La Narrativa de Henry Fielding y la Sociedad Inglesa del Siglo XVIII

La Narrativa de Henry Fielding y la Sociedad Inglesa del Siglo XVIII
A key technical innovation by conveyancers was the insertion into
settlements of the remainder to trustees to preserve contingent remainders, the
clause mentioned above as “remainder lo trustees and their heirs for the life of
Tom lo preserve contingent remainders.” (In actual settlements, the phrase “to
preserve contingent remainders” does not always appear, but the trustees are
given a remainder which comes into play if the estate of the life tenant ends
before his natural life, as, for example, if Tom forfeits his life estate by trying
to alienate it in fee simple.) My argument that this was a highly debatable
experiment-rather than a straightforward technical “improvement,” as is
frequently claimed-requires explanation for all readers except a few specialists
in classical property law, but the reasons are worth understanding and are also
necessary parts of the argument.
Consider, first, that: a fundamental purpose of the law of real property
is lo tell us who “owns” any particular piece of property, say Paradise Hall, at
any time, either now or at any future time when that time comes. “Ownership”
itself is not an undifferentiated entity but rather, as the lawyers say, a “bundle
of rights.” So the law of real property also wants lo tell us who owns which
pieces or sticks of that bundle. In the case of landlord and tenant, for example,
some sticks of the bundle of rights belong to the landlord, others, including
important possessory rights, belong to the tenant. Similarly, in the case of
mortgagors and mortgagees, some rights in the given piece of land belong to
the mongagor and others to the mortgage. And, as noted above, how these
rights were distributed between the two has varied considerably historically. In
order to regulate the relations of persons with respect to things, the law of real
property has tended co divide up these various interests into known
“packages”: fee simple, estate tail, rights of mortgages, and so on.
Ownership of a particular piece of land as thus conceptualized as a
totality, a sum of rights, which can he fragmented or, as they used to say,
“carved up,” with respect to time and also with respect to “interests” in the
land. Fielding describes Paradise Hall as a building commodious within and
venerable without, situated on the southeast side of a hill, sheltered by a grove
of old oaks, enjoying a charming prospect of the valley beneath. But lo the
conveyancer, it appears as a much more abstracted set of interests. In the most
technical sense of the word “estate,” a particular person’s estate is the degree,
quantity, nature, and extent of the interest which he has in real property. If we
were to ask an eighteenth-century conveyancer, “What estate will Tom have
under Allworthy’s settlement?” the conveyancer would reply, “Tom will have a
life estate.”