1 1 Kee. 648.

is not easy to discover on what grounds his Lordship could have found any occasion of regret at the making of this application, because if the doctrine laid down in Massey v. Parker be sound, then the annuitant was clearly entitled to have the rents secured for his benefit; but, admitting that this doctrine is doubtful, the plaintiff was even then entitled to have them secured, to abide the determination of the doubt. It is satisfactory to know, that the question is fairly raised in this case, and must be solemnly determined when it comes to a hearing, and most probably, if not then, will be finally settled in some subsequent stage of this cause.

From the language of Lord Langdale, whenever this question has come before him, it would appear that his opinion leans in the same direction as that of the Vice-Chancellor. His repugnance to the doctrine may be inferred, not only from the language in the case last stated, but also from his anxiety to get rid of it by distinctions of the most refined and delicate texture. Thus, in Johnson v. Johnson1, a legacy was given to the executors, upon trusts to accumulate, until A., a female infant, should attain the age of twenty-one years, and then to pay the same, with the accumulations, to her, "for her own sole and separate use and benefit, absolutely." At the death of the testatrix the legatee was an infant, and she married before attaining her age; and the question was, whether, under these circumstances, the trust for her separate use had become inoperative? It was insisted, that the case fell within the principle laid down in Massey v. Parker; but Lord Langdale, at the hearing, intimated a different opinion, and thought "that the point involved in that principle did not arise in this case, because the legatee married at a time when she had not the power of alienation, and, consequently, did not transfer the property by the act of the marriage;" and, in giving judgment on a subsequent day, still adhering to that opinion, thus distinguished the two cases:

"The opinion of the Lord Chancellor in Massey v. Parker seems to have been founded upon this-that the right and interest of the woman to whose separate use the property was assumed to be given, were absolute before the marriage; that the trustees holding the property absolutely for her, she might take it for herself, or give it to any one; and there was no reason, therefore, why she might not, by the act of marriage, give it to her husband. In

EQUITABLE ESTATES.

the present case no one of these circumstances occurs. The right and interest of the woman were not absolute before marriage; the trustees did not hold the legacy absolutely for her, and she could not take the legacy for herself, or give it to any one. She could not, from her infancy, assign or dispose of her contingent interest; and when the legacy became vested and payable, that is, when she attained the age of twenty-one, and first acquired the right of disposing of the property, she was a married woman, in whose favour, according to all the authorities, a trust for separate use will be valid. I could not decide against the validity of this trust, in the events which have happened, without over-ruling the case of Simson v. Jones1, which was decided by Sir John 12 Russ. & Leach, upon much consideration. I consider, that when the My. 365. legatee attained her majority, she acquired an absolute interest in the legacy to her separate use, and that she is entitled, therefore, to have the fund transferred to her accordingly."

It may be remarked, that this judgment, is open to the objections which have been made to the Vice-Chancellor's judg ment in Davies v. Thornycroft, so far as it relies upon Simson v. Jones. No one in that case questioned the effect of the common clause in conferring separate estate, whether the woman were, or were not, married at the time of the vesting of the interest. The attention of the profession had scarcely been called to the question. Then, as to the other point-the incapacity of an infant to alien her property. The distinction taken on this ground between the case under consideration and Massey v. Parker is very slender. An infant female, entitled to personal property, cannot alien it by deed, but she can by marriage. If she marry, having made no previous stipulation, the husband acquires her personal property by the rights of marriage; if this be not her intention, it is competent for her to call upon him to join in a settlement, previous to marriage; and for this purpose it does not seem to be very material, whether her interest be vested or contingent. If she abstain from doing so, the inference appears to be as strong in this case as in that of Massey v. Parker, that she intends to give the property to him. Then again, upon what principle or authority can it be said, that a clause to the separate use of a woman will take effect, although sole, if she be under age, but not if she have attained twenty-one.

I shall not further follow up the subject, than to observe, that the foundation of the doctrine upon the effect of the clause against anticipation, as laid down by Lord Thurlow in Miss Watson's case, rests upon, what appears to be, a fallacy. A trust for the separate use of a married woman, said his Lordship, being a creature of equity, equity may mould and modify it as it pleases, to suit its purposes. Now, the answer to this is, that a trust for the separate use of a married woman is no more a creature of equity than every other trust is; and it would be difficult to discover any sound principle upon which a court of equity could exercise its jurisdiction to divest this trust of the natural incidents of property, which would not be equally applicable to any other species of trust.

From this survey of the authorities we may conclude; first, that the restraint upon anticipation becomes inoperative if the woman be single at the time of the gift taking effect, or being then married, upon her afterwards becoming discovert:-upon this point, the authorities are uniform; there has been no discrepancy of opinion; none at least deserving of the slightest consideration. And secondly, if reason and principle are of any avail, it would seem, the trust for separate use also becomes inoperative on the same contingencies. This point will probably be set at rest, by the decision in Tullett v. Armstrong. Notwithstanding all that has been written and said against Massey v. Parker, and the obvious reluctance of the Master of the Rolls and the Vice Chancellor to follow it, there is little question, that the determination, when made, will be the result of a conference between the three equity judges, and will be in conformity with the declared opinion of the Lord Chancellor.

The manner in which this subject has been argued by text writers has seemed to participate rather of the acrimony incident to mere personal contention, than of the composure and impartiality which might be expected in the discussion of a mere abstract question. If it should be found, that, consistently with a just interpretation of the law and a proper application of its principles, trusts cannot be constructed, or not, at all events, without much verbose and cumbrous machinery, for the due protection of these interests, the proper remedy will be found, not in the judicial violation of settled principles of law, but in the remedial interposition of the legislature.

CHAPTER V.

OF THE EXISTING TENURES.

SECT. 1.-OF SOCAGE TENURES.

SECT. 2.-OF COPYHOLD TENURE.

SECT. 3.-OF CUSTOMARY COPYHOLDS.

THE great bulk of landed property is either of freehold, or customary tenure*. The former is either freehold at common law, that is to say, technically, land held in free and common socage, or freehold subject to the customs of borough-english, gavelkind, or ancient demesne. The latter is either common, or privileged, copyhold.

SECT. 1.-OF SOCAGE TENURES.

Free and common socage, 149.-Borough-english, 150.- Gavelkind, ib.-Ancient Demesne, 151.

Free and common socage.]—Free and common socage is the most extensive species of existing tenure, and has all the ad

• Besides these, the only existing tenures are, 1st, Frankalmoigne, and by divine service; and, 2nd, Grand serjeanty.

FRANKALMOIGNE is the tenure by which lands are usually held by the church, and is expressly excepted in the 12 Car. 2, c. 24, s. 7. The only services ever rendered were prayers, for neglect of which a remedy was given by complaint to the ordinary or visitor. Since the Reformation, the tenure is merely nominal, ecclesiastical property being held by corporations, and passing to successive incumbents, as if it were allodial. Tenure, by divine service, differs from frankal

moigne only in this—that the divine services to be rendered are certain, and the lord is entitled to the remedy

of distress.

GRAND SERJEANTY was a variety of military tenure, having all the incidents of that tenure, and being only distinguished from common tenancy in chivalry by the honorary nature of the services, which were to be performed by the tenant in person to the king, and many of these at the king's coronation. These services were reserved by the 12 Car. 2, c. 24, s. 7, which converted the tenure substantially into free and common socage.

vantages of allodial ownership, the dominium utile, vested in the tenant, comprises the sole and undivided interest in the soil. Escheat is the only material incident of this tenure beneficial to the lord, and while there is an heir or devisee he cannot interfere. The tenant in fee simple in common socage can, of his own authority, create any estates or interests not incompatible with the rules of law. In his lifetime he can alien his estate entirely, or pass it by devise after his death to whomsoever he may choose. The alienee or devisee takes entirely from him, and the title is complete without the concurrence or privity of the lord.

Of socage tenure, subject to the custom of borough-english.]— The custom of borough-english prevails in several cities, ancient boroughs, and districts, in various parts of the kingdom. The land is held in socage; but, according to the custom, it descends to the youngest son, to the exclusion of all the other children of the person dying seised. This rule, in some places, is confined to children; in others, it extends to brothers and other collaterals. In some places the alienation of land, held under this tenure, is governed by local customs. The custom of borough-english, as to descent, also regulates the descent of copyholds in various manors.

Of socage tenure, subject to the custom of gavelkind.]— The custom of gavelkind prevails over almost the whole county of Kent, and over copyhold land in various parts of the kingdom. The principal peculiarities of land held subject to the custom of gavelkind, are:-1. That the land descends to all males in equal degree, in equal shares, with right of representation to the issue of any of them dying before the ancestor; 2. That the husband is tenant by curtesy of his deceased wife's lands, whether there were issue born alive, or not; 3. That the widow is dowable of one half, instead of a third; 4. That an infant may alien by feoffment after the age of fifteen; 5. That, upon a conviction of felony, there is no escheat by reason of corruption of blood, and hence the Kentish maxim-"the father to the bough, the son to the plough;" 6. That the land was devisable at common law; 7. That the lord had a peculiar writ called a writ of cessavit, upon the tenant withholding his due rents or services; 8. That there was a peculiar mode of trial upon a writ of right, supposed to be more valuable than the common wager of battle. The two last of these privileges have long been merely nominal, and it has been very justly observed,