Phenix Gazette

THELLUSON'S CASE.

To the Editor of the Alexandria Gazette.

Mr. Snowden—In addition to the observations made by you yesterday on Thelluson's case, I will state that the act of Parliament referred to, which is the 39 and 40 Geo. 3, has not been re-enacted by the Legislature of Virginia or for aught I know to the contrary by that of any other State in the Union. The law relating to executory devises and trusts of accumulation which obtained in England previous to the passage of that act, has been, with some legislative modifications, adopted by the Judiciary of Virginia—the consequence is that such a settlement or disposition as was made by Peter Thelluson could undoubtedly be made and maintained in that State. A brief synopsis of the law on this subject may serve to render this position more clear.

The Common Law of England, which, in the branch relating to real property, derived many of its provisions from the Feudal System, would not permit an estate of freehold to commence at a future period, because, in that case, the freehold would be in abeyance, or not vested in any person in being, which state of things would, for several technical reasons of a feudal nature, have produced great inconvenience. Nor could the strictness and accuracy of that severe body of "written reason" countenance the apparent solecism that when a fee-simple had been limited to a man, any subsequent disposition of it could be made, or remainder created out of it, by the original grantor. These were, and still are, the doctrines of the common law, as it exists in England, in relation to limitations by way of deed. They have been materially affected by several Virginia statutes, which, however, it will not be necessary to notice.

From the abolition of the practice of Subinfeudation, by the statute of Quia Emptores passed in the reign of Edward I., which permitted the alienation or conveyance of lands from one to another, (subject, of course, however, to all the feudal services and restrictions due from the grantor or feoffor to the lord of whom he held.) to the period when devises—which had been destroyed by the introduction of the Feudal System, because inconsistent with its principles—came into practice—which was about the time of the invention of Uses by the Ecclesiastics to elude the statutes of Mortmain, and the subsequent passage of the Statute of Wills, 32 Hen. 8; until the latter period, we say, the only method of transferring land in England was by the common law means of feoffment with livery of seisin. &c. or, to be more comprehensive, by deed or act in pais. During all this time the technical strictness of the common law was imperative in all conveyances of real property.

When, however, the right of devising, or the power of transferring his estate by will, was given to the owner of lands, different rules of construction were established. The Courts foresaw that the technical rules and forms of the common law would not be observed—that the person about to make a will would often be in extremis, without counsel or advice—often ignorant and illiterate—and probably would wish to make a disposition of his property for which the doctrines of conveyancing did not provide a rule or formula. Hence it became a maxim in the construction of wills, that a testator was usually to be considered inops consilii; and the fundamental rule of construction was declared to be the intention of the testator, as evidenced by the writing. One example will suffice to show the important changes made by the Courts as to the law of transferring property, when the instrument of that transfer was a will. To pass a fee by the common law, the word heirs was indispensable. For estates in cases which the quantity, or duration of the estate was not mentioned, it was necessary to establish rule:—in every instance, then, when a transfer was made to a man simply, without mentioning his heirs, or heirs of his body, &c. it was determined—no matter how much in defiance of reason and common sense—that the grantee should take only a life estate. This rule of construction was at first adopted in the case of wills—but the Judges soon perceived their error, as it came into direct conflict with the rule that the intention was to be the guide of construction. [Here it may be said that by intention the Courts meant an intention so far as it was consistent with the rules of law. I admit the correctness of the objection; but what I complain of as an error, is, that they should have adopted a rule which would go so nearly to defeat what they had previously declared should be a fundamental rule of construction—for does not common sense tell us that an absolute estate should pass by a conveyance which in its terms is unlimited?] Having established the rule, their next step was to get rid of it. This they effected by supplying the word heirs with words of equivalent meaning—as to a man and his assigns, &c., until, finally, a devise of all the testator's estate, without any words of limitation, was allowed to pass the fee. We cite this as an example of the inroads made on the exactness of the common law, where its rules were applied to the construction of a will.

But to return. The indulgence thus shown by the Courts to testators was carried to great lengths. The rules that a freehold could not be created to commence in futuro, and that a fee could not be limited after a fee, were dispensed with in the case of wills. This relaxation was also extended to terms for years; and these three classes of cases have since been known by the name of Executory Devises. But it not being possible to bar an Executory Devise, or prevent its taking effect, caution became necessary lest this indulgence should be carried too far, and perpetuities, which "the law abhors," should be created. Accordingly, the utmost time allowed by the Courts for a limitation by way of executory devise to vest in "a life or lives in being, 21 years and 9 months after". The latter period of 21 years and 9 months was allowed, in case the limitation was made to a child of which any one of the lives was enciente, for it to become of age before the vesting of the devise, if the testator so willed it—the law permitting a child en ventre sa mere to take as if born.

Such is the law of England on this subject; and also the law of Virginia, except so far as it may be modified or affected in some of its dependencies on other limitations—as of estates tail for instance—by the act of '76 abolishing entails, and by the several acts of revision—by the act dispensing with words of inheritance in the creation of a fee—or the act making a devise to heirs of the donee to mean "heirs living at his death." Now if we take such a limitation as that
made by Thelluson as having taken place in Virginia, and view it in every possible light, we cannot perceive in what manner it is at all affected by any of the statutes referred to. The only point in which Thelluson's case differs from a case which would come precisely under the terms of the law as we have above stated it, is in this, that the estates are vested in trustees who are directed to accumulate the profits until the expiration of the lives upon which the Executory Devise is to vest—and then dispose of them as provided for. A similar direction as to the accumulation of the profits cannot now, owing to the Stat. 39 & 40 Geo. III., be made in England, for a longer period than 21 years after the death of the grantor; while in such a case as Thelluson's it is estimated that 70 years will elapse before the devise will vest in possession. This statute, however, would not operate to prevent an executory devise which was not to vest till after a life or lives in being, 21 years and 9 months, where the intermediate profits were not directed to accumulate. This statute, as before remarked, has not been re-enacted in Virginia, and not only would such a devise without, but one with, a direction as to the accumulation of the profits, be there valid. I had intended making some remarks on the attempt which has been made in Parliament to alter the dispositions of Thelluson's will; but this communication is already too long and technical to interest your general readers.

T. S.