appears very clearly from the fact that when the future interest came after 1430 to be held valid at all, it was upon the condition imposed by the law and partially defeating the intention of the settlor, that the future interest take effect in possession by way of succession, or fail entirely-that is to say, the condition upon which such future interests were limited must happen before, or at the time of, the termination of the particular estate in order that the future interest might take effect in possession at all.

After terms for years. The future interest which might take effect by way of succession or interruption after a term for years was originally void for exactly the same reason that a similar sort of future interest after a freehold was held void. In both cases the fee was not wholly disposed of at once. If there was no resulting freehold in the settlor before the event happened upon which the future interest was to take effect, then there was a gap in the seisin. Assuming from the modern point of view that there was such a resulting freehold, then the future interest took effect by way of interruption of a freehold in possession. In either case there was a fatal objection to the validity of the future interest from the feudal point of view. When the future interest was limited after a freehold the feudal objections were entirely obviated by the rule which required the future interest to take effect by way of succession or fail entirely. After this requirement there could be no gap in the seisin and the interruption of a possible reversion was not the interruption of a freehold in possession. The objection that the fee was not entirely disposed of was, so far as it meant anything other than that there might possibly occur a gap in the seisin, ignored. A rule that the event upon which a future interest after a term is limited must happen before or at the time of the termination of the term, or the future interest would fail entirely, would have overcome the objection that a reversionary interest in possession would be cut short. It would not, however, dispose of the objection that there was a gap in the seisin. A term was a chattel interest, and the gap in the seisin, if it occurred at all, must therefore have begun at once where the preceding interest was a term, while when it was a freehold the gap occurred, if at all, only after the termination of a particular estate of freehold.

B.

FUTURE INTERESTS BY WAY OF USE OR DEVISE AFTER THE STATUTES OF USES AND WILLS.

I. BY WAY OF INTERRUPTION. In conveyances operating under the Statutes of Uses and Wills it became possible to create valid future

interests in strangers which took effect, if at all, only by way of interruption. In short, by conveyances to uses or by devise, springing and shifting interests could be created. At first, on some curious analogy to feudal future interests which had to take effect by way of succession or fail entirely, these valid future interests by way of interruption were regarded as destructible'. This was put an end to, however, in 1620 by Pells v. Brown 2.

II. BY WAY OF SUCCESSION. Future interests taking effect, if at all, only by way of succession created in conveyances by way of use or devise were of course valid as at common law. They were given their feudal names with a few exceptions. Thus, instead of a plain reversion, there was a resulting use of reversion in cases of conveyances to uses, or a resulting use of reversion on partial use. Whatever future interests, however, were unobjectionable under the feudal system, because they were certain to take effect, if at all, by way of succession, were equally valid and unobjectionable when created by conveyances operating under the Statutes of Uses and Wills.

III. BY WAY OF SUCCESSION OR INTERRUPTION. The principal difficulty in regard to the validity of future interests after the Statutes of Uses and Wills arose in connexion with the contingent future interests which might take effect by way of succession or interruption, according as the event happened before, or at the time of, or after the termination of the preceding interest. When such interests were created by way of use or devise, the question arose, whether the feudal rules applicable to similar feudal interests should prevail. The moment it was clear that future interests by way of interruption were valid when created by conveyances to uses or by devise, it should have followed that contingent future interests, whether after a particular estate of freehold or a term for years, when created in that manner were valid and indestructible.

The law, however, did not develop in this way. Before it became settled that future interests by way of use or devise were indestructible, it had been held that the feudal rule which required a contingent future interest after a particular estate of freehold, which possibly could take effect by way of succession, to do so or fail entirely, applied to future interests by way of use or devise. Not, however, until almost a century after Pells v. Brown (decided in 1620) does the question seem to have arisen as to the validity of the future interest by way of use or devise after a term for years limited upon an event which might happen before, or at the time of, or after the termination of the preceding interest. Then the results 'Gray's Rule against Perpetuities, 1st and 2nd ed., ss. 142, 143.

2 Cro. Jac. 590.

reached were not in harmony. In Adams v. Savage (1703)1, it was held by Lord Holt and Justice Powell that the contingent future use after a term was void following the rule of the common law 2. In Gore v. Gore (1722), the Court of the King's Bench, headed at that time by Lord Hardwick, certified to the Chancery an opposite opinion where the interests were limited by way of devise. It is not believed that any sound distinction can be predicated upon the fact that the limitations in the former case were by way of use and in the latter by way of devise. Which view, then, is correct?

The writers in dealing with Adams v. Savage have constantly assumed that the only question was whether the contingent interest after the term was like a springing use or like a contingent remainder by way of use. Obviously it was precisely a springing usethat is, it was bound to take effect, if at all, by way of interruption, cutting short a resulting use of reversion. Adams v. Savage has, therefore, been universally condemned 3.

The difficulty with this criticism is that the premise upon which it rests and which is assumed was not at all settled when Adams v. Savage was decided. In the latter part of the seventeenth century the vital question was, it is believed, not whether the future interest after the term was like a springing use or a contingent remainder by way of use. It went back of that. It was rather the larger question in the development of the law: Shall the common law rules restricting the validity of future interests prevail as a general principle, or shall the full logical effect of allowing springing and shifting interests by way of use and devise be extended so as practically to abrogate the common law rules? The contest up to this time between these two lines of development had resulted on the one hand in the retention of the common law doctrine regarding the validity of contingent remainders-viz. that they were destructible-and on the other in the establishing of the principle that springing and shifting uses and devises were valid and indestructible. This latter step had not, however, been at once achieved. It is true that springing and shifting uses and devises were allowed as valid very shortly after the Statutes of Uses and Wills. But as if upon second thought to repudiate that result, such future interests were held to be destructible 5, which was to give them but an impoverished kind of validity. It was not till

1 2 Ld. Raym. 854; 2 Salk. 679.

2 See also in accord: Goodright v. Cornish, 1 Salk. 226; Fearne, C. R. 282.

3 Gray's Rule against Perpetuities, 1st and 2nd ed., ss. 59, 60; Challis, A Point in the Law of Executory Limitations, L. Q. R. i. 412; Sugden on Powers (8th ed.), pp. 35 et seq.

Gray's Rule against Perpetuities, 1st and 2nd ed, ss. 136-8.

Ibid. ss. 142, 143.

16201 that shifting interests by way of devise were held indestructible, and this was certainly regarded as the triumph of a great innovation 2. The writer does not know precisely when, but it may be assumed that some time later, and perhaps before Adams v. Savage 3, it had become accepted that springing uses and devises were fully valid that is, indestructible. It is perfectly clear, however, that up to the very time Adams v. Savage was decided these results were regarded by the common law judges as indefensible innovations. They were still regarded as the triumph of new ideas over the principles of the common law. In Scatterwood v. Edge (1699)*, Treby C. J. is reported to have said: 'These executory devises had not been long countenanced when the judges repented them; and if it were to be done again it would never prevail'; and Powell J. in the same case declared that the notion that an executory devise was not barred by a recovery 'went down with the judges like chopped hay.'

When, therefore, Adams v. Savage came up, Holt and Powell were face to face not with the dry technical question of whether the future interest after a term was like a springing interest or not, but whether all the common law rules regarding the validity of future interests were to give way to this new principle, or whether the innovation of indestructible executory uses and devises was to be confined strictly to the case which gradually had become established. It was the old contest in a new part of the field. Lord Hardwick in 1722 was against the continuance of the common law restrictions. He doubtless looked upon the continuance of the destructibility of contingent remainders as a relic which had become established and could not be got rid of 5. Holt and Powell were as clearly on the other side. Adams v. Savage simply indicates that they were for retaining the rules of the common law and for treating the full validity of springing uses, if it existed, as an abominable innovation which never should have been permitted. This is the key to the short statement of Lord Holt that the remainder to the heirs of the body

1 Pells v. Brown, Cro. Jac. 590 (5 Gray's Cases on Property, 163).

2 Gray's Rule against Perpetuities, 2nd ed., s. 121 i.

3 Perhaps by 1664, when Snow v. Cutler, I Lev. 135, was decided the matter was still in doubt. There A., having the reversion of copyhold land after his wife's death, devised it to the heirs of his wife's body, if he or they should attain fourteen years. A. died without leaving issue by his wife. She married again and had a son who reached fourteen. She then died. The question was whether the son was entitled. The judges seem to have been in great doubt. Kelyng C. J. and Twisden J. thought the devise good. Wyndham and Morton JJ., contra' (Gray's Rule against Perpetuities, 2nd ed., s. 165).

4 12 Mod. 278, 281, 287.

5 It is worth observing that as late as 1672-8 an effort was made to overthrow the rule that contingent remainders by way of use were destructible (Weale v. Lower, Poll. 65 (1672); Southcott v. Stowell, 1 Mod. 226, 237, 2 Mod. 207 (1678)). It failed, but the effort seems not to have ceased until after Carwardine v. Carwardine, I Eden 34 (1757-8).

of the tenant for years is a contingent remainder and void.' He did not mean literally a contingent remainder but a contingent interest after a term, which according to the common law was wholly void1. The real criticism of Holt and Powell's position is that it was reactionary and that the subsequent development of the law has condemned the result as an impediment to necessary progress. But Holt and Powell were not more wrong in Adams v. Savage than was the court which decided, and subsequent courts which have continued to hold contingent remainders by way of use and devise destructible. The holding in both cases is the offspring of the same principle that the common law rules as to the creation and validity of future interests were to be retained even when the future interest is created by use or devise, except in the precise instances where it had been settled to the contrary.

Furthermore, there was the appearance of a principle upon which Holt and Powell might have said the common law rule ought to apply in the case of a contingent interest after a term.

A freehold in futuro not preceded by any interest, a contingent freehold after a term, and a future freehold after a particular estate of freehold which might take effect by way of succession or interruption, were all originally void for the same reasons and principally because of a gap in the seisin. This objection was least serious in the last case, because there was in that instance a seisin in the holder of the particular estate of freehold and a chance that the future interest would so take effect that there would actually be no gap. When it became valid, provided it did take effect by way of succession, it was still, so far as it was said to be destructible, invalid because of the gap in the seisin. When there was no preceding interest whatsoever, the gap in the seisin was the most serious, and in this case the common law never attempted to hold the gift valid. When these future interests were limited by way of use or devise it would appear that the less the common law had done for the future interest, the more was accomplished by the Statutes of Uses and Wills. The more the common law did to make the future interest valid, the less the Statutes of Uses and Wills accomplished. Thus, where a gap in the seisin existed because there was no preceding interest at all, the future interest was wholly void at common law, but valid and indestructible by way of use or devise. Where

1 'In truth, to say that in Adams v. Savage, and Rawley v. Holland, the Court thought that the disputed limitation was a contingent remainder properly so called, and not a springing use, is the same thing as to say, that at the date when those cases were decided, the existence of springing uses was not recognized by the Courts; or at least, that it was not recognized so clearly, but that the Courts might get completely confused between the idea of a springing use and the idea of a contingent remainder. And something very like this conclusion seems to have been the opinion of Sanders (1 Sand. Uses, 147, 148).' Challis on a Point in the Law of Executory Limitations, L. Q. R. i. 423.