an estate tail. Consequently they were of opinion that, either way, a remainder after estates tail was devised to Thomas Morgan, who by virtue of the said limitation, upon failure of the sons of the testator without issue male, was entitled to all the lands in the counties of Monmouth and Glamorgan, devised by the residuary clause in the said will, for life; with remainder according to the limitations in the said will." Lord Bathurst decreed accordingly. He con curred entirely with the opinion certified by the Judges, in regard to the event of a future marriage not being in the testator's contemplation; and consequently that the words, "or any other son or sons," were to be restrained to sons of the first marriage. But as to the raising an estate tail to any sons of a future marriage, he expressed himself inclined to the opinion, that he was bound by the decision of the House of Lords in the case of Lanesborough v. Fox, as a direct authority against the admitting such implication. Dev. 131. Upon an appeal to the House of Lords this decree was affirmed, agreeable to the unanimous opinion of the Judges, founded, as appeared by what was expressed by the Ch. J. of the Court of Common Fearne, Ex. Pleas in delivering their opinion, upon the very same ground to which Lord Bathurst seemed to think himself confined, namely, the presumption that the event of a future marriage was not in the testator's contemplation; and that therefore the words, "or if any other son or sons," &c. must be understood of sons of the testator by his then wife. in default of 26. Secondly, a devise in default of issue of the 2d. A Devise devisor's own body, has been construed to be a con- Issue of the ditional devise, to take effect at the death of the Devisor. French v. Ca. 257. testator; and has therefore been held not to be executory; because it must be determined at the instant when the will takes effect, that is, at the death of the devisor. 4 27. James Farrel by his will devised, upon default of issue male and female of his own body, all his estate in the counties of Galway, &c. to Peter and Denis Daly and their heirs, in trust to pay all his just debts; and after payment thereof, and securing the provision made to his wife, he limited his estate in the county of Galway to the use of John Kelly jun. for life, remainder to trustees to support contingent remainders, remainder to his first and other sons in tail male, with several remainders over. The Court of Chancery of Ireland decreed that this devise was good. On an appeal to the House of Lords of England it was contended, that this devise being to take place on failure of the issue male and female of James Farrel, whensoever the same should happen, without anything contained in the will to restrain the contingency to his own death, or any other particular time, it was void. On the other side it was argued, that the devise under the will of James Farrel was at his death a devise in possession, and not an executory devise. No estate was limited to the issue by the will, but it was plain he meant a failure of issue living at the time of his death. The first trust was to pay debts, legacies, and annuities to his sisters for their lives; and he could not have intended that those trusts should take place a hundred or two hundred years after his death. The legacy given by a codicil to J. C., of which the first payment was to be made on the first of November next after his decease, showed what he meant by dying without issue; namely, if he should have no issue when his will should take effect; and the codicil was expressed to be in addition to the will, and directed that the will should stand in all points not thereby altered, and therefore the legacies were by the will and codicil payable only on the event of his dying without leaving issue at his death; and by this construction none of the dangers could arise which prevent the effect of executory devises, nor was any rule of law broken. The decree was affirmed. 28. On a case sent out of Chancery for the opi- Willington v. nion of the Court of K. B. the facts were-Richard 1 Black R. Willington, Cary, after directing all his debts to be paid, devised 645. thus: Item, in default of issue of my own body, I give to trustees and their heirs, &c. in trust to pay his sister an annuity of 1007. till his debts and legacies were paid, and after payment thereof, to his sister for life, with divers remainders over, in strict settlement. It was objected, that this devise to the trustees being after an indefinite failure of issue, was executory and too remote; to which it was answered, that it was not executory, but depended on a precedent condition, upon which the testator intended the whole should take effect. That the words "in default of issue" were different from the words, on failure of issue: the one implied that the devisor never should have issue; the other, that he should have issue, which should afterwards fail. The first contingency must be determined at his own death; the latter might be suspended for ages. The Court certified that the devise was good; that the trustees took a base fee, determinable on the payment of the testator's debts and legacies out of Lytton v. 4 Bro. R.441. the profits of the estate. And Sir William Blackstone says, that this certificate was principally founded on the idea of the will's being merely conditional, in case the devisor left no issue of his body. 29. J. R. Lytton, being an infant, entered into articles on his marriage, by which he agreed to settle his estate, after his own decease, to the intent that his intended wife should receive a certain jointure, and subject thereto to the first and other sons of the marriage in tail, remainder to himself in fee. J. R. Lytton suffered a recovery when he came of age, but never made a settlement in pursuance of the articles. Fifteen years after, being in a weak state of health, and his wife living, he made his will; and having given his wife a rent-charge in satisfaction of the articles; he gave and devised his estate, on failure of issue male of his body, to trustees, to raise money for the payment of his debts, and subject thereto to his nephew in strict settlement. Lord Northington declared that the devise to the nephew, after a general failure of issue male, was void, the contingency being too remote. Upon a bill of review, Lord Loughborough said, this case did not appear to have been determined after that deliberation which would give it the sanction due to a decree of Lord Northington. The case of Lanesborough v. Fox was considered as governing this case; but when fairly examined, there could not be a greater dissimilitude. Here the testator had had no child for several years, his only child was just dead, the devisee was his next and immediate heir; but he introduced the devise by the words," in failure of issue male." Could this mean more than to take in the event which alone prevented the estate from being the subject of an immediate devise? He certainly had the articles in contemplation; there was no prospect of issue at the time. It was not like Lord Lanesborough's case, who had issue, and might have many more; it would be a harsh construction that the testator had here the idea of a future issue in contemplation, and an indefinite failure of that issue. He meant to give an immediate estate in possession at his decease; every clause in the will shewed his intention. It was manifest he had no intention of giving an estate after a general failure of issue. The circumstances of the testator and his family had always been taken into consideration in these cases. Decreed, that the declaration made by Lord Northington should be reversed. over for Life on Failure of Issue of the first Devisee. 30. An executory devise over for life, to a person 3d. A Devise in esse, to take place after a dying without issue of the first devisee, may be good; because the future limitation being only for the life of a person in esse, it must necessarily take place during that life, or not at all; and therefore the failure of issue in that case Chalfont, is confined to the compass of a life in being. Fearne, Ex. Oakes v. infra, c. 19. an Estate tion. 31. There are also several cases in which the 4th. Where courts have supported a devise over after a general Tail is raised failure of heirs or issue, by raising an estate tail by by Implicaimplication in the person, on the failure of whose heirs or issue the estate is devised over; for in that case the second devise is supported as a remainder, expectant on the determination of such prior estate tail. 32. Thus, in a case which has been already stated, Walter v. the Court having held that the first devisee took an Drew, ante, c. 12. estate tail by implication, it followed that the devise § 33. over was good as a remainder. |