DISCONTI NUANCE OF WIFE'S Remitter tule of uses. By this statute (a) it is enacted, that when any person shall be seised of lands, &c. to the use, confidence, or trust of any other person, &c. the person, &c. intitled to the use in fee simple, fee tail, for life since the sta- or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c. of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have the use, in such quality, manner, form, and condition as they had before in the use. It appears that this statute expressly transfers the freehold and possession to the person to whom the use or trust of the lands is limited; but it qualifies the title, and the possession of the cestuique use, in declaring that the possession and interest so transferred shall be in, and taken by him in such quality, manner, and form as he had before in the use, which implies a negative, viz. that the possession and interest so taken shall operate to no other purpose, but must be founded entirely upon the new estate No remitter acquired under the conveyance. Hence the effect when the se- of this enactment has been to exclude the doctrine cond estate of remitter in cases where a person's right under a good prior title has been discontinued, and a new defeasible estate has been limited to him in use by a subsequent conveyance (b); for if remitter were allowed, it would be a repeal of the statute, which in effect declares that the cestuique use shall take no other estate or interest than what was given to him in the use; but by the remitter he would take a possession interest and title quite different from that limited to is taken by the limitation of an use, and there is no right of entry. (a) 27 Hen. 8, c. 10. (b) See p. 79. NUANCE OF him by the use. Hobart, C. J. thus expresses him- DISCONTIself upon this subject-"It is clear, that if an in- WIFE's fant or woman covert, having right of land discon- ESTATE. tinued, wherein entry was not lawful, come to that Remitter land by way of an use raised out of that estate, the since the statute of uses. first taker of such estate shall not be remitted for the violence of the letter of the statute 27 Hen. 8 (a); and that the first taker in this case is to be understood of the first taker of every several estate, as well in remainder as in possession." In the discussion of this subject we shall consider the different parts of Lord Hobart's declaration, as the most convenient method for imparting the observations which occur upon these questions. estate. not now al His Lordship's observations do not apply to the Distinction as to remitter case of a remitter upon a right of entry, but to a when the remitter upon a right of action, both of which have party has a right of enbeen before considered. But now, by the statute of try, and 32 Henry the eighth, mentioned in the last section, when a right of action only the husband's alienation of his wife's estate, as to restore against herself and the persons claiming it after her the first death, is provided against by giving them a right of Common law entry where a right of action only was the remedy at the common law. In these cases, therefore, this statute is a virtual repeal of the statute of uses, for it seems that in all cases where the estate discontinued by the husband is of the inheritance or freehold of his wife, of which she was seised before the marriage, whether the second defeasible estate of freehold be or be not limited to her by way of use, she will be remitted to her prior estate, upon her entry after her husband's death, or on their joint entry (b), (a) Vavasor's case, 2 Leon. 222. (b) 1 Lev. 49. 2 Bulstr. 29. Hob. 254. tered, where a right of entry remains. Therefore entry being given to the wife, &c. by the 32d of Hen. 8, the common law doctrine of remitter at taches to it, notwith standing the statute of uses. DISCONTI NUANCE OF WIFE'S ESTATE. Remitter which will also remit all the remainders depending upon it, for the common law right of entry having been given in those instances by the act of the 32d of Henry the eighth, all the incidents and effects since the sta- belonging to the exercise of such a right by that law tute of uses. immediately attach to it, one of which is that of remitter. Accordingly, if the subsequent defeasible estate be taken to the husband and wife, and they enter, she will be instantly remitted (a); or if she take it in remainder, expectant upon her husband's death, she will be remitted upon entering when her right to the possession of the freehold commences. But although the effect of the wife's remitter also a remit- necessarily extends to restore and remit all remainders dependant upon her estate; yet that effect and consequence may cease, and those remainders and estates may be again turned into rights, as they were before the wife's remitter by the discontinuance of her husband. As an instance of this The remitter of the wife is ter of the estates in remainder or reversion. An instance mitter of the Suppose the husband and wife to be seised of an where the re- estate tail with remainders over, and the husband persons in re- alone to levy a fine with proclamations to the use of mainder may himself and wife in tail, with remainders over, and determine. that they are in possession under the fine, both she and her husband are remitted, as also are the old remainders; and if she survive him, there will be no cesser of this remitter; but if the husband survive her, then the remitter of the remainders ceases with her particular estate upon which they were dependant; because upon the death of the wife, the law adjudges the husband to be seised from that time of the estate taken to himself by the fine; and all the (a) Litt. sect. 673. Hob. 254. NUANCE OF other new estates created by such fine are restored DISCONTIby the ceasing of the remitter; in which new course WIFE'S the land will continue to go so long as there are issue ESTATE. inheritable under the old intail, who, notwithstand- Remitter ing their estoppel, by the fine of their father, from since the sta tute of uses. claiming the estate contrary to its uses, are, during their existence, sufficient to exclude the taking of the old remainders; for although the fine could not bar such remainders, yet it was competent to pass the old estate tail, by barring the issue of their claim, since they must deduce their title as heirs of the body of the person who levied such fine. The second fee simple having been restored, as above, it is a necessary consequence that the old remainders should be turned into rights to remainders only, for there cannot be two co-existent fee simples of the same estate, so that by the event of the husband surviving his wife, the result is the same as to the old estates as if there never had been a remitter; yet they are under the protection of the statute of But such rethe 32d of Henry the eighth, and the persons intitled mainders are protected by to them may enter after the death of the husband the 32 and the failure of his issue. It must, however, be noticed, that if in the case proposed the wife had survived her husband, her entry within five years from his death would have been necessary to have defeated the fine with proclamations, as appears from what has been stated in the last section. the able judgment given by Lord Hobart, in the case of Duncombe v. Wingfield (a), in which many points of the doctrine of remitter are discussed and elucidated, the reader is referred. (a) Hob. 254. To Hen. 8. DISCONTI NUANCE OF WIFE'S ESTATE. Remitter since the statute of uses. As to the remitted to take the under the statute of uses. It has been supposed that in all cases the wife is at liberty to elect between her right to remitter under the act of the 32d of Henry the eighth, and to take under the statute of uses; but it is presumed that the following distinctions now prevail on the subject since the passing of those statutes: an entry by huswife's liberty band and wife, after his taking the defeasible estate to elect to be to himself and wife, will remit her to her ancient under stat. right (a), and which remitter, it is conceived, she can32 Hen. 8, or not afterwards waive (b); but if they do not enter, second estate then that they are seised of the defeasible estate during the marriage under the statute of uses, such estate being liable to avoidance after the husband's death by his wife's entry under the statute of Henry the eighth; and that if she do not enter, there is no remitter (c); and it is presumed that if she enters, the law by immediate operation upon her entry (a common law right) instantly remits her to her ancient title without regard to her election (d). But as by that law the wife was at liberty to elect between her two rights, when both were voidable by her after her husband's death, and such liberty of election did not prejudice another person (e): so it seems, that since the passing of the two statutes, when she takes both rights subsequently to the marriage (to both of which she may dissent after the death of her husband, and therefore avoid) she may elect to take either of them; and according as she elects, she will either take under the statute of uses, which precludes remitter, or under the act of the 32d (a) 2 Bulstr. 29. Hob.254. (b) Co. Litt. 357. (c) 1 Lev. 49. -Co. Litt. 363 b. Cro. Car. 145. 2 Bulstr. 29. (d) See Hob. 71, (e) Supra, p. 70. |