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of A., or that A. should have it again as a resulting

use.

"It was adjudged, after argument, that D. should have it as an occupant, and that A. had not any residue of the use in him: for although where tenant in fee makes a deed of feoffment, and limits the use for life or in tail, and doth not speak of the residue, it shall be to the feoffor or conusor, because he had the ancient use in him in fee; yet when tenant for life, or he who hath the particular estate, grants his estate by fine, and limits the use for years, or for a particular estate, it shall not return to him, but be to the conusee, although the fine were without any consideration; because he who hath the particular estate by fine, is subject to the ancient rent and forfeiture; which is a sufficient consideration to convey the estate to him."

Devise,

Tit. 38.

55. As a devise imports a bounty, it follows that Nor on a it must be to the use of the devisee, if not otherwise expressed and that no use can in any case result to the heirs of the devisor; unless it appears by the will itself, that the devise was not made to the use of the devisee if the use declared on the devise be void, 1 Leon. 254. the devise itself will be void.

:

56. Where a tenant in tail suffers a recovery of What Use his estate, by which it is converted into an estate in results to a

Tenant in

fee simple, without declaring any uses thereof, it has Tail. been doubted whether the use which results to him

be in tail or in fee. The language of the old books is, that where there is a feoffment, fine, or recovery, without consideration, or declaration of uses, these assurances shall enure to the old uses.

57. Thus where a father tenant for life, and the son tenant in tail, joined in suffering a common reco

Argol v.
Cheney,
Latch. 82.

Waker
v. Snow,
Palm. 359.

very, but the father alone executed the deed declaring
the uses;
the court directed the jury to find the
uses according to the estates which the parties had
at the time of suffering the recovery.

58. So where a father tenant for life, and the son
tenant in tail, suffered a common recovery, without
any
declaration of the uses to which it should enure;
it was held that it enured to the former uses.

59. The doctrine laid down in the above cases is liable to great objections; for as resulting uses are 9 Rep. 11 a. guided by the intent of the parties, it follows that where a tenant in tail suffers a recovery without any declaration of uses, the presumption is, that this act was done for the special purpose of acquiring the absolute dominion over his estate; as it cannot be Gilb. Uses, supposed that he would go to the expence of suffering a recovery, if he was only to acquire the same estate which he had before: and it has been admitted in the following case, that where a tenant in tail suffers a common recovery without any declaration of uses, the resulting use is to him in fee simple.

64.

Nightingale v. Ferrers,

3 P. Wms. 207.

60. Earl Ferrers being tenant for life, with remainder to his first and other sons in tail male, and having an eldest son Robert, who was about seventeen years old, and several other sons, a very advantageous match had been agreed on between such eldest son and a young lady; and articles were entered into by Earl Ferrers and his son, whereby Earl Ferrers covenanted that he and his son should within a year his son came of age, by fine or recovery, settle the bulk of his estate to the use of his son for life, remainder to his first and other sons in tail, &c. The marriage took effect, and the eldest son Robert, when he came of age, joined with his father in levying a fine and

after

suffering a common recovery, but there was no deThe son died, leaving an only

claration of uses. daughter and no son.

It appears from the case that the estates of which the recovery was suffered descended to the, only daughter of Robert the son, who had joined his father in the recovery, and had not declared any uses. Now if the recovery had enured, as to Robert the son's estate, to the old uses, he would have been tenant in tail male, with remainder to his brothers in tail male, successively; and upon his death without issue male, the estate would have vested in his next brother, not in his daughter. But it was so fully admitted by the counsel of Earl Ferrers, who was party to that suit, and who was a younger brother of Robert the son, who suffered the recovery, that in case of no declaration of uses, the use and estate resulted to Robert the son in fee; that the only point for which they contended was, that the articles executed by Robert the son, while an infant, and under which they claimed, amounted to a good declaration of the uses of the recovery.

61. This doctrine has been confirmed by the highest modern authorities. Thus Lord Hardwicke has said, "I take it for law that a tenant in tail suffering a 1 Atk. 9. recovery is in of the old use, and that the estate is discharged of the statute De Donis:" and in another case, "A common recovery will bar the entail, though 3 Atk. 313. there is no deed to lead the uses; because it is in

107. note.

respect of the satisfaction of estate in value, which creates the bar." And Lord C. J. Lee has said, "It is 5 Term R. the use of the fee simple that passes to the recoveror from tenant in tail, and which results to him and his heirs, if no use is declared."

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ante, § 45.

62. It follows from the above principles, that where a tenant in tail levies a fine, without any declaration of uses, he acquires a base fee descendible to his heirs, as long as he has heirs of his body; and in the case of Roe v. Popham it must be presumed that the Court reasoned in this manner; for upon the death of the tenant in tail without issue, the person who had the reversion in fee was held to be entitled to the estate.

TITLE XII.

TRUSTS.

CHAP. I.

Of the Origin and Nature of Trust Estates.

CHAP. II.

Of the Rules by which Trust Estates of Freehold are governed.

CHAP. III.

Of the Rules by which Trust Terms are governed.

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35. How Trusts may be declared. 39. Resulting or implied Trusts. 40. Contract for a Purchase.

15. Trust for the separate Use of 41. Purchase in the Name of a

a Woman.

20. Trust to sell or to raise

Money.

29. Or for any other Purpose to which a Seisin is neces

sary.

33. A Trust Estate limited after Payment of Debts vests immediately.

Stranger.

47. Purchase with Trust Money. 51. Conveyance without Conside

ration.

54. A Trust declared in Part. 56. Or which cannot take Effect. 58. Exception.

60. Where no Appointment is made.

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