profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be conveyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. The testator's object was to protract the power of alienation, by taking in lives of persons who were mere nominees, without any corresponding interest. The trusts created by the Thellusson will were held valid by the Court of Chancery, and the decree was affirmed in the House of Lords. The property was thus tied up from alienation, and from enjoyment for three generations; and when the period of distribution shall arrive, the accumulated increase of the estate will be enormous. (a) This is the most extraordinary instance upon record of calcu lating and unfeeling pride and vanity in a testator, disregarding the ease and comfort of his immediate descendants, for the miserable satisfaction of enjoying in anticipation * the wealth *286 and aggrandizement of a distant posterity. Such an ironhearted scheme of settlement, by withdrawing property for so long a period from all the uses and purposes of social life, was intolerable. It gave occasion to the statute of 39 and 40 Geo. III. c. 98, prohibiting thereafter any person, by deed or will, from settling or devising real or personal property, for the purpose of accumulation, by means of rents or profits, for a longer period than the life of the settler, or twenty-one years after his death, or during the minority of any person or persons living at his decease, who, under the deed or will directing the accumulation, would, if then of full age, be entitled to the rents and profits. (a) The New York Revised Statues (b) have allowed the accumula (a) The testator died in 1797. He left three sons and three daughters, and half a million sterling, on an accumulating fund. If the limitation should extend to upwards of one hundred years, as it may, the property will have amounted to upwards of one hundred millions sterling! (a) The Thellusson Act does not operate to alter any disposition in a will, except only the direction to accumulate. 2 Keen, 564. The New York Revised Statutes, 1 R. S. 773, was founded on the Thellusson Act, suspending the absolute ownership of personal property, and does not apply to charitable perpetuities. Shotwell v. Mott, 2 Sandf. Ch. 56. (b) Vol. i. 726, secs. 37-40. As to the regulation of accumulation of personal property, see ante, vol. ii. 353, note. tion of rents and profits of real estate, for the benefit of one or more persons, by will or deed; but the accumulation must commence either on the creation of the estate out of which the rents and profits are to arise, and it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or if directed to commence at any time subsequent to the creation of the estate, it must commence within the time authorized by the statute for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and terminate at the expiration of such minority. If the direction for accumulation be for a longer time than during the minorities aforesaid, it shall be void for the excess of time; and all other directions for the accumulation of the rents and profits of real estate are void. It is further provided, that whenever there is, by a valid limitation, a suspense of the power of alienation, and no provision made for the disposition, in the mean time, of the rents and profits, they shall belong to the persons presumptively entitled to the next eventual estate. If the trust of accumulation of the income of personal property be void under the statute, the income descends as if the testator had died intestate. (c) The intermediate rents and profits arising on an estate *287 given by way of executory devise, will pass by a devise of * all the residue of the estate. (a) But if these are not devised, when the estate is devised to trustees for any lawful purpose whatever, they are then, at common law, thrown upon the heir for want of some other person to take them, and they attend the estate in its, descent to the heir, and belong to him during the continuance of the (c) Vail v. Vail, 4 Paige, 317. In that case the chancellor considered the statute check to accumulation a salutary provision, and that no man ought to be permitted to withhold the income of his estate, for the sole purpose of hoarding up wealth by compound interest after his death, to provide for a second or a third future generation, or even for his immediate descendants, to be given to them at the close of their lives, when they are no longer in a situation to enjoy it. The statute ought to be carried into effect according to its spirit and intent, and so as to meet and correct those evils. But under the English statute, trusts by wills for accumulation during a life contrary to the statute, are good for twenty-one years. Griffiths v. Vere, 9 Vesey, 127. (a) Stephens v. Stephens, Cases temp. Talb. 228. 1 Trusts for accumulation being prohibited in New York, except for the benefit of minors, cannot be created for the benefit of a lunatic who is not a minor. Craig v. Craig, 3 Barb Ch. 76. trust estate. So, it is a settled rule, that where there is an executory devise of a real estate, and the freehold is not, in the mean time, disposed of, the freehold and inheritance descends to the testator's heir at law. (b) If the profits are bequeathed, and the land left, in the mean time, to descend to the heir until the contingent limitation takes effect, and no other person made trustee of the profits, the heir becomes a trustee, and the rents and profits will accumu late in his hands for the benefit of the party under the will. (c) (b) Clarke v. Smith, 1 Lutw. 793. Gibson v. Lord Montfort, 1 Vesey, 485. & C. 268, 310. (c) Rogers v. Ross, 4 Johns. Ch. 388. Hopkins v. Hopkins, Cases temp. Talb. 44. 1 Rent, accruing after lessor's death, is a chattel real, and descends to the heir, and does not go to the executor. Green v. Massie, 13 Ill. 363. I. Of uses. LECTURE LXI. OF USES AND TRUSTS. A USE is where the legal estate of lands is in A., in trust, that B. shall take the profits, and that A. will make and execute estates according to the direction of B. (a) Before the statute of uses, a use was a mere confidence in a friend, to whom the estate was conveyed by the owner without consideration, to dispose of it upon trusts designated at the time, or to be afterwards appointed by the real owner. The feoffee or trustee was, to all intents and purposes, the real owner of the estate at law, and the cestui que use had only a confidence or trust, for which he had no remedy at the common law. (1.) In examining the History of Uses, we shall find that they existed in the Roman law, under the name of fidei commissa, or trusts. They were introduced by testators, to evade the municipal law, which disabled certain persons, as exiles and strangers, from being heirs or legatees. The inheritance or legacy was given to a person competent to take, in trust, for the real object of the testator's bounty. But such a confidence was precarious, and was called by the Roman lawyers, jus precarium; for it rested entirely on the good faith of the trustee, who was under no legal obligation to execute it. To invoke the patronage of the emperor in *290 favor of these defenceless trusts, they were created under an appeal to him, as rogate per salutum, or per fortunam Augusti. Augustus was flattered by the appeal, and directed the prætor to afford a remedy to the cestui que trust; and these fiduciary interests increased so fast, that a special equity jurisdiction was created to enforce the performance of the trusts. This "particular chancellor for uses," as Lord Bacon terms him, who was (a) Gilbert on Uses, 1. charged with the support of these trusts, was called prætor fidei commissarius. (a) If the testator, in his will, appointed Titius to be his heir, and requested him, as soon as he should enter upon the inheritance, to restore it to Caius, he was bound to do it, in obedience to the trust reposed in him. The Emperor Justinian gave greater efficacy to the remedy against the trustee, by authorizing the prætor, in cases where the trusts could not otherwise be proved, to make the heir, or any legatee, disclose or deny the trust upon oath, and when the trust appeared, to compel the performance of it. (b) advancing * 291 The sim The English ecclesiastics borrowed uses from the Roman law, and introduced them into England in the reign of Edward III. or Richard II., to evade the statutes of mortmain, by granting lands to third persons to the use of religious houses, and which the clerical chancellors held to be fidei commissa, and binding in conscience. (c) When this evasion of law was met and suppressed by the statute of 15 Richard II., uses were applied to save lands from the effects of attainders; for the use, being a mere right in equity, of the profits of land, was exempt from feudal responsibilities; and uses were afterwards applied to a variety of purposes in the business of civil life, and grew up into a refined and regular system. They were required by the state of society and the growth of commerce. plicity and strictness of the common law would not admit of secret transfers of property, or of dispositions of it by will, or of those family settlements which become convenient and desirable. A fee could not be mounted upon a fee, or an estate made to shift from one person to another by matter ex post facto; nor could a freehold be made to commence in futuro, nor an estate spring up at a future period independently of any other; nor could a power be reserved to limit the estate, or create charges on it in derogation of the original feoffment. All such refinements were repugnant to the plain, direct mode of dealing, natural to simple manners and unlettered ages. The doctrine of livery of seisin rendered it impracticable to raise future uses upon feoffment; and if a person wished to create an estate for life, or in tail, in himself, he was obliged to (a) Inst. 2, 23, 1. Vinnius, h. t. Bacon on the Statute of Uses, Law Tracts, 315 (b) Inst. 2, 23, 12. (c) 2 Blacks. Comm. 328. Saunders on Uses and Trusts, 14. |