« 이전계속 »
pacity of estates tail in admitting remainders over, and of limitations to that line of heirs which family interest or policy might dictate, renders them still beneficial in the settlement of English estates. But the tenant in tail can alien his lands, and the estate tail can only be rendered inalienable during the settlement on the tenant for life, and the infancy of the remainder-man in tail. Executory limitations went further, and allowed the party to introduce at his pleasure any number of lives, on which the contingency of the executory estate depended, pro-vided they were lives in being at the creation of the estate; and to limit the remainder to them in succession, and for twenty-one years afterwards.a This was the rule settled by Lord Chancellor Nottingham, in the great case of the Duke of Norfolk; and the decision in that case has been acquiesced in uniformly since that time, and every attempt to fetter estates by a more indefinite extent of *limitation, or a more subtle aim at a perpetuity, has been defeated. But the power of protracting the period of alienation has been restricted, in New-York, to two successive estates for life, limited to the lives of two persons in being at the creation of the estate.d
The English law of entail is so greatly mitigated, as to remove the most serious inconveniences that attend that species of estates; and it is the opinion of the most experienced English property lawyers, that the law of entail is a happy medium between the want of any power, and an unlimited power, over the estate. It accommodates itself admirably to the wants and convenience of the father who is a tenant for life, and of the
a Twisden, J., 1 Sid. 451. In Bengough v. Edridge, 1 Simons, 173. 267, a limitation was made to depend on an absolute term of twenty-one years after twenty-eight lives in being at the testator's death!
b3 Cases in Chancery, 1.
• Duke of Marlborough v. Earl Godolphin, 1 Eden's Rep. 404. Long v. Blackall, 7 Term Rep. 100.
d N. Y. Revised Statutes, vol. 1. 723, 724, sec. 17. 19.
son who is tenant in tail, by the capacity which they have, by their joint act, of opening the entail, and resettling the estate from time to time, as family exigencies may require. The privileges of a tenant in tail are very extensive. He not only can alienate the fee, but he may commit any kind of waste at his pleasure. And yet, with a strange kind of inconsistency in the law, he is not, any more than a tenant for life, bound to discharge encumbrances on the estate. He is not obliged even to keep down the interest on a mortgage, as a tenant for life is bound to do. If, however, he discharges encumbrances or the interest, he is presumed to do it in favour of the inheritance; for he might acquire the absolute ownership by a recovery, and it belongs to his representatives to disprove the presumption. On the other hand, the tenant cannot affect the issue in tail, or those in remainder or reversion, by his forfeitures or engagements. They are *not subject to any of *19 the debts or encumbrances created by the tenant
in tail, unless he comes within the operation of the bankrupt law, or creates the mortgage by fine.
Entails, under certain modifications, have been retained in various parts of the United States, with increased power over the property, and greater facility of alienation. The desire to preserve and perpetuate family influence and property is very prevalent with mankind, and is deeply seated in the affections.a
Moseley, 224. Cases temp. Talbot, 16.
Lord Talbot, in Chaplin v. Chaplin, 2 P.Wms. 235. Amesbury v. Brown, 1 Vesey, 477. Earl of Buckinghamshire v. Hobart, 3 Swanston, 186. • Jenkins v. Keymes, 1 Lev. 237.
* Ch. J. Crew, of the K. B., in the great case concerning the earldom of Oxford, in which that house, under the name of De Vere, was traced up through a regular course of descent to the time of William the Conqueror, observed, that "there was no man that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it." (Sir W. Jones' Rep. 101. 1 Charles I.) But the lustre of families, and the en
This propensity is attended with many beneficial effects. But if the doctrine of entails be calculated to stimulate exertion and economy, by the hope of placing the fruits of talent and industry in the possession of a long line of lineal descendants, undisturbed by their folly or extravagance, it has a tendency, on the other hand, to destroy the excitement to action in the issue in tail, and to leave an accumulated mass of property in the hands of the idle and the vicious. Dr. Smith insisted, from actual observation, that entailments were unfavourable to agricultural improvement. The practice of perpetual entails is carried to a great extent in Scotland, and that eminent philosopher observed, half a century ago, that one-third of the whole land of the country was loaded with the fetters of a strict entail; and it is understood that additions are every day making to the quantity of land in tail, and that they now extend over half, if not nearly two-thirds, of the country. Some of the most distinguished of the Scotch statesmen and lawyers have united in condemning the policy of perpetual entails, as removing a very powerful incentive to persevering industry and honest ambition. They are condemned as equally inexpedient and oppressive; and Mr. Bell sincerely hoped that some safe course might ere long be devised, for restraining the exorbitant effects of the entail law of Scotland, and for introducing some limitations, consistent with the rules of justice and public policy. Entailments are recommended in monarchical
tailments of property, are like man himself, perishable and fleeting; and the Ch. Justice, in that very case, stays for a moment the course of his argument, and moralizes on such a theme with great energy and pathos. "There must be," he observes, "an end of names and dignities, and whatsoever is terrene. Where is Mowbray? Where is Mortimer? Nay,
which is more and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality."
Smith's Wealth of Nations, vol. i. 383, 384. vol. lii. 360. Miller's Inquiry into the Present
Edin. Review, vol. xl. 359. State of the Civil Law of
England, 407. Bell's Comm. on the Laws of Scotland, vol. i. 44. In Spain,
governments, as a protection to the power and influence of the landed aristocracy; but such a policy has no application to republican establishments, where wealth does not form a permanent distinction, and under which every individual of every family has his equal rights, and is equally invited, by the genius of the institutions, to depend upon his own merit and exertions. Every family, stripped of artificial supports, is obliged, in this country, to repose upon the virtue of its descendants for the perpetuity of its fame.
The simplicity of the civil law is said by Mr. Gibbon, to have been a stranger to the long and intricate system of entails; and yet the Roman trust settlements, or fidei commissa, were analogous to estates tail. When an estate was left to an heir in trust, to leave it at his death to his eldest son, and so on by way of substitution, the person substituted corresponded in a degree to the English issue in tail. One of the novels of Justinian seems to have assumed that these entailed settlements could not be carried beyond the limit "of *21 four generations. This is the construction given to that law by some of the modern civilians, though Domat admits that the novel is expressed in a dark, am
private entails prevailed for ages, and one of the Spanish lawyers contends that they have been prejudicial to the agriculture and population of the nation. But since the Spanish revolution, the future creation of them has been prohibited. Institutes of the Civil Law of Spain, by Asso & Manuel, b. 2, tit. 5, ch. 1, n. 6. And in the Austrian States, north of the Danube, as Bohemia, Moravia, and Gallicia, according to a late and very intelligent traveller, the feudal tenure of land prevails with its vigorous feudal restrictions, and in Hungary it exists in the greatest severity; while in the Austrian States, south of that river, feudality has mainly abated, and equality of descent and freedom of alienation have succeeded. Turnbull's Austria, vol. 2, ch. 3. Novel, 159, c. 2.
Browne's View of the Civil Law, vol. i. 189. Wood's Inst. of the Civil Law, 189. Domat's Civil Law, b. 5, tit. 3. Proeme. But Pothier, very loosely, and without any reference to authority, says, that the Roman law allowed entails to an indefinite extent. Traité des Substitutions, sec. 7, art. 4.
biguous manner, and he intimates that it was introduced by Tribonian from corrupt views. It is also termed, by Mr. Gibbon, a partial, perplexed, declamatory law, which, by an abuse of the novel, stretched the fidei commissa to the fourth degree. In France, entails were not permitted formerly to extend beyond the period of three lives; but in process of time, they gained ground, and trust settlements, says the ordinance of 1747, were extended not only to many persons successively, but to a long series of generations. That new species of succession or entailment was founded on private will, which had usurped the place of law, and established a new kind of jurisprudence. It led to numerous and subtle questions, which perplexed the tribunals, and the circulation of property was embarrassed. Chancellor D'Aguesseau prepared the ordinance of 1747, which was drawn with great wisdon, after consultation with the principal magistrates of the provincial parliaments, and the superior counsels of the realm, and receiving exact reports of the state of the local jurisprudence on the subject. It limited the entail to two degrees, counted per capita, between the maker of the entail and the heir; and, therefore, if the testator made A. his devisee for life, and after the death of A. to B., and after his death to C., and after his death to D., &c., and the estate should descend from A. to B., and from B. to C., he would hold it absolutely, and the remainder over to D.
would be void. But the Code Napoleon anni*22 hilated the *mitigated entailments allowed by the ordinance of 1747, and declared all substitutions or entails to be null and void, even in respect to the first donee.
■ Hist. vol. viii. 80.
b Pothier, Traité des Substitutions, sec. 7, art. 4. Toullier, tom. v. 27. 29. Repertoire de Jurisprudence, tit. Substitution Fidei Commissaire, sec. 9, art. 2.
c Code Napoleon, art. 896, but see Infra, p. 268. So by the Civil Code of Louisiana, art. 1507, substitutions and fidei commissa are prohibited, and