dans le testament d'une personne qui a des enfans, sont de nul effêt, et ne doivent être considérées dans cette coutume, parce qu'encore que le fidéicommis n'y soit pas nommement interdit, il est néanmoins suffisamment exclu, en ce qu'elle prohibe les dispositions par testament en général, dont la substitution testamentaire fait partie." (a) he It is, however, admitted, that it is in respect of that part only of his property which must devolve on his heir that a substitution is inadmissible, but that part which may dispose of to a distant relation or stranger, he may make the subject of substitution. The 53rd article of le reglement de 1666 expresses, that "le donateur peut aussi, entre vifs et par testament, ordonner que les choses par lui données passeront après la mort du donataire à celui ou ceux qu'il aura nommez par la donation ou testament." (b) Basnage, in his commentary on article 422, says, "bien que les substitutions d'héritier soient inconnues en Normandie, il est permis néanmoins de substituer en matière de donations testamentaires ou entre vifs; et chacun a la liberté d'apporter telles conditions qu'il lui plaît aux choses dont la coutume lui accorde la disposition, pourvu qu'elles ne soient point contre les bonnes mœurs, comme il demeura pour constant en la cause plaidée en la chambre de l'édit, le 11 Mars, 1648." (c) The same author also observes, on article 431, 66 par la jurisprudence des arrêts, celui qui donne ce que la coutume lui permet de donner, peut valablement apposer prohibition d'aliéner." (d) VIII. The modifications of real property under the civil (a) Ricard, des Substit. part 1, n. 159. Arrêt du Parl. de Paris, July 6, 1647. Arrêt, 4 and 6 June, 1710, Parl. de Rouen. Merlin, tit. Substit. Fidei-Com. sec. 1, § 9. (b) Art. 55. (c) Merlin, tit. Substit. Fidei-Com. sec. 1, § 9 (d) Ib. law and the law of Holland are retained in the colonies of British Guiana, the Cape of Good Hope, and Ceylon, and those which existed under the law of Spain are retained in Trinidad. (a) IX. In Gibraltar, Newfoundland, and the settlements of Sierra Leone, Swan River, Van Diemen's Land, and Australia, the law of England affords the rules and principles by which estates or interests in real property are decided. (b) X. In the Isle of Man there are no records of the manner in which lands descended and were alienated until the act of Tynwald, passed by James, Earl of Derby, his council, deemsters, and keys, in the year 1645. It had previously been declared by an ordinance of Ferdinando, Earl of Derby, made in 1593, "that if any person were entered tenant to an estate upon the court rolls for the space of twenty-one years, and no bill exhibited or claim made, the possession of the grantee should be a good bar against the grantor and his issue." This statute was confirmed by an act of Tynwald, passed in 1647. It was considered by the deemsters and keys in 1745, that the twenty-one years were to be computed from the time of the dispossession of the grantor, and not from his decease. It has been said that, some time previous to the passing of the act of 1645, many proprietors of land had been prevailed on by the lord's officers to surrender to the lord their customary estates, which by ancient custom had descended to the eldest son, and if there was no son, to the eldest daughter, and to accept in lieu (a) Ante, sec. 1, p. 89, sec. 3, p. 217. Freeman v. Fairlie in Chancery, per thereof leases for life. It was insisted by the lords' council that the proprietors had no fixed property in their estates by any positive law, but that they held of the lord merely as tenants at will. Upon this occasion the twenty-four keys interposed, and by their remonstrance prevailed on the Earl of Derby to consent to this act. At a subsequent period they succeeded in obtaining the celebrated act of settlement, or, as it is emphatically called, the Manks Magna Carta, passed in the year 1704, (a) confirmed by an act of Tynwald, 1777. By the statute law, (b) the purchaser of a farm, quarter land, or any other real property, might, either by act inter vivos or by testament, alien his purchase; if it were not disposed of by either of these means, it remained assets in the hands of the heir at law, in case there was a deficiency of personal property for payment of all debts, whether by specialty or simple contract, without any preference. By the Manks common law such lands, after one descent from the purchaser, are in the nature of estates of inheritance, and, consequently the first proprietor of such inheritance, after the purchaser, takes by the law an absolute estate of inheritance, descendible from ancestor to heir in the manner prescribed by the act of Tynwald of 1645, which settles the estate, conformably with the ancient custom, on the eldest son, and for want thereof, on the eldest daughter, and, in default of children, on the next of kin, but subject always to the gift, grant, sale, mortgage, lease, or assignment by deed of the owner, and subject also to forfeiture for felony or treason; and if there be not personal effects sufficient, the lands may be sold for the payment of arrears of the lord's rent, to which all the lands in the island are subject. But, although lands may be alienated by deed, they (b) A. T. 1777. (a) Act of Settlement. VOL. II. D D cannot be disposed of by will, except by the first purchaser, neither are they subject to any other than mortgage debts, except in the instance of purchased lands as before mentioned, and that description of property called mills, cottages, and intacks. With respect to a Manks purchase, the term cannot be construed in the large and extended sense of Lyttleton's perquisitio, which included every kind of title, except only hereditary transmission, for here it can only mean a purchase for a consideration in money or effects. The quarter lands alluded to by these acts may be analogous to the hides of land, formerly so denominated in England, and which usually consisted of about one hundred acres. The Manks name implies the act of quartering out, or allotting the principal lands by the lord's officers to his tenants. These quarter lands have immemorially been considered property of the highest nature in the island, and though now absolute estates of inheritance, are subject by the acts of settlement to the payment of an annual rent to the lord, and a fine certain upon descent or alienation. The act of settlement absolutely and irrevocably confirms these estates of inheritance, which are descendible from ancestor to heir according to the Manks laws before stated, subject to the annual rents to the lord, and to the fines due to him upon descent or alienation. The estates, which are recognized under the denomination of intacks, cottages, mills. &c., are by the act of settlement chargeable with debts, and may be alienated by gift, grant, demise, will, or assignment; but by the statute of 1777, such property, (although still liable to the debts of the owner,) is not to be deemed personal effects or chattels, so as to be considered assets in the hands of executors, or subject to be claimed by right of consanguinity or next of kindred in exclusion of the heir at law. The modern Manks tenures are very simple. They do not stand in need of the fictitious proceedings of fines or recoveries, for no entail can be created nor an estate limited beyond the life of the grantee, or the heirs of a person in esse, (a) by feoffments, with livery of seisin, by lease and release, or the subtle and intricate learning of reversions and remainders, which forms so large a part of the English code. (b) X.-UNITED STATES. I. Fee, sense in which it is understood.-II. Estates tail, rule in Shelley's case.-III. Conditional fees.-IV. Estates for life.-V. Remainders, springing uses, executory devises, perpetuities, powers.-VI. Joint tenancies, tenancies in common, &c.-VII. Uses and trusts. I. THE law of England, as it regulated the creation and modifications of estates in real property, was introduced into America by the original settlers, and it continued until the Revolution. Since that period, important alterations have been made, in some instances, by no longer retaining many of the limitations of estates, which have been described in a preceding section, and in others, by establishing new rules for the creation and construction of them. It is intended to give a general view of such alterations in these respects, as have been made in the different States. The term fee is generally used in the several States to express an estate of inheritance in law, belonging to the owner, transmissible to his heirs, and which may continue for ever. (c) (a) The deemsters and keys, after solemn argument in 1745, declared that they knew no law in the Isle of Man by which estates tail could be created. (b) Lex Scripta of the Isle of Man. (c) 4 Kent's Com. 3, 4. |