TITLE XXXVIII. DEVISE. CHAP. XVIII. Executory Devises-Devise of a Freehold Estate to commence in futuro. 1. Devise of a Freehold to com- 22. Exceptions-1st. A Devise of a Reversion. supported as Remainders. 6. Devises of this sort sometimes 26. 2d. A Devise in default of 18. A Devise after a general 31. 4th. Where an Estate Tail is raised by Implication. Failure of Heirs or Issue is too remote. Devise of a Freehold to commence in futuro. Fearne Ex. TH SECTION 1. HE second sort of executory devise is where the devisor, without departing with the' immediate fee, gives a future estate of freehold, to arise either upon a contingency, or at a period certain, unpreDev. 17. 23. ceded by, or not having the requisite connexion with, any immediate freehold, to give it effect as a remainder. Pay's case, 2. Thus where a person devised lands to J. S. for Cro.Eliz.878. five years, to commence at the next Michaelmas after Forrest. 48. the death of the testator; remainder to C. and his heirs. The testator died before Michaelmas, It was agreed that the devise over was good as an executory devise. 3. So where A. devised lands to B. in fee, to commence and take effect six months after the testator's death; this was adjudged to be a good executory devise. 1 Freem.244. 1 Wils. R. 206. 4. A devise to an infant in ventre matris, is an executory devise of this kind; as it necessarily implies a disposition to take effect at the birth of the child. Such a devise was formerly held void; but it was always understood that a devise to an infant, when he should be born, was good as an executory 1 Lev. 135, devise. Snow v. 5. Mr. Fearne says, where a particular estate of Ex. Dev 21. freehold is first devised, capable in its own nature of supporting a remainder, followed by a limitation not immediately connected with, or commencing from its expiration; as the latter limitation is incapable of taking effect as a remainder, there seems to be no obstacle to its validity as an executory devise. Therefore, although in the case of a lease for life to A,, and after the death of A. and one day after, that the land shall remain to B. for life; it seems that the limitation to B. is void as a remainder, because not to take effect immediately upon the determination of the first estate; yet in the case of a similar limitation by will, there appears to be no ground for denying effect to such ulterior limitation, as an executory devise. sometimes 6. In consequence of the rule already stated, that Devises of no devise shall be considered as executory, which this sort may be supported as a remainder; several cases have supported as arisen where there has been a devise of a particular Remainders. estate, with a devise over, in which the devise over has been held to be a remainder, supported by the preceding particular estate. ante, § 2. Purefoy v. Doe v. Morgan, 7. Thus, in Pay's case, Lord Talbot said, that if the testator had lived to Michaelmas, then it had been a good remainder. 8. A testator devised to his wife for life, and to her son, after the death of his mother, if she should have a son; and if such son should die within age, then to the right heirs of the devisor. The testator died without issue; his wife married again, and had a son. It was adjudged that the estate limited to that son, was not an executory devise, but a contingent remainder; because the mother had an estate of freehold capable of supporting it. 9. George Mussell devised lands to Elizabeth his wife for life, remainder to his son Ebenezer Mussell, 3 Term Rep. for ninety-nine years, if he should so long live; and after the several deceases of his wife and son, to the heirs of the body of Ebenezer. 763. The question was, whether the devise to the heirs of the body of E. should be considered as an executory devise, or as a contingent remainder. Lord Kenyon said, if ever there existed a rule respecting executory devises, which had uniformly prevailed, without any exception to the contrary, it was that which was laid down by Lord Hale in the case of Purefoy v. Rogers.-That where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder. And therefore the Court determined that the devise to the heirs of the body of Ebenezer was a contingent remainder, which was originally supported by the estate for life devised to Elizabeth, and was defeated by her death before that of Ebenezer. 10. Whenever the first devise can be construed to pass an estate tail only, the devise over will be deemed a remainder expectant on the determination of the estate tail, and not an executory devise. Cro. Car. 185. 11. John Spalding having issue three sons, John, Spalding v. Thomas, and William, devised lands to John the Spalding, eldest son, and the heirs of his body, after the death of Alice, the devisor's wife; and if John died living Alice, that William should be his heir. John died in the lifetime of Alice, leaving a son. It was determined that the construction of the will should be, that if John died without issue, living Alice, William should have the lands; and that it should not be construed, where he limited first to John and the heirs of his body, that by this limitation he intended, if he died living Alice, that William should be his heir, John having issue, and thereby to disinherit the heirs of John's body. 258. 12. A testator having charged certain legacies on Wealthy v. his lands, devised that in case his son T. should Bosville, Rep. temp. happen to die before he married, or being married Hardwicke, should have no children, then his lands should remain and descend equally to his daughters and their heirs, paying, &c.; and in case both his daughters should die without being married, or being married should have no children, then he willed that all his estate should descend to I. M.; and at the end of the will he gave and devised all his estate, real and personal, not already disposed of by his will, to his son T. After the testator's death, his son T. entered, suffered a recovery, and died without issue; upon which his sisters entered, suffered a recovery, and died also without issue; and then the heir of I. M. entered. Must vest within the time prescribed above. The question was, whether the devise to I. M. was a remainder depending on a particular preceding estate in the son and daughters, or an executory devise. Lord Hardwicke said, there were two rules which went a great way in determining the case. First, that no limitation should be construed to be an executory devise, if it could be made good by way of remainder. Secondly, that it was immaterial in a will which words were first or last, as the construction must be made upon the whole will; and here, in the subsequent part of the will, there was an express devise of all the residue; so that, taking the two clauses together, there was an express devise to the and it was given by the word estate, which was sufficient to carry the fee; so that it amounted to a devise to the son and his heirs, and if he died without issue, remainder over; which was an estate tail. But if that were not so clear, yet as to the daughters no objection could be raised; for there was a devise to them, and if they died without issue, &c.; so that their recovery was sufficient to bar the remainder : and the limitation being clearly good as a remainder, could not be considered as an executory devise. 13. The rules established for preventing perpetuities are applied to the second sort of executory devises as well as to the first; and therefore in all cases where a freehold estate is devised, to commence in futuro, it must vest within the compass of a life or lives in being, and twenty-one years and a few months after, otherwise it will be void. 14. It should however be observed here, that by the time of vesting is meant the vesting of the freehold; for although land should be limited for a long term of years, with remainder to the unborn son of |