fidence can be reposed in a person unknown and uncertain.1

And therefore, if I make a feoffment to the use of I. S. for life, and then to the use of the right heirs of I. D., the remainder is not in abeyance, but the reversion is in the feoffor quousque. So that upon the matter all persons uncertain in use are like conditions or limitations precedent.2

Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D., this is not executed in abeyance, and therefore not void.

Like law, if I make a feoffment to the use of my wife that shall be, or to such persons as I shall nominate; though I limit no particular estate at all, yet the use is good, and shall in the interim return to the feoffor.

Contrary law, if I once limit the whole fee-simple of the use out of me, and part thereof to a person uncertain, it shall never return to the feoffor by way of fraction of the use; but look how it should have gone unto the feoffor if I begin with a contingent use, so it shall go to the next [in] remainder if I interlace a contingent use; both estates alike subject to the contingent use when it falleth.

As when I make a feoffment in fee to the use of my wife for life, the remainder to my first begotten son, (I having no son at that time,) the remainder to my brother and his heirs: if my wife die before I have any

1 The reason seems irrelevant; but I have no hint for improving it. It seems rather to belong to the ante-penultimate paragraph of p. 342.

2 I am not sure that I understand these last two words; and the whole sentence is rather strange. All I suppose to be meant is that such uses come into esse by devesting a vested estate, as does a condition. Perhaps "or" should be read "on."

son, the use shall not be in me, but in my brother; and yet, if I marry again and have a son, it shall divest from my brother, and be in my son; which is the skipping they talk so much of.1

So if I limit an use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former. As, if I make a feoffment to the use of my wife that shall be and my first begotten son for their lives, and I marry, my wife taketh the whole use and if I afterwards have a son, he taketh jointly with my wife.

But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses. As, if I infeoff A. to the use of B. for life, the remainder to C. for life, the remainder to the right heirs of B.; this is a good remainder executed.

So if I infeoff A. to the use of his right heirs, A. is in of the fee-simple, not by the statute but by the common law.

Now are we to examine a special point of disability of persons to take by the statute: and that upon the words of the statute," where divers persons are seised to the use of other persons; so that by the letter of the statute no use is contained but where the feoffor is one, and cestui que use is another.

Therefore it is to be seen in what cases the same person shall be both seised to the use and cestui que use, and yet in by the statute; and in what cases they shall be diverse persons, and yet in by the common

1 See observations on this passage in Note A. at the end.
2 Qu.: in. Or perhaps the error is in the word "contained."

law. Wherein I observe unto you three things: First, that the letter is full in the point: secondly, that it is strongly urged by the clause of joint estates following: thirdly, that the whole scope of the statute was to remit the common law, and never to intermeddle where the common law executed an estate. Therefore the statute ought to be expounded that, where the party seised to the use and the cestui que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use to take effect by the common law.

As, if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, then to the use of I. D. and his heirs; I. S. is in by the common law, and not by the statute. Like law it is, if I give land to I. S. and his heirs, to the use of himself for life, or for years, and then to the use of I. D. or his heirs ; I. S. is in of an estate for life, or for years, by way of abridgment of estate, in course of possession, and I. D. in of the fee-simple by the statute.

So if I bargain and sell my land after seven years; the inheritance of the use only passeth, and there remains in me an estate for years by a kind of subtraction of the inheritance or recouper1 of my estate, but merely at the common law.

But if I infeoff I. S. to the use of himself in tail and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and then to the use of my wife in fee; in both these cases the estate tail is executed by the statute: because an estate tail cannot be recouped out of a fee-simple, being a new estate and not like a particular estate for life or years,

1 So MSS. The Editions have "occupation," and below "re-occupy."

which are but portions of the absolute fee. And therefore if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail to me, nor vesteth any present fee in the bargainee, but is an use expectant.

So if I infeoff I. S. to the use of I. D. for life and then to the use of himself and his heirs, he is in of the fee-simple merely in course of possession at common law, and as of a reversion, and not of a remainder.

Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself for life, the remainder to the use of I. N. in fee: now the law will not admit fraction of estates; but I. S. is in with the rest by the statute.

So if I infeoff I. S. to the use of himself and a stranger; they shall be both in by the statute, because they could not take jointly, taking by several titles.

Like law, if I infeoff a bishop and his heirs to the use of himself and his successors, he is in by the statute in right of his see.

And as I cannot raise a present use to one out of his own seisin; so if I limit a contingent or future use to one being at the time of limitation not seised, but after [he] becometh seised, at the time of the execution of the contingent use it is the same reason and the same law, and upon the same difference which I have put before.

As, if I covenant with my son that after his marriage I will stand seised of land to the use of himself and his heirs, and before marriage I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute. Like law of a bargain and sale. But if I had let to him for life.

only, then he should have been in for life only by the

fee-simple by the statute.

of this, that it is not a matter

common law, and of the Now let me advise you of subtlety or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the statute in course of use; but it is material for the deciding of many cases and questions; as for warranties, actions, conditions, waivers, suspensions, and divers other purposes.

For example; a man's farmer committeth waste; after, he in reversion covenanteth to stand seised to the use of his wife for life, and after to the use of himself and his heirs; his wife dies: if he be in of his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it.

So, if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of myself for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; if by the common law, it is doubtful.

So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee. I. S. dieth. If I be in by the common law, I cannot waive my estate, having agreed to the feoffment; but if I be in by the statute, yet I am not remitted, because I am come in by my own act; but I may waive my use, and bring an action presently: for my right is saved unto me by one of the savings in the statute.

Now on the other side it is to be seen, where there is a seisin to the use of another person, and yet it is out of the statute: which is in special cases upon this ground; wheresoever cestui que use had remedy for the