This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
A use, not being an estate in the land, was not the subject of tenure, and consequently, on the death of the cestui que use, the lord had no wardship or marriage of the heir, the land did not escheat on the death of the cestui que use without heirs, and it was not forfeited when the cestui que use was attainted of treason or felony.9 The legal ownership, however, represented by the feoffee to uses, was subject to the incidents of tenure, which could be enforced against the land, but by vesting the seisin in two or more feoffees jointly, whose number was renewed from time to time, and the survivor of whom took the whole legal estate, the burdens incident to the descent of land were generally avoided.10
Interests of different durations in a use were recognized by chancery corresponding to legal estates, and accordingly there might be a use to one in fee simple or fee tail, passing to the heir of the cestui que use, or for life or for years.11
A use, it was decided, could he transferred by any species of writing,12 and it was provided by an early statute that the cestui que use might dispose even of the legal estate without the concurrence of the feoffees.13 Uses were also devisable, though at that time legal estates of freehold were not devisable, and a feoffment could be made to one to the uses declared by the last will of the feoffor, and in that case the uses resulted to the feoffor till his death, and after his death the feoffee would be compelled to hold the land to the uses named in the will.14
8. Bacon, St. Uses, 10, 20; Co. Litt. 271b, and Butler's note. Digby, Hist. Real Prop. 324; 2 Cruise, Dig. tit. 11, c. 2, Sec. 6; 4 Kent, Comm. 292.
9. Co. Litt. 191a, Butler's note VI., 11; 1 Cruise, Dig. tit. 11, c. 2, Sec.Sec. 22-24; Williams, Real Prop. (21st Ed.) 169; 1 Sanders, Uses & Trusts, (5tb Ed.) 66.
10. Co. Litt. 191a, Butler's note
VI., 11; 1 Leake, 102; Williams, Real Prop. (21st. Ed.) 169.
11. Sugden's Gilbert, Uses, c. 1, Sec. 2; Digby, Hist. Real Prop. 326.
12. Bacon, St. Uses, 16; 1 Sanders, Uses & Trusts. 64; 1 Cruise, Dig. tit. 11, c. 2, Sec. 28, 29.
13. St. 1 Rich. III. c. 1 (A. D. 1483); 1 Sanders, Uses & Trusts, 20. See Challis, Real Prop. (3d. Ed.) 386.
Sec. 97 ]
At common law, as we shall see later,15 a freehold could not be limited to commence in futuro, owing to the requirement of livery of seisin and the rule against abeyance of the freehold, but these rules had no application to limitations of uses, since their transfer did not involve livery of seisin, and the freehold for purposes of tenure existed in another, and consequently they could be created to spring up in the future, or to shift from one person to another at a future time, or on the happening of a particular contingency.16 Moreover, a use could be limited to arise not only on a future event, but in a mode to be declared in the future by a person named in the declaration of the use; that is, in favor of such person or persons and for such estates as the person named might direct or appoint.17