9. It was resolved in Manning's case, and also in Lampet's case, that in bequests of this sort, after the executor has assented to the first bequest, it is not in the power of the first taker to bar the bequest over, or executory devise; for he cannot transfer more to another than he has himself.

The first De

visee cannot

bar the De

vise over.

10. Mr. Fearne says, it seems to follow, as a con- Ex. Dev. 55. sequence of this exemption of executory interests from the power of the first devisee or legatee, that where there is an interest devised to one for life, &c. out of a term, and then an executory devise over of the residue of the term to another, any subsequent union of the freehold or inheritance with the interest so given to the first devisee, or a feoffment or other act of forfeiture by such first devisee, will not extinguish or affect the interest of the ulterior devisee: for if it could, the executory intérest might easily be annihilated, without any prejudice to the temporary interest of the first devisee, by collusion betwixt him and the reversioner.

cited 10 Rep. 52 a.

11. A person possessed of a house for a term of Hamington years, devised the profits thereof to I. during the Rudyard, time she should continue sole, and then devised the term to R. and died. I. entered by assent of the executor; and afterwards purchased the fee.

It was resolved, that although the whole term was in I. quousque, &c., so that by the purchase of the fee simple her interest became extinct, yet the same did not defeat the executory devise to R., but that after the marriage of I., and not before, he might

* A distinction was formerly admitted between a devise of a term and a devise of the land, which is now exploded.

ante, § 7.

Within what
Time such

vest.

12. In the case of Cotton v. Heath, the eldest son, to whom the term was devised for life, made a feoffment of the lands; whereupon the reversioner in fee entered for the forfeiture; and it was decreed that the feoffment and entry for the forfeiture did not destroy the executory bequest.

13. When it was settled that an executory beexecutory quest of a term for years could not be barred, it Bequest must became necessary to apply the same rule to this kind of limitation, as to executory devises of estates of inheritance; namely, that it should vest within the compass of a life or lives in being, and twenty-one years and some months after.

Long v. Blackall, infra.

Cannot be limited after a general Failure of Heirs or Issue.

Burford v. Lee,

2 Freem.210.

14. In consequence of this principle it has been long settled, that where a term for years is limited over after a general and indefinite failure of heirs of issue, it is void, as being too remote.

15. A lessee for 1,000 years devised his term to L.; and if he died without issue, then to B. The Court held that the devise over was void, and that the whole estate vested in L. his executors and administrators.

16. A person devised a term for years to his wife for life, and after her decease, to Nicholas his son for his life; and if Nicholas his son should die without issue of his body begotten, then he devised it over to Barnaby.

The whole Court was unanimously of opinion that the bequest to Barnaby was void; for that as he could not take until the death of Nicholas without issue, it was the same in effect as if it had been to Nicholas and the heirs of his body, with remainder to Barnaby; which would have been clearly bad; because after a term was devised to one and the heirs of his body, no other limitation, nor any ap

pointment of it 'by way of executory devise, could be made; for the law would not presume any term to have continuance so long as issue of the body might continue; and therefore a limitation after an indefinite failure of issue, depended upon too remote a possibility.

17. In cases of this kind, the bequest over cannot Such Limitabe supported as a remainder, by raising an estate tail tion not supported as a in the first taker, because a term for years cannot Remainder. be entailed; nor can a remainder over be limited of a term after a disposition of it to a person and the heirs of his body, because such a disposition gives the entire and absolute property of the term, so that nothing remains to be given over.

18. It was formerly held, that though the failure of issue was confined to the period of a life in being, yet the bequest over was void.

Where the
Issue is con-

Failure of

fined to the Time pre

scribed, it is good.

Child v.

19. A person possessed of a term for years devised it to D. his wife for life, and after to William his eldest son, and his assigns; and if he died without Bayley, issue then living, to Thomas another son. This was Cro. Ja. 459. held a void devise to Thomas.

20. The doctrine laid down in the above case was departed from in the reign of Charles II.; and it was held, that where a term for years was limited over, upon a failure of heirs or issue, if there were words to restrain the failure of such heirs or issue within the compass of a life or lives in being, and twenty-one years and some months after, the limitation would be good; as being within the rule established by the courts for preventing perpetuities.

infra.

21. Henry Frederick Earl of Arundel, by inden- Duke of Nortures of lease and release, dated in 1647, settled the folk's Case, barony of Graystock, and other estates, on himself 2 Cha.R. 119.

K k 3

3 Cha. Ca. 1.

Pollexf. 223.

for life, remainder to his lady for life, remainder to trustees for a term of 200 years, remainder to his second son Henry Howard in tail male, remainder to his third son Charles Howard in tail male, remainder to all his other sons successively in tail male, remainder over. And by another deed of the same date, the Earl of Arundel declared the trust of the term of 200 years to be, that the said term should attend the inheritance; and the profits of the said barony, &c. should be received for the said term of 200 years by Henry Howard and the heirs male of his body, so long as Thomas Lord Maltravers, the eldest son of the said Earl of Arundel, or any issue male of his body, should be living; but in case Lord Maltravers should die without issue male, in the life of Henry Howard, not leaving his wife ensient with a son, or in case, after the death of Lord Maltravers without issue male, the honour of the earldom of Arundel should descend to Henry Howard, then he and his issues to have no benefit of this term of 200 years, but it was to descend to the other brother, Charles Howard, the plaintiff.

The Earl of Arundel died in 1652; his lady died in 1673; and in 1675 Lord Dorchester, who was the surviving trustee of the term, assigned it to one Marriot, who assigned it to Henry Howard, who suffered a recovery of the estate to the use of himself in fee.

In the year 1677, Thomas Lord Maltravers, the elder brother of Henry, who became Duke of Norfolk by the death of his father, died without issue, whereby the dukedom descended to Henry; and the plaintiff Charles Howard's bill was, to have execution of the trust of the term, to him and the heirs male of his body,

The cause was argued before Lord Chancellor Nottingham, assisted by the Chief Justices North and Pemberton, and Lord Ch. Baron Montague.

for

The two Chief Justices and the Chief Baron agreed that the limitations of trusts of terms for years, and executory devises of them, ought to be governed by the same rules. That no limitation over of a term years, after an estate to a person and the heirs of his body, had ever been permitted: that as no direct remainder could be limited over in such a case, so neither could a contingent remainder be limited over, though the event on which it was limited should happen ever so soon. That the case of Child v. Bayley was a positive authority against the validity of a limitation of this kind, the admission of which would be productive of perpetuities. They were therefore unanimously of opinion that the limitation over to Charles Howard was void.

Lord Nottingham said, the great objection which had been made to the validity of this limitation was, that it tended to a perpetuity. A perpetuity was the settlement of an estate or interest in tail, with such remainders expectant on it as were not in the power of the tenant in tail to dock, by any means whatsoever, but must continue as perpetual clogs on the estate. But future interests, springing trusts, or trusts executory, and remainders which were to arise upon contingencies, were quite out of the rules and reason of perpetuities, if they were limited on events which must soon happen.

No principle of law had been laid down oftener than this, that there could be no remainder of a freehold estate limited after a fee simple; yet the nature of things, and the commerce between man and man, had induced the Judges to relax this rule, and allow