ante, c. 17. 21. quent limitations vested, yet were they not destroyed; because it was held that the inheritance vested in the trustees was as sufficient to support them, as if there had been estates limited for that particular purpose. 27. In the case of Stephens v. Stephens it was held, that till the estate became vested in some one of the testator's grandsons, who attained 21, the limitations over, to the daughters of his daughters, must have been executory devises. But as soon as ever the estate should become vested in a son, then those Edwards, subsequent limitations must of course take effect as vested remainders, upon the preceding estate tail in such son. Brownsword v. ante. Ex. Dev. 498. 28. But when a preceding freehold has once vested, Mr. Fearne says, no subsequent accident will make a contingent remainder enure as an executory devise. This being a direct consequence of the rule above ante, c. 17. stated, that wherever a devise may be construed a contingent remainder, it shall never be considered as an executory devise. § 11. Distinction between Executory De 29. It has been held that where an executory devise is limited per verba de præsenti, that is, vises per where the devisee is mentioned as a person in verba de præsenti, present existence, and the commencement of and per verba the estate devised is not expressly deferred to a de futuro. future period; there the devisee must be a person capable at the death of the devisor, otherwise the devise will be void. As if one devise immediately to the heir of J. S., and J. S. is living at the death of the testator; it is said that the devise shall not be con 1 Salk. 226. strued an executory devise, and therefore must be void; but that if it were to the heir of J. S. after the death of J. S., that would be clearly good as an executory devise, because a future time is mentioned. 30. So it has been said that a devise to the first Id. 229. son of A., he having no son at the time, is void; but if it were to the first son of A. when he shall have one, it will be good. Though Lord Ch. J. Bridge man said, that a devise to J. S. for fifteen years, re- T. Raym 83. mainder to the right heirs of J. D., is not good; but that a devise to one for fifteen years, remainder to the first son of J. D. is good; because the devisor takes notice that A. has no son, and intends a future act. 31. It has been already stated that a devise to an ante, c. 18. infant in ventre matris is good; and in the case of § 4. Gulliver v. Wickett, the Court held that the limita- ante, § 15. tion to the child of which the wife was supposed to be ensient, if there had been no devise to the wife for life, being in futuro, would have been a good executory devise. Tit. 12. c. 1. ton, 1 Wils. 32. In the case of Chapman v. Blisset, Lord § 30. Talbot held that the devise to the unborn children of Doe v. Carlethe testator's grandson, though made per verba de R 225. præsenti, should take effect as an executory devise, Barnes, the intention being clearly future. Harris v. 4 Burr. 2157. 33. Mr. Fearne concludes his observations on this Ex. Dev. 520. subject by saying, that whatever force is to be allowed to the distinction between executory limitations per verba de præsenti and per verba de futuro; it can only affect those cases where there is not the least circumstance from which to collect the testator's contemplation or intention of any thing else than an immediate devise, to take effect in præsenti. 34. Where there is an executory devise of a real estate, and the freehold is not in the mean time disposed of, it descends to the testator's heir at law. The Free descend the mer time to Heir. c.44. 35. Thus, in Pay's case, which has been already ante, c. stated, it was held that the freehold and inheritance § 2. Idem, § 3. ante, c. 18. § 15. And also the Profits. of the lands devised, descended to the heir at law. So in Clarke v. Smith, the estate was held to have descended to the heir of the testator, and continued in him for six months. 36. In the case of Gore v. Gore, Lord Hardwicke and the other Judges of the Court of K. B., to whom the case was secondly referred by the Court of Chancery, certified that the executory devise was good, "and that the freehold of the said manors, on the death of the devisor, vested in his heir at law." 37. Where there is a preceding estate limited, with intermediate an executory devise over of the real estate, the intermediate profits, between the determination of the first estate, and the vesting of the limitation over, will go to the heir at law, if not otherwise disposed of. ante, § 25. Bullock 1 Salk 38. Thus, in the case of Hopkins v. Hopkins it was decreed that till John Hopkins had a son, the rents and profits should go to the heir at law of the testator; and afterwards a son being born to John Hopkins, upon the death of that son, it was decreed that the rents and profits should belong to the heir, till some other person should become entitled under the limi tations in the will. 39. A testator devised his real estate to trustees, and willed that the first son of John Stones, when he came to 21, should have it, and his heirs for ever; and that he should be well educated. had no son when the testator died. John Stones Lord Hardwicke said, this was a good executory devise to the first son of John Stones, when he attained 21; and as to the rents and profits in the mean time, where there was an executory devise, whether of a legal or a trust estate, the rents and profits went to the heir at law; because the legal estate in the one case, or the trust in the other, descended in the mean time to the heir at law. But this intermediate interest, or benefit arising to the heir at law would determine when John Stones had a son, for that son's education must come out of the rents and profits. 40. But a devise of all the rest and residue of the A Devise of real estate will pass, as well the profits from the the Residue will pass such testator's death to the time of the estate's vesting, Profits, as those from the determination of the first estate to the vesting of a subsequent one. § 21. 41. Thus in the case of Stephens v. Stephens it ante, c. 17. was determined, with the advice of the Judges, that the intermediate profits passed to Sir R. Stephens, by force of the residuary devise, as an interest in the real estate not otherwise disposed of. 1 Ves. 485. 42. A testator devised all the rest and residue of Rogers v. his real and personal estate, of what nature or kind Gibson, soever, to such child or children as his daughter should have. Gale v Gale. It was held that the profits, from the testator's death to the birth of a child of his daughter, should pass 2 Cox R. under this devise. 136. devisable. 43. It was formerly held that contingent estates in Executory freehold property were not devisable; but it has been Interests are already stated that the law is now altered in this re- ante, c.3. spect; and therefore executory estates, and possi- $ 22. bilities accompanied with an interest, which would be descendible to the heir of the object of them, dying before the contingent event on which the vesting of the estate depended, are devisable. 44. Executory interests in terms for years were always held to be devisable. 45. A person possessed of a term for years in lands, Veizy v. devised the same, after his wife's death, to his son. Pinwell, Pollexf. 44. The son made his will, and thereby gave the lands Wind v. And also assignable. Thimpland v. Courtenay, devised to him by his father's will to the plaintiffs, and died in his mother's lifetime. The Lord Keeper decreed the lands to be enjoyed by the plaintiffs, according to the will of the son. 46. A. devised a term for years to B. for life, remainder to C., who in the lifetime of B. disposed of this remainder by will. It was decreed that the bequest was good; and amounted to C.'s, declaring by his will that his executor should stand possessed of the term, in trust for the devisee. 47. At common law a possibility was held not to be assignable, although in certain cases it might be released; but the Court of Chancery has, in many instances, determined that a possibility of a term for years is assignable. 48. A person possessed of a term for 1,000 years 2 Freem. 250. bequeathed it to B. for 50 years, if he should so long live, and after his decease to C., and died. C. assigned it to D. during the life of B.; and this assignment was held good. Theobalds v. Duffey, 2 P. Wms. 608. Vide Wright May be passed by Fine and released. 49. A person devised a term for years to his wife for life, remainder to his son and daughter. The daughter and her husband, in the lifetime of the wife, assigned over their moiety; and after the death of their brother they assigned over the other moiety, the mother being still alive. This assignment was established by the Court of Chancery, and also by the House of Lords. 50. Executory interests, or possibilities in freehold estates, may be passed at law by deed, fine, and common recovery, by way of estoppel; of which an Tit. 35. c. 12. account has been already given and may also be § 7. released in certain cases. |