Page images

expensive machinery of fines, and powers of appointments, and to establish an uniformity of principle, he allows to the wife the free disposition of her land either by will, or, with consent of her husband, by deed, which (for the avoiding of undue influence) is to be acknowledged before a judge. No settlement, or other, disposition on the part of the husband, either by deed or will, is to operate in derogation of any of the rights of marriage before specified, unless an intention that they should thus derogate is expressed-a provision which is stated to be levelled at our present equitable doctrine of implied satisfaction, the numerous distinctions and nice refinements of which produce the certain evil of a large mass of active law, while the balancing of contradictory expressions, equivocal facts, and conflicting authorities; renders it questionable, whether the intention be not oftener des feated than aided by the application of the rules now in force. The chapter respectingAlienation by Deed or Will

' is replete with most novel and important matter. The author's proposals for enabling a testator to devise prospectively whatever land he may be possessed of at the time of his decease, and that a devise of land shall not be revoked by any intermediate change in the nature of the property, or in the circumstances of the testator, would lead to the prevention of disputes, the number and intricacy of which no one, who is not a practising lawyer, can imagine.

Among such regulations as are common to deeds and wills, the author proposes, in the first place, to put all dispositions regarding land, whether present or future, certain or contingent, under the immediate protection of the law, so as to be rendered incapable of being destroyed by the acts of third persons; and, in the next place, (what had been previously provided for in part,) that all such dispositions, of whatever nature, shall be made directly to the person meant to be benefited, and not to any other in trust for him-except where some active purposes are intended that all estates and interests in land shall be legal rights, and cognizable as such in the courts of law—and that, in alienations in perpetuity, it shall be unnecessary to name the heirs or assigns of the alienee. The author justly anticipates, that the latter proposition will startle his readers, (he means, of course, his professional ones). He shows, however, that the practice was utterly unknown till the establishment of feudal tenures. under these were originally for life, and gradually extended to the heirs s; this extension rendered it necessary to use the word 'heirs' when it was intended that the heirs should take.

No judge, perhaps, has ever sat upon the bench, who has not lamented the conflict between the legal import of the word

• heirs,'

The grants

. heirs,' and the intentions of those who use it. If an ignorant person wishes to vest the absolute property of land in his devisee, he gives it to him without using the word heirs. If he wishes to entail it upon him and his issue, he devises it to him and his heirs. By the construction of law the devisee takes, in direct opposition to the intention of the testator, an estate for life only in the first instance, an estate in fee simple in the second. There has not, perhaps, been a single term for the last 100 years in which some case upon this point has not arisen: and the adoption of the proposed rule would undoubtedly obviate an infinity of litigation both at law and in equity.

To put the question within the reach of the public at large, the author urges, that the general term conveys the absolute and unqualified meaning, while, says the law maxim, additio probat minoritatem.

• Where,' observes old Wingate, (whom he quotes as commenting on this rule,) 'you finde it said in any book, that a man is seised in fee without saying more, it shall be understood in fee-simple; and not in fee-taile, unlesse there be put unto it such an addition, fee-taile, &c. and, therefore, in heraldry, the younger sonnes give the differences. And in France, by Monsieur, (without any addition or other title,) is to be understood the king's onely brother, and by Madame, (without more, the king's onely sister ; and, therefore, they are said in French to be Monsieur sans queue, and Madame sans queue, viz. without any other addition or title. But if there be in France any occasion of naming any other lord or lady, they are always named with their proper and peculiar title, as Monsieur de Longville, Madame de Chevreuse, &c.' Surely, adds Mr. Humphreys, an absolute perpetuity may claim, with us, the privilege of passing sans queue.

On the great and much agitated subject of perpetuities, or (more strictly speaking) of the settlement of real property, by such limitations of it, as, during a certain period of time, will take it out of commerce, and suspend the vesting of the absolute ownership, Mr. Humphreys proposes, that land, or any protits accruing from it, may be aliened for the period of any life or lives in existence at the time of the deed being executed, or, (if the alienation be by will,) at the death of the testator-that it may also be aliened, either in possession, or so as to take effect on the death of the donor, or on the death of any tenant for life, to any person or class of persons, who may be living, or be conceived, when the disposition shall vest in possession; defeasible, however, on the death of the donee during infancy, or on any other assigned event within that limit. Substitutional limitations are next allowed under the same restrictions ; but all dispositions, to take effect at any more remote period, are declared to be void. The rules submitted by Mr. Humphreys for this purpose are


represented by bim as embodying and giving certainty and effect to the principles of our present laws of settlements, both as to lands and profits; and as remedial of the defects on this subject complained of in the first part of the essay. He adverts, however, to an useful effect indirectly produced by our present laws of settlement, of enabling a father, in consequence of the necessity for his concurrence in barring the entail by recovery, to procure a resettlement of the estate, and thus preserve it in the family. This power, he suggests, need not be relinquished ; and for preserving it he proposes that, during the father's life, the eldest or only son's expectant estate shall not be alienable nor extendible, unless with the father's concurrence. This, in the event of the son's dying without issue in his father's lifetime, would give the property, on the son’s death, to the brothers and sisters in the character of heirs.

These provisions would certainly be a great simplification of the present mode of settlement of real property. Years of study are required to comprehend it; and, when understood, none but the most skilful artists can be trusted with it. Even yet its principles are far from being distinctly settled; and their extent and application are still less ascertained. Hence great expense and litigation frequently follow, and legal instruments are immeasurably prolix ; numerous contingencies must be provided for, and language sinks under the necessity of describing and providing for them. It is always extremely difficult, and often quite impossible to explain to the parties themselves the effect and operation of the settlements they execute, or the effect of their wills. Does one testator in fifty, when he devises his property in strict settlement, clearly know to whom, or in what inanner, he has disposed of it?

The necessity (or at least the policy) has been long acknowledged in practice, of investing owners of limited interests in real property with certain powers, (as of selling, exchanging, and leasing,) which are now actually incident only to the absolute ownership. These incidents, now almost invariably given by express provision, Mr. Humphreys proposes to annex by law, to the partial estates in question-the two first to be made exerciseable at the instance of all tenants for life in possession, with remainder to their issue; the latter by the parties themselves being in actual possession. To this annexation of the power of leasing we can discover no sound objection; but the mode of rendering those of sale and exchange available appears to us to demand the author's further consideration.

All Charges on land are either in respect of some annual payments, or for securing a principal sum of money. Charges of


[ocr errors]

the first description our author would restrict to the term of a life, annexing the power of distraining, as an incident inseparably attending them. Principal charges, by way of mortgage or portion, are dealt with in a manner which will probably surprize the legal reader; but which we shall present without venturing any remark.

Mr. Humphreys does not allow of the creation of a term of years, or a legal fee, for securing them. All he admits is a charge, which binds the land, and is to authorize the person, entitled to the money secured by it, to enforce its raising by sale, through the medium of a summary process before the clerk of the peace for the county where the land is situate. Provisions are then made for the dae application of the purchase money, according to the priority of incumbrances; which he would no longer permit to be disturbed by the unjust and pernicious privilege of tacking; and the remedy of distress is given in the case of mortgagees and portioners, a novel power) for enforcing the payment of interest. The rules both of law and equity on the subject of Powers would; it is obvious, be greatly contracted by the proposed abolition of all distinction between legal and equitable estates, and by requiring all dispositions to be made directly to the person in whose favour the power is executed. In the chapter relating to Powers Mr. Humphreys suggests other advantages with which his system will be attended. One of his principal objects in this article is, to assimilate appointments (especially as to the formalities in the execution of the instruments by which they are inade) to other legal instruments. No person is to be allowed to prescribe other formalities; and no appointment is to be valid, even in equity, without them. This provision we think will prove highly beneficial: while we acquiesce entirely in the author's canon that

every abolition of needless distinction and formality affords a correspondent clearness of right and protection against litigation. We cannot extend our observations on this part of the subject further than by remarking, that one of the most important objects which Mr. Humphreys professes to entertain in this place, regards the now interminable questions on the doctrines of exclusive and illusory appointments, which he proposes to settle by one clear and intelligible principle of provision, to the evident extinction of a great mass of uncertainty and consequent litigation.

Under the head of joint property Mr. Humphreys proposes, that no interest shall pass by survivorship without an express provision. The right, though consonant with the principles of feudal law, he represents as opposed to the present habits of society, and, as such, always discountenanced by our courts of equity. 7

The rights of creditors (considered as inter vivos) attach upon both the real and personal property of the party indebted, in such

a manner


the one both at law and in equity, and the other in equity exclusively; the former taking effect through the medium of powers, and admitting of land being rendered alienable, under what is technically called, a power of appointment; while in equity, in addition to such powers, property may be vested in trustees, for the sole use and enjoyment of a wife, free from the controul either of the husband or of his creditors.

Whether all, or only a part, of these rights should subsist, is” (adds the author) ' a question for legislative decision; but surely it is, at all events, fit, that three discordant systems, the first obsolete in principle, and the other two acting unequally, and by indirect means, should give way to one uniform, intelligible class of rights.'

In the ensuing section, which treats of alienation by Deed, or act inter vivos, after enuinerating the various technical modes of alienation subsisting at law, the author proceeds to a concession in favour of mere equitable assurances, which it somewhat surprized us to meet with, and which might have inclined us to view, the whole existing system with some complacency, had it not been followed up by a vivid, though we think not overcharged, delineation of the technical fictions and refinements which pervade every description of legal instruments.

Compared with the formalities, the fictions, and the circuities of legal assurances, they' (viz. assurances which pass equitable interests) ' surprize us' (observes the author) ' with a simplicity and directness of purpose which would satisfy the most zealous advocate for these desirable qualities; it being sufficient, that the transaction be in writing, without any set forms, or technical expressions. This and other similar instances evince that, to a considerable extent, our laws of property may be reformed merely by selecting, without innovating.

In legal dispositions inter vivos, however, of landed property, we should greatly err in conceiving that, when the mode of assurance is once determined the substance may be executed with precision and simplicity; or that every disposition finally resolves itself into one of other of the foregoing modes.

This he proceeds to illustrate by two specimens of assurances of the most opposite character; a mere conveyance on a sale, and a settlement on marriage ; and more striking examples could not be given of the uncertainty of title, doubtful rights, and tedious and costly litigation, which the strange anomalies of this branch of the system occasion; and which the blunders of unskilful, and the artifices of designing practitioners, augment and perpetuate. The passage in which he gravely solicits the attention of his reader, on the occasion of a simple purchase deed, to the technical distinction between an appointment of the use, under a past assurance, to the purchaser, instead of to the subsequent limitations for his benefit, somewhat reminds us of the ri



« PreviousContinue »