I. Scope, 25.

II. Operation of rule against creation of freehold estates in futuro: a. In respect to real estate:

1. Ancient common-law rule, 25.

2. Under Statute of Uses:

(a) In general, 25.

(b) Necessity of good con-
sideration in cove-
nants to stand seised
to use, 28.

3. Under state statutes, 32.
4. Independently of both com-
mon law and statute, 35.

b. In respect to personalty, 35.
III. Will and deed distinguished:
a. In general:

1. Instrument passing present
irrevocable interest, 36.
2. Instrument passing revoca-
ble interest to take effect
after maker's death, 39.

b. Rules of construction for deter-
mination of interest passed

by instrument:

1. Intent of maker followed, 41.

2. Name as evidence of intent, 42.

3. Form as evidence of intent, 43.

4. Execution as evidence of

intent:

(a) In general, 44.

(b) Delivery, 44.

(c) Recording, 45.

(d) Acknowledging, 45.

(e) Attestation, 46.

5. Effort to construe instrument as deed where not properly executed as will, 46.

6. Effort to construe instrument as will where not properly executed as deed, 47.

7. Effort to construe instrument as will where provisions can have no effect as deed, 47.

8. Presumption that instrument is deed, 48.

9. Admissibility of evidence outside the body of the instrument:

1. In general, 51.

2. Language construed as passing present interest: (a) "At my death," contained in granting clause, 51.

(b) "At my death," contained in habendum, 53.

(c) "At my death," following description, 55.

(d) Specific reservation of life estate, 55.

(e) Reservation

of use, possession, enjoyment, and control during maker's life, 58.

(f) Reservation of right, title, and interest during maker's life, 67.

(g) Provision that instrument is to "take effect" or "operate" at maker's death, 69.

(h) Conveyance of property belonging to maker at his death, 74.

(i) Conveyance of prop-
erty left after pay-
ment of maker's
debts, 75.

(j) Conveyance in trust
for use of maker
during his life, 75.
(k) Reservation of power
of revocation during
maker's life, 78.

III. c, 3-continued.

(f) Conveyance of prop

erty belonging to maker, at his death, 96. (g) Conveyance of property which may come into maker's ownership during his life, 98.

(h) Conveyance of prop-
erty left after pay-
ment of maker's
debts, 98.

(i) Conveyance in trust
for use of maker
during his life, 99.
(j) Reservation of power
of revocation during
maker's life, 99.
(k) Conveyance condition-
al on survivorship of
grantee, 100.

(1) Conveyance condition-
al on maker's failure
to attain majority,
101.

(m) Provision that property is to be divided

among grantees at maker's death, 101. (n) Provision that title is to vest or pass upon maker's death, 101. (0) Provision that property shall continue as maker's during his life, 102.

(p) Provision that prop

erty shall not be dis-
posed of during mak-
er's life, 102.

(q) Provision that grantee
shall have no inter-
est during maker's
life, 102.

(r) Provision that grantee
is to become owner
upon maker's death,
102.

(s) Provision that prop-
erty is to become
that of grantee at
maker's death, 103.
(t) Provision that prop-
erty is to go into
grantee's possession
at maker's death,
103.

(u) Provision that prop

erty is to be delivered
at maker's death,
104.

III. c, 3-continued.

(v) Provision that maker shall retain possession of instrument during lifetime, 104. (w) Conveyance to wife "during her widowhood," 104.

I. Scope.

The question here under discussion is the effect of provisions in instruments in the form of deeds, postponing their taking effect until after the death of the grantor, upon the character of the instrument, and its validity. As the character of the instrument, that is, whether it is a deed or a will, is dependent upon the interest passed by the instrument, the principal question in almost every case is the nature of the interest passed. "Interest," as used here, however, is not to be confused with "estate," this note not going into the question of the effect of the postponing provisions upon the estates created by them. However, reference is made to cases involving provisions postponing their taking effect until after the death of the grantor, in which it is assumed without question that the instruments are deeds, the only questions raised being in connection with the manner or extent of the estate created, such cases affording some slight degree of authority upon the matter of the nature of the interests passed by the postponing clauses contained therein.

The effect of the delivery of a deed to a third person, to be delivered to the grantee after the grantor's death, is beyond the scope of the note.

II. Operation of rule against creation of freehold estates in futuro.

a. In respect to real estate.

1. Ancient common-law rule. The rules of the ancient common law required livery of seisin as an incident to the passing of a freehold estate. Inasmuch as there could be no livery of seisin where the owner of an estate conveyed a freehold therein and, at the same time, reserved a life estate for himself, it was the common-law rule that such an estate in freehold, to commence in futuro, could not be cre

III. c, 3-continued.

(x) Provision that maker's executors shall con

vey, after maker's death, 104.

IV. Conveyance as both will and deed, 105.

ated. A conveyance of freehold had to take effect presently, either in possession or in remainder, in the latter case the particular tenant receiving livery of seisin, both for himself and for the remainderman. This rule against the creation of freehold estates to commence in futuro applied, of course, to deeds containing provisions postponing their taking effect until after the death of the grantor, in cases where such deeds were not construed as wills. For cases discussing the common-law rule in this connection, see infra, II. a, 2.

In Carter v. Madgwick (1692) 3 Lev. 339, 83 Eng. Reprint, 719, involving an indenture of bill and sale, with habendum restricting the estate to take effect after the grantor's death, it is held that the grantee takes the premises immediately, and that the possession of the premises thereafter by the grantor is tortious. The instrument is construed thus, to prevent the deed from being rendered wholly void under the rule against the conveyance of freeholds, to take effect in futuro.

And see Goodtittle v. Gibbs (1826) 5 Barn. & C. 709, 108 Eng. Reprint, 264, 8 Dowl. & R. 502, 4 L. J. K. B. 284, 29 Revised Rep. 366, 14 Eng. Rul. Cas. 779, where, the premises and the habendum being inconsistent, the latter containing a reservation of a life estate in the grantor, and the former not, the latter is held void, and the case is saved, according to the court, from the operation of the rule against the creation of estates in futuro.

2. Under Statute of Uses.

(a) In general,

The common-law rule against the creation of estates of freehold, to commence in futuro, was nullified by the Statute of Uses.

It is said in Bunch v. Nicks (1887) 50 Ark. 367, 7 S. W. 503, involving a grant "to go into full force and effect

at" the maker's death: "It was a principle of the feudal law of England that 'an estate of freehold must be created to commence immediately.' 'For,' says Blackstone, 'it is an ancient rule of the common law that an estate of freehold cannot be created to commence in future; but it ought to take effect presently, either in possession or remainder; because, at common law, no freehold in lands could pass without livery of seisin, which must operate either immediately or not at all. It would, therefore, be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession.' Prior to the reign of Henry VIII., real estate could be conveyed to one person in trust or for the use of another, and equity would enforce the use ; while . . . at common law a freehold could not be made to commence in futuro, . a use might be raised after a limitation in fee, or it might be created in futuro, without any preceding limitation. To prevent the abuses and frauds practised through them [uses], the Statute of 27 Hen. VIII. chap. 10, commonly called the Statute of Uses, was passed, by which it was enacted that the legal estate, or seisin, shall be in them that have the use, 'in such quality, manner, form, and condition as they before had in the use,' and thereby united the use and legal title.

so that, while

freehold estates to commence in futuro could not be conveyed at common law, such conveyances can be made under the Statute of Uses. . . . The result of the Statute of Uses was, several new modes of conveying legal estates, wholly unknown to the common law, came into use, among them covenants to stand seised to uses, and bargain and sale. In the first-mentioned conveyance, a man seised of lands covenants that he will stand seised to the use of the covenantee for life, in tail, or in fee. 'Here,' says Blackstone, 'the statute executes at once the estate; for the party intended to be benefited, having thus acquired the use, is thereby put at once into corporal possession, without ever seeing it, by a kind of parliamentary magic.' In the

bargain and sale, 'the bargainor for some pecuniary consideration bargains and sells, that is, contracts to convey the land to the bargainee, and becomes, by such a bargain, a trustee for or seised to the use of the bargainee, and then the Statute of Uses completes the purchase; or, as it hath been well expressed, the bargain first vests the use, and then the statute vests the possession.' By both modes, an estate of freehold to commence in futuro can be created under the Statute of Uses."

So, in Vinson v. Vinson (1879) 4 Ill. App. 138, involving a deed from a father to a son, conveying certain land at the grantor's death, it is said: "Here the legal effect of the deed, as interpreted by the Statute of Uses, was that the grantor reserved a life estate to himself, and covenanted to stand seised to the use of his son in fee, at his (the grantor's) death. The estate remained in the grantor till the use arose; the possession or seisin was then, contemporaneously with the grantor's death, executed to the use by operation of the statute, and the legal possession and legal estate vested in the cestui que use."

And in Simmons v. Augustin (1836) 3 Port. (Ala.) 69, involving a grant "after the demise of the maker," it is said: "Admitting the common-law doctrine, which is very clear as a general rule, that an estate of freehold cannot be created to commence in futuro, but that it must take effect presently, either in possession or remainder, and this for the reason that no such estate could pass without livery of seisin, which must operate immediately or not at all . . . yet if, during the interval, according to the import of the deed, the possession is to be enjoyed by the grantor, or any other, under a covenant to stand seised to the present use of himself, and the subsequent use of the grantee, or for the entire use of the latter, the object of the law is satisfied. In such a case, the inconsistency against which this principle of law was intended to guard, the granting an estate to commence in future, by a conveyance importing an immediate possession, would not arise; the possession would be consistent with the terms and object of the deed.

As a further answer to this objection, our Statute of Uses, similar to the English Statute of Hen. VIII., may be cited. It provides that 'in all cases, by deed of bargain and sale, or by deed of lease and release, or by covenant to stand seised to use, or by deed operating by way of covenant to stand seised to use, the possession of the bargainor or releasor, or covenantor, shall be deemed heretofore to have been, and hereafter to be, transferred to the bargainee, releasee, or person entitled to the use of the estate.''

Where, in Dennett v. Dennett (1860) 40 N. H. 498, a deed is urged to be void because the reservation of a life estate in the grantor operates to make it a grant of a freehold estate, to begin in futuro, it is said: "It is undeniable that, by any of the old common-law conveyances, a freehold could not be granted to take effect at a future time.

But we think it quite as well settled that an estate of freehold in futuro may be created by a conveyance taking effect under the Statute of Uses; . . and that our ordinary conveyance will be construed a bargain and sale under the Statute of Uses, or a conveyance at common law, as will best carry into effect the design of the grantor. Such a deed, with a reservation of a life estate, will be construed as a covenant to stand seised to his own use, and then to the use of the grantee."

And in Merrill v. Publishers Paper Co. (1914) 77 N. H. 285, 90 Atl. 786, the preceding case is cited and followed.

In Wall v. Wall (1855) 30 Miss. 91, 64 Am. Dec. 147, involving a deed containing a clause providing for its taking effect upon the death of the grantor, it is said that, "as to the real estate in this case, the deed was valid as a covenant to stand seised to the use of the donees, and, upon the determination of the life estate reserved to the donor, the estate vested in possession in the donees."

In Bell v. Scammon (1844) 15 N. H. 381, a deed containing the clause, "he, the said Lang, to take full possession at my marriage or death," is held not to be invalid, as attempting to create a freehold estate in futuro. "The deed

undoubtedly reserves an estate to the grantor during her life," it is said: "This is its obvious construction, and the remainder, after the expiration of the life estate, is all that the grantee took by the deed. There seems to be no reason why it may not operate under the Statute of Uses, both as a deed of bargain and sale, and as a covenant to stand seised to the use of the grantee, by either of which modes a freehold in futuro will pass."

In Shackelton v. Sebree (1877) 86 Ill. 616, involving a deed containing a clause providing that the instrument is not to take effect nor to be recorded until after the grantor's decease, it is held that the old common-law rule against the conveyance of estates to take effect in futuro is no longer in effect, livery of seisin having been abolished by statute, and the title following the use, under the Statute of Uses.

And in Doe ex dem. Wilkinson v. Tranmarr (1757) Willes, 682, 125 Eng. Reprint, 1383, involving a deed of lease and release, in which the grantor releases certain premises after his death, it is held that the deed cannot operate as a release, under the common-law rule against the conveyance of freeholds in futuro; but that it is good as a covenant to stand seised, under the Statute of Uses.

It is said in Eckman v. Eckman (1871) 68 Pa. 460, involving a deed containing a reservation of the rents and profits during the grantor's life, that "if it cannot be treated as a deed of bargain and sale because there was, in fact, no pecuniary consideration, yet, if the consideration of blood did exist, it shall be supported as a covenant to stand seised." And the court adds: "We may say here that in Pennsylvania a recorded deed will be construed as having the effect of a feoffment, with livery of seisin, or as a deed under the Statute of Uses, as will best accomplish the intention and design of the parties."

In Savage v. Lee (1884) 90 N. C. 320, 47 Am. Rep. 523, involving a deed reserving a life estate in the grantor, it is held that an estate in freehold to commence in futuro can be conveyed under the Statute of Uses.