'Hereditaments of this Realm have been conveyed from one to another No. 3. by fraudulent Feoffments, Fines, Recoveries and other Assurances 27 H. VIII. c. 10. 'craftily made to secret Uses, Intents and Trusts; and also by Wills and Testaments, sometime made by nude parola and Words, some'time by Signs and Tokens, and sometime by Writing, and for the Doubts which have been suggested respecting it, entirely given Way to a Limitation with the Intervention of a Trustee, by which the Right of Dower is absolutely prevented. Nothing certainly can be more striking than the Inconsistency of the Doctrine which subjects Trust Estates to the Right by Courtesy, while it exempts them from the Claim of the Dower. The following Observations of Lord Redesdale, in D'Arcy v. Blake, 2 Scholes & Lefroy, 388, seem to give the true Account of the Origin of the Distinction: "The Difficulty in which the Courts of Equity have been involved, with Respect to Dower, I apprehend originally arose thus: they had assumed as a Principle in acting upon Trusts, to follow the Law; and according to this Principle, they ought in all Cases where Rights attached as legal Estates, to have attached the same Rights upon Trusts; and Consequently to have given Dower of an equitable Estate. It was found, however, that in Cases of Dower, this Principle, if pursued to the utmost, would affect the Titles to a large Proportion of Estates in the Country, for that Parties had been acting on the Footing of Dower upon a contrary Principle, and had supposed, that by the Creation of a Trust, the Right of Dower would be prevented from attaching. Many Persons had purchased under this Idea; and the Country would have been thrown into the utmost Confusion, if Courts of Equity had followed their general Rule with Respect to Trusts in the Cases of Dower But the same Objection did not apply to Tenancy by the Courtesy; for no Person would purchase an Estate subject to the Tenancy by the Courtesy, without the Concurrence of the Person in whom that Right was vested." The Consequence of adopting the present Mode of Conveyancing, in Preference to that first mentioned, has perhaps not been sufficiently attended to, with Respect to its Influence on the Comforts of Families, and the fair Expectations of Persons engaged in Marriage; for although a Freedom of Disposition is an important Object in the Acquisition of Property, the affording to a Widow the original Provision of the Law, when the Husband has shewn no Intention to the Contrary, would be much more Beneficial to the Community than the mere Advantage to the Heir; (a Person probably unknown to his Ancestor) upon the opposite System. Considering the Reasonableness of the Provision itself on the one Hand, and the Disadvantage which arises from rendering the Right to that Provision so absolute as not to be subject to the Controul of the Owner of the Property-and the consequent Expedients leading to an absolute Deprivation of the Right, on the otherthe Subject seems to be fairly worthy of legislative Attention; and the Editor submits that it would be very Beneficial to provide, that in all Cases it should be lawful for any Person seised of an Estate in Fee, to dispose thereof; and that the same should be subject to all his Debts and Charges, free from any Claim of Dower, with the Exception of Estates to which the Title shall arise by Descent or Devise, or Marriage Settlement during the Coverture; and by way of Compensation, to admit Widows to their Dower of Trust Estates, subject to any Dispositions of the Husband. Perhaps it might not be an injudicious Addition (although the Observation does not arise immediately out of the Subject which is properly before me) to extend the Benefit of Dower and Courtesy to the Cases of Freehold Leases; and to dispense with the Necessity of having Issue as a Condition for Tenancy by the Courtesy. The Power of a Party being only Tenant for Life by a wrongful Conveyance, such is a Fine or Feoffment to acquire an absolute Title to the Inheritance to the Prejudice of those who may be evidently entitled to ulterior Intents, is certainly no very desirable Ingredient of our legal System: and in all Cases, is the mere Result of a Deficiency of Style in framing the Instruments under which the Estate is derived: this Power does not exist with No. 3. 27 H. VIII. & 10. 1 Roll, 260, 327, 385. 2 Roll, 170, 335, 336. Poph. 21, 70. 'most Part made by such Persons as be visited with Sickness, in their extreme Agonies and Pains, or at such Time as they have scantly 'had any good Memory or Remembrance; at which Times they being provoked by greedy and covetous Persons lying in Wait about them, do many Times dispose indiscreetly and unadvisedly their Lands and Inheritances; by Reason whereof, and by Occasion of which fran'dulent Feoffments, Fines, Recoveries and other like Assurances to Uses, Confidences and Trusts, divers and many Heirs have been ' unjustly at sundry Times disherited, the Lords have lost their Wards, 'Marriages, Reliefs, Harriots, Escheats, Aids pur fair fitz chivalier, pur file marier, and scantly any Person can be certainly assured of any Lands by them purchased, nor know surely against whom they 'shall use their Actions or Executions for their Rights, Titles, and Duties; also Men married have lost their Tenances by the Curtesy, 'Women their Dowers, manifest Perjuries by Trial of such secret Wills and Uses have been committed; the King's Highness hath lost the Profits and Advantages of the Lands of Persons attainted, and of the Lands craftily put in Feoffments to the Uses of Aliens ⚫ born, and also the Profits of Waste for a Year and a Day of Lands of Felons attainted, and the Lords their Escheats thereof; and many other Inconveniences have happened, and daily do increase · among the King's Subjects, to their great Trouble and Inquietness, and to the utter Subversion of the ancient Common Laws of this Realm; for the Extirping and Extinguishment of all such subtle Respect to Trust or Copyhold Estates, and I apprehend that it would be an Improvement in the Law to dispense with the Services of the Parties intrusted with the imaginary Duties of "making Entries, and bringing Actions as Occasion shall require," for the Purpose of supporting contingent Remainders; by a general Provision, that no Estate or Interest in Remainder should be affected or prejudiced by any Fine, Feoffment, or other wrongful Act of Tenant for Life, or by any Union of the Tenancy for Life with the ulterior Reversion This Principle was acted upon by Statute 10 & 11 W. S. c. 16. to enable posthumous Children to take Estates as if born in their Parents' Life Time; (ante Class I No. 22) previous to which a Limitation to Trustees was necessary for the Preservation of an intermediate Freehold; and it is impossible to suppose that any Prejudice can arise from an Alteration of the Law which will have the Effect of preventing the Intentions of the Party from whom the Property is derived, being defeated in Consequence of the Omission of a mere technical Expression. Besides the general Mischief already alluded to, against which such a Provision would afford a Remedy, the Mischief of the Power of Devise by Tenant in Remainder being defeated by a Fine of the preceding Tenant for Life, would be effectually obviated. The Legislature has, in the Statutes forming one of the preceding Classes, (Vide Class VI.) applied a Remedy to the Inconvenience atising from Estates in Trust being vested in Infants or Lunatics. It would be a very beneficial Extension of the same Principle to provide for the Case of the Absence or Uncertainty of the Person in whom such Trust Estates were vested, by enabling Courts of Equity, upon Petition to authorize a proper Officer to execute a Conveyance of the Trust Estate. This Subject might require distinct Consideration as applied to the Cases of mere Trusts as Instruments of Conveyancing, and Trusts attended with actual Confidence in the Individuals; but I apprehend, tha considerable Benefit, unaccompanied with any Inconvenience, would arise from making the Provision general The Principle of such a Provision has been already applied by the Legislature to the Case of personal Estates, by Stat. 36 Geo. III. c. 90, with Respect to Money in the Funds: and I find that by the Irish Statute 28 Geo. III. c.35. Provisions of the Nature here suggested, have been actually adopted. 2 Gabbett, 358. No. 3. him or them that 8 Co. 94. 11 Co. 24. practised Feoffments, Fines, Recoveries, Abuses and Errors hereto⚫fore used and accustomed in this Realm, to the Subversion of the 97 H. VIII. c. 10, "good and ancient Laws of the sanie, and to the Intent that the King's Highness, or any other his Subjects of this Realm, shall not in any wise hereafter by any Means or Inventions be deceived, damaged or hurt, by Reason of such Trusts, Uses or Confidences: It may please the King's most Royal Majesty, that it may be enacted by The Possession of his Highness, by the Assent of the Lords Spiritual and Temporal, and Lands shall be in the Commons, in this present Parliament assembled, and by the Au have the Use. thority of the same, in Manner and Form following; that is to say, 1 Leon. 258. That where any Person or Persons (2) stand or be seized, (3) or at any 2 Leon. 6, 15. Time hereafter shall happen to be seized, of and in any Honours, Castles, 3 Cr. 903. Manors, Lands, Tenements, Rents, Services, Reversions, Remainders 1 Co. 162. or other Hereditaments, to the Use, Confidence or Trust of any other Person or Persons, or of any Body Politick, (4) by Reason of any Bar- Cro. 1. 46, pl. 2. gain, Sale, Feoffment, Fine, Recovery, Covenant, Contract, Agreement, Cro. Jac. 6, Will or otherwise, by any manner Means whatsoever it be; that in 401, 453. every such Case, all and every such Person and Persons, and Bodies Cro. Car. 44, Politick, that have or hereafter shall have any such Use, Confidence or 218. Trust in Fee-simple, Fee-tail, for Term of Life or for Years, or other- 1 Anders. 337. wise, or any Use, Confidence or Trust, in Remainder or Reverter, Bro Feoffm pl. shall from henceforth stand and be seized, deemed and adjudged in Uses 55, 56, 58. lawful Seisin, Estate and Possession of and in the same Honours, Plow. f. 111, Castles, Manors, Lands, Tenements, Rents, Services, Reversions, Remainders and Hereditaments, with their Appurtenances, to all Intents, Moor, 859, pl. Constructions and Purposes in the Law, of and in such like Estates as they had or shall have in Use, Trust or Confidence of or in the 235, 274, 309, Dyer, f. 115, same; and that the Estate, Title, Right and Possession that was in 340, 349, 362, such Person or Persons that were, or hereafter shall be seized of any 369. Lands, Tenements or Hereditaments, to the Use, Confidence or Trust Co. 1 Inst. 237, of any such Person or Persons, or of any Body Politick, be from a. 272, a. 287,a. henceforth clearly deemed and adjudged to be in him or them that Co. Lit. 187, b. have, or hereafter shall have, such Use, Confidence or Trust, after such Quality, Manner, Form and Condition as they had before, in or to the Use, Confidence or Trust that was in them. (2) The King or Queen Regent cannot be seised to a Use-Gilb. [6] 11; nor the Queen Consort.-Bac. Uses 59. And a Corporation cannot take by Conveyance to the Use of another; but it seems that they may pass their own Estates by Conveyances operating only by the Statute of Uses as by the common Conveyance of Lease by way of Bargain and Sale, and Release; and that the usual Precautions of conveying by Lease at Common Law, and actual Entry, as the Foundation of a Release, or by Feoffment, are not necessary. See Sug. Note Gilb. [5]. (3) By Force of this Word, which only extends to Freehold Interests, the Statute does not affect Assignments of Terms of Years, although a Term may be newly created by Conveyance operating under the Stature, as is evident from the common Case of a Bargain and Sale for a Year. See Gilb [79]. The Purpose of vesting a Term of Years in a Person already possessed thereof with others as Joint-Tenants, (as in the usual Case of a Change of Trustees for Public Institutions) can only be accomplished by a previous Assignment to a third Person, and from such Person to the original Assignor in Conjunction with others. This double Transfer only occasions the Expence of an additional and very short Deed, for the Re transfer is invariably made by Indorsement.Sug. Gilb. [78] 150. 346. (4) Money given by the Governors of a Hospital, is a good Consideration to raise a Use to them in their public Capacity; and though a Body Politic cannot be seised to a Use, yet upon a Bargain and Sale to them, a Trust may be limited that they shall dispose of the Rents and Profits of the same amongst the Poor of the said Corporation. Gilb. [286]. 1180. No. 3. 13 Co. 55, 56. 3 Roll, 246. II. And he is further enacted by the Authority aforesaid, That 27 H. VIII c. 19. where divers and many Persons be, or hereafter shall happen to be, Assurance made jointly seised of and in any Lands, Tenements, Rents, Reversions, of divers to the Remainders or other Hereditaments, to the Use, Confidence or Trust Use of one or of any of them that be so jointly seised, that in every such Case that some of them. those Person or Persons which have or hereafter shall have any such Use, Confidence or Trust in any such Lands, Tenements, Renis, Reversions, Remainders or Hereditaments, shall from henceforth have, and be deemed and adjudged to have only to him or them that have, or hereafter shall have any such Use, Confidence or Trust, such Estate, Possession and Seisin, of and in the same Lands, Tenements, Rents, Reversions, Remainders and other Hereditaments, in like Nature, Manner, Form, Condition and Course, as he or they had before in the Use, Confidence or Trust of the same Lands, Tenements or Hereditaments; saving and reserving to all and singular Persons, and Bodies Politick, their Heirs and Successors, other than those Person or Persons which be seised, or hereafter shall be seised, of any Lands, Tenements or Hereditaments, to any Use, Confidence or Trust, ali such Right, Title, Entry, Interest, Possession, Rents and Action, as they or any of them had, or might have had before the making of this Act. Saving of the Right of the Feot fces to Use 2 Lev. 126, 127. Dyer, f. 349. the Use, that Rent III. And also saving to all and singular those Persons, and to their Heirs, which be, or hereafter shall be seised to any Use, all such former Right, Title, Entry, Interest, Possession, Rents, Customs, Services and Action, as they or any of them might have had to his or their own proper Use, in or to any Manors, Lands, Tenements. Rents or Hereditaments, whereof they be, or hereafter shall be seized to any other Use, as if this present Act had never been had nor made; any Thing contained in this Act to the contrary notwithstanding (5) IV. And where also divers Persons stand and be seised of and in any Lands, Tenements or Hereditaments, in Fee-simple or otherwise, to the Use and Intent that some other Person or Persons shall have and perceive yearly to them, and to his or their Heirs, one * annual Rent of xli or more or less, out of the same Lands and ⚫ Tenements, and some other Person one other annual Rent, to him and his Assigns for Term of Life or Years, or for some other special Time, according to such Intent and Use as hath been heretofore declared, limited and made thereof:' V. Be it therefore enacted by the Authority aforesaid, That in Land assured to every such Case the same Persons, their Heirs and Assigns, that have should be paid out such Use and Interest, to have and perceive any such annual Rents thereof to some out of any Lands, Tenements or Hereditaments, that they and every 1 Anders. 275, of them, their Heirs and Assigns, be adjudged and deemed to be in other 338. Possession and Seisin of the same Rent, of and in such like Estate as they had in the Title, Interest or Use of the said Rent or Profit, and as if a sufficient Grant, or other lawful Conveyance had been made and executed to them, by such as were or shall be seized to the Use or Intent of any such Rent to be had, made or paid, according to the very Trust and Intent thereof; and that all and every such Person and Persons as have, or bereafter shall have, any Title, Use and Interest (5) By Virtue of this Saving, "If a Termor for Years be made a Feoffee to Uses, his Term is saved by the Statute, and not merged; and it is not Material that the Termor holds the Lease in Trust See Cheyney's Case, Mo. 196. 2 And. 192. And where a Termor for Years was made a Tenant to the Præcipe, it was held, that although the Freehold vested in him drowned the Term until the Recovery was sufficient; yet when the Recovery was perfected, the Term should revive. Ferrers v. Fermor, Ral. Rep. 245. Cro. Jac. 643. Terries Case, 1 Ventr. 200, cited. The same Rule must, it is conceived, prevail, even when the Conveyance is by Lease and Release. Sug. n. Gilb. [80]. No. 3. in or to any such Rent or Profit, shall lawfully distrain for Nonpayment of the said Rent, and in their own Names thake Avowries, 27 H. VIII. c. 10. or by their Bailiffs or Servants make Conisances and Justifications, and have all other Suits, Entries and Remedies for such Rents, as if the same Rents had been actually and really granted to them, with sufficient Clauses of Distress, Re-entry, or otherwise, according to such Conditions, Pains, or other Things limited and appointed, upon the Trust and Intent for Payment or Surety of such Rent. (6) not have both a &c VI. And be it further enacted by the Authority aforesaid, That A Woman shall whereas divers Persons have purchased, or have Estate made and Jointure & Dower conveyed of and in divers Lands, Tenements and Hereditaments unto of her Husbaud's them and to their Wives, and to the Heirs of the Husband, or to the Lands Co. I. 4, f. 1, Husband and to the Wife, and to the Heirs of their two Bodies begotten, or to the Heirs of one of their Bodies begotten, or to the Dyer, f. 61, 97, Husband and to the Wife for Term of their Lives, or for Term of 228, 248, 266, Life of the said Wife; or where any such Estate or Purchase of any 317, 340. Lands, Tenements, or Hereditaments, hath been or hereafter shall be Co. Inst. 36 b. made to any Husband and to his Wife, in Manner and Form expressed, or to any other Person or Persons, and to their Heirs and Assigns, to the Use and Behoof of the said Husband and Wife, or to the Use of the Wife, as is before rehearsed, for the Jointer of the Wife; that then in every such Case, every Woman married, having such Jointer made or hereafter to be made, shall not claim, not have Title to have any Dower of the Residue of the Lands, Tenements or Hereditaments, that at any Time were her said Husband's, by whom she hath any such Jointer, nor shall demand nor claim her Dower of and against them that have the Lands aud Inheritance of her sajd said Husband; but if she have no such Jointer, then she shall be admitted and enabled to pursue, have and demand her Dower by Writ of Dower, after the due Coarse and Order of the Common Laws (6) The following Note upon this Subject is given by Mr. Sugden, in Gilbert's Law of Uses and Trusts, 193, [86.]—"The Statute has two Provisions for the Execution of Rents:the first, for Rents in esse limited to Uses, which are executed in the same Manner as Uses of corporeal Hereditaments; the other, for Rents limited in Use out of the Seisin in the Land of some other Person, é. g. where any Person stands seised of any Lands, to the Use that some other Person may receive a Rent thereout, which the Statute exedutes in the same Manner as if a sufficient Grant had been made to him by the Person seised to the Use, and gives the Cestur que Usé a Power of Distress; see 1 Mod. 223; 2 Mod. 138. This Clause, it has been held, relates as well to Rents limited since the Statute, as to Rents then in esse, Dy. 362, b, pl. 21; Danby v. Conyers, 1 And. 51; Bendl. 315, pl. 299; therefore if Lands be conveyed to A and his Heirs, to the Use that B and his Heirs may receive a given Rent, the Use will be executed by the Statute; but any ulterior Use would be void. Where a Rent is intended to be limited to Uses in strict Settlement, it is desirable to first grant it to a Stranger in Fee, to the Intent that he may re-grant it to the intended Uses; see Mr. Butler's n. to Co. Litt, 271, b; which avoids any Question, whether distinct Rents are granted; see Whit field v. Fausset, 1 Ves. 387: or it may be granted to a Stranger to the Uses at once; see Bascawen v. Cook, 1 Mod. 223; Cook v. Hefle, 2 Mod. 138. S. C.; although if limited by Way of Use to the Stranger, the ulterior intended Uses would be mere Trusts; see Chaplin v. Chaplin, 3 P. Wms. 229. "The Meaning of the Passage in the Text is, that a Rent cannot be granted by a Bargain and Sale; that is, that a mere Bargain and Sale of a new Rent would be void; but upon a Conveyance of the Estate itself by Bargain and Sale, a Rent may be limited out of the Estate created; for although a Use had only passed by the Common Law, yet now by the Statute, the Use and Possession pass together, and so it amounts to a Grant of the Land itself. This was adjudged in Weeks v. Tillard, Co. Litt. 144, a; Cro. Eliz. 595; and see Puttenham's Case, 1 And. 18; and the Reservation, as if out of the |