FIRST DIVISION ON THE STATUTE.1

THOUGH I have opened the statute in order of words, yet I will make my division in order of matter, viz.: The raising of uses; the interruption of uses; the executing of uses.

Again, the raising of uses doth easily divide itself into three parts: The persons that are actors in the conveyance to use; the use itself; the form of the conveyance.

Then is it first to be seen what persons may be seised to an use, and what not; and what person may be cestui que use, and what not; and what persons may declare an use, and what

not.

The King cannot be seised to an use; no, not where he taketh in his natural body and to some purposes as a common person; and therefore, if land be given to the King and I. S. pour terme de leur vies, to the use of I. D., this use is void for a moiety.

Like law is it, if the King be seised of land in the right of his Duchy of Lancaster, and covenant by his letters patent under the Duchy seal to stand seised to the use of his son; nothing passeth.

Like law, if King R. III. who was feoffee to divers uses before he took upon him the crown, had after he was King by his letters patent granted the land over; the uses had not been revived.

The Queen, (speaking not of an imperial Queen, but of a Queen by marriage,) cannot be seised to an use. Though she be a body enabled to grant and purchase without the King; yet, in regard of the government and interest the King hath in her possession, she cannot be seised to an use.

A corporation cannot be seised to an use, because their capacity is to an use certain; again, because they cannot execute

1 Harl. MS. 829. f. 137. begins here and has the heading Lect. I. Mr. Spedding thinks the handwriting may well be that of a person who was also employed a good deal by Bacon when he was Attorney General.

Bro. feoffm. al use, pl. 40.

an estate without doing wrong to their corporation or founder; but chiefly because of the letter of this statute, which, in every clause when it speaketh of the feoffee, resteth only upon the word "person; "but when it speaketh of cestui que use, it addeth "person or body politic."

Notwithstanding 1, if a bishop bargain and sell lands whereof he is seised in the right of his see, this is good during his life: otherwise it is where a bishop in infeoffed to him and his successors, to the use of I. D. and his heirs: that is not good, no not for the bishop's life, but the use is merely void.

2

Contrary law of tenant in tail: for if I give land in tail by deed since the statute to A. to the use of B. and his heirs, B. hath a fee-simple, determinable upon the death of A. without issue. And like law, though more doubtful, before the statute: for the chief reason which bred the doubt before the statute was because tenant in tail could not execute an estate without wrong; but that, since the statute, is quite taken away, because the statute saveth no right of intail, as the statute of 1 R. III. did. And that reason likewise might have been answered before the statute, in regard of the common recovery.

A feme covert and an infant, though under years of discretion, may be seised to an use; for as well as land might descend now to them from a feoffee to use, so may they originally be infeoffed to an use. Yet if it be before the statute, and they had, upon a subpœna brought, executed their estate during the coverture or infancy, they might have defeated the same; but then they should have been seised again to the old use, and not to their own use: but since the statute no right is saved unto them.

If a feme covert or an infant be infeoffed to an use present since the statute, the infant or baron come too late to disagree or root up the feoffment; but if an infant be infeoffed to the use of himself and his heirs, and if I. D. pay such a sum of money, to the use of I. G. and his heirs, the infant may disagree, and overthrow the contingent use.

This word is added from Harl. MS. 829.

2 Mr. Rowe points out that this was the opinion of Manwood and others in two cases since the statute, 1 Dyer, 312 a, and 2 Leo. 16. but that in Lord Cromwell's case, 2 Rep. 78., as well as in Cooper v. Franklin, Cro. Jac. 401., usually cited, the law was settled the other way. Lord Cromwell's case was at this time under discussion, and Bacon argued it for the defendant: but I do not see that his client was obviously interested in the ruling of this point one way or the other.

Contrary law, if an infant be infeoffed to the use of himself for life, the remainder to the use of I. S. and his heirs: he may disagree to the feoffment as to his own estate, but not to divest the remainder, but it shall remain to the benefit of him in remainder.

And yet, if an attainted person be infeoffed to an use, the King's title, after office found, shall prevent the use, and relate above it but until office the cestui que use is seised of the land.

Like law of an alien: for if land be given to an alien to an use, the use is not void ab initio : yet neither alien nor attainted person can maintain an action to defend the land, which is one part of the confidence.

The King's villain if he be infeoffed to an use, the King's title shall relate above the use: otherwise in case of a common person.

But if the lord be infeoffed to the use of his villain, the use never riseth, but the lord is in by the common law and not by the statute, discharged of the use.

But if the husband be infeoffed to the use of his wife for years, if he die the wife shall have the term, and it shall not inure by way of discharge; although the husband may dispose of the wife's term.

So, if the lord of whom the land is held be infeoffed to the use of a person attainted, the lord shall not hold by way of discharge of the use, because of the King's title, annum, diem, et

vastum.

A person uncertain is not within the statute; nor any estate in nubibus or suspense executed. As, if I give land to I. S. the remainder to the right heirs of I. D. to the use of I. N. and his heirs, I. N. is not seised of the fee-simple but only of an estate pour vie of I. S. till I. D. be dead, and then in feesimple.

Like law if, before the statute, I give land to I. S. pour autre vie to an use, and I. S. dieth living cestui que vie, whereby the freehold is in suspense: the statute cometh, and no occupant entereth: the use is not executed out of the freehold in suspense.

For the occupant, the disseisor, the lord by escheat, the feoffee upon consideration not having notice, and all other persons which shall be seised to use not in regard of their persons but

What person may be a cestui que

21se.

of their title; I refer them to my division touching disturbance and interruption of uses.

use.

It followeth now to see what person may be a cestui que

The King may be cestui que use; but it behoveth both the declaration of the use and the conveyance itself to be matter of record, because the King's title is compounded of both. I say not appearing of record, but by conveyance of record. And therefore if I covenant with I. S. to levy a fine to him to the King's use, which I do accordingly, and this deed of covenant be not inrolled, and the deed also be found by office; the use vesteth not. E converso: If I covenant with I. S. to infeoff him to the King's use, and the deed be inrolled, and the feoffment also be found by office, the use vesteth not.' But if I levy a fine, or suffer a recovery to the King's use, and declare the use by deed of covenant inrolled; though the King be not party, yet it is good enough.

A corporation may take an use, and it is not material whether either the feoffment or the declaration be by deed; but I may infeoff I. S. to the use of a corporation and this use may be averred.

An use to a person uncertain is not void in the first limitation, but executeth not till the person be in esse; so that this is positive, that an use shall never be in abeyance, as a remainder may be, but ever in a person certain, upon the words of the statute," and the estate of the feoffees shall be in him or them which have the use." And the reason is, because no confidence can be reposed in a person unknown and uncertain.2

And therefore, if I make a feoffment to the use of I. S. for life, and then to the use of the right heirs of I. D., the remainder is not in abeyance, but the reversion is in the feoffor quousque. So that upon the matter all persons uncertain in use are like conditions or limitations precedent.3

Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D., this is not executed in abeyance, and therefore not void.

This word is supplied by Harl. MS. 829.

2 The reason seems irrelevant; but I have no hint for improving it. It seems rather to belong to the ante-penultimate paragraph of p. 437.

3 I am not sure that I understand these last two words; and the whole sentence is rather strange. All I suppose to be meant is that such uses come into esse by devesting a vested estate, as does a condition. Perhaps " or " should be read "on."

Like law, if I make a feoffment to the use of my wife that shall be, or to such persons as I shall nominate; though I limit no particular estate at all, yet the use is good, and shall in the interim return to the feoffor.

Contrary law, if I once limit the whole fee-simple of the use out of me, and part thereof to a person uncertain, it shall never return to the feoffor by way of fraction of the use; but look how it should have gone unto the feoffor if I begin with a contingent use, so it shall go to the next [in] remainder if I interlace a contingent use; both estates alike subject to the contingent use when it falleth.

As when I make a feoffment in fee to the use of my wife for life, the remainder to my first begotten son, (I having no son at that time,) the remainder to my brother and his heirs: if my wife die before I have any son, the use shall not be in me, but in my brother; and yet, if I marry again and have a son, it shall divest from my brother, and be in my son; which is the skipping they talk so much of.1

So if I limit an use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former. As, if I make a feoffment to the use of my wife that shall be and my first begotten son for their lives, and I marry, my wife taketh the whole use: and if I afterwards have a son, he taketh jointly with my wife.

But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses. As, if I infeoff A. to the use of B. for life, the remainder to C. for life, the remainder to the right heirs of B.; this is a good remainder executed.

So if I infeoff A. to the use of his right heirs, A. is in of the fee-simple, not by the statute but by the common law.

Now are we to examine a special point of disability of persons to take by the statute: and that upon the words of the statute, "where divers persons are seised to the use of other so that by the letter of the statute no use is conpersons; tained but where the feoffor is one, and cestui que use is another.

2

See observations on this passage in Note A. at the end.

2

Qu.: in.

Or perhaps the error is in the word "contained."