the ultimate limitation, whose validity was in question, depended, the point for decision was, the propriety of beginning the period of contingency on which the Executory devise was to take effect, with the life of a person in the womb. This case has been, since, generally deemed (q) an authority for the allowance of two periods of gestation to Executory devise, besides lives in being and twenty-one years: although attempts have been made (r) to show, that it was nothing more than a decision affirming the allowance of a legal time for the birth of one posthumous child; and that the judges did not contemplate the particular circumstance of the time of the birth of the posthumous child being taken at the commencement of the period of contingency; because, in the case under their consideration, it was of little moment, the allowance of another period of gestation not being required.

and Shifting

Uses.

Our attention has, thus far, been confined to decisions on Remoteness of Springing cases of Executory devise and bequest; but before proceeding further with the inquiry, it will be proper to take a short review of a few cases of limitations, by way of Springing and Shifting Use.

views of remoteness as

to limitations of Uses, equally

undefined with

those respect

ing Executory

devises.

As in the case of Executory devises, so here, we shall be Originally, able to discover no definite rule abided by, in the earlier decisions upon the subject. We meet with the same dread of "perpetuity:" but what constituted a perpetuity, and what, or, indeed, whether any, principle guided the consideration of the question, it is difficult to ascertain. Holt, C. J., laid it down, (s) that if one bargain and sell to the use of another, five years hence, this was a good Future or Springing Use. And it is also said, by the same authority, that a feoffment to the use of the right heirs of J. S., after the death of J. S., if he die without issue within twenty years, was a good commencement of a Future Use. Indeed,

seq.

(9) 6 Cru. Dig. 488.

(r) 2 Hargr. Jurid. Arg. 105, et

(s) In Davies v. Speed, 12 Mod. 39; 2 Salk. 675; Holt. 731.

Bostock's case.

Lord Chief Justice Hale had before (t) treated it as clear, that the limitation of a Use, after two years, or after the death of John at Stiles, to the use of J. N., was good. Lord Bacon, also, considered (u) a bargain and sale to J. S., to take effect after the bargainor's death, without issue, as a valid expectant Use; but, at the present day, such a limitation would clearly be bad, as tending to a perpetuity. So, again, it was said, (v) if a man covenant to stand seised to the use of his mother in fee, if he himself die without issue, the use should arise; for the contingency happens, if at all, upon the covenantor's death. In addition to these, there are many other dicta to be found in the earlier text-books, so vague and unsatisfactory, as to make it impossible to extract from them, any thing like a definite idea, as to whether any and what restriction was imposed on the creation of future Uses. Probably, however, it is not risking too much to say, that there appears to have been little doubt entertained, that the limitation of a Future Use to arise within the period of a life in being, was allowable.

The first authority deserving notice is Bostock's case, (w) which was as follows:-W. B., father of E. B., grandfather of R., being seised in fee of a messuage and mill, and other hereditaments in B., and M., and also of another messuage with a curtilage in B., levied a fine of the said hereditaments, as to the estate in B. and M., (except a close called G. C.,) to the use of W. B. for life, and, after his decease, to the use of E. B. and the heirs male of his body, on the body of M., his wife, together with other remainders-over in tail, with remainder to the right heirs of E.; and as to the other messuage and certain lands thereto belonging, and the said close called G. C., before excepted, to the use of E. B., for life, remainder to the use of the heirs male of the said E. B., on the body of the said M., together with other remainders in tail, remainder-over in fee to the right heirs of E. B.; and if the

said E. B. should fortune to die (living the said M.,) that then the said fine should be of the said last mentioned messuage and the lands thereunto belonging, and therewith occupied, and of the said close called G. C., to the use of the said M., for the term of her life, and after her decease, to the uses aforesaid. E. B. died, living M. and W. B. the grandfather; and it was resolved, that the estate M. was entitled to, was an estate for life in the last-mentioned messuage. This, we may observe, was a clear adjudication of the validity of a Shifting Use, to take effect within the compass of a life in being.

v. Tranmer.

The next case to be noticed, is that of Roe v. Tranmer, (x) Case of Roe where T. K., being seised in fee of the lands in question, executed indentures of lease and release of them to his brother. By the release, T. K., in consideration of natural love, and of 100%, granted, released, and confirmed to his brother, after the death of the said T. K., all that close, &c., to hold the same to his said brother, and the heirs of his body. It was admitted that the conveyance was void as a release, being a grant of a freehold to commence in futuro: but the Court held, that it should operate as a covenant to stand seised to uses; and that the estate should vest in the brother as a Springing Use. This decision may be regarded as establishing the validity of a Springing Use, limited to operate on the expiration of a life in being.

v. Carew

The next case bearing upon the question of the remote- Case of Lloyd ness of the contingency upon which a Springing or Shifting Use may be limited, is that of Lloyd v. Carew. (y) M. and P. T., being seised in fee as coheirs, in consideration of 40007. paid to M. by R. C., and of a marriage which soon afterwards took place, between P. and R. C., conveyed all their estates to trustees and their heirs, to the use of R. C. for life, remainder to P. for life, for her jointure, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of R. C. and P., in tail male, suc(x) 2 Wils. 75.

(y) Show. Parl. Ca. 137. Pre. Cha. 72.

Observations

upon the

nature and

effect of the

case.

cessively, remainder to the daughters in tail, with the ultimate remainder to the said R. C., and his heirs for ever; subject to a proviso, that if it should happen, that no issue of the said R. C. by the said P. should be living at the decease of the survivor of them, and the heirs of the said P. should within twelve months after the decease of the survivor of the said R. C. and P., dying without issue as aforesaid, pay to the heirs or assigns of the said R. C. 4000%, that then the remainder in fee-simple so limited to the said R. C. and his heirs should cease, and that then and from thenceforth, the premises should remain to the use of the right heirs of the said P. for ever. Here, it will be observed, the contingency extended to two lives in being, and one year beyond. A bill in Chancery was filed by the wife's coheirs, against the husband's heir, to have the benefit of the limitation, on payment of the 4000%. The Court, assisted by two judges, dismissed the bill; and, as it should. seem, because the contingency was too remote. (z) But the plaintiff appealed to Dom. Proc. Before that tribunal, the great point was, whether one year beyond lives in being, was not an excess of the time for an Executory devise of the fee, or for a contingent limitation or Springing Use of the same nature; it being contended for the respondent, that the lives of persons in esse constituted the ne plus ultra of Executory devise and Springing Use. The case ended in a reversal of the decree, and, consequently, became an authority for one year beyond lives in being, as not too remote a contingency on which to limit a Springing or Shifting Use.

It is difficult to say, upon what principle the excess of one year beyond lives in being was allowed in the last-mentioned decision in this case; or what further period of remoteness is to be considered as having been legalized by the allowance of an arbitrary term of one year, unconnected with the situation or circumstances of the party to whom the ulterior Shifting Use was limited. Certain it is, that there is no reason for the allowance of one year beyond lives in being, which is

(z) 2 Harg. Jurid. Arg. 36.

not equally applicable to any other arbitrary number of years, added to a life or lives; unless it be that of convenience. And it is to this latter only, that we must look for the meaning and extent of the decision in Lloyd v. Carew: for the judges, in the case of Cadell v. Palmer, hereafter cited, (a) although their opinions were in favor of a gross term of twenty-one years beyond lives in being, took especial care to remark, that although the case of Lloyd v. Carew established that the period of a life or lives in being was not the ultimatum of perpetuity, yet it does not authorize the inference, that a term of twenty-one years or other arbitrary term, for which no special or reasonable purpose is assigned, would also be allowed.

upon remote

ness of limitations by way of Use.

From the extreme paucity of cases in which the question Rarity of of remoteness, in reference to the creation of Springing and authorities Shifting Uses, has obtained any discussion, we shall find it impossible to take a progressive view of the doctrine of perpetuity, as exclusively applicable to limitations by way of Use, similar to what has been done on the subject of Executory devises. The writer has been unable to discover any decisions relating to Springing and Shifting Uses, corresponding to the before-mentioned cases of Taylor v. Biddal, Stephens v. Stephens, and Long v. Blackall, by which the law of perpetuity, as applicable to Executory devises, was so materially assisted. Nor does this hiatus in our historical deduction, occasion a deficiency of any great importance, except, perhaps, as regards the completeness of a continuous portance; chain of decisions, and progressive development of princi- Executory ples, gradually approximating to the rule and doctrine of devises being applicable to law ultimately established. For every practical purpose, future Uses. as has been before remarked, there is a reciprocal applicability of all rules laid down on questions of remoteness of contingency, between Springing and Shifting Uses and Executory devises; and whatever the state of the law on

(a) Vide infra, p. 159. And see of Pow. Dev., vol. 2, pp. 397, 398. remarks of Mr. Jarman, in his edition

This deficiency practical im

of little

rule as to