wicke held, in opposition to the claims of the heir, that the devise over should go to the stock of the Pyots who were nearest, and that the married sister should take equally with her brother and sisters, the change of name by marriage making no difference; and intimated his opinion, that a nearer relation taking the name of Pyot voluntarily, whether by mere assumption or by an act of parliament, would not have been entitled, "for that would be contrary to the intention of the testatrix."

The great case upon this subject, however, is Hawkins v. Lus12 Swanst. 375. combe1; there, estates were devised to trustees and their heirs upon trust, to permit M. and two other persons to reside in a specified mansion-house, and receive part of the rents, in recompense of the maintenance of L. M., (eldest son of M.), until he attained twenty-one or died, and subject thereto to the use of the trustees and their heirs, in trust for L. M., till he should attain twenty-one or die; and to the intent that the rents might be accumulated; and after he attained twenty-one, to the use of him and his assigns during his life, he taking the testator's name of L.; remainder to the use of trustees and their heirs during his life, in trust to support contingent remainders; remainder to the use of his first and other sons, taking the surname of L., in tail male; with like remainders to the second and other sons of M. in tail male, taking the name of L., with ulterior limitations of a like nature in favour of C., sister of M., and her sons, with a proviso, that the heirs male of the bodies of M. and C., claiming under the will, "not bearing the name of L.," should, on taking possession of the estates, assume the surname of L., and within three years procure their name to be altered by "act of parliament, or some other effectual way;" and in case they should not take his said surname, but neglect to obtain an act of parliament, or some other authority as effectual, for three years after being in possession, then the use and estate limited to the person so neglecting should cease and become void, and the estates should vest in the person next in remainder, as if the person so neglecting were dead without issue. L. M., before he came of age, or entered into possession of the devised estates, took upon himself, used, and bore the name of L., and no other. On attaining his age in 1794, he took possession of the estates, but neglected to obtain an act of parliament, or any other authority for the use of that name, and had a son born in 1806. M. having died without other sons, C.

Doe d. Luscombe v. Yates,

5 Barn. & Ald.

filed her bill, insisting that L. M. had forfeited the estates. But
Lord Eldon intimating his doubt whether any forfeiture had been
incurred, refused to interfere by appointing a receiver,—or, there
being infants, who are not bound by admissions, to direct a case.
The point does not appear to have been mentioned again in the
Court of Chancery; but an ejectment was afterwards brought upon
a case reserved for the court of King' Bench1, and the question was,
whether the directions of the testator, as to the surname of L.,
had, so far as respected the devisee, L. M., been complied with 544.
by him? And on his behalf it was insisted, first, that the proviso
only applied to a person who did not actually bear the surname of
L. at the time when the estate came to him; and as to this it was ar-
gued, that having taken upon himself and borne the name of L. long
before the estate vested in him, he had, in fact, acquired that name
at the time of the estate coming to him, and did not, therefore, fall
within the proviso; but, if he did, then, secondly, that the pro-
viso did not absolutely require that the name should be taken by
an act of parliament, but that it should be done by that means,
or some other authority as effectual for that purpose; and that the
assumption of the testator's surname was as effectual a mode of
acquiring that name, as an act of parliament. Abbott, C. J., after
observing that L. M. had substantially "complied with the de-
sign and intention of the testator, which was, that the person
who enjoyed his lands should bear his name;" and observing,
that the words "not bearing the surname of L.," occurred only
in the first part of the proviso, and not in the second, which con-
tained the devise over, says, "this, then, introduces the question,
what sense and meaning ought, in the legal construction of this
proviso, to be put upon the words 'not bearing the surname of
L.?' Whether a bearing of that name, de facto, be sufficient,
or whether it is requisite that it should be borne by authority
of an act of parliament, or other special authority? If the
testator had clearly intended the bearing of this name by virtue
of some special authority, it would have been very easy to have
expressed that intention. He might have said, 'not bearing the
name by virtue of an act of parliament, or some other authority
as effectual,' according to the expression used in another part of
this proviso, or, he might in some way have referred to that part
of the proviso, as by saying, 'not bearing the name as hereinafter
mentioned,' or something to that effect. Whereas nothing of this

5 Scott, 835.

kind occurs in this part of the will, but the words are general and simple, not bearing the name of L.;' so that if any qualification is to be introduced, it can only be done by the addition of some other words, and such addition must be made by implication or intendment. But we think we ought not to make this addition, for two reasons: first, because the effect of this clause, as before observed, is to defeat and divest an estate actually vested; and secondly, because such an implication or intendment is not necessary to effect the general object and intention of the testator; for a name assumed by the voluntary act of a young man at his outset into life, adopted by all who know him, and by which he is constantly called, becomes, for all purposes that occur to my mind, as much and effectually his name, as if he had obtained an act of parliament to confer it upon him. He would not be understood to say, that when a testator expressly requires a name to be taken by act of parliament, or other spécified mode, any mode falling short of the specified mode may be substituted for it; or to say, that, under this particular will, a voluntary assumption of the name after the party became possessed of the estate, would be sufficient."

L.

In the still more recent case of Davies v. Lowndes1, the same principles are recognised. There the testator devised to his right and lawful heir all his manors, lands, &c., in B., subject to the payment of his debts and legacies; "but if it should happen that no heir-at-law is found, then I do hereby constitute and appoint W. my lawful heir, on condition he changes his name to Selby." In a suit to establish the will, W. L. Selby (meaning the said W. L.) was declared to be entitled to the estates in question, in March, 1783. The testator died in 1772: from the year 1773 till the 14th November, 1781, W. L. held courts, as receiver under the order of the Court of Chancery in the name of W. L. In the next court, on the 12th November, 1783, he held it in the name of W. L. Selby; and in Easter Term, 1784, levied a fine of the premises in the name of W. Selby. The Court of Common Pleas held that the fine was properly levied in this name. "The exception that the fine was not levied in the true name of the conusor, appeared," says Mr. Baron Parke, in delivering the judgment of the court, "to us to be so framed as to raise a question of law only, namely, whether the fine was invalid because it was not levied in the true Christian and surname of the conusor, although it

was levied in the name he had then assumed and used, and by which he was known. In that point of view he thought the objection clearly invalid, for the fine may, without doubt, be levied, nay, will most properly be levied, in the name by which the conusor was known at the time, although no royal license or formal authority to change the name had been obtained."

SECT. 2.-OF ESTATES SUBJECT TO CONDITIONS, OR COVENANTS, AS TO THE MODE OF ENJOYMENT.

Within the last few years, the question has frequently arisen, whether, on a conveyance of lands in fee-simple, any restrictions can be imposed as to the mode of using these lands. I allude to a class of covenants by no means uncommon in the present day that is to say, covenants entered into by the owners of particular land with the owners of other neighbouring or adjoining land, that the former shall not be built upon or planted, or so as to impose other restrictions upon the mode of enjoyment of land in favour of persons taking no property in such land*. Such covenants are of frequent occurrence in cases where the areas of squares or public walks are to be preserved, or where an uninterrupted view of the sea or of open country is to be secured to the owners of adjoining houses. Doubts, nevertheless, appear to have been extensively entertained, both as to the efficacy of such covenants for the purposes they are intended to answer, and as to their validity. With respect to the former, the principal ground of doubt has been, whether they would run with the land, so as to bind all successive owners of it. Judged by the usual rule, (and supposing the rule to be applicable), perhaps this doubt may be thought to be unfounded; for they relate directly and immediately to the land. If such a covenant is not binding, at least in equity, on an assignee of the land, a title to property, the enjoyment of which materially depends upon it, must obviously be defective. What may be the effect of such covenants, whether they create at law any other than a personal obligation, does not appear to be a point which has yet

An instance of a covenant of this kind is mentioned by Hale in a note on F. N. B.: "A man covenants that neither he nor his heir shall erect any mill in such a place, and afterwards

he erects a mill, and an action of covenant is thereupon brought by the heir, and well;" fol. 145, citing the Year Book, 4 Hen. 3, 57, which is not in print.

'2 My. & Kee. 552.

called for decision. In a few cases, the subject has been brought before courts of equity by suit against an assignee of the land. In some of these cases the court has refused to interfere by way of injunction; but the validity of the covenant, or its binding the assignee, has never been negatived by any decision at law *.

In the Duke of Bedford v. the Trustees of the British Museum 1, by a settlement made in 1669 on the marriage of Lady Rachael Vaughan with the Hon. Wm. Russell, afterwards Lord Russell, a messuage called Southampton-house, with certain adjoining fields in Bloomsbury, was conveyed to trustees upon such trusts as she alone should in manner therein mentioned appoint. By an indenture of feoffment of the 19th June, 1675, parcel of these fields was conveyed to Ralph Montague, his heirs and assigns, subject to a rent of 51. a year to Lady R. Vaughan, her heirs and assigns.

* Practitioners have, in many cases, resorted to other expedients for attaining the same objects: such as vesting the land, or a long term of years in it, in trustees, upon trust to continue it in the state intended to be guaranteed; or the creation of a rent, with powers of distress and entry to arise on the taking place of any alteration in the circumstances of the land.

tion has ever been discussed in any court of law.

In the case cited by Hale, the covenant was held to be good; but this does not go far towards removing the doubt; for that case occurred at a period long before the law of perpetuity was introduced.

In cases where the property is of sufficient value to bear the expense, it has been usual to obtain private acts of parliament. It cannot be said, that the judges or the legislature, in suffer

And it has been doubted whether covenants of this description, (and, still more, trusts for the same purpose), are not open to the objection of creating such acts to be passed, have sancing a perpetuity. Those who consider that they are so, argue that the doctrine of perpetuity is not confined to a restriction on alienation, but that it applies to every provision or engagement, the effect of which may be to impede the free circulation of property in land and they contend, that, in order to secure that freedom of circulation, land ought not to be capable of being subjected to any burdens or interests which the owner of the fee cannot discharge it from within the period of perpetuity, except rents, rights of way, light, and water, and other easements now acknowledged by the law.

:

It does not appear that this ques

tioned the doubt alluded to, because there have been, in most such cases, other circumstances, such as the imposition of rates and making police regulations, which required the interference of parliament. But, such frequent resorts to the legislature, not to mention the heavy expense which they occasion, are objectionable, and certainly ought not to be encouraged, where individuals can make the engagements, which their mutual occasions may require, by means of common assurances. (Third Rep. of the Com. on the Law of Real Property, p. 53).