& 4 Will. 4, c. 74, the tenant in tail may, by *any species of deed duly enrolled, and otherwise made in conformity with [*335] the act, absolutely dispose of the estate of which he is seised in tail in the same manner as if he were absolutely seised thereof in fee.1

Having thus seen in what manner the restrictions, which were in accordance with the spirit of the feudal laws imposed upon the alienation of land by deed, have been gradually relaxed, we must further observe, that the power of disposing of land by will was quite as much opposed to the policy of those laws; and, consequently, although land in this country was devisable until the conquest, yet it shortly afterwards ceased to be so, and, in fact, remained inalienable by will until the stats. 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5; the latter of which statutes is explanatory of the former, and declares that every person (except as therein mentioned) having a sole estate or interest or being seized in fee-simple of and in any manors, lands, tenements, rents, or other hereditaments in possession, reversion, remainder, or of rents or services incident to any reversion or remainder, shall have full and free liberty, power, and authority, to give, dispose, will, or devise to any person or persons (except bodies politic and corporate) by his last will and testament in writing, all his said manors, lands, tenements, rents, and hereditaments, or any of them, at his own free will and pleasure. It is, indeed, true, that, by the above statutes, some restriction was imposed upon the right of alienating by will lands held by military tenure, yet since such tenures were, by the stat. 12 Car. 2, c. 24, converted into free and common socage tenures, we do, in fact, derive from the acts passed in the reign of Hen. 8 the important *right of disposing by will of all (except copyhold)3 lands and tenements: a privilege which has received some important [*336] extensions by the recent stat. 1 Vict. c. 26, and which now attaches to all real and personal estate to which an individual may be entitled, either at law or in equity, at the time of his death.1

It remains to consider how far the right of alienation exists at common law, when viewed without reference to the arbitrary restrictions which were imposed under the feudal system, and to show in what manner this right has been recognised and favoured by our

1 See 1 Cruise, Dig. 4th ed. 83.

2 A tenant in gavelkind, however, could devise by will prior to the Statute of Wills: Wright, Tenures, 207. 3 As to which now, see 1 Vict. c. 26, s. 3.

4 Section 3.

courts of law, and encouraged by the legislature. And, in the first place, we must observe, that the potestas alienandi, or right of alienation, is a right necessarily incident, in contemplation of law, to an estate in fee-simple; it is inseparably annexed to it, and cannot, in general, be indefinitely restrained by any proviso or condition whatsoever;1 for, although a "fee-simple" is explained by Littleton' as being hæreditas pura, yet it is not so described, because it imports an estate purely allodial (for we have already seen that such an estate did not, in fact, exist in this country), but because it implies a simple inheritance clear of any condition, limitation, or restriction to any particular heirs, and descendible to the heirs general, whether male or female, lineal or collateral. In illustration of the above incident of an estate in fee-simple, we find it laid down," that, "if a man makes a feoffment on condition that the feoffee shall not alien to any, the condition is void, because, where a man is enfeoffed of land or tenements, he has *power to alien them to [*337] any person by the law; for, if such condition should be good, then the condition would oust him of the whole power which the law gives him, which would be against reason; and, therefore, such condition is void." A testator devised land to A. B. and his heirs for ever; but, in case A. B. died without heirs, then to C. D. (who was a stranger in blood to A. B.) and his heirs; and, in case A. B. offered to mortgage or suffer a fine or recovery upon the whole or any part thereof, then to the said C. D. and his heirs. It was held, that A. B. took an estate in fee, with an executory devise over, to take effect upon the happening of conditions which were void in law, and that a purchaser in fee from A. B. would have a good title against all persons claiming under the said will. So, if a man, before the statute De Donis, had made a gift to one and the heirs of his body after issue born, he had, by the common law, potestatem alienandi; and, therefore, if the donor had in such a case added a condition, that, after issue, the donee should not alien, the condition would have been repugnant and void. And, by like reasoning, if, after the statute, a man had made a gift in tail, on condition that the tenant in tail should not suffer a common recovery, such condition would have been void; for, by the gift in tail, the tenant has an absolute power given to suffer a recovery, and so to bar the en

tail. And here we may conveniently remark, that the distinction. which exists between real and personal property is further illustrative of the present subject; for, with respect to the latter, it is laid down, that, where an estate tail in things personal is given to the first or any subsequent possessor, it vests in *him the total property, and no remainder over shall be permitted on such [*338] a limitation; for this, if allowed, would tend to a perpetuity, as the devisee or grantee in tail of a chattel has no method of barring the entail, and, therefore, the law vests in him at once the entire dominion of goods, being analogous to the fee-simple, which a tenant in tail may acquire in real estate.2 A. B.,3 wishing to devise his estates to each son and his issue successively in remainder, and to prevent the possibility of alienation, so as to defeat the remainder over, caused an indenture to be made to this purport: "that the lands and tenements were given to his eldest son upon such condition; that, if the eldest son alien in fee or in fee tail, &c., or if any of his sons alien, &c., that then their estate should cease and be void, and that the same lands and tenements immediately should remain to the second son, and to the heirs of his body begotten, et sic ultra, the remainder to his other sons;" and livery of seisin was made accordingly. "But," observes Littleton, "it seemeth by reason, that all such remainders in the form aforesaid are void and of no value." And if, in the case put, the eldest son had aliened in fee, the estates would thereupon have vested in the alienee, and the parties in remainder would have been barred; that is to say, the condition which the testator attempted to annex to the estate would have been inoperative.

We may, in connexion with this subject, likewise refer to Sir W. Blackstone's celebrated judgment in Perrin v. Blake," where a distinction is drawn between those rules of law which are to be consi

dered as the fundamental rules *of the property of this king-[*339] dom, and which cannot be exceeded or transgressed by any intention of a testator, however clearly or manifestly expressed, and those rules of a more arbitrary, technical, and artificial kind, which the intention of a testator may control. Amongst rules appertaining to the first of these two classes, Sir W. Blackstone mentioned

16 Rep. 41; argument, Taylor v. Horde, 1 Burr. 84; Corbet's case, 1 Rep. 83; Portington's case, 10 Rep. 35. 2 2 Bla. Com. 398.

3 Litt. s. 720; Co. Litt. 379, b. (1). 4 Litt. s. 721.

5 Hargrave's Tracts, fol. 500.

these-first, that every tenant in fee-simple or fee-tail shall have the power of alienating his estates by the several modes adapted to their respective interests; and, secondly, that no disposition shall be allowed, which, in its consequence, tends to perpetuity. Mr. Butler, moreover, remarks, with reference to the case from Littleton above cited, that it "is one of the many attempts which have been made at different times to prevent the exercise of that right of alienation which is inseparable from the estate of a tenant in tail."

2

Not only will our Courts oppose the creation of a perpetuity by deed, but they will likewise frustrate the attempt to create it by will, and, therefore, "upon the introduction of executory devises, and the indulgence thereby allowed to testators, care was taken that the property which was the subject of them should not be tied up beyond a reasonable time, and that too great a restraint upon alienation should not be permitted.3 The rule is accordingly well established, that, although an estate may be rendered inalienable during the existence. of a life or of any number of lives in being, and twenty-one years after, or, possibly, even for nine months beyond the twenty-one years, in case the person ultimately entitled to the estate should be an infant *in ventre sa mère, at the time of its accruing to

[*340] him, yet that all attempts to postpone the enjoyment of the

fee for a longer period are void."

With respect to trusts for accumulation, we may observe, that these are now regulated by stat. 39 & 40 Geo. 3, c. 98,6 an act which was passed in consequence of the will of the late Mr. Thellusson, and subsequently to the decision establishing the validity of that will in the well-known case of Thellusson v. Woodford." The abovementioned statute enacts, that no person shall thenceforth, by any

Mr. Butler's note, Co. Litt. 376, b. (1).

2 Co. Litt. 381, a. note.

3 Judgment, Cadell v. Palmer, 10 Bing. 140; E. C. L. R. 25. See Ware v. Cann, 10 B. & C. 433, supra; E. C. L. R. 21.

4 In an executory devise, the period of gestation may be reckoned both at the beginning and the end of the twenty-one years: thus, if land is devised with remainder over in case A.'s son die under the age of twenty-one, and A. dies leaving a son in ventre sa mere, then if the son marries in his 21st year, and dies leaving his widow enciente, the estate vests, nevertheless, in the infant inventre sa mere, and does not go over. See per Lord Eldon, C., Thellusson v. Woodford, 11 Ves. jun. 149; 1 Jarm., Wills. 223.

5 Cadell v.

Palmer, 10 Bing. 140; E. C. L. R. 25. See Lord Dungannon v. Smith, 12 Cl. & Fin. 546; Spencer v. Duke of Marlborough, 3 Bro. P. C. 232.

6 As to this statute, see 1 Jarm., Wills, c. 9, s. 3.

7 4 Ves. jun. 227; S. C., 11 Id. 112, in which case Mr. Hargrave's argument respecting perpetuities is well worthy of perusal.

deed, surrender, will, codicil, or otherwise, settle or dispose of any real or personal property, so that the rents or produce thereof shall be wholly or partially accumulated for any longer term than the life of the grantor or settlor, or the term of twenty-one years from the death of the grantor, settlor, or testator, or during the minority or respective minorities of any person or persons who shall be living, or in ventre sa mère, at the time of the death of such grantor or testator, or during the minority or respective minorities only of any person or persons who, under the uses or trusts of the deed, surrender, will, or other assurance, directing *such accumulations, would, for the time being, if of full age, be entitled to the rents or annual produce so directed to be accumulated.

[*341]

It will be evident, from the preceding remarks, and cases already cited, that the rule against perpetuities is observed both by courts of law and of equity. In consequence, however, of the peculiar jurisdiction which courts of equity exercise, for the protection of the interests of married women, the right of alienation has, in one case, with a view to their benefit, been restricted, and that restriction thus imposed may, in fact, be considered as an exception to the operation of the maxim in favour of alienation, which we have been considering. It is now fully established, that where property is conveyed to the separate use of a married woman in fee, with a clause in restraint of anticipation, such clause is valid; for equity, having in this instance created a particular kind of estate, will reserve to itself the power of modifying that estate in such manner as the Court may think fit, and will so regulate its enjoyment as to effect the purpose for which the estate was originally created. The law upon this subject may be considered to have been finally settled by the decision in Tullet v. Armstrong, where Lord Cottenham, C., after an elaborate review of the cases and authorities, held that a gift to the sole and separate use of a woman, whether married or unmarried, with a clause against anticipation, was good against an after-acquired husband; and this decision has been in subsequent cases fully recognised and adopted.*

3

The reason of the rule thus established is fully stated by *his lordship, in a subsequent case, in these words:-"When [*342]

1 See, also, per Wilmot, C. J., Bridgeman v. Green, Wilmot, Opin. 61.

2 See per Lord Lyndhurst, C., Baggett v. Meux, 15 L. J., Chanc. 262; S. C., 1

Phill. 627.

34 My. & Cr. 377.

4

Baggett v. Meux, supra.