laid down by their predecessors, yet upon the authority of that judgment, and in conformity to se veral late determinations, in cases of terms for years, and considering that the power of alienation would not be restrained longer than the law would restrain it, viz. during the infancy of the first taker, which could not reasonably be said to extend to a perpetuity, and that this construction would make the testator's whole disposition take effect, which otherwise would be defeated; they were therefore of opinion that the devise before mentioned might be good, by way of executory devise. infra, c. 19. 22. In a case which will be stated hereafter it was Long v. Blackall, held that a devise to an infant in ventre matris, with a limitation over upon failure of issue of his body at the time of his death, was good, which began with an allowance for the birth of a posthumous child, and might also conclude with it. failure of is too remote. 23. But where an executory devise is limited on an A Devise after event which may not happen within the period above a general mentioned, as upon a general failure of heirs, or Heirs or Issue issue; it is void. Nor is it material in such cases how the fact actually turns out; for the possibility, at the creation of such executory limitation, that the event on which its existence depends, may exceed, in point of time, the limits allowed, vitiates it ab initio. 24. But where the generality of the word heirs, or Unless issue, is restrained by any other words, to the period restrained. allowed, the devise over will be good, Thus a devise over after a devise to a person and his heirs, in case the first devisee shall happen to die, leaving no issue behind him, has been held good; these words. being construed to mean, having no issue living at the time of the person's death. Hh S Porter v. Roe v.Jeffery, 7 Term R. 589. 25. A person devised a real estate in the following words" Item, I give and devise unto my son P. D., his heirs and assigns for ever, all that messuage and tenement wherein I now live. But my will is, that in case my son P. D. shall happen to die leaving no issue behind him, then my said wife shall receive and take the rents and profits thereof." On a case sent from the Court of Chancery to the Court of K. B. one of the questions was, what estate C. D. took under this will. Lord Kenyon and the other Judges were of opi nion that this case was not to be distinguished in principle from that of Pells v. Brown; and certified in the following words :-" Having heard counsel in the case above referred to us, we are of opinion that P.D. took an estate in fee simple in the premises above devised to him. But as P. D. died without issue living at the time of his death, we are of opi nion that the further disposition made by the testator in that event, is good by way of executory devise." 26. A person devised a dwelling house to his grandson T. Triswell and his heirs for ever. But in case his said grandson should depart this life, and leave no issue, then his will was that the said dwelling, house, &c. should be and return to E. M. and S., or the survivors or survivor of them. Lord Kenyon said, nothing could be clearer in point of law, than that if an estate were given to A. in fee; and by way of executory devise, an estate was given over, which might take place within a life or lives in being, and twenty-one years and the frac tion of a year after; the latter was good, by way of executory devise. The question therefore in this and similar cases was, whether from the whole context of the will it could be collected that, when an estate was given to A. and his heirs for ever, but if he died without issue, then over; the testator meant dying without issue living at the death of the first taker. That the rule was settled so long ago as in the reign of James I., in the case of Pells v. Brown: that case ante, § 5. had never been questioned or shaken, but had been adverted to as an authority in every subsequent case respecting executory devises. It was considered as a cardinal point on this head of the law, and could not be departed from without doing as much violence to the established law of the land as (it was supposed by the defendant's counsel) the Court would do, if they decided this case against him. On looking through the whole of the will, the Court had no doubt the testator meant that the dying without issue should be confined to a failure of issue at the death of the first taker; for the persons to whom it was given over were then in existence, and life estates only given to them. Taking all this into consideration together, it was impossible not to see that the failure of issue intended by the testator, was to be, a failure of issue at the death of the first taker; and if so, the rule of law was not to be controverted; it was merely a question of intention, and the Court was clearly of opinion that there was no doubt about the testator's intention. taches on the first Estate. 27. In the case of a devise in fee, with an executory Curtesy atdevise over, it has been lately held that a right to curtesy attaches on the first estate, and is not defeated by its determination. Collect. Jur. vol. 1. 332. 28. Joseph Sutton devised to trustees and their Buckworth v heirs, in trust to apply the rents for the maintenance Thirkell, and education of his grand-daughter Mary Barrs, till she should arrive at the age of 21 years, or be 3 Bos. & Pul. married; and from and after the said Mary Barrs 658. should be married, he gave the said lands to the said Mary Barrs, her heirs and assigns for ever; but in case the said Mary Barrs should die before she attained the age of 21 years, and without leaving issue, then from and after the decease of the said Mary Barrs as aforesaid, he gave and devised the said estates to his grandson. Mary Barrs married Solomon Hanford, and had a child who died in her lifetime; she died soon after, being under the age of 21 years, and without leaving any issue. Solomon Hanford the husband received the rents of the estate during the coverture in right of his wife. A question was reserved for the opinion of Court on this case, whether Hanford was entitled to be tenant by the curtesy. Lord Mansfield said, the right of tenant by the curtesy existed at the common law; and the necessary points were, that the wife be seised of an estate of inheritance, which by possibility might descend to her issue, and that issue should be born. Estates at common law were either absolute or conditional; curtesy was incident to both, and existed when the wife died without issue inheritable, which let in the reverter. As to fees conditional, the estate did not become absolute by the birth of a child inheritable, but in odium of perpetuities, it was for a special purpose become absolute, if issue were born; that is, the donee might alien; but the estate was to descend and revert, according to the entail, if not aliened. At common law the only modification of estates expressly limited was by condition; the statute of uses introduced more qualifications of estates, expressly limited. About the reign of Elizabeth and James I. many cases in odium of perpetuities were determined, to prevent and defeat such an application of the statute of uses. The Courts leaned against contingent limitations over; but having gone a great way on that side, they began to think they went too far. New devices were contrived at the time of the troubles, and practised after the restoration, such as trustees to preserve contingent remainders, and executory devises. It was not long that the bounds of them had been settled: it was in his time that the courts first held they might wait during a life in being, and twenty-one years after. Now it was contended that this was a conditional limitation: it was no such thing, there was no condition in it; it was a contingent limitation. If it was a limitation it did not defeat the right of the husband to be tenant by the curtesy; the husband might be tenant by the curtesy though the estate was spent. But how was it when she was alive; here the wife was seised in fee simple during her life, and such an one as the issue might inherit, if they had not been disappointed by death. Vide 1 Inst. Judgment was given that Hanford was entitled to 241 a. n. be tenant by the curtesy. |