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Collected Papers on the English Law

A Concise Treatise on Terminating the Life Estate

Book 2 Learning

Index Book 2

  • Introduction
  • Chapter 1: Property in General
  • Chapter 2: Real Property & Corporeal Hereditaments
  • Chapter 3: Incorporeal Hereditaments
  • Chapter 4: Feudal Land Tenure
  • Chapter 5: Ancient Land Tenure
  • Chapter 6: Modern Land Tenure
  • Chapter 7: Title to things Real
  • Chapter 8: Title by Decent
  • Chapter 9: Title by Purchase

  • The Study Of English Law

    Commentaries on the Laws of England (1765-1769)

    Sir William Blackstone

    INTRODUCTION, SECTION 1 On The Study of The Law

    In most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowledge in that science, which is to be the guardian of his natural rights and the rule of his civil conduct.

    [*5] Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance with their decisions has ever been deservedly considered as no small accomplishment of a gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely inferior to our own in every other consideration, have been looked upon as better nurseries of the civil, or (which is nearly the same) of their own municipal law. In the mean time it has been the peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one practical profession, though built upon the soundest foundations, and approved by the experience of ages.

    Without detracting therefore from the real merit which abounds in the imperial law, I hope I may have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had better be a stranger to the Roman than the English institutions. For I think it an undeniable position, that a competent knowledge of the laws of that society [*6] in which we live, is the proper accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part of liberal and polite education. And in this I am warranted by the example of ancient Rome; where, as Cicero inform us,1 the very boys were obliged to learn the twelve tables by heart as a carmen necessarium, or indispensable lesson, to imprint on their tender minds an early knowledge of the laws and constitution of their country.

    But as the long and universal neglect of this study, with us in England, seems in some degree to call in question the truth of this evident position, it shall therefore be the business of this introductory discourse, in the first place to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out its particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study; to which will be subjoined a few reflections on the peculiar propriety of reviving it in our own universities.

    And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land, which is governed by this system of laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end and scope of the constitution. This liberty, rightly understood consists in the power of doing whatever the laws permit;3 which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. As therefore every subject is interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those at least with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere in which they are appointed to move. But those on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. These advantages are given them, not for the benefit of themselves only, but also of the public; and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowledge in the laws. To evince this the more clearly, it may not be amiss to descend to a few particulars.

    INTRODUCTION, SECTION 2 Of the Nature of Laws in General

    Law, in its most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.

    But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior.

    Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependence consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.

    This will of his maker is called the law of nature. For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

    Considering the creator only as a being of infinite power, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian1 has reduced the whole doctrine of law.

    If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of God. Neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject,2 is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called “the law of nations:” which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which all the communities are equally subject: and therefore the civil law3 very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium. [That rule which natural reason has dictated to all men, is called the law of nations.]

    Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the principal subject of this section, municipal or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian,4 “jus civile est quod quisque sibi populus constituit” [“the civil law is that which every nation has established for its own government”]. I call it municipal law, in compliance with common speech for, though strictly that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.

    Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the Supreme power in a state commanding what is right, and prohibiting what is wrong.” Let us endeavor to explain its several properties, as they arise out of this definition.

    And, first, it is a rule; not a transient sudden order from a superior, to or concerning a particular person; but something permanent, uniform and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law; for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised; whereas our obedience to the law depends not upon our approbation, but upon the maker’s will, Counsel is only matter of persuasion, law is matter of injunction: counsel acts only upon the willing, law upon the unwilling also.

    It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will not, do this;” that of a law is, “thou shall, or shalt not, do it.” It is true there is an obligation which a compact carries with it; equal in point of conscience to that of a law, but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising anything at all. Upon these accounts law is defined to be “a rule.”

    Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to himself, and to his neighbor, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbor, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union: and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

    It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, viva voce, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto [after the fact]; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.5 All laws should be therefore made to commence in futuro [in the future], and be notified before their commencement, which is implied in the term “prescribed.” But when this rule is in the usual manner notified, or prescribed, it is then the subject’s business to be thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

    But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.” For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

    This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

    The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest roan present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families. These formed the first natural society, among themselves; which, every day extending its limits, laid the first though imperfect rudiments of civil or political society: and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But, though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates the necessity of this union, and that therefore is the solid and natural foundation, as well as the cement, of civil society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it was impossible that protection could be certainly extended to any.

    For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the supreme being; the three grand requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community: goodness, to endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well-constituted frame of government.

    How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

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    Sir William Blackstone


    But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression : for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed.

    The objects of dominion or property are things, as contradistinguished from persons : and things are by the law of. England distributed into two kinds; things real, and personal. things personal. Things real are such as are permanent, fixed, and immoveable, which cannot be carried out of their place ; as lands and tenements : things personal are goods, money, and all other moveables; which may attend the owner's person wherever he thinks proper to go.

    In treating of things real, the subject of the present work, let us consider, first, their several sorts or kinds ; secondly, the tenures by which they may be holden ; thirdly, the estates which may be had in them ; and, fourthly, the title to them, and the manner of acquiring and losing it.

    First, with regard to their several sorts or kinds, things Things real real are usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature ; being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, and though in its vulgar acceptation is only applied to houses and other buildings, yet in its original, proper, and legal sense, it [ 17 ] signifies every thing that may be holden,provided it be of a permanent nature ; whether it be of a substantial and sensible^ or of an unsubstantial ideal kind. Thus liberum tenementum, franktenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like;^ and, as lands and houses are tenements, so is an advowson a tenement ; and a franchise, an office, a right of common, a peerage, or other property of the like unsubstantial kind, are, all of them, legally speaking, tenements. But an hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression : for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus an heir-loom, or implement of furniture which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable : yet, being in- heritable, is comprised under the general word hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament.

    Hereditaments then, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect the senses ; such as may be seen and handled by the body : incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation.

    Corporeal hereditaments consist wholly of substantial permanent objects ; all which may be comprehended consist. under the general denomination of land only. For landy says Sir Edward Coke, comprehendeth in its legal signification any ground, soil, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath. It legally includeth also all castles, houses, and other buildings : for they consist, saith he, of two things ; Land ; its land, which is the foundation, and structure thereupon : SO that, if I convey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land,


    An incorporeal hereditament is a Right issuing: out of a thing Corporate (whether real or personal) or concerning, or annexed to, or exercisible within, the same.^ It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like ; but something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels.

    Incorporeal hereditaments are principally of ten sorts ; Of ten sorts, advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents


    The foregoing books having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds oi estate or interest that may be had therein; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

    A title is thus defined by Sir Edward Coke,* titulus est Dettnition of jmta causa possidendi id quod nostrum est; or, it is the * means whereby the owner of lands hath the just possession of his property.

    There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.

    The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of the actual seisin

    The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before-mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession ; and may exert it whenever he think proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts : an apparent right of possession, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents.

    Commentaries on the law of agency

    as a branch of commercial and maritime jurisprudence, with occasional illustrations from the civil and foreign law

    Object of the author in his Commentaries.

    It is a general maxim, that whatever a man sui Juris may do of himself, he may do by another. And cor relatively what is done by another is to be deemed done by the party himself.

    Agent and agency defined.

    Agency in the Roman law.

    let us proceed to the consideration of the law of agency, a subject intimately connected with all these branches, and in no small degree necessary to a full and exact exposition of the doctrines applicable to them. Prom this we shall be led, by a very easy and natural transition, to the law of partnership. And these being discussed, the path to others will lie open before us, unobstructed by any collateral inquiries, which may embarrass our progress

    It is obvious to remark, that a large proportion of the business of human life must necessarily be carried on by persons, not acting in their own right, o^r from their own intrinsic authority, over the subject-matter, but acting under an authority derived from others, who, by the principles of natural and civil law, are exclusively invested with the full and complete original dominion, authority, and right over such subject-matter. By the general theory of our municipal jurisprudence, and probably by that of all civilized nations, professing to be governed by a regular system of laws, every person is invested with a general authority to dispose of his own property, to enter into contracts and engagements, and to perform acts, whicli respect his personal rights, interests, duties, and obligations, except in cases where some positive or known disability is imposed upon him by the laws of the country,in which he resides, and to which he owes allegiance.

    Every person not under such a disability, is treated as being sui juris, and capable, not only of acting personally in all such matters by his own proper act, but of accomplishing the same object through the instrumentality of others, to whom he may choose to delegate, either generally, or specially, his own authority for such a purpose.

    In general, it may be said, that every person sui juris, is capable of becoming both a principal and an agent, unless there exists some disability or prohibition by the municipal law, which is to regulate his rights and duties.

    If, therefore, an infant should make a letter of attorney to another, to take livery of lands on a feoffment to him, it will be good ; for it will be intended to be for his benefit. But if an infant should make a feoffment, and execute a letter of attorney to another, to make livery in his name to the feoffee, it will be void [or' at least voidable] ; for such feoffment and livery will be intended to be to his prejudice.

    And this is upon the same enlarged principle, which governs in the civil law ; that the act is not to be treated as void between the agent and his substitute, unless, indeed, the principal should interfere and prohibit the substitute from acting.

    A Readable Edition of Coke Upon Littleton

    A lawful or pure inheritance] Here it is well put in the disjunctive lawful or pure, for every fee-simple is not lawful. A disseisor, abator,intruder, usurper, &c. Have a fee-simple, has it either by purchase or descent. If by wrong, then either by disseisin, intrusion,abatement,usurpation, &c.

    But since Littleton wrote, all uses are transferred by act of parliament into possession, so that the case which littleton here puts is thereby altered. Yet it is necessary to be known what the common law was before the making of the statute, [otherwise the application of the statute could not be discovered]

    nota. A use is a trust or confidence reposed in some other, which is not out of the land, but as a thing collateral thereto and annexed in privity to the estate of the land, and to the person touching the land, scilicet, that Cestui Que us shall take the profit, and that the ter-tenant shall make an estate according to his direction. So that cestui que use had neither jus un re nor jus ad rem, but only only a confidence and trust, for which he had no remedy by common law, but for breach of trust his only remedy was by subpena in chancery.

    A remitter is an operation in law upon the meeting of an ancient right remediable, and a later estate in one person without any folly in him, in this case the ancient right is restored, and the new defeasible estate ceased and vanished. And the reason hereof is, for that the law prefers a sure and constant right, though it be little, before a great estate by wrong which is defeasible: moreover the law ( which abhors suits of vexation) ever voids circuity of action, for the rule is circuitus est evitandus, and it is observable that the remitter is of the later title to that which is more ancient, and when two rights descend there can be no remitter if one cannot be remitted to the other, and regularly to every remitter there are two incidents, viz, an ancient right and a defeasible title united together [in the same person in the same right]

    Remitter operates on seisin in law and is preferred to infancy and coverture

    Is quite taken away and defeated ] Here two things are implied and to be understood: 1st ,that this remitter is wrought by descent of the freehold simply without an entry of the issue, and 2dly, that the law favors remitter (being a restorer to right), that is the discontinuee be an infant or a feme covert, the issue shall be remitted without respect to the privilege of the infancy or coverture; and therefore our author says, the title and interest of the discontinuance is quite taken away and defeated.

    No remitter if one estate be at common law and other under stat of use.

    The reason is no folly can be attributed to the infant in accepting the feoffment at the time it was made. Hence therefore, in this case the law respects the time of the foeffment, and not the time of the death: and albeit the infant might have waived the estate at his full age, yet [seeing that would be to his loss and prejudice, he shall have the benefit of the feoffment till his ancestor's death,when] the right of the estate tail descending on him either within age, or of full age, shall work a remitter[to his estate in tail]. But since littleton wrote, there is a great alteration in remitters by the statute of uses H.8.c.10; for if a tenant in tail now make a feoffment in fee to the us of his son (within age) and his heirs, and dies, and the right of the estate tail descends to the son within age, yet he in not remitted, because the statute executes the possession in such plight, manner, and form, as the use was limited; [ whereby the issue is in, not of the estate discontinued, but of a new use under the statute]. But if the issue in tail in this case waives the possession, and bring a formedon in the descender, and recover against the feoffees, he shall thereby be remitted to the estate tail; otherwise the lands may be so incumbered that the issue in tail would be at great inconvenience; but if no formedon be brought, and that issues dies, his issue shall be remitted; because an estate in fee-simple at common law descends upon him.

    Also, a principal cause why such her shall be remitted, is because there is not any person against who he may sue his writ of formedon, for against himself he cannot sue, and none other is tenant of freehold; and for this cause the law adjudges him in his remitter,scilicet, in such plight as if he had lawful recovered that land against another.


    But if one be remitted to a former title or recover upon an ancient right, or redeem a mortgage, or being a disseisor obtain the release of the disseisee, such person may presently sell, grant, or contract, and need not tarry a year. And without question, any person having a just and lawful estate may obtain and pretended right by release or otherwise; for that cannot be to the prejudice of any: so a disseisor who has a wrongful estate may obtain a release from the disseisee. In like manner a remainder-man [who is necessarily out of possession] having a lawful and just title, not only because the particular estate and remainder are all one;[the possession of the tenants for life being that of the remainder-man]; but because also it is a means of extinguishing the seeds of trouble and suits, and cannot prejudice any, but he in remainder cannot take a promise or covenant, that when the disseisee has entered upon the land, or recovered the same, that then he shall convey the land to the remainder-man, thereby to avoid the particular estate, for that is neither lawful, being against the express purview and body of the act, and not reasonable, because it is the prejudice of a third.

    What is a Cestui Que Trust

    O'Dell v. Hastie 1968 513 SK QB

    “A trustee, in the proper sense of the term, is one who holds the legal title to property for the benefit of another, known as the Cestui Que trust. All that is necessary to establish the relation of trustee and Cestui Que trust is to prove that the legal title was in the former and the equitable title in the latter. * * * Being proved, no matter how, the relation of trustee and cestui que trust is thereby established.”

    O'Dell v. Hastie 1968 513 SK QB

    A treatise on the law of trusts and trustees


    The,income shall not be alienable by anticipation, nor subject to be taken for debts until paid over to the cestui. (a) It is not possible, however, for a man to create a trust to pay the income to himself in life, with a provision against alienation by anticipation, so as to prevent his creditors from coming at the income by a bill in equity. (a.) A cestui having a vested equitable interest though contingent may convey it subject to the contingency. Upon application of all the cestuis

    § 828. Trust property or property substituted for it may be recovered from the trustee and all persons having notice of the trust.

    If the trustees convey the estate by a breach of the trust, the cestui que trust " may follow the estate into the hands of a volunteer, whether he had notice of the trust or not ; and into the hands of one who takes by descent from any other than a bona fide purchaser without notice; and into the hands of a purchaser for value, if he has notice of the trust. ' Equity will follow trust funds into the hands of any one with notice.

    Even the statute of limitations does not apply to a purchaser taking the property with full notice of the trust, and therefore by fraud. ^ The purchaser under such circumstances becomes a trustee, and liable in the same manner as the person from whom he purchased ; for, knowing another's rights to the property, he throws away his money.

    Any collusion between the trustee and purchaser will render the sale voidable. Even trover may be maintained against a purchaser in breach of the trust with full knowledge of the trust. (a) And the rule applies not only to direct or express trusts, but also to all constructive trusts,' equitable incumbrances, and liens for resulting trusts and for the purchase-money.

    But the trust following property purchased with trust funds does not arise absolutely; it is optional with the cestui to claim the property as subject to the trust, or to repudiate the trust as to the property, and rely on a personal claim against the trustee, and when he becomes aware of his right to elect, he must exercise it within a reasonable time

    Gellen v. Public Guardian and Trustee of British Columbia et al, 2005 BCSC 1615

    The British Columbia Court of Appeal’s decision in Buschau v. Rogers Communications Inc. (2004), 2004 BCCA 80 (CanLII), 24 B.C.L.R. (4th) 85 (B.C.C.A.) made it clear that this court has no jurisdiction to make an order under the s. 1 of the Act on behalf of any adult person with even a remote interest in the subject matter of a trust.  Newbury J.A. speaking for the Court stated at para. 99:

    I reiterate my conclusion that on a true construction of the Act, the court does not have the jurisdiction to agree or consent to the extinguishment of the Premier Trust on behalf of any of the designated beneficiaries who are sui juris. The prime pre-condition for the operation of the rule in Saunders v. Vautier is that all persons entitled to all rights of beneficial ownership, actual and potential, agree. The Act does not remove that requirement. Looked at another way, the Act does not take away the right of every beneficiary who is sui juris to withhold his or her consent if he or she is so minded, and thus insist on the continuation of the trust.

    2004 BCCA 80

    McLeod Lake Indian Band Trust Agreement (Re), 2010 BCSC 1158

    [8]               At common law, the beneficiaries of a trust may vary the terms of the trust if they are sui juris (having full capacity) and are the only persons entitled to the trust property: Saunders v. Vautier (1841), Cr. & P. 240, 41 E.R. 482. However, that is not permitted where the beneficiaries include unborn persons, minors or adults lacking capacity.

    [37]   I conclude that I ought not to approve the proposed amendment. It is not for the benefit of non sui juris beneficiaries during the life of the Trust. I am unable to say that a prudent adult motivated by intelligent self-interest and sustained consideration of the expectancies and risks of the proposal, would be likely to accept it.

    2010 BCSC 1158

    McLeod Lake Indian Band Trust Agreement (Re), 2010 BCSC 1158

    The sovereign chosen by society holds the land in trust for the people, as a fidei commissum.

    fidei commissum is also known as cestuique trust as the “beneficiary”.

    Blacks law 9th edition : fideicommissum: from brevity, the fideicommissum will here be called “the trust”, the person upon whom it was imposed (fiduciarius) 'the trustee', and the person in whose favor it was imposed (fideicommissarius) the “beneficiary”.

    Fideicommissarius: See Cestue qui Trust.

    Cestue qui Trust: One who possesses equitable rights in property.

    Cestque vie: The person whose life measures the duration of trust,gift,estate, or insurance contract.

    1881 SCC 6, 5 SCR 538 -Mercer v. Attorney General for Ontario

    (701-2)…It was admitted by the learned counsel who represented the provinces in the argument before us, that this was true with respect to all matters of legislation, but it was contented that when the Act (Const. 1867) deals with “property” the rule was inverted and that the provinces take “all property” not by the Act in precise terms given to the Dominion.

    The sole foundation for this contention appears to me to be based upon an assumption which in my judgment is altogether ERRONEOUS, namely, that the BNA Act, transfers as it were the legal estate in the Crown property from the Crown and vests it in the Dominion and the provinces respectively as corporations capable of holding property, real and personal, to them, their successors and assigns for ever, BUT THE ACT CONTEMPLATES NO SUCH THING;

    1881 CanLII 6 (SCC)

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