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1. Simpson 2.Pdf The Statute De Donis and the Invention of the Doctrine of Estates University Press Scholarship Online Oxford Scholarship Online A History of the Land Law A. W. B. Simpson Print publication date: 1986 Print ISBN-13: 9780198255376 Published to Oxford Scholarship Online: March 2012 DOI: 10.1093/acprof:oso/9780198255376.001.0001 The Statute De Donis and the Invention of the Doctrine of Estates A. W. B. Simpson DOI:10.1093/acprof:oso/9780198255376.003.0004 Abstract and Keywords This chapter indicates that the statute De Donis had a great deal to do with the formation of the characteristic doctrine of the land law and this is indeed so. But an account of the narrower effect of the statute must precede any discussion of its wider implications. It has been noted how maritagia and other forms of conditional fee could be alienated once the condition was satisfied, and how this right of alienation clearly defeated the intention of donors of such gifts. This state of the law provoked strong protest in 1258, in the Petition of the Barons. Keywords: statute De Donis, doctrine of estates, land law, conditional fee, alienation, maritagia THE title of this chapter indicates that the statute De Donis had a great deal to do with the formation of the characteristic doctrine of the land law and this is indeed so. But an account of the narrower effect of the statute must precede any discussion of its wider Page 1 of 18 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 06 December 2014 The Statute De Donis and the Invention of the Doctrine of Estates implications. We have seen how maritagia and other forms of conditional fee could be alienated once the condition was satisfied, and how this right of alienation clearly defeated the intention of donors of such gifts. This state of the law provoked strong protest in 1258, in the Petition of the Barons.1 The precise form of the barons' complaint is interesting. They say that when land is given to a husband and wife jointly in marriage, with a limitation to their issue, wives who survive their husbands alienate the land during their widowhood and destroy the reversion, and that no writ exists to enable the grantor to recover the land from the alienee. Furthermore, such alienations take place although issue has failed. It is clearly the alienability of maritagia which is the cause of complaint, and the statute De Donis Conditionalibus in 12852 is directed solely at the prevention of alienation by holders of conditional fees, though it is not confined to the particular case which the barons mention. The preamble instances three cases: A gift to a man and woman jointly and to the heirs of their bodies begotten. A gift ‘in frank marriage’, which expression by then has come to be interpreted as implying a similar limitation to the heirs of the body of the donees. A gift to one and the heirs of his body. (p.82) It states that in all three cases a reversion to the donor or his heir exists, whether expressed (as in the first and last cases) or implied (as in the second case), and goes on to say that it is obviously wrong that once issue has been born the donee can alienate, and thus disinherit the heir and destroy the reversion. The statute then lays down the general principle that in future the will of the donor, as expressed in the forma doni, is to prevail. To protect the reversioner the writ of formedon in reverter already exists,3 but the implication is that in future this is to lie against an alienee of the donee, a substantial change in the law. To the issue the statute gives what it calls a new remedy, the writ of formedon in descender, which will enable the issue to recover the land if it has been alienated. In fact, a writ of formedon in descender did exist before De Donis,4 but its function was limited, and it did not restrain alienation. It existed to cope with a different problem. If a tenant of a conditional fee died seised, but his heir was unable to enter on the land because an abator had got on to it first, the remedy we might expect him to use would be mort dʼancestor. But only the heir general could bring mort dʼancestor, and sometimes the heir entitled to a conditional fee would not be the same person as the heir general.5 To meet this rare situation formedon in descender was devised, so that the special heir under the form of the gift could claim. Before De Donis, however, this writ did not lie against an alienee; the previous tenant must have died seised. So the legislation radically altered the function of the action. The statute says nothing whatever about remainders or the writ of formedon in remainder which, as we have seen, existed before De Donis but may not have been available of course. The Interpretation of De Donis So far the statute is quite clear, but unfortunately it suffered from bad draftsmanship, and the word ‘issue’ is used in such (p.83) a way as to make it possible to argue that only issue in the first generation is intended, and not issue ad infinitum. If this was the Page 2 of 18 PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2014. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy). Subscriber: University of Cambridge; date: 06 December 2014 The Statute De Donis and the Invention of the Doctrine of Estates intention then only the first donee was restrained from alienation, but a general survey of the statute makes it probable that this was a mistake on the part of Chief Justice Hengham, to whom the draftsmanship is attributed.6 For a long time, however, there was doubt as to the interpretation of De Donis on this point,7 and the process by which the entail of limitless duration was built up is one of the curiosities of the land law.8 In 1311 Bereford C.J. and his colleagues were faced with the difficulty, and Herle argued that the statute only forbade the first donee from alienating; formedon in descender, he said, was a purely statutory remedy and was only given to the heir of the first generation—thus subsequent heirs must rely on mort dʼancestor or nothing. Herle's argument was designed to show that subsequent heirs could not sue unless their ancestor had died seised, and thus could not prevent alienation. Bereford C.J. would have none of this. He denies, correctly, that formedon in descender originated in De Donis, and says that mort dʼancestor is never an appropriate remedy for an heir in tail, citing a case to prove this. Herle tries to distinguish the case cited upon the ground that it concerns a gift ‘in frank marriage’, but Bereford C J. replies that the law is the same in cases concerning gifts ‘in frank marriage’ as in cases expressly limiting an entail; in both the intention is that the inalienability is to endure for three generations, and it was only by error that the statute failed to say so.9 The implications behind this enigmatic discussion seem to be as follows. It is already accepted that a gift of land ‘in frank marriage’ is inalienable for three generations—that is to say, as long as it retains its peculiar tenurial quality. This result is attributed to the fact that the heir to lands so given must use formedon in descender, and not (p.84) mort dʼancestor, a rule of common law origin.10 The statute De Donis makes formedon in descender available against alienees, and so any heir who can bring formedon in descender may, as a result, recover land which his ancestor has alienated. This ingenious reasoning is carried farther in a case in 1344.11 There the theory is advanced that the entail only lasts until the first heir enters, and Stonore J. accepts this. The majority view is, however, that the entail will retain its peculiar characteristic of descending to a limited class of heirs indefinitely; this implies that the heirs ad infinitum must use formedon in descender, which lies against alienees, and not mort dʼancestor, and in consequence that the inalienability will last for ever, In 1346 the indefinite continuance of the entail seems to be accepted,12 and in 141013 it is held that this indefinitely prolonged prohibition of alienation and capacity of descending to a limited class of heirs applies to a gift ‘in frank marriage’ which has lasted longer than three generations. This in effect means that a grant ‘in frank marriage’ confers an entail14 upon the grantee with tenurial peculiarities which absolve the donee from services for three generations, and since by the fifteenth century the services are no longer very important the practice of making gifts in this form dies out. Apart from a solitary entry on the plea rolls in 127915 it is not until about 1291–2, that we first meet in Britton with a mention of formedon in remainder,16 and the writ is referred to in a year book case in 1305.17 As early as 1310 we meet the beginnings of a dispute which has lasted ever since when Toudeby argues, as (p.85) Maitland was to argue some four centuries later, that the writ existed at common law before the statute.18 In the early fourteenth century it was used to protect remainders limited after a life estate, as well as remainders after a fee tail.
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