Springing and shifting uses.
Executory uses anciently allowed by the Court of Chancery.
The Statute of Uses.
Executory uses still allowed.
(d) Ante, pp. 151, 152. (e) Butl. n. (a) to Fearne, Cont. Rem. 384.
(f) Ante, p. 259.
(g) 27 Hen. VIII. c. 10, ante, p. 153. (h) See ante, pp 175, 176.
Example: - To the use of A. and his heirs until a marriage, and, after the marriage, to other uses.
(i) Ant.-, p. 259.
(k) Ante, pp. 154, 181.
From the above examples, an idea may be formed of the shifts and devices which can now be effected in settlements of land, by means of springing and shifting uses. By means of a use, a future estate may be made to spring up with certainty at a given time. It may be thought, therefore, that contingent remainders, having until recently been destructible, would never have been made use of in modern conveyancing, but that every thing would have been made to assume the shape of an executory interest. This, however, is not the case. For, in many instances, future estates are necessarily required to wait for the regular expiration of those which precede them; and, when this is the case, no art or device can prevent such estates from being what they are, contingent remainders. The only thing that could formerly be done, was to take care for their preservation, by means of trustees for that purpose. For, the law, having been acquainted with remainders long before uses were introduced into it, will never construe any limitation to be a springing or shifting use, which, by any fair interpretation, can be regarded as a remainder, whether vested or contingent (7).
Name and arms.
The establishment of shifting and contingent uses occasioned great difficulties to the early lawyers, in consequence of the supposed necessity that there should, at the time of the happening of the contingency on which the use was to shift, be some person seised to the use then intended to take effect. If a conveyance were made to B. and his heirs, to the use of A. and his heirs until a marriage or other event, and afterwards to the use of C. and his heirs, it was said that the use was executed in A. and his heirs by the statute, and that as this use was co-extensive with the seisin of B., B. could have no actual seisin remaining in him. The event now happens. Who is seised to the use of C. ? In answer to this question it was held that the original seisin reverts back to B., and that on the event happening he becomes seised to the use of C. And to support this doctrine it was further held that meantime a possibility of seisin, or scintilla, juris, remained vested in B. But this doctrine, though strenuously maintained in theory, was never attended to in practice. And in modern times the opinion contended for by Lord St. Leonards was generally adopted, that in fact no scintilla whatever remained in B., but that he was, by force of the statute, immediately divested of all estate, and that the uses thenceforward took effect as legal estates according to their limitations, by relation to tin- original seisin momentarily vested in B.(m),
No limitation construed as a shifting use which can be regarded as a remainder.
(l)Fearne, Cont. Rem. 386 - 395,526; Doed. Harris v. Howell, 10 Barn.&Cres. 191, 197; 1 Prest.
Abst.. 130 (m) Sag. Pow. 19, 8th ed.
And a final blow to the doctrine has now been given by an act of parliament (n), which provides, that where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise, by force of and by relation to the estate and seisin originally vested in the person seised to the uses; and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of, or to give effect to, future or contingent or executory uses; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere.
One of the most convenient and useful applications of springing uses occurs in the case of powers, which are methods of causing a use, with its accompanying estate, to spring up at the will of any given person (o): - Thus, lands may be conveyed to A. and his heirs to such uses as B. shall, by any deed or by his will, appoint, and in default of and until any such appointment, to the use of C. and his heirs, or to any other uses. These uses will accordingly confer vested estates on C, or the parties having them, subject to be divested or destroyed at any time by B.'s exercising his power of appointment. Here B., though not owner of the property, has yet the power, at any time, at once to dispose of it, by executing a deed; and if he should please to appoint it to the use of himself and his heirs, he is at perfect liberty so to do; or, by virtue of his power, he may dispose of it by his will. This power of appointment is evidently a privilege of great value; and it is accordingly provided by the Bankruptcy Act 1869, that the trustee for the creditors of any person becoming bankrupt may exercise, for the benefit of his creditors, all powers (except the right of nomination to a vacant ecclesiastical benefice) which might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or during its continuance (p). If, however, in the case above mentioned, B. should not become bankrupt, and should die without having made any appointment by deed or will, C.'s estate, having escaped destruction, will no longer be in danger. In such a case a liability was until recently incurred by the estate of C. in respect of the debts of B. secured by any judgment, decree, order, or rule of any court of law or equity. These judgment debts, by an act of parliament (q), to which reference has before been made (r), were made binding on all lands over which the debtor should, at the time of the judgment, or at any time afterwards, have any disposing power, which he might, without the assent of any other person, exercise for his own benefit. Before this act was passed, nothing but an appointment by B. or his assignees, in exercise of his power, could have defeated or prejudiced the estate of C. And now, by the act to which we have before referred for amending the law relating to future judgments (s), no judgment entered up after the 29th of July, 1864, the date of the act, can affect any land of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment.