SECT. IV. Of limitations of uses which agree with the rules of the common law. Estates tail. (125.) ment be made to the use of B. and his heirs male lawfully engendered, as this limitation Would at common law have created an estate in fee-simple, so it will upon a conveyance to uses 5. (2.) It is a rule generally established, that the word heirs is necessary to create an estate tail upon a conveyance at common law1. It is the same with respect to a deed operating by way of use. Therefore, if a feoffment be made to the use of J. S. and the issue, or issue male, of his body, this limitation cannot raise an estate tail in J. S. In the case of Leigh Master of the Rolls did not advert to the omission in the power of the words, "for such estate or estates;" for it would be difficult to show, that the power without these words would authorize the appointment of the legal estate in feesimple to a child. If the estate had been settled by the deed itself "to the use "of the child or children "of B. P.," without adding words of limitation, the children would, beyond doubt (even in the case of a will, Foster v. Romney, 11 East, 594.), have taken life-estates only: and the power merely authorizing an appointment" to the " use of such child or chil"dren;" upon what ground can the limitation of the use by the exercise of the power be more extensive, than the same limitation would have been, if originally inserted in the deed itself? In a subsequent case of a will, where there is a greater latitude of construction, the Court of King's Bench considered the words, " in such man"ner and form," to be equivalent to the words, "for such estate or estates;" but declined to give any opinion upon the effect of a power, where there were no words of a similar import. See King v. Marquis of Stafford, 7 East, 521.526. Abraham v. Twig, Cro. Eliz. 478. note 2. Har. Co. Litt. 20. b. h Co. Litt. 20. a. 2 Inst. 334. Nevel v. Nevel, 1 Roll. Ab. 837. 1 Brownl. 152. Makepeace v. Fletcher, Com. Rep. 457. the It was ad v. Brace, a feoffment was made to A. and B., Carth. 343. 3 Salk. 337. 1 Ld. Raym. 101. Rep. Temp. Holt, 668. 5 Mod. 266. I See Perk. s. 171. 173. Year Book 19 Hen. 6. 74. per Vampage. Co. Litt. 21. SECT. IV. Of limitations of uses which agree with the rules of the common law. fication. (127.) (3.) Whether words regulating or modifying an estate created by a deed, operating by way of use, shall be construed in a different man ner, when applied to a common law conveyance, is a point not fully settled. Lord HardWords of modi- wicke, in a case where the question was, whether the words, equally to be divided, would create a tenancy in common, in a deed operating by way of use, observed, that though limitations in a deed to uses could have no greater latitude than in common law conveyances, yet as to words of mere regulation or modification of the estate, he saw no harm in giving them a reasonable construction to answer the intention; and he accordingly held, that those words created a tenancy in common": on the other hand, lord Thurlow, in a case nearly similar, expressed himself thus: "The question is, whether deeds to uses, in the "nature of wills, should be construed so 64 widely as wills have been? I should be sorry "to give into this; for I think no good has "been done by the wide construction of "wills." As to the cesser of the estate of tenant in tail (4.) It is a maxim of law, that a condition or limitation annexed to an estate ought to during his life.] destroy the whole of the estate, to which it is Rigden v. Vallier, 2 1 Wils. 341. and 2 Vent. 365. • Stratton v. Best, 2 Bro. Cha. Rep. 233. annexed, and not a part only of itp. This SECT. IV. of uses which agree with the common law. rules of the (128.) rule is applicable to limitations by way of of limitations use, which operate so as to defeat or avoid estates: therefore, if an estate be limited to the use of J. S. in tail, with a proviso, that if he do such an act, his estate shall cease during his life, this proviso is void. It was agreed, that lands should be limited to the use of H. C. and the heirs male of his body, with divers remainders over, and with this proviso, "That if the said H. C., or any of the heirs "males of his body, should attempt or make any feoffment, &c., that his estate should cease, as if he was dead, and that then the "said W. B. and the other feoffees, and their heirs, should stand seised to the use of such (6 person to whom it ought to descend or re"main by the said deed intended, as if he was "dead, with the remainders over as aforesaid." The proviso was considered repugnant and void. However, as a condition may be annexed to an estate tail to determine it wholly by the re-entry of the donor or his heirs, so a limitation by way of use may enure to defeat an estate tail, as if tenant in tail were dead, without heirs of his body. This doc P1 Co. 86. b. 4 Burr. 1941. Litt. s. 720, 721, 722, 723. q J Co. 86. b. Cholmley v. Humble, cited 1 Co. 86. a. See Cor-/ bet's case, ibid. 83. b. Mild may's case, 6 Co. 40. a. Vide Mary Portington's trine has given rise to the introduction of two species of provisoes in modern practice. The one is adopted in a settlement of estates, where it is intended, that the person in possession of them, under the settlement, should use the name, and bear the arms of the settlor; and in case of refusal or neglect, that the uses and estates thereby limited shall cease and determine, as if the person so refusing or neglecting, being tenant for life, were dead, or, being tenant in tail, were dead without issue, inheritable under the intail". The other proviso is used in settlements, for the purpose of defeating the estate of a tenant in tail, in case he shall become entitled to a certain other estate; and limiting or shifting the use upon that event, to another person, as if such tenant in tail were dead without issue". (5.) Another maxim is, that a man cannot make a fraction in an estate, in the case of a limitation by way of use, which cannot be done in a conveyance by livery in possession. Therefore, Walmesley, justice, said, “If a "man makes a feoffment in fee of land to the use of A. and his heirs every Monday, "and to the use of B. and his heirs every "See the form of such power, Butl. note, 2 Co. Litt. 327. a. and 2 Bridg. Con. 8. 10. 469. 575. and Appendix I. See Appendix II. 1 Bridg. Con.304. also Nicolls v. Sheffield, 2 Bro. Cha. Ca. 215. Doe v. Heneage, 4 Term Rep. 18. Stanley v. Stanley, 16 Ves. 491. 1 Co. 87. a. |