CHAP. V. ing an unfavourable opinion of the policy of the measure. The act, indeed, is one of the most complete of any of the legislative amendments of the law of real property passed in the last session, which appear to possess very unequal degrees of merit.” (a) FINES AND RECOVERIES, (Ireland,) 4 & 5 Will. 4, c. 92. (Royal Assent, Aug. 15, 1834.) the Irish Fine and Recovery The act on which we have been commenting does not extend to Ireland, (b) except in those instances (c) where Ireland is expressly mentioned. But the legislature has since passed "An Act for the abolition of Fines and Recoveries, and the substitution of more simple modes of Assurance in Ireland." This act differs in some respects from the English act, and it may be useful to state shortly a Points in which few points of difference. In the definitions (d) the word estate is made to extend to "any interest, charge, right, Act differs from title, lien, or incumbrance, in, upon, to, or affecting lands, the English. whether present or vested, future or contingent." The additional words were introduced from an anxiety, probably, to satisfy the scruples of those who doubted the applicability of the English act to inchoate and contingent interests, as the wife's title to dower, or the benefit of a contingent or executory limitation. The ancient demesne sections of the English act are excluded, along with that branch of the fifth section which establishes fines and recoveries, notwithstanding any defect or want of jurisdiction in the court. The omission of the latter clause seems to be judicious. On the other hand, the Irish act contains a provision (e) entirely novel, and apparently foreign to the professed objects of the act. provision did, indeed, find its way into the English bill, (b) S. 92. This (a) 9 Jarm. Conv. 415. (c) As to bankrupts, ss. 45, 68, 69. As to entailed money, s. 72. As to acknowledgment and inrolment of deeds, ss. 73, 74, 75. clause relative but was, when discovered, very properly ejected. It is not CHAP. V. conceived in the clearest terms, but it purports to enable Interpolated any person, either before or after he shall become entitled, to contingent otherwise than as expectant heir of a living person, to an and executory rights. estate in lands not vested, and whether he be ascertained as the person or one of the persons in whom the estate may become vested or not, to dispose by deed, will, or otherwise, as if the estate were vested in possession; but no such disposition is to be valid, where the person making it shall not then have become entitled, unless the instrument under which he claims be then in actual operation. It would require an extended dissertation to develope all the possible bearings of this singular clause. The owners of contingent remainders and executory gifts cannot alien by assurance inter vivos at law, except under the doctrine of estoppel, though they may bind their interests by way of contract in equity. Thus, if lands stood limited to A. for life, remainder to B., if he shall survive A., in fee, or to A. in fee, but if A. shall die under twentyone, then to B. in fee; in neither case would a conveyance by B. pass the benefit of the contingent limitation, so as to vest the estate, on the happening of the contingency, in the grantee at law, though his devise by will would so pass it at law, or his agreement would bind it in equity. And even, with reference to the devisable quality of contingent and executory interests, an eminent writer ob-. serves, that "the decisions do not appear to reach those cases, where neither the contingent interest itself is transmissible from any person until the contingency decides him to be an object of the limitation, nor the person or persons, to or amongst whom the contingent or future interest is directed, is or are in any degree ascertainable, before the contingency happens; as in the case of a conin gent or executory limitation to the right heirs of J.S. CHAP. V. (then living) where the description of the person to take cannot be confined to or among any ascertainable person or persons, during the life of J. S.; nor can it therefore be said, in whom such interest is; nor, consequently, that it is in any body, during that period; nor will it be transmissible or descendible, from any one dying before it becomes vested."(a) With deference to such authority, it is conceived that it cannot, in the case of any contingent limitation, be predicated of any person that he is the object until the contingency decides him to be such, or that he is the person to whom the contingent or future interest is directed; nor is it admitted that a limitation to the survivor of a thousand persons, or to the right heirs of I. S., is more or less contingent, in point of law, than a limitation to A. if he shall survive B. In none of these cases, can it be said that the legal interest is in any body during the contingency. (b) The clause in question seems, however, to have been framed with an eye to the supposed distinction, and to contemplate the extension of the power of disposition to every species of contingent and executory interest, except the mere expectancy, or, in other words, the hope of succession of an heir apparent or presumptive, which is not the character of the contingent right under a gift to the right heirs of a living ancestor as purchasers. But if the law in regard to the transferable or devisable properties of contingent and executory interests was defective or doubtful, it should have been corrected and explained by an independent and well-considered enactment. This clause, so entirely misplaced and so darkly worded, is a striking specimen of the worst kind of legislation. With equal propriety the clause might have been (a) Fearne's Cont. Rem. 8th ed. 370, 71. (b) 1 Jarm. Pow. on Devises, 30, n. extended to choses in action, which are not assignable at CHAP. V. law. The provisions relating to copyholds are omitted as being (like the ancient demesne clauses) inapplicable to Ireland. The discrepancy as to dates already pointed out (a) as existing between the twenty-seventh and thirty-first sections of the English act is repeated in the Irish act; (b) and, what is more to be regretted, the Court of Common Pleas in Dublin is invested with the same power of making orders as that which is conferred by the English act, and which has been so unfortunately exercised. DOWER. 3 & 4 Will. 4, c. 105. Aug. 29, 1833.) We now proceed to the ACT FOr the amendment of THE LAW RELATING TO DOWER. Neither is this act calculated to effect any considerable change in the forms (Royal Assent, of conveyancing. While, under the old law, the husband was entitled to be tenant by the curtesy in respect of his wife's inheritance, whether legal or equitable, dower was strictly a legal demand, and did not attach unless the husband was solely seised in possession of the legal inheritance. It was, therefore, commonly excluded on Modes of exa purchase of the fee by conveying so as to vest a legal under the old cluding dower estate of freehold, derived out of the fee, in a trustee law. for the purchaser, or so as to vest the legal freehold or fee in the purchaser and a trustee for him jointly. According to the most approved form of uses to prevent dower, the estate was limited to such uses as the purchaser should by deed appoint, (this power, however, not being essential to the object of preventing dower,) and in default of appointment, to the use of the purchaser for life, with remainder to a trustee his executors and administrators during the life of the purchaser, in trust for him, with remainder to the purchaser in fee. In practice, (a) Supra, 114. (b) Ss. 25, 29 CHAP. V. this form of limitation was not attended with any inconvenience, for as an execution of the power of appointment defeated the subsequent limitations, including that to the trustee, his concurrence on the occasion of a future sale or mortgage was not necessarily required; and as the power afforded the means, not only of making a short conveyance by appointment alone, but also, it should seem, of excluding judgment creditors, (a) (at least, where the judgment is entered up adversely,) it was always a desirable species of dominion. If the purchaser did not execute the power, the interposed limitation to the trustee, by dividing the ownership of the legal inheritance, prevented dower, without sensibly abridging the dominion of the purchaser. The limitations may be comprised in very few words. Serious exceptions, however, had been taken to this state of the law. In the first report of the Real Property Commissioners it was observed upon in these terms:-" Dower has long ceased to be the provision for widows, but their legal right to it remains in its ancient strictness. To evade this, and to make obsolete law bend to modern usage, there are introduced into every conveyance upon a purchase of land, limitations which not only swell its bulk, (b) but sometimes lead to many inconvenient consequences." This passage can apply only, as it regards the increase of bulk, to limitations loaded with unnecessary verbosity, and as it regards the inconvenience, to those exploded forms of limitation by which the estate was vested in the purchaser and his trustee as joint-tenants, without any previous power of appointment. The only objection of any real weight is that in regard to covenants in appointments to uses not (a) Doe d. Wigan v. Jones, 10 Barn. & C. 459. |