Speaking generally it may be said that with the exception of estates tail, a tenant in fee' of a Manx Customary Estate can create out of his estate the several interests less than fee simple which a proprietor of a customary estate'in England can limit, viz., conditional fees, estates for lives and for years, and these either in possession or remainder or by way of executory limitations or devise. There being no law or custom by which estates tail can be reated in landsin the Island, the nearest approaches to entails allowed by the law, are conditional fees and estates limited in strict settlement by way of executory limitation similar to settlements of the same nature in England. In order, therefore, to ascertain the general nature of such limitations as Manx customary lands are capable of being made the subject of, the reader is referred to the English law treatises on conditional fees, executorv limitations, and executory devises of customary or copyhold lands. The only cases decided in the Isle of Man respecting entail and conditional fees which have come to the notice of the writer are those of Ca1cott v. Stevenson and Murray v. Christian and both of these were decided in concordance with the law of England respecting conditional fees. The case of Calcott v. Stevenson decided in 1747 was in substance a limitation in a deed of settlement to Turner Calcott and (by implied limitation) to his issue, and in default of issue of Turner, remainder [123] over to Robert Calcott and his issue with other similar subsequent limitations for the purpose, as declared by the deed, of creating a strict entail. Turner Calcott, having issue, conveyed the land in fee simple to Huddleston, under whom the defendant, Stevenson, claimed. After the death of Turner, which happened 40 years after the sale, his son, the plaintiff, claimed the lands, alleging that his father had no power to bar his issue. It was held by the Court of Common Law and the Keys and by the Lord of the Island, on appeal, that firstly; there could be no entail of lands in the Island: and secondly; that Turner Calcott (having had issue) had an estate of inheritance within the custom of the Island, and the power of alienation being incidental by the Manx law to that estate, he had power to convey in fee so as to bar his issue, though by doing so he defeated the expressed object to the settlement under which he took. It also appears to have been considered that adverse possession for twenty-one years against Turner would have barred his issue. As this case is an important one upon the question of the existence of entails in the Island, the writer has copied in full in the note the principal documents relating to it. The exposition of Deemster Mylrea, although very obscure in parts, is in substance a recital of the English law relating to conditional fees applied to Manx estates. The case of Murray v. Christian and wife (Liber Placitorum, 1795), is a not less important case on this subject. It appears from the pleadings that the matter in dispute was the effect of certain limitations contained in a marriage contract dated 24th May, 1742, whereby William Murray conveyed the estates [124] of Raynoldsway and Langnose, in the Island, for certain purposes, viz., for himself for life, and after his death, subject to a jointure for his intended wife, "for the first and every son of his intended marriage, in tail male respectively, one after another according to seniority of age and priority of birth, and for want of such issue remainder to the issue female of the marriage and their heirs as tenants in common equally amongst them." The intended marriage took place, and there was issue. John James Murray, the eldest son, Somerville Murray, (the plaintiff in the suit), the second son, and other younger children. John James died in the lifetime of his father, leaving issue John Somerville Murray, his only son, and several daughters, of whom the defendant, Ann Christian, otherwise Murray, was the eldest. William Murray died in 1787, his wife having predeceased him, and on his death his grandson, John Somerville Murray entered, and possessed up to his death, without issue, in 1794. By this event the issue male of the eldest son having become extinct, the plaintiff, the second son claims to be entitled under the entail created in the marriage contract in his favour on failure of the issue male of his brother, and instituted his suit to recover the lands. The decision in Calcott v. Stevenson having already settled the point that there could be no entail of lands in the Island, the only point in the case was whether after a limitation of Manx Customary Lands to A and his heirs male, would a remainder thereon take effect, or would such a remainder by the law of the Island be simply void. Clearly, by the law of England [125] relating to conditional fees, the estate limited to the eldest son John James Murray, and his heirs male, was a conditional fee upon which no remainder could be limited, and upon failure of his issue male, (no alienation having been made as in Calcott v. Stevenson), the estate would revert to the heir-at-law of the grantor, whoin this case was the defendant, Ann Christian, the eldest daughter of the eldest son. The decision of the Common Law Court and of the Keys, on appeal, was in accordance with the principles of the English law on the subject, the judgment being for the defendant, the limitation to the second son and his issue being, consequently, held to be void. The English rules of law relating to estates in customary lands created by way?f executory limitation, or executory devise, generally speaking, may be said to regulate such interests in the Island, regard being had to any peculiarity of the English law, or of the Insular tenures which may qualify or affect their application. The freehold being in the Lord, as before stated, and the customary estate in the lands lying "in grant and not in livery," technically speaking there is no legal objection to the grant of a freehold interest commencing in futuro, without any particular estate being created to support it. For the same reasons it is conceived that any executory limitation which may be created by devise may be limited by deed, and need not necessarily be by way of use or trust. A contingent remainder in Manx customary estates is not liable to destruction by the sudden determination of the particular estate on which it depends. The freehold, vested in the Lord, preserves [126] such remainders in the same manner as the estate of Trustees preserves equitable contingent estates. (See Williams on Real Property, p. 330.) The law of the Isle of Man favouring the vesting of estates as much, if not more, than that of England, without any direct decision on the point, the writer ventures to say. that the rule of perpetuities in the Isle of Man will not be extended beyond that fixed in England, and therefore, that the fee simple cannot by any mode of limitation be prevented from vesting for any period beyond a life or lives in being, and twenty-one years afterwards, and the further period allowed by the law of England in case of gestation. [note 1] He also presumes that the law of the Island as to accumulations is similar to that of England before the Thelluson Act. [note 2] It has been expressly decided by the Insular Courts, that the rule of the English Common Law, commonly called the rule in Shelly's case, does not apply to estates in the Island. In the case of Ouark v. Quine and others, the Court of Chancery (December 1847), held that this rule was not law here. The case turned on a limitation of the estate of Bibaloe Beg, in the Island, in trust for the grantor for life, and on his death in trust, to convey to his right heir-at-law, subject to a right of dower for his widow, and to a power reserved by the grantor to mortgage to a limited amount. The sole point [127]raised was the applicability of the rule in the Island. It being admitted that if applicable the argument of the plaintiff that the limitation to the grantee for life and to his right heir afterwards gave him the fee simple, was good. The Court decided that the rule not being law here the grantor took for life only, and the heir-at-law as persona designata, and that the life tenant could not convey the fee. In the recent case of Moore v. Gelling, 21st May, 1863, the judge at Common Law, Deemster Drinkwater expressly decided that the rule in Shel1y's case was not law in the Island. Held in this case that a devise to Philip Moore for life, and after his death to the heirs of his body lawfully begotten, gave Philip Moore an estate for life only, and not a conditional fee, and that the limitation over was a valid remainder in favour of the person who at his decease should be heir of his body. The whole case turned on the question of the application of the rule, it being admitted by the plaintiff that if applicable in the Island, then Philip Moore took a conditional fee, and having had issue, his conveyance in fee to the defendant Gelling would operate to bar his issue, the plaintiff. Amongst the interests which a proprietor can so create out of his estate, are leaseholds or estates for years. In another chapter we have referred to the power of a proprietor to lease, so as to bind his widow's dower, in whicn case it is limited to leases for 21 years, and at full annual rent. As against the heir-at-law of the lessor, the writer is unaware of any law, restraining the power of leasing either as to the duration of the term or the amount of rent to be reserved, and on principle he cannot conceive that [128] such a restraint does exist. The Act of Settlement which defines the nature of of Manx tenures and confirms the free right of alienation, does not refer to any such limitation of the power of leasing, nor does any statute or written customary law. Very strong authority would, in the opinion of the writer, be requisite to establish the legality of a restraint, which would be inconsistent with the absolute power of alienation conferred by law upon the proprietor. No argument in favour of its existence can be drawn from the clause in the Act of 1777, before referred to, in the chapter concerning Dower and Curtesy. This clause is part of the Act "To ascertain the interest of a wife in the estate of her husband," and may be considered to have been necessary, and therefore intended to enable proprietors to make even such limited leases valld, as against their wives dower. An enabling use of this nature would not restrain or affect a prior existing Common Law right to lease. That such a right as against the heir previously existed, follows from the possession of the free power of alienation in which such a right is included, without any further authority being required to establish it. Such authority is, however, furnished by the case of Quark v. Simpson (Adv. N.B. p. 348) in which a lease for twenty-one years made by a proprietor, since the Act of 1777, was held to be valid as against the heir-at-law, although a full rent was not reserved, it having also been decided under an issue directed in that case that the power to lease for twenty-one years as against the heir-at-law was not originally confined by the Act of 1777, but existed previously.
[129] It has been held that a grant to several and their heirs in words which in England would create a joint tenancy, will operate here as an estate in common, and this not only in beneficial interests, but in mere legal estates or trusteeships (Trustees of National School, Castletown v. Adamson, Seneschal). [note 3] In the case of Taggart v. Bishop (Lib. Plitor, 1858) it was decided that a grant to a husband and wife and their heirs operates to create a tenancy in common, and not an estate by entireties. [note 4]
Note 1: The Author gives no authority for his idea as to the rule of perpetuities in the Isle of Man, and it is contrary to the andently received opinion there, which is, that by grant or devise lands may be limited to any persons in being, and to their children, but no further.
Note 2: There is no known decision on this matter of accumulations in any of the Insular Courts. The law of Eugland would not necessarily be followed were a case to arise. It must be remembered that the law as to perpetuities and accumulations referred to in the text, has no reference to grants, devises, and bequests of property for charitable uses.
Note 3: A.D. 1858, Trustees of National School, Castletown v. Adamson (Seneschal). In this case the site ofthe school had been granted by the Crown to three persons (as trustees) and their heirs. On the death of all the original Trustees, a question arose in the Baron Court as to the persons to be entered on the Court Rolls as the tenants of the Manor under the Crown Grant. The Setting Quest returned the heirs of all the Grantees as the persons to be entered, but the Seneschal decided that the last survivor became the sole Trustee, and that his heir only could be entered. The several heirs, by petition of right against the Queen, as Lady of the Manor, and the Seneschal, claimed that by thc law of the Island the lands descended to the heirs of all the original Grantees, and that there is no distinction between the cases of tenants beneficially entitled, and trustee tenants having the legal estate only, and so the Court (Staff of Government) decided.
Note 4: A.D. 1858. Taggart v. Bishop.— A house and premises in Douglas has been granted by two deeds, one from Christopher Fitzsimmons to John Quayle and Elizabeth his wife (daughter of the grantor), and the other from William Fitzsimmons to the same John Quayle and Elizabeth his wife (sister of the grantor), and their heirs and assigns. The Plaintiff claimed the property as having derived a title from the Grantors respectively, and the Defendants claimed under a title derived from the Grantee, Elizabeth Quayle. The jury found for the Plaintiff as to one moiety of the property only. This yerdict was upheld on appeal, the decision being that under the grants, by the law of the Island, each Grantee, although husband and wife, took a moiety of the property granted.