Use (law) - Development of The Use

Development of The Use

One reason for the creation of uses was a desire to avoid the strictness of the rules of the common law, which considered seisin to be all-important and therefore refused to allow a legal interest to be created to spring up in the future. Although the common law recognised a use in chattels from an early period, it was clear by the end of the fourteenth century that land law had no room for this notion. Uses, nonetheless, satisfied contemporary needs in fifteenth century England. Its first application in relation to land was to protect the ownership of the land by the Franciscan Monks, who were pledged to vows of poverty and unable to own land. This enabled the feoffee to uses for the benefit of a cestui que use. The common law did not recognise the cestui que use but affirmed the right of ownership by feoffee to use. The term "use" translates into "Trust" and this was the legal beginning of Trusts and the use of trusts to defeat feudal, death and tax dues.

They served the following purposes:

• Substitute of wills: Before the Statute of Wills 1540, a tenant in fee simple could not devise the interest in the land by a will at common law. Upon his death the land devolved upon his eldest son or, if he died without leaving an heir, the land would escheat to his overlord. The use could avoid these difficulties by allowing the tenant to convey his land to a friend, on the understanding that the friend would permit, after the grantor's death, the grantor's designated persons (beneficiaries or cestuis que use) to have the full benefit and enjoyment of the land.

• Avoidance of feudal burdens: By the device of a use, the tenant could avoid dues upon his death, since he was not seised of the land at his death.

• Providing for grantor's wife: Since man and wife were considered to be one person at common law, a man could not convey land to his wife. This difficulty was overcome if the land was conveyed to a feoffee to uses to the use of the grantor's wife.

• Avoidance of the Statutes of Mortmain: The statutes prohibited the conveyance of land to religious bodies. They were avoided by conveyance to a feoffee to uses to the use of a religious order.

The rapid development of the use was probably one of the consequences of the Black Death, during which many landowning nobility died, leaving their realty to their widows and minor orphans.