Sarah the daughter, and all the other daughters of the said Dame Mary by Sir Thomas, as tenants in common in tail; with remainder over to Richard Stephens, the testator's brother, in fee. But in case Thomas the son should die before the age of 21, and Sarah the daughter should then be dead, without issue, and there should be no other son of Dame Mary who should attain the age of 21 years, or any other daughter hereafter born of their bodies, then the estate will go to the said Sir Richard Stephens, by virtue of the last remainder to him in fee." Cases where 22. In the foregoing cases it is observable, that Distinction wherever a preceding executory limitation carried between the the whole interest, a subsequent limitation was not a subsequent Limitation considered as a limitation upon the preceding, and may become to take effect after it, but as an alternative, substi- good, and where not. tuted in its room, and to take effect only in case the preceding one should fail, and never take effect at all : and where a preceding executory limitation did not carry the whole interest, a subsequent one was considered either as becoming vested in interest, as a remainder expectant on the preceding estate, as soon as that took effect; or else as taking effect in possession at the time limited for the preceding estate to vest, in case that preceding one failed of taking effect. So that in either case it follows, that if the preceding limitation was not too remote in its creation, the subsequent one could not be so, being to take effect at the time limited for the first, or else not at all. It was therefore necessary to distinguish between instances of this kind, and those cases wherein either the preceding limitation is not executory, but vested, or there is no preceding limitation at all; for in either of such cases, the future limitation cannot be merely an alternative, but is VOL. VI. M m Sabbarton v. absolutely limited to take effect, either after the expiration of the preceding limitation; or else, if there be no preceding limitation, upon the happening of some future event. And therefore if the expiration of that preceding limitation be of too remote a nature, the future limitation is void in its creation, and no subsequent accident can make it good; because it is not, as in the former cases, limited to take effect, or to fail, upon the event of a contingency which must be determined one way or other within the period allowed by law for the vesting of an executory devise; but is limited absolutely, to take effect on an event which may not happen within such a period. 23. Thus although in the case of a devise of lands in fee to the first son of A. who shall attain the age of 21, and in default of such issue, remainder to B. in fee; such a limitation would fail or take effect according as the first limitation should vest or not: yet if a devise be to the heirs male of the body of C., and in default of such issue, remainder to D. in tail; here, if we suppose the first limitation void, the subsequent one is an absolute future limitation, to take effect after a dying without issue; and therefore though no heirs male of the body of C. should ever exist, such event will not make good the limitation to D., which was too remote in its creation, and could not be considered, as in the former case, merely as an alternative to a preceding limitation, and which 2 Burr. 878. must vest at the time limited for that preceding one to vest, or else not at all. A Limitation which was originally 24. It has been stated, that whenever a contingent limitation is preceded by a freehold capable of supportContingent ing it, it is construed a contingent remainder, and not an executory devise. But it is possible that the freehold so limited may, by a subsequent accident, Remainder may take fect as an Devise. become incapable of ever taking effect at all; as by Executory the death of the first devisee in the testator's lifetime; Fearne Ex. in which case the subsequent limitation, if the con- Dev. 492. tingency has not then happened, will be in the same condition at the testator's death, that is, at the time when the will is to take effect, as if it had been limited without any preceding freehold. Now in this case it has been held, that where such subsequent limitation could not vest at the testator's death, it should enure as an executory devise, rather than fail for want of that preceding freehold, which had never taken effect. Forrest. 43. 25. Mr. Hopkins devised his real estate to trustees Hopkins v. and their heirs, to the use of them and their heirs, in Hopkins, trust for Samuel Hopkins for life; and, from and after his decease, in trust for the first, and every other son of the said Samuel, and the heirs male of the body of every such son; and for want of such issue, in case John Hopkins (the father of Samuel Hopkins) should have any other son or sons of his body, then in trust for all and every such son and sons respectively and successively, for their respective lives, with the like remainders to their several sons, with the like remainders to the heirs male of the body of every such son, as before limited to the issue male of the said Samuel Hopkins; and for want of such issue, in trust for the first and every other son of the body of Sarah (the said John Hopkins's eldest daughter) lawfully to be begotten, with like remainders to the sons of John Hopkins's other daughters; and for want of such issue, then in trust for the first and every other son of his cousin Ann Dare, lawfully to be begotten, with like remainders to the heirs male of the body of every such son of the said Ann Dare; and for default of such issue, then in trust for his own right heirs for ever. Samuel Hopkins died in the testator's lifetime, without issue; and, some time after, the testator died. Nor had John Hopkins any other son, nor were any of the other remainder-men in esse at the testator's death, except a son of Ann Dare's. Lord Talbot." Two questions have been made upon this will. The first is, whether this limitation to the first and every other son of John Hopkins can now take effect as an executory devise? Or, whether it shall be taken as a contingent remainder, and, consequently, void for want of a particular estate to support it by reason of Samuel's death in the testator's lifetime; and that John Hopkins had no son in esse at the testator's death, when the remainder might vest? As to the first, I think it impos sible to cite any authorities in point: none have been cited. It seems to be allowed, that if things had stood as they did at the time of making the will, the limitation in question would have been a remainder, by reason of Samuel's estate, which would ante, c. 18. have supported it. So is the case of Purefoy v. $8. Rogers and limitations of this kind are never construed to be executory devises, but where they cannot take effect as remainders. So, on the other hand, it is likewise clear, that, had there been no such limitations to Samuel and his sons, the limita tion must have been a good executory devise, there being no antecedent estate to support it; and, consequently, not able to enure as a remainder; so that it must be the intervening accident of Samuel's death in the testator's lifetime, upon which this point must depend. And, as to that, I am of opinion, that the time of making the will is principally to be regarded, in respect to the testator's intent. And if, in this case, we consider it as an executory devise, the intent will be served in case John Hopkins has a second son but if it is taken as a remainder, the intent plainly appearing that a second son of John Hopkins should take, is quite destroyed, there being no precedent estate to support it as a remainder. The very being of executory devises shows a strong inclination, both in courts of law and of equity, to support the testator's intent as far as possible: and though they be not of ancient date, yet they are of the same nature with springing uses, which are as old as uses themselves. I can see no difference be tween this case and the others of a like nature that have been adjudged; and if such a construction may be made consistently with the rules of law, and agreeable to the testator's intent, it would be very hard not to suffer it to prevail. In Pay's case, had the ante, c. 18. $2. testator lived to Michaelmas, the limitation had been a remainder. And if a remainder in its first creation does, by any subsequent accident, become an executory devise, why should it not be good here, upon the authority of that case, where, by the testator's death before Michaelmas, what would otherwise have been a remainder, was held to be good by way of executory devise. I think that, in this case, the limitation would operate as an executory devise, if it was of a legal estate; and therefore shall do so as a trust, the rules being the same." 26. Soon after the above decree was made, John Hopkins had issue William Hopkins, a second son; upon which it was held, that the executory devise having thereby once vested, the subsequent limitations thereupon became contingent remainders. And though such son afterwards died before the subse 1 Ves. 269. 1 Atk. 581. |