Cestui que
Both cestui ques are rooted in medieval law, a legal device for avoiding feudal services (most forms of servitude) due to an overlord, by granting the land for the use of another, one who owed none of these to the lord.
The device was often used by people who might be absent from the kingdom for an extended time (as on a Crusade, or a business venture), who held a tenancy in the land and in return owed feudal incidents (services) to the landlord.
Any such "in trust" legal status was partly to circumvent the Statute of Mortmain, which sought to end the relatively common practice of leaving real property (land, milling rights, markets, fisheries) to the Church (meaning any of its branches), on the tenant's death, so as to avoid dues (inquisitions post mortem) which could, unpaid, lead to reversion/repossession of the tenancy to the landlord.
Second, as the Church (a nonnatural person recognized by the common law) never dies, the land never leaves its "dead hand".
It is the opinion of William Holdsworth[3] quoting such scholars as Gilbert, Sanders, Blackstone, Spence and Digby, that cestui que in English law had a Roman origin.
Frankish formulas from the Merovingian period describe property given to a church ad opus sancti illius ("for the use of its saint").
The Domesday Book refers to geld or money, sac and soc held in ad opus regis ("for the use of the king"), or in reginae ("of the queen") or vicecomitis ("of the viscount").
The laws of William I of England speak of the sheriff holding money al os le rei ("for the use of the king").
The cestui que use allowed them to leave a trusted friend or relative with the sort of powers, discretions and they hoped, the duties.
Derek Roebuck[17] has given the following typical fact patterns which were often found in medieval cestui que use: Example 1: Albert is the owner of a landholding called Blackacre.
While the use was intact, the occupant of the land could take advantage of the cestui que use to avoid the feudal payments and duties (incidents).
Incidents such as wardship, marriage penalties and other gifts, taxes, fines, fees, and knight service were onerous.
A change in the laws made feoffees the absolute owners of the property of which they had been enfeoffed, and they became subject to all the liabilities of ownership.
Henry VIII sought to end all cestui que uses and regain the incidents (fees and payments) that had been deprived him.
Many of these were subsequently sold, converted to private dwellings, given to loyal supporters of the English Reformation, dismantled for building materials, or abandoned and allowed to degenerate into ruins.
What the majority judges sought in the case was just what the projectors of the present property reform in England were after, the free alienability of land.
Scintilla juris (Latin: a spark of right) is a legal fiction allowing feoffees to uses to support contingent uses when they come into existence, thereby to enable the Statute of Uses to execute them.
[31][32] Chudleigh's Case represented the turning point of the old medieval common law of cestui que uses, and the trend towards modernity.
[33] In the 1815 case of Town of Pawlet v. Clark[34] the United States Supreme Court found that a Royal grant of land to the Church of England in the colony of New Hampshire was not completed.
The grant had been made prior to the American Revolutionary War, and the State of Vermont, as successor to the English Crown, could claim the land and convey it to the town of Pawlet for schools.
In the 1829 case of Beatty v. Kurtz[38] the United States Supreme Court decided the issue of title in an unincorporated Lutheran Church land.
The heirs of a deceased member of the Society of Separatists sued, seeking a portion of the lands held in community.
In Goesele v. Bimeler (1852),[39] the United States Supreme Court ruled that the descendant heirs of the deceased member could not recover.
The limited (adverse) title to the land remains in the grantor and the grantee cannot maintain an action for breach of the covenant in the conveyance.
The fact that the transaction was fair and bona fide (with no legal connection between the parties being at arm's length, without notice and for value) does not change the rule.
[47][48] In the United States the rule against perpetuities, where it is in effect, applies to both legal and equitable interests, created in trust.
Example 2: Alphonse leaves property to Brandon in a trust to pay the income to St. John's Church, located in Anytown, so long as it conducts its regular services in accordance with the Book of Common Prayer, 1789 Version.
Example 4: Albert leaves property to Thomas in trust to pay the income to St. Mark's Church so long as it conducts its regular services in accordance with the Book of Common Prayer, 1789 Version.
Example 5: Martin leaves property to Joseph in trust to hold for the benefit of St. Vincent's Church if it should adopt a new liturgy proposed by the religious convention held in 1970.
A wait and see approach time-fetters litigants seeking to void a trust on the grounds of a potential, later or residuary use invalidity, due to alleged perpetuity.
