Page images
PDF
EPUB

gave, devised, and bequeathed all the said copyhold premises to T. B. and his heirs.

Lord Eldon and the other Judges of the Court of Common Pleas held that the whole fee being given to Susan Saunders, her heirs and assigns, no farther remainder over could be limited upon that fee; and Right v. Day, therefore the estate given to T. B. was a new fee limited upon a contingency, that is, an executory devise.

16 East. 399.

Though the first Estate be not vested.

Gulliver v.
Wicket,
I Wils. R.

105.

9. Where there is a devise over, after a devise in fee simple, though such an antecedent devise in fee be not vested, but contingent; yet if the ulterior devise is limited so as to take effect in defeazance of the estate first devised, on an event subsequent to its becoming vested, it will be deemed an executory devise.

10. A person devised lands to his wife for life, and after her death, to such child as she was then supposed to be ensient with, and to the heirs of such child for ever; provided that if such child as should happen to be born should die before the years, leaving no issue of its body, should go to another.

age of 21 the reversion

Lord Ch. J. Lee delivered the opinion of the Court, that the true construction of the will was, that there was a good devise to the wife for life, with a contingent remainder to the child in fee; and a devise over, which was good as an executory devise; and if the contingency of a child never happened, then the last devise was to take effect, upon the death of the wife.

No Devise is 11. An executory devise being a disposition conExecutory which can be trary to the rules established for the construction of supported as conveyances at common law; whenever a future a Remainder. interest in land is so devised, as to fall within the

rules laid down for the limitation of contingent remainders, such devise will be construed to be a contingent remainder, and not an executory devise.

12. Thus wherever an estate is devised to a person ante, c. 12. and his heirs, with a limitation over in default of issue, it is construed to be an estate tail; and the limitation over is a remainder, to take effect on the determination of the estate tail. But if the limitation over be directed to take place on an event which may happen during the continuance of the estate tail, it is an executory devise; for it cannot be a remainder, because the event on which a remainder

is limited must not operate so as to abridge or deter- Tit. 16. c. 2. mine the particular estate. So that in the case of $16. Pells v. Brown, if the words, living William his brother,' had been omitted, it, would clearly have

been an estate tail in Thomas, with a remainder 3 Term R. over to William, to take effect on the expiration of 145. the preceding estate tail.

13. It follows, that where there is a devise over after a preceding devise to a person and his heirs ; if there are any words in the will, by which the first devise can be restrained to mean heirs of the body only, the first estate will be construed to be an estate tail, and the devise over a remainder.

cannot be

14. The essential difference between a contingent An Execuremainder and an executory devise, is, that the tory Devise first may be barred or destroyed by several means; barred. but an executory devise cannot be prevented from tak. ing effect, either by fine or recovery; or by any alteration whatever in the estate after which it is limited.

Tit. 16. c. 6.
Fearne Ex.

Dev. 4th ed.
67. note.

15. Thus in the case of Pells v. Brown, Thomas ante, § 5. entered on the estate devised to him, and suffered a common recovery; but all the Judges, except Doderidge, held that the recovery did not bar the VOL. VI. Hh

Mullinix's

136.

executory devise; for Thomas, the person who suffered the recovery, had a fee; and William Browne had but a possibility, if he survived Thomas; and Thomas dying without issue in his life, no recovery in value should enure thereto, unless he had been party by way of vouchee.

16. A. person granted several annuities, by deed, case, Palmer, to his younger children; and afterwards devised all his lands to his elder son and his heirs, upon condition that he paid the annuities; and if he failed of payment, that the younger son should enter and have them. The elder son entered, and made a feoffment; and then the younger son entered for non-payment. It was held that this entry was lawful, the contingent estate not being divested by the feoffment.

Within what time an Executory Devise must vest.

Tit. 32. c. 23. 18.

Fairfax

V. Heroa,

Prec. in Cha.

67.

17. In consequence of the rule that an executory devise cannot be barred, or prevented from taking effect, by any mode whatever, it became necessary to prescribe certain bounds and limits to executory devises; lest they should be used as a means of creating perpetuities. And therefore it was esta blished, by analogy to the case of strict settlements, that an executory devise must vest within the compass of a life or lives in being, and twenty-one years and nine months after; and the Courts have uni formly supported executory devises that are restrained within these limits.

a

18. Thus in the case of Pells v. Brown, the event on which the estate was devised over, namely, the death of Thomas without issue in the lifetime of William, being confined to the life of William, was held good.

19. A person devised all his lands, after the death of his executor, to A. and his heirs for ever; but if he died leaving no son, then to that son or sons of

his executor which his executor should think fit to nominate.

Lord Keeper Somers decreed that this was a good executory devise; because the contingency was confined to the period of a life in being..

2 Mod. 289.

20. R. Ben having a sister who had been formerly Taylor v. Biddall, married to one Smith, by whom she had issue Augusta Smith; and afterwards married one Wharton, by whom she had issue a son called Benjamin and a daughter called Mary; devised his estate to his sister Elizabeth, for so long time and until her son Benjamin Wharton should attain his full age of 21 years, and after he attained that age then to the said Benjamin and his heirs for ever; and if he died before his age of 21 years, then to the heirs of the body of Robert Wharton, and to their heirs for ever, as they should attain their age of 21 years. The testator died; Benjamin died before he attained the age of 21, living Robert his Father; and afterwards Robert died.

It was determined that the executory devise to the heirs of the body of Robert Wharton was good. Now the heirs of the body of Robert Wharton could not take until after their father's death; for nemo est hæres viventis: and since that heir of the body of Robert who should attain 21, might not have been born before his father's death, and the estate could not vest in him until he attained 21, it follows that the estate might possibly not have vested under that limitation until twenty-one years after the determination of a life then in being.

21. Sir W. Stephens devised freehold estates to Stephens v." his grandson William Stephens, his heirs and assigns Forrest. 228. Stephens, for ever; but in case his said grandson W. Stephens should die before he attained his age of 21 years,

then he gave the same to his grandson Thomas Stephens, his heirs and assigns.for ever; but in case his grandson Thomas Stephens should depart this life before he attained his age of 21 years, then he devised the said lands to such other son of the body of his daughter Mary Stephens as should happen to attain the age of 21 years, his heirs and assigns for ever; the elder of such sons to take before the younger, &c.; and to the several and respective heirs male of the body of such son and sons, and the heirs male of the body of his and their body and bodies. And for default of such issue, he gave the said lands to all and every the daughter and daughters of the said Mary Stephens in tail male; and for want of such issue, he devised the said lands to his brother Sir Richard Stephens, his heirs and assigns for ever.

The testator died leaving William and Thomas Stephens, his two grandsons, who both died under age. Soon after the death of the testator, Mary Stephens had another son, who attained the age of 21 years; and the question was, whether this execu tory devise to such unborn son of Mary Stephens, as should attain the age of 21 years, was good.

Lord Talbot directed a case to be sent to the Court of King's Bench, and the Judges of that Court, Lord Hardwicke, and Justices Page, Probyn, and Lee, certified their opinion that they did not find any case wherein an executory devise of a freehold had been held good, which had suspended the vesting of the estate till a son unborn should attain his age of 21 years, except the case of Taylor v. Biddall; and having caused the record to be searched, they found it agree in the material parts with the printed report. And therefore, however unwilling they might be to extend executory devises beyond the rules generally

« PreviousContinue »