Rents to be paid at the end of three months from a given event. or when demanded, during the continuance of this demise, to the said A. B., his heirs, executors, administrators, or assigns, one full eighth part of the moiety of the coals to be landed on the said premises, the whole into eight equal parts to be divided, free worked, dug up, wrought, or landed, or in lieu thereof one full eighth part of all the monies which shall be received by sale of the same coals, the whole into eight equal parts to be divided, at the choice and election of the said A. B., his heirs, executors, administrators, and assigns. XIII. Yielding and paying &c. by quarterly payments, to be made at the end of every three calendar months, to be computed from the day of the decease of the said A. B., and by even and equal portions, clear &c.; the first quarterly payment thereof to become due and be made at the end of the first three months next after the death of the said A. B., provided the said C. B. shall be then living, and in the event of the death of the said C. B. after the death of the said A. B., and between or in the interval of any three calendar months to be computed as aforesaid, such part of the said annuity or yearly sum of £, as shall be in proportion to the time or number of days which, exclusive of the day of the death of the said C. B., shall have elapsed prior to his decease, and after the completion of such three calendar months, if any, next and immediately preceding that event, or, as the case shall require, after the death of the said A. B., to be paid to the executors, administrators, or assigns of the said C. B., within ten days after the death of the said A. B. 141 TITLE VI. OF USES. ment and release are to the same I. AND it is hereby agreed and declared, between and by the Declaration parties to these presents, that the direction, limitation, and where appointappointment, grant, release, and confirmation hereinbefore contained, and hereby respectively made as aforesaid, shall operate and enure To such uses &c. uses. where there are II. And it is hereby agreed and declared, by and between Declaration the said parties to these presents, as far as they respectively several releases are interested, that the release firstly hereinbefore contained, to the same uses. and all other assurances as aforesaid, and also the release or other assurance lastly hereinbefore contained, shall respectively be and enure, And that all and singular the manors &c. mentioned and comprised in the several schedules to these presents, or in the body of these presents, and hereby respectively released or otherwise assured, or intended so to be, shall remain, continue, and be To the uses, upon the trusts, and for the ends, intents, and purposes, and under and subject to the powers, provisoes, declarations, and agreements hereinafter limited, expressed, and declared of and concerning the same; that is to say &c. III. As to, for, or concerning one undivided moiety or equal half part of the said hereditaments, To the use of the said A. B., his heirs and assigns, for ever; And as to, for, or concerning the other undivided moiety or equal half part of the said hereditaments, To such uses &c. (a). (a) When both take the fee as tenants in common, without a power of appointment, say,— "unto and to the use of the said A. B. and C. D., their heirs and assigns respectively, as tenants in common, and not as joint tenants." Another form. To such uses as appoint, and in default of appointment, to him in fee. IV. As to and concerning such and so many of the said shares, parts, and proportions hereby released, or intended so to be, as are equal to one undivided moiety or half part of and in the entirety of the said messuages &c., (being the moiety or half part conveyed and assured to the said A. B., his heirs and assigns, as aforesaid), To the use &c.; And as to and concerning such and so many of the said shares, parts, and proportions hereby released, or intended so to be, of and in the said messuages &c., as shall remain after setting apart the said moiety or half part of the entirety, to answer and be subject to the uses hereinbefore declared thereof, To the use &c. V. To such uses, upon such trusts, and to and for such purchaser shall intents and purposes, and with, under, and subject to such powers, provisoes, agreements, and declarations, as the said A. B. shall, by any deed or deeds, instrument or instruments in writing, with or without power of revocation, to be by him sealed and delivered in the presence of, and to be attested by two or more credible witnesses, from time to time direct, limit, or appoint, and for default of and until such direction, limitation, or appointment, and so far as every or any such direction, limitation, or appointment shall not extend, To the use of the said A. B. and his assigns, during his life, without impeachment of waste; and after the determination of that estate, by forfeiture or otherwise, in his lifetime, To the use of the said C. D. and his heirs, during the life of the said A. B., In trust for him the said A. B. and his assigns, during his life, [and to prevent any wife of the said A. B. from becoming entitled to dower out of or in the said premises, or any part thereof]; and after the decease of the said A. B., To the use of the heirs and assigns of the said A. B. for ever (a). (a) It will be observed, that, in the above Form, there are four limitations, each of which deserves attention: 1. By means of the power of appointment, which is in fact a use executory, the purchaser is enabled, without the concurrence of the trustee, to convey, in effect, the fee; or, in other words, to limit the use; which limitation operates under the seisin, not of the appointor, but of the VI. To the use of such person or persons, for sucn estate Another form. or estates, interest or interests, (whether by way of annuity, rent-charge, or otherwise) (a), in such parts, shares, and The conse grantee in the conveyance which conferred the power. Sometimes a power of disposing by will is given; but this is both useless and objectionable; useless, because what can be done through the medium of such a power can be equally effected under the seisin in fee and objectionable, because it may occasion a question, particularly when there is a devise to trustees, with a declaration of uses, whether the will operates as an appointment of the use, or as a devise of the land; and thus make it doubtful in whom the legal estate is vested. Butler's Fearne, p. 347, note. 2. By limiting the use to the purchaser for life, he acquires a present legal right to the possession and to the rents, &c. 3. The intervening estate of freehold given to the trustee for the life of the purchaser has the effect of keeping the purchaser's estate for life distinct from the inheritance; and thus, under the old law, prevents the attachment of any title of dower. With reference to the dower of any woman married on or before the 1st of January, 1834, this is still an important limitation. Vide stat. 3 & 4 Will. 4, c. 106, s. 14, printed at length in Vol. I. book i. Appendix, p. 265. 4. By the ultimate limitation the legal fee is vested in the purchaser; so that if he die without having made any appointment, the inheritance will vest either in his devisees or heirs, accordingly as he dies testate or intestate, unaffected by any title of dower, and without any estate in the trustee, whose interest determines with the life of the purchaser. With regard to the ultimate limitation, Mr. Butler observes, that, as a life estate is first limited to the purchaser, it seems more accurate to limit the fee to his heirs and assigns, and not to the party himself, his heirs and assigns. This, however, is a mere verbal criticism, as both limitations have exactly the same legal effect. Butler's Fearne, p. 347, note. (a) It has been doubted whether a rent-charge, or the like, out of an estate, could at law be limited under a general power to appoint "estates Another form. (Short). proportions, and upon such trusts, and charged and chargeable in such manner, and either absolutely or conditionally, and subject to such powers of revocation and of new appointment, and other powers, provisoes, conditions, declarations, and agreements, as the said A. B., by any deed or deeds, to be sealed and delivered by him in the presence of one or more credible witness or witnesses, and attested by the same witness or witnesses, shall from time to time direct, limit, or appoint; and in default of such direction, limitation, or appointment, and in the meantime, and from time to time, until the same shall take effect, and from time to time, subject to such uses, estates, trusts, charges, and interests, as shall have been directed, limited, or appointed by the said A. B., To the use of the said A. B. and his assigns, for and during the term of his natural life; and from and after the determination of that estate by any means, To the use of the said C. D. and his heirs, during the natural life of the said A. B., Upon trust for and for the sole benefit of the said A. B. and his assigns, [and to the intent that the present or any future wife of the said A. B. may not be entitled to dower]; and from and after the determination of that estate, To the use of the said A. B., his heirs and assigns, for ever. VII. To such uses as the said A. B. shall from time to time appoint, by any deed or deeds; and in default of such appointment from time to time, and subject thereto, To the use of the said A. B., during his life; and after the determination of that estate, then To the use of the said C. D. and his heirs, during the life of the said A. B., In trust for and interests" only. See Browne v. Taylor, Cro. Car. 38; sed vide Earl of Bath's case, 3 Ch. Ca. 55. Accordingly, the power is often made expressly to embrace that object. "There is, however," says Sir E. Sugden, "no magic in words. Estate or estates mean quantity of interest, and a rent-charge is clearly a portion of the entire interest in the land. Such a determination, therefore, would be authorized, as well by the spirit, as the words of the power. In Browne v. Taylor the words were strongly in favour of the power to limit a rent, and Croke, Justice, was of that opinion. It seems clear that, in a similar case, the courts would at this day decide that a legal rent might be limited under the power." Sugd. Pow. i. 514. |