payment of them, I devise to G. E. and D. Lancaster (who were his two sons and daughter,) their heirs, executors, and administrators, the leasehold estate," describing it, for all the residue of the term, upon trust to sell the same, and to apply the money to the payment of his debts, &c. But in case the money arising from the sale of the leasehold estates should not be sufficient to pay and discharge all his debts; then he devised" that his said two sons and daughter should and might absolutely sell, mortgage, or otherwise dispose of his freehold estate, for the payment of such of his said debts, &c. as his said. leasehold estate should not be sufficient to discharge." And appointed his two sons and daughter executors. The leasehold estate was not sufficient to pay the testator's debts, legacies, and funeral expences. Lord Keeper Henley directed a case to be sent for the opinion of the Judges of the Court of K. B. whether any estate passed to the two sons and daughter of the testator; or only a power to sell. Lord Mansfield said, there were no words by which the estate was devised to the executors; therefore if it were construed that there was a devise to them, it must be raised by implication: but by the frame of the will it was plain that the testator did not so intend; for he showed, by the expression he had used, that he knew the distinction between the devise of an estate to them, and giving them only a power to sell; as to the term devise, the expression, I devise, was here synonymous to saying, I will, or my mind is. The intention of the testator (it was said) could not be complied with in this case, without an implication of a devise to the executors; because it must otherwise descend to the heir at law, in the mean Denne v. ! Inst. 237 a. 265 b. ante, c. 1. § 15. Tit. 12. c. 4. § 15. time, who would not be chargeable with the intermediate rents and profits, but altogether unaccountable for them; that clearly was not so. The land could only descend to the heir, subject to the charges; and would be liable in his hands to the payment of debts, legacies, and funeral expences. So that the testator's intention was equally answered one way as the other. The certificate was as follows-" Having heard counsel on both sides, and considered this case, we are of opinion that no estate passed to the said Edmund, George, and Dorothy Lancaster; but only a power to sell, demise, mortgage, or otherwise dispose of the premises." 32. It was held by the Court of K. B. in a modern case that where one devised lands to five persons in trust to sell, and to apply the money to certain uses, and afterwards made the same persons executors; they did not take the lands as executors; but as devisees in trust. 33. Where powers of this kind are given to strangers they cannot be extinguished, either by the persons to whom they are given or by those who are in possession of the land. 34. It has been stated in a former chapter, that devises of land are fraudulent as against creditors. But devises for payment of debts are notwithstanding valid. 35. The cases in which purchasers from devisees or executors are bound to see to the application of the purchase money, have been already stated. TITLE XXXVIII. DEVISE. CHAP. XVII. Executory Devises.-Devise over after a Devise in Fee Simple. 1. Origin of Executory Devises. 2. Devise over after a Devise in Fee. 9. Though the First Estate be not vested. 11. No Devise is Executory which can be supported as a Remainder. 14. An Executory Devise cannot be barred. 17. Within what Time an Exe- 23. A Devise after a general is too remote. 24. Unless restrained. 27. Curtesy attaches on the First SECTION 1. IT Origin of Devises. has been stated that by the rules of the common law, no remainder could be limited over after a Executory limitation in fee simple; nor a freehold be created to commence in futuro. But the indulgence shown Tilbury v. to testators in effectuating their intentions, however Barbut, untechnically expressed, induced the Judges to dispense with those rules, in cases of wills, as well as in the limitation of uses; and also to allow of similar dispositions of terms for years, in wills, and in deeds declaring the trusts of such terms.. 3 Atk. 617. 2. Dispositions of this nature are called Executory Devise over Devises; and are of three sorts. The first is, where after a Devise in Fee. Pells v. Cro. Ja. 590. the devisor disposes of the whole fee; but upon some future contingency qualifies that disposition, and devises the estate over to some other person. 3. A testator devised to his mother for life, and after her death to his brother in fee; provided that if his wife, who was then ensient, was delivered of a son, then the land should remain to him in fee. A son was born; and it was held that the fee of the brother should cease, and vest in the son, by way of executory devise. 4. A person devised to A. and his heirs; provided that if he died within age, then the land should remain to B. and his heirs. Adjudged good. For when the devisee only takes a limited estate, a contingent fee may depend upon it; but that was not by way of remainder, but executory devise. And this doctrine was fully established in the following case. 5. W. Brown devised lands to Thomas Brown his second son, and his heirs for ever; and if Thomas died without issue, living William his brother, that then William his brother should have those lands to him and his heirs and assigns for ever. All the Judges agreed that this was a good limitation of the fee to William, upon that contingency; not by way of immediate remainder, for they all agreed that it could not be by remainder. As if one devised land to A. and his heirs, and if he died without heir, that it should remain to another, it was void and repugnant to the estate: for one fee could not be in remainder after another; for the law doth not expect the determination of a fee by the tenant's dying without heirs, and therefore cannot appoint a remainder to begin upon the determination thereof; but by way of contingency or of executory devise to another, to determine the one estate, and limit it to another, upon an act to be performed; or in failure of performance thereof, &c. For the one might be, and had always been allowed. 6. A. having two sons, B. and C., by several Hanbury v. Cockerill, venters, and being seised of Blackacre and Whiteacre, 1 Roll. Ab. devised Blackacre in fee to B., and, Whiteacre to C. in 835. fee; with a proviso that if it should please God either of his said sons to die before such time as they should be married, or before they should attain to their age of 21 years, and without issue of their bodies to be begotten, then he gave all the said lands, which he had given by his will unto such of his Goodtitle v. sons as should so decease before his marriage, or Willes R. before his age of 21, and without issue of his body, unto the survivor of his sons. The devise over was held good, as an executory v. Holyday, devise. age of Wood. 211. Frogmorton ante, c. 11. § 73. Heath, 7. A person devised to his son William Heath, all Heath v. his estate, till Edward Heath should attain his 22 years, and no longer. He afterwards said,“Item, I give and bequeath to Edward Heath all my messuages in H. and C. for ever, that is, if he have a son or sons who shall attain 21. But if my kinsman. Edward Heath should chance to die without son or sons to inherit, my will is that the son of my son William Heath shall inherit." It was determined by Lord Thurlow, that Edward Heath took an estate in fee, subject to an executory devise over, in the event of his dying without issue, or of his issue dying under the age of 21 years. & Pul. 324. 8. A person devised a copyhold estate to his Doe v. Witdaughter Susan Saunders, and her heirs and assigns ton, 2 Bos. for ever; but if his said daughter should happen to die, leaving no child or children, or lawful issue of her body, living at the time of her death, then he |