ble of declaring ufes, but also fome perfons who are incapacitated from conveying away their eftates by any other kind of affurance. § 24. It is faid by Lord Bacon, that the king may The King. declare a use on his letters patent, though, if no use be declared, the letters patent imply a ufe. Women. Vide Tit. 35, 36. S 25. As a married woman is allowed to join with Married her husband in levying a fine, or fuffering a recovery, and to bind herself by those affurances, fhe is alfo allowed to join with her husband in declaring the uses of fuch fine or recovery; for, otherwise, the privilege of joining with her husband, in levying a fine, or suffering a recovery, would be nugatory, as the estate would immediately refult to the former ufes. Vide Tit. 11. ch. 4. f. 16. Lusher v. § 26. If the husband alone declares the uses of a 2 Rep. 57 a. fine, levied by him and his wife of the lands of the wife, it will bind the wife, unless her diffent appears; for, when she joined her husband in the fine, it fhall be prefumed that she also joined him in the agreement, respecting the declaration of the uses, unless the contrary is proved. § 27. A husband and wife joined in a fine of the wife's lands to a purchaser, and, afterwards, the huf band alone declared the ufes of it by articles. queftion was, whether it fhould bind the wife. The Lord Hardwicke.-As no other deed is shown that declares different uses, and the ufes declared do not Harrington's Swanton v. Webb v. Worsfield, 2 Roll Ab. 798. Gilb. Ufes 248. vary from what the wife intended, it fhall bind her notwithstanding. And, therefore, the bill which the has brought, after an acquiefcence of fifteen years fince her husband's death, for poffeffion, on fuggeftion that she is not bound by the fine, as she did not join in the articles with the husband, must be dismissed. § 28. If a husband and wife levy a fine of the wife's eftate, and an indenture is prepared in the name of the husband and wife, declaring the uses of fuch fine, and the husband feals and delivers it, but the wife refuses to do so, it will not bind her, because her refufal to execute the declaration of uses is a fufficient proof of her diffent.' S 29. If the wife alone declares the uses of a fine, 2 Rep. 57 6. levied by her and her husband of her land, fuch de Beckwith's Cafe, 2 Rep. 56. claration will be void, because, being fub poteftate viri, fhe cannot limit the ufe without the concurrence of her husband. On the other fide, the husband, who has no estate in his own right, cannot declare the uses of fuch a fine, without the express or implied concurrence of the wife; fo that the one is not fui juris, although she has the eftate, and the other is fui juris, but has not the estate: hence it follows, that when they make different declarations, fuch declarations are both void. S 30. Chriftopher Kenne, and Elizabeth his wife, being feised in fee, in right of the said Elizabeth, an indenture was executed by Elizabeth, without the confent of her husband, by which the faid Elizabeth alone limited limited and declared the ufes of a fine, which afterwards fhould be levied. Eight years after, the husband executed an indentnre, without the confent of his wife, by which uses were declared, different from those contained in the indenture executed by the wife. The fine was afterwards levied by the husband and wife, to the conufees mentioned in the indenture executed by the wife, and it was found that there were no other ufes declared of it. It was determined, that both the limitations and declarations of the uses were void; and that the faid fine was, by conftruction of law, to the ufe of the wife and her heirs. § 31. It was also refolved in this cafe, that, if the 2 Rep. 58. husband and wife agree in the declaration of the uses of part of the land, and vary in the declaration of the refidue, it will be good for the agree, and void for the refidue. 66 part in which they "For (fays Gilbert) Gilb. Ufes as to that part in which they both agree, all the "requifites are found neceffary to make a declaration ; " and the defect of the other part can have no influ ence on that which is good: but if they agree in "the limitation of uses for part of the estate in the "land, and difagree in the other eftates, there, all is "void; for else there will be another moulding of the "estates than the wife designs, and her consent is re"quifite to every eftate that fhall be created by the "limitation of uses, and it is to be ordered by her di"rection. Thus, if the husband declares the uses to himself and wife for life, the remainder to the heirs "of 216. Johnfon v. Skin. 275. Infants. 10 Rep. 42 b. Bac. Read. 67. "of the wife, and the wife declares the uses to her "felf for life, and then to her own right heirs, both "declarations are void, and it fhall not stand good for "the remainder in fee, and be void for the rest, for, "the estate moving from the wife, whatever ufes do "take effect must be by her direction and consent, and " in the manner fhe pleases: though the husband has power over the estate of the wife during coverture, yet, if fhe declares the ufe one way, and he an "other, his direction is abfolutely void, and it fhall "not stand during the coverture. The reafon of the "difference feems, that, in other cafes, the husband, "having power over the wife's eftate, he may grant 66 an interest as from himself during the coverture, for "fo long as he has power over her eftate; but when they levy a fine in fee, the estate paffes folely and ❝entirely as one estate in fee-fimple from the wife, and the ufes that are declared thereupon, must be all "with the confent of the wife for the whole eftate; "because the whole estate and intereft paffes from the "wife.' § 32. It was laid down in a fubfequent cafe, that if a married woman alone declares the uses of a fine, the affent of her husband fhall not be intended, if nothing appears to the contrary. But the declaration is void, unless an express affent appears. § 33. It is faid by the Judges in Beckwith's cafe, that if an infant levies a fine, and declares the uses of it, fuch declaration shall bind him, as long as the fine remains in force; for, inafmuch as he hath been ad mitted by the Judges to levy a fine, the law will permit him to declare the ufe thereof, and fuch declaration will be valid as long as the fine. S 34. It has, however, been determined, that an agreement entered into by an infant, to levy a fine, and fuffer a recovery, when he came of age, to certain ufes, will not operate as a declaration of the uses of fuch fine or recovery. v. Ferrers, P. Wms. 3 207. $ 35. The Earl of Ferrers being tenant for life, Nightingale with remainder to his firft and other fons in tail male, and having a fon who was about 17 years old, a very advantageous match had been agreed upon between fuch fon and a young lady, and articles were entered into by Lord Ferrers and his fon, whereby Lord Ferrers covenanted, that he and his fon fhould, within a year after the fon came of age, by fine or recovery, fettle the bulk of his eftate to the ufe of the fon for life, remainder to his firft and other fons in tail, &c. The marriage took effect, and the infant fon having thus executed this deed during his infancy, afterwards came of age, and, pursuant to his covenant, joined with his father in levying a fine and fuffering a common recovery; but there was no declaration of uses. The question was, whether thefe articles amounted to a declaration of the ufes of the fine and recovery ? And it was determined by Sir Jofeph Jekyll, that they did not. $ 36. An infant covenanted to levy a fine by fuch a time, to fuch ufes. Before the time he came of Before the time he came of age, VOL. IV. then |