The Use upon a use in equity revisited

In the story of trusts in England after the Statute of Uses 1536 the trust in the form of a use upon a use has long been prominent: it was to the practice of creating trusts in the form of a use upon a use that Lord Hardwicke LC referred in his famous dictum of the 1730s that the Statute of Uses had had ‘no other effect than to add at most three words to a conveyance’. But the relative paucity of reporting in the Court of Chancery before the Restoration and the lack of a systematic study of the Chancery record have limited understanding, and in 1977 J.H. Baker demonstrated from Bertie v. Herenden (1560), and Henry Sherfield’s 1624 reading on the Statute of Wills, that orthodox learning as to the date of the first enforcement of a trust in the form of a use upon a use was some 75 years astray. Drawing upon detailed work in the record of the Court of Chancery this paper revisits the use upon a use in equity, demonstrating, as Baker surmised in 1977, that the use upon a use had been continually recognised in equity from 1560, if not before, while also bringing into clearer perspective both the reasons for its employment and the limits of its significance.