that if it were an estate of inheritance, it would give an estate tail, the absolute interest vests in the first taker; but if the limitation be with a double aspect to A. and to the issue of his body, if there be any such issue living at his death, if not then over, it is Forrest. 245. a good limitation. It was so settled in Sabbarton v. Sabbarton, and a variety of other cases, some of which are not in print. Here the words of the will are, 'to S. Parker and the heirs of his body, and to their heirs and assigns for ever.' If those words stood uncontrolled by any thing subsequent in the will, the absolute interest would have vested in him; but other words are added, but in default of such issue, then, after his decease, to go to the testator's grandson.' There is a case in the books to show, that then and when are adverbs of time. Then at what time was the estate to go over to the testator's grandson? at the death of S. Parker, if he left no issue. There is nothing in the will to show that the testator intended that the limitation over should not take effect until future generations; but on the con trary, there is sufficient to show that he intended that the estate should, in one event, vest in the grandson at the time of S. Parker's death, and that is within the time which the law allows in the case of executory devises.

1

"The rule respecting executory devises is extremely well settled; and a limitation by way of executory devise is good, if it may take place after a life or lives in being, and within twenty-one years and a fraction of another year afterwards. before observed, this is a question of intention; and I am clearly of opinion, that the testator's inten tion was, that if S. Parker did not leave any issue

As I

at his death, the subsequent limitation should take effect."

The Court certified that T. Wilkinson was entitled, under the will of E. Parker, to the absolute and entire interest in the leasehold premises.

tion between

cation.

1 P. Wms.

33. Mr. Fearne says, a diversity has in some cases No Distincbeen contended for between a limitation of a term, Words giving by such words as, in the case of a real estate, would an express Estate Tail, give an express estate tail; and a limitation of the or by Implisame, by such words as, in the case of a real estate, would give only an estate tail by implication; upon 433. this principle, that where the words of a will, if used 3 -- 268. with regard to inheritance, would give an express estate tail; there the same words applied to a term, would pass the whole interest in the term. But that where the words of the will, if applied to the freehold, would give an estate tail by implication only, there they would not enure to give the whole interest in that term, and consequently that where a term was limited to one, and if he died without issue, remainder over, this limitation would not vest the whole term in him, as a limitation to the heirs of his body, or to his issue, would do, but were always to be understood restrictively, and to relate only to his dying without issue living at his death, and therefore gave him the term only during his life.

34. The ground of the distinction is this: in respect to an inheritance, the words dying without issue, are taken to mean an indefinite failure of issue in order to create an estate tail in favour of the issue who are capable of taking an inheritance; but with 1 P. Wms. respect to a term, such a construction cannot benefit the issue, because a term cannot descend to them. In some instances the Court seems to have countenanced a distinction of this sort; but in all those

667.

cases there were some circumstances in the will, which the Court observed, confined the generality of the expression, dying without issue, to dying without issue then living. But it has been frequently determined that the limitation of a term over, after a dying without issue, even in such cases where the limitation could only have given an estate tail by implication in a real estate, is to be taken in the Vide Fearne, legal extent of the expression, and therefore the limitation over being in that sense too remote, is utterly void.

Ex. Dev.233.

Nor between a Devise for

Life and an indefinite Devise.

ante, § 16.

Clare v.
Clare,

Forrest. 21.

35. It is the same thing whether a devise of a term be to one for life expressly, and if he die without issue, remainder over; or to one indefinitely, and if he die without issue, remainder over.

36. Thus, in the case of Love v. Windham, the devise was to one for life expressly, and if he died without issue, remainder over; and yet the remainder was held void.

37. W. Clare being possessed of a long term, devised it to trustees, in trust for his son Thomas Clare, for so many years of the term as he should live; and after his death, in trust for the issue male of his son Thomas, lawfully begotten, for so many years of the said unexpired term as such issue male should live; and when the issue male of his said son Thomas should happen to be extinct, then in trust for his second son, in the same manner.

The question was, whether the limitation over to the second son, after failure of issue male of Thomas, was not void. Lord Talbot held, that the subsequent limitation to the issue of Thomas did not enlarge the express estate for life given to him; but he also held, that the remainder over upon the extinction of issue male of Thomas, which was equiva

lent to a dying without issue, when taken as an in- Vide Fearne, definite failure of issue, was void.

Ex. Dev. 275.

Devise for

Life after a general Fai lure of Issue,

is good.

38. An executory devise of a term for years for An Executory life to a person in esse, to take place upon a dying without issue of another, 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 is in that case confined to the compass of a life in being. 39. W. Wilson being possessed of a term for years, Oates v. assigned the same to trustees, in trust that he should Chalfont, receive the profits during his life; and after his death for Mary his wife, during her life; and after her death, that John Oates should receive a moiety of the profits during his life; and after his decease, his child or children during his, her, and their lives; and for want of such issue, or after the decease of the child or children of Edward Oates, to permit Sarah Chalfont to receive the profits during her life.

Pollex. 38.

3

Atk. 449.

Doe v. Lyde,

The question was, whether the limitation to Sarah Chalfont was good; and the Lord Keeper Finch declared, that the trust being expressly limited for life, the same did not tend to a perpetuity, and therefore 593. was good.

1

Term R.

Where one

Limitation is executory, all

so likewise. Exec. Dev.

334.

MR. FEARNE lays it down that where one limita

tion of a devise is taken to be executory, all

the others are subsequent limitations must likewise be so taken. Thus, Serjeant Pemberton says, the several limitations of a devise of one and the same thing shall never be made to operate several ways; viz. some by way of executory devise, and others by way of remainder.