)
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ii.
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conditional defeasances—“to A and the heirs of his body until A attempts
to alienate, rdr to B and the heirs of his body, etc.”
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iii.
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The old rule against perpetuities, temp. Eliz. I
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b.
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Remainders
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i.
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the Rule in Shelley’s Case (The
Provost of Beverley’s Case [1366]) to prevent fraud on lords
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ii.
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full recognition of contingent remainders (Colthirst v. Bejushin 1550)—“to A and B for their joint lives,
rdr to the survivor, rdr to C for life if he resides on the property, rdr
to D for life if he resides on the property, with rvn in the grantor”—the
heir of a living person is the only one discussed in the Middle Ages
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iii.
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No indefinite remainders—“To A for life, rdr to his male heir for life,
rdr to his male heir for life, etc.” holding in Perrrot’s Case (1580) is that the rdrs must vest before the determination
of the first particular estate
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iv.
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Destructibility not fully established until Chudleigh’s Case [Dillon
v. Freine] in 1595—“To A for life, rdr to his first born son in ftm,
with rdrs over’ (even here the statement is dictum, but strong dictum
saying that had the contingency not been fulfilled when A conveyed, the
remainder would have been destroyed), tho the me and early mod cts clearly
have problems with the concept of c rdrs.
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c.
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Executory interests—entailed uses are the only ones discussed prior to
the S/Uses, and this so far as we can tell only academically
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i.
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Scintilla juris (Dyer’s
phrase)—allowing A to use of B for life rdr to C (the problem was that the seisin
was in B by the stat; nothing the stat spoke of B’s seisin supporting a
remainder)—same applied to wills by brute force
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ii.
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Shelley’s Case (1581)— “To the
use of X for life rdr after 24 years to the heirs male of the body of X in
tail male” converted to a fee tail in X (the issue was a child en ventre
(ggs, the heir by descent) vs. X’s 2d son (the taker by remainder)) (by
this we know that a child en ventre
cannot take a rdr in the 16th c)
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iii.
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Chudleigh’s Case 1595 — establishes
the destructibility of contingent remainders and executory interests
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d.
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Shifting and springing uses (following a term)
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e.
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Pells v. Brown (1620)—devise to
A and his heirs but if A dies without heirs of his body in the lifetime of
B, to B and his heirs; then A suffers a recovery
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f.
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Purefoy v. Rogers (1671) — the facts are
enormously complicated but the holding is that if it can take effect as a rdr, it will be called such.
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3.
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Summary:
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a.
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The use, a typically medieval institution devised for a range of
typcally medieval purposes, making wills, avoiding
feudal incidents enforced in Chancery.
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b.
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The Statute of Uses.
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c.
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The barring of the fee tail; the old rule against perpetuities.
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d.
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16th c. development of new rules about remainders, the most important of
which is destructibility.
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e.
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16th c. development of the x.i. following the rules about remainders until
the beginning of the 17th c. At this point the conveyancers begin to use
new forms of x.i.’s, and Pells holds that these are not destructible. Now we need to do
one more step
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4.
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Settlements in Equity. Trusts—leases, active uses, use with a purpose,
use on a use—the development of trustees to preserve contingent remainders.
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a.
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Leases, B not seised, copyhold too, perhaps out of this comes Serjeant Moore’s
lease and release.
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b.
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Active or special uses (collect the profits).
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c.
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Uses to a purpose (charitable uses).
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d.
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Use on a use—Tyrrel’s Case
(1557) express on implied (i.e., she bargained the land to the first usee (her
son))—the first is executed the second is void as repugnant, but enforced
in Chancery—the Duchess of Suffolk’s Case
(1560) (secret use during the Marian persecutions).
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e.
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Trustees to preserve as early as 1600 (not a Bridgeman invention), but not
firmly held valid in equity until Mansell
(1732), which may be one reason why Bridgeman did not use it in the Duke of Norfolk’s Case.
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f.
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Use of trust both to defeat dower and to create a woman’s separate
estate.
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5.
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The Duke of Norfolk’s Case
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a.
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“To trustees to the use of the Grantor for life, remainder to the
grantor’s wife for life, remainder to trustees for a term of 200 years,
remainder to Henry and the heirs male of his body, with remainders over.”
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b.
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What legal freehold interests are there in the land at the time of the
grant?
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i.
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G present life estate.
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ii.
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G’s wife, remainder for life.
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iii.
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Henry, remainder in fee tail male, etc.
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c.
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What legal non-freehold interests are involved in the grant—a term of
years in trustees to commence upon the death of the grantor’s wife.
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d.
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What equitable interests? Equitable fee tail male in Henry, determinable
after 200 years or upon the death of Thomas or his male issue, subject to a
shifting executory interest in Charles if Thomas should die without issue
during Henry’s lifetime or if Thomas’ issue failed so that Henry inherited
the earldom. (Charles’ executory interest in the term was also in fee tail
with remainders over, but the court holds the reminder interests to be void
in both law and equity, thus giving Charles an executory interest in the
entire term.)
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e.
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Why weren’t the equitable interests executed into legal ones by the
statute?
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i.
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Contrary to the suggestion in the text, the trust is not an active one.
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ii.
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The statute only executed uses of freeholds.
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iii.
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This was a use on a use.
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f.
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What did Henry hope to accomplish by his shenanigans?
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i.
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After the death of his mother, Henry, now the holder of a present estate
in fee tail male suffers a common recovery to dock the entail.
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ii.
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Then he obtains a conveyance from the trustees of the term of years
giving him a f.s.a. at law.
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iii.
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In equity, because he took with notice of the term he will hold subject
to Charless’ interest if that interest is good and not void as a perpetuity.
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g.
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Why did Bridgeman create the convyance like this.
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i.
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Serves some of the same purposes as trustees to preserve contingent
remainders (i.e. if Henry forfeits the land is preserved).
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ii.
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Neither the validity of the trust to preserve nor of equitable f.i. in a
term of years was established when B. wrote.
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iii.
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But if he sets it up this way he is assured that Charles’ interest is
not a remainder (its a fee on a fee, and
remainders in terms of years are not allowed at law).
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iv.
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Bridgeman is forum shopping—he himself sustained while MR a limitation
very much like this one, although the law courts in Child v. Baylie had struck down one very much like this one;
besides that he knew Henry.
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h.
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Why did the court hold as it did?
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i.
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Does one view the case as pro or con perpetuities.
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ii.
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“Such as do fight against God” i.e. the grantor-testator cannot envisage
all the circumstances which will occur, it is undesirable to have interests
outstanding for a long time. Note that this policy is particularly
dependent on the inalienability of x.i.’s and c rdrs.
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iii.
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Why allow the interest to be created up to lives in being? “A man should
be able to provide for the contingencies of his own family that are within
his view and prospect.” Further a contrary holding would upset many marriage
settlements.
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i.
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Note the test “visible inconvenience” the Rule Against Perpetuities as
opposed to the doctrine of perpetuities is a 19th c. creation. The social point
in its context is not quite what you might think. Once we see clearly that
the decision is pro perpetuities and not anti, it’s all too easy to fall
into the Habbakuk thesis about the rise of the great estates.
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j.
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The strict settlement: “To G for life, remainder to G’s wife for life,
remainder to trustees for 10 yrs to raise portions, remainder to Thomas for
life, remainder to trustees for the life of G & T to preserve,
remainder to Thomas’s eldest son in fee tail.”
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