Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1833-08-15
THELLUSON'S CASE.
To the Editor Of the alexandria Ga,eu.

Nh. SNowpEx-In addition to the obs.,.
lions made by you yesterday on TheIIuson's c,..
will state that the act Of Parliament REFEREED,
which 10 the SO and 40 Geo. 5, has not been =.
enacted by the Legislature Of Virginia, Or =. 4
aught know to the contrary, by that of A.,
other State in the Union. The law relatiu.
executory devises and trusts Of accumuaio.
which obtained in England previous to The M,
sage of that act, has been, with some lesisI,G,.
adopted By the Judiciary Of Vir,
MIA: the consequence is, that such settlement ;.
disposition as was made by Peter Theluson -,
undoubtedly be made and maintained in ,hs
State. A brief synopsis of the law on this .u
iect may serve to render this position more cIer
Tie Common Law Of England, which, in Il.
branch relating to real property. derived many 4
its provisions from the Feudal System. would M
permit an estate Of freehold to commence at 4, T.
lure peroG, because, in that case, the freehoa
youid be IN allegiance, or not vested 10 anv DE-,
.on in being, which state Of things would, for o.
yer,i technical reasons OF feudal nature, h,u
p,oduced great Inconvenience. Nor could d,
.trictness aud accuracy of that severe body Of
:. written reason" countenance the apparent g.
Iecism that when fee.simpIe had been limited
to nSn, any subsequent disposition Of il could
be made, or remainder created out Of il, By III,
original srantor. These were, and still are Ii.
doctrines of the common law, as it exists in Eny
land, In relation TO limitations by way Of DEL 4
I hey have been materially affected by sever,
Virginia statutes, which, however, it will no, Be
necessary to notice.
From the abolition Of the practice Of Subinf,u
dofion, BY the statute Of Quia Emptores pas.t
in the reign of Edward l., which permitted tb
alienation or conveyance Of lands from one u
another, Subject, Of course, however, to all d,
feudai services and restrictions due from d, /
prantor or feoffur to the lord Of whom he held
to the period when devises-which had been q, 4
stroyed BY the introduction Of the Feudal Su
TEN, because Inconsistent with its principles
came into practice-whch was about the time u
the invention Of Uses by the Ecclesiasics to elud
the statutes of Mortmain. and the subsequent pa,
sage of the Statute of Wills, SO Hen. s.; untl |
the latter period, We say, the only method d |
land in England was by the cOmmU
law means Of feoffment with livery Of sesin, &c,
or, to be more comprehensive, by deed or dd N |
pals. During all this time the technical strut
ness of the common law was imperative IN al
Of real property.
When, however, the right Of devising, or u.
power O! transferring his estate by WiH, was g.
ven 10 the owner Of lands, different rules Of COO
structon were established. The Courts fores,s
that the technical rules and forms Of the commus
law would not be observed-that the person about
to make q will would oftea be in ertrenis, With
out counsel or advice-often ignorant and lllls
probably would wish to make dlp
sition Of bis property for which the doctrines d
did not provide rule or formu'.
Hence il became maxim in the construction d
wills, that testator was usually to be consideret
mons consiiu; and the fundamental rule Of con
,truction vas declared to be the intention Of DE
estator, as evidenced by the writing. One eI
ample will suffice to show the important changes
made by the Courts a. to the law OF transferrin:
property, when the instrument Of that TRANSFER
vas will. To pass fee BY the common Law,
the word heirs was indispensable. For casesn
which the quantity, or duration Of the estate wa
not mentioned, it was necessary to establish
.ule:-in every instance, then, when transfer
was made to man simply. without mentioning
lis heirs, or heirs Of his body, &c. it was deter
matter how much in defiance Of rel,
Jon aud common sense-that the grantee should
AXE only life estate. This rule Of construc,oa
was at first adopted in the case Of wills-but The
Judges soon perceived their error, as it came ln'
10 direct conflict with the rule that the intention
was to be the guide Of construction. Here it
nay be said that BY intention the Courts meant
IN intention so far as it was consistent nth The
rules of laW. admit the correctness Of the Oh
ection; but what complain Of as an error Il.
hat they should have adopted rule which would
20 SO nearly to defeat what they had previously
declared should be fundamental rule OF con
does not common sense tell US that
IN absolute estate should pass by a conveyance
which ia its terms is unlimited? Having estao
ished the rule, their next step was to get rid o.
t. This they effected by supplying the word
,eirs with words Of equivalent meaning-as to'
nan and his assigns, &c., until. finally, de-
rise Of all the testators estate, without any words
Il limitation, was allowed to pass the fee. We
lite this as an example Of the inroads made 90
he exactness Of the common Law, where i!sruIs'
we're applied to the construction Of will.
But to return. The indulgence thus shownbl
he Courts to testators was carried to great
engths. The rules that freehold could DOT be
reated to commence in future, and that a lee
ould not be limited after fee, were dispen'ed
With In the case Of wills. rhis relaxation was
Iso extended to terms for years; and these three
lasses Of cases have since been known by the
ame Of Executory Devises. But it not benz
'ossbIe to bar an E1ecutorv Devise, or prevent
D.. x.G:n~ .a..s >..s... oo,ose.ry lest