Page images

Expensive machinery of fines, and powers of appointments, and o establish an uniformity of principle, he allows to the wife the ree disposition of her land either by will, or, with consent of her ausband, 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 eyil 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 respecting . Alienation 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. The grants under these were originally for life, and gradually extended to the heirs ; 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,'

[ocr errors]

" 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 him 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 manner, 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 iwo 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


the first description our author would restrict to the term of a life, annexing the power of distraining, as an incident iuseparably 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 due application of the purchase níoney, 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 obvions, 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.

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

a manner

i manner as does not admit of separate provisions for either description of property. The author confines himself, therefore, o some general suggestions respecting their effect upon land ; and in this place he observes, that the proposed extinction of copybold tenure will open that species of property to the demands of creditors; while his proposed simplification of all, descriptions of real property will deliver them from many of the obstacles which they now experience. For the relief of creditors by judgment or recognizance, he provides — Ist, that the personal property, of whatever description, whether in possession or action, whether present or expectant, within the same county, is to be first sold, and applied in discharge of the debt; 2dly, that, if the produce of that sale be insufficient, and if, in the judgment of the sheriff, one year's clear rents and profits of the land within his jurisdiction will supply the deficiency, such rents and profits shall (after the model of the old writ of levari facias) be received and applied by the sheriff accordingly; and lastly, in the event proving otherwise, the real property in different counties is to be sold, and applied successively after the return of each former writ of execution; and land-in possession to be extended in preference to land in expectancy. Thus the author's great object undoubtedly is, to enlarge the remedies of creditors by facilitating the sale of the debtor's lands; but in order to this he requires, that the personal estate, to its full extent, comprizing funds, loans, commercial shares, and all rights in action, which are at present capriciously exempt, should be first resorted to; and the rents secondarily applied in the manner already stated.

On the important subject of Assets he thus expresses himself:

“As some counterpoise to the superior advantages both civil and political attending our different rules of succession to land and to moveables, coupled with unlimited testamentary power, the transmission of every species of property in the same course under the Code Napoleon, as it at present stands, certainly precludes all' questions and accounts between different classes of representatives and testamentary donors, regarding their respective contributions to the ancestor's debts-of our regulations, however, on this subject, though some are indispensable, a considerable portion have arisen from the defective provisions of our law for the payment of debts; from the circuitous contrivances of equity to remedy. them; and from more technical distinctions between law and equity, Possessing (as I conceive .our system of succession coupled with the testamentary power does) a decided superiority in the main, it is the more incumbent on us to strengthen its weaker points, by lopping off all redundancies, and by simplifying and giving method to its necessary characters.

"The abolition already proposed of formal trusts, (which involve equitable interests,) and the reduction of mortgages into their natural


« PreviousContinue »