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a man and his assigns for ever ;" “ to a person et sanguine suo ;" “ to one to give and to sell ;" * all I am worth ;'' “all my real property :" "all my estate;" “ all my right, title, and interest;" so, if I devise the land,
on condition that the devisee pay a gross sum of money out of it ;'
charged with the payment of debts and legacies ;" or with a perpetual“ annual payment,"—in all these cases the fee-simple has been held to pass. But if the devise be—" to one and his assigns, without saying for ever- -only an estate for life passes; a devise to one to be freely possessed and enjoyed,” carries an estate for life only. The words—I devise Blackacre to my daughter, and the heirs of her body ; item, I devise to my said daughter Whiteacre,-give the daughter an estate tail in the Blackacre, but only an estate for life in Whiteacre; though had it been “in forma prædicta," instead of iteman estate tail in Whiteacre would have passed. Where the land is devised subject to charges, an estate for life only passes. These are very small specimens of the multitude of cases which have occurred in one of the branches of the law respecting wills.
But the great confusion and uncertainty has arisen, where persons have employed words of limitation-- heirs, and heirs of the body,-in wills, where they intended an estate for life only to pass. As to une for life only, remainder to his heirs ; to one for life and no longer, and after his decease, to the heirs of his body : in the first of these cases an estate in fee, and in the second in tail passes. Fof, though the intention of the maker of the will is allowed to prevail where that intention is not opposed to any rule of law, yet here it is contrary to one of the most fundamental principles of the law of real property-it is, therefore, frustrated. The two estates,- for life, and the remainder to the heirs-unite, and form in the ancestor an estate of inheritance. To take a great case as particularly illustrative of this point, the case of Perrin and Blake. * The question arose on the will of one William Williams, which is of considerable length, though the point may be stated thus :~" It is my intent and meaning that none of my sons should sell or dispose of my estate for longer time than his life, and to that intent he devised the land to his son, John Williams, for and during the term of his natural life; remainder to the heirs of the body of his said son. The case is remarkable for having attracted the ato tention of Westminster Hall for many years. The estion in disputé was the validity of a jointure of £1000 a year, claimed by the wife of John Williams. Her claim was immediately founded on a settlement, made upon her by her husband. The question arose on his right to make such a settlement; and this depended on the construction of the above devise made to him under the will of his father. If the will passed an estate-tail to John Williams, he having done the acts requisite by the laws of Jamaica for barring entails, the jointure of the widow was effectual. If, on the contrary, the will passed only an estate for life, the jointure was bad, as John Williams possessed no power or estate whereby to make the same. Whether the former or latter of these constructions ought to prevail, it was contended should be decided upon a rule thus expressed by my Lord Coke in his report of Shelley's case (1. Co. 93) :-"Where the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or con
• Reported 1 Collect. Jur. 283.
veyance, 'an estate is limited, either mediately or immediately to his heirs in fee or in tail, in all such cases the heirs are words of limitation of the estate, and not words of purchase.” This rule being applied to the will in question, the devisor's son was tenant in tail : not being applied, he was tenant for life only.
In the year 1746, in order to try this point, the surviving trustees for securing Mrs. Williams's jointure, brought two ejectments, (the land held under the same title, being in the seisin of two individuals) in the supreme court of judicature, at St. Jago, in Jamaica. In both these ejectments the supreme court was against Mrs. Willliams's trustees. Writs of error were brought on both judgments in the court of appeals and errors in Jamaica, which consists of the governor and council. On both the judgments in the court of appeals and errors in Jamaica, there was an appeal to the king in council. One of the appeals appears here to have been dropt. The other took the following course : -The lords of the privy council, conceiving that the record brought before them was, for want of a special verdict, too imperfect, reversed the judgment of the court of appeals in Jamaica; but with a direction not to prejudice the merits, and a recommendation of a special verdict on a new ejectment to be brought by Mrs. Williams's trustee. Accordingly, a new ejectment was prosecuted by the trustees; and a special verdict being found, and both the supreme court in Jamaica, and the court of appeals and errors having given judgment for the defendant, the plaintiffs appealed to the king in council. In July 1765, the cause came on for hearing before the lords of the committee of the privy council; but Lord Mansfield, being the only law lord then in attendance, did not chuse that a question so important; in respect to all the landed property in England, should be decided by his single opinion; and, therefore, it was agreed, that the appeal should be adjourned, until a solemn adjudication of the point, arising on the will of William Williams, could be obtained in Wesminster Hall
. For this purpose, a case was at first prepared for the opinion of the Court of King's Bench, and signed by the counsel on each side. But such a reference froin the cockpit, to one of the courts of Westminster being a novelty, it was at length agreed, to take the opinion of the King's Bench, in a feigned action of trespass, in such a way as to give the benefit of a writ of error to the Exchequer chamber, and thence an appeal to the House of Lords. Accordingly, a record was framed for the King's Bench.
The pleadings prepared for this purpose, in various parts of which some of the real facts were varied, and others omitted, in order, as Mr. Hargrave presumes, to accommodate the record to the shortest mode of bringing forward the true point in issue-which, from his own description of them, looks not a little like irony,--the case came on to be heard in the King's Bench, in Eastern Term, 9 Geo. III. It was argued a second time in Trinity Term following. The judgment of the court was given in Trinity Term, 10 Geo. III., for the defendant, Mrs. Blake. Lord Mansfield, C. J., and Aston and Willes, Justices-holding, that John Willams took merely an estate for life; Yates, Justice, being of opinion, that the remainder to the heirs of the body of John Williams the tenant for life were words of limitation,--and therefore passed an estate tail to him.
Upon this judgment a writ of error was brought in the Exchequer chamber, where it was argued several times, of which the last was in May 1771. After a pause of above seven months, the judges of the Exchequer chamber delivered their opinions seriatim, on the 29th of January, 1772. The result was, a judgment of reversal, by the opinions of six judges against two. Lord Chief Baron Parker, Mr. Baron Adams, Mr. Justice Gould, Mr. Baron Perrott, and Justices Blackstone and Nares,-being for reversing the judgment of the King's Bench ; and Lord Chief Justice De Grey and Baron Smith being for affirming it. The judgment of the Court of King's Bench was accordingly reversed.
A writ of error was now brought in the House of Lords. This writ of error was kept depending for several years, without either party choosing to force on a hearing: but at length a compromise took place between them; and on a petition to the House of Lords, representing the compromise, that Honse, on the 17th of May, 1777, ordered a non-pros to be entered on the writ of error.
Thus, says Mr. Hargrave *, (upon whose authority the above case is stated,)—at last ended the famous case of Perrin and Blake, by a compromise, after a litigation of above thirty years. “It seems particular,” observes the same gentleman, “that under any circumstances a lady should not be able to know whether her jointure were good or not, without waiting for upwards of thirty years, and that, at last, the business should terminate in a compromise between the contending parties."
It is clear beyond all doubt, that had the question arisen on a deed, it must immediately have been determined to be an estate tail. How it could be supposed that the words occurring in a will could vary the determination, is difficult to be supposed by those who have read and understand Hargrave and Fearne on this point. The determination goes on a distinction between descent and purchase. It is a positive rule of law, that no man can, by any possible means, limit an estate of inheritance to another, and, at the same time, make the heirs of that person take by purchase. It is a rule of law beyond the controul of construction, adopted to prevent annexing to real descent the qualities and properties of a purchase. The intention was clear; it was allowed on all hands that an estate for life only was intended. But the rule of law is inviolable. It certainly will require not an inconsiderable knowledge of the most intricate branch of our law clearly to understand the true principles of this case; and it is such a knowledge as few unprofessional persons who make wills do, or perhaps, can attain. We think that our readers will by this time agree with us, that it would be better to observe the same strictness in the construction of wills as of deeds. This regulation, together with that of unprofessional persons never attempting to make their own wills, will do more to prevent litigation and dispute, and will be more likely to put an end to the objections which “ fraudulent trustees and erecutors” have made against the jurisdiction of the high court of chancery, than all the other plans of “ modern innovators” put together. It is what we
hope to see soon established. We may add, before closing this part of the subject, that the ancient and venerable principles of law, which “ the revolutionists” of the days of Perrin and Blake endeavoured to overthrow, have been firmly supported by many decisions of later times.
We have only one more proposition to make. We propose general registry of all instruments relating to land be adopted; and that every instrument, not duly registered, shall be held absolutely void. This is the only way to secure the certainty of valid titles, and of preventing fraud, by giving people the certain value of their purchase money. This is the law in Scotland. There you can in a few minutes discover every incumbrance on any given landed property. The same rule partially obtains in England. It is in force (though not nearly so well regulated as in Scotland) in the counties of Middlesex and of Yorkshire. The consequence is this, that more money is invested in land, and land more frequently changes hands, in these than in any other two counties in England. These considerations are a sufficient argument for the adoption of a registry throughout this country. We trust these facts may meet with due attention in the proper quarter.
To conclude: we have now glanced at some of the most material rules affecting landed property in this country. And, although we started with the impartial intention of remarking as well on what we might find good, as on what we should discover bad, in this system, we are sorry to say, we have not yet observed any thing to justify remarks of the former tendency: on the contrary, we are fully convinced, and we think our readers will incline to agree in our conviction, that it could not be to the law of real property that Lord Coke alluded, when he said—" Law is the perfection of reason, and what is not reason is not law."
ROADS AND ROAD-MAKING.
We were endeavouring to recollect some doggrel lines upon bad roads, that we once saw scratched upon the parlour-window of a country inn. But let them pass. However, let us say a word upon Fenestral anthology.
The passion for bookmaking, and the pride of modern Bonifaces have nearly annihilated the literature of panes. This is much to be regretted, as many luminous ideas are thereby lost. Everybody knows the effect of locomotion upon the faculties of thought and expression. If the dullest fellow in the world be well bumped on horseback, or well jolted in a carriage, it is sure to shake something out of him; and when it was the practice to scratch that upon the window of the inn, that became the common-place book of all the travelling world,--a much more infallible key to the spirit of the age, than can be obtained by any other written means. He only, who is old enough to have tasted the pleasures of the parlour of an ancient inn, with the
windows and walls covered over with points of wit, and ends of verse, setting forth the fancies of generations of guests, can have any idea of the melancholy desolation of a modern resting-place by the way-side, as contrasted with the rich variety of the old. There was a time when, if business was not all the more pressing, you were thankful if a rainy day detained you at the venerable hospitium ; but now, such an occurrence is purgatory. You get breakfast-aged eggs, and composition tea; you rise up-yawn-stretch yonrself-saunter to the window-and, leaning your elbows against that, with a palm pressed against each ear, you gaze upon the street or yard, as it may be. Sweet scene!-The sky one murky black,—the earth one ugly brown, -puddle invading puddle, as if the days of Deucalion were returned, -and, ever and anon, as the big drops come down, so formidable and fast, that each appears a solid jet of water the whole height of your vision, the puddles leap up again, as if old Terra, in the article of drowning, were calling, “Hold! enough!” This is your prospect, and there is nothing to shade or soften its horrors. The window is most eruelly transparent; the walls are villanously smooth, and all is so wickedly mopped and brushed, that your cogitations cannot be won from your woe, no, not by so much as a cobweb. Thus you are more lonely than the French captive who, when he was cut off from communication with every other living thing—tamed a spider,-taught it to let itself down by its 'thread when he whistled, and return to its moth-catching, when its kind attention had soothed him to slumber.
Now had you gone to the window of the old inn, with your own barometer as low as that of the weather, the wit of some former visitor would fling its veil of tracery as a shield over you, and up the mercury would have mounted to “set fair;" and ten to one but you would have filled the only vacant spot with something of your own, more brilliant than, solely from the want of such a stimulus, you have ever been capable of producing. Whereas, you have now no alternative, but the horrible picture of the jumbling of air, water and earth, and haply fire, which the window gives you, or to sit down to the everlasting Directory and Book of Roads, or the tattered remains of the Peerage-one half 'not true, and the other not worth reading. No future bard will sing the pleasures of an inn; no future Falstaff will take his ease there; and one half of Homer's hospitality is saved, as nobody has any occasion to “speed the going guest." It has become a purgatory, out of which the sooner you are delivered, in the true Catholic way, by payment and prayers, the better.
Is this matter to be, upon the whole, regretted? We think not: journeying upon the highways in this country has become wholly a matter of business. Nobody thinks of writing a volume along the road, as was the case in the times and person of Emerson. It is now, “Forward! forward!” The journey, be it the whole breadth or length of the island, has only a beginning and an end; you never think of the middle : Anne Nelson, or Sarah Anne Mountain, or William Waterhouse, takes care of that. You stand in a street of London; pull out your watch-lay your finger on the dial—it is Exeter, Liverpool, York, Edinburgh (as may be); you mount the steps-peal goes the