against Lord Holt, that they took as tenants in common. "No person," says Lord Hardwicke, in Rigden v. Vallier 1, "has more 13 Atk. 734. reverence for the arguments of Lord C. J. Holt than I have; but, in Fisher v. Wigg, the arguments of the other two judges are more agreeable to the reason of the thing, and his is more subtle and finely spun. That was a question upon a copyhold estate, and there Mr. Justice Gould and Mr. Justice Turton held it ought for that reason to be construed favourably; and, contrary to the rules concerning conveyances at common law; and that they are to be considered as wills, because the surrender is oftentimes made by the surrenderor in extremis, when he is inops concilii; but Lord C. J. Holt was of opinion as to raising and passing estates, copyholds ought to be governed by the rules of the common law, and that a surrender to uses is only a direction, and the surrenderee is in by the grant of the lord, and was within the statute of uses; and therefore contended, the case was to be considered as a grant at common law." The In Rigden v. Vallier2, A., seised of a gavel-kind estate, by 3 Atk. 731. deed-poll, in consideration of natural love to his wife and children, did grant to his two daughters M. and H., the rents of his lands in L., equally to be divided betwixt them, paying 57. to the mother yearly during her life, and after her decease to his said two daughters, to hold to them and their heirs, equally to be divided betwixt them.” This deed could only have effect given to it as a covenant to stand seised, for there was no livery; and as a conveyance of a property to commence in futuro, it was void. words "equally to be divided" would, in a will*, clearly have made the daughters take as tenants in common; at common law they would have made the daughters take as joint-tenants, and the question was, whether this being a conveyance operating under the statute of uses, the strict construction applicable to conveyances at common law, or the liberal construction applicable to wills, should be resorted to. "It would," says Lord Hardwicke, "be very inconvenient to construe a covenant to stand seised, "Equally to be divided" is now established to be a tenancy in common in a will, or if it was equally only with out the subsequent words annexed to it, it would be so construed. But then it is insisted to be otherwise in the case of a deed, and though I do not find any 11 Wils. 341. 2 2 Bro. C. C. 233. different from conveyances at common law; but here there are words of regulation or modification; and I do not see any harm in giving them a reasonable construction to answer the intention. There are other reasons which weigh with me, and greatly strengthen my opinion. Here is a father making provision for all his children. Suppose one of them had died and left children; if a joint-tenancy, it must have gone from them, and survived to the other sons and daughters of the grantor, which could never have been his intention. This court has taken a latitude upon the foot of intention; if two persons advance money upon a messuage, though the conveyance be made to them jointly, it shall be a tenancy in common. In the case of advancing money jointly by two persons for a purchase, it has been said indeed the chance is included, and the interest shall survive; but then it must be understood where two persons purchasing advance in moieties, for if there is a disproportion in the sums it would be otherwise. The grantor seems to have put his own construction upon this deed, by disposing of his personal estate in the same words, and which is admitted to be a tenancy in common; and therefore it would be extraordinary to say he meant differently in the one from the other. This is as near a testamentary case as can be, and I do not see but it might have been proved as a will." It was held, accordingly, that the daughters took as tenants in common. Upon the authority of those two cases it was determined in Goodtitle v. Stokes1, on a conveyance to trustees to the use of the grantor and his wife for their joint lives, and the life of the survivor, remainder to the use of their children, as he should by deed or will appoint, and for default of such appointment "to the use of all and every of his children and their heirs, equally to be divided amongst them," that the children, there being no appointment, took as tenants in common. In Stratton v. Best 2, lands were conveyed to trustees for the benefit of the intended husband and wife for their lives, and after the death of the survivor among the children as the husband should by will or other deed or writing appoint; "and for want thereof, to permit and suffer all and every such child or children to receive and take the rents, issues, and profits of such premises to them and their heirs for ever." No appointment was made, and the question was, whether the children took as joint-tenants or tenants in common. At the hearing, Lord Thur low said, "the question is, whether deeds to uses in the nature of wills should be construed so 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;" and the case having stood over to a subsequent day, his Lordship then said, "that whether the settlement was to be considered as the conveyance of a legal estate, or a deed to uses, could make no difference; that the vesting at different times would not prevent its being joint tenancy: he therefore continued of his former opinion." The result of the whole seems to be, that, as there is no foundation in principle for the distinction taken by Lord Hardwicke, between words of limitation and words of modification, so neither is it supported by the greater weight of authority; and it may be concluded that in deeds operating by way of use the same words are necessary for modifying as well as limiting an estate, as are required for the like purpose at common law. But though the courts of common law were thus anxious to prevent the introduction of new forms of expression in the limitation and modification of estates, yet many of the modifications of property, which the chancellors had permitted in the declaration of uses, having been found to be extremely convenient, and having become almost necessary for carrying into effect the ordinary family arrangements of property, advantage was taken of the expression in the statute, that the estate of the feoffees to uses should be vested in the cestuis que use "after such quality, manner, form, and condition, as they had before, in or to the use, confidence, or trust that was in them," to retain many of these modifications. The result of this is seen in the modern doctrines concerning springing and shifting uses. 4. Springing and shifting uses.]-The Court of Chancery, while uses were under its jurisdiction, had permitted the limitation of a use for life or in tail to arise in futuro without any preceding estate to support it; and also allowed a use, though limited in fee, to change from one person to another by matter ex post facto. After some hesitation, the common-law courts admitted limitations of this kind in conveyances to uses, and determined that in such cases the statute transferred the possession to the cestui que use in the same quality, form, and condition as he had in the use. Uses which arise in futuro, without any preceding estate to support them, are usually called springing uses. The 'Mutton's Ca., Dy. 274 b. • Bro. Ab. Feoff. al. Use, pl. 30. first case in which a limitation of this kind was allowed was decided in the 10th year of Elizabeth. In that case, A., being seised of lands in fee, levied a fine of them, and by indenture declared the use of it to be to himself and such wife as he should afterwards marry, by whatever name she should be called, for their natural lives, and the life of the survivor, with remainders over: it was held, that the statute executed the use in the husband and wife according to the declaration1. When uses are limited so as to change by matter ex post facto, as if there be a feoffment in fee to A. and his heirs until B. pay him 407., and then to the use of B. and his heirs 2, such uses are called shifting or secondary uses, and were also established in analogy to what had been done by the Court of Chancery before the statute 2. I have already observed, that it was through the medium of estates created by way of springing or shifting use that questions concerning perpetuities have mostly arisen in modern times; and it has been intimated, that, under this head, some account would be given of the attempts made since their introduction to create perpetuities. Since the nature of springing and shifting uses is to defeat an absolute estate already vested, and raise up another, it is clear that if means could have been found for postponing indefinitely the contingency upon which the future use was to arise, a perpetuity would have been created, and that the more remote the period to which this event could be postponed, so much the nearer would have been the approach to a perpetuity; and that, until this contingency took place, the estate would be inalienable. Before proceeding to trace the history of the rule which has been finally established, it will be convenient to state that rule. The rule is, that "when an use is first limited in fee simple, a subsequent use limited upon it will be void unless the event on which it is to come into existence must necessarily happen within the compass of a life or lives in being, and'a further period of twenty-one years, if that term is to be taken as a term in gross, or of twenty-one years and a few months allowed for gestation, where that term is taken with reference to the infancy of the person in whom the use is finally to vest." The first step toward the establishment of the rule was this, that it was sufficient if the contingency, on which the future use was to arise, must necessarily happen within the period of a life in being at the time of the creation of the limitation. This was decided in the Duke of Norfolk's case1. The circumstances 13 Ca. Ch. 1. were these:-Henry, Earl of Arundel, had issue, Thomas his eldest son, who was non compos mentis, Henry, Charles, Edward, &c. By indenture, bearing date March 4, 1697, the baronies of G. and B. were conveyed to trustees to the use of himself for life; and after his decease to the use of trustees for 200 years; and after the expiration of that term to the use of Henry Howard his second son in tail male; remainder to Charles Howard and his other sons successively in tail male; remainder to his own right heirs. By another deed, the trusts of the term of 200 years were declared to be to attend the inheritance, the profits to be received by Henry the second son and the heirs male of his body; and in default of such issue, by such other persons as, according to the limitation of uses, would have been entitled to them in case no such term had been created, so long as Thomas (the eldest son), or any issue male of his body, should live. But in case Thomas should die without issue male living at his decease, or, by a subsequent failure of that issue male, the earldom of Arundel should descend on Henry, then Henry or his issue should have no farther benefit of the term of 200 years, but the benefit of it should accrue to Charles, and the heirs male of his body, with like limitations over to the rest in succession. Thomas, the eldest son, died without issue male, and the earldom of Arundel and Duchy of Norfolk descended upon Henry. Now, upon this state of facts, it is obvious that, subject to the trust to attend the inheritance, the whole beneficial interest in the term would have vested in Henry; and the great question in the cause was, whether, on the event of Thomas dying without issue male, it could shift over from Henry and enure for the benefit of Charles? or, in other words, whether the executory trust, to take effect on this event in favour of Charles, could be supported in equity? That executory trusts could take effect within a short period had already been established, and the question here was, whether it was void as being to take place upon too remote an event, and as tending to a perpetuity; and Lord Nottingham, contrary to the opinion of the Chief Justices Pemberton and North, and Chief Baron Montague, held, in a very remarkable argument, that it was not; and his decree was affirmed in the House of Lords. This reasoning extended by analogy to executory devises of legal estates, and to all shifting and springing uses, whether created by |