Directions that executors should sell lands of which others were seised to the testator's use.
ou terres sont devisahles est, que on peut deviser que la terre sera vendu par executors, et ceo est bon, come est dit adevant, et est marveilous ley de raison: mes ceo est le nature d'un devis, et devise ad este use tout temps en tiel forme; et issint on aura loy-alment franktenement de cesty qui n'avoit rien, et en meme le rnaniere come on aura fire from flint ,et uncore nul fire est deins le flint: et ceo est pour performer le darrein volonte de le devisor." Paston. - "Une devis est marvellous en lui meme quand il peut prendre effect: car si on devise en Londres que ses executors ven-dront ses terres. et devie seisi; son heir est eins par descent, et encore par le vend des executors il sera ouste." See also Litt. s. 169.
(s) Perk. ss. 507, 528.
(t) Stat. 21 Hen. VIII. c. 4.
But, as we have seen (u), the passing of the Statute of Uses abolished for a time all wills of uses, until the Statute of Wills (x) restored them. When wills were restored, the uses, of which they had been accustomed to dispose, had been all turned into estates at law: and such estates then generally came, for the first time, within the operation of testamentary instruments. Under these circumstances, the courts of law, in interpreting wills, adopted the same lenient construction which had formerly been employed by themselves in the interpretation of customary devises, and also by the Court of Chancery in the construction of devises of the ancient use. The statute which, in the case of wills of uses, had given validity to sales made by the executors accepting the charge of the will, was extended, in its construction, to directions (now authorized to be made) for the sale by the executors of the legal estate, and also to cases where the legal estate was devised to the executors to be sold(y). Future estates at law were also allowed to be created by will, and were invested with the same important attribute of indestructibility which belongs to all executory interests. These future estates were called executory devises, and in some respects they appear to have been more favourably interpreted than shifting uses contained in deeds (z), though generally speaking their
The Statute of Uses.
(u.) Ante, p. 195.
(x) 32 Hen. VIII. c. 1.
(y) Bonifaut v. Greenfield, Cro. Eliz. 80; Co. Litt. 113 a; see Mackintosh v. Barber, 1 Bing. 50.
(z) In the cases of Adams v. Savage (2 Lord Raym. 865; 2 Salk. 679), and Hawley v. Holland (22 Vin. Abr. 189, pl. 11), limitations which would have been valid in a will by way of executory devise were held to be void in a deed by way of shifting or springing use. But these cases have been doubted by Mr. Serjeant Hill and Mr. Sanders (1 Sand. Uses, 142, 143; 148, 5th ed.), and denied to be law by Mr. Butler (note (y) to Fearne, Cont. Rem. p. (41). Mr. Preston also lays down a doctrine opposed to the above cases (I Prest. Abst. 114, 130, 131 ). Sir Edward Sugden, however, supports these attributes are the same. To take a common instance: a man may, by his will, devise lands to his son A., an infant, and his heirs; but in case A. should die under the age of twenty-one years, then to B. and his heirs. In this case A. has an estate in fee simple in possession, subject to an executory interest in favour of B. If A. should not die under age, his estate in fee simple will continue with him unimpaired. But if he should die under that age, nothing can prevent the estate of B. from immediately arising, and coming into possession, and displacing for ever the estate of A. and his heirs. Precisely the same effect might have been produced by a conveyance to uses. A conveyance to C. and his heirs, to the use of A. and his heirs, but in case A. should die under age, then to the use of B. and his heirs, would have effected the same result. Not so, however, a direct conveyance independently of the Statute of Uses. A conveyance directly to A. and his heirs would vest in him an estate in fee simple, after which no limitation could follow. In such a case, therefore, a direction that, if A. should die under age, the land should belong to B. and his heirs, would fail to operate on the legal seisin; and the estate in fee simple of A. would, in case of his decease under age, still descend, without any interruption, to his heir at law.
The alienation of an executory interest, before its becoming an actually vested estate, was formerly subject to the same rules as governed the alienation of contingent remainders (a). But by the act to amend the law of real property, all executory interests may now be disposed of by deed (b). Accordingly, to take our last example, if a man should leave lands, by his will, to A. and his heirs, but in case A. should die under age, then to B. and his heirs, - B. may by deed, during A.'s minority, dispose of his expectancy to another person, who, shoidd A. die under age, will at once stand in the place of B. and obtain the fee simple. But, before the act, this could not have been done; B. might indeed have sold his expectancy; but after the event (the decease of A. under age), B. must have executed a conveyance of the legal estate to the purchaser; for, until the event, B. had no estate to convey (c).
Alienation of executory interests.
cases, and seems sufficiently to answer Mr. Butler's objection, (Sugd. Gilb. Uses and Trusts, 35, note.)
(a) Ante, p. 266.
(b) Stat. 8 & 9 Vict. c. 106, s. 6, repealing stat. 7 & 8 Vict. c. 76, s. 5.
In order to facilitate the payment of debts out of real estate, it is provided, by modern acts of parliament, that when lands are by law, or by the will of their owner, liable to the payment of his debts, and are by the will vested in any person by way of executory devise, the first executory devisee, even though an infant, may convey the whole fee simple in order to carry into effect any decree for the sale or mortgage of the estate for payment of such debts (d). And this provision, so far as it relates to a sale, has been extended to the case of the lands having descended to the heir subject to an executory devise over in favour of a person or persons not existing or not ascertained (e).