missible to 51. An executory interest, whether in estates of Descendible inheritance or terms for years, is descendible, and and transtransmissible to the heirs or executors of the devisee, Heirs and Executors. where such devisee dies before the contingency happens; and if not disposed of before, will vest in such heirs or executors when the contingency happens. v. Wood, 112. The question Willes R. 52. A testator devised to A. and his heirs, and if Gurnell he died before 21, then to B. and his heirs. A. died 8 Vin. Ab. before 21, but B. died before him. was, whether B.'s heirs should take. clearly held, that though B. died in the lifetime of A., yet his heirs might well take under the executory devise; for that such a devise was not to be considered as a mere possibility, but as an interest of the same nature as a contingent remainder, and consequently transmissible. 2 Wils. R.29. ante, c. 8. 53. George Paynter devised freehold and copyhold Goodright v. messuages to his son George Paynter, his heirs and Searle, assigns for ever; but if he should happen to die be- Scott v. fore he attained his age of 21 years, leaving no issue Scott, living at the time of his death, then he devised the § 13. same premises to his mother Catherine Paynter, her heirs and assigns for ever. After the decease of the testator, his mother Catherine Paynter died in the lifetime of George Paynter the son, who afterwards died under age, and without issue. The question was, whether this executory devise descended to the heir of Catherine Paynter. And it was determined that the lands vested in the heir at law of Catherine Paynter, upon the happening of the contingency, viz. upon the decease of George Paynter under age, and without isrue.* *This case has been confirmed by a recent judgment of the Court of C. B. Goodtitle v. White, Bos. & Pul. N. R. The Court of Chancery will restrain Waste. Robinson v. Lytton, MSS. Rep. 3 Atk. 209. 54. In cases of contingent or executory interests, the Court of Chancery will interfere in behalf of those who are entitled to such interests, to prevent unreasonable waste being committed by the persons in possession. 55. Robinson Lytton devised all his estates, out of settlement, to the defendant his only son, and to his heirs and assigns for ever. And in case his said son should not live to attain the age of 21 years, leaving no issue by him lawfully begotton, then and in such case he gave his said estate to his first and every other daughter in tail. And he further directed, that in case his said son should attain the age of 21, his estates in London, Sussex, &c. should be sold; and the monies arising from such sales he gave to all his daughters, the plaintiffs, in equal proportions, as an addition to their fortunes; and in case one or more of his said daughters should die, then her share to go to the survivors. The testator died in 1732, and the defendant his son, being still under age, and going to cut down timber, the plaintiffs brought their bill for an injunction to stay the defendant from falling timber, as contrary to their father's will, who intended them the whole benefit of the estates in question, in case his son should attain to 21. For the defendant it was insisted, that by the express words of the will he had the fee in him, which could be divested only upon a contingency that might never happen; and that the Court would not restrain a person, having the inheritance, from committing waste. That it was unreasonable to put a man in a worse state with regard to his own interest, because after his own interest determined, he had one for a third person, and cited Savil v. Savil. Lord Hardwicke.-If the defendant has a legal right to cut down timber, and there be no equitable circumstances in the case, he ought not to be restrained from the exercise of this right; but if there be any such, he ought. I did not think fit to determine the matter upon a petition, but thought it proper for a bill. As to the testator's intent, he never meant that his son should, before he attained 21, fell all the timber on these estates, which were devised to be sold, for the increasing his daughters' portions; and it might happen that the value of the timber, when felled, would equal, or perhaps exceed that of the land: and his meaning must have been to give it of the same value it was at his death; which must be the same timber that was on it at that time. Suppose the greatest part of this estate were meadow ground, and the defendant was going to plough it, by which he would greatly increase his present profits, but reduce the value of the land, by turning it into arable; would not the Court in such case grant an injunction? Certainly it would. The testator has given his son these estates only for a time, during which, in supposition of law, no waste will be committed; that is, till the defendant attains 21. For what guardian could cut down timber, and by that means turn part of the inheritance into personal estate? and this is a very material circumstance with regard to the testator's intent. The next consideration is, what are the words of this will, which, putting the two clauses together, amount to a gift of all his estates, which he had power over, to his son for ever; and that in case his son shall attain 21, then that the estates shall be sold, and the monies arising therefrom he gives to his daughters, by way of augmentation of their portions. Upon which it was said, by the Tit. 3. c. 2. $35. plaintiff's counsel, that the defendant is to be considered as a trustee of the inheritance, for the benefit of his sisters; and I am of opinion he is so, taking the profits to his own use until he attains 21. This Court has gone greater lengths in granting injunctions to stay waste than the courts of law have in granting prohibitions against waste; as where there has been an interposing estate for life, remainder in fee, in which case no action of waste lies, during the continuance of the mesne remainder, 1 Inst. 54. And injunctions have been granted to the remainder-man, notwithstanding the interposing estate for life. So where there has been tenant for life, remainder for life, without impeachment of waste, remainder in fee, the Court has restrained the remainder-man for life, during the continuance of the first estate for life, because of the possibility of his dying before the first Tit 15. c. 2. tenant for life. The like in mortgages, where a mort§ 16. gagor has been in possession, the Court has restrained him from cutting down timber, without inquiring whether the estate itself was sufficient to answer. Now this is much stronger in the case of a trustee; and here it is the same as if he had, said " I give this estate to my son and his heirs, to the intent he may receive the profits till 21; and after 21, then to be sold for my daughters portions." In which case the Court would certainly have restrained the defendant. There are three kinds of interest taken notice of in this Court-The legal estate at common law; the use, which now by 27 Hen. VIII. draws the legal estate to it; and the beneficial interest. Now how. does it stand upon this devise? The legal interest is in the defendant; and as to the beneficial interest, that belongs to him till 21, and then the whole is a trust for the benefit of other persons. If he does not attain 21, and leaves no issue, the estates go according to the several remainders limited thereon: if he does, they are to be sold for augmentation of his daughter's fortunes. It would therefore be unreasonable to suffer him to take away a considerable part of the value of estates intended for daughters' portions: nor will the Court enter into the value of these portions, nor of the proportion they bear to the son's estate; the father being the proper judge of the division of his property in his family. Several cases have been put upon waste, which have never been determined; only the Court arguendo has said it would do so or so. As that of an infant in ventre sa mere, where the estate descends in the meantime to the next heir. It has been said several times that the Court would grant an injunction to restrain the heir from waste; and I should certainly do it. So, in such executory devises as must take place within a reasonable compass, as in Gore v. Gore, ante, c. 18. where the freehold descends in the meantime, I doubt whether such an heir should be permitted to commit waste, and think he ought to be restrained. This injunction therefore must be made perpetual, there being no other way to preserve the benefit which the testator intended his daughters; but without costs on either side. § 15. tion. 56. It has been determined in a late case, that a Of Trusts of testator may direct the rents and profits of an estate, Accumulawhereof an executory devise is made, to accumulate till the time when such estate becomes vested; and that the doctrine of executory devises, as to the time when they must vest, was applicable to a trust of accumulation. 57. Peter Thellusson being seised of very conside- Thellusson v. rable real estates, and of a very large personal estate, 4 Ves. Jun. Woodford, - 227. |