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Published online by Cambridge University Press: 16 January 2009
It is commonly stated that one of the many effects of the Statute of Uses, 1535, was that the power of devising land which had been acquired by means of uses was abolished. It has also been said that this power ‘would subsequently have been recovered through that construction of the Statute which afterwards gave rise to the modern system of trusts’, i.e. by the enforcement of a use upon a use as a trust. The object of this article is to suggest that on the construction of the Statute which became generally accepted by the Courts the Statute never in fact made it impossible to make what was in effect a devise by means of a use, but augmented the power to devise by making it possible to pass the legal estate; and further, that this fact was recognized long before the Restoration when uses upon a use were first regularly enforced as trusts.
2 See e.g. Challis, Challis. R. (3rd ed.) 168;Google ScholarHoldsworth, Holdsworth. H. E., IV, 463;Google ScholarScrutton, , Land in Fetters, 93;Google ScholarPotter, , Real Property (6th ed. of Goodeve) 572;Google Scholar and see Radcliffe, E. P. (2nd ed.) 89;Google ScholarBordwell, , 21 Iowa L. R. 10.Google Scholar
3 Challis, Challis. R. (3rd ed.) 168.Google Scholar
4 Sambach v. Dalston (1634) Tot. 188 was the first recorded case in which this was done;Google Scholar and see Holdsworth, Holdsworth. H. B., V, 307–309.Google Scholar
6 See Ames, , Lectures on Legal History, 246, 247.Google Scholar
8 The preamble recites (inter alia) the evils caused by the power to make wills (testators ‘being provoked by greedy and covetous persons lying in wait about them, do many times dispose indiscreetly and unadvisedly their lands and inheritances'; and see Wild's Case (1599) 6 Co. Rep. 16b at 17a), and recites that the Act is enacted for the ‘extirping and extinguishment’ of these and other ‘abuses and errors’.
7 Holdsworth, Holdsworth. H. E., IV, 464, 465.Google Scholar
8 Co. Litt. 272a, n. 1, VIII, 1.
9 Ibid.; Butler and Baker's Case (1591) 3 Co. Eep. 25 at 33a (n. I. 1); Cruise, Uses, 31; Sanders, Uses (5th ed.) 64; Williams E. P. (23rd ed.) 182.
10 Gilbert, Uses (3rd ed.) 70; and see Audley's Case (1559) 2 Dy. 166a;Google Scholar (1573) 3 Dy. 324b.
11 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a;Google Scholar or ‘to such uses as I shall declare by my will’ (Sir Ralph Bovey's Case (1672) 1 Vent. 193 at 194;Google Scholar and see Battey v. Trevillion (1589) Moo. K. B. 488 at 490, 491).Google Scholar
12 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a:Google Scholar ‘a feoffment to the use of his will, and to the use of him and his heirs is all one’.
13 ‘The distinction . . . seems extremely subtle’ (Co. Litt. 112a, n. 2 by Hargrave).
14 Battey v. Trevillion (1589) Moo. K. B. 278 at 280;Google ScholarSir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a.Google Scholar
15 Putbury v. Trevilian (1557) 2 Dy. 142a;Google Scholar Maitland, Equity (2nd ed.) 35.
16 Gilbert, Uses (3rd ed.) 70.
17 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a.Google Scholar
18 Gilbert, , Uses (3rd ed.) 70.Google Scholar
19 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a;Google ScholarCo. Litt. 112a.
20 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a;Google ScholarCo. Litt. 111b. This was so even if an express use had been declared in favour of the testator for life (Leonard Lovies's Case (1613) 10 Co. Eep. 78aGoogle Scholar). The qualified fee and the power to devise the fee simple did not merge but existed concurrently in the testator (Sir Edward Clere's Case (supra); Abbot v. Burton (1708) 11 Mod. 181;Google ScholarMaundrell v. Maundrell (1805) 10 Ves. 246;Google ScholarSugden, , Powers (8th ed.) 93 et sea.).Google Scholar
21 Co. Litt. 216b n. 2.
22 Buckhurst's Case (1595) Moo. K. B. 488 at 516;Google ScholarSir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a.Google Scholar
23 Browne v. Taylor (1626) Cro. Car. 38 at 39.Google Scholar
24 Battey v. Trevillion (1589) Moo. K. B. 278 at 280:Google Scholar ‘pur ceo l'entire use, & ove ceo l'entire possession de tout le terre passera’.
25 Challis E. P. 227: ‘intricate and prolix’ (Leonard Lovies's Case (1613) 10 Co. Eep. 78a at 82a).Google Scholar
26 As there appears to be no convenient modern summary of the Statutes, the summary given here includes provisions not of immediate importance to this article.
27 1540, ss. 4, 7, 10, 11; 1542, ss. 5, 7. (The numbering of the sections employed here is that of the Ruffhead edition.)
28 1540, ss. 3, 5, 6, 8, 9, 10, 12; 1542, as. 9, 13.
29 1540, ss. 1, 2, 10, 11; 1542, s. 4.
30 1540, s. 3.
31 1540, ss. 10, 11.
32 A tenant in chief was said to hold ut de corona if he held by direct grant from the King, and ut de honore if he held of the King by virtue of escheat or forfeiture (Challis E. P. 4, 227).
33 1540, s. 7; see Anon. (1589) 3 Dy. 366b, and cf. Butler and Baker's Case (1591) 3 Co. Eep. 25a at 31a, b;Google Scholar see also Mountague's Case (1619) Ley 63.Google Scholar A disposition of other land was restrained only if the tenant held land in knights service ut de corona at the time when the disposition took effect. Thus if a tenant conveyed all his socage land and subsequently acquired land held in knights service ut de corona of which he devised two-thirds, the King had no claim to any of the land held in socage (Randal's Case (1558) 2 Dy. 158b; Worrall v. Harper (1614) 1 Eolle 65 at 67). Similarly if a tenant disposed inter vivos of all his land held in knights service ut de corona, he could devise all his land held in socage even if he had made his will before he disposed of the land held in knights service (Butler and Baker's Case (1591) 3 Co. Eep. 25a at 35a;Google ScholarLeonard Lovies's Case (1613) 10 Co. Rep. 78a at 82b, 84a;Google ScholarHenry Harpur's Case (1614) 11 Co. Rep. 23a at 24a;Google Scholarcf. Worrall v. Harper (1614) 1 Rolle 65 at 67)Google Scholar. But if a tenant in socage who had made a will disposing of all his land subsequently acquired land held in knights service ut de corona, on his death his will was effective as to only two-thirds of his socage land (Leonard Lovies's Case (1613) 10 Co. Eep. 78a at 83b, 84a:Google Scholar and see Henry Harpur's Case (1614) 11 Co. Eep. 23a at 24b).Google Scholar
34 Sir George Curson's Case (1607) 6 Co. Eep. 75b at 76a, b;Google ScholarCo. Litt. 76a. But the Statutes gave the King a right to wardship and primer seisin over land disposed of inter vivos for the benefit of the tenant's wife or children or for the payment of the tenant's debts (Sir George Curson's Case (supra) at 76a, b, 77a; Bacon's Case (1611) Ley 41;Google Scholarcf. Myght's Case (1609) 8 Co. Eep. 163b;Google ScholarMenfield's Case (1617) Ley 51;Google Scholar and see Moody's Case (1560) 2 Dy. 181a).Google Scholar
35 1540, ss. 4, 7, 10, 11; 1542, ss. 5, 7; Butler and Baker's Case (1591) 3 Co. Eep. 25a;Google ScholarMountague's Case (1619) Ley 63 at 65, 66;Google ScholarCo. Litt. 111b.
36 1549, ss. 4, 5, 7.
37 1542, s. 3.
38 1540, ss. 4, 7, 10, 11, 13; 1542, ss. 5, 7, 11, 12; see Lord Mountjoy and the Earl of Huntingdon's Case (1583) Godb. 17;Google ScholarColthirst v. Delves (1588) Gould. 84.Google Scholar
39 Thus if the tenant held three manors of three lords, he could not devise two entire manors but only two-thirds of each manor (The Case of Bankrupts (1584) 2 Co. Eep. 25a at 25b;Google ScholarButler and Baker's Case (1591) 3 Co. Rep. 25a at 33b).Google Scholar
40 1542, ss. 6, 8; see Hyde v. Umpton (1557) 2 Dy. 150b;Google ScholarSir Peter Phitpot's Case (1573) 3 Leon. 28;Google ScholarDigbye's Case (1596) Moo. E. B. 726;Google ScholarSir Richard Pexhall's Case (1609) 8 Co. Rep. 83b at 85a;Google ScholarCarsey v. Wood (1679) T. Raym. 249.Google Scholar
41 1540, s. 13; 1542, s. 11. Where there were devises to several persons, the demands of the King or other lord were borne proportionately by each devisee; see Anon, . (1562) Moo. K. B. 38;Google ScholarButler and Baker's Case (1591) 3 Leon. 271 at 277:Google Scholar and as to dower, see Bostock and Covert's Case (1591) 2 Leon. 131.Google Scholar
42 1542, ss. 9, 10; see e.g. Jerningham v. Cornwallis (1592) Cro. Eliz. 286.Google Scholar
43 1542, s. 12.
44 1542, s. 19. The Statutes were passed chiefly for the benefit of the King and other lords and only indirectly for the benefit of the heir; they gave no remedy to the heir if the proper fraction was not left for him: Butler v. Baker (1591) Poph. 87 at 90, 91;Google ScholarSir Richard Pexhall's Case (1609) 8 Co. Eep. 83b at 85a.Google Scholar
45 Battey v. Trevillion (1589) Moo. K. B. 278 at 280;Google ScholarMytton v. Lutwich (1620) W. Jo. 7 at 9;Google ScholarCo. Litt. 111b.
46 Sir Edward Clere's Case (1599) 6 Co. Rep. 17b at 18a;Google Scholar 'If your act may work two ways, the one by an interest, the other by an authority, or power, and the act be indifferent, the law will attribute it to the interest and not to the authority’ (Case of Commendams (Colt v. Bishop of Coventry and Lichfield) (1612) Hob. 140 at 159).Google Scholar
47 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a;Google ScholarBrowne v. Taylor (1626) Cro. Car. 38.Google Scholar
48 Sir Edward Clere's Case (1599) 6 Co. Eep. 17b at 18a, b.Google Scholar 'It would be monstrous in this case to hold, that, where there is a power and an interest, and the act being equivocal, it is doubtful, whether he acted under the one or the other, the Court should adopt that, which would defeat the instrument’; (Cox v. Chamberlain (1799) 4 Ves. 631 at 637).Google Scholar
49 Thus the appointment was of course revocable at any time before the testator died; see Earl of Ormond's Case (1617) Hob. 348 at 349;Google Scholar see also Fitz. Abr. tit. Subpena, II, fo. 116b, pl. 23;Google ScholarLyte v. Peny (1541) 1 Dy. 49a at 49b.Google Scholar It was soon settled that the Statutes of Wills, being worded permissively, did not restrict the right to devise given by any custom: Clarves’ Case (1557) 2 Dy. 155b;Google ScholarEve v. Tracy (1584) 1 And. 146;Google ScholarButler and Baker's Case (1591) 3 Co. Eep. 25a at 35a (argued twenty-one times-see 35b);Google ScholarHeywood v. Smith (1611) 1 Bulstr. 162 at 165;Google Scholar and see Anon. (1578) 1 Leon. 267.Google Scholar