« AnteriorContinuar »
and the heirs of his body, remainder to B. in fee, a contingent remainder is created in favour of the first son of A., which would not be destroyed by the forfeiture or surrender of A., nor by the union of his life estate with the remainder in fee before the contingency happened, as it would be supported by the freehold in the lord. (1)
Since, however, a contingent remainder must vest dur- Vesting of coning the continuance of the particular estate, or the very mainder instant it determines, if there be a surrender to one for life, remainder to the right heirs of A., a person living, and the tenant for life die before A., the remainder is gone, the heir not being ascertained; but if in such case the tenant for life had forfeited or surrendered his life estate, and A. had afterwards died in his lifetime, the remainder would nevertheless have taken effect. (2),
A contingent remainder may fail as to one part, and Partial failure take effect as to another. '
remainder. Feme covert and a stranger were joint tenants for life, remainder to the heirs of the body of the feme and her baron; the stranger surrendered his moiety to the baron and feme; afterwards the baron surrendered the entirety to B. in fee; the feme died leaving issue, and then the baron: the surrender by the stranger severed the joint tenancy, and the surrender to B. gave him an estate in one moiety for the life of the feme, and in the other for the life of the stranger: upon the feme's death the estate in the first moiety was determined, and as the remainder could not then vest, the baron being alive, it could never vest at all, and therefore failed as to a moiety. (3) A contingent remainder will be destroyed by an en- Contingent re
mainder de franchisement of the copyhold tenure before the content
he stroyed by entingency happens, the freehold interest in the lord franchisement.
(1) Fearne C.R. 320. Gilb. Ten. 265.
Copyhoids not within Stat. of
Mode of settling copyhold property.
which supported the remainder being thereby parted with. (1)
Copyhold property not being within the Statute of Uses, a surrender to A. and his heirs, to the use of B. in fee, or for other less estate, will give the former the legal, and the latter the equitable or trust estate only; but the various purposes for which the property may be made the subject of settlement are capable of being effected by a declaration of the trusts upon which the surrenderees shall stand seised.
In settlements of freehold and copyhold property, the settlement usually contains a series of limitations and powers applicable to the freehold parts, and then a covenant is entered into by the copyholder to surrender the copyhold parts to the use of the releasees of the freehold and their heirs, upon and for such trusts, intents, and purposes, and with, under, and subject to such powers, provisos, and agreements, as will best and nearest correspond with the uses, &c. declared of the freehold parts:(2) and when the surrender has been already made, a declaration is inserted that the surrenderees shall stand seised upon trusts, &c. corresponding with the freehold uses.
When copyhold property is alone the subject of surrender, the intended limitations are effected, either by inserting in the surrender, when practicable, the several uses to which it is made, or by a separate declaration of the trusts upon which the persons to whom the property is surrendered, or covenanted to be surrendered, shall stand seised.
If on a surrender a contingent remainder be limited, as to A. for life, remainder to his first son, then, with the view of guarding against a forfeiture of the life estate, a limitation to a trustee might be introduced to take in the
Propriety of a limitation to preserve con. tingent remainders.
event of such estate being forfeited. But a surrender so framed might probably not be accepted by the lord: (1) In Stansfield v. Habergham (2), Lord Eldon observed, Duty of trustees
for preserving that though trustees to preserve contingent remainders contingent rewere sometimes omitted in limitations of copyhold estates, mainders. both by 'settlement and will, they were frequently created by express limitation; and that, whatever might be the case as to the lord, if trustees were created by express limitation for the purpose of preserving contingent estates, they would be guilty of a neglect of their duty by permitting a tenant for life, liable to impeachment for waste, or a tenant pur autre vie, who by the nature of his estate was liable for waste, to destroy the timber.
(4.) Of Trusts, and the Recognition thereof by the
Lord: herein as to the Entry of Trusts on the
It seems generally considered, that the lord is not com- Entry of trusts pellable to enter on the rolls a declaration of any trusts upon which a surrender is intended to be made, nor to permit a reference to be made to any separate instrument, whereby such trusts are declared, on the ground that he would thereby make himself a party to, and be bound by the trusts. (3)
In a recent case involving these points, the circumstances were as follows; a copyhold tenement was surrendered by A., to the use of B. in fee, subject to the trusts of an indenture referred to, and B. was admitted tenant: by the trusts of the indenture, B. was empowered to sell the tenement after a year's notice, and out of the monies arising from the sale, to repay
himself 7001. and interest, and pay the surplus to A. B. died intestate, and without an heir, the 7001. remaining due. Two questions arose: 1. Whether A. had an equity of redemption against the lord, and was entitled to be re-admitted on payment of the 7001. and interest: 2. Whether, if A. had such right, the lord or personal
representative of B. was entitled to the mortgage-money: Lord bound by and it was held, that the lord was bound by the trusts of trusts referred
the indenture, and that A. was entitled to redeem, as the equity of redemption still subsisted under the indenture, no notice having been given by the mortgagee authorizing an exercise of the power of sale ; and that the lord having by his admission upon the surrender assented to the mortgage, the mortgage-money was part of the personal estate of the mortgagee, and to be received by his admi
nistrator. (1) Enactment in The 5th section of the recent Statute of Wills has enactStat. of Wills
ed, that when any trusts are declared by a will, it shall ference to trusts not be necessary to enter the declaration of such trusts, on court rolls.
but it shall be sufficient to state in the entry on the court rolls that the estate is subject to the trusts declared by such will.
The reader is referred to some observations already made on the subject of escheat and forfeiture by a trustee, sup. p. 31.
(5.) Of Trusts Executory and executed, and the
Devolution thereof : herein of the Disposition of Contingent and Executory Interests.
Trusts are said to be executory, when the completion of them is referred to some future conveyance or settlement, in which case a Court of Equity will order the conveyance or settlement to be so made as will best carry the intention of the parties into execution.
(1) Weaver v. Maule, 2 Russ. & Myl. 97.
Trusts are said to be executed, when they are fully Trusts exe
cuted. limited and declared, without reference to any further execution of them by conveyance or settlement, in which case a Court of Equity will construe them in the same manner as legal limitations. (1) And the practice and decisions of Courts of Equity, with reference to this division of trusts, are as applicable to copyhold as to freehold property; so that a trust of copyholds will follow the customary mode of descent. (2)
But it is of importance to observe, that when a trust is Execution of executory, and the course of descent applicable to the executory trust. land, the subject of the trust, is regulated by custom, and not according to the common law, the trust will nevertheless be executed according to the latter course of descent. (3)
Although a contingent or executory interest in copy. Contingent inhold property is not the subject of surrender, yet it may te
subject of surbe bound in equity by contract, may be released to the render. owner of the land, is the subject of devise, is transmissible to representatives (4), and is expressly made devisable by Is devisable. the third section of 1 Vict. c. 26, for the amendment of the laws with respect to wills. (5) And where husband and wife are entitled in her right Disposition of
interest of a to any interest in copyhold property not being the subject ma of surrender, and whereof the wife is not tenant in tail, man. the same is capable of being dealt with by a deed of disposition under the 77th section of 3 & 4 W. 4, c. 74, as fully and effectually as if the wife were a feme sole. (6)
bject of devise released to the subject of the
(1) Fearne C. R. 90, 114.
(2) Roberts v. Dixwell, 1 Atk. 607. Jervoise v. Duke of Northumberland, 1 Jac. & Walk. 570.
(3) Roberts v. Dixwell, 1 Watk. Cop. 276, [4th ed.]
(4) Fearne C. R. 364, 366, 547. 3 Atk. 75. 1 Ves. Sen. 411. 1 Watk, Cop. 267, [4th ed.]
(5) Vide infra, sec. V. (6) Infra, sec. VI.