intended marriage, and that the said Sarah Hill should be minded by her last will and testament to give or devise any sum not exceeding £4,000, or the estate thereby intended to be purchased therewith, or any part thereof as aforesaid, to any person or persons whatsoever, it should be lawful to and for her the said Sarah Hill, notwithstanding her coverture, to give and devise the same, or any part thereof, to such person or persons, and to and for such estate and estates, and such uses, intents, and purposes, as she should limit, direct, and appoint; and in such case they the said Sir Watkin Williams Wynne and Edward Lloyd should stand seised of all and every the lands, tenements, and hereditaments so to be purchased as aforesaid, to them and their heirs, to and for such uses, intents, and purposes, as she the said Sarah Hill should, by such her last will, limit, direct, and appoint; and then and from thenceforth all and every the uses and limitations to the said Giwn Lloyd and his heirs, of and concerning the said lands, tenements, and hereditaments to be purchased as aforesaid, should cease, determine, and be absolutely void, to all intents and purposes whatsoever.

Giwn Lloyd died in 1774, and Sarah his wife in 1782, intestate, and without having had any issue. Catherine Lloyd, the testatrix, continued in possession of the estate from the death of Sarah Lloyd until the time of her own death, in 1787. For the defendants, it was contended, that the legal estate was vested in Sir W. W. Wynne and Edward Lloyd, by the deed of 1746, and, consequently, that neither Giwn Lloyd nor the testatrix had any legal estate; and, therefore, the lessor of the plaintiff could not derive any such estate from her. The learned judge reserved the point, and the plaintiff having obtained a verdict, a rule nisi for entering a nonsuit was granted in Michaelmas term.

Taunton, Campbell, and Richards now showed cause.

Shadwell, Oldnall Russell, and E. V. Williams, contra.

BAYLEY, J. I am of opinion that we ought not to make the rule absolute for entering a nonsuit, but that there should be a new trial in this case. Considering the length of time that has elapsed since the purposes of the settlement made by Giwn Lloyd were at an end, I think the question as to presuming a reconveyance of the legal estate ought to be submitted to a jury. The first point for our consideration is upon the construction of the settlement; for if it vested the legal estate in the trustees, then the lessor of the plaintiff had not the legal estate unless there had been a reconveyance. The limitation is to Sir W. W. Wynne and E. Lloyd, and to their heirs and assigns, habendum to them their heirs and assigns, to the only proper use and behoof of them their heirs and assigns upon certain trusts. I felt upon first reading it, that this was in a very singular form, and it appeared to me that the words "to the use and behoof of them their heirs and assigns," had been introduced by an accidental mistake, but I now think that they were introduced by design, but through ignorance. It is certainly singular that Giwn Lloyd should part with the legal estate immediately on the execution of the settlement, and that he and his wife should only

be equitable tenants for life. It is also singular that the term created for the purpose of raising portions should be a mere equitable term, and that the lands to be purchased with the £4,000 should be limited in such a manner as to leave it doubtful whether or no the cestui que trust would take the legal estate. That would not necessarily be the case, for the direction, that the estate purchased should be limited "for such estate and estates as the other premises, might mean for equitable estates; and, therefore, this is not absolutely inconsistent with the idea that the trustees were to take the legal estate. And on the other hand, the power which Giwn Lloyd and his wife would have had to defeat all the contingent limitations, if the trustees did not take the legal estate, shows so strong a purpose to be answered by construing the deed according to the strict legal operation of the language used that I think we are not at liberty to put any other construction upon the words than that which they usually bear. Now, ever since I have belonged to the profession of the law, I have invariably understood that an use cannot be limited upon an use. That is admitted to be so in general, but a distinction has been taken where the limitation is to A., to the use of A. in trust for B., and it is said that then A. is in by the common law. That is true; but he is in of the estate clothed with the use, which is not extinguished, but remains in him. In the case of Meredith v. Joans, cited in argument to show that where an estate is limited to A., to the use of A., he is in by the common law, it is said, "for it is not an use divided from the estate, as where it is limited to a stranger, but the use and the estate go together." That case therefore shows, that although the trustees in this case might be in by the common law, yet they were in both of the estate and the use. There are two cases expressly in point. Lady Whetstone v. Bury [2 P. Wms. 146] is a very clear case, and the words used were precisely the same as those found in the deed in question, and it was there decided, and also in The Attorney General v. Scott [Cas. temp. Talb. 138], which came before Lord Talbot, one of the greatest real property lawyers that ever filled the office of Lord Chancellor, that the legal estate vests in him to whom by the words of the instrument the use is limited. Upon the authority of these two cases, I am of opinion that the use of the estate in question was executed in the trustees. Then, upon the other question, there is certainly some ground for presuming a reconveyance; but, on the one hand, I think the court would be going a great deal too far were they to make such a presumption, and, on the other, I think the lessor of the plaintiff ought to have an opportunity of submitting that point to a jury. The rule should, therefore, be made absolute for a new trial.

HOLROYD, J. I agree with my Brother Bayley, that in this case there ought to be a new trial. Upon the first perusal of the deed in question I had no doubt that the legal estate was vested in the trustees, having always understood that an use cannot be limited upon an use; and although I was struck by the ingenuity of the distinction

pointed out by Mr. Taunton, yet upon further consideration it appears to me that his argument does not warrant it. The argument is, that as the trustees did not in the first instance take to the use of another, but of themselves, they were in by the common law, and not the Statute; that the first use was, therefore, of no effect, and the case was to be considered as if the deed had merely contained the second limitation to uses. But that is not so; for although it be true that the trustees take the seisin by the common law, and not by the Statute yet they take that seisin to the use of themselves, and not to the use of another, in which case alone the use is executed by the Statute. They are, therefore, seised in trust for another, and the legal estate remains in them. As to the question of intention, even if it were intended that the deed should operate in a different mode from that pointed out by the law, when the legal estate is given to trustees that intention cannot countervail the law. But the intention appears to me altogether doubtful; the absence of trustees to preserve contingent remainders affording a strong reason for supposing that the parties meant to give the legal estate to the trustees.

LITTLEDALE, J. I am entirely of the same opinion. It is said that by the construction now put upon the deed the intent of the parties will be defeated. If we were not construing a deed, I should feel disposed to give a liberal effect to the intention, but if all matters of convenience and inconvenience which raise a presumption of intention are to be taken into consideration, as affording rules for the construction of deeds, and are to have the effect of overruling the plain words of such instruments, the law will very soon be thrown into utter confusion. Here, however, there is a balance of inconveniences, and therefore we may come at once to the legal construction of the settlement. I never entertained a doubt that a second series of uses could not be executed. It is true that certain cases show these trustees to have taken the estate by the common law, but they took it coupled with the use. The cases cited upon this point are perfectly clear, and they are well collected in a note, by Serjeant Williams, to Jefferson v. Morton, 2 Saund. 11, n. 17. However, for the reasons given, I think that there ought not to be a nonsuit, but a new trial.

Rule absolute for a new trial.

CHAPTER VI.

WILLS OF LAND.

DIGBY HIST. REAL PROP. (4th ed.) 375-377. It has been seen that one of the most remarked effects of the growth of feudalism was the abolition, except in certain localities, of the practice of devising interests in land by will. Such a disposition would have defeated the most valuable rights of the lord relief, wardship, and marriage. It was therefore wholly inconsistent with feudal theories. In a great many boroughs, and in gavelkind lands, local customs were sufficiently strong to preserve the ancient liberty of disposition by will, and cases relating to 'burgages devisable' are common in the Year-Books.

It has also been scen how the practice of disposing of uses of land by will became prevalent under the protection and encouragement of the Chancellors. One of the earliest of the recorded cases on this branch of the law contains a disposition by will, or rather perhaps settlement, of the use of lands made in the 6th year of Richard II.2 Except therefore in the case of burgages devisable, a devise, before the legislation presently to be noticed, was simply a declaration of the legal tenant of the uses to which his heir at his death should hold the lands, or of the uses to which he had conveyed the lands to feoffees (such conveyance having been expressed to be to the use of his will), or else a disposition of a use which had already been created in favor of himself.

In order therefore that the devisee of the use might enforce the disposition of the will the aid of the Chancellor was called in. The Chancellor would compel, if necessary, the tenant of the legal estate to convey the land devised to cestui que use, the devisee.

It appears from the title and preamble of the Statute of Uses that one of its principal objects was to abolish the power of disposing of interest in lands by will, and thereby to restore to the king and the great lords, the feudal dues which they could not claim if the estate of the heir were defeated by a devise.

The Statute of Uses contained a saving in favour of wills made before the first day of May, 1536,3 the year following that of the passing of the Statute. Between that time and July 20, 1540, the power of testation was, as regards freehold interests in lands, wholly abolished,* except in the localities mentioned above. It may however, be well believed that it was impossible for the legislature, arbitrary and

1 See 2 P. & M. Hist. (2d ed.) 326. — Ed.
2 Rothanhale v. Wychingham, Cal. ii. page iii.
See Bacon, Uses, Rowe's Note, 80.- ED.

8 Sec. 9.

thorough-going as it was, to maintain a restriction so opposed to the habits and practices which had prevailed throughout the Country ever since uses had been understood and protected by the Chancellor. Accordingly in the 32d year of Henry VIII. (1540), it was found necessary to restore a large measure of the power of devising interests in lands. The provisions of the Statute 32 Henry VIII. c. 1, are somewhat complicated; but the upshot of them is that power is given to every tenant in fee simple to dispose of all his lands held by socage tenure, and of two-thirds of his lands held by Knight-service. Careful provision is made by the Statute for the saving of primer seisins, reliefs, and fines on alienation, in the case of socage lands, and of the rights of wardship over the third part of Knight-service lands, in favor of the King or other lord.

When by the Act for the abolition of military tenures, tenure by Knight-service was converted into free and common socage, the power of devise granted by the Statutes of Henry VIII. extended to the whole of the lands of which previously only two parts had been devisable.

2

No particular solemnity was required by the Statutes of Henry VIII. for the execution of wills. The first Statute spoke of a will or testament in writing or other act lawfully executed in the testator's life. Consequently bare notes in the handwriting of another person were allowed to be good wills within the Statute. The law was altered by the Statute of Frauds (29 Car. II. c. 3), by which it was made a necessary condition of the validity of a will of lands that it should be signed by the testator, or by some other person in his presence and be subscribed by three or four credible witnesses.

The law of wills of all property whether real or personal now rests on the provisions of the Wills Act, 7 Will. IV. and 1 Vict. c. 26.

1 POWELL DEVISES, 4. Terms for years, and all chattel interests, also were not affected by this consequence of the introduction of feuds ; they being, on account of their original insignificance, deemed personalty, and, as such, capable of disposition by will.

ELLIS HARTOP was seised of divers Lands, whereof part was holden of the King in Knights service, and devised two parts thereof to W. Denham and his Heirs to the use of T. his brother, and his wife, and.

1 So interpreted by 34 and 35 Henry VIII. cap. 5, sect. 3.

2 Blackstone, ii. p. 376.

See 2 P. & M. Hist. (2d. ed.) 115-117. — ED.