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English Legal History
4/24/2009
Outline
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EARLY MODERN PROPERTY AND EQUITY
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1.
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“And sometimes such uses be made that he
to whose use, etc., may declare his will thereon: and sometime for surity
of divers covenants in indentures of marriage and other bargains. And these
two last articles be the chief and principal cause why so much land is put
in use.” (Dr. & Student, Mats. p. 634).
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2.
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William Dunbar, c. 1500:
I that in heill wes and gladnes
Am trublit now with great seiknes
And feblit with infermitie:
Timor
mortis contubat me.
Our plesance heir is all vaneglory,
This fals warld is bot transitory,
The flesche is bruckle, the Fend is sle,
Timor
mortis contubat me.
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3.
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Achievement of flexibility in the 15th century
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a.
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Taltarum’s Case (1472) and the common recovery. No fee tail
need be maintained any longer than the present holder wants it to be
maintained.
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b.
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Feoffments to uses to the will of the feoffor.
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4.
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Lord Dacre’s Will (1535) (Mats., p. 700):
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a.
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The trustees were to raise marriage portions out of the land for
two of the lord’s kinswomen (not his daughters but other female kinswomen).
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b.
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They were to hold the chief manor for the lord’s heir, his grandson, his
eldest son having predeceased him, until he was of age and convey it to him
in fee tail male, with remainder in fee tail male to his second son, with
remainders over.
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c.
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They were to convey another manor to the younger son directly in fee
tail male, etc.
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d.
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All the rest of his lands they were to raise portions to pay his debts
and funeral expenses and to raise marriage portions for various other
kinswomen, and after this was done, they were to
make them over to the heir in tail male as above.
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5.
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Consequences of the statute of uses:
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a.
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The active trust—in equity.
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b.
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The charitable use—in equity.
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c.
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The Elizabethan rule against perpetuities: “[S]ome hold that the said
statute of Westminster the second was made of a singularity and presumption
of many that were at the said parliament for exalting and magnifying of
their own blood; and therefore they say that that statute, made by such a
presumption, bindeth not in conscience.” (Dr. & Student, Mats,
p. 710.)
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d.
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Two generation settlements with remainders. “To my eldest son for life
remainder to his eldest son in fee tail male.” Contingent vs. vested
remainders.
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e.
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Strict settlements: “To G for life, remainder to G’s wife for life,
remainder to trustees for 10 yrs to raise portions, remainder to S [G’s
eldest son] for life, remainder to trustees for the life of G and S to
preserve contingent remainders, remainder to S’s eldest son in fee tail when
he reaches the age of 21.”
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