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JOHN BYRNE & CO.
LAW BOOKS
1333 F Street N. W.
WASHINGTON, D. C.
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THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
AN E S S A Y
ON THE LEARNING OF
CONTINGENT UEMilNDERS
AND
EXECUTORY DEVISES.
By CHAULES FEAIINE, Esq.
BARRISTER AT LAW, OF THE INNER TEMPLE.
FOURTH AMERICAN, FROM THE TENTH LONDON EDITION;
CONTAINING THE
ilotcs, (tnscs. nnti other fatter aUtretJ to the former 2utiCt(ous
By CHARLES BUTLER, Esq.
OF LINCOLN's-INN, BARRISTER AT LAW.
WITH AN
OEIGINAL VIEW or EXECUTOEY INTERESTS
IN
ntnl anJJ pergonal ?3vo»ett|>,
COMPRISING
THE POINTS DEDUCIBLE FROM THE CASES STATED IN THE
TREATISE OF FEARNE,
A3 WELL AS STATEMENTS OF, AND THE CONCLUSIONS FROM,
THREE HUNDRED ADDITIONAL MODERN CASES,
TOGETHER WITH REFERENCES TO NUMEROUS OTHER DECISIONS,
AND
SO CONNECTED WITH THE TEXT OF FEARNE, AS TO FORM
A BODY OF NOTES THERETO.
By JOSIAH W. SMITH, B. C. L.
OF LINCOLN'S-INN, BARRISTER AT LAW.
IN TWO VOLUMES.— VOL. IL
PHILADELPHIA:
ROBERT II. SMALL, MINOR STREET.
1815.
r
AN
ORIGINAL VIEW
OF
EXECUTORY INTERESTS
IN
REAL AND PERSONAL PROPERTY,
COMPRISING
THE POINTS DEDUCIBLE FROM THE CASES STATED
IN THE TREATISE OF FEARNE,
A9 WELL AS STATEMENTS OF, AND THE CONCLUSIONS FROM,
THREE HUNDRED ADDITIONAL MODERN CASES.
TOGETHER WITH
REFERENCES TO NUMEROUS OTHER DECISIONS,
AND
SO CONNECTED WITH THE TEXT OF FEARNE,
AS TO FORM
A BODY OF NOTES THERETO.
BY JOSIAH W. SMITH, B. C. L.
OF LINCOI.n's-INN, BARRISTKR AT LAW.
686808
PHILADELPHIA t
PRINTED BY WM. S. MARTIEN.
PREFACE
In submitting tlie following Essay to the indulgent considera-
tion of the profession, it may be proper to make a few remarks,
which may serve at once to explain its design, and to put the
student on his guard against the mistakes into which, in the
investigation of executory interests, he is liable to fall.
It may be safely affirmed, that there is no subject in the whole
range of legal learning, so abstruse as the learning of executory
interests, and yet, at the same time, none more practical and
useful.
Notwithstanding the assistance afforded by so many volumes
of ably drawn precedents, an accurate knowledge of this sub-
ject is highly requisite to all who are engaged in the practice
of conveyancing. This is evident from the many hundreds of
reported cases which have been brought before the courts, in
consequence of ignorance or imperfect knowledge on the part
of the individuals who have drawn the deeds or wills to which
such cases have related. And to the Bar, whose duty it is
to advise upon questions of property, as well as to discuss them
in court, an accurate knowledge of this branch of learning is
not only highly requisite, but indispensably and constantly
necessary.
But, however requisite or necessary it always has been, how
few could reasonably be expected to have attained it! We are
told by one of the greatest Judges who ever lived, that such is
the number and character of the decisions on the Rule in Shel-
ley's case and its kindred topics alone, that '' the mind is over-
powered by their multitude, and the subtlety of the distinctions
between them."t And yet these constitute but a part, and, in
their own nature, by no means the most difficult part, of the
subject of executory interests.
* Sec Preface to the present edition of^ Fearne, in the First Volume,
t 2 Bligh, 50.
vi PREFACE.
In the cases falling \villiin the scope of the following slieets,
the same words are frequently used in different senses ; some-
times in a generic sense, at other times in a specific sense ;
sometimes in the primary or original sense, at other times in a
derivative or secondary sense. Generic terms are repeatedly
used, where specific terms should have been employed ; and
sometimes a particular species of executory devises or uses is
spoken of as if it included the whole body of executory limita-
tions. Cases essentially dissimilar to each other are often im-
properly classed together; while, on the other hand, general
principles have not been deduced, where it was possible, though
difficult, to deduce them. Rules have been laid down, without
the necessary qualifications. Dicta and opinions stand in real
or apparent opposition to each other at every turn. Cases have
been frequently decided upon the authority of others which in
reality were not in point, or otherwise upon wrong grounds,
even where they have been rightly decided. Some decisions
are really at variance wdth others ; while many more appear to
be conflicting, when in reality they admit of reconciliation.
And the frequent result of all this has been, that the student
has scarcely ventured to attempt to gain an insight into such
an intricate subject, or has risen from a consideration of it with
a notion that he had mastered its difficulties, when in truth his
head has only been filled with vague, confused, and erroneous
conceptions. Practitioners, and sometimes even judicial minds,
have been the victims of the most painful perplexity, and have
been led into the most serious mistakes : and points which would
or might otherwise have been set at rest for ever, have been liti-
gated again and again. In short, a general and most baneful
igriorance has prevailedy wliicli the vagueness and endless discre-
pancies of the hooks, have rendered inevitable to most persons, and
excusable in all.
The absence of accurate divisions and definitions of the vari-
ous kinds of interests, conditions, and limitations, has been at once
the necessary consequence, and the most prolific source of the
ignorance and misapprehension that have so generally prevailed.
It has been the necessary consequence of that ignorance and
misapprehension; because, it is impossible accurately to divide
and define, without a clear, correct, and com]ilete view of the
whole subject. And it has been the most prolific source of that
ignorance and misapprehension ; because, accurate divisions
and definitions are as essential for the assistance of the student
and the practitioner, in this abstruse and intricate subject, as
PREFACE. vii
are the deliiiitioiis of the several parts oi speech, and the ar-
rangement of nouns into declensions, and verbs into moods and
tenses, in a Greek onimniar, for the assistance oftlic student in
classics: and the state of perplexity aud confusion which has
been so common, in regard to executory interests, has been as
■unavoidable as that which the student in classics would ex-
perience, if he were to plunge at once into the most difficult
authors, without the guidance of a grammar.
The author has not"specifically pointed out the passages which
might be adduced in illustration of the foregoing remarks. To
have done so, would have swelled out the work to a very great
bulk, and have given the whole of it a censorious complexion,
utterly repugnant to his feelinqs. In some few cases, it has
been absolutely necessary to point out particular instances of
mistake or inadvertence on the part of the profound Author, and
the very eminent Editor of the former editions, of the admirable
Treatise to which these pages are subjoined. But, generally
speaking, he has avoided so disagreeable a task ; and he has
carefully abstained from specifically noticing any misapprehen-
sion or oversight in living autliors, lest, possibly, he might be
inflictinof an injury, where it would be more consonant to his
inclinations to speak in terms of eulogy, or, if he were able, to
lend a helping hand.
Under these circumstances, the design of the following Essay
has been, to divide or analytically arrange the various kinds of
interests, conditions, and limitations, in such a way as to exhibit
their intricate variety at one perspicuous view; — to frame cor-
rect definitions of them, so as generally, yet clearly, to distin-
guish them from each other, preparatory to an examination of
those special cases in which some interests must be particularly
distinguished from others that are apparently identical in their
nature ; — specifically to distinguish between these interests, and
to add such other distinctions upon miscellaneous points, as
might seem to be required, by means of precise rules and pro-
positions, sujiported and illustrated by abstracts of cases; — to
point out the grounds and reasons of the several distinctions ; —
and to deduce general princijiles from "a crude discordant
mass" of decisions, "long permitted to accumulate in silent and
indescribable confusion;"* — and thus to give an accurate, well-
defined, and 2'>erspic}ious view of executor}/ interests, reconciling
and harmonizing, to the utmost possible eitent, apparentlij rlash-
* Haves on Limitations, Introd. \>. IS.
viii PREFACE.
ing cases, jarring dicta, and discoi'dant passages, and commend-
ing itself to reason and the analogy of law.
Such is the attempt made in the following pages. How far
it is snccessful, it remains for others to decide.
Some of the definitions are rather of the length of descrip-
tions. But what, it may be asked, is the use of definitions
■which are so short, that they convey no clear notions except to
him who is well acquainted with the nature of the things de-
fined, before he reads the definitions thereof?
The Reader will observe numerous references to cases as
stated by Fearne, and to some as stated by Roper. The author
thought it expedient to contract, in some degree, the field of his
labour, lest he might be compelled or tempted to take only a
cursory or superficial view of his subject ; and, for this reason,
he has only given abstracts or statements of cases decided
within the last fifty years, except in one or two instances ; and
has almost always relied upon the abstracts or statements of the
earlier decisions by Fearne and Roper, and in one or two in-
stances, by some other writer. But he has not implicitly
adopted or relied upon the rules or propositions which they
have deduced from the cases, but has made or added such
qualifications or modifications of those rules or propositions, or
deduced such fresh conclusions from the earlier cases, as seem-
ed to be requisite, upon a careful consideration of their abstracts
of those cases, and of the later cases abstracted by himself. To
have given statements of the cases correctly stated in Fearne,
would of course have been superfluous; and as those earlier
cases which relate to chattels personal and are not in Fearne, are
very fully stated in Roper's Legacies, a work which is in the
hands of most members of the profession, it seemed sufficient
merely to refer to those cases, as stated in Roper, in support of
the rules and propositions laid down in regard to such chattels
personal.
The references to Fearne are to the pages of the third edition,
printed in the margin of the present edition, within brackets, as
in the ninth and other intermediate editions.
The abstracts or statements of many of the cases may at first
sight seem unnecessarily lengthy: but the author has only
given (as compendiously as he could, consistently with adher-
ing to the words of the Judges,) what he considers a sufficiently
full abstract of the several cases, and the grounds of the several
decisions, with the view of saving the practitioner, as much as
possible, the necessity of referring to the Reports themselves,
PREFACE. ix
by enabling him to discern, at once, whether the case before
him is governed by previous cases, or may be distinguished
from them. To eiitiljlc him to do this, it was necessary to spe-
cify the grounds on which these cases were decided, as well as
to state the cases themselves: for, it frequently happens, that
one case may closely resemble another in terms, but yet may
not be affected by it; inasmuch as the principle of the one is
not at all applicable to the other, or the one may have been
decided upon grounds peculiar to itself, and not constituting
any general principle of law. And in taking this course, the
author has only been following the example of Fearne himself.
The Student will find the distinctions, points, and principles,
embodied in rules or propositions, or in distinct passages, in-
stead of being obliged to search for them in the discussion of
cases ; so that he can either read the cases, as illustrations of
the rules or propositions, or can pass over them entirely, and
possess himself, with comparative facility, of the result of the
author's labours.
With reference to the title, "An Original View," the author
is particularly desirous of observing, that the work was not com-
menced or carried on with the endeavour or the wish to broach
novel opinions. Though he believes, that as a whole, it is as
original as any law book, supported by authorities, can be ; yet,
originality was not his object; and so fa?' from being partial to
his own first impressions, or from affecting novelty, he has all
along considered that there is a most vehement presumption in
favour of the actual decisions of the Judges, as distinguished
from their extra-judicial dicta ; because they have had the im-
mense advantage of hearing both sides of the argument ably
discussed ; and, tlierforc, he lias always striven to reconcile
their decisions with each other, and with principle; and in the
A'ery few instances in which he has ventured to question the
soundness of a decision, he has done so with extreme re-
luctance. And with respect to the text books, he has gladly
availed himself of the authority of such standard words as Coke
upon Littleton, Sheppard's Touchstone, Blackstone's Commen-
taries, and the Treatise of Fearne, even where the support
afforded by them is but indirect or partial.
Where the points have been deduced or collected, rather
than co})ied from, or in terms furnished in, the works of these
and other writers, or in the reports of cases, the author has
prefixed the word "see'' to the reference. And the letters
which refer to the authorities at the bottom of the pane, arc
Vol. II.— B
X PREFACE.
printed both at the beginning and ending of the points support-
ed by such authorities. This plan was adopted out of caution,
in order that in considering any particular point, the reader
might see more clearly the authority upon which it rests.
Having explained the nature of the present attempt, the
author may be permitted to add, that while it has afforded him
the highest intellectual gratification, it has at the same time
occasioned him the most intense and distracting thought, inso-
much, that in several instances, he must have fallen a victim to
it, had he not been preserved and supported by the gracious care
of Him " in whose hand it is to give strength unto all." Yet,
notwithstanding all the labour he has bestowed, it would per-
haps be presumptuous in him to suppose, that he has not fallen
into any misconceptions, or that he is not chargeable with any
inadvertencies. Indeed, it is with feelings of the most unfeign-
ed diffidence, that he ventures to submit these pages to the judg-
ment of the profession. He does so in the humble hope, that,
bearing in mind the fallibility of those who criticise, as well as
of those whose writings are the subjects of criticism, and the
liability, indeed, even of the most acute and profound to fall
into error, where the distinctions are necessarily so subtle, and
the relations so complex; and remembering also, that error is
often more plausible than truth; the Reader will hesitate before
he condemns or censures what has been the result of such close
consideration; and, that if he should consider any part of the
Essay to be erroneous or faulty, after w^ell weighing the same,
he will not be unwilling to make those allowances which the
unusual difficulty of the work would seem to entitle the author
to claim at his hands.
17, Lincoln's Inn Fields.
AN ANALYSIS
OF THE FOLLOWINO
ESSAY ON EXECUTORY INTERESTS
PART I.
THE VARIOUS KINDS OF INTERESTS, AND THE DIFFERENT
SORTS OF CONDITIONS AND LIMITATIONS ON WHICH THEY
DEPEND, OR BY WHICH THEY ARE CREATED OR AFFECTED,
ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED.
CHAPTER I.
THE DIFFERENT KINDS OF CONDITIONS ON WHICH INTERESTS MAY DE-
PEND, OR BY WHICH THEY MAY BE AFFECTED, ANALYTICALLY AR-
RANGED, DEFINED, AND DISTINGUISHED.
1. Knowledge of conditions essentially necessary.
2. Division of conditions, in the widest sense of the term.
3. A second division of conditions, in the widest sense of the terra.
4. Division of conditions properly so called.
5. Definition of an express condition.
6. Definition of an implied condition.
7. Definition of a direct condition.
8. Definition of an indirect condition.
9. Definition of a general condition.
10. Definition of a special condition.
11. Division of general conditions,
12. Definition of a condition subseqncnt.
13. Definition of a condition precedent.
14. Definition of a mixed condition.
15. Two forms of conditions subsequent.
16. Definition of a condition subsequent of the concise or implied
form.
17. Definition of a condition subsequent of the unconci.se or ex-
plicit form.
18. 19. The two forms of conditions subsequent illustrated.
xii AN ANALYSIS OF THE FOLLOWING
20. Definition of a mixed condition of the destructive and creative
kind.
Mixed conditions sometimes termed conditions precedent, and
sometimes conditions subsequent.
2L Mixed conditions distinguished from certain others.
22. Definition of a mixed condition of the destructive and accele-
rative Ivind.
The Earl of Scarborough v. Doe d. Savile, 3 Ad. & El. 897.
23. Definition of a defeasance.
CHAPTER II.
THE DIFFERENT KINDS OF LIMITATIONS, IN THE ORIGINAL SENSE OF
LIMITS, BY WHICH INTERESTS MAY BE RENDERED DETERMINABLE,
ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED.
24. Two senses of the word "hmitation;" viz. the original sense,
and the derivative sense.
26. Definition of a limitation, in the original sense.
27. Division of such limitations.
28. Definition of a general limitation.
29. Necessity for division of estates into classes.
30. General limitations are either express or implied.
31. 32. Examples of express general limitations.
33. Instances of im]5lied general limitations.
.34. Definition of a special or collateral limitation.
35. Examples of special limitations.
36. Remarks on the term "collateral" applied to special limi-
tations.
37. Special limitations, either regular or irregular.
38. Definition of a regular special limitation.
39. Definition of an irregular special limitation.
40. Qualification of a regular limitation.
41. Definition of a direct regular limitation.
42. Definition of an indirect regular limitation.
43. Same contingency may be both a special limitation and a con-
dition precedent.
CHAPTER III.
THE DIFFERENT KINDS OF INTERESTS ANALYTICALLY ARRANGED, DE-
FINED, AND DISTINGUISHED.
SECTION I.
Introductory Definitions and Observations.
44. I. Definition of an interest, in the widest sense of the term.
45. II. Rights or interests either perfect or imperfect. A perfect
interest described.
ESSAY ON EXECUTORY INTERESTS. xiii
4G. III. Defiiiitioii of property or ownership.
47. IV. Definition of seisin.
48. V. Wlien a person is said to have a vested interest or actual
estate, and to be seised.
When he is not said to have a vested interest, or to be seised.
49. VI. Different modes of possession.
50. VII. Three kinds of interests commensurate with the dura-
tion of real hereditaments; viz., legal ownership, eijuitable
ownership, and mere possession. These may be eitlier
united or disunited.
51. VIII. Other interests which are not commensurate with the
duration of real hereditaments, and are always collateral
to the legal ownership.
52. IX. Legal ownership divisible into constituent periods, and
divisible either among successive owners, or among con-
temporaneous owners.
53. Each of whom has a part of the seisin, and a vested interest
or actual estate.
54. X. But it cannot reside in two different persons without pri-
vity of estate.
55. Illustration of the two preceding observations.
56. XI. The eqnitable ownership and the possession are of simi-
lar duration to the legal ownership.
57. XII. The equitable ownership cannot reside in two different
persons without privity of estate.
58. XIII. Into what portions the seisin, property, or ownership
is divisible.
59. XIV. The legal ownership or freehold and inheritance can-
not be in abeyance.
60 — 62. Consequences of this doctrine.
SECTION II.
The different Classes of Interests, in the ividest sense of the term,
defined and distinguished.
63. Definition of an interest, in the widest sense of the term.
64. Division of interests, in the widest sense of the term, in lands
or tenements.
65. I. Definition of a legal interest of freehold.
66. II. Definition of a legal interest for a term of years.
67. III. Definition of an eqnitable interest of freehold.
68. IV. Definition of an equitable interest for a term of years.
69. V. Definition of a quasi interest. The different species of
quasi interests.
70. VI. Mere precarious possessions.
71. VII. Definition of an expectancy.
72. VIII. Definition of a power of appointment.
73. IX. Definition of a charge.
xiv AN ANALYSIS OF THE FOLLOWING
74. X. Definition of a lien.
74a. Interests, in liie widest sense of the term, in j)erso7ial pro-
perty.
SECTION III.
The different kinds of Interests, of the measure of Freehold, in Lands
and Tenements, and Interests in Chattels, analytically arranged^
defiled and distinguished.
75. I. Division of fi-eehold interests with reference to the exist-
ence, &c. of the seisin, property, or ownership.
75a. Two modes of defining vested and executory interests.
1. Definition of vested and executory interests, with refe-
rence to the right of possession or enjoyment.
76. Definition of a vested interest, or actual estate.
77. Definition of a present vested interest.
78. Definition of a future vested interest.
78a. Remarks on the distinction between a present and a future
vested interest.
79. When an estate is vested in possession.
80. 8L When an estate is vested in right or interest.
82. Vesting inchoately or inceptively.
84. Definition of an executory intf^rest.
85. Definition of a certain executory interest.
86. Definition of a contingent executory interest.
2. Definition of vested and executory interests, without re-
ference to the right of possession or enjoyment.
87. Definition of a vested interest or actual estate.
88. Definition of a present vested interest,
89. Definition of a future vested interest in lands or tenements.
S9a. Definition of a future vested interest in chattels.
90. Definition of an executory interest — of a certain executory
interest — and of a contingent executory interest.
91. Vested and executory interests are most correctly defined
without reference to the right of possession or enjoyment.
92. The several kinds of certain and contingent executory in-
terests.
93. II. Division of contingent interests with reference to the
nature of the contingency.
94. Definition of an interest which is contingent on account of
the person.
95. III. Division of contingent interests with reference to the
capacity of transmission.
96. IV. Division of interests with reference to the certainty of
their duration.
97. Definition of a defeasible interest.
98. Definition of an indefeasible or absolute interest.
ESSAY ON EXECUTORY INTERESTS. xv
99. V. Division of ii)lerests with reference to the quantity of ni-
terest.
100. Definition of the absolute interest.
101. Definition of a Uniitefi interest.
102 — 3. The distinction between the absohite interest, and «n abso-
lute interest.
104. Foregoing definitions applicable to legal and equitable in-
terests, and to real and personal estate.
CHAPTER IV.
REMAINDERS IN GENERAL, AND OTHER KINDS ON LIMITATIONS, IN
THE DERIVATIVE SENSE, ANALYTICALLY ARRANGED, DEFINED, AND
DISTINGUISHED.
105. Two senses of the word limitation.
106. Definition of a limitation, in the derivative sense.
SECTION I.
Division of such Limitations into Simple and Qualijied, ivith
Dejinitions of those terms.
107. Division of limitations into simple and qualified.
108. Definition of a simple or absolute limitation.
109. Definition of a qualified limitation.
1 10. Distinction between directly qualified and indirectly qualified
limitations.
SECTION II.
Division of Limitations into Immediate and Executory, with Defi-
nitions of those terms, and Observations thereon.
111. Division of limitations into immediate and executory.
1 1 la. The generic sense of the term executory devise. — The spe-
cific and usual sense of the term.
lllb. The general term "executory devise" is commonly used
instead of specific terms.
111c. This has generally arisen from the imperfect state of the
science, and has been very prejudicial. — For this reason,
specific terms are used in the present Essay, rather than
general terms, and the specific distinctions and relations
of and between the various conditions, limitations, and
interests, are pointed out.
SECTION III.
Of Limitations of Vested Literests, when considered with reference
simply to the Possession or Enjoyment, or both.
Hid. I. Of limitations of interests vested in possession, or m en-
joyment, or in both.
xvi AN ANALYSIS OF THE FOLLOWING
llle. II. Of limilations of vested interests in real estate, subject to
a term for years.
11 If. III. Of limitations of vested interests, subject to a chattel in-
terest of uncertain duration.
lllg. IV. Of otiier limitations of vested interests, subject to a
suspension of the possession, or enjoyment, or both.
112 SECTION IV.
%fl fourth Division of Lijnitntions in/o those forming the Subject of
the following Sections.
SECTION V.
Of Limitations of P^^esent Vested Interests, iDhen considered with
reference to t/ie modes in which they are constructed.
113. I. Of absolute limitations.
114. II. Of hypothetical Hmitations.
115. III. Of limitations in default of appointment.
116 SECTION VI.
Of Limitations in puturo: and first,
Of Limitations creating Powers of Appointment.
SECTION VII.
Of Limitations of Springing Interests.
117. Definition of a limitation of a springing interest in rea/ pro-
perty.
118. Division of such limitations into seven kinds.
119. I. Definition of the first kind.
Gardner v. Lyddon, 3 You. & Jer. 389.
120. II. Definition of the second kind.
121. III. Definition of the third kind.
122. Danger of confounding the second, third, and fourth kinds
of limitations of springing interests with contingent re-
mainders.
123. IV, Definition of the fourth kind.
124. V. Definition of the fifth kind.
124a. Limitations of vested interests, subject to a chattel interest,
must be distinguished from the second, third, fourth, and
fifth kinds of limitations of springing interests.
125. VI. DefinUion of the sixth kind.
126. VII. Definition of the seventh kind.
127. Observations of Lord Nottingham. Remarks on the case
put by him.
127a. These limitations can only be by way of use or devise, and
are termed springing u^cs and executory devises.
ESSAY ON EXECUTORY INTERESTS. xvii
127b. Definition of a limitation of a springing interest in peraonal
property.
SECTION VIII.
Of Jllternative Limitations.
128. Definition of an alternative limitation.
129. Diflcrcnt names given to these limitations.
130. Re([uisites in an alternative limitation.
131. Tlie omission of the condition on which tlie prior limitation
is to take effect.
132. Two kinds of alternative limitations, as regards their form.
133. I. Definition of an alternative limitation of the proper or
explicit form.
134. II. Definition of an alternative limitation of the improper or
elliptical form.
135. The contingency sometimes implied by the word "or."
Montagu v. Nucella, 1 Russ. 165. Jones v. Toriti, G Sim.
255.
136. The contingency sometimes implied in the context.
Pearson v. Stephen, 2 Dow & Clark, 328. Observations
thereon.
136a. Any number of alternative interests may be limited in suc-
cession.
Laffer v. Edwards, 3 Mad. 210. Observations thereon.
SECTION IX.
Of Augmentative Limit at ioiis.
137. Definition thereof.
138 — 46. Illustrations.
SECTION X.
Of Diminuent Liniilatioiis.
147. Definition thereof.
SECTION XI.
Of Conditional Limitations.
148. Generic sense of the term. The use of the term in this
sense is not incorrect, but yet is productive of mischief.
149. Definition of a conditional limitation, in the specific sense of
the term.
Backs/raw v. File, 1 Sim. & Stu. 604.
149*. Conditional limitation must be really limited in defeasance
of a prior interest.
149a. Conditional limitations can only be by way of use or devise.
Vol. II.— C
xviii AN ANALYSIS OF THE FOLLOWING
150. They are termed shifting and springing uses and executory
devises.
151. Reason of the term conditional Hmitation.
152. It is not expedient to extend the term "springing interests"
to interests under conditional limitations.
153. Conditional limitations in general distinguished from other
clauses ;
— from conditions subsequent; from clauses of cesser and
acceleration; and from special or collateral limitations,
in one respect;
154. — from special or collateral limitations, in another respect;
155. 156. — from remainders, and limitations of springing interests;
157. — from alternative limitations;
158. — and from augmentative and diminuent limitations.
SECTION XII.
Of Remainders.
159. Lax sense of the term.
Definition of a limitation of a remainder, properly so called.
159a. Remainders distinguished from future bequests;
160. Remainders distinguished from conditional limitations ;
161. — from alternative limitations ;
162. — from the first six kinds of limitations of springing inte-
rests ;
163. — from augmentative limitations;
164. — from diminuent limitations ;
1 65. — from the seventh kind of limitations of springing interests ;
167. — and from hmitations of the whole, or the immediate part,
of a reversion.
SECTION XIII.
Of Quasi Remainders.
168. Definition of a quasi remainder.
There cannot be a remainder in personal property.
168a. Chattels real may now be limited over; but a limitation over
of them is not a remainder, strictly so called, though it
may be analogous to one.
168b. The same is the case with chattels personal.
169. SECTION XIV.
Of Limitations of the fVhole, or the Immediate Part, of a Reversion.
ESSAY ON EXECUTORY INTERESTS. xix
CHAPTER V.
VESTED AND CONTINGENT REMAINDERS DEFINED AND DISTINGUISHED.
SECTION I.
Vested and Coyitingent Remainders in general defined.
170. Three modes of defining vested and contingent remainders.
171 — 2. Vested and contingent remainders defined without reference
to the right of possession or enjoyment, or ihe possession
or enjoyment itself.
173 — 4. Tile same defined with reference to the right of possession
or enjoyment.
175 — 6. The same defined with reference to the possession or enjoy-
ment itself.
SECTION II.
The Distiiictions between Vested and Contingent Remainders pointed
ont, ivith Observations thereon.
111. Distinction as regards the mode of their creation, forming a
true criterion.
178 — 9. Consequential distinctions pertaining to their nature and
qualities.
180. It is not the indefeasibleness of the right of possession or en-
joyment, nor the absolute certainty of the possession or
enjoyment itselt', wiiich distinguishes a vested remainder.
181 — 2. But still a vested remainder is only uncertain on account of
the relative uncertainty of its own duration.
183. A remainder may be limited on a contingency, and yet be
vested.
SECTION III.
The several kinds of Contingent Remainders defined, with Observa-
»- tions thereon.
Four kinds of contingent remainders.
184 — 7. Definitions thereof.
187a. Remarks on a devise to two, and the survivor, and the heirs
of such survivor.
188 — 90. All the kinds of contingent remainders strictly depend on a
contingency, irrespective of their own duration.
191. They may be all combined in the same limitation.
192 — 4. Remainders after estates tail.
195. A contingent remainder may become a vested remainder.
XX
AN ANALYSIS OF THE FOLLOWING
PART IL
RULES AND PRINCIPLES FOR DISTINGUISHING CERTAIN CASES
OF ONE KIND OF LIMITATION CREATING AN INTEREST,
FROM ANOTHER KIND TO WHICH THEY MAY APPEAR TO
BELONG.
CHAPTER I.
OF THE CONSTRUING A LIMITATION TO BE A REMAINDER, RATHER THAN
AN EXECUTORY LIMITATION NOT BY WAY OF REMAINDER.
196. The general rule, as commonly stated.
197. The general rule, as more accurately stated.
198. Reason usually assigned for the same.
199. An additional reason.
CHAPTER II.
OF THE CONSTRUING AN INTEREST TO BE VESTED RATHER THAN
CONTINGENT.
SECTION I.
The Rule stated, and the Reasons thereof explained.
200. The general rule, as commonly stated.
201. The general rule, as more precisely stated.
202 — 3. Reasons thereof : 1. Destructibility of contingent interests.
204. 2. Abuse of property by the heir at law in the interim.
205. 3, Unsettled state of the family whose interest is contingent.
206. 4. Want of provision for children of parents dying under age
of 21, to which vesting is postponed.
207. Weight of this reason may be doubted.
208. 5. Want of provision for children in other cases where the
interest is contingent on account of the person.
209. 6. Want of maintenance for the persons themselves, in cer-
tain cases, to whom contingent interests are given.
209a. 7. Leaning in favour of free enjoyment and alienation.
SECTION II.
The Application of the Rule to Limitations in favour of a Person of
a given Character.
210. I. When an ultimate limitation in favour of an heir creates a
vested interest.
ESSAY ON EXECUTORY INTERESTS. xxi
211. Reason for the rule.
CKcife V. Jones, 13 Ves. 412, Doe d. Pilkitigton v. Spratt,
5 Bar. & Add. 731.
212. II. When an ultimate Hmitation in favour of an heir creates
a continp^ent interest.
Marquis Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 1.
214. III. Devise to a person l)y any other description denotes a
person sustaining sucli description at testator's death.
Perry v. Phelips, 1 Ves. 250. Driver v. Frank, 3 Mau. &
Sel. 25. Ohservations thereon. ^Idams v. Bush, G Bing.
New Cas. 1G4. Stanley v. Stanley, 16 Ves. 491. Stert
V. Platel, Bing. New Cas. 434.
SECTION III.
The Application of the Rule to Legacies and Portions apparently
depending on Surviving PareJits, as a Condition Precedent.
General Principles.
215. When the leaning in favour of vesting is peculiarly strong.
216. It is so where a portion or legacy seems to depend on sur-
viving parents.
217. Distinction between a gift by will, and a trust by settlement.
218. Leaning against construing survivorship a pre-requisite, is
strong even in the case of a will.
219. But much stronger in the case of a marriage settlement.
Specific Rules.
220. I. Where one child survives, and the words importing ne-
cessity of surviving are construed so as to admit others
who did not survive.
Hope V. Lord Clifden, 6 Ves. 498. King v. Hake, 9 Ves.
438. Howgrave Cartier, 3 V. & B. 79.
221." II. Where no child survives, but words importing necessity
of surviving are construed so as to admit those who did
not survive.
Powis V. Burdctt, 9 Ves. 428.
222. III. Where no child survives, and none are admitted.
Hotchkin v. Humfrey, 2 Mad. Q>:!i. IVhatford v. Moore, 7
Sim. 574. S. C. 3 M. & C. 270.
222a. SECTION IV.
The ^Application of tfie Rule to Subsequent Literests, limited after
Interests depending on a Condition Precedent.
xxii AN ANALYSIS OF THE FOLLOWING
CHAPTER III.
OF THE CONSTRUING AN INTEREST TO BE ABSOLUTE RATHER THAN
DEFEASIBLE.
SECTION I.
A General Rule suggested, with the Reasons thereof.
223. The rule suggested. — The reasons thereof; namely,
224. 1. Odionsness of conditions;
225. 2. Leaning in favour of primary objects;
226. 3. Leaning in favour of free enjoyment and alienation of
property.
SECTION II.
The Application of the Rule to Bequests to a Class of Persons.
227 — 30. I. Where an aggregate sum is given to a person's children,
and there is no "limitation over on failure of his issue, or
other particular indication of intention.
230a. Hillv. Chapman, 1 Ves. Jun. 405. Davidson v. Dallas,
14 Ves. 576.
230b. Tai/lorv.Langford,2Ves. Jun. 118. Godfrey v. Davis,
6 Ves. Jun. 43. Walker v. Shore, 15 Ves. 122.
230c. Hoste v. Pratt, 3 Ves. 729. Barrington v. Tristram, 6
Ves. 344. Whit bread v. Lord St. John, 10 Ves. 152.
Gilbert v. Boorman, 11 Ves. 238. Clarke v. Clarke, 8
Sim. 59. Hughes v. Hughes, 14 Ves. 256.
231. II. Where a specific sum is given to each.
232 34. III. Where there is a limitation over in default of issue of
the parent, or some other indication of an intent that all
should take.
Mills v. Norris, 5 Ves. 355. Scott v. Earl of Scarborough,
1 Beav. 154.
SECTION III.
The Application of the Rule to Devises and Bequests, where there is a
Limitation over in case of the Death of the Devisee or Legatee
within a certain Time, or without leaving Issue or other Objects
who might derive a benefit through him.
235. I. Common cases where "or" is construed « and," in limi-
tations of real estate.
236. Observations on this construction.
Fairfield v. Morgan, 2 Bos. & Pul. N. R. 38. Eastman v.
Baker, 1 Taunt. 174. Right d. Dai/ v. Day, 16 East,
67; and observations thereon.
ESSAY ON EXECUTORY INTERESTS. xxiii
237. II. Where "or "is construed " and," in limitations of per-
sonal estate.
My Hon v. Boodle, 6 Sim. 457. Hawkins v. Hawkins, 7
Sim. 173.
237a. III. " And " not construed "or" in such Umitations.
Doe d. Everett v, Cooke, 7 East, G9. Doe d. Usher v. Jesscp,
12 East, 28S.
238. IV. Other cases where "or" is construed "and," in Umi-
tations over on death under 21 or without children.
239. V. Other cases of the same construction in limitations over
on death within some other time, or without leaving
some other ohject who might derive a benefit through the
legatee.
240. IV. Where " or " is not construed " and."
SECTION IV.
The ^Application of the Rule to Portions apparently liable to be de-
feated by a Condition Subsequent, in case of the Children to ivhom
they are given not Surviving their Parents.
241. I. Postponement of payment till after parent's death, is a
postponement of the actual possession only.
242. Word " payable " in a clause of survivorship or cesser or a
limitation over, is referred exclusively to the age specified
or marriage.
Hallifax v. Wilson, 16 Ves. 168. Fry v. Lord Sherborne,
3 Sim. 243. Mocatto v. Lindo, 9 Sim. 56. Bright v.
Roive, 3 J\I. & K. 316; and observations thereon.
Torres v. Franco, 1 Russ. & M. 649 ; and observations
thereon.
243. II. Words supplied, or the word "or" changed into
"and."
Clutterbuck v. Edwards, 2 Russ. & JNI, 577. ]\files v. Dyer,
5 Sim. 435 ; and observations thereon.
243a. III. " Leaving " construed " having had " or "having."
Marshall v. /////, 2 Man. & Sel. 608. Maitland v. Chalie,
6 Mad. 243.
244. IV. Where the children who do not survive, take nothing.
CHAPTER IV.
PRESENT VESTED INTERESTS SUBJECT TO A TERM FOR YEARS, DISTIN-
GUISHED FROM VESTED AND CONTINGENT REMAINDERS, AND FROM
SPRINGING INTERESTS.
245. A freehold after a term may be termed a remainder, so far
as regards the possession, with or without the beneficial
interest.
xxiv AN ANALYSIS OF THE FOLLOWING
246. But it is not a remainder, properly so called;
247. — but is either a present vested interest subject to a term ; or
else a springing interest.
248—50. I. Where a freehold after a term is a present vested interest,
subject to a term;
251. — where it is limited on the effluxion of years ;
252. — where it is limited on the dropping of a life or lives.
253. Freeholds after a term are called remainders by Fearne, in
some sense ; and assumed to be such in several cases, in
some sense at least. But this assumption was extra-
judicial. And if Fearne assumes them to be remainders,
properly so called, this would appear to be an oversight.
254. The same remark applies to Butler.
255. II. Where a freehold after a term is a springing interest;
256 — 7. — where it is limited on the effluxion of years, and in other
cases.
258. CHAPTER V.
FIRST EXCEPTION FROM THE EIRST CLASS OF CONTINGENT REMAIN-
DERS, FORMED BY THE USUAL LIMITATION TO TRUSTEES FOR PRE-
SERVING CONTINGENT REMAINDERS.
CHAPTER VI.
SECOND EXCEPTION FROM THE FIRST CLASS OF CONTINGENT
REMAINDERS.
259. I. Where a remainder limited on a contingent determination
of the preceding estate, may take effect on the certain ex-
piration thereof.
260. As in the case of a devise to testator's wife for life, if she
shall so long continue his widow; and, in case she marry,
to Ji. in fee.
26L II. Where a remainder can only take effect on the contin-
gent determination of the preceding estate.
CHAPTER VII.
SECTION I.
Certain cases of Vested Remainders, and the First, Second, and
Third sorts of Contingent Remainders, and the Seventh kind of
Springing Interests, distinguished from Conditional Limitatons.
262. The grand distinction between a remainder and a condi-
tional limitation.
ESSAY ON EXECUTORY INTERESTS. xxv
2G3. I. Wlicre a subsequent interest depends on the determina-
tion of the prior interest by force of a regular special
or collateral limitation, and such subsequent interest is a
remainder.
264. II. Where a subsequent interest depends on the determina-
tion of the prior interest by force of an irreguler special or
collateral limitation, and such subsequent interest is a
remainder.
265 — 69. Illustrations.
270. III. Where a subsequent interest depends on the determi-
nation of the prior interest by force of a mixed condition,
and such subsequent interest is not a remainder; nor is
it good at the common law in any other way; but it may-
be good, if by M^ay of use or devise, as an interest under
a conditional limitation.
271 — 3. Illustrations.
274. IV. Where a subsequent interest depends on a condition
precedent unconnected with the determination of the
prior interest, and is a contingent remainder, capable of
afterwards becoming converted into a vested remainder.
275. Illustrations.
SECTION II.
Practical Suggestions connected ivith the Distinctions in the First
Section.
277. There are cases where it may seem doubtful in what way a
prior interest should be determinable, and a subsequent
interest be created.
278. I. Where the prior interest should be determinable by force
of a special limitation, and the subsequent interest be
limited by way of remainder.
279. II. Where the prior interest should be determinable, and
the subsequent interest be limited to arise, on the fulfil-
ment of a mixed condition.
280. Illustrations.
CHAPTER Vlll.
CERTAIN CASES OF ABSOLUTE AND DEFEASIBLE VESTED INTERESTS,
DISTINGUISHED FROM SPRINGING INTERESTS, AND FROM THE SE-
COND, THIRD, AND FOURTH CLASSES OF CONTINGENT REMAINDERS.
SECTION I.
Cases where an Uncertain Event is made a part of the Description of
the Devisee or Legatee.
281. I. Where an uucertain event forms part of the original de-
scription.
Vol. II.— D
385—6.
xxvi AN ANALYSIS OF THE FOLLOWING
Duffield v.Duffield, 1 Dow & Clark, 2GS. Tucker v. Harris,
5 Sim. 538.
282 4. II. Where an uncertain event forms an independent super-
added description.
SECTION II.
Cases ivhcre a Devise or Bequest has reference to a Future ^ge or an
Unceutain Event which, does not forrn part of the Description of
the Devisee or Legatee, and there is no Indication of Vesting.
I. Where the conditional words are, when, as soon as, at,
upon, from and after.
2S7 9. The doctrine of the Civil Law.
289a. Nash v. Smith, 17 Ves. 29. Gordon v. Rutherford, Turn.
and Russ. 373. Ford v. Rawlins, 1 Sim. & Stu. 328.
Knight V. Knight, 2 Sim. & Stu. 490.
290. II. Wliere the conditional words are, if, in case, provided.
291. 1. In the case of legacies,
292. (1) payable out of real estate.
293. (2) payable out of personal estate.
294 5. The doctrine of the Civil Law.
296. 2. In the case of real estate.
(1) Where the word provided follows the devise, and there
is no limitation over.
297. (2) Where the word provided follows the devise, and there
is a limitation over.
298 9. (3) Where the word if, or the words in case, follow the
devise.
300. Distinction between the import of the words if, and in case,
and the import of the words when, as soon as, at, upon,
from and after.
301,
SECTION III.
Cases where Devise has reference to a Time or Event Certain, and
there are no Indications of or Grounds for supposing, an Imfne-
diate Vesting.
SECTION IV.
Cases where the Devise or Bequest lias reference to a Future Jige,
Time, or Event, not forming part of the Original Description of
the Devisee or Legatee; and there are Indications of, or Grounds
for supposing, an Immediate Vesting.
309. General proposition.
310. I. Where the time is not annexed to the gift itself
31 1! 1. Application of the distinction to legacies payable out of
personal estate,
311a. which are governed by the Civil Law.
ESSAY ON EXECUTORY INTERESTS. xxvii
312. The doctrine of the Civil Law.
313. Grant v. Grant, 3 Y. & C. 171. Bleasc v. Burgh, 2 Beav.
221.
Observations on the foregoing rule,
314. (1) With reference to cases where there is no gift bnt in a
direction to pay &.c.
315. (2) With reference to cases where the future period is an-
nexed both to tlie payment, possession, or enjoyment, and
to the gift itself.
Kevern v. fVUliams, 5 Sim. 171. Porter v. Fox, G Sim.
485.
Distinctions between Porter v. Fox, and Kevern v. JFi/lia/ns.
316. (3) With reference to the character of the distinction, which
is commonly disapproved of;
317. , but is in reahty founded on one among many indications of
the testator's intention.
318. Quotation from Voet.
319 — 20. 2. Apphcation of tlie distinction to real estate.
Snow V. Poulden, 1 Keen, 186.
321 — 2. 3. Non-ap])lication of the distinction to charges on real estate.
323. Non-application of the distinction to charges on real estate,
is no reflection against its soundness.
Reasons for the non-application thereof; namely,
324. (1) Non-existence of the money before the future period.
325. (2) Favour shown to the heir.
326. (3) The common law is adhered to in the case of lands.
327. 4. Application of the distinction to the case of legacies
charged on a mixed fund.
328 — 9. II. W^iere there is a gift of the whole intermediate income.
330. Doctrine of the Civil Law.
331. BatsfordY. Kebbell, 3 Ves. Jun. 363. Edwards y. Si/mons,
6 Taunt. 213. Hanson y. Graham, a Ves. 229.' Lane
v. Goudgc, 9 Ves. 225. Doe d. Dolley v. fVard, 9 Ad.
& El. 582. Rolfe v. Sowerhy, 1 Taml. 376. Breedon v.
Tugman, 3 M. & K. 289. fFatson v. Hayes, 9 Sim. 500.
Lister v. Bradley, 1 Hare, 10.
Reasons for the rule ; namely,
332. 1. Giving of interest shows intention to separate the legacy
from the residue.
333 — 5. 2. Intermediate income is given in respect of a vested inte-
rest in the property itselt".
336 — 7. 3. But this construction of a gift of intermediate income not
being one that arises from necessary imphcation, such
gift is not sulhcient to vest an interest, apart from the
leaning in favour of vesting;
338. And as the leaning in favour of vesting is counterpoised by
other considerations in the case of charges on real estate,
the gift of the intermediate income is insuliicient to vest
such charges.
XXVlll
AN ANALYSIS OF THE FOLLOWING
339.
340.
340a.
341.
342—3.
344.
345.
But if a legacy cliarged on real estate is expressly directed
to vest before the day for payment, it will so vest.
Watkins v. Cheek, 2 Sim. & Stu. 199.
III. Where executors are empowered to make advances out
of portions.
Vivian v. JMills, 1 Beav. 315.
IV. Where the postponement is apparently from necessity,
or for the accomplishment of some special purpose in the
meantime, unconnected with a suspension of the property
or ownership.
Bacon v. Proctor, Turn. & Russ, 31. Goodright d. Revell
V. Parker, 1 Mau. & Sel. 962. Bayley v. Bishop, 9 Ves.
6. Blamire v. Geldart, 16 Ves. 314. Goulhourn v.
Brooks, 2 You. & Coll. 539. Cousins v. Schroder, 4 Sim.
23. Poole V, Terry, Sim. 294. Spencer v. Bullock, 2
Ves. 687, and observations thereon.
V. Cases of residuary bequests on marriage.
Booth V. Booth, 4 Ves. 399.
VI. Cases of particular bequests or devises where the period
is an uncertain one other than that of the attainment of a
given age.
VII. Where the event of attaining a given age is introduced
by words importing contingency and constituting a con-
dition precedent.
VIII. Where a trustee is appointed for the intermediate
time.
Branstroni v. Wilkinson, 7 Ves, 420.
SECTION V.
Cases where a Devise has reference to an Event which would be implied
by the Words introducing a Vested Remainder.
346 — 50. Rule and illustrations.
Pearsall \. Simpson, 15 Ves. 29.
SECTION VI.
Effect of a Limitation over.
351. I. Where the condition of attaining a certain age is intro-
duced by the words "if," "in case," "provided," and it
follows the devise, and there is a devise over simply in
the event of the non-attainment of that age.
Spring V. C'a?.vttr, Roll. Abr., 415, pi. 12. Edwards v. Ham-
mond, 1 New Rep. 313. Broom field v. Crowder, 1 New
Rep. 313. Boe d. Planner v. Scudamore, 2 Bos. & Pul.
289.
351a. Observations on the preceding cases, showing the principle
of the distinction between those cases where the condition
ESSAY ON EXECUTORY INTERESTS. xxix
is the attainment of a certain age, and those where the
condition is of another kind.
352. Effect of the devise over in the al)ove cases.
353 — 4. The reason why the interest of the prior devise, in cases
falHng within the above rule, is a vested interest.
355. Cases where the prior devise was held to tai<e a vested in-
terest on account of the devise over.
Doe d. Hunt v. Moore, 14 East, COl. Doe d. lioake v.
Noivell, 1 jNIau. & Sel. 327. Randall v. Doe d. Roake,
5 Dow. 202.
356. But these cases arc not to be relied on.
357. Tlie interest of the prior devisee must have been held contin-
gent, if there had been no devise over; and the devise
over could not render it vested.
358. II. EH'cct of a devise over simply on the non-liappening of
the event on which the prior devise is apparently made
contingent.
359. 1. Such a devise over does not afford a necessary presump-
tion that the prior devise is contingent.
360. 2. But still it affords some presumption thereof.
361. Or, at all events, it affords no ground for supposing such prior
devise to be vested.
362. Skey v. Barnes, 3 IVIeriv. 335. Judd v. Judd, 3 Sim. 525.
Hunter v. Judd, 4 Sim. 455.
362a. III. Devise over to survivors of a class affords some pre-
sumption of vesting.
Russell V. Buchanan, 2 Cromp. & Mees. 561. S. C. 7 Sim.
628.
363. IV. Where a prior devise is apparently made contingent on
the attainment of a certain age, and there is a devise over
in case of death under that age without issue, after an in-
termediate devise to the issue.
364 — 5. V. Where a similar prior devise is made, with a similar
devise over, but there is no intermediate devise to the
issue.
Bland v. rV{llla?}is, 3 M. & K. 411. Machin v. Reynolds
3 Brod. & Bing. 122. Farmer v. Francis, 2 Bing, 151,
and 2 Sim. & Stu. 505. Murkin v. Philtipson, 3 M. &
K. 259. Phipps V. Williams, 5 Sim. 44. Phipps v.
JJckers, 3 Clark & Fin. 702. Warier v. Warter, 2 Brod.
6 Bing. 349.
366. VI. Where the attainment of a certain age forms part of the
description of the legatee or devisee.
Bull V. Prilchard, 1 Russ. 213.
SECTION VII.
Of the Effect of Subsequent Explanatory JJ^ords.
366a. Rule.
Critchett v. Taynlon. 1 Russ. & M. 541.
XXX AN ANALYSIS OF THE FOLLOWING
SECTION VIII.
Of the Effect of an Jlllowancc for Maintenance.
367. I. Wliere the whole intermediate income is given, and there
is no limitation over.
368. II. Where there is a limitation over.
Vaiodry v. Geddcs, 1 Rass. & INI. 203.
369. III. Wiiere part only of the intermediate income is given.
SECTION IX.
Of the Effect of a Foiver of Appointment over Real Estate.
369a. Rule.
SECTION X.
Of the Effect of a Power of Appointment over Personal Estate.
370. I. Gifts to a class, subject to power of appointing among them
generally.
371. 1. Where no valid appointment is made, or only a partial
appointment.
372. 2. Where a valid appointment is made of the whole.
373. II. Where the power authorises a selection, and there is a
limitation in default of appointment.
374. III. Where the gift is to such of a class as a person shall
appoint, and there is no limitation in default of appoint-
ment.
CHAPTER IX.
CERTAIN CASES OF INTERESTS UNDER LIMITATIONS OF THE WHOLE OR
THE IMMEDIATE PART OP A RE VERSION, DISTINGUISHED FROM CONTIN-
GENT REMAINDERS OF THE THIRD CLASS, AND FROM SPRINGING IN-
TERESTS.
375. I. Where a limitation is to take effect after the death of a
person who has a life estate under a previous instrument,
and sucli limitation is a limitation of the whole or the
immediate part of the reversion, instead of a contingent
remainder of the third class.
376. II. or instead of a limitation of a springing interest.
377. Observation grounded on the foregoing distinctions.
378. III. Where a limitation is to take effect on an indefinite fail-
ure of issue who are all inheritable under estates tail cre-
ated by a previous instrument; and such limitation is a
limitation of the whole or the immediate part of the
reversion.
ESSAY ON EXECUTORY INTERESTS. xxxi
379. IV, Where a limitalioii is to take efloct on an indefinite
failure of issue, some of whom are not inheritable under
sucli estates tail; and such limitation is a limitation of a
springing interest.
380. Exception, where the interval may be filled up by implica-
tion.
Where such implication does not arise.
Banks v. Holme, 1 Russ. 394.
381. V. Where a limitation is made of the reversion, eo nomine,
on an indefinite failure of issue, some of whom are not
inheritable under such estates tail ; and such limitation is
a limitation of the whole or the immediate part of the
reversion.
Egcrton v. Jones, 3 Sim. 409.
382. VI. Where a limitation is to take effect on an indefinite fail-
ure of issue, without restriction to issue by a particular
marriage, who are alone inheritable under previously
created estates tail ; but yet no other marriage was con-
templated, and therefore such limitation is a limitation of
the whole or the immediate part of the reversion.
CHAPTER X.
OF LIMITATIONS TO THE HEIR OR HEIRS OF A LIVING PERSON, CONSID-
ERED IN RELATION TO THE FOURTH CLASS OF CONTINGENT REMAIN-
DERS.
AND, FIRST, OF SUCH LIMITATIONS WHEN THEY PRIMA FACIE FALL
WITHIN THE DESCRIPTION OF THAT CLASS, BUT IN REALITY DO NOT
COME WITHIN it; THE WORD HEIR ]\IEANING HEIR APPARENT OR
PRESUMPTIVE, AND THE WORD HEIRS MEANING SONS, DAUGHTERS,
OR CHILDREN.
383. Strict sense of the word heir.
A remainder to the heirs of a living person is a limitation to
a person not in being.
384. or if in being, not yet ascertained.
385. And hence such remainder is a contingent remainder of the
fourth class. But,
386. I. Sometimes it does not fall within the description of that
class.
387. ' 1. Where the word heirs is used for sons, daughters, or chil-
dren.
Doe d. Hallen v. Ironmonger, 3 East, 583.
388. Where the word heir is used for heir apparent or presump-
tive.
389. II. In some other cases, the remainder does tail within the
description of, but yet constitutes an exception from the
fourth class of contingent remainders.
xxxii AN ANALYSIS OF THE FOLLOWING
CHAPTER XL
FIRST EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAIN-
DERS, IN THE CASE OF AN ULTIMATE LIMITATION TO THE RIGHT
HEIRS OF THE GRANTOR.
390. Limitations of this kind before stat. 3 & 4 Will. IV. c. 106.
39L Enactment of stat. 3 & 4 Will. IV. c. 106, s. 3.
CHAPTER XII.
SECOND EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT RE-
MAINDERS, CREATED BY THE RULE IN SHELLEY's CASE, WHERE
REAL PROPERTY IS LIMITED TO A PERSON, WITH REMAINDER TO
HIS HEIRS.
392. A remainder to the heirs of a living person is a contingent
remainder.
But an exception is created by the rule in Shelley's Case.
SECTION I.
The Rule in Shelley's Case stated.
393. Shelley's Case.
394. What is meant by the Rule in Shelley's Case.
395. The Rule as stated in Shelley's Case.
396. The same Rule appears in the Provost of Beverly's Case.
397. Observations on the virtual substitution of another rule.
398. The Rule may be differently stated without losing its iden-
tity; as it is by Lord Coke.
399. Lord Coke retains the two essential requisites thereof.
400 — 1. Another statement of the Rule. ■»
401a. Limitations not by way of remainder are not within the Rule.
SECTION II.
The Terms and the Operation of the Rule explained.
402. Word heir or heirs a word cither of purchase or of limitation.
403. Definition of words of purchase.
404. Definition of words of limitation.
405. The invariable, proximate, and proper operation of the Rule.
406. The occasional, mediate, and indirect eff'ect thereof
407. Diff'crent modes in which the subsequent interest is executed
in the ancestor —
408. I. In possession, absolutely.
409. II. In interest.
ESSAY ON EXECUTORY INTERESTS. xxxiii
410. III. In possession, subject to the liability of afterwards be-
coming only executed in interest.
411 — 12. IV. In possession, to some purposes only.
413 — 17. Cases to be distinguished.
418. V. As a contingent remainder.
SECTION III.
The Grounds of the Rule explained.
419. I. Prevention of fraud upon feudal tenure.
420. II. Prevention of fraud upon the specialty creditors of the
ancestor.
421. III. Desire of facilitating alienation.
422. IV. These reasons involve another ;
423. namely, that the two limitations would generally and in
the main have virtually accomplished the same purpose
as a gift of the inheritance to the ancestor.
424. Illustration of this.
425. Certain objections answered.
426 — 27. Answer to another objection drawn from the case of fictitious
descents /7er ybrmrt??z doni-
428. Fearne's answer to the objection that the Rule frustrates the
testator's intention.
429. V. The object of the Rule is to give effect to tlie primary
or paramount intent at the expense of the secondary or
minor intent.
430. Definition of the primary or paramount intent.
431. Definition of the secondary or minor intent.
432. The primary or paramount intent is imported by the word
heirs, in connexion with the preceding freehold.
433. Necessary to reject the secondary or minor intent in order to
effectuate the primary or paramount intent;
434. both in the case of limitations to heirs general,
435. and in the case of limitations to heirs special.
435a. Answer to an objection drawn from the case of a fictitious
desceni per for mam doni.
436. It is accurate and definite to say that the secondary or minor
intent is sacrificed to effectuate the primary or paramount
intent.
437. Observations of Lord Redcsdale.
438. and Lord Dennian.
439. They are just, but arc not explanatory of the grounds of the
Rule.
440 — 42. Why the technical words overrule the other words.
443. Wherein consists the incorrectness and vagueness of the com-
mon statement of the Rule.
444. Observation of Lord Eldon on the general and particular
intent.
445. Observation of Butler on the general and particular mient.
Vol. II.— E
xxxiv AN ANALYSIS OF THE FOLLOWING
446. The Rule is not a medium for discovering the intention.
447. But the Rule is a means for effectuating the primary or
paramount intention, when discovered.
44S. The Rule is indeed levelled against the intent,
449. hut only against the secondary or minor intent.
450. Summary of the grounds of the Rule.
SECTION IV.
The ^QppUcatlun and Non-application of the Rule in cases of Legal
Estates and Trusts Executed.
451. Preliminary caution.
452. Three general rules or propositions may be laid down.
453. I. First general proposition, showing where the rule applies^
notwithstanding apparent indications to the contrary.
454. 1. Limitation for life only,
455. 2. or without impeachment of waste.
456. 3. Power to jointure, or make leases.
457. 4. Obligation to repair.
458. 5. Restraint of alienation.
459. 6. Limitation to trustees to preserve contingent remainders.
460. 7. Limitation to heirs for their lives.
461. 8. Concurrence of several of these indications.
Roe d. Thong v. Bedford, 4 Mau. & Sel. 362. Reece v. Steel,
2 Sim. 233.
462. 9. Freehold determinable in ancestor's lifetime.
463. 10. Freehold by implication.
464 — 5. 11. Freehold by resulting use, where a remainder is limited
to the heirs special of the grantor,
465a. even where there is an ulterior vested interest.
466. Cases where the limitation is to the heirs special of a third
person.
467. 12. Freehold by resulting use, where a springing interest is
limited to the heirs special of the grantor.
468. 13. Where there are apparently two concurrent contingent
remainders.
JDoe d. Cole v. Goldsmith, 7 Taunt. 209.
469. 14. Where the ancestor's estate is not for his own benefit.
470. 15. Where both estates are equitable, even though the first
be for the separate use of a feme covert.
471. 16. Where the estate is copyhold. -
471a. 17. Where a limitation to right heirs male follows one to
first and other sons.
Doe d. Earl of Lindsey v. Colyear, 1 1 East, 548.
471b. 18. Tenant in tail after possibihty of issue extinct.
Piatt V. Powles, 2 Mau. & Sel. 65.
472. II. Second general proposition, showing where the rule ap-
plies, notwithstanding apparent indications to the con-
trary.
ESSAY ON RXECTITORY INTERESTS. xxxv
473. 1. Word heir, in the singular, with the word first, next, or
eldest, but without superadded words of limitation.
474; 2. Words of limitation superadded to the word heirs.
Kinc/i V. fFard, 2 Sim. & Stu. 109. Measure v. Gee, 5 Bar.
& Aid. 910. Na.sh v. Coalefs, 3 liar. & Adol. 839.
475. 3. Superadded words of distributive modification, witliout
superadded words of limitation.
Doe d. Candler v. Smith, 7 D. & E. 531. Bennett v. Earl
of Tankervile, 19 Ves. 170. Pierson v. Vickers, 5 East,
548. Jeason v. Wright, 2 Bligh. 51. Doe d. Atkinson
V. Feather.stone, 1 Bar. & Adol. 944. Gretton v. Jlaiv-
ard, G Taunt. 94, and observations thereon.
476. 4. Word sons or daughters, referring to the heirs, if only-
used in the sense of males or females, &c.
Foole V. Pooh, 3 Bos. & Pul. 620.
477. 5. Intention that the limitations should be in strict settlement.
Douglas V. Congreve, 1 Beav. 59.
478. 6. Superadded words usually occurring in limitations to first
and other sons in tail.
Fctherston v. Fetherston, 3 Clark & Fin. 67. S. C. 9 Bligh,
237.
479. III. Third general proposition, showing where the rule does
not apply.
480. Indication of the non-application of the rule may be either
direct or indirect.
481. 1. Direct explanation or indication that the persons who are
to succeed are not persons who are to take simply as heirs
general or special.
482. Lowe V. Davies, 2 Ld. Raym. 1561.
483. Goodtitle d. Sweet v. Herring, 1 East, 164. North v. Mar-
tin, 6 Sim. 266.
484. 2. Indirect explanation or indication.
485. (1) Word heir, with superadded words of limitation.
486. (2) Limitation to the heir for life.
487. (3) Superadded words of limitation which limit the estate to
persons of a diflerent sex.
488. (1) Words of distributive modification, with superadded
words of limitation.
488a. (5) Words of distributive modification, with a limitation
over in the case of the death of such issue under a cer-
tain age.
Doe d. Strong v. Goff, 11 East, 668, and observations there-
on. Crump V. Norwood, 7 Taunt. 362.
488b. (6) Blending a limitation to the heirs special of anofhor
person, and superadding words of limitation.
488c. SECTION V.
General Observation on the Aid afforded, in the Application of the
Rule, by implication from a Limitation over on Failure of Issue.
xxxvi AN ANALYSIS OF THE FOLLOWING
SECTION VI.
The ^Application and Non-application of the Rule in cases of Trusts
Executory.
489. Definition of an executory trust.
490. I. Rule as to executory trusts created by will.
491. Ground of distinction between trusts executed and trusts
executory.
492 — 93. Illustrations of the foregoing rule.
494. II. Rule as to trusts executory created by marriage settle-
ment, with the exceptions thereto,
495. Distinction between trusts executed and trusts executory is
more strongly marked in the case of those created by
marriage settlement.
496 — 99. Illustrations of the second of the foregoing rules.
500. 1. Cases constituting the first exception to the second of the
foregoing rules.
501. 2. Cases constituting the second exception.
502. 3. The third exception.
CHAPTER XIII.
THIRD EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT RE-
MAINDERS, WHERE REAL ESTATE IS DEVISED TO A PERSON AND
TO HIS issue; AND THE WORD ISSUE IS CONSTRUED TO BE A WORD
OP LIMITATION, BY ANALOGY TO THE RULE IN SHELLEY's CASE,
AND UNDER THE CY PRES DOCTRINE.
503. Difficulty of construing devises to or for a person and his
issue, express or implied.
504. I. Where the word issue is a word of limitation, in the case
of direct devises and trusts executed.
505. II. Where the word issue is a word of purchase, in the case
of direct devises and trusts executed.
506. Rule embracing both the preceding rules.
507. Different senses of the word issue.
508. "Issue" is a word either of purchase or of limitation in a
will ; but always a word of purchase in a deed.
509. Why it is a word of purchase in a deed.
510 — 12. It is ill adapted for a word of purchase.
513. But it is well adapted for a word of limitation.
514. And this is one of the grounds of the foregoing rules.
515. How the testator may manifest an intention that the word
issue should not be a word of limitation.
ESSAY ON EXECUTORY INTERESTS.
XXXVll
116.
517.
51S.
519.
520.
521.
522.
523—24.
525— 2G.
527.
528.
529.
530.
531.
532.
533.
533a.
It is not manifested by supi^radcJing kindred words of limita-
tion, or giving the ancestor an estate expressly for life, or
without impeachment of waste.
Nor by introducing words of contingency which would have
been implied.
Nor by prohibiting the ancestor from committing waste.
These indications are equivocal.
Another ground of the foregoing rules; namely, two co-ex-
isting yet inconsistent intents, the one of which must be
sacrificed to the other.
Definition of the primary or paramount intent.
Definition of the secondary or minor intent.
By what the primary or paramount intent is imported or
evidenced.
Observations showing the expediency and propriety of con-
struing the word issue as a word of limitation, in order
to effectuate the primary or paramount intent, in cases
falling within the first rule.
Observations showing the propriety of construing the word
issue a word of purchase, in cases falling within the se-
cond rule.
There is less presumption against construing issue a word of
purchase, than there is against construing heirs a word of
purchase, and especially heirs generally.
Illustrations of the first rule —
Lyon V. Michel, 1 Mad. 473. Tate v. Clark, 1 Beav. 100,
and observations thereon.
Illustrations of the second rule —
Hockley v. Mawhey, 1 Yes. 142. Doe d. Davy v. Burnsal/,
6 D. & E. 30. Doe d. Gilmanv. Elvey, 4 East, 313.
Merest v. James, 4 JNIoore, 327. S. C. 1 Brod. & Bing.
127, and observations thereon. Lees v. Mosley, 1 You.
& Col. 589. Ciirsham v. Newland, 2 Beav. 145. Doe
d. Cooper v. CoUis, 4 D. & E. 294, and observations
thereon.
III. Trusts executory created by marriage settlement.
IV. Trusts executory created by will.
V. Where the two Umitations are not both legal, or both
equitable.
VI. Where the issue cannot take by purchase, on account of
the rule against perpetuities.
534—5.
CHAPTER XIV
FOURTH EXCEPTION FKOM THE FOURTH CLASS OF CONTINGENT RE-
MAINDERS, UNDER THE CY PRES DOCTRINE, WHERE REAL ESTATlJ
IS DEVISED TO THE CHILDREN OF AN UNBORN CHILD.
xxxviii AN ANALYSIS OF THE FOLLOWING
CHAPTER XV.
FIFTH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT RE-
MAINDERS, UNDER THE CY PRES DOCTRINE, IN THE CASE OP AN
INTENDED PERPETUAL SUCCESSION OF LIFE ESTATES.
536. I. Perpetual succession of life estates, by way of executory
trust, in favour of unborn descendants.
536a. II. Perpetual succession of life estates in favour of children
in esse and more remote descendants.
WoUen V. Andrerves, 2 Bing. 126, and observations thereon.
Brooke v. Turner, 2 Bing. New Gas. 422.
536b. HI. Limited number of life estates.
Seaward v. Willock, 5 East, 598, and observations thereon.
CHAPTER XVI.
SIXTH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT RE-
MAINDERS, UNDER THE CY PRES DOCTRINE, WHERE THE WORD
SON OR CHILD, IN A DEVISE OF AN ESTATE IN REMAINDER, IS
CONSTRUED AS A WORD OF LIMITATION.
537. The rule stated.
Doe d. Garrod v. Garrod, 2 Bar. & Adol. 87. Doe d.
Jojies v. Duvies, 4 Bar. & Adol. 43.
CHAPTER XV 11.
CASES OF AN ESTATE TAIL, BY IMPLICATION SIMPLY, OR BOTH BY
IMPLICATION AND BY ANALOGY TO THE RULE IN SHELLEY's CASE,
WITH A VESTED REMAINDER OVER, IN REAL PROPERTY, DISTIN-
GUISHED FROM CASES OF A LIFE ESTATE, AND A CONTINGENT RE-
MAINDER OVER, EITHER WITH OR WITHOUT AN ALTERNATIVE
limitation; or of a life estate, WITH A LIMITATION OVER OP
A SPRINGING interest; OR OF A FEE, WITH A CONDITIONAL LIMI-
TATION OVER.
SECTION I.
Bules for determining whether an Indefinite Failure of Issue is
meant, or merely a Failure of Issue within a certain Time, in
cases of a Limitation over on a Failure of Issue.
538. I. In devises of real estate before 1838, the words "die
without issue," "die without leaving issue," "in de-
fault," or, "on failure," or, "for want of issue," were
all held to import an indefinite failure of issue.
ESSAY ON EXECUTORY INTERESTS. xxxix
539. II. Ikit in bequests of personal estate before 1838, the words
"die without leaving issue," were not so construed, though
the other expressions were construed in that manner.
Foley V. Irvin, 2 B. & B. 435. Radford v. Radford, 1 Keen,
486.
540. III. Where the devise to the issue male is introduced by
words of contingency, and the limitation over is an alter-
native, to take elfecl in the opposite event of there being
no son.
Loddini^lnn v. Kime, 1 Salk. 224.
541. IV. Where the devise is to the children of the prior taker,
equally, and their heirs, with a limitation over in case he
should die without issue, which is an alternative.
542. V. Where the devise is to the issue of the prior taker, and
their heirs, with a limitation over in case he should die
without issue, or all such issue should die without issue;
which is both an alternative and a remainder after an
estate tail.
543. VI. Words referring to a failure of such issue, import an in-
definite failure of issue, or not, according to the degree of
comprehensiveness of the antecedent expressions.
1. They do, where such expressions comprise all the issue
generally, or male or female.
2. They do not, where such expressions comprise some only
of the issue generally, or male or female.
p As where the devise is to the sons, daughters, or children of
the prior taker.
544. (1) AVhere they would take the fee, the limitation over in de-
fault of such issue, &c., is an alternative.
The King v. the Marquis of Stafford, 7 East, 521.
545. (2) Where they would take life estates, such limitation over
is a remainder capable of taking effect either as an alter-
native, or as a remainder.
Goodright d. Lloyd v. Jones. 4 Man. & Sel. 88. Foster v.
Lord Romney, 11 East, 594. Hay v. Lord Coventry, 3
I). & E. S3.
546. (3) Where they would take estates tail, such limitation over
is a remainder capable of taking effect cither as an alter-
native or as a remainder.
Lady Dacre v. Doe, in error, 8 D. & E. 112; Lewis d. Or-
mond V. Waters, 6 East, 336.
547. VII. Where the issue are referred to by the name of chil-
dren, and thereby explained to mean children.
Ellis v. Sclby, 7 Sim. 352.
548. VIII. Where the issue are so referred to in the limitation of
one moiety, but not in the limitation of another moiety.
Carter v. Bent all, 2 Beav. 551 ; Kirkpatrick v. Kirkpatrick,
13 Ves. 476.
xl AN ANALYSIS OF THE FOLLOWING
549. IX. Where the property is hmited over on death under a
certain age, without issue.
Toovey v. Basset t, 10 East, 460.
550. X. Where a devise over is on death within a Hmited period,
or without issue, and oi^ is construed U7id.
551. XL Where a devise over is on the prior taker's death under
a certain age, or on his subsequent death without issue.
552. XII. Where a devise over is in the event of death without
leaving issue, or having such issue, of such issue dying
under a certain age without issue.
Beachcroft v. Broome, 4 D. & E. 441.
553 — 4. XIII. Where a bequest over is to the survivor, without words
of hmitation.
555. XIV. Where a bequest over is to the survivor, with words
of hmitation.
Massey v. Hudson, 2 Meriv. 1 30.
556. XV. Where property is bequeathed to two sisters, with a
Hmitation over, on the death of one without issue, to her
sister.
557. XVI. Where it is directed that the property shall go over
after the prior taker's decease.
558. XVII. Where a limitation over is preceded by a bequest to
such of the prior taker's issue as he shall appoint to.
559. XVIII. Where aU the ulterior limitations are for life only.
Barlow v. Sailer, 7 Ves. 483. Boehm v. Clarke, 9 Ves. 580.
560. XIX. Where the devise over is for payment of debts.
561. XX. Where the estate is subject to the payment of a sum to
be disposed of by the will of the prior taker.
Smith V. Webber, 1 Bar. & Aid. 713. Doe d. King v. Frost,
3 Bar. & Aid. 546.
562. XXI. Where a term for raising legacies is limited on the
expiration of an estate tail, and the legacies are held to
be given on the same event.
Morse v. Lord Ormonde, 1 Riiss. 382.
563. XXII. Enactment of Vict. c. 26, s. 29.
SECTION II.
Cases of a Limitation over on an Indefinite Failure of Issue of a
Prior Taker, ivhere there is no Express Devise to his Issue.
564. Rule of construction.
564a. The principle of this construction.
564b. Two co-existing yet inconsistent intents; namely, the pri-
mary or paramount intent, and the secondary or minor
intent, wliich is sacrificed to the former.
564c. How the primary or paramount intent is manifested.
564(1 — 8. This construction is adopted whether tlie prior limitation is
expressly in fee, or indefinite, or for life.
ESSAY ON EXECUTORY INTERESTS. xli
Chapman d. Scholes v, Scholes, 2 Cliitty, 643. Denn d.
Slater V. Slater, 5 D. & E. 335. Doe d. Nevile v. Rivers,
7 I). & E. 276. Doe d. Ellis v. ^///.9, 1 East, 382. reiuiy
d. Jis;ar v. t^s^ar, 12 East, 252. Romilly v. James, 6
Taunt. 263. Dansey v. Griffiths, \ INIau. & Sel. 61. />oe
d. Jones v. Owens, 1 Bar. & Ad. 318. Z^oe d. Cadogan v.
Eivart, 7 Ad. & El. 636. Machell v. Weeding, 8 Sim. 4.
SECTION III.
Cases of a Limitation over on an Indefinite Failure of Issue of a Prior
Taker, where there is an express Devise to his Issue, co nomine.
569. I. Where the ancestor fakes an estate tail in possession.
Franklin v. Lay, 6 Mad. 258. Murthtvaitev. Barnard, 2
Brod. & Bing. 623. S. C. no7n. Murthwaite v. Jenkinson,
2 Bar. & Cres. 359.
570. It is immaterial, in the supposed case, whether the expres-
sion in the devise over is " issue " indefinitely, or, " such
issue."
Denn d. JVcbb v. Puckcy, 5 D. & E. 299. Frank v. Slovin,
3 East, 548. Marshall v. Bousfield, 2 Mad. 166.
571. II. Where (upon principle) the ancestor would take an estate
tail in remainder.
572. Absurdity of contrary doctrine.
573. Observations on the fact that there are decisions in support of
the contrary doctrine.
Doe d. Blandford v. AppUn, 4 D. & E. 82, and observations
thereon. Doe d. Cock v. Cooper, 1 East, 229, and obser-
vations thereon. Ward v. Bcvil, 1 You. & Jer. 512, and
observations thereon.
574 — 5. III. Where no estate tail can be raised in remainder.
SECTION IV.
Cases of a Limitation over on an Indefinite Failure of issue of a Prior
Taker, where there is an Express Devise to his Sons, Daughters, or
Children.
576. I. Wiiere (upon principle) the ancestor would take an estate
tail in rcuKiinder.
577. Rules deduced by Mr. Jarman iVoui the cases.
578 — 9. Observations on these rules.
Parr v. Swindells, 4 Rviss. 283. Franks v. Price, Bing.
New Cas. 37, and observations thereon.
580. Suggested result of the preceding cases and remarks.
Observations of Lord Chief Baron Richards on the intention
of testators.
581 — 2 II. Where llicic can he no C6latc tail in remainder.
Vol. 11.— F
xlii AN ANALYSIS OF THE FOLLOWING
583. III. Where the ancestor will take an estate tail in possession.
Mortimer v. JVest, 2 Sim. 274.
SECTION V.
Cases of a Limitation over on a Failure of Children only of the Prior
Taker, or on a Failure of Issue ivithin a certain Time.
584. Rule stated.
Doe d. Barnfieldv. Wettoji, 2 Bos. & Pul. 324. Bennett v.
Lowe, 7 Bing. 535.
SECTION VI.
Cases of a Limitation over on an Indefinite Failure of Issue of a
Person to whom no Express Devise is made.
585. I. Where the person whose failure of issue is spoken of is
the testator's heir apparent or presumptive, and he takes
an estate tail.
586. Reasons for this construction.
587. This construction not allowed in Lanesborough v. Fox, but
admitted in other cases.
Daintry v. Daintry, 6 Durn & East, 307.
588. II. Where the person whose failure of issue is spoken of is
not the testator's heir apparent or presumptive, and he
does not take an estate tail.
589. Reasons for this construction.
CHAPTER XVIII.
CASES OF A VESTED REMAINDER AFTER A LIFE ESTATE, BY IMPLICATION,
DISTINGUISHED FROM CASES OF A SPRINGING INTEREST.
590. I. Devise to testator's heir apparent or presumptive after the
death of another to whom no devise is made, gives to the
former a remainder.
591. II. A similar devise to the residuary devisee has the same
effect.
592. III. But a similar devise to one who is neither heir apparent
or presumptive, nor residuary devisee, gives him a spring-
ing interest.
CHAPTER XIX.
LIMITATIONS OF PERSONAL ESTATE, SIMILAR TO LIMITATIONS WHICH
WOULD CREATE AN ESTATE TAIL IN REAL ESTATE, ACCORDING TO
THE TWELFTH, THIRTEENTH, AND SEVENTEENTH OF THE FOREGOING
CHAPTERS.
593. Chattels cannot be entailed.
593a. General rule resulting from this.
ESSAY ON EXECUTORY LNTERESTS. xliii
593b. I. Bequests to or for a person and the lieirs of his body.
594. II. Limitations to or for a person, for hfe, with rennainder to
the heirs of his body, which would create an estate tail in
real property.
595. Grounds of the rule.
Elton V. Ecison, 19 Ves. 73. Brit ton v. Twining, 3 iMeriv.
176.
596. III. Limitations to or for a person for life, with remainder
to the heirs of his body, which would not create an estate
tail in real property.
fVilkinson v. South, 7 D. & E. 555.
597. IV^ Disposition in favour of a person and his issue, which
would create an estate tail in real property.
Donn V. Fenny, I Meriv. 20. ^tt. Gen. v. Bright, 2 Keen,
57. Gibbs v. Tait, 8 Sim. 132. Turner v. Cape/, 9
Sim. 158.
597a. V. Disposition in favour of a person and his issue, wliich
would not create an estate tail in real property.
598. VI. Executory trusts in favour of a person and his issue.
Stonor V. Curwcn, 3 Sim. 264.
599. VII. Limitations over on an indefinite failure of issue.
600. VIII. Limitations over on failure of children only, or of issue
within a given time.
Stone v. Maule, 2 Sim. 490. Bradshaw v. Skilbeck, 2 Bing.
New Cas. 182.
CHAPTER XX.
lijMitations of personal estate to or in trust for the persons
who shall from time to time be entitled to real estates
entailed.
GOl. 1. Where such limitations arc not by way of executory
trust.
Fordyce v. Ford, 2 Ves. 536. Ware v. Polhill, 1 1 Ves. 257.
602. II. Where the disposition is by way of executory trust.
603. The distinction exhibited in these two rules is in accordance
with the distinction tTiadc in other cases.
604 — 6. The grounds of the distinction.
607. Executory trusts should be construed according to the second
rule;
60S. especially when created by marriage settlement or articles.
609 — 13. A gift through the medium of a direction, is not necessarily
a trust executory.
614. The words " so far as the rules of law will permit," preclude
any inlendmcnl contrary to law.
615. Hut they do not enable the Court to tic up chattels for any
longer time.
xliv AN ANALYSIS OF THE FOLLOWING
61G. Buhe of Nciccastle v. Countess of Lincoln, 3 Ves. 3S7.
Countess of Lincoln v. Duke of Newcastle, 12 Ves, 218.
617. Difference of opinion among the Judges.
618. Observations of Lord Loughborough.
619. Observations of Lord Eldon in the same case,
620. and in Jerv'oise V. Duke of Northuinberland.
621 — 2. Meaning of the expressions used by Lord Loughborough.
623. An executory trust by will ought not to be construed so as
to confer an indefeasible vested interest on the first tenant
in tail at his birth.
624. And in fact no such construction of an executory trust has
been adopted.
Foley V. Biirnell, 1 Bro. C. C. 274, was not an executory
trust. Nor was Vavghan v. Burslem, 3 Bro. C. C. 101.
Nor was Cai^r v. Lord Erroll, 14 Ves. 478.
625. Lord Eldon supposed that directory trusts were synonymous
with executory trusts.
626 — 8. Objection urged by Lord Eldon.
629 — 30. Observations on some other remarks of Lord Eldon.
631. Observations of Lord Erskine.
632. Remarks thereon.
Gower v. Grosvenor, 5 Mad. 347.
633. Observations thereon.
634 — 7. Concluding observations on the cases above cited.
CHAPTER XXI.
WORDS APPARENTLY AMOUNTING TO A MERE ALTERNATIVE LIMITATION,
BUT IN REALITY CONSTITUTING A REMAINDER ; AND VICE VERSA.
SECTION I.
638 — 45. Ji General Rule suggested.
SECTION II.
Certain Rules of a more Specific Character.
646. Devise to a person, and his issue, or his sons, daughters, or
children, with a limitation over on his death without
issue, &c.
647. I. Where the ancestor or his issue take an estate tail, or the
issue take a life estate in remainder, and such estate is
vested and absolutely limited.
Jishley v. Ashley, 6 Sim. 358. Doe d. Jearrodv. Bannister,
1 Mees. & W. 292.
648. II. Where sucli estate is contingent, or hypothetically limi-
ted.
649. III. Where such estate is in fee.
ESSAY ON EXECUTORY INTERESTS. xlv
CHAPTER XXII.
CERTAIN CASES OP CONDITIONAL LIMITATIONS DISTINGUISHED FROM
CASES OF MERE ALTKRNATIVE LIMITATIONS; AND VICE VERSA.
SECTION I.
Ceriain General Rules suggested.
650. Introductory observations.
651 — 4. I. Wlicre tlie prior interest in fee is not vested and absolute-
ly limited, and the subsequent limitation is an alternative.
Murray v, Jlddenhrook, 4 Russ. 407.
0)^5. II. Where the prior interest is vested and absolutely limited,
and the subsequent limitation is a conditional limitation.
Slurgess v. Pearson, 4 Mad. 413, and observations thereon.
Browne v. Lord Kenyan, 3 Mad. 410, and observations
thereon. Bromhead v. Hunt, 2 Jac. & Walk. 463. Howes
V. Herring, M'Clel. & You. 295, and observations there-
on.
SECTION II.
Certain Specific Hides as to the Period to which the Event of Deaths
when mentioned as if it were a Contingent Event, is to be referred.
656 — 7. I. Where personal estate is limited over "in case" or "in
the event of" death, and the death is held to be a death
in the testator's lifetime.
Hinckley v. Simmons, 4 Ves. 160, and observations there-
on. Cambridge v. Rous, 8 Ves. 12. Slade v. JMilner,
4 Mad. 144. Ommaney v. Bevan, IS Ves. 291. Crigan
V. Baines, 7 Sim. 40. Lord Douglas v. Chalmer,
2 Ves. Jun. 500.
658. II, Where personal estate is so limited over, and the death
is held to be a death in the lifetime of a prior taker.
Hervey v. McLaughlin, 1 Tri. 264. Clarke v. Gould,
7 Sim. 197. Le Jeune v. Le Jeune, 2 Beav. 701. Smith
v. Smith, S Sim. 353. Giles v. Giles, 8 Sim. 360.
659 — 60. III. Where personal estate is so limited over, and the death
is held to be a death at some other period.
661. IV. Where the gift over is introduced by other words of
contingency.
King V. Taylor, 5 Ves. 806. Turner v. Moor, 6 ^>s.
55Q. JVebster v. Hale, S Ves. 410. Smart v. Clark,
3 Russ. 365,
662. V. Where the gift over is not simply on the event of death.
66.3. Grounds of the^ule.
Doe d. Lifford v. Sparrow, 13 Ves, 359, Galland v.
xlvi AN ANALYSIS OF THE FOLLOWING
Leonard,! Swans. IGl. S. C. 1 Wils. 129. Homev.
Pillans, 2 M. & K. 15. Monteilh v. Nicholson, 2 Keen,
719, and observations thereon.
664. VI. The same construction seems apphcable to real estate.
665. Exception.
666. There is however a decision against the application of this
construction to real estate. But perhaps that decision is
questionable.
Boives V. Scowcrqft, 2 You. & Coll. 640, and observations
thereon.
CHAPTER XXIII.
CERTAIN CASES OF VOID CONDITIONAL LIMITATIONS DEPENDING ON THE
NON-DISPOSAL OF PROPERTY, DISTINGUISHED FROM LIMITATIONS IN
DEFAULT OF APPOINTMENT.
667. The rule stated.
Boss V. Ross, 1 Jac. & Walk. 158. Cuthherl v. Furrier,
Jac. 415.
CHAPTER XXIV.
LIMITATIONS OPERATING DIFFERENTLY IN REGARD TO ANOTHER LIMI-
TATION IN DIFFERENT EVENTS.
668. I. An interest may be limited to take effect either as an
alternative, or as a remainder or quasi remainder.
668a. II. An interest shall, if possible, be construed as a remain-
der or quasi remainder, as well as an alternative.
Brownsword v. Edwards, 2 Ves. 243.
669. III. Every remainder or quasi remainder has the effect of
an alternative limitation, in case the preceding interest
never vests.
Toldervy v. Colt, 1 You. & Coll. 621, and observations
thereon.
669a. Consequence of the above rule, as regards chattels which
are to go to the persons entitled to real estates entailed.
670. Instance of a remainder taking efl'ect as such, though taking
efiect as an alternative as regards the possession.
670a. IV. An interest may be limited to take effect either as an
alternative or as an interest under a conditional limita-
tion.
671. V. A mere conditional limitation will have the effect of an
alternative, if the prior interest never vests.
671a. So also will a limitation of a springing interest of the seventh
kind.
ESSAY ON EXECUTORY INTERESTS. xlvii
672. Principle of the third and lilth rules.
Meadows v. Parry, 1 V. & B. 124. Murray v. Jones, 2 V.
& B. 313. Mackimwn v. Seivell, 2 M. & K. 202, and
observations thereon. Mackinnon v. Peach, 2 Keen, 555.
IVilson V. Mount, 2 Beav. 397.
672a. Exception.
Routledge v. Dorril, 2 Ves. Jun. 35G.
673. W. Conditional limitation becoming a remainder in tlic
room of a preceding remainder in fee.
Doe d. Harris v. Howell, 10 Bar. & Cres. 197, 202.
674. VII. A fnlnre interest is not construed an interest under a
conditional limitation or a springing interest, when it can
be construed a remainder.
675. But when the preceding freehold fails, a future interest,
which would otherwise have been a remainder, is con-
strued a springing interest.
676. And an ulterior interest in remainder also becomes a spring-
ing interest, abstractedly regarded, though it is a remain-
der as regards the less remote springing interest.
677. And so, in other cases, until a less remote future interest
vests, an ulterior interest in remainder is a springing in-
terest, abstractedly considered, though it is a remainder as
regards such less remote future interest.
Doe d. Scott V. Roach, 5 Mau. & Sel. 482.
CHAPTER XXV.
LIMITATIONS OPERATING DIFFERENTLY IN REGARD TO DIFFERENT
LIMITATIONS.
678 — 81. I. The same limitation may be a remainder, an alternative,
and a conditional limitation.
682. II. The same limitation may be an alternative and an
augmentative limitation, or a limitation of a springing
interest.
682a. III. Every more remote limitation may be a remainder as
regards a prior limitation, though not limited next after it.
Dot d. Herbert v. Selby, 2 Bar. & Cres. 926.
.CHAPTER XXVI.
LIMITATIONS INTENDED TO OPERATE IN DIFFERENT WAYS IN REGARD
TO DIFFERENT PORTIONS OF PROPERTY.
683. Limitations may operate in this way.
684. I. A limitation may be penned so as to operate as a condi-
xlviii AN ANALYSIS OF THE FOLLOWING
tional limitation and as a limitation of a springing interest,
in regard to different portions of property.
685. II. A limitation may be so penned as to operate as an alter-
native and as another kind of limitation, in regard to dif-
ferent portions of property.
686. Objection.
687. Malcolm v. Tmjlor, 2 Russ. & M. 41 G, and observations
thereon.
PART in.
RULES AND PRINCIPLES RELATING TO MISCELLANEOUS POINTS
IN THE LEARNING OF EXECUTORY INTERESTS.
CHAPTER I.
OF THE EFFECT OF THE NON-FULFILMENT OF CONDITIONS
PRECEDENT AND MIXED.
688. I. Effect of the non-fulfilment of direct conditions precedent
and mixed, where the limitation is not a mere alternative,
as regards the interest to be created,
689. and as regards the interest to be defeated.
6yo. 1. Where the event happens under other circumstances than
those specified, and the limitation is not a mere alternative
limitation.
Holmes v. Cradock, 3 Ves. 317. Parsons v. Parsons, 5 Ves.
578. Dicken v. Clarke, 2 You. & Coll. 572.
691. 2. Where a limitation over is on the not leaving issue, gene-
rally, and not merely on the not leaving issue who can
take under the prior limitations.
Doe d. Pew v. Lucraft, 8 Bing. 386. Jlndree v. Ward, I
Russ. 260.
692 — 93. II. Effect of the non-existence of the objects of a conditional
limitation.
Smither v. Willock, 9 Ves. 233. Harrisson v. Foreman^
5 Ves. 206.
694. III. Where the limitation is a mere alternative limitation.
695. Principle of the distinction.
Prestwidge v. Groomhridge, 6 Sim. 171. Jliton v. Brooks,
7 Sim. 204, and observations thereon.
ESSAY ON EXECUTORY INTERESTS. xlix
CHAPTER II.
OF THE EFFECT OF THE OUIGINAl. INVALIDITY ON THE EVENTUAL
IMPOSSIBILITY OF CONDITIONS.
696. What conditions are void.
1. Morally wrong or civilly unlawful.
2. Repugnant to a rule of law.
3. Contrariant in themselves.
4. Uncertain or ambiguous.
5. Restraining from suffering a recovery or levying a fine
within the stat. 4 Hen. VII. and 32 Hen. VIII.
6. Impossible.
7. Too remotely possible.
697 — 8. What is too remote a possibility.
699. I. Effect of tlie invalidity of conditions precedent.
700. II. Effect of the invalidity of conditions subsequent.
700a. III. Effect of the invalidity of a mixed condition.
701. IV. Effect of the invalidity of a special or collateral limita-
tion.
CHAPTEIi III.
OF THE TIME FOR THE VESTING OF REMAINDERS.
702. I. A remainder must vest during or on the determination of
the particular estate.
703. Grounds of the rule.
703a. II. A remainder may fail as to one part only.
703b. III. A remainder may fail as to some persons only.
704. A remainder when it has vested in possession, and not merely
in interest, in some persons, cannot open and let in others.
705. Grounds of the rule.
JMoss V. Moiis, 1 INIcriv. (i5 1, and observations thereon.
CHAPTER IV.
OF THE TIME FOR THE VESTING OF EXECUTORY INTERESTS NOT LIMITED
nv WAY OF REMAINDER.
SECTION I.
The General Rule against Perpetuities stated and explained.
706. The rule stated.
707. Reason for fixing a limit.
70S. Reason for adoptinir the limits fixed bv the rule.
Vol. II. —G
AN ANALYSIS OF THE FOLLOWING
SECTION II.
Rules of a more Specific Character for determining whether or not a
Limitation is too Remote.
709. L A limitation must be such as must take effect within the
prescribed period, if at ail.
710. Hence' limitations to children of persons not in esse at the
date of tiie will are not good.
Arnold v. Conirreve, 1 Russ. & M. 209.
710a. Nor are clauses designed indirectly yet virtually to limit
estates to the issue of the unborn person as purchasers.
711. H. But limitations to unborn children of persons in esse are
good.
712. It has been thought that a life interest cannot be limited to
an unborn person.
Hayes v. Hayes, 4 Russ. 311, and observations thereon.
713. An estate for life may be limited to an unborn person.
714. HI. Limitations on an indefinite failure of issue.
715 — 16, Two preliminary questions.
717. Answer to these, as regards real estate.
718. Answer to the first question, as regards personal estate.
719. Personal estate cannot be entailed, and a hmitation over on
an indefinite failure of issue is void for remoteness.
The construction of such a limitation is the same, where the
prior taker has a life interest only.
Everest v. Gell, 1 Ves. 286. Chandless v. Price, 3 Ves. 98.
Campbell v. Harding, 2 Russ. & M. 411. Candy v.
Campbell, 2 CI. & Fin. 421. Monkhouse v. Monkhouse,
3 Sim. 119. Dunk v. Fenner, 2 Russ & M. 566, and
observations thereon.
719a. IV. Limitations over on failure of heirs.
Griffiths V. Grieve, 1 Jac. & Walk, 31,
720. V, Trusts of a term limited previous to an estate tail,
721. VI. Interests to vest on the sustaining a certain character.
Lord Deertnirst v, Duke of St. Alban's, 5 Mad. 232. S, C.
nam. Tollemache v. Lord Coventry, 2 Clark & Fin, Gil.
Ibbetson v. Il)betson, 10 Sim. 495. Bankes v. Le Des-
pencer, 10 Sim. 576.
722. VII, Where the vesting of a devise or bequest to a class is
suspended till a certain ago, and some of them may not
be in esse till too late a period,
Lehke v, Robinson, 2 Meriv. 363, Porter v. Fox, 6 Sim.
485. Dodd V. fVake, 8 'Sim. 615. NewmaiiM. Newman,
10 Sim, 51. Cromek v, I^umb, 3 You. & Coll. 565.
723. Distinction suggested, that some should take under the will,
wlierc none could take in case of an intestacy, but that
none should take under the will, where they could all
take in case of inteslacv.
ESSAY ON EXECUTORY INTERESTS. li
724. Objection answered.
725. VIII. Where a testator gives to some only of a class, to keep
within the rule against perpctnities, and yet limits over
on failure of the whole class.
Ellicombe v. Gompertz, 3 M. & C. 127.
726. IX. Where a testator gives to some only of a class, without
transgressing the rule against perpetuities, but, in terms,
limits over on failure of the whole class, and yet a])pa-
rently intended to create a mere alternative interest.
Trickcy v. Trickey, 3 M. & K. 560.
727. X. Where an alternative limitation is void for remoteness.
728. XI. Interests under particular or qualified powers must be
such as would have been good if created by the deed or
will containing the power.
729. XII. But interests under general powers need not be of such
a character.
730. Reason of the above distinction.
731. XIII. Powers to arise on an indefinite failure of issue.
732. Reason for the foregoing rule.
Bristoiv V. Boolhhy, 2 Sim. & Stu. 465.
733. XIV. Powers of appointment among a class of persons,
some of whom will probably come in esse within the
period prescribed by the general rule.
734. Reason for the foregoing rule.
Routledge v. Dorril, 2 Ves. Jun. 356.
735. XV. Powers of sale.
SECTION III.
Certain Pohits connected with the Doctrine of Remoteness.
736. I. Where the absolute interest is afterwards restricted to a
life interest, with a limitation over, which is void for re-
moteness.
737. II. Remainder after too remote an interest.
738. III. Money raised by a term well created, the uses whereof
are void for remoteness.
Tregonwell y. Sydenham, 3 Dow. 194.
CHAPTER V.
ON THE RESTRAINTS I:MP0SED ON THE ACCUMULATION OF THE INCOME
OF REAL AND PERSONAL ESTATE; AND OF THE DESTINATION OP IN-
COME RELEASED FROM ACCUMULATION OR ACCRUING r.KKORK THE
VESTING OF AN EXECUTORY DEVISE OR BEQUEST.
SECTION I.
The Jiccuinulalinn allowed before lite Statute.
738a. The rule staled.
Hi AN ANALYSIS OF THE- FOLLOWING
Lord Southampton v. Marquis of Hertford, 2 V. & B. 54.
Marshall v. Holloway, 2 Swans. 451.
SECTION II.
The Periods to ivhich^ except in certain cases, Accumulation is
. restricted hy the Statute.
73Sb. Origin of the statute 39 & 40 Geo. III. c. 98.
73Sc. Enactments thereof.
SECTION III.
Observations and Decisions respecting the Restrictions imjjosedby the
Statute.
73Sd. I. The statute apphes even to accumulations in favour of
persons taking vested interests.
73Se. II. It applies even where accumulation is not directed.
73Sf. III. Accumulations are void only as to the eventual excess.
738g. IV. Accumulation void after 21 years from testator's death,
though it lias not lasted that time.
738h. V. Whether accumulation may be made during minority of
person not in esse at grantor's or testator's death.
Haley v. Bannister, 4 Mad. 278.
SECTION IV.
The Saving Clause in the Statute.
738i. Words of the Act.
738j. JMcaning of the word interest in the second exception.
738k. An annuity is not an interest within the second exception.
Shaw V. Rhodes, 1 M. & C. 135.
SECTION V.
Of the Intermediate Income accruing before the Vesting of an Ex-
ecutory Devise or Bequest.
739. I. Where there is no disposition of the intermediate free-
hold.
739a. Observations of Lord Brougham on the position of the heir
at law.
740. II. Where there is no disposition of the intermediate income
of personal estate, or only a partial disposition which is
not for the benefit of the person to whom the executory
bequest is made.
GlanvilY. Glanvil, 2 Meriv. 38.
740a. III. Wliere the intermediate income of personal estate is
partially disposed of for his benefit.
Harris v. Lloyd, Turn. & R. 310.
ESSAY ON EXECUTORY INTERESTS. liii
741. IV. Where there is a residuary devise or bequest.
Phipps V. JVilHains, 5 Sim. 4 1. S. C. nam. dickers v. Phipps^
3 Clark & Fin. GG7; 9 liligh, 430.
SECTION VI.
The Destination of the Income released from Accumulation hi/ the
Statute.
741a. Words of the Act,
741b. Effect of this clause.
741c. I. Where the trust for accumulation is engrafted on a vested
interest, and the income goes to the person having such
interest.
741d. II. Where it goes to the residuary devisee or legatee.
Grounds of the rule.
Crawley v. Crawley, 7 Sim. 427.
741e. III. Where it goes to the heir or next of kin.
Grounds of the rule.
M'-Donald v. Brice, 2 Keen, 276. JS'yre v. Marsden, 2
Keen, 564.
CPIAPTER VI.
OF THE TRANSMISSION OF EXECUTORY INTERESTS.
742. I. Division of executory interests with reference to the capa-
city of transmission existing at the time of their limita-
tion.
1. Transmissible in all events.
Untransmissiblc.
Transmissible in some events only.
Division of executory interests with reference to the ca-
pacity of transmission existing at the death of the persons
entitled thereto.
Transmissible.
Untransmissiblc.
CHAPTER VII.
OF THE ALIENATION OF EXECUTORY INTERESTS.
749 — 50, I. By assignment in equity.
751. II. By release.
752. III. By devise before the stat. I Vict. c. 60.
753. By devise under stat, 1. Vict, c. 26, s. 3.
754 — 6. IV. By estoppel and conveyance.
756*. Doe d. Prune v. Marti/n, S Bar, & Cres, 527. Dr,e d.
Christmas v, Oliver, 10 Bar, & Cress. 1S7, 1J)0.
743.
1.
744.
2.
745,
3.
746.
II,
747.
1.
748.
2.
liv AN ANALYSIS OF THE FOLLOWING
CHAPTER VIII.
OF THE SUPPORT OP CONTINGENT REMAINDERS.
756a. Contingent remainder for years needs no preceding freehold.
757. But a contingent freehold remainder must be supported by
a preceding freehold.
758. I. A contingent remainder of the measure of freehold must
be originally preceded by a vested freehold.
759. A freehold interest not so preceded cannot be a remainder.
760. 1. A vested freehold interest after a term for years is not a
remainder.
761 — 2. 2. A contingent freehold interest limited after a chattel in-
terest at common law, is not a remainder, and is void.
762a. 3. A contingent freehold interest limited after a chattel in-
terest, by way of use or devise, is good, but not as a re-
mainder.
763. 4. A freehold interest limited by way of use or devise after
a contingent interest only, is good, but not as a remainder.
763a. 5. A freehold interest limited after a contingent interest only,
at common law, is not a remainder, and is void.
764 5. ^ II. A contingent remainder must continue to be preceded by
a vested freehold capable of enduring till the vesting of
the remainder.
765a. But not necessarily by the first preceding estate.
765b. III. Not necessary that the preceding estate should be vested
in possession.
765c. IV. A preceding estate is not necessary, where the legal
estate is in trustees.
CHAPTER IX.
OF THE DESTRUCTION OF CONTINGENT REMAINDERS AND OTHER EXECU-
TORY INTERESTS.
SrXTION I.
The Destruction of Contiiigent Remainders created out of a Legal
Fee Simple in Freehold Hereditaments.
766. A contingent remainder is destroyed by the determination of
the sole subsisting preceding estate before such remainder
vests.
767. This determination may happen in various ways.
768. I. By regular expiration.
769. II. By disseisin and tolling of the right of entry.
770. III. By the destructive operation of a feoffment, fine, or
recovery, by the tenant of the preceding estate.
ESSAY ON EXECUTORY INTERESTS. Iv
771 — 3. whether he is beneficially entitled or not.
774 — 5. It is the destruction, not the transfer, of the particular estate,
whicii destroys a contingent remainder.
776. IV. By forfeiture,
777. V. By merger.
778. 1. By act of the tenant for life or in tail.
(1) By acceptance of the reversion.
(2) By surrender, bargain and sale, or lease and release to
the remainder-man or reversioner.
(4) By bargain and sale, or lease and release, where the
tenant for life has also the immediate remainder or rever-
sion.
(5) By joining the remainder-man or reversioner in a con-
veyance.
779. 2. By descent of the inheritance on the particular tenant
subsequently to the taking effect of the particular estate.
780. 3. But not by the descent of the inheritance on the particu-
lar tenant at the moment of the taking effect of the par-
ticular estate.
780a. 4. Nor by the union of the particular estate and the inherit-
ance under the conveyance by which, and at the time
when, both were created.
781. Trust estates to preserve contingent remainders.
782. Mere right of entry in the trustees is sufficient.
SECTION II.
The Destruction of Contingent Remainders created out of an Equi-
table Fee Simpte Estate in Freehold Hereditaments, or an Equi-
table Subordinate Fee Simple in Copyholds.
7S3. No necessity for the continuance of a particular estate where
the legal estate is in trustees.
Observations of Lord Ellenborough as to this point.
784. Cestui que trust for life cannot destroy a contingent re-
mainder;
785. but cestui que ti^ust in tail may.
SECTION III.
The Destruction of Contingent Reinainders created out of a Legal
Fee Simple in Copyholds.
786. I. Where the preceding estate expires by original limitation,
the remainder is destroyed.
787. II. But where the preceding estate is determined by act of
the tenant, the remainder is not destroyed.
788. III. Remainder destroyed by enfranchisement.
Ivi AN ANALYSIS OF THE FOLLOWING ESSAY.
SECTION IV.
The Destruction of Contingent licmainders created out of Estates
pur auter vie.
SECTION V.
The Destruction of Executory Interests not limited by way of
Remainder.
789. By recovery.
790. Not by mere alteration in estate.
IVll
TABLE OF CASES
STATED A^D KEFERKED TO IN Till' FOLLOWING E^SAY.
*** ^'"* comprises the cases in Fearne, with the exception of some lohich are refer-
red to hy Cnnninff, and are not dircclhj connected with the subject; and of certain
others which are referred to in the " Original View," by a general reference to the
pages of Fearne where they are cited.
Abingdon, Prowse v. r. 155-6
Ackers, Phipps v. r. 42!>.
V. Phipps, 188. 421).
Aclom, Vandcrzec v. r. I'Jl.
Adams v. Bush, 81.
V. Sdvage, r. 028.
Addcnbrook, MuriMy v. 332. — r. 157.
Adolphus, Gordon v. r. 126.
Agar, Tennyd. Agar «. 2a7.
Aircy, Ellison v. r. 92.
Aislabie c. Rice, r. 385.
Alton V. Brooks, 381.
Alban's (Duke of,) Lord Docihurst o. 101.
Ailanson v. C'litlicrow, r. 2D7.
AJlcn, Barnes v. r. 27. 431.
(Doc d.) t'. Ironmonger, 203.
Allgood V. Withers, r. 243.
Ambrose, Hodgson v. r. 225.
Amlierst v. Donelly, r. 127.
Andree v. Ward, 379.
Andrewes, Wollen v. 265.
Andrews r, Fulhani, r. 361.
Applin, Doc d. Blandlbidr. r. 21)3.
Archer, liamb v. r. 395.
Archer's case, r. 239. 445. 447.
Arnold v. Congreve, 393.
Ascot, Jermyn v. r. 383.
Ash, Massenburgli v. r. 3G0.
Ashley v. Ashley, 329.— r. 395.
Atkins V. Hiccocks, r. 149.
Atkinson c. Hutchinson, r. 370.
c Turner, 428.— r. 170.
(Doe d.) V. Fcthorstnne, 231.
Attorney -General r. Bright, 310.
p. Crispin, r. 92. 164.
V. Gill, r. 399.
V. Sutton, r. 296.
Austen v. Taylor, r. 24 1.
Avelyn v. Ward, r. 358. 361.
Ayton I". Aylon, r. !I2.
■ Vol. II.— H
Backhouse v. Wells, r. 251. 255. 262.
Bacon v. Proctor, 165.
, Taylor v. r. 158.
Bagot, Brounckcr v. r. 307.
Bagshaw, Denn d. lladclyfTe v. r. 13G. 173.
V. Spencer, r. 2r29.
Baines, Crigan v. 341.
Baker v. Bay ley, r. 451.
, Easlman v. 98.
Baldwin v. Carver, r. 390.
, Garth v. r. 229. 308.
, Langley v. r. 296.
Bale V. Coleman, r. 224.
Bamfield v. Popham, r. 29G.
Bankcs v. Lc Desj)cncer, 402
V. Holme, 198.
Banner v. Banner, 247.
Bannister, Haley v. 421.
, Doc d. Jcarrad v. 330.
Barbut, Tilbury r. r. 399.
Barker, Malim r. r. 194.
V. Suretces, r. 97.
Barlc}', C'ruse v. r. 142.
Barlow r. Salter, r. 282.
Barnadiston, Carter v. r. 21.
Barnard, Murtliwaitc i>. 29U.
(Doe d.) V. Reason, r. 273.
, Sitwell V. r. 150.
Barncfield (Doc d) v. Wetton, 302.— r. 71.
Barnes t? Allen, r. 27. 43 1.
, Skey c. 181.
Barrington c. Tristram, 94.
Bassett, Toovey v. 279,
Bath and Wells (Bp. of). Proctor r. r. 101,
411.
Batsford r. Kebbdl, 1.^.8.
Bayley, Baker r. r. 451.
V. Bishop, 166.
BcacheroR r. Bro>nie, 280.
Bean (Doc d."! v. Halky, r. 297.
IVIll
TABLE OF CASES.
Beauolcrk v. Dormer, r. ^95.
Beaumont, Darbison d. I.ouur v. r. 203.
Becklev p. Newhiiui, r. 436.
Bedford's (Earl of) case, r. 205.
Bedford, Tlion<r v. r. 224.
Koe d. Thong v. 225.
Bcjushiii, Colthirst v. r. 132-4.
Belk r. Skiek, r. 141. 334.
Bengougli v. Edridge, r. 391.
Bennett v. Lowe, 303.— r. 395.
r. Seymour, r. 13G.
V. Earl of Taukorville, 232.— r. 224.
Bentall, Carter v. 277.
Benyon i'. Maddison, r. 1 G4.
Bergavenuy (Lady), Richards v. r. 230,
Bevan, Oinmaney v. 341.
Beverley r. Beverley, r. 113.
Beverley's (Provost of) case, 207.
Bevil, Ward v. 295.
Biddle v Perkins, r, 414.
Billings V. Sandom, r. 339,
Billingsley r. Wells, r. 141. 335.
Billington, Goodlitlc v. r. 43. 57. 7 L
Bishop, Bay ley v. 1G6.
Blackall, Long v. r. 391.
Blaekborne v. Edgley, r. 29G.
Blackburne v. Stables, 245.— r. 230,
Blake, Perrin ?•. r. 225.
Blamire «. Geldart, 16G.
Bland v. Williams, 185.
Blandford (Doc d.) v. Applin, 293.
Blease v. Burgh, 150— r. 94. 181.
Blissett, Chapman v. r. 429.
Blower, Lampley v. r. 271. 311. 443. 44H,
Boddington, Witts r. r. 194.
Boehm V. Clarke, r. 282.
Bolgcr V. Mackell, r. 150.
Boodle, Mytton v. 100.
Boor man, Gilbert b. 94.
Booth V. Booth, 168.
Boothby, Bristow «. 412.
D, Vernon, r. 447.
Boraston's case, r. 1G4.
Bosville, liordGlenorchy i'. r. 251. QC3
, Wealthy ». r. 71.
Bousficld, Marshall, r. 292,
Bowes V. Scowcrofl, .3.')1.
Boyce V. Uauning, r. 414.
Boyle, Graves v. r. 92.
Brachcn, Tunstall v. r. 1G5,
Bradford /;. Foley, r. 382.
Bradley, Lester v. IGO.
, Porter v. r. 271.
Bradshaw v. Skilbeck, 313.^
Branstrom r.. Wilkinson, 171.
Breeilon r,. Tugman, 100.
Brice, M'Douald 'e. 4.32.— r. 420.
Briddon (Denn d.) v. Page, r. .395.
Bridgewater (Duke of) v. Egerton, r. 429.
Briggs, Roo d. ClemcU v. r. 449. 451.
Bright, Att.-Gen. ». 310.
V. Rowe, 104.
Bristow V. Boothby, 412.
„. Warde, 194.
Britton r. Twining, .309.
Bromhead v. Hunt, 337.
Brooke v. Turner, 2GG.
Brooking, Lloyd v. r. 446.
Brooks, Alton v. 381.
, Goulbiiurn v. 16G.
Broom, Bcachcroft v. 280.
Broomfield r. Crovvder, 175.
Broughlon v. Langley, r. 224.
Brouncker v. Bagol, r. 307.
Brown (Doe d.) v. Holme, r. 43. 71.
, Pells V. I. 51.
Browne v. Lord Kenyon,335.— r. 141.
Brownsword v. Edwards, 35G. — r. 102. 170.
Bruerc, Stuart v. r. 150.
Brune (Doe d.) v. Martin, 438.
Brydges v. Brydges, r. 229.
Brymer, Reeves, v. r. 136.
Buchanan, Russell v. 183.
Bull V. Pritchard, 189.— r. 403.
Bullock, Spencer v. 167.
D, Stones, r. 427-8.
Burchell, King v. r. 25 1 . 255. 292.
Hurcliett v. Durdant, r. 203.
Burdett, Powis». 87.
Burford v. Lee, r. 312, 395.
Burgh, Blease v. 1.50.— r. 94. 181.
Burley's case, r. 230.
Burnell, Foley v. 321.— r. GO. 294.
Burnsall, Doe d. Davy v. 259.— r. 44. 9<.
Burslem, Vaughan v. .321. — r. 317.
Burton v. Hastings, r. 247.
Bush, Adams v. 81.
, Davies v. r. 448.
Bussey, Hodgeson v. r. 309.
Butcher v. Butcher, r. 194.
Butterfield v. Butterfield, r. 308.
Cadcllo. Palmer, r.. 391.
Cadogan (Doc d.) v. Ewart, 288.— r. 4.50,
V. Kcnnet, r. GO.
Cajsar, Spring v. 174.
Cambridge v. Rous, 340.— r. 411.
Camelford (Lord), Smith v. r. 193-4,
(lameron, Knight v. r. 170.
Campbell, Candy v. 397.
}). Harding, 397.
Candler (Doe d.) v. Smith, 232.
('andy v. Campbell. 397.
(Japcl, Turner v. 311.
Carew, Lloyd ». r. 51.
Carleton w. Lcighlon, r. 23.
Carpenter, Tebbs V. r. 92.
Carr v. Lord Erroll, .322.-r. .<20.
Carter v. Barnadiston, r. 21.
V. Bentall, 277.
, White V. r. 244.
( Earlier, Ilowgrave v. 8G.
Carver, Baldwin v. r. 390.
Carwardine v. Carwardine, r. 71.
Case V. Drosier, r. 401.
Catchmay v. NiehoUs, r. GO,
c;hadoek v. Cowley, r. 172.
Chalie, M;iUIand v. 109,
TABLE OF CASES.
hx
( 'liuliner, Lord Douglas v. 342.
Cliaiitbers v. C'liamberp, r. 247.
CliaiuJIcss D.Price, 3'J7.
ClKuidos (Duke of) v. Talbot, r. 155-6.
Chapman v. Blissett, r. 429. 443. 448.
, Hill ». Ul.
d. Scoles V. Scoles, 28G.
Chatham (Earl of) v. Daw Tothill, r. 308.
<.'haUeris v. Young, r. 358.
C'hawncy v. Graydon, r. 435.
Check or Clerk v. Day or Davy, r. 240.
Ciicck, Walkin.s v. 1 G3.
Chceke, Luxford v. r. 12G.
Cliild V. Giblett, r. 341.
("holmeley v. Humble, r. 383.
Choltnlcy's case, r. 123.
Cholmondeley (.Marquis) «. Lord Clinton, 76.
Christmas (Doc d.) v. Oliver, 438.
Chudlcigh's case, r. 445.
Clark or Check v. Day or Davy, r. 240.
, Smart v. 34G.
, Tate V. 257.
Clarke, Boehm v. r. 282.
V. Clarke, 94.
, Dickcn v. 378.
, Goodwin w. r. 395.
V. Gould, 343.
V. Ross, r. 165.
V. Smith r. 427.
Clemett (Roe d.) v. Bnggs, r. 449. 451.
t"lere's (Sir E.) case, r. 20..
Clifdcn (.Lord), Hope v. 84.
Clinton (Lord), Marquis Cholmondeley v. 76.
Clithcrow, Allanson v. r. 297.
Cluttcrbuck v. Edwards, 107.
Coatcs, Nash v. 231.
Cock (Doe d.) v. Cooper, 293.
Cockerel!, Ilanbury i\ r. 51.
Cogan 15. Cogan, r. 132.
<:ole (Doc d.) V. Goldsmith, 228.
Coleman, Bale v. r. 224.
V. Seymour, r. 91.
Collins, Sherman v. r. 165.
, White V. r. 239. 240.
Collis, Doe d. Cooper r. 2G2.
Colt, Toldcrvy v. 358.— r. 50.
Colthirst r. Bejushin, r. 132-4.
Colyear, Doe d. Earl of Lindsoy j'. 229.
Comberbach (Doc d ) r. Pcrryn, r. 274. 330.
387. 390.
Compton, Paul i). r. 92.
Condon, Lowther u. r. 165.
Congrcve, Arnold v. 393.
V. Congrcve, r. 92.
Douglas V. 236.— r. 230. 307.
Conway (Lord), \Valpole v. r. 193.
Cook, Linch v. r. 443.
Cooke, Doe d. Everett d. 101.
Coojjcr, Doe d. ('ock v. 293.
(Doe d.) D. Collis, 262.
(^orbet i>. Tichborn, r. 443.
Corbt't's case, r. 383.
Cornish, Goodright »'. r. 440.
i^osin, Tippin v. r. 226. 229.
Cotton V. Ilcatli, r. 59. 395.
Coulson V. Coulson, r. 225.
Cousins II. Schroder, 167.
Coventry (Lord), Hay v. 275.— r. 395.
, Waring v. r. 414.
Cowley, Cliadock v. r. 172.
Cradock, Holmes v. 378. — r. 50.
Crawley v. Crawley, 432. — r. 420.
Crebcr, Right v. r. 241. 390.
Crigan v. Baines, 341.
Cri[)ps V. Wolcott, r. 141.
Crispin, Alt. Gen. v. r. 92. 164.
Critchett v. Taynton, 190.
Croker t\ Trevithin, r. 384.
Cromek ». Lumb, 406.
Crono V. Odell, r. 92.
Crooke v. De Vandes, r. 399.
Crowder, Broomfield v. 175.
Crump V. Norwood, 242. — r. 241.
Cruse V. Burlc3', r. 142.
Cunningham v. Moody, r. 193.
Cursham ?;. Newland, 261.
Curtis r. Price, 226.
Curwcn, Stonor v. 312.
Curzon (Lord), Perfect v. r. 87.
Cusack V. Cusack, r. 246.
Cuthbcrt J). Purricr, 355.
Cuttler, Snowc ». r. 54.
Dacrc (Dowager Lady) v. Doe d. Lady Dacre,
276.
Daftorne v. Goodman, r. 309.
Daintry v. Daintry, 303.
Dallas, Davidson v. 92.— r. 337.
Dansey v. (Griffiths, 288.
Darbisou d. Long v. Beaumont r. 203.
Davidson ?'. Dallas, 92. — r. 337-
Davie's (Spittle and) case, r. 384.
Davics P. Bush, r. 448.
, Doe d. Jones v. 269.
, Lowe V. 238.
V. Speed, r, 21. 440.
Davis, Godfrey v. 93.
Davy (Doed.) v. Burnsall,259.— r.44.97.294.
, Ciieck or Clark, v. r. 240.
, Kcm|) r. r. 165.
Daw Tothill, Earl of Chatham r. r. 30a
Dawson v. Killct, r. 165.
Day, Cheek or Clark v. 240.
, Right d. Day i\ 99.
Dean and Ch. of Westminster (Doe d.) v.
Freeman, r. 14.
Deanc v. Test, r. 181. 337.
Dcerhurst (Lord) i: Duke of St. Alban's, 401.
Denn d. Radclyfle r. Bagshaw, r. 136. 173.
r. Kemrvs, r. 102.
d. Briddon r. Page, r. .395.
d. Webb r. Puckiy, 291-2. 445.
d. Sialrr r. Slater, 287.
Denny, Tiirustoutd. Small v. r. 278.
Derby, Higgins r. r. 43.
De Vandes v. Crooke, r. .399.
Devisnie r. Mello, r. 92.
Dieken r. ("^larko, 37'"^.
IX
TABLE OF CASES.
Dickenson, Dod r. r. 307.
Difflis V. Goldsclimidt, r. 95.
Dod V. Dickenson, r. 307.
V. Dod, r. 2G3.
r. Wake, 406.
Dodson (1^00 d.) v. Grew, r. 292.
V. llay, r. 157.
Doe d. Allen v. Ironmonger, 20.3.
Atkinson v. Fetherstoric, 234.
Barnard v. Reason, r. 273.
Barncficld v. Wctton, 302.— r. 71.
I3can V. Ilaliey, r. 2i)7.
IJiandford v. Applin, 293.
Brown v. Holme, r. 43. 71.
Bruno r. Martin, 433.
Cadoijan v. Evvart, 288. — r. 450.
Candler v. Smith, 232.
Christmas v. Oliver, 438.
Cock V. Cooper, 293.
Cole V. Goldsmilli, 228.
Comberbach v. Pcrryn, r. 274. 330. 387.
390.
Cooper V. Collis, 262.
Davy V. Burnsall, 2.59.— r. 44. 97. 294.
Dean and Ch. of Westminster v. Free-
man, r. 14.
Dolley D. Ward, 159,
Ellis V. Ellis, 287.
Everett n. Cooke, 101.
Fonnercau v. Fonncreau, r. 54.
Garrod v. Garrod, 2C8.
Gilman v. Elvey, 259.— r. 44. 294. 330.
Hallen v. Ironmonger, 203. — r. 241.
■ ■ Harris v. Howell, 365.
Herbert v. Selby, 370.— r. 99. 361.
Hunt V. Moore, 177.
Jearrad ». Bannister, 330.
Jones V. Davies, 269.
V. Owens, 288.— r. 282.
King V. Frost, 283.— r. 294.
Lifford V. Sparrow, 348.
Lindsey (Earl of) v. Colyear, 229.
Liversage v. Vaughan, r. 395.
Long i'- Pri??) r- 141.
Mussel V. Morgan, r. 71. 386.
Ncvile V. Rivers, 287.
Pilkington v. Spralt, 75.
Planner v. Scudamore, 175.
Roake v. Nowcll, 177.
Savilc, Earl of Scarborough v. 8.
Smith V. Webber, 283.
Strong V. Goff, 241.— r. 234.
Toolcy V. Gunnis, r. 395.
Uslier V. Jessep, 101. 357.
Watson V. Shipphard, r. 358.
Whficdon V. Lea, r. 164.
Willis r. Martin, r. 193-4. 387.
Doe V. Dorrell, r. 390.
r. Laming, r. 241.
V. Martin, r. 449.
, Randoll d., ». Roakc, 177.
Dollcy (Doc d.) v. Ward, 159.
Donclly, Amhurti »;. 127.
Donn V. Penny, 310.
Dormer, Beauclcrk v. r. 395.
Dorrell, Doe v. r. 390.
Dorril, Routledge i: 364. 413.
Douglas (Lord) v. Chalmcr, 311.
V. Congreve, 236.— r. 230. 307.
Dow, Tiiompson v. r. 165.
Dowler, Higgins v. r. 43.
Drew, Walter «. r. 71. 303.
Driver d. Edgar v. Edgar, r. 52. 67. 445.
V. Frank, 78.
Drosier, Case v. r. 401.
Drury,WoodIiirii.r. 39.
Dubber d. Trollope v. TroUopc, r. 230.
Duflleld V. Duftield, 136.— r. 73. 427.
Dugard, Manfield v. r. 164.
Duke, Wheeler r'.r. 249.
Dungannon, Vane v. r. 1D4.
Dmiham, Goodright d. Docking v. r. 272. 296.
300. 330.
Dunk V. Fenner, 398.
Durdanf, Burchetl«. r. 203.
Dyer, Miles v. 108.
Eas^on, Elton v. 308.
Eastman v. Baker, 98.
Edgar, Driver d. Edgar v. r. 52. 67. 445.
Edge, Scatter wood v. r. 14. 129. 358. 440.
Edgley, Blackborn v. r. 296.
Edridgc, Bungough i". r. 391.
Edwards, Brownsword v. r. 102.170. 356.
, Cliitlerbuek v. 107.
V. Hammond, 174. — r. 175.
, Laffer v. 41.— r. 347.
V. Symons, 158.
Egerton, Duke of Bi idgcwater v. r. 429.
V. Jones, 200.
Ekins, Green v. r. 4.3. 247.
Enun,Pinbury v. r. 281,434-5.
Ellicombfi r. Gompcitz, 409.
Elliott I). Jukyl.r. 218.
Ellis (Doe d.) v. Ellis, 287.
, Knight V. r. 310.
V. Selby. 277.
Ellison V. Aircy, r. 92.
Ellon V. Eason, 308.
V. Elton, r. 144. 170.
Elvey, Doc d. Gilman v. 259.— r. 44. 294.
330.
Embrey v. Martin, r. 165.
Emes V. Hancock, r. 165.
Entwistle r. Markland, r. 150.
Erington, Read and Morpeth v, r. 205.
Errissey, West v. r. 266-7.
Erroll, Carr v. 322.— r. 320.
Everest (Doe d.) v. Cooke, 101.
V. Gell, 397.
Ewart, Doe d. Cadogan v. 288.
Eyre v. Marsden, 433.— r. 450.
Fairfield v. Morgan, 98.
Farmer v. Francis, 186.
Faidkcner v. Hollingsworth, r. 150.
Fenner, Dunk r. 398.
Fenwick v. Mitford, r. 205.
TABLE OF CASES.
Ixi
Ferard, Lcpinc r. r. 396.
I'Vrrcrs, Shirley v. r. 60.
I'Vtlicrston v. Fctherston, 236.
I'Vtlierstonc, Doc d. Atkinson v. 234.
Filzgerald, (Jcncry v. r. 429.
Foley, Bradford v. r. 362.
V. IJurncll, 321.— r. 60.
V. Irwin, 271.
Foncrcau v. Foncrcaii, r. l.**?. 381.
Foiiiicrcau (Doc d.) Fonncrcau v. r. Cti. 206.
Foorde, Hayes d. Foordc v. r. 225-6. 231.
Ford, Fordyce v. 314,
V. Rawlins, 143.
Fordyce v. Ford, 314,
Foreman, Harrison v. 380. — r. 337.
Fortescuc r. Abbot, r. 172.
Foster t'. Lord Konincy, 275. — r. 395.
Fountain v. Goocli, r. 52. 67. 445.
Fowler, Keily v. r. 395.
Fox, Lady Lanesboroujjh v. r. 198. 303.
• , Porter v. 152. 405.
Foy, Hutcliins v. r. 165.
V. J. Hyndc, r. 383.
Francis, Farmer v. 186.
Franco, Torres r. 106.
Frank, Driver v. 78.
V. Stovin, 291.
Franklin r. Lay, 289.— r. 257.
Franks v. Price, 298.
Freckcr, Norton v. r. 451.
Freeman, Doc d. Dean and ("ii. of Westmin-
ster V. r. 14.
French v. Caddel, r. 282.
Frogmorton v. Wharrcy, r. 212.
Frost, Doc d. King v. 283.— r. 294.
Fry V. Jjd. Slierbournc, 103.
's (Lady Ann) case, r. 133.
Fulham, Andrews v. r. 361.
Fulmerston v. Steward, r. 129.
Galland v, Leonard, 348.
Gardiner, Morgan v. r. 165.
Gardner v. Lyddon, 39.
Garrett, Sowell r. r. 97.
Garrod, Doc d. Garrod v. 263.
Garth v. Baldwin, r. 229. 308.
Gaskcll J). Harman, r. 150.
(iaunt. Target v. r. 282. 395.
CJuwler V. Standewickc, r. 155. 157.
Gcddes, Vawdry v. 191. — r. 403.
Gee, Pleasure ii. 231.
Geldart, Blamirc v. 166.
Gell, Everest v. 397.
Gencry v. Fitzgerald, r. 429.
Gerrard, Soulc r. r. 97.
Gibbs V. Tait, 311.— r. 339.
(Jiblclt, Child J), r. 341,
(iibson i\ Lord Montfort, r. 129.
0. Koger.s, r. 95. 429.
Gilbert v. Roorman, 94,
Giles «. Giles, 343.
Gill, Att. Gen. v. r. 399.
Giiman (Doe d.) v. Elvcy, 259.- r. 11. 294.
330.
Vol. 11.— 1
Gilmorc v. Severn, r. 94.
Ginger d. White v. White, r. 296,
Glanvil cGlanvil, 428.
Cilafebrook, Woodward v. r. 102.
(ilcnorchy (Lord) ». liosville, r, 251. 263.
Glover V. Monckton, r. 279.
Godfrey v. Davis, 93,
Godoljihin (Lord), Duke of Marlborough v. r.
195. 393,
Godwin t". Munday, r. 165.
Gofi; Due d. Strong v. 241.— r. 234,
(^oldsclimidt, DilUcs r, r, 95.
Goldsmith, Doe d. Cole v. 228.
Gompcrtz, Ellicombe r. 409.
Gooeh, Fountain r, r, 52, 07. 445.
Goodman, DalFornc r. r. 309.
Goodriglit v. Cornish, r. 440.
d. Docking v. Dunliam, r. 272. 296.
300. 3:jo.
d. Llo)'d V. Jones, 275.
d. Re veil r. Parker, 166,
w. Pullyn, r. 231.
V. Scarlc, r. 435.
d. Broking v. AVhitc, r. 203.
D.Wright, 237.
Goodtitle r. Billington, r. 43. 57.
d. Sweet V. Herring, 238.
d. Peakc v. I'egdcn, r. 271.
d. Hayward v. Whilby, r. 157.
(loodwin V. Clarke, r. 395.
Gordon v. Adolpiius, r. 120.
V. Levi, r. 194.
V. Rutherford, 143.
Gore V. Gore, r. 39. 427.
Gossagc V. Taylor, r 212,
Goudgc, Lane v. 159.
Goulbourn v. Brooks, 106.
Gould, Clarke r. 343,
(iower V. (Jrosvcnor, 324, — r. 360.
Grallon (Duke of) «. Hanmer, r. 396. 451.
452,
Graham, Hanson v. 158. — r. 153.
Grant v. Grant, 150.
Graves r, Boyle, r. 92.
Gray, I, isle r, r, 239,
Graydon, Chaunccy r. r, 435.
Green v. Ekins, r. 43. 247.
V. Rod, r. 281.
Grclton v. Haward, 234.
Grew, Roc .1. Dodson v. r. 2[t2.
Grieve, Giilliths v. 400.
Grilliths, Dansey v. 288,
V. Grieve, 400.
r. Vere, r. 420.
Groombridgc, PrcstwidgCB. 38l,
Grosvcnor, (iower v. 324 — r. 360.
Gulliver c. Wickctt, r. 51. 301.
tJunnis, Doc d. Tooley v. r. 395.
Gurnel v. Wood, r, 435.
Ilabcrghani v. Vincent. 449. — r. 4">0. 4ol.
Hake, King r. 85.
Hale, Wcb^U r c. 346.
Haley f. Bannister, 421
Ixii
TABLE OF CASES.
Hall, Wa^cot v. r. 157.
Hallcn (Doe d.) v. Ironmonger. 203. — r. 241.
Halley, Doc d. Bean r. r. 2'J7.
Ilallifux V Wilson, 103.
Hammond, Edwards i\ 174. — r. 175.
Wright V. r. 399.
Hanbury v. Cockerell, r. 51.
Hancock, Enics v.r. 1G5.
Hanmcr, Duke of Grafton r. r. 396. 451. 452.
Hanning, Boyce v. r. 414.
Hanson r. Ciiaham, 158. — r. 153-
Hardcastlc, Robinson v. r. 415.
Harding, Campbell v. 397.
Hardwick, Ring ». 415.
Hannan.Gaskell v. r. 150.
Harpooi, Kent v. r. 447.
Harris (Doe d.) v. Howell, 365.
V. Lloyd, 429.
, Tucker v. 139. — r. 83.
Harrison v. Foreman, 380. — r. 337.
V. Naylor, r. 155.
Hart V. Middlchurst, r. 263.
Haskcr p. Sutton, 101.
Hastings, Bur. on v. r. 247.
Haugliton v. Harrison, r. 92.
Haward, Gretton v 234.
V. Stillingfl. et, r. 427.
Hawkins v. Hawkins. 100.
, Moor et ux. v. r. 437.
Hay V. Lord Coventry, 275.— r. 395.
, Dodson V. r. 157.
Hayes d. Foorde v. Foordc, r. 225-6. 231.
V. Hayes, 394.
, Watson V. 160.
Hayward, Page v. r. 14. 452.
Hearing, Webb v. r. 172 400.
Heath, Cotton v. r. 59. 395.
Herbert, Manning v.i. 165.
(Doe d.) B. Sclby, 370.— r. 99. 361.
Herring, Howes v. 338.
, Goodtitle d. Sweet v. r. 238.
Hertford (Marquis of), Lord Southampton v.
417.
Hervey v. M'Laugiilin, ,342.
Hiccocks, Atkins v. r. 149.
Higden v. Williamson, r. 436.
Higgins t). Dowler or Derby, r. 43.
Highway v. Banner, r. 247.
Higman, Roberts ?). r. 91.
Hill V. Chapman, 91.
, Marshall v. 109.
Hinckley v. Simmons, 339.
Hiscox, Wilhs v. r. 240.
Hoare v. Parker, r. 60.
Hoath ». Hoath, r. 157.
Hobson c. Trevor, r. 436.
Hockley c. Mawbey, 2.'>8.—r. 43-4. 294.330.
Hodgcson V. Bussey, r. 309.
Hodgson V. Ambrose, r. 225.
T). Rawson, r. 165.
, Studholmc v. r. 428.
Holcrofl's case, r. 171.
Holder r. Preston, r. 414.
Holford, Palmer v. r. 392.
Holkman, Jordan v. r. 126.
Holland, Rawley v. r. 228.
llollingsworth, Fuulkcner v. r. 150.
llolloway, Marshall v. 418.— r. 165.
Holme, Bankcs v. 198.
Doc d. Brown v. r. 43. 71.
Monkliouse v. r. 164.
Holmes V. Cradock, 378. — r. 50.
, Plunket v.T.2\. 302. 447.
Home V. Pillans, 348.— r. 344.
Honor V. Honor, r. 246-7.
Hooker v. Hooker, r. 447.
Hooper, Nichols v. r. 395.
Hope V. Lord Clifden, 84.
Hopkins v. Hopkins, r. 27. 365. 365.
443. 448.
Horton v. Whittaker, r. 88. 358.
Hoste V. Pratt, 94.
Hotehkin i). Hunifrey, 88.
Howell, Doe d. Harris v. 365.
V. Howell, r. 247.
Howes V. Herring, 338.
, Scarfield v. r. 164.
Howgrave v. Cartier, 86.
Hudson, Massey v. 280.
Hughes V. Hughes, 95.
V. Sayer, r. 280.
Humberston v. Humberston, r. 265.
Humble, Cholmeley, v. r. 383.
Humfrey, Hotehkin v. 88.
Hungerlbrd, Mildmay v. r. 451.
Hunt, Bromhead v. 337.
(Doe d.) V. Moore, 177.
, Price V. r. 97.
Hunter v. Judd, 182.— r. 142. 403.
, Palsford v. r. 92.
Hurrell, Penhay v. r. 113. 228,
Ilutchins V. Foy, r. 164.
Hutchinson, Atkinson v. r. 270.
Hyde v. Perratt, r. 60.
Hynde (J.), Foy v. r. 383.
Ibbctson V. Ibbetson, 402.
Ingram, Shepherd v. r. 95.
Ironmonger, Doe d. Hallen v. 203. 241.
Irwin, Foley v. 271.
Ives V. Leggc, r. 330.
Jackson v. Jackson, r. 150.
Pitt V. r. 229.
James, Merest v. 260. — r. 44.
V. Richardson, r. 203.
, Romilly V. 287.
Jcal V. Tichener, r. 165.
Jcarrad (Doc d.) v. Bannister, 330.
JcfFery, Roe d. .Sheers v, r. 271.
Jefferies v. Reynous. r. 103.
Jekyl, Klliot?;. r. 248.
Williams V. r. 248.
Jcnkinson, Murthwaite v. 290.
Jennings v. Looks, r. 154.
, Nottingham v. r. 400.
Jermyn v. Ascot, r. 383.
Jesscp, Doe d. Ashcr v. 101. 357.
427.
TABLE OF CASES.
1X111
Jesson 0. Wrigl.t, 233.-r. 224.
Jones (Doc d.) v. Duvies, 2G9.
, Egcrton v. 200.
V. Langliton, r. 2 IG.
, Goodright d. I.loyd v. 275.
V. Morgan, r. 201. 224-5. 236.
, Murray v 3G1.
, O'Kecfb V. 75.
(Doc d.) V. Owens, 288.— r. 282.
15 Torin, 45.
V. Wcstconib, r. 3G1.
Jordan v, Holkniun, r. 12G.
Judd, Hunter v. Ib2. 403.
V. Judd, 182.— r. 142. 403.
Kebbcll, Batsford v. r. 158.
Kccne v. Pinnoek, r. 27G. 330.
Keigliley, Maliin v. r. 194.
Kcily V. Fowler, r. 3'J5.
Kemcys, Dean v. 102.
Kemp V. Davy, r. 1G5.
, VVliatelcy v. r. 247.
, Wright V. r. 102.
Kcnnct, Cadogan v. r. 60.
Kent V. Harpool, r. 447.
Kenyon (Lord), Browne v. 335. — r. 141.
Kevcrn v. Williams, r. 151.
Kilburne, Theebridge v. r. 308.
Killet, Dawson v. r. 165.
Kime, Loddington v. r. 43. 262. 272. 330.
Kinch V. Ward, 231.— r. 307.
King V. Burchell, r. 251. 255. 292.
(Doe d.) V. Frost, 283.— i. 294.
V. Hake, 85.
V. Rumball, r. 172.
(Tlie) V. Marq. of Stafford, 274.
King v. Taylor, 341.
I). Withers, r. 164. 435.
Kingslcy, Roberts v. r. 247.
Kirkpatrick v. Kirkpatrick, 278.
Knight V. Cameron, r. 170.
o. Ellis, r. 310.
— V. Knight, 144.
Laffcr V. Edwards, 47.— r. 347.
Lamb tj. Archer, r. 395.
Laming, Doc v. r. 241.
Lampet's case, r. 59.
Lampley r. Blower, r. 271, 311.
Lane v. Gondge, 159.
V. PanncI, r. 212. 386. 451.
Lancsborougli (Lady) u. Fox, r. 198. 303.
Langford, Taylor r. 92.
Langley v. Baldwin, r. 29G.
, Brougliton i\ r. 224.
Langton, Jones ». r. 246.
Lay^ Franklin v. 289 —r. 257.
Lea, Doe d. Wlieadon r. r. 164.
Leach, Tliompson v. r. 446.
Leake v. Robinson, 403. — r. 150.
Le Despenccr, Bankes v. 402.
Lee, Burford v. r. 312. 39.5.
V. Lee, r. 452.
Lees V. Mosley, 260.
Lcgat ti. Sewell, r. 236.
Le Gay, Morris v. r 231.
Lcgge, Ives V. r. 330.
Legh, Schcnck v. 110.
Leigh V. Norbury, r. 250.
, Stanley i;. r. 13.
, Wight i;. r.296.
Lcigliton, Carlcton v. r. 23.
liC Juune V. Lc Jcune, 343.
Lcminon, Vachcl v. Vachel and, r. 358. 360.
Lcnnard, Stanley v. r. 297.
Leonard, Galland v. 318.
V. Eurl of Sussex, r. 245.
Lepine v. Ferard, r. 3)6.
Lester v. Bradley, 160.
L' Estrange, Love v. r. 164.
Lethieuliier v. Tracy, r. 83.
Levi, Gordon v. r. 194.
Lewis d. Ormond v. Waters, 276.
Lifford (Doe d.) v. Sparrow, 348.
Linch V. Cook, r. 443.
Lincoln (Countess of) v. Duke of Newcastle,
3jg_ r. 319 itc.
, Duke of Newcastle t). 317.— r. 319,&,c.
Lindo, Mocatto v.t. 104.
Lindscy (Doe d. Earl of) c. Collyer, 229.
Lisle V. Gray, r. 239.
Livcrsage (Doe d.) v. Vaugban, r. 395.
liloyd V. Brooking, r. 446.
V. Caruw, r. 51.
, Harris V. 429.
Loddington v. Kicne, r. 43. 262. 272. 330.
Long ». Blackall, r. 391.
, Prcscott 0. r. 94.
(Doe d ) 73. Prigg, r. 141.
Longdon v. Simpson, r. 420.
Looks, Jennings r. r. 154.
Love V. L' Estrange, r. 164.
Lovic's (Leonard) case, r. 193.
Lowdall, Pawscy v. r. 450.
Lowe, Bennett v. 302.— r. 395.
1-. Davies, 238.
Lower, Wcale r. r. 196. 438.
Lowthcr D. Condon, r. 164.
Lucas, O'Ncile r. 432.
Lucrall, Roc d. Rcw v. 379.
Lumb, Cronick i\ 406.
Lnxford v. Cheeke, r. 126.
Lyddon, Gardner v. 39.
Lyon V. .Alichcll, 257.— r. 310.
Lytton r. Lytton, r.201.
Machcll r. Weeding, 289.
Machin r. Reynolds, 185.
Mackell, Bolger ?'. r. 150.
Mackinnon r. Peach, r. 281.
Sewell, 362.
Maddison, Benyon r. r. 164.
Main, Walker v. r. 16.5.
Maitland v. Chalie, 109.
Mulciilm r. Taylor. 372.
Malim v. Barker, r. 194.
r. Keighley, r.l94.
Mandevilo's case, r. 212. 215-6.
Manficld n. Dugard, r. 161.
Ixiv
TABLE OF CASES.
Mannintr v. Herbert, r. 1G5.
Manning's case, r. 51).
Markland, Entwistlc, v. r. 150.
Marks v. Marks, r. 51.
Marlborough (Duke of) v. Lord Godolpliin,
r. 195. 3!)3.
Marsdcn, Eyre v. 433.
Marsliall v. Boiisfield, 292.
V. Ilill, 10!).
r. Ilollowny, 118.— r. 165.
Marten, Nortli v. 231).
Martin, Doc d. Urnnc v. 438.
, Doe V. r. 4 i9.
, Embrey v. r, 1G5.
. , Doe d. Willis v. r. 193-4. 387.
Massenburgh r. Ash, r. 360.
Massey v. Hudson, 281.— r. 280.
Masterman, Saycr v. r. 236.
Matthews r. Temple, r. 387.
Maule, Stone v. 313.
Maundrell v. Maundrell, r. 193.
Mawbey, Hockley zi.258.-r. 43-4. 294.330.
McDonald v. Brice, 432.— r. 420.
Meadows r. Parry, 361.
Measure v. Gee, 231.
Mello, Devismc v. r. 92.
Meredith v. Meredith, r. 390.
Merest v. James, 260. — r. 44.
Messenger, Middleton v. r. 92.
Michcll, Lyon v. 257.~r. 310.
Middlehiirst, Hartz). 2G3.
Middleton v. Messenger, r. 92.
Mildmay's case, r. 383.
Mildmay v. Hungerford, r. 451.
Miles V. Dyer, 108.
Miller v. Seagrave, r. 260.
Mills V. Norris, 95.
, Vivian v. 103.
Milner, Slade v. 341.
Milward, Rudhall v. r. 383.
Mitford, Pibus v. r. 228.
Mitforth, Fenwick v. r 205.
M'Laughlin, Hervcy v. 342.
Mocatto V. Lindo, r. 104.
Mogg V. Mogg, 388-9. r. 263. 451.
Monckton, Glover v. r. 279.
Monkhousc v. Holme, r. 164.
V. Monkhousc, 398.
Montagu V. Nucclla, 4.5.
Monteith v. Nicholson, 3.50.
Montfort (Lord), Gibson v. r. 429.
Moody, Cunningham v. r. 193.
Moore et ux. ?;. Hawkins, r. 437.
, Doe d. Hunt v. 177.
, Whatlord v. 88.
Moorhouse v. Wiiinhousc, r. 435.
Morgan, Fairfield v. 98.
— ^— v. Gardiner, r. 165.
, Jones V. T. UQ]. 224-5. 23G.
, Doe d. Mus'cl ». r. 71. .386.
Morpeth (Read and)». Fr^rignton, r. 205.
Morris v. Le Gay, r. 231.
, Vcnables ». r. 22!).
Morse v. Lord Ormonde, 284. — r. 29C.
Moselc}', Lees v. 2G0.
Mortimer v. West, 301.
Mount, Wilson v. 364.
Munduy, Godwin v. r. 165.
Mundy, AVeddell «. r. 102.
•Murkiii V. Phillipson, 187.
Murray v. Addcribrook, 332. — r. 157.
V. Jones, 361.
V. Tancrcd, r. 151.
Murthwaitc «. Harnard, 290.
V. Jenkinson, 290.
Mussel (Doe d.) v. Morgan, r. 71. 386.
Mytton V. Boodle, 100.
Nandiek v. Wilkes, r. 24G.
Nappcr V. Sanders, r. 88. 113.
Nash V. Coates, 231.
V. Smith, 143.
Naylor, Harrison v. r. 155.
Nelligan, Nowlan v. r. 339.
Nevilf (Doe d.) v. Rivers, 287.
Newcastle (Duke of) «. Countess of Lincoln,
317.— r.3l9, (fcc.
, Countess of Lincoln v. 318.— r. 319,
&c.
Nevvland, Beckley v. r. 436.
, Cursliam, v. 261.
Newman v. Newman, 406,
Nichol V. Nichol, r. 264.
Nicholls, Catchmay v. 60.
Nichols w. Hooper, r. 395.
V. Skinner, r. 280.
Nicholson, Monteith v. 350.
Norbury, Leigh v. r. 250.
Norfolk's (Duke of) case, r. 395.
Norris Mills v. 9.5.
North 11. Marten, 239.
, Wadley v. r. 164.
Norton v. Frecker, r. 451.
Norwood, Crump v. r. 241.
Nottingham v. Jennings, r. 400.
Nowell, Doe d. Roake v. 177.
Nowlan v. Nelligan, r. 339.
Nucella, Montagu v. 45.
Odcll, Crone v. r. 92.
O'Kecfe v. Jones, 75.
Oliver, Doc d. Christmas ?). 438.
Onimaney v. Bevan, 341.
O'Neile V. Lucas, 432.
Onslow V. South, r. 142.
Ormonde (Lord), Morse ».284— r. 29G.
Orrery (Lord), Shefiieid v.r. 133. 277.
Owens, Doe d. Jones v. r. 282.
Page, Denn d. Briddon v. r. 395.
V. Hay ward, r. 14. 452.
Palmer, Cadell v. r. 391.
V. Holford, r. 392.
, Wells V. r. 226.
Palmer's (Sir T.) case, r. 443.
Pannel, Lane v.r. 212. 386. 451.
P.npillon ?). Voice, r. 215.
Parker, Hoare v. r. 60.
, Goodright d. Revoll v. 166,
TABLE OF CASES.
Ixv
Parklinrst, Smith d. Dormer ». r. llG-125.
I'arr r. Swindels,2H8.
Parrot, Peck v. r. 435.
Parry, Meadows v. 3(")G.
Parsons v. Parsons, 378.
Paul ». Coinplon, r. i)'2.
Pawlelt V. Pawlett, r. ]54.
Pawsoy V. Edpar, r. 165.
V. Lowdall. r. 150.
Pay's case, r. 3!). 127.
Peach, Mackinnon ». 3fi3.— r. 280.
Peacock v. Spooncr, r. 301).
V. Win, r. 384.
Pearsall v. Simpson, 173. 378.
Pearson ». Stephen, 46.
, Sturgess V. 334. — r. 141.
, Wright V. T. 224. 22!). 231.
Peck V. Parrot, r. 435.
Pegden, Goodtitle d. Peake ». r. 271.
Pells V. Brown, r. 51.
Penhayr. Ilurrcll, r. 113. 228.
Penny, Donn v. 310.
Perfect V. Lord Curxon, r. 87.
Perkins, Biddle d. r. 414.
Perralt, Hvdcw. r. GO.
Perrin v. Blake, r. 225.
Perry v. Phclips, 78.
Perryn, Doe d. Comberbach v. r. 274. 330. 387.
390.
Peterson, Walsh v. r. 97.
Phelips, Perry v. 78.
PiicttipJace, Yates v. r. 154.
Phillipson, Murkin v. 187.
Pliipps V. Ackers, 188.— r. 429.
, Ackers v. 429.
1). Williams, 188.429.
Pibu.s ». Mitford, r. 228.
Picrson v. Vickcrs, 233. — r. 235.
Pigott, Wilson v.T. 194.
Pilkington (Due d.) ?>. Spratt, 75.
Pillans, Home v. 348.— r. 344.
Pinbury v. Elkin, r. 281. 434-5.
Pinnock, Keene v. r. 27G. 330.
Pitt V. Jackson, r. 229.
Planner (Doc d.) v. Scudamorc, 175.
Platel, Start v. 82.
Piatt V. Powles,230.
Plesington's case, r. 383.
Plunket V. Holmes, r. 21. .302. 447.
Polehill,Waret5.314.
Poole V. Poole, 235.
V. Terry, 1G7.
Pope V. Whitcombc, r. 43G.
Popham, Bainfield r. r. 296.
Porter v. Bradlcv, r. 271.
V. Fox, l.W. 40.").
Portington's (Mary) case, r. 383.
Poulden, Snow v. 154.
Powell V. Price, r. 246.
Powis V. Burdett, 87.
i>. Capron, r. 414.
Powles, Platl I). 230.
Pratt, Hostc r. 94.
Prescott V. Long, r. 94.
Preston, Holder v. r. 414.
Prestwidge v. Groombridgc, 381.
Price, ("ha hdiessB. 397.
, Curtis V. 2-26.
, Franks v. 298.
V. Hunt, r. 97.
, Powell J). r.21G.
I'ri^g, Doe d. lionir v. r. 111.
Pritohard, Bull v. 1H9.— r. 403.
Proctor, Bacon v. 165.
V. Bp. of Bath and Wells, r. 401.411.
Prowse V. Abingdon, r. 155-6.
Puckey, Dcnn d. Webb v. 291. 445.
Pullyn, Goodriglit v. r. 231.
Pulstbrd V. Hunter, r. 92.
Purcfoy V. Rogers, r. 71. 44G.
Purrlcr, Cuthbert v. 355.
Rackstraw v. Vile, 52.
Radford v. Radford, 271,
Randoll d. Doc v. Roake, 177.
Ranelagh v. Ranelagh, r. 280.
Raw Icy 13. Holland, r. 228.
Rawlins, Ford v. 143.
Rawson, Hodgson v. r. 1G5.
Read and Morpeth v. Errington, r. 205.
Read, Sansbury v. r. 151.
w. Snell, r. 270.310.
Reason, Doe d. Barnard v. r. 273.
Recce v. Steel, 225.
Reeves v. Brymer, r. 136.
Rew (Doe d.) v. Lucraft, 379.
Reynolds, Machin v. 185.
Reynous, Jefferies v. r. 103.
Rhodes, Shaw v. 423.— r. 420.
Rice, .^islabic v. r. 385.
Riciiards v. I^ady Bergavenny, r. 23G
Richardson, James v. r. 203.
Rights. Crebcr,r. 241.390.
d. Day v. Day, 99.
V. Hammond, r. 399.
Ring V. Hardwicke, 415.
Rivers, Doe d. Neville v. 287.
Roake (Doe d.) v. Nowell, 177.
Roberts v. Hyman, r. 91.
V. Kingslcy, r.247.
Robinson v. Hardeastle, r. 415.
, Leake v. 403.— r. 151.
V. Smith, r. 194.
Rod, Green v. r. 281.
Roe d. Thong v. Bedford, 225.
d. Clenictt v. Briggs, r. 449. 451.
d. Dodson n. Grew, r. 292.
d. Sheers v. Jellerev, r. 271.
d Rew V. Lucraft, 37!).
V. Scott and Smart, r. 287.
Rogers, Gibson t'. r. 95. 429.
, Purcfoy V. r. 71. 44S.
Rolfe P. Sowerby, 160.
Romilly u. James, 287.
Romney (Lord), Foster v. 275. — r. 395.
Ross, Clarke v. r. 165.
j\ Ross, 354.
Rous, Cambridge v. 340.
Ixvi
TABLE OF CASES.
RoiUledfre v. Dorril, 3G1. 113.
Howe, Bright v. 104.
Rudhall I'. Mil ward, r. 3S3.
lJu!r<r, Weakley d. Kniirlit v. 90.
Kumbalj, King- v. r. 17:2.
Ivusscll V. Biiciiaiian, 183.
Rutherford, Gordon v. 143.
Salter, Barlow v. r. 282.
Saltern ». Saltern, r. 451.
Sanders, Napper v. r. 88. 113.
Sandom, Biliings «. r. 339.
Sanford v. Irby, r. 198.
Sansbury v. Read. r. 151.
Savage, Adams v. r. 228.
Sayer, Hughes v. r. 280.
V. Masterrnan, r. 230.
Scarborough (Earl of) v. Uoe d. Savile, 6
, Scott V. 96.
Scarfield v. Howes, r. 164.
Scatter wood v. Edge, r. 14. 129. 358. 440.
Schenck v. Legh, 110.
Schole?, Chapman d. Scholcs v. 286,
Schroder, Cousins «. 107.
Scott V. Earl of Scarborough, 96.
Scowcrofl, Bowes v. 351.
Scudaniore, Doc d. Planner v. 175.
Seagrave, Miller v. r. 230.
Scale V. Scale, r. 307.
Seaman, Warman v. r. 310.
Searle, Goodright v. r. 435.
Seaward v. Willock, 267.
Selby, Ellis v. 277.
, Doe d. Herbert v. 370. r. 99. 361.
Severn, Gilmore v. r. 94,
Sewell, Legal v. r. 236.
, Mackinnon v. 362,
Seymour, Bennett v. r. 136,
, Coleman u. r, 91.
Shapland v. Smith, r. 229.
Shaw V. Rhodes, 423 r, 420,
V. Weigh, r, 252,
Sheers (Roe d,) v. Jeffcry, r, 271,
Sheffield v. Lord Orrery, r, 133, 277.
Shelley's case, 206.— r, 231, &c.
Shepherd ?). Ingram, r, 95,
Shcrbourne (Lord), Fry v. 103,
Sherman r, Collins, r, 165,
Shippard, Doc d. Watson v. r, 358,
Shirley v. Ferrers, r, 60,
Sidney v. Vaughan, r, 150,
Silvester v. Wilson, r, 229,
Simmons, Hinckley v. 339.
Simpson, Longdon v. r, 420,
, Pearsall v. 173, 378,
Sitwell V. Barnard, r. 150,
Skey V. Barnes, 181,
Skilbeck, Bradshaw v. 313.
Skinner, Nichols », r, 280,
Slack, Belk v. r, 141, 335,
Sladc V. Milner, 341,
Slater, Denn d. Slater v. 287.
Smart V.Clark, 316.
.Smith V. Lord Camelford, r. 193-4.
Smith, Doe d. Candler v, 232,
, Clarke V. r, 427,
, Nash V. 143,
d. Dormer v. Parkhurst, r, 116-125.
, Robinson v. r, 194,
, Shapland w. r. 229,
V. Smith, 154. 343.
V. Vaughan, r. 141. 335.
(Doe d.) V. Webber, 283.
Smitlieri). Willock, 380,
Sncll, Rend v. r,270. 310,
Snow V. (Guttler or Tucker, r. 54.
,u. Pouldcn, 154,
Walker u. r, 240.
Somervillc (Lord), Southey v. r. 395.
Sonday's case, r. 383.
Soule V. Gerrard, r. 97.
South, Onslow V. r. 142.
, Wilkinson v. 310.
Southampton (Lord) v. Marquis of Hertford,
417.
Southby 13. Stonehouse, r. 356.
Southcot V. Stowell, r. 226.
Southey v. Lord Somerville, r. 395.
Sowell V. Garrett, r. 97.
Sowerby, Rolfe n. 100.
Spalding v. Spalding, r. 71.
Sparrow, Dne d. Litford v. 348.
Speed, Davies v. r. 21. 440.
Spencer, Bagshaw v. r. 229,
V. Bullock, 167,
Spittle and Davie's case, 384,
Spooner, Peacock v. r, 309,
Spratt, Doe d. Pilkington v. 75,
Spring V. Caesar, 174,
Stables, Blackburne v. 245,— r. 230.
Stufibrd (Marquis of). The King v. 274.
Standcrwicke, Gawler v. r. 155. 157.
Stanley v. Leigh, r. 43.
V. Lcnnard, r. 297.
V. Stanley, 82,
V. Wise, r, 434.
Steel, Reece v. 225,
Ste[)hen, Pearson v. 46,
Stephens v. Stephens, r. 43. 367, 429.
Stert V. Platell, 82.
Steward, Fulrnerston v. r, 129.
StillinsTdcct, Hayward v. r, 427,
St. John (Lord), Whitbread v. 94.
Stone ». Maule, 313,
Stonchouse, Southby v.r. 356,
Stones, Bullock v. r. 427-8,
Stonor V. Curwcn, 312,
Stovin, Fran-k v. 291,
Stowell, Southcot v. r, 226,
Streatfield v. .Strcatfitld, r 216,
Strong (Doe d.) v. Goff, 241.— r. 234.
Stuart w. Brucre, r. 150.
Studholine v. Hodgson, r. 428.
Sturgess V. Pearson, 334. — r. 141.
Suretees, Barker v. r. 97,
Sussex (Earl of), Leonard v. r. 245.
Sutton, Att. Gen. v. r. 296.
, Ilaskcr v. 101,
TABLE OF CASES.
Ixvii
Pwindcls, TarrD. 298.
Syfiiiiliain, 'I'reponwell v. 415.
Sj'inons, Edwards v. lo8.
Talbot, Duke ofCliiindos v. r. 155-6.
TancTcd, Murray v. r. 151.
Tankervile (Karl of), Ucnnctt v. 232.— r. 2i4.
Target v. Gaiinl, r. 282. 3U5.
Talc V. Clarke, 257.
, Gibbs V. 311.— r. 333.
Taylor, Austen v. r. 244.
V. Bacon, r. 158.
, Gossaijc V. r. 212.
, King V. 344.
V. Lang ford, 92.
, Malcolm V. 372.
Taynlon, Critcliett v. 190.
Tcbbs V. Carpenter, r. 92.
Temple, Matthews v. r. 387.
Tenny d. Agar v. Agar, 287.
Terry, I'oole v. 167.
Test, Dcancw. 181.337.
Tlicebridgc v. Kilburne, r. 308.
Thellusson V. Woodford, r. 391. 417.
Tliompson v. Dow, r. 165.
V. Leach, r. 446.
Thong V. Bedford, r. 224.
(Uee d.) V. Bedford, 225.
Thornburgl), While v. r. 244.
Thrustout d. Small v. Denny, r. 278.
Tichborn, Corbet v. r. 443.
Tichcner, Jealf. r. 165.
Tilbury v. Barbut, r. 399.
Tippin V. Cosin, r. 226. 229,
Toldervy v. Colt, 358. — r. 50.
loUeniache v. Coventry, 401.
Tomlinson, Wall v. r. 331.
Tooley (Doc d.) v. Gunnis, r. 395.
Toovey v. Bast^ctt, 279.
Torin, Jones v. 45.
Torres v. Franco, 106.
Tracy, Lethieullier v. r. 88.
Trafford v. TralTord, r. 314.
Trcgonwel! r. Sydcniiani, 415.
Trcvilhin, Croker v. r. 381.
Trevor, Hob-son v. r. 430.
V. Trevor, r. 246.
Trickey v. Trickcy, 410.— r. 131.
Tristram, Barringtun i\ 94.
Trollope, Dubber d. Troliope v. r. 230.
Trotter v. Williams, r. 339.
Tucker v. Harris, 139.— r. 83.
— — , Snow V. r. 54.
Tugman, Brcedon v. 160.
Tunstall i'. Braebcn, r. 165.
Turner, Atkinson i'. r. 1G7. 428.
, Brooke v. 266.
V. Capel, 311.
V. Moor, 315.
Twining, Britton v. 309.
Tytc V. Willis, r. 400.
Usher (Doe d.) v. Jcsscp, 101. 357.
Vachcl V. Vachol and Lcmmon, r. 358. 360.
S'anderzee i'. Adorn, r. 194.
Vane v. Lord Dungannon, r. 194.
Vanglianu. Bursicm, 3:^1. r. 317.
, Doc d. Livcrsage v. r. 395.
, Sidney v. r. 150.
, Smilli V. r. 141. 335.
Vaux's (Lord) case, r. 06.
Vawdry v. Gcdde.s, llJl.- r. 403.
Venables v. Morris, r. 229.
Verc, Grillilhs v. r. 420.
Vernon, Boothby v. r. 447.
Viekcrs, I'ierson i'. 233. — r. 235.
Vile, Hackstraw v. 52.
Vincent, Habergham v. 449. — r. 450. 451.
Vivian v. Mill.s, 163.
Voice, Papillon v. r. 245.
Wadicy w. North, r. 164.
Wainhoiise, Moorhousc v, r. 435.
Wake, Dod v. 406.
Walcott). Hall, r. 157.
Walker v. Main, r. 165.
V. Shore, 93.
V. Snow, r. 240.
Wall V. Tomlinson, r. 331.
Wallen v. Andrewes, 205.
Wal[)ole V. Lord Conwa}", r. 193.
Walsh V. Peterson, r. 97.
Waller V. Drew, r. 71. 303.
Ward, Andrcc v. 379.
, Avelyn v. r. 358. 361.
V. Bevil, 295.
, Doe d. Dollcy v. r. 159.
, Kinch V. 231.— r. 307.
Wardc, Bristow r. r. 194.
Ware v. Polhill, 314.
Waring v. Coventry, r. 414.
Warman v. Seaman, r. 310.
Warter v. Warier, 188.
Warwick v. Warwick, r. 217.
Waters, Lewis d. Ormond v. 276.
Watkins v. Cheek, 16.3.
Watson V. Hayes, 160.
(Doc d.) V. Shipphard, r. 358.
Weaklc}' d. Knight v. Hugg, 90.
W^eale v. Lower, r. 196. 438.
Wealthy v. Bosville, r. 71.
Webb V. Hearing, r. 172. 400.
V. Webb, r. 308. 421.
Webber, Doe d. Smith v. 283.
Webster v. Hale, 346.
Weddell V. Mundy, r. 102.
Weeding, Macliel v. 289.
Weigh, Shaw r. r. 252.
Wellington v. Wellington, r. 282.
Wells, Backhouse v. r. 251. 255. 262.
West, Mortimer v. 301.
V. Errissej", r. 2 lG-7.
Westcomb, Jones i\ r. 361.
Wctton, Doc d. Barnficld v. 302.— r. 71.
Wharrcy, Frogmorton v. r.212
Whateley v. Kemp, r. 247.
Wliatford v. Moore, 88.
Ixviii
TABLE OF CASES.
Whccdon (Doe d.) v. Lee, 1G4.
Wliceler v. Duke, r. 249.
"Wliitbrcad v. Lord St. John, 91.
Whitcombe, ro[)e r. r. 43tJ.
White, Goodriglit d. Brooking v. r. 203.
V. Collins, r. 230. 240.
White V. Carter, r. 244.
V. Thornburgh, r. 244.
, Ginger d. White v. r. 296.
Whitings. Wilkins,r. 230.
Whittaker, Horton v. r. 88. 358.
Wickett, Gulliver v. r. 51. 3GL
Wight V. Leigh, r. 29G.
Wilkes, Nandick v. r. 246.
Wilkins, Whiting v. r. 230.
Wilkinson, Ikanstrom v. 111.
V. South, 310.
Williams, Bland v. 185.
V. Jekyl, r. 248.
, Kevern v. 151. — r. 152.
, Phipps V. 188. 429.
. , Trotter v. r. 339.
Williamson, lligdcn v. r. 436.
Willis V. Hiscox, r. 239.
(Doed.) V. Martin, r. 193-4. 337.
, Tyte V. r. 400.
Willock, Seaward v. 267.
Willock, Smither v. 380.
Wills, Biliingsley v. r. 141. 335.
V. Palmer, r. 226.
Wilson, Hallifax v. 203.
V. Mount, 304.
V. Pigott, r. 194.
, Silvester v. r. 229.
Win, Pearce v. r. 384.
Wire, Stanley v. r. 434.
Withers, Allgood v. r. 243.
, King v.r. 16.5.435.
Wilts V. Boddington, r. 194.
Woleott, Cripps v, r. 141.
Wood's case, r. 435.
Wood, Gurnel v. r. 435.
Woodford, TlieJlusson v. r. 391. 417.
WoodliifM. Drury, r. 39.
Woodward v. Glasbrook, r. 102.
Wright, Goodriglit ». r. 257.
V. Hammond, r. 399.
■ , Jcsson V. 233. — r. 224.
V. Kemp, r. 102.
V. Pearson, r. 225. 229. 231.
V. Wright, r. 430.
Yates V. Phettiplacc, r, 154.
Young, Chatteris v. r. 358.
PAET I.
THE VARIOUS KINDS OF INTERESTS, AND THE DIFFERENT
SORTS OF CONDITIONS AND LIMITATIONS ON WHICH THEY
DEPEND OR BY WHICH THEY ARE CREATED OR AFFECTED,
ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED.
Vol. IL— 1
[ 3 J
CHAPTER THE FIRST.
THE DIFFERENT KINDS OF CONDITIONS, ON WHICH INTER-
ESTS MAY DEPEND, OR BY WHICH THEY MAY BE AF-
FECTED, ANALYTICALLY ARRANGED, DEFINED AND DIS-
TINGUISHED.
1 It is impossible to obtain an accurate knowledge of Knowledge
the interests which form the subject of the following of conditions
pages, without an accurate acquaintance with the various is essentially
kinds of conditions on which they depend, or by which they necessary.
may be affected.
2 Conditions, in the widest sense of the term, may be Division of
be divided into conditions,
I. Express, which are either in the widest
1. Direct, or sense of the
2. Indirect. ' term.
II. Implied.
3 Again; they may be divided into A second di-
I. Conditions properly so called. visionofcon-
II. Defeasances. ditlons,inthe
III. Special or collateral limitations, in the origi- widest sense
nal sense of limits or bounds. of the term.
4 Conditions properly so called may be distributed into Division of
several kinds: conditions
I. General conditions. properly so
1. Subsequent, or simply destructive, which, called.
as affecting lands or tenements, are
either
(1) Of the concise or implied form, or
(2) Of the unconcise or explicit form.
2. Precedent, or simply creative,
(on which the following interests depend:
viz.
Interests limited hypothetically j [ 4 1
Springing interests ;
Alternative interests ;
Contingent interests in the whole or the
itumediate part of a reversion, and
Contingent remainders.)
3. Mixed.
(1) Destructive and creative,
(on which the following interests depend:
viz.
[ 4 ] I. 1.] AN ORIGINAL VIEW [§ 5—11.
Interests under augmentative limitations.
Interests under diminucnt limitations;
and
Interests under conditional limitations.)
(2) Destrnctive andaccelerative,
or clanses of cesser and acceleration.
II. Special conditions.
Definition of ^ An express condition, as the term imports, is a 5
an express condition expressed in words: and it is sometimes
condition. termed a condition in deed. (a)
— of an im- An ''implied condition, which is sometimes term- 6
plied condi- ed a condition in law, is a condition which is not
tion. expressed, but is annexed by construction of law, for the
avoidance of an estate in a particular event.(6)
— of a direct A direct condition, in its widest sense, is an by- 7
condition. pothetical or suppositive member of a sentence, upon
which the creation, enlargement, diminution, or defeasance of
an estate, or the suspension of the beneficial interest in
of an in- property, expressly or constructively depends. <= An 8
direct condi- indirect condition is one that, in certain cases at
tion. least, is denoted by the word "for," in grants of one thing
for another, which is not granted or covenanted to be given
or done in return. (c)
— of a gene- A ^general condition(^) is «=a clause providing, 9
[ 5 ] or constructively importing, that an estate shall be
ral condition, created, enlarged, diminished, or defeated in a given 10
See § 16. event. (e) A ^special condition is a clause which
Definition of merely suspends an estate, or the beneficial interest therein,
aspecialcon- to answer a special purpose. Of this nature are clauses that
diiion. provide, that in case the rent reserved on a lease shall be in
Examplesofarrear, the lessor may enter, and hold until the arrears of
special con- rent be satisfied ;(/) and clauses e providing, that when any
ditions. heir of the grantee of a rent newly created, should be under
age, the rent should cease during his non-age ; and clauses
whereby lands are limited to the use, intent and purpose,
that if a rent-charge should be in arrear, the grantee, his
heirs or assigns, might enter until the rent should be paid
and satisfied. (^)
Division of General conditions are usually divided into'* con- 11
general con- ditions precedent and subsequent(A). But it would
ditions.
(a) See Co. Litt. 201 a. Shep. T. 117.
h) See Shep. T. 117, 118. Co. Litt. 201 a ; 332 b. Litt. 378.
(c) See Co. Litt. 204 a. Shep. T. 124, 125, and note 17.
(d) See Co. Litt. 203, Butler's note (3).
(e) See Co. Litt. 204 a. Shep. T. 117.
(/) Litt. 327. Co. Litt. 203 a, Butler's note (3).
(g) See Fearnc, 527, 528.
{h) Co. Litt. 201 a. Shep. T.
I. 1.] OF EXECUTORY INTERESTS. [§ 12—17. [ 5 ]
seem that they may be more properly distributed, as above,
into subsequent, precedent, and mixed.
12 A CONDITION SUBSEQUENT is a dircct condition Definition of
that is 'annexed to an estate or interest created by a condition
a previous clause or instrument, and upon the fulfilment or subsequent,
upon the breach of which, according to the form of the con-
dition, such estate or interest is to be prematurely(2) defeated See §26, 34,
or determined, and no other estate is to be created in its 36.
room:(/t) as, 'where a lease is made for years, on condition See § 149.
that the lessee shall pay 10/. to the lessor at Michaelmas, or
else his lease shall be void.(/)
13 A CONDITION PRECEDENT Is a dircct condition of a con-
which is not annexed to an estate created by a pre- dition prece-
vious clause or instrument, but "upon the fulfilment of wiiich dent,
an estate or interest is to arise or be created: as, where it is See § 149,
agreed that '\i J. S. pay me 10/. at Michaelmas, he shall have [ ^ ]
such a ground of mine for 10 years. (//) 137, 147.
14 A MIXED CONDITION is a direct condition, which — of a mixed
is annexed to an estate created by a previous clause condition.
or instrument, and is destructive in its operation as regards
that estate, and creative or accelerative as regards another
estate.
15 There are two forms, as we have already seen. Two forms of
of conditions subsequent, as they aflect lands or conditions
tenements. subsequent.
16 A condition subsequent of the concise or im of a con-
PLiED form, is a proviso subjoined to a grant, lease, dition subse-
or devise, and beginning with the words, on condition &c., quent of the
provided &c , or so that &c., or, in the case of a lease for concise or
years, with words of a similar import, and not followed by implied form,
any remainder over, or by any stipulation or regulation for ^^^ § ^^•
the reverter or transfer of the property, but "'ea* vi propria^ ^^^ V 1^»
{ill) conferring ^^o\\ the donor, devisor, or lessor, and his re- ^^^'
presentatives, the right of bringing an action to avoid the
estate. (7i)
17 A condition subsequent of the unconcise or of a con-
EXPLiciT form, is a sentence subjoined to a grant, tUtion subse-
lease, or devise, providing, in terms or in effect, that, in a quent of the
given event, the property comprised in such grant, lease, or unconcise or
devise, shall revert "to the donor, lessor, or devisor, or his explicit form.
representativcs,(o) before the estate created by such grant,
(z) See Prcst. Shop. T. 117, 118, 127.
(A;)SocShep. T. 117.
(0 Shcp. T. 118.
(//) Shop. T. iir.
(m) Sec Litt. 328, 329. Shcp. T. 121.
(n) See Frcst. Shop. T. 153.
(o) See Shep. T. 120, 127, 149.
[ 6 ]
I. l.J
AN ORIGINAL VIEW
[§ 18-21.
lease, or devise, shall have filled up the measure of duration
given to it thereby, and ^serving to confer on him and them,
in that event, the right of bringing an action to avoid the
estate accordingly, {p)
The two The following passage from Sheppard's Touchstone will
forms ofcon- clearly elucidate the foregoing definitions of the two
ditionssub- different forms of conditions subsequent : "Know 18
sequent 11- therefore, that, for the most part, conditions have
[ 7 ] conditional words on their frontispiece, and do begin there-
lustrated. with ; and that, amongst these words, there are three words
that are most proper, which, in and of their own nature and
efficacy, without any addition of other words of re-entry in
the conclusion of the condition, do make the estate condi-
tional, as proviso, ita quod, and sub conditione. And there-
fore, '\i A. grant lands to B., to have and to hold to him and
his heirs, provided that, or so as, or under this condition, that
B. do pay to A. 10/, at Easter next; this is a good condition;
and the estate is conditional, without any more
words. But there are other words, as, Si, si con- 19
tingaf, and the like, that will make an estate con-
ditional also ; but then they must have other words joined
with them, and added to them, in the close of the condition,
as, that then the grantor shall re-enter, or that tiien the estate
shall be void, or the like. And therefore, if./?, grant lands
to B. to have and to hold to him and his heirs ; and if, or,
but if it happen, the said B. do not pay to A. 10/. at Easter,
without more words, lliis is no good condition ; but if these,
or such like words be added, that then it shall be lawful for
,/^. to re-enter; then it will be a good condition. "(<^)
Definition of Mixed conditions in general have already been 20
a mixed con- (defined. A mixed condition of the destructive
dition of the ^^^ creative kind, is a direct condition that is annexed to
an estate created by a previous clause or instrument, and
upon the fulfilment of which, such estate is to be defeated,
and another estate is to arise in its room.
These last-mentioned conditions, however, which are here
termed mixed, or the limitations of which they form a part,
are frequently designated conditions precedent, in contradis-
times termed tinction to those conditions proper which are termed condi-
precedent ^ions subsequent, and are simply destructive. And, on the
and some- Other hand, they are sometimes termed conditions subse-
times subsc- quent, in contradistinction to those clauses which are simply
quent. creative.
Mixed con- From these mixed conditions, we must be care- 21
ditions dis- f^l to distinguish those conditions subsequent in
destructive
and creative
kind.
See §12, 16,
17.
Mixed con-
ditions some
{p) Prest. Shcp. T. 1.53.
Xq) Shep. T. 121, 122.
See also Co. Litt. 330, 331.
I. 1.] OF EXECUTORY INTERESTS. [§ 22. [ 7 ]
which the act required in tlie condition to be performed, is, tinguished
to create an estate : as '"wliere one makes a feoll'nient [ ^ ]
in fee, on condition that the feoffee shall make an estate from certain
back again in tail to the feoffor, and his wife, before such a others.
day,(;')
22 A MIXED condition of the destructive and ac- Definition of
CELEKATIVE KIXD, Or; A CLAUSE OF CESSER AND a mixed COll-
ACCELERATION, is a proviso following the limitation of seve- dition of the
ral successive estates in the same subject of property, and in destructive
etlect directing, that, in a given event, one or more of the and accele-
first limited of such estates shall cease, and tlie estate or rutive kind.
estates in remainder be thereupon accelerated, and take
effect as if such first limited estate or estates had expired
according to the terms of their original limitation.
Lands were devised to B. for life, remainder to trustees y;ig j^(ij.i ^f
to preserve, &:c., remainder to 7?.'s first and other sons in tail Scarbo-
male, with similar remainders in favour of /., a younger rough v.
brother of R., and his sons, and of F., another younger bro- Doe d.
ther of 7?., and his sons, and of other younger brothers of /i?., (S'a»JZe,3Ad.
and their sons, respectively. And the will contained a pro- & El. 897.
viso, that if the title to a certain Earldom should descend to
any of them, the said R., /., F., &c., or to any of their sons,
(within any of the lives, &.c.) then, and in such case, and as
and when the title should come to him or them, the estate
which he or they should then be entitled to in the lands,
under or by virtue of the will, should cease, determine, and
become void ; and the lands should immediately go to the
person or persons, who, under the limitations aforesaid,
should then be next in remainder expectant on the decease
and failure of issue male of the person to whom the title
should so come, in the same manner as such person or ])er-
sons so in remainder would take the same by virtue of the
will, in case he or they to whom the title should come was
or were actually dead without issue. The title descended
to 7?., while in possession of the lands, whereupon /. took pos-
session; and he and his eldest son joined in suffering a re-
covery. It was held by the Court of Exchequer Chamber,
reversing the judgment of the Court of King's Bench, that the
proviso was a proviso of cesser and determination only of the
old estates, so as to accelerate and let in the enjoyment of the
remainders over, and not a proviso which created any new [ 9 ]
estates in remainder; and consequently, that, by the recovery,
the old remainder for life in F.j and the old remainder in tail
in his son, were effectually barred. (3 Ad. & El. 965.) For,
as Lord Chief Justice Tindal observed, the effect of the pro-
viso was, that if tlie title descended upon a tenant for life,
(r) Prest. Shep. T. 134. And see Litt. 352—358.
[ 9 ] I. 2.] AN ORIGINAL VIEW [§ 23—25
the estate of such tenant for life, and the estates tail in
remainder in all his sons snccessively, ceased, by necessary
implication ; if it descended upon one of the sons, the tenants
in tail, the estate tail in such son of the tenant for life failed
only, and the manors would go over to his next brother in
tail. (lb. 966.) And that the remainder-men were to take
as if the prior estates had determined by the natural course
of their determination, f^'r. the death of the person to whom
the title descended, and the failure of his issue, which provi-
sion pointed to the mere blotting out of the prior estates, and
to the accelerating the old estates in remainder already
created by the will, and not to the creating of new estates,
(lb. 967.)
' Defeasances are provisoes of the same import 23
Definition of and efficacy as proper conditions* subsequent, but
a defeasance, are contained in a distinct deed, either delivered at the same
* See § 12, time with the deed to which the condition relates, or, except
16-19. ' in the case of things executory or chattels, delivered after the
deed to which the condition relates.(.s).
[ 10 ] CHAPTER THE SECOND.
THE DIFFERENT KINDS OF LIMITATIONS, IN THE ORIGINAL
SENSE OF LIMITS, BY WHICH INTERESTS MAY BE REN-
DERED DETERMINABLE, ANALYTICALLY ARRANGED, DE-
FINED, AND DISTINGUISHED.
Two senses Great confusion has frequently arisen from not 24
of the word observing that the word hmitation is used in two
"limitation," different senses : the one of which may, for the sake of con-
viz. — venience of distinction, be termed the original sense ; name-
the original ly^ that of a member of a sentence, expressing the limits or
sense, bounds to the quantity of an estate ; and the othcr,the deriva-
andlhe deri- tive sense; namely, that of an entire sentence, ''creating(a)
valive sense, and actually or constructively marking out the quantity of
an estate.
See § 3. In the preceding chapter, Conditions, in the 25
widest sense of the term, were divided into Condi-
tions properly so called, Defeasances, and Special or Collate-
ral Limitations in the original sense. The first two formed
the subject of that chapter. It will now be necessary brief-
ly to treat of the third.
(s) See Co. Litt. 236 b; 237 a. Prest. Shep. T. 126.
(a) See Prest. Shep. T. 117.
I. 2.] OF EXECUTORY INTERESTS. [§2G— 32. [ 10 ]
26 A limitation, in the original sense of a limit or Definition of
bound, which, as well as an implied condition, is a limitation,
''sometimes called a condition in law, (6) is a restrictive ex- in the ori-
pression, which serves to mark out the limits or •= bounds of ginal sense,
an estate. (c) ^^^ § 6.
27 Such limitations may be divided into — S^^§ 12, 10-
I. General. '^^'
1. P]xpressed. Division of
2. Implied. such linni-
II. Special or collateral. tations.
1. Regular. [ 11 ]
(1) Direct.
(2) Indirect.
2. Irregular.
28 A GENERAL limitation is a restrictive expression, Definition of
which determines the general class or denomina- a general
tion, in point of quantity of interest, to which an estate be- limitation,
longs, by confining it to the period during which there shall
be a succession of heirs general or special, or of persons fill-
ing a given corporate capacity, or to the period of a life or
lives, or of a certain number of years.
29 It is necessary to the very existence of law, that Necessity for
estates should be distributed into certain classes, '^'°'^. °
known by certain denominations, and that every estate ^p^'^^ ^"^*\
should be referable to one or other of these classes. And ^ ^^^^^' ^"
hence a general limitation, which, as we have seen, deter- r i
mines the general class and denomination to which an estate jiniitaUon to
belongs, is incident to every estate. every estate
30 The general limitation, however, may either be ^^ i ^■ '
expressed by the words of the instrument creating jt^tious eith
the estate, or may be implied by construction of law, ^j. express or
31 Thus, where land is granted to v^. and his heirs, i,-npiiec].
the words, "and his heirs," constitute a genera v, ,^^ ^r
hmitation: they serve to mark out the hmits of the estate; gxprcss sen-
to ascertain the quantity of interest ; and thus to determine gral Hmit-
to what general class and denomination the estate belongs; aliens,
denoting that the estate is one of that class of estates which
are termed estates in fee. And similarly the words, " and
the heirs of his body," "for life," "for years," are general
limitations, denoting that the estates are respectively es-
tates tail, freeholds not of inheritance, and chattel in-
terests.
32 Wliere land is granted to ./?. and his heirs for
the life of B., the words, "for the life of B."
form the general limitation. ^The words, " and his heirs,"
(b) Co. Lilt. 234 b; 236 b. Shep. T. 121.
(c) Shep. T. 117.
Vol. II.— 2
[ 11 J I. 2.] AN ORIGINAL VIEW [§33—36.
are not words of limitation, in this case; but point out the
persons, who, according to the common opinion, were to
lake as special occupants, during the residue of ^.'s life,
after the death oft.^. Where the words, "his heirs," are
words of limitation, they denote a fee ; whereas, it is allowed
[ 12 ] on all hands, that the grant in question does not create a fee
of any kind.(f/)
Instances of Where land is devised to Jl. for ever, the general 33
implied gc- limitation, " and his heirs," is implied. So, where
neral limit- land was devised to Ji. indefinitely, before the year 1S38,
ations. the general limitation, "for life," was implied by construc-
tion of law. And now, by the stat. 1 Vict. c. 26, where land
is devised in that manner, by a will made since the begin-
ning of the year 183S, the general limitation, "and his
heirs," is implied: for by that statute, such a devise will
pass the fee.
Definition of A special limitation is a qualification serving to 34
a special or mark out the bounds of an estate, so as to *^deter-
collateral Ji- mine it, ipso facto, in a given event, without action, entry,
mitation. or claim, before it would or might otherwise expire by
See § 12, 16- force of or according to the general limitation. (e) This is
19,148-9. '"sometimes denoted by the expression, "a determinable
quality."(/)
Examples of Thus, where land is limited to A. for 99 years, "i^
special limit- s if he shall so long live,(^) the words, "for 99
ations. years," form the general limitation, denoting that the inter-
est is a chattel interest for 99 years ; and the words, " if he
shall so long live," constitute a special limitation, which
would determine his estate on his death. This estate, there-
fore, is of precisely the same eventual duration as an estate
limited to %fl. for life, in consequence of the addition of the
special limitation. But the difference in the general limita-
tion in the two cases, creates the important distinction be-
tween them, that the one is but a chattel interest, whereas
the other is a freehold. Again, where land is granted to A.
•'till &c., or so long &c., or if &c., or whilst &c., or during,
&ic.,{h) the estates so limited have two limitations: for, the
law gives a life estate to t/1. implying the words "for life,"
so as to constitute an implied general limitation, while
the words till &c., form an additional and special limita-
tion.
[ 13 ] These special limitations are sometimes termed 36
Remarks on collateral limitations. And if the term, " collateral
(d) See Bl. Com. 259, 260. Fearne, 496—500.
(e) See Co. Litt. 214 a ; 234 b ; 235 a. Prcst. Shop. T. 139, 146.
(/) Fearne, 10, note (h).
(ir) Sec Co. Litt. 214 b. Sbcp. T. 125, 151.
(A) See Co. Litt. 214 b; 234 b ; 235 a. Shep. T. 125, 151, 140.
I. 2.] OF EXECUTORY INTERESTS. [§37—39. [ 13 ]
limitation," is used as referring to an event which is collat- the term
eral to the general Hniitalion, it is not incorrect. But 'if the " collateral"
term is used from a notion that these Hmitations form no applied to
part of, and arc independent of, and collateral to, the origi- special liirut-
nal measure of the estate, iu the same manner as a condi- "t'cins.
tional limitation, or a condition subsequent properly so call- See § 148-9,
ed, such a notion is inaccurate, (?) and the inaccuracy is one 12, 16—19.
of a fundamental and most important character. For it must
be observed, tliat where an estate has a special limitation as
well as a general limitation, it has but one original and
eventual measure of duration depending on two limitations,
and capable of expiring by force either of the one or the
other of them, which shall lirst happen, on the occurrence of
the event which constitutes the bound or limit. Thus, in the
above-mentioned case of an estate limited to ^d. for 99 years,
if he shall so long live ; there is but one original and eventual
measure of M.^s interest, depending on the effluxion of
the 99 years, or the dropping of his life, which shall first
happen. The fact that these special limitations are not col-
lateral to the original measure given to the estates to which
they are annexed, constitutes the fundamental distinction
between them and conditional limitations specifically and See § 148-9,
properly so called, as will appear in subsequent parts of the 262-275.
present Essay.
37 Special limitations, according to the foregoing
division, are either regular or irregular.
38 A REGULAR limitation is a restriction which does Definition of
not begin with the words, "on condition," "provi- areguiarspe-
ded," or "so that," and which, by forming a part of a sen- cial limita-
tence whereby an estate is created, serves to mark out the tion.
original limits of such estates; as ''where an estate gee § 16.
39 is granted to B. and his heirs till he be promoted
to a benefice. (A-) An irrkgular limitation is a — ofanirro-
proviso annexed to an estate capable of supporting a re- gular special
mainder, and beginning with the words, "on condition," limitation,
"provided," or "so that," but followed by a distinct sen- [ 14 ]
tence creating a remainder over in favour of another person, See § 16.
and, for that reason, construed as if forming a part of the See § 159.
sentence whereby the preceding estate is created, so as to
mark out the original limits thereof. Tluis, ' if a devise be
to .^. for life, on condition that he do not marry C, with re-
mainder to B.\ this is construed as if it were to ,2., until he
shall marry C.\ and then, or upon death, to B.{1) The pro-
viso, "on condition" that he do not marry C, is construed
(/) See Fcarne, 10, note (//).
(A-) Shep. T. 125. See also Shep. T. 151.
(/) Burton's Compendium, § 829. See also Scattcncood v. Edge, as stated,
Fearne, 237 : and Page v. Haijward, 2 Salk. 570, as stated, Fearne, 424.
[ 14 ] I. 2.] AN ORIGINAL VIEW [§40—43.
as if it formed a part of the sentence devising the estate to
A. for life, and constituted an additional limit to the rnea-
See§12, 16- sure originally given to that estate, instead of being deemed
19_ to operate as a proper condition subsequent, so as to defeat
such estate in favour of the heir of the testator, or as a condi-
See § 148-9. tional limitation, so as to defeat such estate in favour of B.,
before it had filled up the measure of duration given to it by
the terms of the clause by which it was created.
Qualification It may here be observed that cases have arisen 40
of a regular ™ where a regular limitation has been qualified by
limitation. the subsequent words, so as to prolong the duration of the
estate beyond the period when it would expire simply by
force of the regular limitation. (???)
Regular limitations are either direct or indirect.
Definition of A direct limitation is a restriction couched in 41
a direct regu- words which directly express a limit to the quan-
lar limita- tity of the interest created; as, to A. during &c.,
tion. or'till &c., or wliilst &c., or so long &c. An indi- 42
ofanindi- RECT limitation is a restriction put in a condi-
rect regular tional form, or in words which only im])ly a limit to the
limitation. quantity of the interest created ; (as, where land is given to
Ji. for 99 years, if Ji. shall so long live, or if A. continue
&c.) or, by words of description which attach a certain cha-
r 15 ] racter or qualification to the objects of the grant or devise,
so as to qualify the generality thereof, and indirectly to limit
the duration of the estate to such a time as they shall con-
tinue to sustain that character ; as, where land is granted to
A. and his heirs, lords of the Manor of Dale. And " where
an estate is limited to the use of B. and his heirs, he and
they taking &c., and continuing to take, &c. the name and
arms of Ji.\ this is an indirect limitation, so that the estate
can endure no longer than B. and his heirs comply with the
condition. "(n)
Samecontin- It may here be observed, that the same contin- 43
gency may gency may form both a special limitation, as to a
be both a preceding interest, and also a condition precedent, as to a
special limi- subsequent interest limited so as to depend entirely upon it,
tation, and a ^s a contingent remainder,
condition
precedent.
{m) See Doe d. Dean and Ch. of Westminster v. Freeman and Wife, 1 D.
& E. 389, as stated, Fearno, 240.
(n) See Litt. 597, (2) II. 3.
I. 3. i.] OF EXECUTORY INTERESTS. [§11— 4S. [ IG ]
CHAPTER THE THIRD.
THE DIFFKKENT KINDS OF IN'J'EUESTS ANALYTICALLY AR-
RANGED, DEFINED, AND DISTINGUISHED.
SECTION THE FIRST.
Introductory Definitions and Observations.
Definition of
44 I. An interest in any subject of properly, m the j^^jj^,g,.ggt^ijj
widest or popular generic sense of the word inte- the widest
rest, (See § 65, 84.) is that coiuiexion which subsists between sense of the
a person and such subject of property. term.
45 II. A right or interest, in this sense of the term, i^jrrhts or in-
in real hereditaments, may either be altogether im- terests cither
perfect, or it may be perfect at law, or perfect in equity, or perfect or
perfect both at law and in equity. It may be so perfect, imperfect,
that nothing could render the hereditament which is the sub- ^ perfect
ject of the right or interest, or at least our part or share there- interest
of, more completely our own, at law, or in equity, or both described,
at law and in equity, as the case may be, for the time such
interest endures.
46 III. This perfect interest is the interest denoted Definition of
by the word property or ownership, which may property or
be defined to be, that exclusive right, at law, or in equity, ownership.
or both at law and in equity, which the jurisprudence of the
country creates, in favour of a particular person, in regard
to a given thing.
47 IV. This too is denoted by the word seisin. Definition of
which specifically signifies that perfect legal inte- seisin.
rest, ownership, or property, of which real hereditaments
are susceptible ; or, that kind of possession which is incident
to, and necessarily included in, and cannot exist apart from,
legal ownership or properly, as resulting from that exclusive
right which the law creates in favour of a particular person,
in regard to real hereditaments.
48 V, And a person who is invested or clothed [ 17 ]
{vcstitns) with this perfect interest, ownership, or When a per-
property, or has this kind of possession, is said to have a son is said to
vested interest, or a present or actual estate in the land: have a vested
and if the ownership of the land is a legal and not merely interest or
an equitable ownership, lie is said to be seised of the land, actual estate,
Whereas a person who has only an imperfect interest exist- ^"'^ ^f ^
^ seised.
[ 17 ] I. 3. i.] AN ORIGINAL VIEW [§49—51.
When lie is i'^g collateral!}^ to this perfect interest, is not said to have a
not said to vested interest, or a present or actual estate. in the land, but
have a vested has only an executory interest; or an interest for a term
interest, or of years conferring the possession for a limited period, with
to be seised, or without the beneficial interest during that period; or a
quasi interest ; or a mere precarious possession ; or a power
of appointment, a charge, or a lien ; the nature of which
will be explained in the next section.
Different VI. Possession may be either "personal, or by 49
modes of substitute, as by one's termor for years, whose in-
possession. icrest, though not connected in title with our own, is not
inconsistent with it. Or, it may be either actual, where the
land is occupied by one's self or one's bailiff; or virtual,
where it is occupied by a tenant for years, or by a termor
for years whose title is consistent with our own. Or, it may
be either executed, as where the land is occupied by one's
self, or one's bailiff'; or executory, as in the case of a remain-
der-man or reversioner, during the continuance of the par-
ticular estate of freehold, or of the heir (before entry) of a
person who died actually seised. («)
Three kinds VII. Real hereditaments are susceptible of three 50
of interests kinds of interests, in the widest sense of the term,
commensu- which are commensurate with the duration of such heredita-
rate with ments: first, the legal seisin, property, or ownership; second-
duration of j^^ j|-^g equitable or beneficial interest, property, or owner-
real here- gj^j^ . ^i^jj-jiy^ the mere possession, rightful and unlimited,
ditaments ; ^^^^ ^j^^ ^^^^^^ person may have either the legal seisin, or the
VIZ. legal equitable interest alone ; or he may have any two of these
cTlt^able ' ^'^^^^ ^'"^^ of interests; or he may have all the three. And
owne^sliin consequently the mere possession and the equitable in-
and mere ' Merest may either be conjoined with, or may exist apart
r 18 ] from and collaterally to, the legal seisin, property, or owner-
possession, ship.
These maybe cither united or disunited.
Other inter- VIII. Besides these three interests, there are 51
ests which others which are not co-extensive with the dura-
are not com- tion of real hereditaments, and are of an imperfect character,
mensurate and essentially and not merely accidentally and occasionally
with the apart from and collateral to the legal seisin, property, or
duration of ownership. Of this nature are executory interests, which
real hercdi- ^^^jy comprise a part or the whole of the property or owner-
taments, and gj^j^ posterior to the event or period on which they are to
are always ^^^^^ And such are the other imperfect interests enumer-
collateral to ^ above, and defined in the next section,
the legal '
ownership. See § 48.
(a) With reference to these different kinds of possessions, compare 2 BI. Com.
144, 209, with Burton's Compendium, § 302 — 304.
I. 3. i.j OF EXECUTORY INTERESTS. [§ 52—55. [ IS ]
52 IX. The legal seisin, property, or ownership, Legalowner-
bcing of nnliniilcd duration, that duration is capa- .ship divisible
ble of being divided into an indefinite number of constituent into consti-
periods of the measure of freehold, by means of the general ^^ent pc-
and special limitations which form the subject of the pre- ™^^' ""^
ceding chapter; and there may be an indetinite number of ^.'^^"'''^"'^''^'^^
owners, answering to the several periods, having interests in ^' 'cr among
remainder or succession one after another. And the entire ^^^,^^'|.^
legal seisin, property, or ownership in fee, or the legal seisin, ^^ r^^^^'^'^rr
property, or ownership for any such constituent period, is contempora-
also capable of being divided among or given to an indcfi- j^g^^g
nite number of persons, as contemporaneous tenants, by owners,
way of coparcenary, joint-tenancy, or tenancy in common,
or by way of a tenancy by entireties. And, whe- each of
53 ther the individuals are to enjoy the land succes- whom has a
sively, as in the first case, or simultaneously, as in part of the
the second, the interests of the several persons are integral seisin, and a
parts of one and the same entire legal seisin, property, or vested inter-
ownership, and are all equally entitled to the denomination est or actual
of vested interests or actual estates. estate.
54 X. But the legal seisin, property, or ownership, But it cannot
whether in fee or otherwise, cannot reside in two reside in two
different individuals, without privity of estate: in other ditferent per-
words, the same hereditament cannot be the subject of two sons without
interests, each relating to the same period, and each com- privity ot
prising the entire legal seisin, property, or ownership for that estate,
period. There can be but one legal seisin, property, or own-
ership, whether occupying, as it were, the whole period of
the duration of real hereditaments, or only a given part
thereof; though that, as we have seen, may indeed be
divided into several contemporaneous shares, or several sue- [ 19 ]
cessive parts. When once it has attached in any person,
another person who is not privy in estate, as coparcener,
joint- tenant, tenant in common, or tenant by entirety, can
have, during the same period, only the equitable or bene-
ficial interest, property, or ownership, with or without the
possession ; or nothing but a right or interest of an imper-
fect character and merely collateral to the legal seisin, pro-
perty, or ownership; whether it be an executory interest ;
or an interest lor a term of years, conferring the possession
for a limited period, with or without the beneficial interest
for that period ; or a (/nasi interest ; or a mere precarious
possession ; or a power of appointment, a charge, or a
lien.
55 Thus, if land is limited to the use of ^^., for life ; Illustration
remainder to the use of B., in tail ; remainder to of the two
the use of C, I)., and E., as tenants in common in fee; in preceding
this case, .i. has one part of the legal seisin, property, or observations,
ownership; i5., another; and C, Z)., and A'., the remaining
[ 19 ] I. 3.1.]
AN ORIGINAL VIEW
[§56—60.
The equi-
table owner-
ship and the
possession
areofsimilar
duration.
Equitable
ownership
cannot reside
in two dif-
ferent per-
sons without
privity of
estate.
[ 20 ]
Into what
portions
seisin, pro-
perty, or
ownership is
divisible.
Legal owner-
ship or free-
hold and
inheritance
cannot be
in abeyance.
Conse-
quences of
this doctrine.
See § 117—
127a.
part. And these three successive estates being commensu-
rate witli the duration of the land itself, and filling up the
wliole measure of the legal seisin, property, or ownership
which may be had therein; every otiier interest in the land
must be only the equitable or beneficial interest, property,
or ownership, with or without the possession ; or nothing
but an imperfect right or interest merely collateral to the
legal seisin, property, or ownership.
XI. In a siniihir way, the mere equitable or be- 56
neficial interest or ownership, and the mere right-
ful unlimited possession, being co-extensive with the dura-
tion of the hereditaments themselves, and therefore of unli-
mited duration, may be divided into an indefinite number of
constituent periods or portions.
XIL But the equitable or beneficial interest, pro- 57
perty, or ownership, like the legal seisin, property,
or ownership, cannot reside in two different individuals with-
out privity or estate. When once it has attached in any
person, another person who is not privy in estate, as co-par-
cener, joint-tenant, tenant in common, or tenant by entirety,
can have, during the same period which it occupies or to
which it relates, the mere legal seisin, property, or owner-
ship, with or without the possession, or nothing but an im-
perfect right or interest merely collateral to the legal and
equitable ownership or property, such as those enumerated
above, and defined in the next section.
XIII. The seisin, property, or ownership of or 58
in lands or tenements can only be divided into
periods or portions of the measure of freehold; that is, into
estates for life, and estates of inheritance. Any periods or
portions of interest which are less than these in the eye of
the law, do not constitute portions of the seisin, property,
or ownership, but merely confer a right to the temporary
possession or enjoyment, or both.
But the property or ownership of or in personal estate may
be divided into any kind of periods or portions.
XIV. As the legal seisin, property, or owner- 59
ship, or, in other words, the legal freehold and in-
heritance, is commensurate with the duration of real heredi-
taments, it must be in existence at all times, either in some
particular person and persons, or at least in contemplation
of law. But, in fact, it cannot be in existence merely in
contemplation of law: it can never be in abeyance, but must
reside in some person, in order that there may always be
some one in esse, against whom an action may be brought
for the recovery of the land. And therefore, if a
person limits a freehold interest in the land, by 60
way of use or devise, which he may do, though he
could not do so at the common law, to commence infuturo.
I. 3. ii.] OF EXECUTORY INTERESTS. [§01— Gt. [ 20 ]
''without making any disposition of tlio intermediate legal
seisin, property, or ownership. (/v) or a disposition of it which
does not exhaust the whole of such iiUerniediate legal sei-
sin, property, or ownership; "^the legal seisin, property, or
ownership, except such part thereof, if any, as is comprised
within a prior disposition of a vested interest, of course re-
mains in the grantor and his heirs, or the heir at law of the
testator, until the arrival of the period when, according to
the terms of the future limitation, it is appointed to reside in
the person to whom such interest infiitiiro'is limit-
61 ed.(c) And ''if a ])erson limits the inheritance, whe-
ther at common law or by way of use or devise, [ 21 ]
to arise on a contingency, by way of remainder immediately
after the regular expiration of prior estates, of course the in-
heritance, until the happening of the contingency, remains
in the grantor and his heirs, or the heir of the tes-
62 tator.(Qf) And hence, in eacli of these cases, dur-
ing the intervening period, no other person but the
grantor and his heirs, or the heirs of the testator, can have See § 54.
any thing more than a mere right or interest, existing col-
laterally to the legal seisin, property, or ownership, though
capable of attracting and becoming converted into the legal
seisin, property, or ownership, in the event or at the time
specified.
Passing from these general introductory observations, an
attempt will now be made to distribute the various interests
in property, into classes, and accurately, and as concisely as
consistent with real utility, to define and distinguish them.
SECTION THE SECOND.
The different classes of Intey-ests, in the widest sense of the
term, defined, and distinguished.
63 We have seen that an interest in any subject of Definition of
property, in the widest or popular generic sense of an interest,
the word, is that connexion which subsists between a person in the widest
and sucli subject of property. (See § 44, G5, 84.) sense of the
64 The various interests in the widest sense of the term,
term, which may he had in lands or tenements, and Division of
which are connected with the science of conveyancing, may interests, in
be divided into — tlie widest
{h) Sir Edward Clere's Case, 6 Co. Rep. 17 b, as stated, Fearne, 351.
(c) See Fearne, 1, note (a).
{d) Davies v. Speed, Garth. 262 ; Ph/nkct v. Holmes, Rayni. 2S ; Purefoy
V. Rogers, 2 Sand. 380; Carter v. Barnadiston, 2 Bro. Cas. Pail. 1; and Lod'
dington v, Kime, 1 Salk. 224 ; ascited Fearne, 353 — 356. And Fearne,360 — 364.
Vol. II.— 3
[ 21 ] I. 3. ii.] AN ORIGINAL VIEW [§65—69.
sense of the I- Legal interests of the measure of freehold,
term, in lands H- Legal interests for a term of years.
[ 22 ] ni. Equitable interests of the measure of freehold,
ortenenients. IV. Equitable interests for a term of years.
V. Quasi interests,
VI. Mere precarious possessions.
VII. Expectancies.
VIII. Powers of appointment.
IX. Charges.
X. Liens.
Definition of L A legal interest of the measure of freehold is 65
a legal free- aright constituting the object of a limitation vvhere-
hold interest, by a grant or devise is made, and extending to the legal
See § 63, 84. seisin, property, or ownership of the land. Interests of this
kind are said to be legal estates or interests in the land, in
the technical generic sense of the phrase.
Definition of II. A legal interest for a term of years is a right 66
a legal inter- constituting the object of a limitation, and extend-
estforaterm ing only to the actual possession, either with or without the
of years. beneficial enjoyment, for a certain number of years.
Definition of HI- An equitable interest is a right constituting 67
an equitable the object of a limitation, and extending merely to
freehold in- the beneficial enjoyment for a period of the measure of free-
terest. hold, in contradistinction as well to the legal seisin, property,
See § 63, 65, or ownership, as to the actual possession. Interests of this
84. kind are said to be equitable estates or interests in the land,
in the technical generic sense of the phrase.
Definition of IV. An equitable interest for a terra of years is 68
an equitable a right constituting the object of a limitation, and
interest for a extending merely to the beneficial enjoyment for a certain
term of years, number of years.
Definition of ^- ^^h^t? ^oi" the sake of convenience, is above 69
a quasi m- termed a quasi interest, is a power or possibility
terest. of gaining the property or ownership of the land, which,
though not constituting the object of a limitation, is yet
founded in an actual provision, or on a lost but recoverable
seisin.
Of this nature are —
The difl^erent 1. Present rights of entry or action for conditions broken,
species of and present rights of action for the recovery of an estate,
quasi inte- 2. Mere possibilities, in the teclmical and specific sense,
rests. such as —
[ 23 ] (1) -^ ^possibility of reverter on a grant of a quali-
fied or determinable {GQ.{a)
(2) A ''possibility of reverter on a grant of an estate
{a) See Fearne, 381, note (a), 1.
I. 3. ii.] OF EXECUTORY INTERESTS. [§70—74. [ 23 ]
for life in a term, where there is no Uniitalion
ovcr.(A)
(3) A '^contingent right of entry, in case there should
be a breach of a condition snbscqnent(c); or a
''fntnre right of a wife to enter after her husband's
deatli.(^/)
70 VI. The nature of a mere precarious possession is Merc proca-
sufRciently obvious from the term itself. Such a rious pos-
possession may exist — sessions.
1. With the right of possession ;
(1) With consent of the proprietor, as in tenancies at
will.
(2) "^^ Ad verse, as in the case of a disseisor, whore the
disseisee's right of possession is taken away. (e)
2. Without the right of possession ;
(1) With consent of the proprietor, as in the case of
tenancy by sufferance.
(2) 'Adverse, as in the case of a disseisor, where
the disseisee's right of possession is not taken
away.(e)
71 VII. An expectancy or chance is a mere hope. Definition of
unfounded in any limitation, provision, trust, or an expcct-
legal act whatever; such as ''the hope which an heir appa- ancy.
rent has of succeeding to the ancestor's estate.(/) Tliis is
sometimes said to be a share or mere possibility, (,!,'•) and, ''at
other times, less than a possibility. (A) It is a possibility in
the popular sense of the term. But it is less than a possibi-
lity in the specific sense of the term possibility. For, it is [ 24 ]
no right at all, in contemplation of law, even by possibility;
because, in the case of a mere expectancy, nothing has been
done to create an obligation in any event; and 'where there
is no obligation, there can be no right; for right and obliga-
tion are correlative terms.(/)
72 VIII. Powers of appointment of real property Definition of
are powers of creating an interest in the same by ^ power of
appointing it to certain uses. appoint-
73 IX. Charges on real estate are sums of money ^^"^•.
payable out of the same.
74 X. A hen is a hold upon property, for the satis- '* ^"'"o'-'* „
r .• r I • ., I • .1 . 1 ^ r Definition of
faction of a clami attachuig thereto, under an ex- ,.
^ ' a lien.
(b) Fearnc, 488.
(c) See Fearne, 381, note (a), 1.
{d) Fearne, 5^89.
(e) Sec Fearne, 286, note (e). 2 Bl. Com. c. 13. Burton's Conipendiiim, I. 6.
(f) Carhton v. Lcighton, 3 Mcriv. G71.
Ifr) Fearne, 370-1.
(A) Fearnc, 551.
(i) Paley's Moral and Folit. Phil. B. II. c. x.
Definition of
a charjre.
[ 24 ] I. 3. iii.]
AN ORIGINAL VIEW
[§74-75.
press charge or contract, or a constructive trust. Thus,
•^judgments, statutes, and recognizances do not create any-
right in tiie land, but only a lien on the land, which may or
may not be enforced upon \{.{k)
Interests, in In regard to personal property, it will be sufli- 74a
the widest cient generally to observe, that subject to the well-
senseofthe known distinctions between real and personal estate, the
term, in per- various interests which may be had in personal property
sonal pro- are susceptible of a similar division, and of similar definitions,
perty
SECTION THE THIRD.
The different kinds of Interests of the measure of Free-
hold in Lands and Tenements, and Interests in Chat-
tels, analyticalhj arranged, defined, and distingidsJied.
I. Division
of freehold
interests
with refer-
ence to the
existence
&:c. of the
seisin, pro-
[ 25 ]
perty, or
ownership.
I. Interests of freehold duration in lands and 75
tenements, and interests in chattels, when consider-
ed with regard to their existence or non-existence, or acqui-
sition or non-acquisition, and the certainty or uncertainty,
of the seisin, property, or ownership, and the presence or ex-
pectation of the possession or enjoyment, and the circum-
stances in which such expectation is founded, may be "di-
vided(a) into —
I. Vested interests, or actual estates.
1. Present vested interests.
(1) Vested in possession, or enjoyment, or in both.
(2) Vested in interest or right.
(a) A right of immediate entry to regain the
possession.
(b) A present vested interest in real estate,
subject to a term for years.
(c) A present vested interest, subject to a chat-
tel interest of uncertain duration.
(d) A present vested interest, subject to a sus-
pension of the possession, or enjoyment,
or both.
2. Future vested interests.
(1) Vested remainders.
(2) Vested quasi remainders.
(3) Reversions.
II. Executory interests, or interests in the technical specific
sense, as contradistinguished from actual estates.
1. Certain executory interests.
(1) Springing interests ;
(A-) Story's Eq. Jur. § 416.
(a) On this point see Fearne, 1, and notc(<7).
I. 3. iii.] OF EXECUTORY INTERESTS. [§75a— 7S. [ 25 ]
(2) Interests under augmentative limitations.
(3) Interests under diminuent limitations; and
(4) Interests under conditional limitations; — where
such interests are to take ellect on an event or
at a time certain.
2. Contingent executory interests.
(1) Springing interests;
(2) Interests under augmentative limitations;
(3) Interests under diminuent limitations;
(4) Interests under conditional limitations; — where
such interests are to take effect on an event or
at a time certain.
(5) Alternative interests.
(6) Interests under contingent hmitations of the
whole, or the immediate part, of a reversion.
(7) Contingent remainders.
(8) Contingent quasi remainders.
75a Vested and executory interests may be defined [ 26 ]
eitlier Two modes
1. With reference to the right of actual possession of defining
or enjoyment. vested and
2. Without reference to the right of actual posses- executory
sion or enjoyment. interests.
76 1. A VESTED INTEREST or au actual ''estate 1. Definiiion
properly so called, (b) if defined ivith reference to of vested and
the right of possession or enjoyment, is that kind of present executory in-
right of present or fnture possession or enjoyment, terests, it>i/^
77 which is actually clothed with the seisin, property, reference to
or ownership. And a present vested interest is a ihe right of
right of present possession or enjoyment, or both ; or, a pre- possession or
sent right of having the possession or enjoyment, or both, at enjoyment.
a fnture time to which there is mere postponement of the —ot a vested
possession or enjoyment, or both, either in favour of a prior '"^^^'^^^ or
chattel interest of uncertain duration, or in the absence of a ^"^ ^'^^^ ^•
prior chattel interest, and not a postponement of the seisin, ° •^Jp'd'
property, or ownership; or, in the case of real estate, a pre- j^^gj-g^t
sent right of having the possession or enjoyment, or both,
whenever there may beavacancy thereof by the de-
78 termination of a preceding term for years. Where-
as a future vested interest is a present right of — ofa future
having the possession or enjoyment whenever it may become vested inter-
vacant, in the case of real estate, by the determination of a est.
preceding freehold estate, or, in the case of personal estate,
by the determination ofa preceding chattel interest.
(ft) Sec Fcarnc, 1, notes (a) and (h). It is very common, and not inaccurate,
to speak of an executory or a contingent estate. But when the word estate is
opposed, as it frequently is, to the word interest, then it signifies a vested and
not a contingent or executory interest.
[ 26 ] I. 3. iii.]
AN ORIGINAL VIEW [§7Sa— S4.
Remarks on It must be observed, that a vested interest is pre- 7Sa
the distinc- sent or future, solely with reference to the seisin,
tion between property, or ownership, and not with reference to the pos-
a presentand session or enjoyment, or both. If the interest comprises the
a future vest- immediate portion of the seisin, property, or ownership, it is
ed interest. ^ present vested interest, even though the possession, or en-
joyment, or both, be postponed to a future time. And hence
a vested interest, in real estate, which is limited to lake effect
[ 27 ] after the regular expiration of a term for years, is a present
vested interest ; because, inasmuch as a term for years does
See § 58. not extend to the seisin, property, or ownership, of lands or
tenements, there is a mere postponement of the possession,
or enjoyment, or both, during the term, and not a postpone-
ment of the seisin, property, or ownership. But a like inte-
rest in personal estate is a future vested interest ; because,
when an interest for years is created out of a term or other
personal estate, it does carry a part of the property or own-
ership in such term or other personal estate.
When an When the right is a right of present possession, 79
estate is and the party is in possession, whether personally
vested in or by substitute, the estate is said to be vested in 80
possession, possession. When it is a present right of having
See § 49. the possession whenever it may become vacant by the de-
termination of a preceding chattel interest, or whenever it
may become vacant by the determination of a preceding
When an es- freehold estate, or at some other future time to which only
tate is vested the possession is postponed ; in each of these cases,
in right or the estate is said to be vested in right or inter- 81
interest. est. And even when it is a present right of pre-
sent possession, if such right has been attended with the
possession, but ceases to be so, the estate can only be said
to be vested in right or interest.
Vesting in- Sometimes the word vested is used, not in the 82
choatoly or strict and technical sense, but to express a vesting
inceptivcly. si/b modo,an attaching inchoately or inceptively; as, Hvhere
an interest is said to vest in certain persons before the death
of the testator,(c) in which case it is meant to signify that
the interest has so far attached in the party, that if the tes-
tator were to die immediately, it would be completely vested
in the party, instead of being dependent on some subsequent
contingency, such as that of birth or survivorship. And
'' so where an interest is said to be vested in a person so far
as to be transmissible to his representatives. (ri)
Definition An executory interest, or an interest in the 84
of an cxecu- narrowest and technical specific sense of the word
(c) Fcarne's statement of the case of Hopkins v. Hopkins, 525.
(d) See the remarks of Lord Thurlow, C, in Barnes v. Allen, 1 B.
(d)
cited 1 Rop. Leg. by White, 513.
C.C. 181,
I. 3. iii.] OF EXECUTORY INTERESTS. [§85—91. [ 28 ]
interest, is a present or contingent right of present or future tory interpst.
possession or enjoyment, or both, constituting the object of a See § 63, 05.
hniitation whereby a grant, devise, or bequest, is made, and Sec § G9.
not yet clotlied with the seisin, properly, or ownership, but
destined to be clothed tiierewilh in a certain or contingent
event. In this sense, the word interest is frequently used in See §76, and
contradistinction to an estate, note (h).
85 A CERTAIN EXECUTORY INTEREST is a prescnt Definition of
right of having the possession or enjoyment, or a certain ex-
both, at a future period, whicii is sure to arrive, and ecutory in-
irrespective of the regular expiration of any other in- terest.
lerest.
86 A CONTINGENT EXECUTORY INTEREST is a con- — of a con-
tingent right of having the possession or enjoy- tmgcnt exe-
ment, or both, in some uncertain event. cutory inter-
87 2. A VESTED INTEREST Or au actual estate, i/^^ '
defined without reference to the ris^ht of possession '^- Definition
or enjoyment, is the seisin, property, or ownership, or a por- *^' vested and
tion thereof, whicii in the case of real estate is of the mea- ^^^^^ "^"^^IJ*
sure of freehold, actually acquired bv and residing in the , } "
'..•'.,'^, - ^ .J- out Tiference
person who is said to have an estate or vested in- ^^ the ri'^ht
88 terest. And a present vested interest is the of posses-
entire seisin, property, or ownership, of which any ^^j^^ ^^ ^^j_
subject of property is susceptible, or the immediate \^o^'^^on joy ment.
thereof, which, in the case of real estate is of the measure of — ofavested
freehold, actually acquired by and residing in the person interest, or
who is said to have such present vested interest, actual estate.
89 Whereas, a future vested interest in lands or — of a pre-
TENEMENTs, is a portiou of the seisin, property, or sent vested
ownership, of the measure of freehold, next after a preced- interest,
ing freehold estate, and actually acquired by and residing —of a future
in the person who is said to have such future vested vested inter-
S9a interest. A future vested interest in chat- ^^^' '" lands
TELs is a portion of the property or ownership, or^tcncments.
next after a preceding vested interest, and actually acquired ^^^^^^ " "^^
by and residing in the person who is said to have such future ^^-^^ ^^^^^^ '
vested interest. {g]g
90 An EXECUTORY interest is the seisin, property, '^^^^
or ownership, or a portion thereof, of the measure ^^^' iiiiov-
of freehold, not yet acquired by the person who is said to ^^^^ ^
have such executory interest, but appointed by the terms of ' ^^ ^ ^^^^
a grant or devise to be acquired by and to reside in him in tain execu-
a certain or contingent event. And when such event is tory interest,
certain, the interest is a certain executory interest [ 29 ]
when the event is contingent, the interest is a contingent Definition
executory interest. of a con-
tingent executory interest.
91 '-'Vested and executory interests have been de- Vested and
[ 29 ] I. 3. iii.]
AN ORIGINAL VIEW
[§92_f)4.
most correct-
ly defined
without refe-
rence to the
right of pos-
session or en-
joyment.
See § 50.
executory in- fined by the great authority upon the subject, with re-
tercsis are ference to the right of possession or enjoynient.(e) This
is convenient in some respects. But, it must be observed,
that a vested interest may frequently be unattended with
the right of possession or enjoyment; since that right may
reside in some other person than the individual having such
vested interest. And hence, as the right of possession or
enjoyment is only a separable incident, perhaps it is not
strictly correct to make it the basis of a definition of a vested
interest. Such interests, therefore, may perhaps be more
scientifically and accurately defined ivilhout reference to
See § 87-90. the right of possession or enjoyment, as iu the definitions
lastly above given.
The several Definitions of the several kinds of certain and 92
kinds of cer- contingent executory interests, are embodied in, or
tain and con- niay be immediately formed from, the definitions of the limi-
tingentcxe- tations creating such interests, as given in the next chapter,
cutory inter- Thus, a limitation of a springing interest is there defined to
^^^^- be, a limitation which creates an interest, by way of use or
See § 117. devise, to take effect &c., from which the reader will per-
ceive, that a springing interest is an interest, by way of use
or devise, to take effect &c. : And so with alternative inter-
ests and interests in remainder. And interests under aug-
mentative, deminuent, and conditional limitations, and inter-
ests under limitations ot the whole or the immediate part of
a reversion, may of course be defined by means of the defi-
nitions of such limitations. Thus, an interest under an
augmentative limitation, is an interest under a limitation by
deed at common law, under which &c. It was considered
highly desirable to give distinct definitions of the several
limitations; and it appeared that this general direction
would render it unnecessary to give separate definitions
also of the interests created by such limitations.
[ 30 ] II. Looking to the nature of the contingency, con- 93
II. Division tingent interests may be further divided into —
See § 128,
159.
See § 137,
147, 149,
169.
See § 137.
of contingent
interests with
reference to
the nature of
the contin-
gency.
Those which are contingent on account of the
person.
2. Those which arc not contingent on account of the
person.
3. Those which arc contingent both on account of
the person, and also on account of some other
contingency.
Definition of An interest which is contingent on account of 94
an interest the person, is one which is contingent by reason of
which is con- being limited to a person who is unborn or not yet ascer-
tingcnt on tained ; or limited to a person when he shall sustain a par-
account of ticular character, arrive at a given age, or fulfil a certain
the person, condition.
(c) Fearne, 2.
I. 3. iii.] OF EXECUTORY INTERESTS. [§ 95— 10 1. [ 30 ]
f)5 III. Contingent interests arc also susceptible of ][[ ])ivision
fnrther division in regard to their capacity of trans- of contingent
mission. But this will form the subject of a distinct chap- interests
ter. (See § 742-8.) with refer-
ence to transmission.
96 IV. With reference to the certainty of their du- IV. Division
ration, interests are divided into — of interests
1. Defeasible. with refer-
2. Indefeasible, or absolute. cnce to
certainty of
97 A DEFEASIBLE interest is an interest that is sub- duration,
ject to be defeated by the operation of a subse- Definition of
quent or mixed condition, or by the exercise of a power. ^ defeasible
(See § 12, 15—19, 14, 20.) interest.
98 An INDEFEASIBLE iutcrcst, or an absolute in of an in-
terest as opposed to a defeasible interest, is one defeasible or
that is not subject to any condition now liable to be defeated absolute in-
by the exercise of a power. terest.
99 V. With reference to the quantity of interest, v. Division
they are divided into — with refcr-
1. Absolute. ence to
2. Limited. quantity of
interest.
100 The absolute interest, as opposed to a limited Definition of
interest, is an interest which comprises the entire the absolute
ownership of which the entirety, or some portion interest,
101 of the entirety, of any hereditament, is susceptible.
A LIMITED interest is one which does not comprise [ 31 ]
102 that entire ownership. When the term " absolute" — of a limit-
is used in this sense, the defin.ite article " the" is ed interest.
usually prefixed to it, as above, in order to distinguish it r^^^^ distinc-
from "a;i absolute interest" in the sense of an in- ^j^j^ between
103 defeasible interest. But the term " an absolute t^g absolute
interest" is sometimes, though not often, used even interest and
in opposition to the term "limited interest." an absolute
interest.
104 These definitions equally apply whether the in- Fore<Toin"
terests are legal or equitable, in real or in personal definitions
estate, according to the nattu'e of the ownership or properly applicable to
which they respectively constittUe : the word property or legal and
"ownership," in the case of a legal interest, referring of equitable in-
course to the legal ownership; and the same word, in the terests, and
case of an equitable interest, referring to the equitable or to real and
beneficial ownership. personal
estate.
Vol. II.— 4
[ 32 J I. 4. ii.]
AN ORIGINAL VIEW [§105— 111.
CHAPTER THE FOURTH.
REMAINDERS IN GENERAL, AND THE OTHER KINDS OF
LIMITATIONS, IN THE DERIVATIVE SENSE, ANALYTICAL-
LY ARRANGED, DEFINED, AND DISTINGUISHED.
Two senses We have seen in a preceding page, that the word 105
of the word Hmitation is used in two senses, which, for conve-
limitation. nience,are there respectively designated "the original sense"
and the "derivative sense."
Definition of Limitations in the derivative sense, that is, en- 196
a limitation, tire sentences '''creating,(«) and actually or con-
in the deriva- structively marking out the quantity of an estate, are those
tive sense, which form the subject of the present chapter.
See § 28-33.
SECTION THE FIRST.
Division of Limitations into Simple and Qualified, with
definitions of those term,s.
Division of In regard to the manner in which the estate 107
such limit- created is founded, such limitations may be divided
ations into into —
simple and I. Simple or ''absolute limitations.(Z»)
qualified. u. Qualified limitations.
1. Directly qualified.
2. Indirectly qualified.
Definition of What is here termed a simple or absolute limi- 108
a simple or tation, is a sentence creating an estate with only
absolute Ii- a general limitation (in the original sense,) or hmit.
mitation. On the other hand, what is here termed a quali- 109
Definition of fied limitation, is a sentence creating an estate
a qualified Ii- with a special or collateral limitation (in the original sense,)
mitation. or limit. (See § 26, 28, 34.)
Distinction Qualified limitations may be subdivided into di- 110
between di- rectly qualified and indirectly qualified, according
rectly quali- as the special limitation or limit is direct or indirect. (See
fied and indi-
[ 33 ]
rectly quali-
fied limit-
ations.
Division of
limitations
into imme-
diate and
executory.
§ 41—2.
SECTION THE SECOND.
Division of Limitations into Immediate and Executory ^
loith Definitions of those terms, and Observations
thereon.
Limitations, or the gifts made by them, when 111
considered with reference to their conferring, or
not conferring, vested interests, are termed either,
(a) See Prest. Shep. T. 117.
{h) Fearne, 10, note (h), fifth paragraph.
I. 4. ii.] OF EXECUTORY INTERESTS. [§llla— lllc. [ 33 ]
I. Immediate grants, devises, bequests, or limitations ; mean-
ing thereby, limitations or gifts of vested niterests, whe- See § 75.
ther present or future; or
II. '^Executory grants, devises, bequests, or limitations;
meaning thereby, limitations, or gifts of executory in- See § 75.
tercsts, whether certain or contingent. (c)
Ilia The term "executory devise" would have been Tlio generic
most properly used as above, in the generic sense, sense of the
in contradistinction to an immediate devise, so as to include '<-*"« "cxe-
contingent remainders, as well as other ''future interests cutory de-
" limited to arise and vest upon some future contingency ;"(^) ^'^^•
so as to comprise, in fact, all limitations of executory iiUer- See §84, 90.
ests by way of devise, liut the term is almost invariably The specific
used in a narrower sense, in contradistinction as well to con- and usual
tingent remainders, as to immediate devises, so as to denote sense of the
^■"such a limitation of a future estate or interest in lands or term,
chattels, as the law admits in the case of a will, though con-
trary to the rules of limitation in conveyances at common
law,"(e) or, in other words, to denote limitations of spring-
ing interests, limitations of interests by way of conditional See § 117,
limitation, and quasi remainders after a life interest in per- 148-9, 168-
sonal estate; as distinguished from those limitations of fu- 168b.
ture interests which were good limitations at common law ; See § 159,
namely, limitations by way of remainder, limitations of the 169.
whole or the immediate part of a reversion, augmentative [ 34 ]
limitations, and diminuent limitations. An alternative limi- See § 137,
tation, though always an executory devise in the generic 147, 128.
sense of the term, as opposed to an immediate devise, is not
always an executory devise in the specific and usual sense,
in contradistinction to contingent remainders ; for many al-
ternative limitations are contingent remainders in relation to
the particular estate.
111b Limitations of springing interests, conditional ^"^ S^"*^'''*^
limitations, 9?vf/5/ remainders after a life interest in ^^'"'^ execu-
personal estate, and alternative limitations, when contained *'^''^' "*^^|^^
in wills, are seldom distinguished or desii?nated by these or co'^"^^" X
any other specific terms, but are usually denoted by the ^r spp^^ifig
general term of executory devises. terrns
lllc It has, doubtless, been found convenient to use „ *
this general term, and other general terms, instead '^ 'f!^
c -a ^ ■ . .\ . ■ ■ ^ gcncrallv
01 more specmc terms — convenient, that is, m one respect; '^ -^ r.;;
•namely, because the learning of executory i'lterests, «,y a Jj^g"^jj^^ .p^^^
science, may perhaps be truly said to have been hitherto in g^j^^p of tlie
(c) See Fearne 1, note (a).
(d) See the definition quoted. Feavne, 381.
(e) Fearne, 386. Rents, oflices, and dignities, not previously subsisting,
might be limited to commence in fuliiro, even at common law. Fearne, 528,
529.
[ 34 ] I. 4. ii.]
AN ORIGINAL VIEW
[§lllc.
science, and
has been very
prejudicial.
[ 35 ]
For tliis rea-
son, specific
terms are
used in the
present es-
say, rather
its infancy. Cases, indeed, in abundance upon this branch
of law, have been brought before the Courts and decided,
and with few exceptions, rigiitly decided; and tliese deci-
sions have equally illustrated the immense value of the prac-
tice of hearing counsel on both sides, and the sound judg-
ment and strict integrity of those learned men whose duty it
has been to decide between the opposite lines of argument.
But, at the same time, the arguments of counsel, the dicta
of the judges, and the propositions in the books ; and above
all, and as the inevitable result of these arguments, dicta,
and propositions, the reiterated call for fresh judicial deci-
sions upon points which other cases had previously and
satisfactorily decided; not unfrequcntly evince the want of
a correct and perspicuous analytical arrangement of the dif-
ferent kinds of interests, and the various sorts of conditions
and limitations on which they depend, or by which they
are created or affected ; as well as the want of just and pre-
cise definitions, including all that ought to be included, and
excluding every thing else; and the non-existence, in many
instances, of accurate and well-defined distinctions, embo-
died in rules and propositions, and explained and commend-
ed by the expression of the grounds and reasons on which
they rest. Such having been the state of this branch of the
law, it is not surprising that general rather than specific
terms have commonly been used. In fact, it was an almost
necessary result of the imperfect state of this branch of legal
learning, as a science, either.as it existed in the mind of the
speaker or writer on the one hand, or in the mind of the
hearer or reader on the other hand. And, in many cases,
indeed, it has been as well to use a general designation as
to use a specific term : and of course, in some instances,
where the object is to generalise, and generalisation can be
accomplished with accuracy, the general designation is the
most appropriate. But, in the great majority of cases, the
maxim, error latet in generalibus, was peculiarly applica-
ble ; and the use of general designations, instead of specific
terms, has been the source of passages in the books, which,
embracing distinct and dissimilar cases, greatly tend to mis-
lead ; of vague, confused, and erroneous conceptions in the
student; of perplexity and mistake in the practitioner, and
sometimes even in the judges themselves; and of constant
litigation upon points which would or might otherwise have
been long before set at rest.
In the present attempt, therefore, to give an accurate,
well-defined, and perspicuous view of the various kinds of
future interests, the author has almost always employed a
specific term, in preference to a general designation; and in
fact, ^contrary to the course hitherto pursued,(/) has ex-
(/) See Fearne, 415.
I. 4. iii.] OF EXECUTORY INTERESTS. [§llld— lllg. [ 35 ]
hihited and treated of the various conditions, limitations, than goncral
and interests, with especial ''•'regard (to use the language of terms; and
Fearne) to their specific distinctions and relations."(/) the specific
This, the auihor humbly submits, is the only way of endca- distinctions
vouring, with any i)iospect of success, to mould the subject ^"^ ""[i ,'^^*^"^
into a more correct, determinate, and scientific form, so as to ^^^"^^ ^^*^"
rescue it from that state of distressing uncertainty, discrep- J]^J" ^ ^^_,
ancy,and confusion, m which many points in reality, though ^y^^-^^^^ jj^i.
not apparently to the superficial observer, were left, even ^,^^1^^^^^ ^^^j
after the publication of the justly celebrated Treatise of j^j^^,,g|,^ g^^
Fearne ; and in which state, many more points exist at the pointed out.
present day, after the long interval that has elapsed since [ 3G ]
the death of that illustrious man.
SECTION THE THIRD.
Of Limitations of Vested Interests, when considered with
reference simply to t lie possession or enjoyment, or both.
1 1 Id I. Of limitations of interests vested in possession,
or in enjoyment, or in both.
These are limitations which confer a right to the imme-
diate possession, or enjoyment, or both, as well as the im-
mediate portion of the seisin, property, or ownership of and
in real or personal estate.
1 1 le II. Of limitations of vested interests in real estate,
subject to a term for years.
These are limitations which merely suspend the posses- See § 245 —
sion or enjoyment, or the possession and enjoyment, of real 257, 124a.
estate, till the certain regular expiration of a term for years,
without suspending the seisin, property, or ownership of and
in sach real estate.
11 If III. Of limitations of vested interests, subject to a Sec Part II.
chattel interest oftnicertain duration. c. VIII.
These are limitations which merely suspend the posses-
sion or enjoyment, or the possession and enjoyment, of real
or personal estate, till the determination of a prior chat-
tel interest of uncertain duration, without suspending the
seisin, property, or ownership of and in such real or per-
sonal estate.
lllg IV. Of other limitations of vested interests, sub- See Part II.
ject to a suspension of the possession or enjoy- c. VIII.
ment, or both.
These are limitations which merely suspend the posses-
sion or enjoyment, or the possession and enjoyment, of the
real or personal estate, till a future time other than that of
(/) See Fearne, 415.
[36] I. 4. iv.] AN ORIGINAL VIEW [§112.
the determination of a prior interest, without suspending the
seisin, property, or ownership of and in such real or personal
estate : as if real or personal estate be devised or bequeathed
[ 37 ] to a person ; with a direction that he shall take a vested
interest, but that lie shall not be put into possession till he
shall attain his majority.
SECTION THE FOURTH.
A Fourth Division of Limitations into t hose forming the
subject of the following sections.
With reference to the existence or non-existence, 1 12
certainty or uncertainty, of the possession or enjoy-
ment by virtue of the interests wliich they create, as well as
to the various modes in which they are constructed, limita-
tions may also be divided into,
See § 75a, I. Limitations constituting grants, devises, or bequests, in
77,78a, 88. prxsenti, or limitations of present vested interests.
See § 113. 1. Absolute.
See §114. 2. Hypothetical.
See § 115. 3. In default of appointment.
II. Limitations constituting grants, devises, or bequests, in
futuro.
See §78, 89. 1. Limitations creating future vested interests.
§159,171. (1) Limitations by way of vested remainder.
See § 168. (2) Limitations by way of vested ^t^a^i remainder.
See § 169. (3) Limitations of vested interests in the whole, or
in the immediate part, of a reversion.
See § 85, 90. 2. Limitations creating certain executory interests.
§117, 127b. (1) Limitations of springing interests;
See § 137. (2) Augmentative limitations;
See §147. (3) Diminuent limitations ; and
See § 148-9. (4) Conditional limitations ;
— where such limitations are to take effect on
an event or at a time certain.
See § 86, 90. 3. Limitations creating contingent executory interests.
§ 117, 127b. (1) Limitations of springing interests;
See § 1-37. (2) Augmentative limitations;
See § 147. (3) Diminuent limitations ; and
See § 148-9. (4) Conditional limitations ;
— where such limitations are to take effect on
an event or at a time which is uncertain.
[ 38 ] (5) Limitations by way of contingent remainder.
§ 159, 172. (G) Limitations by way of contingent quasi re-
See § 168. mainder.
See § 169. (7) Limitations of contingent interests in the whole
or the immediate part, of a reversion.
See § 128. (8) Alternative limitations.
See § 116. (9) Clauses creating powers of appointment.
I.4.v.—vii.] OF EXECUTORY INTERESTS. [§113— 117. [ 38 ]
SECTION THE FIFTH.
Of Limitations nf Present Vested Interests, when consid- See Sect. III.
ered luith reference to the modes in which they are con-
structed.
113 I. Of absolute limitations.
An absolute limitation is a sentence by which an estate is
created so as not to be dependent on any condition whatever.
114 II. Of * hypothetical limitations.
What is here termed an hypothetical limitation, is a sen-
tence which creates an estate in an event or on a condition
fulfilled or decided at or before the delivery of the deed, or
Kto be fulfilled or decided at or before the death of the tes-
tator. (^)
115 HI. Of limitations in default of appointment.
A limitation in default of appointment, is a sentence in
which an estate is limited to a person, in case of the non-ex-
ercise of a power of appointment; and the eflect of which is,
to create a vested interest, subject to be defeated by the ex-
ercise of the power.
SECTION THE SIXTH. [ 39 ]
Of Limitations IS TVTVViO: and first,
Of clauses creating powers of appointment.
116 These are clauses by which land is limited to
uses to be appointed by a particular person, either
in the absence, or in defeasance, postponement, or modifica-
tion of uses previously limited by the instrument creating
the power.
SECTION THE SEVENTH.
Of Limitations of Springing Interests.
117 A LIMITATION of a Springing interest in real Definition of
estate, is a sentence which creates an interest, by a limitation
way of use or devise, to take effect at a future time, without of a spring-
being supported by, and without affecting any other interest jng interest
of the measure of freehold. J" r^^' V^^-
party.
* For the sake of convenience, perspicuity, and exactness, the See § 111c.
author has reluctantly been obliged to make use of this and one or
two other new specific terms, where there has been no term in common use ex-
cept the generic term.
{g) Fearne, 45S, note {d).
[39] I. 4. vii.] AN ORIGINAL VIEW [§US— 122.
Division of Limitations of this description may be distributed 118
such limita- into seven kinds:
tions into I. The first is a sentence which creates an inter- 1 19
seven kinds, est in favour of a person imborn or unascertained,
Definition of or an interest which is Hmited to take effect at a future time,
thefirstkind. without being preceded by any other, or ''merely preceded
by a term for years which is to commence at a future time. (A)
As 'in the case of a devise to take effect six months after
the testator's death; or a devise to the first son of J. S.,
when he shall have one, or the heir of J. S., a person who
is living.(?)
Gardner v. An instance of this kind of springing interest occurred
Lyddon, 3. where a testator gave to two persons and their lieirs, to sell
You.andJcr. and dispose, at their discretion, one quarter part of all his
[ 40 ] right in Moorlinch, if an act should pass for inclosing the
389. See said moor within 20 years. And he directed the moneys to
also Wood- arise by such sale, to be divided between certain persons
Ufv.Drury, whom he named. It was held that this was an executory
Cro. Eliz. devise to take effect after an inclosure act.
439, as sta-
ted, Fearne, 275.
Definition of 1 1- The second is a sentence which creates a 120
the second freehold interest to take effect on the regular cer-
kind. tain expiration of a chattel interest, but such freehold inter-
See § 124a. est is contingent on account of the person. As where a
testator devises to ^. for 21 years, and then to the first un-
born son of B. in fee.
Definition of III. The third is a sentence which creates a free- 121
the third hold interest which is to take effect after a preced-
kind. ing chattel interest, but only on a contingent determination
See § 34- of such chattel interest by force of aspecial or collateral
42, 124a. limitation. As if land is devised to ^. for 21 years, if ^.
shall so long remain at Rome ; and if he quit Rome during
the term, to C. in fee. Or, where land is devised to ^. for
21 years, if lie shall so long live; and on the death of */9.,
then to B. in fee.
Danfrer of There is a danger of '^confounding the kind of 122
confounding springing interest exhibited in the first of these ex-
the second amples, with a contingent remainder of the first class here-
third, and ' after mentioned. (A^) Such a limitation might indeed be
fourth kinds termed a remainder, as regards the possession, or the enjoy-
(h) Pay's Case, Cro. Eliz. 878, as stated, Fearne, 400, 539.
(i) See Fearne, 395 ; and Gore v. Gore, 2 P. W. 28, as there stated. See
also Fearne, 400.
(/f) The learned Editor of the former editions of Fearne appears to have fallen
into this error. (Sec Fearne, 5, note (d), fifth paragraph.) And yet he agrees
with Fearne in stating, that a contingent remainder requires a preceding freehold
to support it.
I. 4. vii.] OF EXECUTORY INTERESTS. [§123—125. [ 10 ]
ment, or both, lint it is not a remainder, in relation to the of limitations
s(!isin, property, or ownership, and therefore not a remainder of springing
properly so called. interests with
contingent remainders.
And the same danger exists, in fact, of confounding other See § 159,
instances of tlic second, third, and fourth kinds of limitations 102.
of springing interests with contingent remainders.
123 IV'. The fourth is a sentence which creates a Definition of
freehold interest after a preceding term for years, the fourth
to take effect, in right, on an ev^ent or at a time uncon- [ 41 ]
nected with the original measure and the regular expiration ki"J-
of the term. As where land is devised to A. for 21 years ; See § 124a.
and if .,^. shall die within the term, then, on the expiration
of the term, to B. in fee.
124 V. The fifth is a sentence which creates a free- Definition of
liold interest after a preceding term for years, to the fifth
fake effect, in possession, or enjoyment, or in both, in de- kind,
feasance of the term, or of the beneficial interest therein, on See § 124a.
an event or at a time which may happen within the term,
but is unconnected with the original measure and the regu-
lar expiration of the term. As where land is devised to A.
for 21 years; and on the death of A., then immediately to
B. in fee.
This, though a conditional limitation, specifically so called. See § 143, 9.
as regards the possession, or enjoyment, or both, is a limita-
tion of a springing interest, as regards the seisin, property, See § 117,
or ownership ; and therefore most properly classed among 152.
those springing interests whicli do not affect a prior free-
hold.
124a From the second, third, fourth, and fifth kinds Limitations
of springing interests, we must be careful to dis- of vested in-
tinguish limitations of vested interests, subject to a term or terests, sub-
other chattel interest, or, in other words, limitations of a free- ject to a
hold interest in favour of a person in being and ascertained, chattel inter-
to take effect in possession, or enjoyment, or both, on the <^st, must be
regular and certain expiration of an actually subsisting term "'strnguished
or other chattel interest, and without requiring the concur- °"^ V^® . ,
rence of any collateral contingency. And from the first second, tlurd,
kind, we must distinguish other limitations of vested inle- ^,., , ' , p
' , . ^ • ,- 1 • filth kinds of
rests, subject to a suspension ot the possession, or enjoy- ij^iitations of
ment, or both. springing in-
interests. See § llle-lllg, 248-254.
125 VI. The sixth is a sentence which creates an Definition of
interest to take effect at a time which could not the sixth
arrive till a period subsequent to the expiration of a preccd- kind,
ing interest created by the same instrument, or which might
not arrive till a period subsequent to the expiration of an in-
terest created by a prior instrument. (Sec § 379.) As
Vol. II.— 5
[41] I. 4.vii.] AN ORIGINAL VIEW [§126— 127b.
'where a devise is made to Jl. for life, remainder, after the
death of ..^. and one day afterwards, to B. for life.(/)
[ 42 ] VII. The seventh is a sentence wliich creates an 126
Definition of interest to tal^e effect on the regnlar expiration of
the seventh a qualified fee which must expire, if at all, within the period
kind. prescribed by the rule against perpetuities. As '"where land
is limited by way of use or devise, to Jl. and his heirs, till
B. shall &c.; and then to B. and his heirs.(m)
Observation "" There is no clearer rule in law" (says Lord 127
of Lord \ot- Nottingham) "than this, tliat there can be no re-
tingham. mainder limited upon an estate in fee ; yet public reason
and the convenience of common assm^ances have found a
way to pass by this rule, as well by way of limitation of
use, as by way of devise ; and ergo, if the father limit a use
to himself and liis heirs until a marriage happen, and then
to the son and his heirs, this is a good fee by common expe-
rieiice."(w)
Remarks on This is not a vested interest, subject to a chattel interest,
the case put because the marriage might never happen ; and it was never
by him. intended that the estate of the father and his heirs should
cease unless it should happen ; and consequently the Avords
of limitation, "and his heirs," must carry the entire owner-
See § 11 If. ship of which the land was susceptible. This case is dis-
tinguishable from that of a limitation to trustees and their
heirs, till A. shall attain 24, with a limitation over to A. and
his heirs when and as he shall attain 24. In this last case,
an estate is given to the trustees for a limited purpose only;
and it is not intended that their estate should subsist beyond
the time when Ji. shall attain 24, or when, by his death
under that age, it shall have become impossible for that
event ever to happen. And therefore the words "and their
heirs" do not pass the fee, and the trustees only take a chat-
tel interest.
rp, |. . These limitations of springing interests can only I27a
tons can ' ^^ ^^ ^^^^ °^ ^^'^^ ^^ devise. They would be void
onlv be by ^^ inserted in a deed at common law.
way of use or devise.
[ 43 ] When they are by way of use, they are sometimes termed
They are springing uses. Those which are by devise are usually de-
termed signaled by the generic name of executory devises,
springing
uses and executory devises.
Definition of A limitation of a springing interest in personal 127b
a limitation estate, is a clause which creates an interest, by way
(/) Fearne, 308.
(m) 2 Bl. Com. 334. See also Fearne, 373.
\ii) Lord Notiingham, in Howard v. Duke of NorfoU', 2 Swanston, 461.
I. 4. viii.] OF EXECUTORY INTERESTS. [§128—131. [ 43 ]
of devise or of trust, to take effect at a future lime, without of a spriii};.
being preceded by, or without affecting any other interest, ing inifivst
limitations of this kind, by way of bequest, are usually de- i" persf.tial
ifiguated by the generic name of executory bequests. property.
SECTION THE EIGHTH.
Of Alternative Limitations.
128 An alternative limitation is a sentence which Definition of
creates an interest that is only to vest in case the an alierna-
next preceding interest should never vest in any way, five limita-
tluough the lailurc of the contingency on which such j)rc- tion.
ceding interest depends. As "where a testator devises to A.
for life ; and if he iiave issue male, then to such issue male
and his heirs for ever ; and if he die without issue male,
then to B. and his heirs for ever; or, where a testator be-
queaths personal estate to the first son of A.; and if A.
should have no son, then to B.{u)
129 These limitations, or the gifts made by them, Different
considered in conjunction with those for which names given
they are substitutionary, are sometimes termed I'contingen- to these linii-
cies with a double aspect ;(;?) or igifts upon a double con- tations.
liugency •,(<7) or 'gifts or devises upon two alternative con- [ '14 ]
tingencies.(;-)
130 From the definition it will appear, that asubse- Requisites to
quent limitation cannot bean alternative limitation, ^i" altcrna-
iniless the prior limitation for which it is a substitute, is either *i^c limita-
an hypothetical limitation, or a contingent limitation when [!^"\
considered antecedently to the event on which the subse- ^^^ V ^^'^^
quent limitation is to take effect; nor nnless the contingency
on which the subsequent limitation is to take effect, is the
reverse of the contingency on which the preceding limitation
is to take effect,
131 Where the event on which an alternative limita- q^h^ otnis-
tion is to take effect, is the non-existence, at a par- sion of llje
ticular time, of the person who is to take under the preced- condition on
ing limitation ; the condition that such person shall be in which the
(o) Loddington v. Kime, 1 Salk. 224, as cited, Fearne, 225, 373. And see
Doc d. Brown v. Holme, 3 Wils. 237, 241, as stated, Fcarnc, 374 ; and Higgins
V. Do7cIer, or Dcrhj/, 1 P. W. 98; Stanley v. Leigh, 2 P. \V . 686; Stephens
V. Stephens, Cas. tcinp. Tail). 228 ; Greeny. Ekins, 3 P. W. 306. note (F), 4lh
cd., as staled, Fcarno, 518 — 522.
(p) See Goodlitle v. BUlington, Dougl. Rep. 725, or 735 cd. 3; and Lod-
dington V. Kime, as stated, FearnC; 267, 373 ; and Hockley v. Maxchey, 1 Ves.
149, stated, § 530.
(7) Arg. of Counsel in Leake v. Robinson, 2 Mcriv. 382.
(r) Arg. of Counsel in Ring v. Hardwicke-, stated infra; Hockley v. Mau-
bey, 1 Vcs. 150.
[ 44 J I. 4. viii.] AN ORIGINAL VIEW [§132—135.
prior limita- esse at that time, in order to enable such prior hmitation to
lion is to take effect, is 'seldom expressed, and is only implied by the
take effect, circumstance that another person is to take if such first men-
tioned person is not in esse at that time.(.9) It is this which
so frequently causes a doubt, whether the existence of the
See § 13. party is a condition precedent to the vesting of the prior
See § 114. limitation; and consequently, whether the subsequent limi-
tation is an alternative or not. It would, therefore, be desi-
rable that the condition should be expressed, upon which the
prior limitation is to take effect, as well as the opposite con-
dition on which the subsequent, alternative limitation is to
take effect.
Twokindsof Alternative limitations, as regards their form, 132
alternative li- may be divided into two kinds. The one may be
mitations, as termed an alternative limitation of the projier or explicit
regards theirybrm; the other, an alternative limitation of the impi'oper
form. Qf^ elliptical form.
[ 45 ] I. An alternative limitation of the ^ro/;er o?' ea?- 133
n c •.• c IJlicit form, is one in which the reverse contin-
Definitionof -^ i • u *i u .• • . ^ • .
, gency on which the alternative interest is to arise, is ex-
tive limita-" Pressed ; as in the example above given in illustration of
tionofihe tbe definition of an alternative limitation. (See § 128.)
proper or explicit form.
— improper II. An alternative limitation of the 2?/2;;r6>/;e;' or 134
or elliptical elliptical form, is one in which the reverse con-
form, tingency on which the alternative interest is to arise, is
only implied.
The coniin- The contingency is sometimes implied by the 135
gency some- word "or," introducing tlie limitation,
times implied Thus, where a testator bequeathed a sum of stock to
by the word each of liis nephews and nieces, or to their respective
" or." child or children : should any die without child, his share
Montagu V. to revert to the residuary legatee. It was held, that
Nucella, 1 tije legacies vested absolutely in the nephews and nieces
Kuss. 165. ^yjjf^ survived the testator, and that the cliild or children of
the nephews or nieces took only as substitutes for their pa-
rent or parents dying in the testator's lifetime. The same
testator appointed as liis residuary legatee E. P. M., his
child or cliildren ; in case of his death without any such,
then, the residuary interest to vest in his other nephews and
nieces then alive, share and share alike ; and, as before, to
each of their respective child or children; and in case of
either of their deaths without any such issue, then his or her
share to be divided among the survivors, or to vest in the
last survivor, or his or their representative or representa-
(s) See Hockley v. Maichey, 1 Vcs. 142 ; Doe d. Davy v. Burnsall, 6 D. &
E., 30 ; Doe d. (oilman v. Ehey, 4 East, 313 ; Merest v. James, 4 Moore, 327,
1 Brod. &Z, Bing. Iii7, stated, § 530.
I. 4. viii.] OF EXECUTORY INTERESTS. [§136. [15]
tives. It was held, that the words "A'. P. M., his cliild or
cfiildreii," must he read as "A\ P. M., or his child or chil-
dren ;" and tliat tlie residuary clause must he construed as
the previous clause was ; and as E. P. M. survived the tes-
tator, tlie residue, upon that construction, vested in him ah-
solutely. If he had died leaving children whosurviverl the
testator, they would have taken the residue ; had they died in
the testator's lifetime, his other nephews and nieces and their
children would have hecomo entitled in a similar manner.
A testator hequeathed (iOOO/. in trust for his daughter, for Jones v. To-
hfc ; and, after her decease, he gave the same to the chil- rin, « Sim.
dren, or their descendants, of T. F., in such proportions to 255.
each as his daughter might direct. Sir L. Shad well, V. C,
held, that the descendants were mentioned merely as substi- [ 46 ]
tutcs for the children ; and that the children were entitled to
the fund, there being a direct gift with a power of selec-
tion.
136 Sometimes the contingency on which the alter- The contin-
nativc interest is to arise, is implied in the con- gency some-
text. And this would appear to be the case, where a times implied
fund is bequeathed in trust for a person and his issue, •" ^^c con-
with a direction to the trustees to pay over to such person, te^^«
the corpus, and not merely the interest of the fund.
A testator bequeathed all his personal property, not be- Pearson v.
fore disposed of, unto iiis trustees, in trust for his five sons, Stephen, 2
and their respective issue, (if any,) such issue to take per Kow &
stirpes, and not per capita, to be divided amongst them in Clark, 328.
equal shares and proportions : the shares of such of them as
should have attained twenty-one, to be paid to them re-
spectively forthwith after iiis decease, and the shares of
such of them as should be under the age of twenty-one
years, to be paid to them when and as they should re-
spectively attain such age. At the date of the will, and of
the testator's death, the eldest son was married and had
four children. The other sons were unmarried. The JNIas-
ter of the Rolls held, that each of the sons was entitled to a
fifth for life only, remainder to his issue, to be paid to fheni
at twenty-one. This judgment was reversed by the House
of Lords, by whom it was decided, that this was "an abso-
lute gift to the testator's five sons, to be paid, at the time
and in the manner specified, to the testator's sons living at
the time of his decease; but if any of the said sons was at
that time dead, then, to go to the issue of that son : such
issue to take as the stirpes would, and not on a division
2)cr capita.''^ The Lord Chancellor, in proposing that deci-
sion, relied on the case of Butter v. Ommaney, 4 Russ. 70 ;
and he observed, that there was no making sense of the will,
unless it was so construed ; and it was evident, that, in the
hurry of the last day of the sittings, the attention of tlie
[ 46 ] I. 4. viii.] AN ORIGINAL VIEW [§136a.
Master of the Rolls had not been fully drawn to the terms of
the will.
Observations It is not stated in the Report in what way His Lordship
on Pearson showed that this construction was required by the terms of
V. !Steplicn. the will ; but it may be remarked, that it appears from the
I 47 J words of the decision, as above cited, that the word " them"
was considered as referring to the sons, being connected
with the word "sons," though the word "sons" was not the
next antecedent, by the word " their ;" and hence, the will
was to be construed as directing the trustees to pay over
the corpus of the fund to the sons who should then have at-
tained twenty-one. Now if the trustees were to pay over
the corpus of the fund to the sons who should have attained
twenty-one, it would be utterly repugnant to suppose that
the sons so receiving the capital, and not merely the in-
terest from the trustees, should only have been intended to
take for life, with remainder over to their issue.
Any number Any number of alternative interests may be 136a
of alternative limited in succession, so that each more remote
interestsmay limitation may be simply a substitute for the next preceding
be linniled in one.
succession. A testator bequeathed a sum of stock to trustees, upon
Lnfer v. trust for his wife, for life ; and after her death, to pay one
Edu-arrh, 8 third part of the principal to his son, J. i?.,if he should then
Mad. 210. be living; and if dead, to his child or cliildren ; and one
third to his daughter, M. Ji. E., if living at the decease of
his wife; and if dead, to her child or children; and the
remaining third to his daughter, H. E., or her child or chil-
dren, in the same manner. Provided always, that if either
of his said daughters should die unmarried and without
issue; then, that the surviving daughter should take the
share of her so dying; and if both of his daughters should
die unmarried and without issue, then, their shares should
go to his son, J. E., if living ; and if dead, to his children.
L. E., the testator's wife, died in his lifetime, but the sou
and daughters survived him. Sir John Leach, V. C, held,
that in the events that had happened, the interests of the
daughters vested in them absohUely. That the deaths of
the daughters unmarried and without issue, was plainly
referable to their deaths in the lifetime of the wife. That
the only contingency in favour of their issue, was, the chance
of their deaths in the lifetime of the wife.
Observations In this case, there was a succession of alternative limita-
on Laffer v. tions, as to the shares of the daughters, by means of which
Edwards, the children of each of the daughters were substituted for
their parent, in case the parent was not living at the death
[ 48 ] of the wife; the surviving daugliter, for the daughter wiio
might happen to die without issue in the lifetime of the wife;
the son, for the daughters and their children, in case neither
I. 4. ix.] OF EXECUTORY INTERESTS. [§137—110. [ 4S ]
of the daughters and none of their cliihheii were hviiig at
tlic death of the wife ; and the cliiidren of the son, for llie
son, in case he should not be hving at the death of the wile.
As the daughters were hving at the death of the wife, the
htnitaiion to them took eirect,and tlie shares vested in thein
absohtteiy, so that all the subsequent hmitations, being mere
alternative limitations, entirely failed.
SECTION THE NINTH.
Of '^ Augmentative Limitations.
137 An augmentative limitation, in the case of real Definition of
estate, (or a limitation causing "an enlargement of an augmen-
an estate upon a condition,") is "a limitation, by deed at tative limiia-
conmion law, luider which a term for years previously ere- tion.
ated in things that lie in livery, or a term for years in things
that lie in grant, or a preceding estate for life or in tail, cre-
ated by the instrument containing such limitation, is, in a
given event, to be absorbed by, or transmuted into, a larger
estate, of the same quality, in case such preceding estate
remains imaliened, and unchanged in quality, till tlie fulfil-
ment of the condition. (a)
138 Thus "a man," says Lord Coke, ''"maketh a Illustrations
lease for years, the lessee enters, and the lessor of the deli-
makes a charter to the lessee, and thereby doth grant unto nition.
liim, that, if he pay the lessor, a hundred marks during the
term, that then he shall have and hold the lands to him and^
to ills heirs. In this case, say they, there need no livery of
seisin, but it doth enure as an executory grant, by increasing
of the state ; and, in that case, without question, the fee sim-
ple passeth not before the condition is performed. "(Z>) In
the case here put, the livery of seisin appears to be dispensed [ 49 ]
with ex necessitate. It was not made before the lessee
entered ; because when the lease was made, it was not, or
might not have been intended, at that time, that the lessee
should have any other interest than his term. And if livery
were made at the time of the subsequent grant, Mt
139 would be void ; because the lessee would be al-
ready in possession. (c) But "^if a lease for years
is made of land or any thing else lying in livery, with a simi-
lar condition contained in one and the same instrument,
instead of a subsequent instrument ; the lessee
MO must take the fee immediately, or not at all.(c^)
* See §114, note *.
(«) See Co. Litt. 21Ga— 217 b. Prest. Shcp. T. 128, 129. Fcarnc, 265,206,
279, 280, 339. (i) Co. LiU. 217 b.
{c) See Co. Litt. 21 G a. (</) See Co. Litt. 217 b.
[ 4.9 ] I. 4. X.]
AN ORIGINAL VIEW [§141—147.
For, ^if livery is made before the lessee enters, the fee
passes iimnediateIy,^so that the condition must be construed
See §12, 13. a condition subsequent instead of a condition pre-
ccdent:(<') for *"•' livery of seisin must pass a pre- 141
sent freehold to some person, and cannot give a
freehold i?ifutiiro.^'(f) And if livery were made 142
fe'after the lessee had entered, and when he was
already in possession, it would be void. (5-) And 143
'"' it is inconvenient," as Lord Coke observes, " that
the fee simple should pass, in this case, without livery of
seisin •,"(/j) because this would be unnecessarily opening a
door to the dispensing with livery of seisin altogether, and
to the mischiefs that would arise from the absence
of that ceremony. In the preceding case, tlie fee 144
could not pass at all unless livery of seisin were
dispensed with ; whereas, in this case, it could pass by livery
of seisin ; though it is in such case necessary to construe the
condition a condition subsequent, instead of a con-
dition precedent, so as to allow the fee to pass im- 145
mediately. But it is to be observed, that there is
•"a diversitie between a lease for life and a lease for years.
For, in the case of a lease for life, with such a condition to
have fee, the fee simple passeth not before the performance
of the condition ; for that the livery may presently
work upon the freehold. Also they take a diver- 146
sitie between inheritances that lie in grant and
inheritances that lie in livery. For they agree, that if a man
[ 50 ] grant an advowson for years, upon condition that if the
grantee pay twenty shilhngs, &c., within the term, that then
he shall have fee, the grantee shall not have fee until the
condition be performed. "(z)
SECTION THE TENTH.
Of Diminuent Limitations.
What is here termed a diminuent limitation is 147
a clause by which it is provided, whether in a deed
at common law, or by way of use or devise, that, in a par-
ticular event, an interest previously given by the same in-
See h 149a strument, shall be transmuted into one of a lower denomina-
\^Q tion. As "where a man makes a lease for life, and if the
lessee within one year pay not 20/., that he shall have but a
term for two years. (a)
See § 114,
note *.
Definition
of a dimi-
nuent limita
tion.
(e) Sec Co. Litt. 216 b.
\^) See Co. Litt. 216 a.
(i) Co. Litt. 217 b.
(a) Co. Litt. 218 b.; Shep. T. 129
(/) Co. Liu. 217 a.
{h) lb.
I. 4. xi.] OF EXECUTORY INTERESTS. [§148, 149. [ r,0 ]
SECTION THE ELEVENTH.
0/ Conditional Limitations.
148 ''The term conditional limitation is sometimes Generic
used generically to denote any kind of qualified sense of the
limitation in the derivative sense ; any kind of limitation, in term condi-
tlie derivative sense, which depends upon a condition, in tjonal linnita-
contradistinction to an absolute limitation ;(A) or to denote ''<^"-
'an indirect special limitation, in contradistinction to a direct See§24,106-
special limitaiion.(r) See \ 34, 42.
This use of the term, though philologically correct enough, The use of
is practically productive of a great and mischievous confu- the term in
sion of ideas. In particular, special limitations, in the origi- this sense is
iial sense of limits, are confounded with conditional limita- notincorrect,
tions, in tiie derivative sense, ''specifically so called, or, in [ 51 ]
other words, with that kind of limitations, which, in contra- but yet pro-
distinction to remainders, operate in defeasance of a preced- ductive of
ing estate, and which are accurately distinguished from re- mischief,
mainders by the learned and profound author of the forego- See §24, 34-
ing work.((^) The mode of determining an estate by means 42.
of a special limitation is not peculiar to conveyances by way See § 149.
of use and devises, as we shall presently see ; but the mode
of determining a preceding estate by means of a conditional
limitation, specifically so called, is peculiar to uses and de- See § 149a.
vises.
149 A conditional limitation, in the specific sense, is a Definition of
*'proviso,by way of use or devise, for the annihilation a conditional
of an interest of the measure of freehold under a preceding limitation, in
limitation, in a particular event which is uncoimected witli the specific
the original quantity of that interest, (e) and which may not sense of the
happen till alter such interest has become vested ; and for term,
the creation of a new interest in its stead, in favour of ano-
ther person. Or, more fully, it is a distinct clause, ^by way
of use or devise, (/) by which an interest is limited to take
effect, in possession, or in enjoyment, or in both, on or at a
particular time or event, in defeasance and exclusion of and
by way of substitution for an interest of the measure of free-
(b) See Holmes v. Cradoclc, 3 Ves. Jun, 319; Toldcrvy v. Colt, 1 You. «Sc
Col. 631 ; Prcst. Shop. T. 117 ; Fcarne, 14, 17, 18.
(c) Sec Fearne, 272.
Id) See Fearne, 15, 16.
(e) See Fearne, 10, note (/j), and 14 — 16. And see Lloyd v. Carew, Prec.
Chan. 72 ; Show. Cases Pari. 137; as stated, Fearne, 275 ; Pells v. Brown,
Cro. Jac. 590; Hanbury v. Cockerell, 1 Roll. Abr. 835, pi. 4 ; GiilUrer v.
Wickett, 1 Wils. 105 ; and Marks v. Marks, 10 Mod. 420 ; as stated, Fearne,
896, 399.
(/) See Prest. Shop. T. 121, 126, 127.
Vol.. II.— G
[ r,\ ] I. 4. xi.]
AN ORIGINAL VIEW [§149*— 151.
[ 52 1
Hackstraw
v.y/7e,lSim.
& Slu. 604.
Conditional
limitations
must be
really limit-
ed in defea-
sance of a
prior inter-
est.
Conditional
limitation
can only be
by way of
use or devise,
Conditional
limitations
termed shift-
ing and
springing
uses and
executory
devises.
Reason of
the term
" conditional limitation."
hold given by a previous sentence, at a period when such
prior interest may have become vested even in enjoyment,
and before such jirior interest has lasted the full measure of
duration assigned to it by such preceding sentence, either in
express terms or by construction of law. As where an
estate is devised to Ji. for life, or to ..'?. indefinitely, provided
that when C. returns from Rome, it shall theti immediately
go to B. and his heirs; or, where land is granted, to Ji. and
his heirs, to the use of B. and his heirs; but in case &c., then
immediately to the use of C. and his heirs.
So, where a testator give his son an absolute interest in
one Iburth of his personal estate : but, by a codocil, he di-
rected that his son's share should be only for the life of him-
self and his wife, provided they had no issue, and, at their
death, it should become part of the residue. Sir John Leach
lield, that the son took in the first instance absolutely, with
a good limitation over, by way of executory devise, at the
death of the survivor of himself and wife, if there be no
issue then living ; the failure of issue being plainly con-
fined to the death of the survivor, by the direction that the
share of the son was to become part of the residue at their
death.
Before we determine that a limitation is a condi- 149*
tional limitation, we must observe whether it is
really and in fact, and not merely apparently or in terms,
limited to take effect in defeasance of a prior interest. For,
t' though apparently or in terms it may be limited to take
effect in defeasance of a prior interest, yet, if in reality it is
to await the regular expiration of such prior interest, it is a
remainder, and not a conditional limitation. (if)
These limitations can only be by way of use or 149a
devise. They would be void if inserted in a deed
at conmion law, being foreign to the simplicity of the con-
veyances employed before uses and devises were intro-
duced.
When these limitations are by way of use, they 150
are sometimes called shifting uses, and sometimes
springing uses. Those which are by devise are usually de-
signated by the generic name of executory devises.
''These limitations partake of the destructive na- 151
ture of cofiditions subsequent, and the creative na-
ture of limitations in the derivative sense. (See§ 12,105 — 6.)
And hence they are appropriately termed conditional limita-
tions, (A)
{g) See Driver (]. Edgar v. Edgar, Cowp. Rep. 379 ; and Fountain v. Gooch,
as stated and commented on, Fearne, 426 — 428.
(/j) See Hiiiler's note (1), Co. Litf. 203 b.
I. 4. xi.J OF EXECUTORY INTERESTS. [§152—157. [ 52 ]
152 So far as regards the applicability of the term \i is not ex-
" springing interests," interests under conditional porJifMit to
limitations may indeed with strict propriety be termed spring- extend tho
ing interests. But it will appear from many parts of the [ 53 ]
present Essay to be of great importance, both theoretically term spring-
and practically, to confine the term springing interests to i",g iiitcrests,
those interests which do not affect a prior interest of the f*^^' '"f'''E"^'«
measure of freehold. ""f^f* f:^»"f''-
153 In elucidation of the foregoing definitions, it t'o"'i' bmii-
may be observed, tliat,— ations.
1. By creating a new estate, conditional limitations difl'cr Conditional
from conditions subse(]uent; from clauses of cesser and ac- lini'taiion.s m
celeralion; and from special or collateral limitations in the f^'^nora dis-
original sense of limits. (§ 12, 22, 34—42.) unguished
154 2. By constituting a distinct clause or proviso .'^"'" '^°""'
r .1 r • • . * • ^ tions sub-
for the cesser ot a prior interest in an event uncon-
■ > • • • I r , ■ 1 .-.T scijuent:
nected with the original measure of that interest, they dilier j-j.J^ clauses
from special or collateral limitations in another respect. (See ofresser and
§ •^^•) , acceleration;
155 3. By taking eflect in defeasance of an interest andfromspe-
of the measure of freehold under a preceding limit- cial or coUa-
ation, they difl'er not only from remainders, as we shall see teral limit-
hereafter, but also from the several kinds of springing into- ations;
rests which do not afiect any prior interest at all, or none — from re-
but a prior chattel interest. (See § 159, 117 — 127b, 2G2 — maindcrs,
280.) ^^'^ limita-
156 A hmitation of a springing interest operates upon ^'^'^'^ ^f
the estate remaining in the grantor or his heir, or fTrmg'ng
in the heir of the testator, in the same way as a conditional 'n^t?i'6^ts;
limitation operates upon the prior estate which is liable to
be defeated by it. The limitation of a springing interest
operates by devesting the estate from the grantor or his heir,
in a particular event, entirely irrespective of the original
measure of that estate, and by transferring it to the person
who is to take the springing interest. A conditional limita-
tion operates by devesting the estate from the person entitled
under the prior estate, in a particular event which is quite
unconnected with the original and regular duration of that
estate, and by transferring it to the person who is to take
under the conditional limitation. The difference is, that the
estate devested, is, in the one case, an estate remaining in
the grantor or his heir or the heir of the testator; whereas,
in the other, it is an estate created by a previous clause of
the instrument by which the interest was limited, which is
to take effect in defeasance of it.
157 4. By being capable of taking eflect in annihila- — iVom al-
tion or defeasance of another interest which has [ 54 J
become vested, they also widely differ from alternative limit- ternative li-
ations. (§128.) mitations;
[ 54 ] I. 4. xii.] AN ORIGINAL VIEW [§158— 159a.
and from 5. By defeating a prior interest in anotlier per- 158
augmenta- son, by way of use or devise only, even where they
live and di- substitute a greater interest for a less, or a less for a greater,
minuent lim- they are dissimilar to augmentative and dimiuuent limita-
itations. tions. (§ 137, 147.)
SECTION THE TWELFTH.
Of Remainders.^
Lax sense of The terra remainder is sometimes used in a lax 159
the term re- sense, to denote any kind of subsequent interest,
mainder. or the limitation thereof. But a limitation of a remainder,
Definition of strictly so called, is a clause creating or transferring an estate
a limitation or interest "in lands or tenements, («) which is limited, either
of a remain- directly or indirectly, to take effect in possession, or in en-
der, properly joyment, or in both, subject only to any term of years or
so called. contingent interest that may intervene, ^^ immediately after
the regular expiration(6) of a particular estate of freehold
previously created together with it, '^by the same instru-
ment, (c) out of the same subject of property.
Remainders In elucidation of this definition, it may be observed,
in general that
distinguished j. A remainder is above described as an estate 159a
from other qj. interest in lands or tenements, because " in per-
clauses. sonal property, under which both chattels real and personal
Remainders g^re included, there cannot be a remainder in the strict sense
distinguished ^f ^ij^t word ; and therefore every future bequest of per-
from future gonal property, whether it be preceded or not preceded by a
bequests. prior bequest, or limited on a certain or uncertain event, is
See § 168a, an executory bequest, and falls under the rules by which
168b. that mode of limitation is regulated. "(of) And if such future
[ 55 ] bequest is preceded by, and is to take effect in defeasance
See § 148- of, a prior bequest; it is a conditional limitation. But, if
152. such future bequest is not preceded by a prior bequest ; or
if it is preceded by a prior bequest, but yet it does not affect
See § 117. such prior bequest; it is a limitation of a springing interest.
An exception occurs, however, in those cases where a
future bequest is analogous to a vested remainder in real
estate ; in which cases, though it is executory as regards the
*The term remainder is indiscriminately applied both to the limitation creating
and the interest created.
(a) See Lord Coke's definition quoted, Fcarne, .3, note (r).
{b) See Prest. Shop. T. 128, and Fearne, 10, note (/<), and 14—16.
(c) Fearne, 3, note (c); and Snow v. Cvttler, or Tucker, 1 Lev. 1S5; and
Doe d. Fonnereau v. Fonnereav, Dougl. Rep. 470 ; as stated, Fearne, 302, 3J3.
(d) Fearne, 401, note (c); and see lb. 3, note (r), 2.
I. 1. xii.] OF EXECUTORY INTERESTS. [§l(JO,l(il. [55]
possession, it is not an executory bequest, as regards the See §46, 87,
property or ownersliif), but confers a vested interest, and 90.
may for convenience be termed a vested quasi remainder, j^^e § U^^.
And a future bequest which is analogous to a contingent
remainder in real estate, though strictly and properly an
executory bequest of a springing interest, as regards the
property or ownership, may for convenience be termed a
contingent (/nasi remainder.
Another exception occurs in cases of limitations of present See§ lllf.
vested interests, subject to a prior chattel interest of uncer-
tain duration, in which cases, the bequest, though executory
as regards tlie possession or enjoyment, or both, is not
executory as regards the property or ownership, but is an
immediate bequest, a limitation in prassenti.
And a third excej)tion occurs in cases of limitations of Sec § lllg.
present vested interests, where there is a mere postponement
of the possession, or enjoyment, or both, and not a post-
ponement of the property or ownership, till a future time
(such as the attainment of majority) other than that of the
determination of a prior interest.
160 2. A remainder is above described as limited to Remainders
take elfect, in possession, or in enjoyment, or in distinguished
both, after the regular expiration of another estate. For, from condi-
a vested reiuainder has already taken etiect in riglit or tional limi-
interest ; and therefore it has only to take effect in pos- taiions.
session or enjoyment, or in possession and enjoyment.
And a contingent remainder must, in many cases, take ef-
fect in interest, if at all, before the expiration of the particu-
lar estate. But, as regards the possession or enjoyment, or
both, a remainder, whether vested or contingent, can only
take effect, except by the operation of merger, after the ex-
piration of the particular estate; because, it would other-
wise be something more than a mere residue or remnant of
the seisin, property, or ownership. In this respect a limita- [ 56 ]
tion of a remainder dilfers most essentially from a condi-
tional limitation. A conditional limitation, as stated in the See § 148-9,
second of the foregoing definitions thereof, operates in de- 262-280.
feasance and exclusion of a prior interest : whereas, there
is no instance in which a remainder operates in exclusion of
a prior interest, cither by force of the limitation itself, or by
construction of law. For, even "^^in those cases in which it
absorbs the particular estate, by the operation of merger, it
in effect only removes the limits of the particular estate so
as to expand it into a greater estate.(6')
161 3. As taking effect after the expiration of an- Remainders
other estate, a remainder is diametrically opposed distinguished
to an alternative limitation. (See § 12S, 63S— 649.) fiom alter-
__ — ■ — - native liini-
(f) Fearne, 265— 9. tations ;
[ 56 ] 1.4. xii.] AN ORIGINAL VIEW [§162—165.
— from the 4. As taking effect immediately after the regular 162
firstsix kinds expiration of an estate of freehold, a remainder is
of limitations the reverse of the first six kinds of limitations of spring-
of springing i„g interests.
interests; "^ j„ goi^^e cases a remainder may bear a close 163
from aug- resemblance to an augmentative limitation; for a
mentative li- remainder may Ije given to the same person to whom tlie
mitations. particular estate is limited, though usually it is not ; and it
Sec § 137. may be, and in fact generally is, of tlie same quality as the
particular estate. But as directly or indirectly limited to
take effect in possession after thercs;ular expiration of the
particular estate, remainders invariably differ from aug-
mentative limitations, under which a particular interest is
either to be absorbed by, or, in case it is an estate tail, to be
transtnuted into, a larger estate, before the time of its regu-
lar expiration, and by the terms of the limitation itself. A
remainder may indeed take effect in possession before the
regular expiration of the particular estate, in cases where a
particular estate and a vested remainder are limited to the
same person, and either are, by original limitation, or be-
come eventually, of the same quality. Thus, if land be
limited to A. for life, remainder to him and his heirs in a
particular event, as soon as such event happens, and the re-
mainder vests in interest, the estate for life immediately
merges in it, and the remainder becomes an estate in posses-
sion, before the regular expiration of the estate for life. And
[ 57 ] so, '"if a lease be made to two for life, remainder, after the
decease of one of them, to the survivor in fee, the particu-
lar estate becomes, on the decease of one of them, an estate
of the same quality as the remainder, that is, a sole es-
tate ; and being also in the same person, it immediately
merges in the remainder, which then becomes an estate in
possession, before the regular expiration of the particular es-
tate; that is, before the decease of the survivor.(/) But
this acceleration of the subsequent estate does not take place
by force of the limitation itself, but by a rule of law affect-
ing such limitations, by giving rise to the operation of
merger in the case of estates so situated.
Rrmaindcrs 6. The same words also distinguish a limitation 164
distinguished of a remainder from a diminucnt limitation. (See
from dimi- §147)
nucnt limi- 7. A remainder, as the word itself imports, is 165
tations ; always limited after a particular estate. And ^any
from the preceding estate for life or in tail is termed a particular
seventh kind estate \{s) but the term is not applied to any estate in fee,
(/) See Fearne, 265; and Goodlitle v. BiUington, Dougl. Rep. 725, or
735 ed. 3 ; as stated. Fearne, 266.
(§•) Fearne, 381, note (a), 1.
I. 4. xiii.] OF EXECUTORY INTERESTS. [§1G7, IGS, [ 51 ]
lio\v(!ver limited. Ileiico, though, as wo have seen, a fee of limitations
or other less estate may ho hmited to take etfecl iti defeas- of springing
aiice and exclusion of a prior estate in fee, by way of dimi- interests,
niient limitation, or conditional limitation, or untler a power Sfo § 147,
of a[)j>()intment, or in place of a fee which has never vested, 14'^-9, ll.'i.
by way of alternative limitation ; or on the regular expira- See § 128.
tion of a qualified fee by means of a limitation of a spring-
ing interest of the seventh kind ; yet, no estate can be lim- See § r20.
ited by way of remainder on the regular expiration of a fee,
even though it may he only a qualified fee which cannot
last longer than an (estate tail. So that ''if an estate is lim-
ited, even by way of use or devise, to Jl. and his heirs, while
li. or any issue of his body shall bo in existence; and after
the decease of /?. and failure of his issue to C. and liis heirs;
or if an estate is limited, even by way of use or devise, to j1.
and his heirs, while ho and his heirs shall continue lords of the
manor of Dale ; and if ./?. and his heirs shall cease to be lords
of the manor of Dale, to C. and his heirs; the latter limitation,
in each case, is void. (//) For the common law considered that [ ^^ ]
a fee, even of a qualified kind, might endure for ever; so that
there could be no remainder after it, but merely a possibility
of reverter. And no interest limited after the regular expi- See ^ G9.
ration of such fee can be good as a limitation of a springing
interest of the seventh kind, because it would be too remote. See § 126,
And 'if an estate is limited to the use of ./^. and his heirs till 706.
C. return from Rome; and after the return of C, to B. in
fee; the limitation to B. is not a remainder, because the
preceding fee may lose its determinable quality and become
absolute by the decease of C. without returning from
Rome;(/) but it is good as a limitation of a springing inter-
est of the seventh kind.
1G7 S. IJy limiting an estate after a particular estate Remainders
created by the same instrument, a limitation of a disiinguished
remainder is distinguished from a limitation of the whole or from limi-
the immediate part of a reversion. (See § 169.) tationsof tlie
whole or the
immediate
SECTION THE THIRTEENTH. part of a re-
version.
Of Quasi Remainders. See § 114,
note *.
16S A FUTURE bequest, which is analogous to a p)(.finition of
remainder in real estate, Jiiay be designated by -x quasi re-
Ihis term. mainder.
We have already seen that,* " in personal property, under There can-
which both chattels real and personal are included, there not be a re-
mainder in
(h) Fearne, 226, note (d); and Fearne, 372, note (a). personal pro-
(i) Fearne, 13, note (A*). pt-rty.
[ 5S ] I. 4. xiii.] AN ORIGINAL VIEW [§16Sa, IGSb.
cannot be a remainder in the strict sense of that word. "(a)
(See § 159a.)
Chattels real "^^ ^^ chattels real, a term for years is liable to 168a
may now be (destruction by certain legal means; and therefore,
limited over ^^ "^'^ interest is first limited for such a number of years of
but a limita- the term as not to exhaust the whole duration of the term,
tion over is tiiough, Ui this case, there is a remaining portion of the
not a remain- term, or the beneficial interest therein, or both, to constitute
der, strictly a remainder at the period of limitation ; yet the term may
so called, have ceased to exist long before a future interest can take
[ 59 ] efiect. Whereas, in the case of lands or tenements, the sub-
though it ject of property remains for ever; and the property or own-
may be ana- ership which may be had therein, is commensurate with the
logoustoone. duration of the lands or tenements themselves.
Besides this, terms for years were originally of short du-
ration, created for agricultural purposes, rather than for
purposes of complicated family arrangements. And ''hence
not only could there be no remainder in them, but "it was
once considered that they were incapable of any limitation
over."(6) ]3ut '^now an interest after an interest for life or
otherwise in a term may be limited, as a legal interest, by
way of devise or bequest, or as an equitable interest, either
by way of devise or bequest, or by way of trust.(c)
The same is And as regards chattels personal, in the very na- IGSb
the case with ture of things, in order that there may be room for
chattels per- a remainder, at least for a vested remainder, there must be
sonal. some portion of the ownership remaining, which has not
been previously disposed of. But in the case of chattels
personal, before the expiration of the interest first limited in
them, they may be destroyed or lost in various ways inciden-
tal to their own nature, and unconnected with the operation
of law. And the duration of personal chattels being alto-
gether uncertain, the duration of the property or ownership
is so too. And hence no remainder could be limited in them.
Besides, in times when there was but little money in the
country, and it was expedient that what little there was,
should be quickly circulated, and chattels personal chiefly
consisted of things of a perishable nature, such as corn and
cattle ; it is obvious why it was considered that no remain-
der could be limited in chattels personal. A distinction,
however, was afterwards taken ''between a bequest of the
use of a personal thing for life, and a bequest of the thing
itself; it being considered that a limitation over after the
(a) Fearnc, 401, note (e); and see Ih. 3, note (c) 2.
(b) Fearne, 3, note (c), 2.
(c) Fearne, 402, 404, 413 ; and Manning^ s Case, 8 Rep. 95 ; Lampefs Case,
10 Rep. 47 ; and Cotton v. Heath, 1 Roll. Abr. G12, pi. 3 ; as staled, Fearne,
402—3.
I. 5. i.] OF EXECUTORY INTERESTS. [§1G9, 170. [GO]
former was good.((/) And subsequently it has been held,
tliat an interest even after a life interest in a personal chattel
may be limited, ''as a legal interest, by way of bequest, (^)
or, 'as an equitable iiUerest, either by way of bequest(y")
or *''by way of trust. (,^)
SECTION THE FOURTEENTH.
Of Limitations of the IVhoIe, or the Immediate Part of a See § 375-
Reversion. 382.
169 Limitations of the whole, or the immediate Definition of
part, of a reversion, are limitations of an entire pre- these limita-
viously subsisting reversion, or of a part of it, to take efl'ect ^io"s of the
in possession, sul)ject only to any term for years or coutin- reversion,
gent interest that may intervene, inunediately after the reg-
ular expiration of the particular estate or estates of freehold
duration created by a previous instrument out of the same
subject of property.
CHAPTER THE FIFTH. [ 6i ]
VESTED AND CONTINGENT REMAINDERS DEFINED AND DIS-
TINGUISHED.
SECTION THE FIRST.
Vested and Contingent Eemainders in general defined
and distinguished.
170 Remainders are either vested or contingent; and Throe modes
each of tlicsc two kinds may be defined in three of defining
different modes : vested and
I. Without reference to the right of possession or enjoy- contingent
ment, or the possession or enjoyment itself. remainders.
II. With reference to, the right of possession or enjoy-
ment.
(J) Fcarne, 402.
(e) See Lord Chancellor's observations in Foley v. BurneU, 1 Bro. Chan, Cas.
274, as stated, Fearne, 412; and Hoare v. Parker, 3 Duin. & East, 376, as
stated, Fearne, 415, But sec also, contra, Fearne, 413, 414.
(f) Cafchmay v. Nicholls, and Shirley v. Ferrers, 1 P. W. 6, in note; and
Hyde V. Perratt, 1 . P. W. 1 ; as stated, Fearne, 405 — 6.
(g) Cado^an v. Kennet, Cowper, 432 ; as stated, Fearne, 408.
Vol. il.— 7
[ Gl ] I. 5. i.] AN ORIGINAL VIEW [§171— 17G.
III. With reference to the possession or enjoyment
itself.
Vested and I. A vested remainder, if defined without re- 171
contingent forencc to the right of possession or enjoyment, or
remainders the possession or enjoyment itself, (which is perhaps the
defined with- niost scientific and accurate mode,) may he defined to be, a
out relerence portion of the seisin, property, or ownership, of the measure
to the right Q^ freehold, next after a preceding freehold estate, and ac-
o( possession ^^j^Hy acquired by, and residing in, the person who is said
or enjo}- ^^ have such vested remainder. (See § 91.)
' ■ , A CONTINGENT REMAINDER, ou the Other hand, 172
eniovment ^^^^' ^^ defined to be, a portion of the seisin, pro-
itseli' psi'ty, or ownership, of the measure of freehold, which is
See ^ 47-8. "^'^^ after a preceding freehold estate, and is not yet acquired
by the person who is said to have such contingent remain-
der, but is appointed, by the terms of the grant or devise,
to be acquired by, and to reside in him, in a contingent
event.
Vested and II. A vested remainder, if defined with refer- 173
contingent ence to the right of possession or enjoyment, (which
[ 62 ] is the mode adopted by Fearne,) may be defined to be, one
remainders that is so limited to a person in being and ascertained, that
denned with (subject to any such chattel or other interest collateral to the
reference to seisin, property, or ownership, as extends to the possession
the right of or enjoyment) it is capable of taking effect, in possession or
possession or gj^JQymPi^f^ q^ ^j^q certain determination of the particular
enjoyment estate, without requiring the concurrence of any collateral
See§50,51.^^j^ji^^gg,^^y^
A contingent remainder, on the other hand, 174
is one that is so limited as not to be capable of
taking effect in possession or enjoyment, on the certain
determination of the particular estate, without the concur-
rence of some collateral contingency.
Vested and III. A vested remainder, if defined with refer- 175
contingent ence to the possession or enjoyment itself, may be
remainders defined to be, a remainder which, as regards the possession
defined with or enjoyment, or both, (subject to any such chattel or other
reference to ititerest collateral to the seisin, property, or ownership, as ex-
the posses- tends to the possession or enjoyment,) does not strictly depend
sionorenioy. ^^^ ^^y uncertainty at all, or any other uncertainty than that
mcnt itscll. of its enduring beyond the preceding interest.
A contingent remainder, on the other hand, 17G
is one which, as regards the possession or enjoy-
ment, docs strictly depend on a contingency irrespective of
its own duration.
I. 5. ii.J OF EXECUTORY INTERESTS. [§177— ISO. [ (.J J
SECTION THE SECOND.
The Distinclions between Vefited and Conlins;e.nt Tlcmain-
ders pointed out, with Observations thereon.
177 I. Tjie non-cxistcncc, in a vested remainder, and Distinctinti
the existence, in a contingent remainder, of a con- as rcgarrls
tingency irrespective of its own dnration, on which the pes- the mode of
session or enjoyment strictly depends, is that which consti- tlu.ir cro-
tutes the fundamental distinction between them, as regards ption, Ibrm-
the mode of their creation, and that which forms a true, tan- '"= a true
gible, and practical criterion for determining to which of the cnicnon.
two species a remainder belongs.
II. And from this distinction in the mode of their creation, Consequcn-
two others, pertaining to their nature and qualities, neces- tial distinr-
sarily flow: tiunspertain-
178 1. In the one kind of remainder, there is, while [ 63 ]
in the other, there is not, an actually acquired por- ing to their
tion of the seisin, property, or ownership, at present, fixed, nature and
and legally transferrible right, and a present capacity (sub- qualities.
ject to any such chattel or other interest collateral to the Sec § 47-8.
seisin, property, or ownership, as extends to the possession ^^^ '^^■> '^^*
or enjoyment) of taking eflect in possession or enjoyment at
any moment there may be a vacancy during the continu-
ance of the remainder, without requiring the concurrence of
any collateral contingency.
179 2. And in the one kind of remainder (subject
as aforesaid) there is a certainty, while, in the
other, there is an uncertainty of the possession or enjoyment
itself, apart from tiic relative uncertainty of its own dura-
tion.
ISO It is not the indefeasibleness of the right of pos- It is not the
session or enjoyment, or the absolute certainty of indefcasible-
(he possession or enjoyment itself, which distinguishes a ncss of the
vested from a contingent remainder. In relation to the in- right of pos-
defeasibleness of the right, and the certainty of the posses- session or
sion or enjoyment itself, a vested remainder may be uncer- enjoyment,
tain as well as a contingent remainder. For, if land is "<"' the abso-
limited to the use of./?, for life, remainder to the use of ^. hitecertainty
for life, subject to a power of revocation and new appoint- o'theposscs-
nient, the remainder is vested ; because, from the very in- ^'°" °^ '^""
stant of its creation, it is capable of taking effect in posses- -P; "j".^", . ■
sion or enjoyment at any moment the possession or enjoy- r .,■ ',, .,u,,
ment may become vacant by the death of .^. And yet it o ypsited re-
may possil)Iy never take effect in possession or enjoyment, '(^ij^jujer
because B. may die before ./!?., or the use of 7i. may be re-
voked, or li. mav ourrendor to the reversioner.
[ 63 ] I. 5. ii.] AN ORIGINAL VIEW [§181—183.
But still a But, nevertheless, though a vested remainder is 181
vested re- not absolutely eertaiu of taking eilect in possession
mainderis or enjoyment, it is only uncertain on account of the uncer-
only uncer- tainty of its duration in relation to the duration of the par-
tain on ar- ticnlar estate ; it is only uncertain on account of the possi-
count of the i^ijity Qj. probability that it may expire or be defeated before
re a i\e un- ^j^^ tjetermination of the particular estate. No condition is
•. ^^. •, to be fulfilled, no event to happen, before the right of future
ration ' possession or enjoyment can be perfect ; nothing is wanting
to render the capacity of possession or enjoyment
complete. And in regard to the indefeasibleness 182
[ 64 ] of the right of possession or enjoyment, and tlie
possession or enjoyment itself, a vested remainder is sure
ultimately to take eifect in possession or enjoyment, if only
it endures beyond the preceding estate. For, it is limited to
take eflect after an estate which must expire at a time or on
an event certain, and it was either capable at the very first,
or has subsequently become capable of taking effect in pos-
session or enjoyment at that time, or at any moment that
event may happen, without requiring the concurrence of
any contingency, as respects its capacity of taking effect at
that particular period.
A remainder It may indeed be limited in such a way as to be 183
maybe litnit- capable of vesting in possession either on a contin-
ed on a con- gent determination, or on the certain expiration of the par-
tingcncy, ticular estate, whichever shall first happen. But, ''even in
and yet be this case, the remainder is not contingent, (a) but rather, in
vested. fact, the more certain. For, if the contingency should not
happen before the certain expiration of the particular estate,
it can of course have no effect either on that estate which
has already expired, or on the remainder which has already
vested in possession or enjoyment. And if the contingency
should happen before that time, it cannot render a remain-
der contingent, which might have taken effect in possession
or enjoyment if that contingency had never happened. On
the contrary, the fact that the remainder might vest in pos-
session or enjoyment either on a contingent determination
or on the certain expiration of the particular estate, would,
in many cases, only serve to render such remainder more
certain of taking effect in possession or enjoyment; inas-
much as if the contingency is likely to happen before the
certain expiration, the remainder would be less likely to
have terminated before the particular estate, and conse-
quently would be all the more certain of taking effect in
possession or enjoyment. Thus, if land be limited to »/l.,
during widowhood ; or to ./?. for life, if she continue unmar-
ried ; remainder after the death or marriage of./?., to JB. for
(a) See Fearne, 19.
I. 5. iii.] OF EXECUTORY INTERESTS. [§1S4— 1S7. [ 64 ]
life, this is a vested remainder, and more certain of vesting
in possession or enjoyment, than if the Umitation had been
to »/i. for hfc, remainder to B. for Ufa ; because j^. may
marry, and />. may Uve till the contingent determination of [ C5 ]
the particular estate consequent thereon, that is, till after the
marriage of »/i., but may die before the time at which the
particular estate is sure to terminate, tiiat is, before the death
of •/?., which may not occur till many years afterwards. A
vested remainder, then, though it may be limited to take
effect, or capable of taking effect, in possession or enjoy-
ment, as well on a contingency as on a certainty; yet, in
the words of the dofmition, it does strictly depend on no See § 175.
other uncertainty than that of its enduring beyond the pre-
ceding interests.
SECTION THE THIRD.
The several kinds of Contingent Remainders defined^
luith Observations thereon.
The learned and profound author of the foregoing Trea- Fourkindsof
tise on Contingent Remainders, has accurately divided contingent
and defined them, and has distributed them into four remainders,
classes: —
184 I. "Where the remainder depends entirely on Definition of
a contingent determination of the preceding es- the first kind
tate itself: as if ./?. makes a feoffment to the use of B. till of contingent
C. returns from Rome, and after such return of C, then to remainders;
remain over in fee."(«)
185 II. "Where the contingency on which the re- — of the
mainder is to take effect, is independent of the dc- second kind;
termination of the preceding estate :"(A) "as if a lease be
made to ./?. for life, remainder to B. for life, and if B. die be-
fore Ji. remainder to C. for life."(c)
186 III. "^V^lere a remainder is limited to take ef- — oftho
feet on an event, which, though sure to happen third kind.
some time or other, yet may not happen till after the deter-
mination of the particular estate : as if a lease be made to
J. S. for life, and after the death of J. D., the lands to re-
main over to another in fee."(c/)
187 IV. "Where a remainder is limited to a person
not ascertained, or not in being, at the time when
such limitation is made :" as if a lease be made to one for [ 66 ]
life, remainder to the right heirs o{ J. S.,{e) who is living;
or remainder to the first son of B., who has no son then
born ; 'or if an estate be limited to two for life, remainder to
the survivor of them in fee.(/)
(a) Fearne, 5. (6) Fearne, 5.
(c) Fearne, 7. {d) Fearne, 8.
(e) Fearne, 9. (/) Fearne, 9.
[ C6 ] I. 5. iii.] AN ORIGINAL VIEW [§187a— 191.
Remarks But it may here be observed, that althoiip^h it lS7a
on a devise be thought tliat a devise to two, and tlie survivor
to two, of them, and the heirs of such survivor, gives them a joint
and thesur- estate for life only, with a contingent remainder and fee to
vivor,andfhe (|jg survivor; ^yet, notwithstanding the case of Vick v.
heirs of such j?chvards, 3 P. W. 372, wliere such a devise is in trust to
survivor. g^j]^ ^^ upon any trust whicli renders it necessary that the
devisees in trust sliould have the fee, they will be construed
to take the fee, even in a court of ]aw.(i,'-) For, though a
court of law cannot take cognizance of a trust, as such ; yet,
'' it has frequently taken notice of the existence of the object
or purpose for wiiich a devise was made, with the view of
determining the quantity of interest which the testator in-
tended the devisees to take. (A) The Court, in such cases,
, has taken notice of the expression of the object or purpose
as an indication of intention, though not as a trust.
All the kinds It must be particularly observed, that, in the 188
of contingent first class, the remainder depends entirely on a
remainders contingent determination of the preceding estate : for it has
strictly de- been shown, that a 'remainder may be limited on a contin-
pond on a gent determination of the particular estate, and yet be
contingency yested, so long as it is also capable of taking eifect in posses-
irrespcctive g^^j-^ qj-^ jj-,g certain expiration of that estate, without regard
of their own j^ ^^^ collateral contingency. (z) In the second and fourth
duration. classes of contingent remainders, the remainder may be
limited on the certain expiration of such estate ; but yet it is
contingent in respect to the person of the grantee, or in re-
gard to some collateral events constituting a condition pre-
cedent which must be fulfilled before the remainder would
[ G7 J be capable of taking eflect in possession or enjoy-
ment. And though, in the third class, the event, 189
when viewed by itself, is not contingent, because
it must happen some time or other, yet the remainder does
not depend on the mere occurrence of that event irrespective
of any particular time, but on the fact of its occurring be-
fore the expiration of the preceding estate, which
is strictly a contingency. And hence all the kinds 190
of contingent remainders, even where they are
limited on the certain expiration of the particular estate,
See § 17G. do, according to the foregoing definition, strictly depend on
a contingency irrespective of their own duration.
Theymayall The "^several kinds may all be combined in the 191
be combined same limitation, as in the case of " a limitation to
in the same «^., till B. returns from Rome, and after the return of B.
limitation. and C. from Rome, and the death of D., to the sons of e/^.,
(j?-) See Fearne, 557 — 559, and Ru tier's note (c) to p. 358.
(h) See the author's note (1) to Fearne, 22G.
(i) Fearne, 19 ; and Lord Vaux''s Case, Cro. Til. 269, as there slated.
I. 5. iii.] OF EXECUTORY INTERESTS. [§192— 1.05. [ G7 ]
ill tail male, who shall first or alone attain the age of 21
ycars."(/f)
192 A reniaiiiLJer after an estate tail may seem to be Rcmnintlors
a contingent remaiiidnr of the first kind, lint a after estates
failure of issue, though it may not happen till a very distant tail,
period, and though it is entirely uncertain when it will hap-
pen, is considered certain to happen some time or
193 other. And hence a remainder limited on an es-
tate tail, without reference to a failure of issue at
any particular time, and without requiring the concurrence
of any collateral contingency, does not fall within the defi-
nition of, and tlierefore is not an exception from, the first
kind of contingent remainders, but is strictly and
194 properly a vested remainder. But 'if an interest
is limited to take efl'ect on the regular expiration
of an estate tail by reason of a failure of issue at a particular
time, as, fur instance, at the death of the tenant in tail, such
interest is a contingent remainder.(/)
195 Every kind of interest wliich is a contingent re- A contingont
mainder in relation to the preceding estate, may be- [ CS ]
come a vested remainder in relation to that estate, except tiie remainder
first of the four kinds of contingent remainders. For in the may become
three last kinds, the event on which the remainder depended, a vested re-
being unconnected with the preceding estate, may happen mainder.
during the continuation of that estate, so as to remove the
contingent character of the remainder dependent thereon,
and convert it into a vested remainder. But, in the first
kind, as the event forms the limit of the preceding estate
itself, no sooner does that event happen, than the preceding
estate ceases, and the interest which was to take eflect on
such event, immediately becomes an estate in possession, or
in enjoyment, or both in possession and enjoyment.
(k) Fearnc, 9, note (g).
(l) See Fcarne, 7, note (of) ; and Driver d. Edgar v. Edgar, Cowp. Rep.
379 ; and Fountain v. Gooch; as stated and commented on, Fearne, 42G — 428.
PART 11.
RULES AND PRINCIPLES FOR DISTINGUISHING CERTAIN
CASES OF ONE KIND OF LIMITATION CREATING AN
INTEREST, FROM ANOTHER KIND TO WHICH THEY
MAY APPEAR TO BELONG.
Vol. II.— 8
[ 71 ]
CHAPTER THE FIRST.
OF thp: constiujing a limitation to ]5K a remainder
RATHER THAN AN EXECUTORY LIMITATION NOT BY WAY
.OF REMAINDER.
196 "It is a well-known rnle, that a limitation shall, The general
if possible, be construed to be a remainder, rather rule, as com-
197 than an executory devise. (r/) Or, to express the 'ponlystated.
rule more precisely, and in its true extent, a limi- '^'''^ v 674-5.
talion, whether by deed or devise, shall, if it possibly can The general
consistently with other rules of law, be construed to be a re- rule, as more
mainder rather than an executory limitation not by way of ^^^"''^^^''y
remainder. ^^=^'^^-
198 •'The reason which is usnally(/?») and justly as- Reason
signed for this rule is, that an executory interest, usually as-
iiot by way of remainder, unless it is engrafted on an estate signed for
tail, cannot be barred; and, consequently, there is a ten- ^^^^ same,
dency in such interests, to a perpetuity, which is contrary to
the policy of the law.
199 It may be added, however, that it may perhaps An addition-
have been originally adopted, partly at least, for al reason.
another and more general reason, whicli would seem to
alfect executory interests engrafted on an estate tail, as well
as those engrafted on other estates, though the application
of that reason has ceased since the Statute of Uses. Before
that statute, executory interests which were not by way of re- See § 159,
inainder, or by way of augmentative or diminuent limitation, [ 72 ]
could only be limited by way of use or devise; and they 1''57, 147,
were mere trusts, which could only be enforced in equity; r-'7a, 149a.
and therefore it is not improbable that the Courts, for this
reason, as well as for the preceding, may have inclined to-
wards construing a limitation to be a remainder, rather than
an executory interest not by way of remainder.
(a) Fearne, 386, 395 ; and Purcfoy v. Rogers, 2 Saund. 380 ; Walter v.
Drew, Com. Rep. 372; Wealthy v. nosvillc. Rep. K. B. temp. Ilardw. 258;
Carirardine v. Carxrardine ; Doc d. Mussel v. Morgan, 3 Durn. & East, 376 ;
Doe d. Brou-ne v. Holme, 3 Wils. 237 ; and Goodtitle v. Billington, Dougl.
Rep. 725, or 735 3d. ed.; as cited, Fearne, 386—394. Spalding v. Spald-
ing, Cro. Car. 185 ; as stated, Fearne, 420.
(h) Sec Lord Eldon's obscrvalions in Doc d. Barrtjield v. Wetlon, 2 Bus. »S.:
Pui. 327.
[ 73 J II. 2. 1.]
AN ORIGINAL VIEW [§200—205.
CHAPTER THE SECOND.
OF THE CONSTRUING AN INTEREST TO BE VESTED, RATHER
TUAN CONTINGENT.
The general
rule, as com-
monlystatetl.
The general
rule, as more
precisely
stated.
Reasons
thereof;
namely,
1. Destruc-
tibility of
contingent
interests.
2. Abuse of
the property
by the heir
at law in the
interim.
[ 74 ]
3. Unsettled
state of the
family whose
interest is
continQ-ent.
SECTION THE FIRST.
The Rule stated and the Reasons thereof explained.
It is a well-known general rule, that an interest 200
shall be construed to be vested, rather than con-
tingent. Or, to express the rnle more precisely, 201
that, in doubtful cases, an interest shall, if it possi-
bly can consistently with other rules of law, be construed to
be vested in the first instance, rather than contingent ; but, if
it cannot be construed as vested in the first instance, that at
least it shall be construed to become vested as early as pos-
sible.
The following reasons may be assigned for this 202
rule : —
1. A contingent interest is generally more liable 203
to be destroyed than one that is vested ; and it is
to be presumed, that a testator intends that species of limi-
tation which will be most likely to secure the accomplish-
ment of his plans.
2. " Testators that create contingent estates," 204
observes Lord Chief Justice Best(r/), '• often forget
to make any provision for the preservation of their estates,
and for the disposition of the rents and profits in the inter-
mediate period between their deaths and the vesting of their
estates. In such cases the estates descend to the heirs, who,
knowing that they are to enjoy them only for a short period,
and that they have obtained the possession of them from the
inattention of and not from the bounty of the testator, or
from the mistake of the professional man who drew the will,
will make the most they can of them, during the time that
they remain heirs, regardless of any injury that the estates
may suffer from their conduct."
3. " The rights of the different members of fami- 205
lies not being ascertained while estates remain con-
tingent, such families continue in an unsettled state which
is often productive of inconvenience, and sometimes of inj ury
to them."
(o) In Duffi,eld v. Duffield, 1 Dow. & Clark, 311, 312.
II. 2. ii.J OF EXECUTORY INTERESTS. [§20G— 210. [ 71 J
20G 4. " If tlio j)arents attaining a certain age, be a 4, Want of
condition precedent to the vesting estates, by the provision for
death of their parents before they are of that age, children children of
lose estates which were intended for them, and which their parents dy-
relation to the testators may give them the strongest claim ingunderago
to." of 21, to
207 " But," (adds the learned Jndge(6), as to the last- ^^hich vest-
mentioned reason for construing a devise contin- '"o '^ post-
gent,) " is it wise to encourage the marriage of infants, by P^Ji^cd.
making a provision for the children, however improvident, ^ce^ 94,748.
and however much in opposition to the wislies of their Weight of
guardians, such marriages may be contracted ? The uncer- this reason
tainty of a provision for a family may occasion a pause, '^^^y '^'^
before the most important step in life be taken, which can- doubted.
not be attended with lasting inconvenience, and may pre-
vent lasting misery. Children will seldom suffer from estates
remaining contingent until their parents attain the age of 21,
as few to whom such estates are given will have legitimate
children before they are of age." ^
20s 5. In other cases, where the interest is contin- '"''^"'^ ^'
gent on account of the person, and where, as we P|°^'^"^'\ 'o'"
1 11 1 r^ .1 • . .. • .1 . • children 111
shall see hereaiter, the mtcrest is consequently untransmis- .1
oilier ca^cs
sible to the representatives of the person, in the event of his ^y^gj-g ti,„
death before the condition is fulfilled ; the same reason interest is
applies, and with more force, because not counterbalanced contintrcnt
by the objections urged by the learned Judge against con- on account of
struing an interest to be vested, which is apparently made the person.
contingent upon the attainment of the age of 21. See §94,748.
209 6. Where the vesting is apparently suspended q Want of
till the attainment of a certain age, and there is no maintenance
disposition of the interim income, and no provision for the ibr the per-
maintcnance of the person interested ; if the interest is held sons thcm-
to be contingent, he may be entirely left without the means selves, in cer-
of being educated and maintained, or without the means of [ "5 ]
being educated and maintained in a manner suitable to the tain cases, to
fortune which in all probability he will afterwards possess, whom con-
§ 209a. 7. The law favours the alienation of property; tingent inter-
whereas the contingent quality of an interest renders such ^^^^ •'^'"c
interest incapable of being directly transferred by deed, or g'^'cn.
even by a fine or recovery. (See § 754.)
SECTION THE SECOND.
The vQppUcation of the Rule to Limit at ions in favour of
a j)erson of a given Character.
210 I. Wheke a testator, after devising particular ^Vhcnnnul-
cstates, makes an ultimate devise to his heir at law, tiinate linii-
(ft) lb. 312, 313.
[75] II. 2. ii.] AN ORIGINAL VIEW [§211,212.
tation in such ultimate devise docs uot create a coutingcut remainder
favour of an in favour of a person who shall answer the description of
lieircreatesa heir at law on the expiration of the particular estates, but
vested inter- creates a vested interest in favour of the person who is the
^^'- heir at law of the testator at the time of liis death, even
though the person to whom the first particular estate is de-
vised, is the testator's eldest son and heir at law, and though
the mere form of the devise may seem clearly to mdicate a
contrary intent.
Reason for The reason of this is, not only that the law leans 211
tlic rule. in favour of vesting, but also because the word
" heir," unqualified by any adjective, is a technical word,
denoting the person on whom the law casts the inheritance
on the ancesioi'''s decease.
O'Keefc v. A testator devised to his sons for life, and to their first and
Jcncs, 13 other sons, in tail ; and, in default of such issue, then to iiis
Ves. 412. iicxt heir at law. Sir W. Grant, M. R., held that this was
not a contingent remainder to such person as should be the
heir at law of the devisor at the time of faihu'e of issue, but
that the eldest son took the reversion.
Doc c1, Pil- And where a testator devised to a younger son and others,
kingfon v. for their lives ; and, after their decease, to the male heir at
Spralt, 5 law of him the testator, his heirs and assigns for ever. It
Bur. & Adol. was held, that the fee vested, at the testator's death, in the
'''^l' person who was then his male heir at law, and did not re-
main contingent until the determination of the life estates,
and vest in the person who, upon such determination, sus-
tained the character of his male heir at law. The grounds
of this decision were, that the law favours the vesting of
estates, and that there was nothing to show that the testa-
tor did not mean, by the words " male heir at law," what
[ 76 ] the law would strictly speaking intend heir male at law at
the time of his death — nothing, at least, beyond vvliat was
barely sufficient to raise a conjecture to the contrary.
When an ul- II. But where a person devises to the heir of a 212
timate limi- person previously deceased (or, it is conceived, to
tation in his own heir), and it appears that he meant the person who
favour of an should answer that description on the expiration of the par-
heir creates licular estates; the ultimate limitation to such heir, will
a contingent create a contingent remainder accordingly,
interest. George, Earl of Orford, in a conveyance to uses, reciting,
Marqvis ^1,^^ [,e ^^g desirous that certain estates, derived from his
Cholmon- mother's family, should remain in the family of Samuel
deley v. Rolle, (deceased,) his maternal grandfather, in consideration
j^ord ^""- of his natural love and affection for his relations, the heirs
Walk 1 ' ^^ Samuel Rolle, and to the intent that the said estates might
continue in the family and blood of his late mother, on the
side of her father, settled them to the use of himself for life,
remainder to the heirs of his body; for default of such issue,
II. 2. ii] OF EXECUTORY INTERESTS. [§212. [70]
as he should appoint; and, for default of appointment, to
the use of the right heirs of Sanriuul Ivolle, with a power of
revocation and new ajjpointment. 'J'he (piestion was, whe-
ther the ultimate limitation designated the right heirs at the
date of the deed, or the right heirs at the determination of
tlic preceding estates, or some existing person other than the
person who actually sustained the character of right heir at
Ihe date of the deed. Sir W. Grant, INI. R., thought that the
words "right heirs" had one settled uniform legal ini[)ort,
according to whicli the Court was bound to consider them
as conferring a vested remainder on the person who was the
right heir of Sanmel Rolle at the time of the execution of
the deed, notwithstanding any manifestation of a contrary in-
tent. (2 .lac. & Walk. 68, 60.) But he directed a case for
the opinion of the Judges of the Court of King's Bencii.
Three of the Judges, namely, Abbott, llolroyd, and Best,
certified in conformity to the opinion of Sir W. Grant, {lb.
2.) But Mr. Justice Bayley gave a contrary opinion, that
the ultimate limitation conferred a contingent remainder on
such person as should be right heir of Samuel Rolle on the
expiration of the preceding estates, {/b. 3.) And Sir Thomas
Plumer, who had succeeded to the ofRceof Masterof the Rolls, [ 77 ]
decided in consonance with the opinion of Mr. Justice Bayley.
It was acknowledged on all hands, that the object of the set-
tlor was to carry the estate to his relations on the mother's
side, on his death without issue: {lb. 77:) and, in fact, as he
was of advanced age, and without issue, and unmarried, at
the time when the deed was executed, that was evidently
his sole object. {lb. 72.) And it was admitted, that if the
words right heirs were referred to the period of the expira-
tion of the preceding estates, according to the opinion of Mr.
Justice Bayley and Sir Thomas Plumer, the whole deed
would then be consistent, intelligible, and operative. {lb. 79.)
If, on the other hand, the interpretation of Sir W. Grant and
the three other judges had been adopted, the whole deed
would have been inexplicable and useless. For, the settlor
being the only son of his mother, who was the only child of
Samuel Rolle, must have known that no person could be the
right heir of Samuel Rolle, so long as he or any of his issue
were living, but he the settlor himself and his issue ; and
the settlor and iiis issue being already provided for by the
preceding limitations, it was, under these circumstances, ut-
terly inconsistent to suppose that they were intended by the
words right heirs of Samuel Rolle, in the ultimate limitation.
And if the estate had vested in the settlor himself under the
ultimate limitation, it would, on his death without issue,
liave passed to his ])alernal uncle, to the entire exclusion of
the Rolle family, {/b. 73, 78.) From these considerations,
it was evident, that the settlor did not intend to confer a
[ 77 ] II. 2. ii.]
AN ORIGINAL VIEW
[§214.
[ 78 ]
Devise to a
person by
any other
description,
denotes a
person sus-
taining such
description
at testator's
death.
See § 200-9.
Perry v.
Phelips, 1
Ves. 2.50.
Driver v.
Frank, 3
Mau. & Sol
2.5.
vested remainder on tlic person wlio was right heir when
tlie deed was executed ; and that he did intend to confer a
contingent remainder on the person who was right heir on
his death and faihn"e of issue. And there was no just reason
why this intention should not be carried into elfect. "Lay-
ing aside inference and presumption, the words right heirs of
S. R. contain a general description of a person standing in
that relation to S. R, at some time or other, but not necessa-
rily at any particular time . . . .As it stands, it is a generic,
not a specific description ; it wants all that can give it par-
ticularity and identity .... Without some addition, there-
fore, to the description, no use can be made of it." {/b. 87,
SS.) " In the absence of any secondary proof of intention
being allbrded to the deed, to supply the meaning thus left
imperfect, the law steps in to supply the meaning, by pre-
sumption, in favour of vesting in an existing character." But
this is only when the grantor himself has been totally silent
(lb. SI); for, "it Is contrary to all principle, that presump-
tion should be allowed to operate in opposition to direct
proof," (lb. 89.) " Is the Court to persevere in adherence
to a supposition, when it is, in the particular case, proved to
be ill-founded ? {lb. 82.)
III. Where a testator devises to a person by 214
any other description denoting a person sustaining
a particular character, (such as youngest or only surviving
son, or a child other than and except the first or eldest or
an only son, or the nearest in blood ;) the devise creates a
vested interest in favour of the person answering that de-
scription at the death of the testator. This is in accordance
with the general rule, that an interest shall, if possible, be
construed to be vested, rather than contingent.
A testator gave personal estate, and rents and profits of
real estate, in trust to accumulate until the youngest or only
surviving son of the trustee should attain 21, and then to be
laid out in land, and conveyed, with other real estate, to
such son. J. T. L., the only surviving son, attained 21,
and died in his father's lifetime. The Lord Chancellor held,
that the vesting of the property was not suspended until the
death of the father, but that it vested in J. T. L. by execu-
tory devise, subject to be devested by the birth of another
son of the trustee.
From this case, it might appear that the interest does not
vest indofeasibly, but subject to be devested in case of the
given description ceasing to belong to the party, and attach-
ing in another person. But this doctrine was overruled by
subsequent decisions : Thus, a testatrix devised all her real
estates to the use of B. F., for life ; and from and imme-
diately after his decease, then, to the use of the second, third,
fourth, and all and every other the son and sons of B. F.
II. 2. ii.] OF EXECUTORY INTERESTS. [§214.^ [ 78 ]
(except the first or eldest son,) severally, successively, atid
in remainder, one after another, and of ihe several and re-
spective heirs male of the body and bodies of every snch
son and sons (except the first or eldest son;) and for default
of such issue, then she devised to the use of F. S., youngest
son of IV. S., &c. B. F. and f^F. S. were the husbands of
the testatrix's nieces ; and B. F. was tenant in tail in pos- [ 79 ]
session of large landed estates ; and IV. S. was tenant in fee
of some part, and tenant for life, with remainder to his
eldest son in tail, of other part, of estates of considerable
value. B. F. had no children at the date of the will, fV S.
had two, if not more. Lord Ellenborough, C. J., was of
opinion that the remainder to the sons of B. F. was a con-
tingent remainder to such son of B. F. as should be the
second son of B. F. at the death of B. F.\ or a vested re-
mainder in the second or other son of B. F., liable to be de-
vested by his becoming the first or eldest, by the death of
his elder brother in the lifetime of B. F. : (3 Mau. & Sel.
54, 55 :) because the cases fully established, that the first
born son is synonymous with eldest, and that eldest means
the first son capable of taking under that denomination at
the time to which the will refers, which there was at the
death of B. F., the tenant for life {lb. 61 ;) and because it
was morally certain, that the intention was, to erect a new
family, with that view, to prevent the union of the estates of
B. F.'s family, or of fV. S.'s family, with those devised by
the will {lb. 50 — 53) ; and such being the case, the Court
was not warranted in making another will for the testatrix,
which it would be indirectly but in effect completely doing,
if it adopted such a construction as excluded inconveniences
which the testatrix did not contemplate, and sacrificed ob-
jects which she did. But, it was held by the three other
Judges, Dampier, Bayley, and Le Blanc, that it was a
vested indefeasible remainder in the second or other son of
B. F. who should be born living an elder son ; and there-
fore, as B. F. had four sons, of whom the second and third
and the second and fourth respectively were in existence at
the same time, but all, except the fourth, died in the lifetime
of B. F. without issue, they held that the surviving son was
entitled. And the grounds of their decision were, in sub-
stance, these : That the prevention of an union of the family
estates was only the most probable of several possible mo-
tives. That the construction which would prevent such
union, would prevent any family settlement of the estate
during ^'s life. That if this construction were adopted,
and the eldest sou had died in B. F.'s lifetime, leaving is-
sue ; the second son would become an eldest son, without [ SO ]
obtaining the eldest sou's estate, and yet would thereby be
excluded from the estate devised to the second son. Or, if
Vol. II.— 9
[ 80 ] II. 2. ii.] AN ORIGINAL VIEW , [§214.
tlie second son died, leaving issue, the provision intended
for a second son's family, would go to the third son, or to
another family. That the holding the remainder vested in
B. F.'s second son as soon as he had two sons together in
esse, would satisfy every word in the will, and, as far as
they could be certain, every motive of the testatrix : for, as
she' had given the remainder to F. S. by name, and there-
fore, had given such remainder absolutely to him whom
she found a younger son of i^. S., without guarding against
the event of his becoming an eldest son ; so it might fairly
be inferred, that she meant to give the prior remainder abso-
lutely to him who should first become the second son of
B. F. And that this construction would fall in with the
axiom, that no remainder is to be deemed contingent, which
can be deemed vested; whereas the construing the remain-
der contingent, would contravene that axiom : and the cori-
struing it vested, but liable to be devested, would render it
necessary to supply a whole clause, to give it a complete
effect as a conditional limitation. The decision was af-
firmed by the Court of Exchequer Chamber ; Richards, L.
C. B., Gibbs, L. C. J., Dallas, J., and Borough, J., agreeing
with the majority of the Judges in the Court of King's
Bench; and Graham, B., and Wood, B., agreeing with
Lord EUenborough. Wood, B., said, that when the testa-
trix excluded the first, she meant the first born ; when
she excluded the eldest, she meant to exclude him who
should answer the description of first or eldest at the time of
B. F.'s death; the word eldest being a term which shifts in
its application, according to the changes which may take
place in a family. {lb. 483, 482 ; *S'. C. 8 Taunt. 468. See §
201, 202.)
Observations The primary question in this case, was, To what time
on Z>rirer V. did the words eldest and second refer; or, at what period
Frank. was a son to answer the character of eldest son, in order to
be excluded, or of second son, in order to entitle him to
take ? Now, the words, in themselves, seem entirely ambigu-
ous in this respect: they might mean eldest and second at
the time of the birth of such second son, an elder son being
then in esse; or they might mean eldest and second at the
[ 81 ] time of the death of B. F. How then was the ambiguity
to be removed? Was it by calling in the aid of an ac-
See§ 200-1. knowledged rule of construction, which requires that a re-
mainder should be construed vested, rather than contin-
gent; and by which the apparent object of the testatrix
would be accomplished in certain events, though not in
others, and without involving any of the mischiefs which
might result from a contrary construction? Or, was the am-
biguity to be removed, by resorting to an inference, not only
that the apparent object was to a certainty the actual ob-
II. 2. ii.] OF EXECUTORY INTERESTS. [§214. [ 81 ]
ject ; but also, that it was the intent of the testatrix that
such object should be accomplished, not merely in certain
events, but in all other events, even in those in which the
consequences that would follow, and the analogous ulterior
limitation to F. S., clearly sliowed that it was not intended
to be carried into effect? It must surely be evident, that
the ambiguity ought to be removed in the former way, or,
in other words, that the judgment of the Courts of King's
Bench and Exchequer Chamber was right.
A2ain,a testator devised his Stanton Drew estate to G. j9., Adams v.
for liTe ; remainder to G. A. A., first son of G. Ji., for life ; Bush, 6
remainder, in strict settlement, to the issue of G. A. A.\ re- Bing. New
mainder to J. P. A., second son of G. A., for life, remainder Cases, 164.
to the issue of J. P. A., in strict settlement; with similar
remainders to the other sons of G. A. and their issue. And
he devised a moiety of his share in the manor of Timsbury
to G. A., for life; remainder to the wife of G. A., for life;
remainder to the child and children of G. A., other than and
except an eldest or only son, in fee ; and if their should be
no such child or children, other than an elder or only son,
or being such, all should die under 21, then, to such persons
as should become entitled to the proceeds of the Hoxton
Manor Farm. And he devised the Norton Manor Farm to
E. L., for life, and her children in tail ; and, in default of
issue, tlie estate was to be sold, and the money divided
among the children of G. A., other than and except an
elder or only son. G. P. A. was the second son of G. A.
at the testator's death ; but at the death of G. A. he was
the only child. It was held, however, that he took an
estate in fee on his father's death.
The principle of avoiding mere conjecture as to the inten- [ 82 ]
tion of preventing an union of estates, is also illustrated by
a case where a testator devised to trustees and their heirs, in Stanley v.
trust to receive the rents until T. M., the second son of T. Stanley, 16
S. M., should attain 21; and immediately after T. M Ves. 491.
should have attained 21, to convey to the use of T. M., for
hfe ; remainder to trustees to preserve contingent remain-
ders; remainder to his first and other sons, in tail male.
And, in default of such issue, or in case of the death of T.
M. before 21, upon similar trusts for other younger sons of
T. S. M. And there was a proviso, that in case any younge
son should become possessed of the estate at P., then in the
possession of T. S. M, the devise or limitation directed
should cease and become void or not take effect, and the
persons next in remainder under the said limitations, should
thereupon become entitled to the possession of the property
devised by the testator. Sir W. Grant, M. R., held, that, on See § 11 c,
the authority of Borasfo)i's Case and many others, T. M. inf., 159,
took a vested remainder for life, after an estate in tiie trus- 50, 52, 58,
759.
L S2 ] II. 2. iii.]
AN ORIGINAL VIEW [§215—217.
Stert V.
Platell, 5
Bing. New
[ 83]
tees for so many years as his minority might last (16 Ves.
506 ;) and that on the authority of Doe dem. Heneage v.
Heneage, 4 T. R. 13, T. 7l/.'s only son, the first tenant iti
tail, became entitled under the proviso, notwithstanding the
descent of the estate at P. on his father T. M., and even
though, at that time, T. M. had no son. For the testator
had not said he meant to prevent the union of the two es-
tates, as long as the law would permit ; and the estate to
trustees was the next ; and they were capable of possession,
and under the protection of their estate, the contingent re-
mainders to the first and other sons of T. M. were to be
considered as subsisting remainders, to prevent the second
devisee for life answering the description of next in remain-
der, {lb. 509.)
In another case, a testator devised to jl. IT., for life ; re-
mainder to trustees to preserve &c. ; remainder to B. H.,
- , son of v^. H., for lil'e ; remainder to trustees to preserve &c.;
Cases, 434. remainder to the first and other sons of R. H., in tail male ;
with similar remainders to A. D. //., another son of ^. H.,
and to his first and other sons. The will then proceeded
thus: <' and, in default of such issue, 1 devise the same pre-
mises unto such person, bearing the surname oi H., as shall
be the male relation nearest in blood to the said R. H., and
to his heirs for ever." It was held that the interest under
the ultimate limitation, vested at the death of the testator,
in the person then answering that description ; no particu-
lar time being pointed out, and the general rule requiring
See § 200-1. that a remainder should be construed to be vested, rather
than contingent.
SECTION THE THIRD.
The Application of the Rule to Legacies and Portions
apparently depending on Surviving Parents, as a Con-
dition Precedent.
General Principles.
When the The leaning in favour of vesting is of course 215
leaning in peculiarly strong where the opposite construction
favour of Avould exclude objects who have a strong claim upon the
vesting is author of the instrument, or would exclude persons without
peculiarly any apparent reason, or for reasons which are apparently-
strong, absurd.
It is so where This is the case where the interest in a portion 216
a portion or or legacy \s primd facie made to depend upon the
legacysoems person interested surviving his parents.
to depend on "A gift by will, however," as a learned Judge(^/) 217
survivingpa- has justly observed, "differs from tlie case of a
rents.
(a) Sir L. Shadwell, V. C, in Tucker v. Harris, 5 Sim. 543.
II. 2. iii.] OF EXECUTORY INTERESTS. [§218—220. [ S3 J
trust declared by a settlement ; because, in the former, there See § 241-
is no supposition [founded in the nature and design of the 244.
instrument, or on any valuable consideration,] that any per- Distinction
sons can be intended to take, except those who are described between a
as takers." g'^'t by will
218 Still, even in the case of a will, there is a strong ^nd a trust
antecedent improbability that it should really be '^y mettle-
intended that the survivorship should be ret[uisite to the '"t^nt.
vesting, so that though the party may have attained to ma- Leaning
jority, and may in fact have married and founded a family, against con-
yet that he should be excluded from the testator's bounty, struing sur-
nierely by the accidental circumstance of his dying in the vivorship a
lifetime of his parents or one of them. This, indeed, is a pro-requisite,
circumstance which, so far from constituting any reason for L ^"^ J
his exclusion, may form a peculiarly cogent reason why his i^ strong,
estate should the rather be increased by the testator's bounty; ^""'^^ •" *"^
for his premature decease may create a strong necessity for caseoiawi I,
some additional means of support for the family he may
have left behind him.
219 But in the case of a marriage settlement, there But much
is not only this strong antecedent improbability, stronger in
but there is also a violent presumption against the constru- the case of a
ing it to be necessary for the children to survive their parents, marriageset-
arising from the nature and design of the instrument, as one tlcment.
which was primd facie intended to make a provision for a
family, and from the character of the objects, who are not
volunteers, as in the case of a will, but purchasers for valu-
able consideration. And hence the leaning in favour of
vesting without regard to this survivorship, is exceedingly
strong in cases of portions under marriage settlements.
Thus—
Specific Rules.
220 I. Where, according to the terms of a marriage Where one
settlement, the raising of portions is made to de- child sur-
pend on the existence of children or a child at the death of vives, and
the parents, or one of them, as the case may be ; and the the words
words import a condition precedent, which not only renders importing
it necessary that there should be children or a child then liv- necessity of
ing, but apparently manitests an intent to confine the gift of ^^'"^''^'"S''^'^^
portions to those children who should be in existence at that construed
time; such words are construed not according to their spirit, ^'^■?'^ .^ ^
but according to the letter; so that if there happens to be a , j- , ,
,.,,,.. ° , . ', , ^ ^'^ who did not
child hvmg at that tmie, the words ot contmgency, even 3^,.^;^^
allowing them to amount to a condition precedent, are ^^ , '
regarded as satisfied; and not only is the child then living "^ *^
entitled to a portion, but also the representatives of those
who died before, provided they lived till the other period to
which the vesting was postponed.
[ 84 ] II. 2. iii.] AN ORIGINAL VIEW [§220.
Jfopev.Lord The trusts of a term, limited by a marriage settlement,
Clifdcn, 6 after a life estate to E. B., the husband, and a term for
Yes. 498. securing a jointure, were declared by the settlement to be,
in case there should be any children living at the decease of
E. B., or afterwards born, except the heir male, then, the
[ 85 ] trustees should raise 5000/. for the portions of all and every
the children, except an eldest or only son, to be paid at 21,
or marriage, which should first happen after the decease of
E. B.: and if any of the younger sons should attain 21, or
any of the daughters should attain 21, or marry, in the life-
time of E. B., then, the portions should be paid witiiin three
months after the decease of E. B. , unless E. B. should direct
the same to be raised in his life. Provided that, if any of
the children entitled to the portions, siiould die, or become
an eldest or only son, before his, her, or their portions, should
become payable, the portions should go to the survivors.
Provided also, that in case all the children entitled to por-
tions, should die before any of their portions should be pay-
able, then, the said sum, or so much thereof as should not
be then raised, should not be raised, but should cease.
Tiiere were four children; of whom M. married, and died
in the lifetime of E. B., leaving three sons. Lord Eldon, C,
held, that M. took a vested interest. His Lordship observed,
that the Courts, feeling it not to be a probable intention in a
parent, that, though his child had attained 21, or come to
marriageable years, and formed a family, yet, because that
child dies in the parent's life, the descendants should have
nothing, have thought themselves at liberty to manage the
construction of the words, as they would not in the case of
a stranger (6 Ves. 507); and that the cases authorized him
to struggle with language for that purpose. (lb. 509.) His
Lordship added, in effect, that if the first words constituted
a condition precedent, that condition had been fulfilled, for
there were some children living at the death of the father;
and even if there had not been any, still the case of Wood-
cock V. The Duke of Dorset would have been a direct answer
to that objection. {lb. 510.)
King V. In another case, there was a trust for raising portions, in
Hake, 9ycs. case it should happen that the husband and wife should, at
438. the death of the survivor of them, leave any child or chil-
dren. Two sons survived both parents. Two others at-
tained 21, but died in the lifetime of the surviving parent.
Sir W. Grant, M. R., held, that they took vested interests;
inasmuch as the contingency had happened on which the
[ 86 ] trust was to arise ; and in that part of the clause which pro-
vided for the case of "more than one child who should live
to attain 21," the word "child " was totally unqualified by
any expression, restraining it to children who should survive
their parents.
II. 2. lii.] OF EXECUTORY INTERESTS. [§221. [ 80 ]
So, where a marriage settlement contained the following HoiPgravev.
passage: "and from and after the decease of the snrvivor Cartuj^'SW
of them the said P. IV. and E., his wife, in case there shall «^^ 1^- 'i'^-
be any child or children of their two bodies living, who
shall be of the age of 21, or who shall after arrive at such
age, born in the lifetime of the said P. IV., or after his de-
cease ; then, upon trust, that they the said trustees shall
transfer 20,000/. unto such child or children of the said P.
W. and E. his wife, at their respective ages of 21 years, in
such proportions," &c. There were two children ; a son,
who survived his flither, but died in the lifetime of his mo-
ther, after having attained 21; and a daughter, who sur-
vived both parents, and attained 21. Sir W. Grant, M. R.,
held, that the son was entitled to the sums which the mother
in her lifetime appointed to him. He observed, that the
condition in the first part of the clause was fulfilled, as there
was a child living, who had attained 21, at the death of the
survivor of both parents. And, as to the other part of the
clause, the elfect of it depended entirely upon the word
"such," which, in other passages, was (as he considered) so
absurdly and unmeaningly applied, that it was evident that
the parties had no definite notion of the effect of its intro-
duction. (3 V. &. B. 88, 89.) And lie remarked, that the
condition of survivorship was confined to a survivorship of
the wife in a preceding passage, and entirely dropped in
another. {lb. 91.)
221 II. And if, in the case supposed, there does not ^J'.'j^'*^ "°
happen to be children or a child living at the death ^^^"^ ^^'
of the parents, or one of them, as the case may be ; yet, if J^'^'^j^ -^^
there is a gift of portions to the children generally, and not p^^l^j^j ^^^
merely to such as sliould be then living ; or if, in the clause [.ggyit ° fgur-
of cesser, or in the limitation over, or in any other part of ^j^,j^^ ^^^
the settlement, there is any thing which would in itself ren- ponstnied so
der it in the slightest degree doubtful, whether it was really ^^ to admit
intended to confine the gift of portions to surviving children; ,hose who
in such cases the words of contingency are not construed as (jij not sur-
a condition precedent, but as merely expressive of one state [ 87 ]
of circumstances in which they are to be raised, without im- vivc.
plying that they are not to be raised in any other. Sec § 13.
Estates were conveyed by marriage settlement to trustees Powis v.
and their heirs, in trust, after the decease of the husband, in Burden, 9
case he sliould leave one or more daughter or daughters, Yes. 428.
younger son or sons, to raise 12,000/. for the portions or SeealsoPer-
Ibrtunes of such daughter S:c., to be paid according to ap-/«?c/ v. Lord
pointment,and, in detault of appointment, at 21 or marriage. Curzon, 5
And it was provided, that in case the husband should think Mad. 447,
proper that any portion or portions of any such daughter 444.
&c., should be raised and paid during his lifetime, it should
be lawful so to do. Then followed a proviso, that in case
[ S7 ] II. 2. iii.]
AN ORIGINAL VIEW
[§222.
Where no
child sur-
[ S8 ]
vives, and
none are ad'
mitted.
HotchTcin V.
Hvmfrey,
2 Mad. 65.
Whatford V
Moore, 7
Sim. 574;
S. C. 3 M.
& C. 270.
of the death of any of the said daughters &c. before tlieir
portions should become payable, such portions should be
paid to the survivors of such &c.; with a further proviso,
that if there should be no such younger son &c., or all should
die before their portions should become payable, then, no
part should be raised, or if raised, it should be reinvested
in land. There was only one younger child, who attained
21, but died in his father's lifetime: so that the contingency,
on which, according to the express words, the trust was to
arise, did not happen. Lord Eldon, C, upon the authority
of preceding cases, held, that he took a vested interest; ob-
serving, that upon the other construction, if there had been
six younger sons and seven daughters, and twelve had died,
leaving families, those twelve families who had lost their
parents, would have been without any provision, and the
thirteenth child would take what probably was intended to
be shared among all, at the age of 21, or tlie marriage of the
daughters; (9 Ves. 434;) and that if the twelve parts had
been raised and paid under the clause of advancement, yet,
under the words ''such daughter" &c. connected with the
expression ''leave,'' the thirteenth child would have a right
to insist that what had been advanced was to be called
back. {lb. 435.)
III. But if, in the case supposed, there does not 222
happen to be any children or a child then living,
and there is no direct gift to the children generally, but
merely to such as should be then living, and tliere is nothing
to render it in the slightest degree doubtful, whether it was
really intended to confine the gift of portions to surviving
children ; there, no child who does not survive both pa-
rents, or one of them, as the case may be, will be entitled to
a portion.
Where a marriage settlement provided, that in case the
intended husband and wife should have a daughter or
daughters, or younger sons or son, that should be living at
the time of the decease of the survivor of them, the trustees
should raise a certain sum for the portions of such daughter
or daughters, or younger son or sons; the children who sur-
vived both parents were alone entitled.
And in another case, Sir L. Shadwell, V. C, held, that
none were intended to take portions under the marriage set-
tlement, except those who should survive both parents ; and
this decision was affirmed by Lord Cottenham, C. And,
indeed, it was a case in which there does not seem to have
been a single expression in the settlement to favour a con-
trary construction.
II. 3. i.J OF EXECUTORY INTERESTS. [§222a— 22 I. [ 88 ]
SECTION THE FOURTH.
The Jlpplicalion of the Rule to subsequent Interests, limit-
ed after Interests depending on a Condition Precedent.
222a "Though the vesting of a preceding interest is
suspended upon a condition precedent, and such
condition, according to the grammatical construction, may-
be fairly regarded as equally extending, hut does not neces-
sarily extend, to a subsequent interest in remainder; it will
not be construed to extend thereto, unless there is some suf-
ficient reason, indcpendenlly of the doubtful grammatical
construction, for thinking that it extends to the subsequent
interest. (a)
CHAPTER THE THIRD. [ 89 J
OF THE CONSTRUING AN INTEREST TO BE ABSOLUTE RATHER
THAN DEFEASIBLE.
SECTION THE FIRST.
%/l general Rule suggested, with the Reasons thereof.
223 It would appear to be a general rule, deducible The rule
from principle, and from actual decisions, though suggested.
not enunciated by authority, that, in doubtful cases, an in-
terest, whether vested or contingent, ought, if possible, to
be construed as absolute or indefeasible, in the first instance, Scc§ 97,98.
rather than as defeasible: but if it cannot be construed to
be an absolute interest in the first instance, that, at all events,
such a construction ought to be put upon the conditional
expressions which render it defeasible, as to confine their
operation to as early a period as may be; so that it may
become an absolute interest as soon as it can fairly be con-
sidered to be so. For,
224 1. This would seem clearly deducible from the Odiousnoss
well-known rule, that conditions are odious, and oCconditions.
shall be construed strictly; a rule which would appear to
apply to those conditions which are termed in a preceding
(a) See Napper v. Sanders, Ihitt. 118, as stated, Fearne, 223, 21 ; Lethuid-
Her V. Tracy, 3 Atk. 774 ; Amb. Rep. 201, as stated, Fearne, 225 ; Jlorlon v.
W/iif faker, 1 D. & K 346, as stated, Fearne, 235.
Vol. II.— 10
[ so ] II. 3. ii.] AN ORIGINAL VIEW [§225—227.
See § 12-22. page mixed conditions, as well as to conditions which are
simply destructive. For, if it applies to conditions subse-
quent which are simply destructive and upon which an
estate is to be defeated, and made to revert to the heir, who
is favoured by the law; it would seem to apply also to those
conditions which are both destructive and creative, and upon
which an estate is to be devested, and a new estate is to
arise in fovour of another person, by way of conditional
See § 14S-9. limitation.
Leanin" in 2. 'I'he person claiming under a prior limitation, 225
favour of pri- and his children, being of course the primary ob-
mary ob- jects of the grantor's or testator's bounty or consideration,
jects. and the persons claiming under the limitation over being
only secondary objects of such bounty or consideration ; it
[ 90 ] is of course reasonable to lean in favour of the primary ob-
jects, by construing their interest to be absolute in the first
instance, or as early as by fair construction it can be consid-
ered to be so, rather than to lean in favour of the secondary
objects, by construing tfio interest of the primary objects to
be defeasible.
Leaning in 3. The law favours the free nncontrolled use 226
favourof free and enjoyment of property, and the power of alien-
enjoyment ation ; whereas the defeasible quality of an interest tends
and aliena- ^lost materially to abridge both.
tion of pro- 'pj^g following case may perhaps be not unaptly cited as
perty. j^ some degree connected with the general principles above
Weaheley d. mentioned. A testator, after giving his eldest daughter five
Knight V. shillings, and five pounds to his second daughter M., gave a
Rvss-, 7 D. leasehold to his youngest daughter ./?.; but if she should die
&s E. 322. without having child or children, then he willed that the
premises should remain to M., and, after her death, to her
children. Ji. had three children, who all died in her life-
time. It was held, that the word " having" did not mean
''leaving;" and consequently that the devise over did not
take effect ; because, otherwise, if ,^. had children who died
in her lifetime, leaving issue, the estate would have gone
from that issue to Mary and her issue; whereas it was the
general intention that the fomily of./?, should be first pro-
vided for. j1. was the favourite daughter of the testator,
the great object of his bounty.
SECTION THE SECOND.
The ^Application of the Rule to Bequests to a Class of
Persons.
Whereanag. ^' Wheke one aggregate sum of money is be- 227
gregate sum queathed to the children of any person collectively,
is given to a as a class, without any limitation over on failure of issue of
person's such person, or "some other clear indication of a contrary
II. 3. ii.] OF EXECUTORY INTERESTS. [§228— 230a. [ 90 ]
intent(«), all the children, as well by a suhse(]nont marriage children, and
as by (be marriage snbsisliiig or in coiitemplatioii at the date there is no
of the will, who are borti at the period when the share or limiiation
shares of any one or more of them ought to be ascertained over on fail-
and paid, are admitted to a participation in the fund. And ure of his is-
it is immaterial whether that period be the death of the tes- sue, or oiher
tator, or the death of a person taking a prior interest in the [ ^1 ]
fund, or the attaiimient of a certain age by the eldest of P^''^'^"'^'''"*
the children, or, in case payment is expressly postponed ^'^''^^'?" °'
till that period, the attainment of a certain age by the young- '"if^^'^o"-
est child.
228 But those children who are born after that period,
are excluded; because it would be highly inconve-
nient if the child or children whose share or shares is or are
ascertained and paid, should be liable to refund a
229 part of the money upon a mere micertainty. Such
a liability would, on the one hand, be a source of
litigation, and often of fruitless litigation, where the
230 children whose shares had been paid, had spent the
money. And, on the other hand, it would so fetter
the possession of the money, where they acted under a sense
of their liability to refund a part, as to render the posses-
sion scarcely more desirable than the mere receipt of the in-
come.
230a 1. In cases where "the period of payment was the
death of the testator.(aft) — A testator gave legacies Hill v.
in trust for such of the children of his daughter, Saj^ah Hill, Chapman, 1
as were then in existence, by name, to be transferred to the Vcs. Jun.
sons at 23, to the daughters at 21 ; provided, that if any of 40J.
his said grandchildren should die before their portions should
be transferable or payable, their portions should belong to
all the children of his said daughter living at their death.
He then gave all the rest and residue of his estate and effects,
whatsoever and wheresoever, in trust for all his grandchil-
dren by his said daughter, to be applied for their benefit as
aforesaid. And afterwards, by a codicil, he gave some an-
nuities for life, and directed that 1000/. siiould be set apart,
after his decease, to pay the same. A child of ^'. H. was
born after the death of the testator, but before the death of
the annuitants. I^ord Thurlow, C, held, that that child took
nothing, either in the residue, exclusive of the 1000/., or in
tiie 1000/., after it had fallen into the residue on the death
of the annuitants. His lordship said, that if he imputed to
the testator a view of providing for all the children, he should
(a) Sec 1 Rop. Leg. 29, &:c.
[aa) See Roberts v. Higman, 1 B, C. C. 532, in note ; Ileathe v. Ileaihe, 2
Alk. 122 ; and Coleman v. Seymour, 2 Yes. Sen. 209 ; referred to 1 Rop. Leg.
34, ed. bv White.
[ 92 ] II. 3. ii.] AN ORIGINAL VIEW [§230b.
contradict a rule which had stood too long to be shaken, but
which, when first raised, went salts a7'bi/rio,hecause the in-
tention might go to all possible children, as in marriage set-
tlements; and to impute to him such a restrained intention,
was rather a forced interpretation, and generally against the
intention at the time. That it would be repugnant to say-
one part of the residue went one way, the other part ano-
ther. That the whole inference which excluded the after-
born child, was, the circumstance of a distribution being ne-
cessary, ex vi tcrminorum, upon the death of the testator,
as admitted by the counsel for that child.
Davidson v. And so, where a testator bequeathed to the children of his
Dallus, 14 brother, 3000/., to be ecjually divided between them; and if
Ves. 576. either of them should die before 21, their share to go to the
survivors. Lord Eldon, C, held that this was an imme-
diate legacy to the children living at the testator's death, in
whom it vested at that time, with a limitation over, if
either of them should die before, 21 to the survivors; and
that the children born after the testator's death were ex-
cluded.
2. In cases where ""the period for payment was 230b
Taylor v. the death of the tenant for life.(/>) — A testator gave
Langford, 2 the interest of the residue to his two sisters, for their lives ;
Ves. Jun. and, after their decease, the principal to be paid to their
118. children, share and sliare alike ; but whichever sister died be-
fore the other, then, the share which was so paid to her, should
he paid to her children, in equal proportions; but, if such
sister so dying should leave no children, then, the interest
and produce to be paid to the survivor, for her life, as afore-
said. One sister died without children ; the other had two
children at the death of the testator, and two others after-
[ 93 ] wards. Lord Loughborough, C, said, that he could not
control the general words by the strange expressions tiiat
followed; and that the property vested in all the children.
Godfrey v. In another case, a testator, after giving several life an-
Z>a»js,HVes. unities, directed, that the first annuity that should drop,
Jun. 43. should devolve upon the eldest child, for life, of ^^. H.; and
he directed, that as the annuities dropped, their amount was
to go to the increase of the annuities of the survivors; and
that when the said annuitants were all dead, the wliole pro-
perty should devolve upon the heirs male of F. F. W. H.
(b) Ellison V. Airey, 1 Ves. Sen. Ill ; Attorney Gen. v. Crispin, 1 B. C.
C. 386 ; Congreve v. Congreve, 1 B. C. C. 530 ; Devisme v. Mello, 1 B. C. C.
537, as stated, 1 Hop. Leg. 48 — 50. Mr. Roper also refers to Graves v, Boyle,
1 Atk. 509 ; llaiighton v. Harrison, 2 Atk. 329 ; Middleton v. Messenger, 5
Ves. 136 ; Fahford v. Hunter, 3. B. C C. 417 ; Ayton v. Ayton, 1 Cox. 327 ;
Paul V. Compton, 8 Ves. 375 ; Tebbs v. Carpenter, 1 Mad. 290 ; Crone v.
Odell, 1 Ball & Beat. 449.
II. 3. ii.J OF EXECUTORY INTERESTS. [§230c. [ 93 ]
had no Ic^iliuiatc child at llic death of the animilaiU who
died iivsC The Master of tlie Rolls held, that an afterhorii
legitimate child was not entitled. Ikit this decision was
grounded upon the plain intention of the testator, that lui-
Icss there were a child of JF. II. at the death of the annui-
tant, the annuity should accrue to the survivors; and that
the heirs of P. F. should take on the deaths of all the annui-
tants, instead of waiting till the death of JF. II, as might be
necessary if the other construction were allowed.
Again ; a testator devised a copyhold estate, in trust to Walker y.
sell and apply the interest of the produce for //. IF, for life; Shore, 15
and, after her decease, to divide the principal among the Ves. 122.
children of T. IF. and li. W. And he bequeathed Bank
stock, reverting to him on the death of M. B., upon trust to
make sale thereof, in case the same should be in his name
at his decease, and if not, as soon as M. B. should die ; and
to apply the money equally among the children of T. VF.
and R. IF. II IF. was dead, but M. B. was living. It
was urged, that the testator intended the same persons to
take both funds; and that the only mode of giving them to
the same persons, was, by giving them to those only who
were born betbre the testator's death, instead of distributing
it upon the deaths of the respective tenants for life. Lord
Eldon, C, admitted that the same persons were intended to
take both funds, yet thought it impossible not to apply to the
fimd to be distributed upon the death of M. B., the rule that
must be applied to the copyhold estate; and that the dis-
tinction which was taken as to the life interest in the Bank
stock not havmg been created by the testator himself, was [ 94 ]
not to be regarded.
230c 3. In cases where '"the attainment of a certain
age has been the period for payment. (c) — A testator Uoste y. ^
gave the residue of his personal estate, in trust to apply the /■'/•a//,3\es.
interest, or a sufficient part thereof, for the maintenance of "-'^•
all the children oi D. H., until they should severally and re-
spectively attain 16, and then to transfer the principal to
them when and as they should attain 16. Lord Lough-
borough, C, held, that those born after the eldest attained
16, were excluded on the ground of convenience.
In another case the period was the attainment of 21 by 2?arrino'/on
the eldest, or marriage, or the death of the child under 21, v. Tristram
leaving issue ; and Lord Eldon, C, said, that the rule of the G Vcs. 3 14.
Court required that all the children should take who come See Bhase
in esse before there is a necessity for determining the share v. Burgh, 2
of any child; that this rule had gone upon an anxiety to Bcav. 221,
provide for as many children as possible with convenience, stated § 313.
(c) Gihnore v. Severn, 1 B. C. C. 582, ed. by Belt ; and Prcscott v. Long, 2
Ves. Jim. 090 ; as stated, 1 Rop. Leg. 41, 42, ed. by White.
[ 94 J II. 3. ii.] AN ORIGINAL VIEW [§231,232.
And therefore he held, tliat children by another husband,
witli whom the party intermarried after the date of the will,
were entitled, though His Lordship said, his private opinion
was, that the testator never thought of her marrying again;
and though, according to that construction, the liniilation
over was too remote.
Whitbread Where a bequest was made in trust to pay to the children
V. Lord St. of ./f., born or to be born, as many as there might be, at 21,
John, 10 or marriage; with a clause of survivorship; and a limita-
Ves. 152. tion over, upon the death of all before 21, or marriage; Lord
Eldon, C, held, that, ex necessitate, those born after the
eldest attained 21, were excluded.
Gilbert v. And where a residue was bequeathed to Ji., and all the
Boorman,\]. other cliildren thereafter to be born of B., at 21 ; Sir W.
Ves. 238. Grant, M. R., made a similar decree.
Claris V. And so where a testator bequeathed a fund in trust for ..^.,
Clarke, 8 for life ; and, after her death, in trust for all and every the
[ 95 ] children of ^. and C. who should attain 21. Sir L. Shad-
Sim. 59. well, V. C, held, that all the children of B. and C. who were
born before the eldest attained 21, though after ./?.'s death,
would be entitled to a share on attaining 21; the learned
Judge observing, that otherwise seven children might be
born in the lifetime of the tenant for life, and then another
might be born and live to attain 21 ; but the seven might
die under that age, and then the only child who attained 21,
would be excluded.
Hughes V. In another case, the period fixed for distribution of real
Hvghes, 14 and personal estate, was, the majority of the youngest grand-
Ves. 256. child; and all who were born before that time, and were then
living, and the children of those who were dead were includ-
ed, according to the express terms of the will.
Whereaspe- II. But '^ where a specific sum is bequeathed to 231
eific sum is each of the children, whether born or to be born,
given to none are excluded. (<^) For, in this case, the reason for ex-
each, eluding some of the class does not arise; because the sum
which each child is to take, being fixed by the testator him-
self, it is never necessary to determine the number who are
to take, in order to ascertain the share or shares of any one
or more of them.
Where there HI. Again, '^if there is a limitation over in de- 232
is a limita- fault of issue of the parent, then even those who
tion over in j^^e born after the period for payment will be admitted, be-
default of cause it is in that case positively certain that the testator
issue of the intended that all should take, however inconvenient such
parent, or ^ construction might be ; since, by the express words of
some other ^j^^ ^^^j. ^j^^ ^^^^ ^^ ^^^j ^^ ^^^j, -^^ default of issue
indication of ' jo
(d) See Diffiia v. Goldsckmidt, 19 Ves. 566.
II. 3. ii.] OF EXECUTORY INTERESTS. [§233,234. [ 95 ]
233 of tlie parent. (e) The children, however, who arc an intent that
born after tliat period, will not be entitled to by- all should
234 gone interest. And the same will be the case in take,
other instances where the testator plainly shows
his intention that all the children should take.
A testator gave his residuary personal estate, upon (rust MilhwNor-
for the children of his two daughters, E. M. and M. A% ris, 5 Vcs.
equally, i)ayablc at 21, or marriage; with a limitation over [ 96 ]
upon lailure of issue oi E. M. and M. N. in their lifetime. 355.
Lord Loughborongh, C, held, that, having regard to the
limitation over, a child who was born after the eldest child
attained 21, was to be admitted, but that such child was not
entitled to claim bygone interest.
In another case, a testator gave real and personal estate Scoitw.Earl
to trustees to accumulate the rents &c.,for twenty years after of Scarbo-
his decease, and, after certain payments, to stand possessed rous^h, 1
of the accumulated fund, in trust for all the children of .^., Beav. 154.
JB. and C, then born, or who should thereafter be born,
during the lifetime of their respective parents, and who, be-
ing sons, should attain 21, or, being daughters, should attain
21 or marry; and whether born or unborn, when any other
of them should attain the age or time atbresaid, and their
respective executors, administrators, or assigns. At the
expiration of the twenty years, there were several children
of ^. who had attained 21, but ^,^. and B. were still living,
In this case, both the accumulation and the vesting were
within the prescribed limits ; the accumulation being con-
fined to 20 years from the testator's death, and the vesting
to a distinct period of 21 years from the expiration of lives
m being. The dithculty, as Lord Langdale, jNI. R., observed,
arose from this: that the will included children to be born
at any time during the lives of their parents, and yet directed
distribution at the end of 20 years from the testator's death,
when the parents were living, and might have more chil-
dren. And His Lordship observed, that had it not been for
the words "during the lifetime of their respective parents,"
he thought it would have followed from the cases cited, that
the words " to be born," would, for convenience, be restrict-
ed to grandchildren to be born before the period of distribu-
tion. That, in the principal case, however, he was of opin-
ion that the children of H., who were living at the end of the
twenty years, took vested interests in their shares, subject to
partial devestment and diminution in the event of other ob-
jects coming into existence ; and that until such devestment
or diminution, the children who had vested interests, were
entitled to the income of the accumulated fund.
(e) See Shepherd v. Ingram, Ambl. 448 ; and S. C. nom. Gibson v. Rogers,
1 Ves. Sen. 4^5, as stated, 1 Rop. Leg. '61.
[ 97 ] II. 3. ill.] AN ORIGINAL VIEW [§235, 236.
SECTION THE THIRD.
The ^.Application of the Ride to Devises and Begucsis
where there is a Limit at io7i over in case of the Death
of the Devisee or Legatee ivithin a certain Time, or
ivithout leaving Issue or other Objects who might derive
a Benefit through him.
Common I. a 'Where real estate is devised to a person 235
cases where ^^d his heirs, or to a person indefinitely", and in
" or is con- ^^^q q[ [jjg death under a certain age, or without issue, over;
^^'''•"^^,, • Y ^l"'e word "or" is construed "and," so that the devise over
" ^" .' ^"^ ' may take effect in case the prior taker dies under the given
nutations ot ■ ^^-^^y^^^^ ^gsue, and not otherwise.(«)
' ' . ' Every one must liave observed how often the 23(5
Observations jj^jjm-ictive "or" is inaccurately used for the copu-
on this con- j^^j^.g conjunction "and." Hence cases might naturally be
s luc ion, expected to occur, in which the Courts might reasonably be
called upon to construe the one for the other. And as re-
gards the case above mentioned, it may be thought that this
construction may have been adopted upon the notion that
the limitations over on an indefinite failure of issue would
See § 706, be void for remoteness, so that the words "or without is-
714. sue" would be inoperative unless "or" were construed
"and." It may be urged, however, that this does not
prove that the testator did not intend the estate to go over
on an indefinite failure of issue, but merely, that if such was
his intention, it is contrary to law. And as the limitation
over would be capable of taking effect in the event of the
death of the devisee or legatee under the given age, it would
not be altogether inoperative and void in its original crea-
tion, even if "or" were not construed "and."
See § 223- The principle of the general rule enunciated above, would
[ 98 ] appear to be the true principle of this construction; namely,
226, the favour shown by the law to the free uncontrolled use
and enjoyment of property, and the power of alienation,
and the general leaning in favour of the primary objects of
the testator's bounty. For, it has been said that it cannot
be supposed that a testator would wish the estate to go over,
to the exclusion of the issue of the prior taker, if he should
die under the given age, leaving issue. And though per-
See § 206- haps it may be thought very questionable, whether it was
208. politic and expedient to adopt this construction, where the
(a) Mr, Jarman, in his Treatise on Wills, p. 444, in addition to the cases
■staled below, refers to Soulle v. Gerrard, Cro. El. 525 ; S, C, nom. Sowell v.
Garrett, Moore, 422 ; pi, 590; Pricey. Hunt, Pollcx, 645; Barker v, Suretees,
2 Sir, 1175; Walsh v. Peterson, 3 Atk, 193; Due cl. Burnsall v. Davy, 6
Durn, & East, 35,
II. 3. 111.] OF EXECUTORY INTERESTS. [§23(i. [98]
limitation over is in case of the death of the prior taker un-
der 21, or without issue, so as to encourage early and per-
haps improvident and unhappy marriages; and it may
therefore be doubted whether the testator really intended
to admit the issue of the i)rior taker, in case of iiis death,
under age, leaving issue ; yet this construction has been
adopted upon the notion, that it was really advantageous to
those claiming under the prior limitation, who of course
were the primary objects of the testator's bounty. And
whatever doubts may be entertained of the justness of this
notion, where the given age is only 21 ; where a more ma-
ture age is fixed upon, as, for instance, where 25 is the
specified age, such an idea is of course more likely to be
and probably is correct.
A testator devised to his brother all his real and freehold Fairfidd v.
estates, among which was an estate held for lives, which Morgan, 2
was the estate in question ; but in case his brother should Bos. & Pui.
die before 21, or without issue living at his death, then to N. R. 38.
liis mother for ever; the House of Lords, affirming the judg-
ment of the Court of Common Pleas in Ireland, held, that
''or" must be read as "and"; because, otherwise, the
brother could never have had the absolute estate, and could
never have sold or mortgaged it, if his family had been ever
so large ; and that the idea of a devisor giving an estate to
liis brother, to enjoy it during the life of his mother, who
was likely to die before her son; and to make a will which
would exclude the issue of his brother, in case he should die
a day before he attained 21, leaving issue, was so absurd
and improbable, that it was next to impossible to impute
such an intention to him.
Again, a testator devised a messuage to his daughter Eastman v.
and to her heirs for ever and ever; but if his daughter [ 9^ ]
should fortune to die and not attain 21, or having no such Baker, 1
issue as aforesaid, then over. It was held, that this was a Taunt. 174.
devise of the fee to the daughter, Lord Mansfield, C. J., ob-
serving, that an estate tail liad never been given upon a
will like the present, where one of the contingencies was
the event of the devisee dying under age; for that in such
cases, the dying without issue is not considered as indefinite
and general, so as to create an estate tail, but is referred to
the concomitant words of dying under age. (1 Taunt. 179.)
And it was held that "or" must mean "and," according to
Fairfield v. Morgan, 2 New Rep. 3S, and the other cases
cited; because if it did not, it followed, that, upon the con-
tingency ot the daughter dying having issue, but not having
attained 21, the estate would pass over from her children,
which could never be the testator's intention. {lb. 182, 1S3.)
And where a testator gave all the residue of his estates, Right d.
lands, &c., to liis son. But in case his son should die under Dayw Day,
\'0L. II.— 11
[ 99 J 11. 3. iii.] AN ORIGINAL VIEW [§237.
16 East, 67. 21, or should leave no issue male or female, then he gave
See also the same to his daughter, she heing surviving, and her heirs
Doe d. Her- male or female. But in case his son and daughter should
hert\.Selbi/, both die, leaving no issue, then over to the testator's cousin.
2 Bar. & Lord Ellcnborough, C. J., said, that a multitude of decisions,
Cres. 926, g^^j^ as Fairjield v. Moriran, 2 New Rep. 38 ; Easlman v.
stated §6S2a. ^^^^,^^,^ 1 Taunt. 174; Denn \. Kcmeys, 9 East, 366, fol-
lowing SoiDcll V. Garrett, reported in Moore, 422 ; 2 Rol.
Rep. 2S2, had established, that the word "or," in a devise
of tliis kind, is to be construed as " and," to avoid the mis-
chief, which would otherwise happen, of carrying over the
estate, if the first devisee died under 21, though he had left
issue. And Bayley, J., said, that the estate was to go over
to the daughter,' if the son died under 21 and without issue,
and to the cousin, if the daughter died without issue.
Observations In this case, the terms of the devise over, as they stood,
on Right d. "or" being taken in its natural disjunctive sense, constituted
Day \, Day. both a conditional limitation, to take effect in the event of
See^ 148-9 ^'^^ s"" dying under 21, and a remainder, to take effect on
159_ ' his dying after 21, without issue. But this limitation over
to the cousin showed that this was not the true construction,
[ 100 ] because that limitation was not to take effect if the son died
leaving any issue, whether he died before 21 or after-
wards.
Where "or" II. The same construction is adopted where per- 237
is construed sonal estate is bequeathed to a person absolutely,
"and," in or, which amounts to the same thing, indefinitely,
limitations of Personal estate, indeed, passes immediately to the execu-
personal es- |or or administrator, and not to the issue, and may be ex-
tate. hausted in payment of his debts; but, generally speaking, it
is not exhausted, and the greater portion ultimately goes to
the issue, so that they may be considered to be almost as
much interested as if the property were real property, which
would pass to them in the first instance.
Mytton V. A testator bequeathed 5000/. to ^1., if he attained 21 ; but
Boodle, 6 if he should not attain that age, or die without leaving issue
Sim. 457. male, then over. ./?. attained 21 ; and Sir L. Shad well, V.
C, held, that he was absolutely entitled to the money, the
clear intention of the testator being, that A. should have it
if he attained 21, or if he died under 21, leaving issue male.
— To support this construction, it must have been necessary
to read " and should" for " or."
Hawkins v. Another instance of a somewhat similar construction oc-
Haxckins, 7 curred where a testator gave a sum of money to trustees, in
Sim. 173. trust only, and for the use and benefit of his adopted daugh-
ter [who was in fact his illegitimate child]; which sum he
desired might be paid to her, and to be settled on her during
her said life, at the time of her marriage ; or in case she did
not marry, then, the interest to be paid to tier; and in the
II. 3. iii.] OF EXECUTORY INTERESTS. [§237a, 238. [ 100 ]
event of lior not mnrryiiiG:, or dying, then the monny to go
to his nepliews. Tli(3 (hiughtor married, and died without
issue. The counsel lor the liushand, as her administrator,
said, that, after giving the money, for tlie use and benefit of
his adopted daughter, and desiring it to be paid to her, he
contemplated her marrying, and directed how the fund
should be settled. That he meant, however, not to abridge
hicr interest, hut merely to protect her against her husband.
That her death was spoken of as a contingency, and might
mean dying in the lifetime of the testator; or the word '-or"
might be read as "and"; in which case, the gift over had
not taken effect. Sir L. Shadwell, V. C, though he said
that the latter words relating to the settlement, and those
that preceded, were to be considered as one sentence; and [ 101 ]
that the testator meant by them, that, on the marriage of his
daughter, a life interest should at all events be secured to
iier, yet held, according to the construction put upon the
word "or" by the learned counsel, that the testator meant
that his daugliter's interest should cease " in the event of her
dying unmarried."
237a III. In consistency with the above construction, "And" not
the Courts, of course, have refused to construe the construed
copulative as a disiunctive, where it has been used in such " o""' }'^,
1- -. ♦• ,r„.. such limita-
hmitations over.
Thus, where there was a devise over of a term, in case ^'O'^^-
the prior taker should die an infant, unmarried, and with- ^°^ ^^
out issue; the Court refused to construe "and" as « or"; ^''^'^^" ^•
and held, that the devise over depended on the happening £^^^^269
of all three events. '
And where there was a devise over of real estate, if the Doe d.
prior taker should die before 21, and without issue; the Usherv.Jes-
Court held, that the devise over depended on the happen- s^/', 12 East,
ing of both events ; Lord Ellenborough, C. J., and Le Blanc, 288.
J., observing, that this case was so far distinguishable from
Brownsword v. Edwards, that there the word " and" was See § 6Sa.
construed "or" to prevent the working of an injury to the
issue, namely, to a daughter, who, without such a construc-
tion, would liave been without any provision : whereas,
in the principal case, the limitation over was to other
relations ; and such a construction would work that very
injury.
238 IV. ^This construction is adopted, where there Other cnses
is a devise to a person, when he attains 21, for life, where " or"
remainder to his children, in tail, with a devise over, if he is construed
die under 21, or witliout children. (Z>) l!^"*^'" '"
liniUations
over on death under 21 or without children,
(fe) Hasher v. Sutton, 9 J. B. Moore, 2, as stated, 1 .lannan on Wills, 446.
[ 101 ] II. 3. iv.] AN ORIGINAL VIEW [§239—241.
Oiher cases V. A learned author observes, that it would 239
of the same seem to be immaterial whether the dying is con-
construction, fined to minority, or is associated with any other contin-
[ 102 ] gency, as in the case of a gift to ./?.,and if he die in the life-
in limitations time of 7?., or without issue, then over;(c) or whether the
over on the event is leaving issue, or leaving any other object who
death within would derive an interest or benefit through the legatee, if
some otlicr j^jg qj. i^gj. interest was held to be absolute, as a husbandfi/)
tune, or with- ^r wife."(c)
out leaving
some other object who might derive a benefit through the legatee.
Where "or" VI. But ''this construction is not adopted where 240
is not con- real estate is devised to a person and the heirs of
strued his body; and, in case of his death under a certain age, or
♦' and." without issue, then over ;(/) because it is a general rule, that
See § 200-9? a remainder shall, if possible, be construed as vested, rather
187,192-4. than contingent; whereas the construing "or" as "and,"
would be going out of the way to construe a remainder to
See Chap, be contingent, rather than vested; for the devise over is
XXIV. both a remainder and a conditional limitation.
SECTION THE FOURTH.
See ^ 215- ^'''^ ^/Application of the Rule to Portions apparently liable
222. to be defeated by a Condition Subsequent, in case of the
Children to whom they are given not surviving their
Parents.
Postpone- I. Where portions are directed to be paid on 241
mcntof pay- the attainment of a certain age, or on marriage, if
ment till af- that event does not happen in the lifetime of the parent; but
ter parent's not till after the deatli of the parents, if such event does hap-
death is a pen in his lifetime ; the Courts regard the attainment of the
postpone- age specified, or marriage, as the period when the portions
ment of the ^re to vest in interest, if not in possession ; inasmuch as the
actual pos- postponement to that period appears to be on account of the
session only, person of the children : and they regard the postponement
till the parent's death, or some little time after, merely as a
postponement of the actual possession; because, the post-
ponement of the payment till that period seems only for the
[ 103 ] convenience of the estate, and the benefit of the parents or
parent having a prior interest for life.
(c) Wright V. Kemp, .3 Durn, & East, 70 ; Denn v. Kemeys, 9 East, 366.
{(1) Wtddel V. Mundy, Ves. 341.
(e) 1 Jarman on Wills, 406.
(/) Woodward v. Glasbrook, 2 Vern. 388, as stated, 1 Jarman on Wills,
448. See also Lord Ilardwicke's observation in Brownsword v, Edwards, 2
Ves. Sen. 243.
II. 3. iv.] OF EXECUTORY INTERESTS. [§212. [ 103 ]
242 And -'if there is n clause of survivorship, provid- Word "pay-
ing lor the case of any of the children dying, or a able" in a
clause ofcesser, or a iimilation over, in ease all of them should clausoof sur-
die, before their portions should become payable, tiie word vivorship or
" payable" is referred exclusively to the period of attaining cesser or a
the age specified or marriage, whenever it may happen, («) ''Citation
unless the same word is used in another passage in such a over, is re-
way as clearly to refer to the death of the parents. .^^ .^''j/''
age specified or marriage.
A testator gave property, in trust to pay the interest to ITaJlifax v.
Ji. II., for life, and, after her decease, to pay the principal to Wilson, 16
his nephews and nieces ; the shares to be paid at 21, with Ves. 168.
survivorsliip, in case any of them should die before his or
their share or shares should become payable. Sir W. Grant,
M. R., held, that the word payable referred most naturally to
the period of 21 alone. And this decision was affirmed by
the Lord Chancellor.
And so where by a marriage settlement, a term was Pf.,j y. Lord
created, and limited to trustees, upon trust (in case there Sherhourne,
should be no issue male of the marriage, and there should 3 Sim. 243.
be a daughter or daughters at the time of the failure of issue
male, or afterwards) by sale, or mortgage, or out of the rents
and profits, to raise portions for such daughter and daugh-
ters, to be applied as thereinafter mentioned ; (that is to say)
if there should be any such daughter or daughters, then, the
sum of 20,000/. should be raised and paid as and for the por-
tion or portions of such daughter or daughters ; the same to
be paid at 21, or day of marriage, which should first happen
after the decease of E. C. (the father) and failure of issue
male ; and if any of the said daughters should attain 21, or
be married, in the lifetime of E. C, then, such portion or
portions should be paid to such daughter or daughters, with-
in six months after his decease. There followed a proviso,
that in case all the daughters should die before any of their
portions should become payable, then, the money, or so much
thereof as should not then be raised, should not be raised,
and then also such sum as should be then raised for or to- [ 104 ]
wards such portion or portions, should be paid unto the per-
son next in reversion or remainder; and that no such sale or
mortgage as aforesaid should be made until some or one of
the portions should become payable. And it was provided,
that in case there should be no such daughter or daughters,
or, being such, all of them should die before any should be
entitled to her or their portion or portions ; then, the term
should cease. The only issue of the marriage was a daugh-
(a) Jeffries v. Reynous, 6 Bro, Pari. Ca. 398, 8vo. eel., as stated, 1 Hop,
LejT. 530".
[ 101 ] IT. 3. iv.] AN ORIGINAL VIEW [§242,
ler, who attained 21, and married, but died in her father's
hfetime. Sir L. Shad well, V. C, after remarking, that the
event took place in which the sum for a portion was to be
raised, namely, the faihire of issue male, and after review-
ing the cases, said, that lie was compelled to hold, that where
a portion is provided for a son on attaining 21, or for a
daughter on attaining that age, or being married, and those
events happen in the hfetime of the parent, the child, though
it dies in the lifetime of the parent, has acquired an absolute
vested interest in the portion ; or, in other words,that the word
"payable" means "vested." His Honour then observed,
that one of the above clauses assumed, that though the
daughters might not have arrived at the time when their
portions would be payable, yet part of the portions might
have been raised ; and that it was quite clear that the par-
ties did suppose that there was something in the antecedent
part of the declaration of trust, which might make the por-
tions payable in the lifetime of the father ; and, accordingly,
there was an express proviso, that no sale or mortgage
should be made until some or one of the portions should be-
come payable. If. however, the proviso for the cesser of the
term liad been couched in such language, as that, notwith-
standing the expression to which he had before alluded, the
term had ceased, His Honour observed, that, in that case,
Mocatto V. there would have been an end of the question. — In a similar
Lindo, 9 case His Honour construed the word " payable " in the same
Sim. 56. manner.
Bright V. ^^^^ where a married woman, by a testamentary instru-
Rou-e, 3 M. ment made in execution of a power contained in her mar-
& K. 316. riage settlement, gave 2000/., subject to the life interest of
her husband, to trustees, upon trust for the benefit of her
[ 105 ] children, to be equally divided between them: but in case
the 2000/. should become payable before her children, bemg
sons, should have attained 21, or, being daughters, should
have attained that age, or day of marriage; then, in trust to
invest and apply the interest for their maintenance and edu-
cation ; and when they should attain 21, or day of marriage,
to pay to them their respective shares of the principal and
unapplied interest ; and in case any of the children should
die before her, his, or their portion or portions of the 2000/.
should become payable ; then, the same should respectively
go to the survivors or survivor. The testatrix left a son and
two daughters, all of whom had attained 21 at her decease.
The son, and afterwards a daughter, died in the lifetime of
their father. The question was, whether the personal re-
presentative of the deceased daughter who survived the son,
but died in the father's lifetime, was entitled to any and
what part of the 2000/.; or, whether the whole vested in
the other daughter who survived the father. On the one
II. 3. iv.J OF EXECUTORY INTERESTS. [§212. [ 105 ]
hand, it was argued that the word "payahle" was used iu
a sense equivalent to "vested"; and that, to say ihe least,
there was not a clear unambiguous intention to make the
riglit of the children to their portioiis depend upon their
surviving both parents. On the other hand, it was contend-
ed that the word "payable" clearly referred to the period at
wliicli both parents should have died, and was expressly
distinguished fri^i the provision for payment at 21 or mar-
riage, which was only to take place [and which, in fact,
could only take place] in case of the death of the parents
before their children should have attained 21 or liave been
married. Sir John Leach, M. R., held, tliat the shares of
the children vested at majority or day of marriage; and
that the daughter, who survived the father, was entitled to
the whole of the 2000/. by survivorship, except the moiety
of the one third part or share of the deceased son which ac-
crued to the deceased daughter who siuwived him but died
in the father's lifetime. His Honour observed, that when a
testator has unequivocally expressed an intention that a pro-
vision to be made for his children should depend upon their
surviving both their parents, the Court nuist give efTect to
that intention, and could only lean to the presumption in
favour of children, where the intention of the testator was
ambiguously expressed; and that he could see no ambigui- [ 106 J
ty in the principal case, but was clearly of opinion, that, by
dying before tlieir portions became payable, the testatrix
meant dying in the lifetime of the husband ; and that the
shares of the children so dying were given to the survivors
or survivor of them.
It may be observed tiiat the personal representative of Observations
the deceased daughter, in contending that the word ''pay- on Bright \.
able " was synonymous with " vested," and referred to the Rowe.
period of the children's majority or marriage, construed the
word by the next antecedent contained in the next preced-
ing sentence, which directed the trustees "to pay" the shares
at majority or on the day of marriage. The daughter who
survived the father construed it by referring to the first part
of the will, where the very same word "payable" was
used, and where it clearly did not refer to the period of the
children's majority or marriage, but to an event antecedent
to that period; the words being "in case the said sum of
2000/. should become payable before [the children] should
have attained the age of 21 years or day of marriage."
And as the word payable, in the first part of the will, clear-
ly did not refer to the period of the children's majority or
marriage, and could only refer to the death of the father;
so, when the same word was used in the latter part of the
will, it was to be understood in the same sense.
[ 106 ] II. 3. iv.] AN ORIGINAL VIEW [§212, 243.
Torres v. In a, previous case, by articles of agreement made before
Franco, 1 marriage, stock was vested in trustees, upon trust to pay the
Russ. & M. dividends to the husband, for the joint Uvos of husband and
649. wife; remainder to the wife, for Hfe ; and from and after
her death, in case there should be any child or children of
the marriage living at the time of her decease, then, upon
trust for such of the said children as should attain the age of
21 years or be married; with a direction for maintenance ;
and in case the wife should die without leaving any child or
children at the time of her decease, or in case there should
be one or more such children or child then living, yet all of
them should die under the age of 21 years, and unmarried;
then, in trust for certain other persons. The wife survived
lier husband ; and, at her death, no child of the marriage
was living, but she had had a son, who after having attained
[ 107 J 21 and married, died in her lifetime leaving issue. Sir Johu
Leach, M. R., is reported to have said : " This case is to be
decided upon the principle established in Howgravev. Car-
tier, 3 Vcs. & B. 79. The gift over is not to take effect unless
all the children die under age and unmarried. This is incon-
sistent with the clause which imports that a child to take
must survive the mother : and where clauses are conflicting,
the rational presumption is, that a child attaining 21 takes
Observations a vested interest." This decision, however, would seem
on Torres v. questionable; for, the learned Judge appears to have been mis-
Franco. taken in stating that the gift over was not to take efl'ect un-
less all the children died under age and unmarried. The
limitation over was to take eff'ect in either of two events;
namely, in case the wife should die without leaving any
child or children at the time of her decease; or, in case there
should be one or more children or child then living, yet all
of them {i. e. such surviving children) should die under age
and unmarried.
Words Slip- II. Where there is, in terms or in eff'ect, a limita- 243
plied, or the tion over, in case of the death of any of the chil-
word "or" dren before their parents, or one of them, as the case may
changed into be; some words have sometimes been supplied, or the dis-
"and." junctive "or" has been changed into the copulative con-
junction "and," so as to confine the event of death to a dy-
ing under a certain age which is mentioned in another pas-
sage of the will, and at which tlie testator appears to have
intended the children to take vested interests,
Clufferbuck A testator appointed a fund, after the decease of his wife,
V. Edivards, to his son, to be paid to him at her decease, if he shall then
2Russ. &M. have attained 21; and in case his son should die before 21,
577. and after the wife, he gave the fund to his, the testator's,
brother; and in case the wife should outlive both the son
and the brother, he gave it, after the wife's decease, to such
of his brother's daughters as should then be living. The
II. 3. iv.J OF EXECUTORY INTERESTS. [§243. [ 107 j
son attained 21 ; but the wife survived both the son and the
brother, who had daughters hving at the wife's decease.
Sir John Leach, INI. R., and afterwards Lord Brougham, C,
on appeal, held, that the representatives of the son, and not
the daughters of the brother, were entitled to the fund. The
Lord Chancellor said, " The question being with reference
to the third clause, whether it shall be read in one or other [ 108 ]
of two ways, that is, as providing for the son's pre-decease,
whether under or above 21, or as providing only for his pre-
decease under 21 ; I read it, according to the general inten-
tion, in the latter way, thus: in case my wife survives my
son under 21, and also my brother, then to my nieces."
(2 Russ. & M. 587.) "The violence would certainly be
great, of the other construction, cutting out the grandciiildren
of the testator in favour of his nieces, and making the
interest which the son took depend upon a contingency
wholly immaterial, namely, his surviving his mother — ma-
terial, indeed, as to the term of payment, but immaterial as
to the vesting of the estate — and to make the nieces take an
interest merely because their uncle's wife had survived her
son, though their father, llie testator's brother, was only to
take any interest in case the son died under 21." {lb. 5S6.)
In another case, a testator bequeathed his real and per- Miks v.
sonal estate to trustees, in trust to j)ay an annuity to his Di/er, 5 Sim.
wife, for Iier life; and to raise and pay to each of his sons, 435.
2000/., on their attaining 21 ; and to stand possessed of a
like sum in trust for each of his daughters attaining that
age; and to accumulate the surplus income during the life
of his wife ; and, after her death, to sell the property and
divide the proceeds amongst his children on their attaining
21 ; and in case all the said children should die in the life-
time of his wife, or under 21, and without leaving issue,
then, after his wile's death, to sell the property and divide
the proceeds among certain other persons. It was argued,
that none of the children were to take if they died without
issue before the period of enjoyment; and tliat the words
"and without leaving lawful issue" were to be applied to
both members of the sentence. But Sir L. Shadwell, V.
C, on the hearing of a demurrer, said, that it was clear that
the testator did not mean the property to go over if his
cliildren attained 21, or if they died under 21 leaving issue;
and that "or" ought to be read "and". And His Honour, 8 Sim. 330.
on the hearing of the cause, was of the same opinion ; and
observed, that, by the first words, the gift to the children
was made to depend on their attaining 21, whether they Qijj.p,.vations
died in the lifetime of the wife or not. Without doubling on Miles v.
the soundness of the decision, that the property was not to Jjijer.
go over if the cliildren atlained 21, though they might after- [ 109 ]
wards die in the wife's lifciime, it may appear questionable
Vol. II.— 12
[109] II. 3. iv.] AN ORIGINAL VIEW [§243a, 244.
whether "or" ought to be construed "and" to support that
construction. If the children should die without issue under
21, after the wife's decease, it was clearly the testator's in-
tention, that the property should go over; yet, according to
that construction, it could only go over if they should die in
the wife's lifetime, under 21. Not that the construction
was open to such an objection, so far as the case above
mentioned was concerned ; for the children had already at-
tained 21. But the question may arise, on similar language
in another case, where the children have not attained the
age specified, and, in such case, it is humbly suggested, that
instead of construing "or" as " and," the desired object may
be gained by construing the words thus : and in case the
said &c. shall die in tlie lifetime of./?., or [at any other time]
imder the age of 21 years, and without leaving lawful issue.
By connecting the words "and without leaving lawful issue"
with both members of the sentence, these words " at any
other lime" may be fairly understood ; and, in this way,
the dying in the lifetime of .^. might be confined to a dying
imdcr the age specified, and yet at the same time, the estate
would be limited over in the event of death inider that age,
after Ji.'s decease.
Leavingcon- HI- And where vested interests in a fund are 243a
striied into given to children at a certain age ; but there is a
"having limitation over in the event of their parent dying witiiout
had" or leaving any child or children ; the word " leaving" is con-
" having." striied as " having had," or " having."
Marshal/ v. A testator devised to J. M. and his son or sons, limited
Hill, 2 Mau. as aforesaid [i. e. to J. M., for life ; remainder to his first and
& Sel. 608, other sons]: and, if J. M. should die leaving no son or sons,
as aforesaid, then over. It was held, that J. M. took an
estate for life, and PV. C. M., his eldest son, a vested inde-
feasible remainder; Lord Ellenborough, C. J., observing,
that " leaving" meant " having had."
Mailland v. And where a testator, after giving vested interests in stock
Chalie, 6 to his daughter's children at 21, directed, that, in case his
Mad. 243. said daughter should die without leaving any child or chil-
dren of her body lawfully begotten, or, leaving any such
[ 110 ] child or children, and such only child or all such children
should die before 21, then, that the stock should be trans-
ferred to the testator's next of kin who should be living at
the death of the longer liver of them his said daughter and
her said children so dying before 21. The daughter had
two children, who attained 21, and died in her lifetime. Sir
John Leach, V. C, held, that the word " leaving" was to be
construed as " having."
Where the ^^- l^ut where the gift or payment is postponed 244
children who till a certain period, and there is a limitation over
do not siir- in case there should be no child living at the death of the
11.4] OF EXECUTORY INTERESTS. [§245,240. [110]
parent; lliere, it would seom that tlio portions eilher do not vive take
vest at that period, in the parent's hieiiuie, or they vest de- nothing,
feasihly, hable to be devested, so that the representatives of
a child who dies after such period, but in the lifetime of the
parent, will take nothing, unless this construction can be
avoided simply by supplying the word "such."
A limitation over of this kind occurred in the case of
Schenck v. Le^h, 9 Ves. 300. And Sir W. Grant, M. R.,
said, that if there was any thing equivocal ; if the event was
the death of all the children helx)re the portions were pay-
able, he could so construe that by reference to the two pe-
riods as to make it consistent with vesting at 21 or marriage.
Jiut there the contingency was so plain, that notwithstand-
ing the authority of IVondcock v. The Duke of Dorsef, he
doubted whether he should be justified in new-moulding
that proviso so as lo qualify it in that manner. (9 Ves. 312.)
But it was unnecessary for the Court to decide the point.
(Id. 313.)
CHAPTER THE FOURTH. [ m j
PRESENT VESTED INTERESTS, SUBJECT TO A TERM FOR YEARS,
DISTINGUISHED FROM VESTED AND CONTINGENT REMAIN-
DERS, AND FROM SPRINGING INTERESTS.
245 An interest of freehold duration, which is limited A freehold
after, and only preceded by, a term for years, may after a term
be designated a remainder in relation to the prior term for maybe
years, so far as regards the possession or beneficial interest, called a re-
For, as the termor has the possession, with or without the mainder, so
exclusive beneficial interest, for the period of his term, the ftir as regards
person to whom the freehold is limited, may truly be said ^"^ posse^-
to have the remainder or remaining part of that possession ^'?'^' ^''"l^o"^
or beneficial interest which was parted with or devised by j^' ^p". . ^
the person who granted or devised the term and freehold, .
and of which the termor has the first part under such grant
or devise.
246 But, an interest of the measure of freehold, lim- But it is not
ited at'ter, and only preceded by, a term for years, ^ remainder,
is not a remainder at all in the ordinary sense of the word properly so
remainder, when used with reference to a freehold interest, called;
For, it is not a remainder as regards the seisin, property, or See § 159,
ownership. As, in the case supposed, there is no other pre- 46-7,50,52,
ceding interest tlian a term for years; and, as a term for 53, 66.
years is a mere right extendmg to the possession, with or
[ 111 ] II. 4.] AN ORIGINAL VIEW [§247—252.
without the exclusive beneficial interest, and not a portion
of the seisin, property, or ownership ; it follows that liie
freehold interest cannot be said to be a remainder, remnant,
residue, or remaining portion of the seisin, property, or
ownership.
but is either The trutii is, that (setting aside cases of aug- 247
a present mentative limitations) an interest of the measure
vested inter- of freehold, limited after, and only preceded by, a term for
est, subject years, is, in regard to the seisin, property, or ownership,
to a term; or either a present vested interest, subject to a chattel interest,
else a spring- operating by way of exception out of the freehold, or seisin,
[ 112 ] property, or ownership, and by way of suspension of one or
ing interest, jjiore of its ordinary concomitants or incidents, namely, the
See § llle. possession, with or without the exclusive beneficial interest.
See § 45-48, ^-^^j. ^j-^g pg^-jod of the term •,. or else it is a springing interest,
^^- ^ wdiicli is good, if limited by way of use or devise, though
1 9j iU' '^°^^' ^^ limited by deed at common law. And,
1^4a, IL/a. ^ j^ ^ freehold interest is limited to a person in 248
Where a free- i3eing and ascertained, to take elTect on the certain
hold after a l.eg^|ar expiration of a term for years, in possession, with-
term is a pre- ^^^ ^^gj^^g preceded by any other freehold interest, such free-
sent vested ^^j^ interest is a present vested interest, subject to the term,
■ectt"oate^-m' ^^ regards the possession, with or without the exclusive
See ^Ule ' beneficial interest.
' For, in such case, the freehold interest is only 249
postponed until the expiration, and for the sake of,
a prior chattel interest : and as such prior interest does not
extend to the seisin, property, or ownership, but only to the
possession, with or without the beneficial interest ; there is
no reason to suppose that any thing but the possession, with
or without the beneficial interest, was intended to be post-
poned.
See§ 75a, Tliat such a freehold is a vested interest, either 250
77-78a, 88, present or future, no one will dispute. If it is a
89. future vested interest, it must be either a remainder or a re-
See § 75. version. But we have seen that it is not a remainder, as
See § 245-6. regards the seisin, property, or ownership ; and it is obvious
See § 169. that it is not a reversion. And, therefore, it must be a
See § 75-77, P^'esent vested interest, though subject to the preceding
87-8. ' term.
— where it is '^'^e "^o^t simple illustration of this occurs in 251
limited on cases where the freehold interest is limited to take
the eflluxion effect on the effluxion of the given number of years of which
of years; the term consists: as, where land is limited to ./?. for 21
years, and then to B. for life.
vvhereitis I^ut, the same rule applies, where the term is 252
limited on the rendered determinable by means of a special or
droppingofa collateral limitation, on the dropping of a life or lives; and
life or rfves. it is for so great a number of years that there is not a com-
II. 4.] OF EXECUTORY INTERESTS. [§253. [ 112 ]
mon possibility of the life or lives enduring beyond it; and See ^ .'M-42.
tlic freehold interest is limited to take cfTect on the dropping
of the life or lives; as, where land is limited to A. for 99
years, if B. so long live ; and, on the death of /?., to C. for
life. For, in sueli case, the freeliold interest is as mnch
limited to take effect on the certain expiration of the term,
as if it had been limited to take effect on the eflUixion of the [ lis ]
given number of years; because, the dropping of the life or
lives is an event which must happen within the given num-
ber of years constituting the term, and is an event on which
the term must cease.
253 *It must be admitted that freehold interests Freeliolda
limited after, and only preceded by, terms for years, after a term
subject to a special or collateral limitation, are called re- are called
mainders by the great authority upon the learning of con- remainders
tingencies ; and that there are decisions stated by him,(«) in by Fcarnein
which freehold interests so limited were regarded as rg. some sense ;
mainders. ^"J^ assumed
Ikit, the real question, in each of these cases, was, Avhether ° ^."'^ ^ '"
.1 • . . ^ * I ■ ^ ^ ] 4. u .1 •.. several cases,
the mterest was a vested mterest, and not whether it was a ■
.1 1 1 .1 r xu 1 •. 1 • msomesense
vested remamder ; and, therefore, though it was assumed in ^^ j^^g^
these cases, as it is assumed by Fearue, that the interest was U » . j • '
a remainder, in some sense ; yet, all that these cases can ,•
fairly be regarded as establishing, is, that the freehold in- ^vas extra-
terest in question is a vested interest, and not that it is a judicial
vested remainder, in regard to the seisin, property, or owner-
ship. Even admitting it to be the fact, which, however,
does not appear in tlie reports, that the Court itself regarded
the freehold interest as a remainder, in regard to the seisin ;
still, that construction was extra-judicial, and one into which,
as such, the Court might easily have fallen, from not per-
ceiving, or from forgetting for the moment at least, the dis- See § 245-6.
tinction above stated between a remainder in relation to the
possession, with or without the exclusive beneficial interest,
and a remainder in regard to the seisin, property, or owner-
^^^'P- ' Air
And admitting that the illustrious author by whom these '^
cases are referred to, assumes that a freehold limited after, „ ,.
,1 111. r ■ • 1 • sumes them
and only preceded by, a term for years, is a remainder, in ^^ j^^ j.^^
the ordinary sense in which the word is used with reference niainders
to freehold interests; such an assumption would only pre- proppi-iy so
sent us with an instance of a similar oversight to that pointed called this
out by the eminent editor of the former editions, in the intro- would appear
duction to the work, and an additional, and a painful, [ 114 ]
though perhaps a salutary proof, of the fallability even of anoversi<dit.
(«) See Fcarnc, 20 — 27, and IVappcr v. Sanders, Ilutt. llS; Beverley, y.
Beverley, 2 Veni. 131 ; and Ptiihuy v. Ilurrell, 2 Vcrn. 370 ; as there stated.
[ 114 ] TI. 4.] AN ORIGINAL VIEW [§254—257.
A similar re- the most learned, accurate, and profonnd. And
mark applies a similar remark applies to a passage in one of 254
to Butler. the notes of that eminent editor himself, ^ who
mentions, as an example of the first kind of contingent
remainder, the case of land "given to ^^. for 21 years, i[ B.
shall so long continue at Rome, and if he quit Rome during
the term, to C. in fee :"(6) though, independently of the
reasoning at the commencement of this chapter, that learned
individual might have known, that, according to the pro-
positions advanced by Fearne and assented to by him-
self, the freehold interest so limited, was not a contingent
remainder, seeing that, according to those propositions,
'■" wherever an estate in contingent remainder, amounts
to a freehold, some vested estate of freehold must precede
it."(c)
Whcrcafree- II. But, where a freehold interest is limited 255
hold afler a after, and is only preceded by, a term for years;
term is a and it is contingent on accoimt of the person ; or it is limited
springing in- to take effect only on a contingent determination of the term,
lerest; by means of a special or collateral limitation, or on some
See § 34-42. event unconnected with the original measure, and the
regular expiration thereof; in such cases, the freehold in-
^ft^ 11^- terest is a springing interest of the second, third,
127a. fourth, or fifth kind, in regard to the seisin, proper- 256
ty, or ownership, and is good, if limited by way of
use or devise, though void if limited by deed at common
—where it is law. As, if land is devised to ^. for 21 years, and then to
limited on the an unborn son of B., in fee ; or to A. for 99 years, if C. shall
effluxion of go long continue at Rome ; and, on the return of C. from
years, and in Rome, then to B., in fee ; or to ^. for 99 years ; and, on the
other cases, jg^th of ^., then to B., in fee.
'^And so, where the term is rendered deter- 257
minable, by means of a special or collateral limita-
tion, on the dropping of a life or lives, and it is for so few
years, that there is a common possibility of the life or lives
enduring beyond it, and the freehold interest is limited to
[ 115 ] take eflect on the dropping of the life or lives,(^) For, in
such case, the freehold interest is in fact limited on the con-
tingent expiration of the term ; because the dropping of the
life or lives is an event which may not happen before the
term has already expired by effluxion of time.
(b) Fearne, 5, note (d,) fifth paragraph,
(c) Fearne, 281.
(d) See Fearne, 21 — 24, in connexion with the observations made on the op-
posite case, § 248 — 2.'!J4.
II. 5.] OF EXECUTORY INTERESTS. [§258. [ H'i ]
CHAPTER THE FH^TH.
FIRST EXCEPTION FROM THE FIRST CLASS OF CONTINGENT
REMAINDERS, FORMED BY THE USUAL LIMITATION TO
TRUSTEES FOR PRESERVING CONTINGENT REMAINDERS.
258 " At first view," says Butler, " it may appear that
the usual limitation to trustees for preserving con-
tingent remainders, is a contingent remainder ot" the sort
first mentioned by Mr. Fearne. In cases of this description,
the estate is conveyed to the use o( ^. for life •, and after the
determination of that estate by forfeiture or otherwise in his
lifetime, to the use of B. and his heirs, during the life of *7.,
in trust for ./i., and to preserve the contingent remainders;
and after tiie decease o( t/2., to the use of the first, and other
sons of r^. successively, in tail male. Here, the preceding es-
tate may determine by one of two modes ; ^.'s forfeiture of
his life estate, or ./^.'s decease. The estate of the trustees is to
take effect in the first event, and is not to take effect in the
second. The remainder to the trustees may therefore ap-
pear to be of that sort which is contingent. This point was
fully considered in the case of Smith d. Dormer v. Vark-
hurst, 18 Viner, 413; 4 l?ro. Gas. Par. p. 353. In that case,
the judges determined, that the remainder was not a contin-
gent, but a vested remainder."(a)
Butler does not seem to have been satisfied with the de-
cision : at any rate he does not offer to evince its soundness;
Init merely states the fact that, ita lex scrip/a est. Fearne,
however, has gone so far as to attempt to show that the
limitation in question is strictly and properly a vested re-
mainder.
It is with the most unfeigned deference that the writer of
these pages ventures to question the justness of the decision,
when founded in any other principle than that of necessity, [ 117 ]
most especially as it has received the sanction of one who
was as remarkable for subtlety of discrimination and sound-
ness of judgment, as for the lucid, eloquent, and masterly
style in which all his ideas are expressed. But the author
lias less hesitation in differing from the opinion of the judges,
than he otherwise should, from the consideration that a con-
trary decision would, in the language of the Lord Chief
Justice, have '"'overturned all the settlements for two hun-
dred years last past ;"(Z)) and therelbre, admitting that they
really thought that the decision to which they came was
upon principle a sound decision, yet their minds must have
been under the influence of an almost irresistible bias ; a
{(i) Fearne, 5, note {d). (b) Willcs Rep. 339.
[117] II. 5.] AN ORIGINAL VIEW [§25S.
circumstance which is quite sufficient to remove that violent
presumption which must have otherwise existed in favour
of the conchision to which they arrived. But it is far from
clear, tiiat all, or most of them, or any of them, except Lord
Chief Justice VVilles, who endeavoured to rest the decision
upon principle, were of opinion that the decision was any
thina: more than a matter of mere imperative necessity. For
the Lord Chief Justice, after alluding, as above mentioned,
to the dreadful consequences of a contrary decision, une-
quivocally declares, «=" If therefore I could not make this
consistent with the rules of law, though I humbly apprehend
I plainly have, I should rather choose to put a construction
on these words, contrary to the rules of law, than overturn
many thousand settlements, according to this maxim, found-
ed in the best reason. Communis error facit jus, and Ut res
7nagis vcilcat quam pereat.^\c) And with respect to the
support v/hich has been given by the learned author, who is
the great authority on the subject of contingent interests, it
can scarcely be doubted but that his sentiments would have
been of a far different character, had he not been blinded by
that wholesome prejudice in favour of judicial opinions,
* which is not only the result of a proper modesty, but alsQ
the necessary concomitant of profound and extensive learn-
ing.
Our author, immediately after instancing the remainder
[lis 1 ill question, admits, that, as to its taking effect in possession,
it depends entirely on a contingent determination of the pre-
ceding estate, by forfeiture or surrender. But he introduces
the case by saying, that " if the uncertainty of taking effect
in possession, should form any part of our notion of a con-
tijigent remainder, such a principle would scarcely fail to
mislead us in every case of the least doubt. "(r/)
See § 170- Now, though it is very true that a vested remainder may
188. be uncertain of taking effect in possession, as well as a con-
tingent remainder; yet nothing can be further from the
truth than the supposition, that the uncertainty of posses-
sion, in both cases, is of the same kind, or that both are
equally uncertain of actual possession. A vested remainder,
as we liave already seen, docs not strictly depend on any
other uncertainty than that of its enduring beyond the pre-
ceding estate: whereas, a contingent remainder does strictly
depend on a contingency irrespective of its own duration.
And hence, a contingent remainder is doubly uncertain;
being uncertain in respect of some contingency collateral to
itself, as well as uncertain in regard to its own duration.
Were it not so, indeed, the distinction between them would
be merely verbal. It is humbly submitted, then, that the
uncertainty of taking effect in possession, except that kind
(c) VVilles Rep. 339. {d) Fearne, 217.
II. 5.] OF EXECUTORY INTERESTS. [§258. [US]
of uncertainty which is connected with its own duration,
should form a part of our notion of a contingent remainder:
in fact, it flows from the very same fundamental distinction
as that which is commonly taken between a vested and a
contingent remainder. 'J'he existence, in the former, of a
present, absolute, and legally transferrible right to the pos-
session, whenever the preceding estate may determine, and
the non-existence and uncertainty of that rigiit, in the latter,
does indeed constitute the dilference between them, from
which, according to the principle of definition adopted by
Fearne, they receive their denominations of vested and con-
tingent, liut that, as we have already seen in another
place, is itself Ibunded in another and more tangible distinc-
tion; namely, the non-existence, in the one, and the exist-
ence, in the other, of a contingency irrespective of its own
duration, on which the enjoyment strictly depends. And [ 11.9 ]
from this fundamental distinction, the further dillerence ne-
cessarily arises; namely, the certainty of possession, in the
one, (subject to any such chattel or other interest collateral
to the seisin, property, or ownership, as extends to the pos-
session,) and the uncertainty of it in the other, apart from
the consideration of the certainty of their enduring beyond
tiie preceding estate.
It is admitted by our author, that the remainder in
question, as to the actual possession, entirely depends on a
contingent determination of the preceding estate: but, in
the instance before us, it is held that the right of possession
is not in contingency, but in actual existence. But where
is the foundation of the distinction between this case, and
the first class of contingent remainders entirely depending
on a contingent determination of the preceding estate, in
which the right of possession is contingent, as well as the
possession itself? If the remainder, in each case, depends
entirely on a contingent determination of the preceding
estate, what ground have we for maintaining, that the
remainder is only uncertain as to the actual possession, in
one case, though it is uncertain, both as to the right of pos-
session, and to the possession itself, in the other?
In order to discover this, we seem to be directed to the
following description of a vested remainder, under which,
it is truly said, the limitation in question clearly falls :
^'" Wherever the preceding estate is limited so as to deter-
mine on an event which certainly must happen, and the re-
mainder is so limited to a person in esse and ascertained,
that the preceding estate may by any means determine
before the expiration of the estate limited in remainder, such
remainder is vested. "(e)
Vol, II.— 13
(f) Fearne, iil?.
[ 119 ] II. 5.] AN ORIGINAL VIEW [§258.
If every remainder which falls under this definition is a
vested remainder, then all the three first classes of remain-
ders, which are previously termed contingent, are in reality
vested. This is manifest from the very examples by which
the descriptions of these remainders are illustrated ; and
there is nothing in the descriptions themselves, which
would prevent the remainders they refer to, from falling
[ 120 ] under the above definition of a vested remainder. Thus,
even where the remainder depends entirely on a contingent
determination of the preceding estate itself, the preceding
estate may be " limited so as also to determine on an event
which certainly must happen;" as in the identical case,
where Ji. makes a feoflment to the use of B., till C return
from Rome, and after such return of C, then to remain over
in fee ; for, by limiting to B. generally, A. gives him an
estate which certainly must determine at his decease, if not
previously determined by the return of C So in the second
and third classes, where the contingency is collateral to the
expiration of the preceding estate, it is evident that such
estate may be limited to determine on an event certain ; as
in the very cases which are selected by Fearne, where a
lease is made to A. for life, remainder to B. for life, and if
B. die before ./i., remainder to C for life ; or where a lease
is made to J. S. for life, and after the death of J. D., the
land to remain to another in fee.
And as to the last requisite, " that the preceding estate
may by any means determine before the expiration of the
estate limited in remainder," that is common to every re-
mainder which is not absolutely void in its creation; and
therefore, it is conceived, does not serve to render the above
definition of a vested remainder, any the more distinctive
and precise.
If then the courts had adopted the above description of
a vested remainder, the subtle and abstruse learning to which
the present Essay relates, would have been involved in the
greatest uncertainty, inconsistency, and confusion.
To approximate as closely as possible to the construction
of that description, without falling into its loose and dan-
gerous generality, the true statement would appear to be
this : That " wherever the preceding estate is limited so as
to determine on an event which certainly must happen; and
the remainder" is capable of vesting in possession on such
event, without requiring the concurrence of any contin-
gency to perfect its capacity of taking effect at ttiat par-
ticular period ; and it "is so limited to a person in esse and
ascertained, that the preceding estate may by any means
determine before the expiration of the estate limited in re-
mainder ; such remainder is vested." For, to render the
remainder vested, if it is legal, it must be capable of taking
II. 5.] OF EXECUTORY INTERESTS. [§258. [ 121 ]
effect in possession (subject as aforesaid) on the certain ex-
piration of the preceding estate, though it may also be ca-
pable of taking eflect on a contingent determination. For,
wliat conceivable ditference can it make in tlie nature of
the remainder, that the preceding estate is to determine on
an event certain, if that remainder is totally incapable of
taking effect on sucli certain determination of that estate ?
Surely, the remainder must be in the very same predicament
as it would be, if the preceding estate had had no such capa-
city of determination. Nor must the concurrence of any
contingency be requisite, that a remainder may be com-
pletely capable of taking etfect at that particular period,
when the preceding estate is sure to expire ; for then the
remainder would be a contingent remainder of the second
or third class.
After showing that the limitation in question comes ex-
pressly within the terms of his description of a vested re-
mainder, our Author adds, that "as this conclusion corres-
ponds with the authorities in point, it may fairly be con-
sidered as an instance of the justness of that distinction from
which we can thus immediately derive it."(/) Here, we
may plainly discover in what way he was betrayed into the
inconsistency at which tiie foregoing observations are point-
ed. Influenced by a laudable reverence for authority, he
evidently framed sucli a definition as might coincide with
views which had received so high a sanction ; he forcibly-
warped his own original sentiments, so as to make them ac-
cord " with the authorities in point."
What, in this particular instance, was the value of their
opinion, the reader will speedily determine, as well from the
quotations already made from the report of the case, as from
llie following observations.
In delivering the unanimous opinion of the Judges, before
the House of Lords, in affirmance of the judgment of the
Court of King's Bench, Lord Chief Justice Willes said :
" We think there are but two sorts of contingent remainders,
which do not vest ; 1st, where the person to whom the re-
mainder is limited is not in esse at the time of the limitation;
2dly, where the commencement of the remainder depends
on some matter collateral to the determination of the partic- [ 122 ]
ular estate. "(^) The first of these of course answers to the
fourth class of contingent remainders, according to Fearne's
distribution, and the second obviously includes the second
and third of liis classes. But, where are those that, in the
words of our author himself, depend entirely on a con-
tingent determination of the preceding estate itself? The
very kind of contingent remainders to which the limitation
J) Fearne,218. {g) Willes Rep. 337.
[ 122 ] II. 5.] AN ORIGINAL VIEW [§25S.
in question appears to belong, are entirely omitted. The
Jearned Judge(A) has no idea of the existence of such con-
^ tins^cnt remainders. How then can we wonder at his deny-
ing that the remainder in question was a contingent remain-
der? And what worth can we attach to his argument?
Bchile fu ndamentum fallit opus.
But the learned Judge, in order "• to enforce " what he had
said, makes an observation which only serves as an addi-
tional evidence of the imperfect state of his acquaintance
with the subject under discussion. "Will any one," he asks,
"say that anything can descend to the heir,that did not vest
in the ancestor? So that if nothing vested in the trustees,
the limitation to them and their heirs is nonsensical. And
yet this word 'heirs' has been put in every such limitation
for 200 years last past."(z) The answer to this is to be found
in the pages of Fearne himself, from which we learn, that
■^ a contingent remainder, executory devise, or other execu-
tory interest of inheritance, does descend to the heirs of the
person to whom it is limited, if he dies before the contin-
gency happens, unless his attaining a certain age, or exist-
ing at some particular time, subsequent to the period when
he died, constitutes or by^implication enters into, and makes
apart of, the contingency itself, on which such interest is in-
tended to take effect. (^)
In conclusion, the learned Judge puts this case: "^.,
tenant in fee, grants an estate to /i., for 99 years, determi-
[ 123 ] nable on his life ; supposing -S. outlive the term, or surren-
der, or forfeit, no one, I believe, will say but that Jl. may
enjoy the estate again. If so, a contingent freehold was in
liim during the life of B., for it could not be in B.; because
he had only a chattel interest; and it could not be in any
one else ; — and if it were in .^., it must be a vested interest,
for it was never out of him; and li A. had a contingent free-
hold during the life of Z?., no one can say but that he might
grant it over ; and if he do, it must be of the same nature as
it was when it was in Jl., and consequently a vested free-
hold. And this case I have put, is expressly held to be law
in Co. Lit. 42 a; in C holmley'' s Case, 2 Co. 51 a; and in the
Year Book of Edw. the III., which is there cited."(/)
Now taking it for granted, that, in applying the terms
vested and contingent so indiscriminately to the same in-
terest, he only uses the term contingent in relation to the ac-
tual enjoyment, the fact that Jl. had a vested interest, can-
(/i) In the ninth page, Fearne observes, that " contingent remainders appear
to have been generally distributed into three kinds only, namely, the three last
specified in the above division of them."
(7,) VVilies Rep. 338. (/c) Fearne, 3G4— 5, 552— G5. (Z) Willes Rep. 339.
II. 5.] OF EXECUTORY INTERESTS. [§25S. [ 123 ]
not he disputed; l)iit notliiiis^ can ])e inf«^ricd from this, lo
prove that the hmitation to trustees to preserve &c. is strict-
ly and properly a vested remainder.
As ./?. granted only a chattel interest to B., without mak-
ing any further disposition of the land, the freehold and in-
heritance of course remained in him in its original state ;
and was therefore a vested interest; and if c^i. afterwards
granted over the freehold and inheritance to C., it would
still he a vested interest. The mere transfer of it into other
hands, could not change it into a contingent interest ; for, as
it was originally sure to vest in possession, so it continued
to possess a certainty of possession, since there was still a
period certain to arrive, namely, the death of J?., or the ex-
piration of the 99 years, at which it must ultimately take
effect in possession, though it might possibly take effect at
a previous time, in consequence of the forfeiture or surren-
der of ij'.'s estate.
And if the subsequent grant to C. had not been of the
entire inheritance, subject to the term, but yet had been of
an estate for the life of the grantee, '"and such estate had
been expressly limited, or had apparently been intended to
take effect, on the death of B., as well as on any anterior
contingent determination of ^.'s estate, the interest grant- [ 124 ]
cd to C., would be vested, (r/i) because it would be sure
ultimately to take effect in possession, if it lasted till the cer-
tain expiration of the preceding interest, or in other words,
if C. survived B., and did not previously surrender or for-
feit his estate.
But if./?, had merely granted over an estate during the
life of B., to commence upon, and only upon, a contingent
determination of Z).'s estate, in ^.'s lifetime, which is the
only one of the three hypotheses that is in any way analo-
gous to the limitation to trustees to preserve contingent re-
mainders, this subsequent interest, though derived out of the
vested interest of ./^., would have been a contingent interest.
For, in that case, instead of being sure to take effect at a
period certain to arrive, namely at the death of B., or the
expiration of the 99 years, such subsequent derivative in-
terest would have no other connexion with such a period
than this ; that if such interest should have already taken
effect, it must at that period inevitably expire; or if it should
not have already taken effect, it must then for ever cease to
have any capacity of taking effect. In regard therefore to
the commencement of possession, and the existence of the
right of possession, this subsequent interest must entirely
depend on the chance of some anterior contingent determi-
(?h) See § 259.
[ 124 ] II. 5.] AN ORIGINAL VIEW [§258.
nation ol" the preceding estate ; and consequently it must be
a contingent, instead of a vested interest.
The possibility, it must be observed, which ^^. had, of
having tiie land before the death of B., was not a distinct
See § 46-7, preceding interest or portion of the seisin, property, or owner-
50, 52, 58. ship, whether vested or contingent, but a mere possibility of
an earlier possession, annexed to vvliat, in relation to the
possession, would be commonly said to be his reversion in
fee, or, to what, in relation to the seisin, property, or owner-
ship, and more strictly speaking, was a present vested inter-
See §llle. est subject to a term. And hence, though the subsequent
grant of c^. could not operate as a transfer of a mere possi-
bility to strangers, contrary to the rule of the common law, yet
it was not a transfer of an ancient vested interest, but a
[ 125 ] creation of a new interest out of a vested interest, that is,
out of the freehold and inheritance remaining in him sub-
ject to the term first created. And if an interest were neces-
sarily vested, because derived out of a vested interest, we
should never have heard of such a thing as a contingent re-
mainder.
It is humbly submitted that enough has been said, to prove
beyond a doubt, that the judgment above cited, is defensible
upon no other ground than that of imperative necessity ;
upon no other principles than those which are expressed in
the maxims so strongly urged by the Chief Justice, Com-
munis error facit jus, and Ut res magis valeat quam pereat.
When the question lies between tiie validity of thousands of
settlements, on the one hand, and the inviolability of an ab-
stract principle, on the other; we may well be warranted in
making an exception, when we can do so without derogat-
ing from the general operation of the rule in such a manner
as to produce mischiefs far more serious than those we desire
to avoid. To the decision itself, then, no objection can justly
be urged, so far as it concerns the principal case. The point
that is iiere contended for, is this — and it is one of the ut-
most moment — that that decision should not be allowed to
affect the general doctrine; that the limitation in question
should on no account be viewed as a proper specimen from
which an accurate definition of a common vested remainder
may be collected ; that it should not be considered as disaf-
firming, but merely as constituting a solitary exception to,
the general rule before proposed — that a vested remainder
does not, and a contingent remainder does, strictly depend
on a contingency irrespective of its own duration ; and con-
sequently, apart from the relative uncertainty of its dura-
lion, and subject to any chattel or other interest collateral to
the seisin, property, or ownership, a vested remainder is cer-
tain, whereas a contingent remainder is not certain, of taking
effect in possession or enjoyment.
II. fi.J OF EXECUTORY INTERESTS. [§259— 2r,l. [ 126 ]
CHAPTER THE SIXTH.
SECOND EXCEPTION FROM THE FIRST CLASS OF CONTINGENT
REMAINDERS.
259 I. Although a remainder, so far as regards the Where arc-
express words of its limitation, may depend entirely maiiider li-
»and simply («) on a contingent determination of the preced- mited on a
ing estate ;' yet, in the case of a will, if it is morally certain contingent
that it was intended to take effect either on the certain ex- detcrmina-
piration, or on a contingent determination, of such estate, ^'o" of the
whichever shall first liappen ; it will be allowed to do so, and, preceding
therefore, will bo construed a vested remainder. estate, may
260 Thus, ^ where a testator has devised to his wife, takectlecton
for lier life, if she shall so long continue his widow : "^ ccr am
and, in case she marry, to ./2. in fee ; the courts have iield tj^^^eof
that the remainder-man is to take either on the death of the
tenant for life, or on her marriage ; and have therefore con-
strued the limitation to be a vested remainder.(6) And this
interpretation is clearly just. In wills, the intention, so far
as it is consistent with the rules of law, ought to be carried
into effect; and the testator certainly intended that ./?. should
take in either event; because, it is impossible to discover
any reason why ^. should be the object of the testator's
bounty, in case the particular estate should determine by
the marriage of the tenant for life, if he were to have nothing,
in case it determined by her decease ; since her marriage
could be a ground, neither for the testator's disliking and
disinheriting the heir at law, nor for his desiring to benefit
,/?.; and, therefore, no reason can be drawn from the differ- [ 127 J
ence in the events themselves, why „^. should take in one
event more than in another.
261 II. But a remainder, which is expressly to take Where a re-
effect on a contingent determination of the preced- mainder can
ing estate, will not be allowed to take effect on the certain only take
expiration of the preceding estate, unless it is morally cer- effect on the
tain that such was the intention of the testator. contingent
And, therefore, '^where the devise was to ^. for life, cxpn-ation of
remainder to his first and other sons in tail; on condition ^''^ preceding
that he and his issue male should assume a particular name; estate,
and in case he or they refused, then, that devise to be void;
and, in such case, the testator devised the lands over. »'?.
survived the testator, complied with the condition, and then
(a) See Jordan v. Holkman, Amb. 209 ; as stated, Fcarne, 240.
{h) Luxford V. Chceke, 3 Lev. 125 ; Raym. 427 ; referred to, F'earnc, 5, note
(d), and stated, Fcarne, 239; Gordon v. Ado/phus, 3 P. C. Torn!, cd. 300, as
stated, 1 Jannan on Wills, 731.
[ 127 ] II. 7.i.]
AN ORIGINAL VIEW [§262,263.
died without issue ; and it was held in B. R., on a case from
Chancciy, and ultimately in the House of Lords, that the
limitation over did not arise. (c) In this case,tlie contingent
determination of the estate, namely by the non-assumption
of the name, was so improbable, that the existence of an
express limitation over in tiiat event, could afford but a
shght ground for supposing that the person to whom it was
made, was also intended to take on the certain expiration of
the estate by faihire of issue.
[ 128 j
CHAPTER THE SEVENTH.
The grand
distinction
between a
remainder
and a condi-
tional limita-
tion.
See § 148-9,
159, 160.
I. Where a
subsequent
interest de-
pends on the
determina-
tion of the
prior interest
by force of a
regular spe-
SECTION THE FIRST.
Certain Cases of Vested Remainders, and the first, second,
and third sorts of Continsj^ent Remainders, arid the
seventh kind of Spriiiging Interests, distinguished from
Condit iona I Liinita t ions.
We have already seen that the grand distinction 262
between remainders and conditional limitations, is,
that a contingent remainder is limited to take effect in pos-
session, or enjoyment, or in both, after the regular expira-
tion of the preceding estate ; whereas a conditional limita-
tion is limited to take effect in that manner before the par-
ticular estate has filled up the original measure of its dura-
tion, so as to operate in defeasance thereof, instead of by
way of remainder after it. To exemplify this disthiction
the more clearly, and to enable the student to apply it with
certainty to the more diflicult cases, the following rules and
examples may here be given.
I. "Where the subsequent interest depends on a 263
condition or contingency which is inserted, as a
regular special or collateral limitation, in the clause by which
the preceding estate is created, and, therefore, forms one of
the original bounds to the quantity of that estate ; there, the
subsequent interest is a remainder,(a) if the preceding inter-
est does not carry the fee ; or, such subsequent interest is a
springing interest of the seventh kind, if the preceding inter-
est does carry the fee. For, instead of curtailing the pre-
(f) Amhurst v. Donelly, 8 Vin. Ab. 221, pi. 21, affirmed in Dom. Proc. 5 B.
P. C. Torn!, cd. 254 ; as"^5tated, 1 Jarm. on Wills, 7:J0.
(a) See Fcarric, 10, note (/t).
II. 7. i.] OF EXECUTORY INTERESTS. [§264—266. [ 12S ]
ceding estate, it is not to take effect in possession, till an cial or colla-
event upon whicii the preceding estate would tiavc expired, teral limita-
evcn if it iiad been t'ollowed by no other interest. And, in [ 129 ]
case the event upon which the subsequent interest is limited, ti'^>n» and
is a contingent one, and such subsequent interest depends ^"ch subsc-
enlirely on that event, it is a contingent remainder of the a"«^"^ '"^^'*-
first class. As, where an estate is limited to the use of ^. est is a rc-
and the heirs of his body, till C. returns from Rome, or \U1. "^'^'^Z^^^^^
and the lieirs of iiis body sliall continue to be Lords of the .^^ interest'
Manor of Dale ; and after C'.'s return, or on ^. and his issue ^j.'l,^^ ^^^^
ceasing to be Lords of the Manor of Dale, (within the period ^^^^^ ].'jj^j_
prescribed by the rule against perpetuities,) then, to the use g^^ ^ 34. o^
of B. in fee. 159^ 117^ 126, 184. See § 706.
264 II. And where the subsequent interest depends II. Where a
on a condition or contingency, which is not insert- subsequent
ed, as a regular special or collateral limitation, in the clause interest de-
by wiiich the prior interest is created; (§ 34 — S) still, if it is pendson the
subjoined to such clause, so as to be capable of being con- detcrmina-
nccted with and construed a part of it, as an irregular spe- tion of the
cial or collateral limitation; (§ 39) in such case, if the pre- prior interest
ceding interest does not amount to the fee, the subsequent pyiorccofan
interest is a remainder. (§ 159) And if it entirely depends ";»'<jgulai"spe-
on the contingency forming such limitation, it is a contingent ^^^ \\\^^^[^ ^'
remainder of the first class. (§IS4) But if it is also capable ^||J|J and such
of taking effect on the certain expiration of the preceding s^,ijJcr|ucnt
estate, it is a vested remainder. (§ 1S3) "If the preceding jmcrcst is a
interest, however, does amount to the fee, the subsequent remainder,
interest is a springing interest of the seventh kind.(«) See qj. ^ spring-
§ 117, 126, 165. ing interest of the seventh kind.
265 Thus, if, as it has been previously observed, ''a Illustrations,
devise is made to A. for life, on condition that he
do not marry C, with remainder to B.; this is construed as
if it were to .^., until he shall marry C; and then, or upon See §34, 38,
death, to B.;{b) and the subsequent limitation is a 41.
266 vested remainder. This proviso, when viewed
apart from the limitation over, is strictly a condi-
tion subsequent. But it is not construed as such; because if Sec § 12,
the heir of the devisor had entered in case of a breach there- 15-19.
of, 'his entry would have defeated the remainder, as well as [ 130 J
the particular estate, though the condition was never intend-
ed to defeat the remainder; because, by entry or claim, the
livery made upon the creation of the estates was defeated. (c)
(a) See Ftilmerston v. Steicard, cited Cro. Jac. 592 ; as stated, Fearno, 395.
[b) Burton's Compendium, § 829. Sec also Scatterwood v. Edge, as stated,
Fearne, 237.
(r) Ikillcr's note, Co, Litt. 203 b(l). Burton's Compendium, § 828 ; Fearne,
261, 270, 381, note (a).
Vol. II.— 14
[ 130 ] II. 7. i.] AN ORIGINAL VIEW [§2G7— 269.
See § 14. Nor is the proviso a mixed condition, with a con- 267
See § 148-9. ditional limitation limited thereon. It may perhaps
See 6 149a. be nrged, that as conditional limitations are admissible in
devises, it should rather be coustrned as if it were to «/?. for
life, but if lie marry C, then the land shall immediately go
to B.; in which case, B. would take by way of conditional
limitation, instead of by way of remainder. But this con-
See § 196-7, struction would be at variance with the general rule, where-
by a limitation shall be construed as a remainder rather
than as an executory devise. Besides, in that case, C.
would not take in remainder after .^^.'s death, as he would
according to the other construction, and as it would seem to
be intended that he should ; and this would be at variance
with another general rule, that an interest shall be construed
See §200-9. to be vested, rather than contingent.
^ If such a sentence were contained in a deed, it 26S
has been thought that it would be construed as a
condition subsequent, but as merely ineffectual and void. (a?)
But the better opinion would seem to be that such a sentence
would be construed as an irregular special limita-
See § 14-19. tion, even in a deed. "Though strict words of 269
condition," says Blackstone, "be used in the crea-
tion of the estate ; if, on breach of the condition, the estate
is limited over to a third person, and does not immediately
revert to the grantor or his representatives, (as if an estate
be granted by .^. to J?., on condition, that, within two years,
B. intermarry with C, and on failure thereof, then to D. and
his heirs,) this, the law construes to be a limitation, and not
a condition. "(e) It must indeed be admitted, that the rea-
son given by the learned Judge for this construction, is
founded in a mistake or oversight, when he adds, that " if it
were a condition, then, upon the breach thereof, only ^2.
[ 131 ] and his representatives could avoid the estate by entry, and
Z).'s remainder might be defeated by their neglecting to
enter;" whereas D.'s interest, as we have seen, would
See § 266. equally be defeated by the very entry itself, as much as by
the neglecting to enter. Yet, the doctrine itself, that the words
in question constitute a limitation, seems to be perfectly cor-
rect. And it would also seem clear, that, by such a limita-
See§24,26, tion, the learned Judge meant a limitation in the original
34. sense of a limit or bound, and not a conditional limita-
See 148-9. tion. For, the words would be void as a conditional lirai-
See § 149a. tation ; because a conditional limitation could only be by
way of use or executory devise. And, even if the grant
mentioned by Blackstone had been by way of use, yet
{(i) Burton's Compcnclium, § 828.
(e) 3 Bl. Corn. 155. Sec also Shop. T. 124, note (16).
II. 7. i.] OF EXECUTORY INTERESTS. [§270. [131]
the construing the words to be a conditional limitation,
would have been at variance with the rule for construing
a disposition to be a remainder, rather than an executory See § 196-9.
interest not by way of remainder. There are two dilTer-
ences, indeed, between the case put by Blackstone, and the See § 269.
preceding case. In the first place, the proviso mentioned by See § 265.
Burton, is an irregular special limitation, amounting in See § 39.
effect to a direct regular limitation ; namely, to a gift to ^1. ^^,f, ^ 41 _
for life, until he marry C; and upon the death of c^., or upon
./?.'s marriage with C, then to B.; while the proviso men-
tioned by Blackstone is an irregular special limitation, capa- See § 39.
ble, without doing violence to the words, of being resolved See § 42.
into an indirect limitation ; namely to a grant to B. for life,
B. intermarrying with C. within two years; and in default,
&c. And secondly, in the clause in Burton, the remainder
does not, while in the clause in Blackstone, the remainder
does, in terms, depend on the breach of the condition. But
these difl'erences do not seem to constitute any material dis-
tinction between them, so far as the present question is con-
cerned. Nor, upon principle, does it appear at all neces-
sary or consonant to a sound and enlightened interpreta-
tion, to adopt a stricter construction in the case of a deed,
than in the case of a will, as regards the point under
discussion.
270 III. But, <■ where the subsequent interest depends m. Where a
on a condition or contingency that is not inserted, subsequent
as a regular special or collateral limitation, in the clause by interest de-
which the preceding estate in possession or in remainder, is [ 132 ]
created,(/) nor so subjoined to such clause, as to be capable pends on the
of being connected with it, as an irregular special or collate- dctermina-
ral limitation, so as, in either case, to form one of the origi- tion of the
nal bounds to the quantity of interest (§ 34-43); and the prior interest
words require an immediate transfer of the seisin, property, ^^7 •'^^^^ '^^^
or ownership, to the person entitled to the subsequent inter- "I'-'^ed condi-
est, as soon as such condition or contingency shall happen ''°"' ''^"
or be fulfilled ; there the subsequent limitation is not a re- ^"^ '^." ^^^*
mainder.(i,'-) ''Nor is it good, at the common law, in any ^"^j, ' j ^
other way.(A) For, if the condition were allowed to operate j.p,nainder •
as a condition subsequent, so as to defeat the preceding in- c jr^g -^^^q
terest, it would defeat the subsequent interest at the same ,^qj. j^'j^ ^q^j
time; and therefore, if the instrument takes effect at com- ^t the co^m-
mon law, the condition, and the subsequent limitation de- rnou law in
pendent thereon, must be construed as void. But, if the any other
limitations are by devise or by way of use, the condition way,
See § 12, 15-
(/) See Fearne, 10, note (/t). See also Coganv. Cogan, Cro. 19, 266.
Eliz. 360 ; as slated, Fearne, 263. but it may be
(g) lb. good, it by
(h) See resolution in Collhirst v. Brjusfiin, I'lowd. 23 ; as stated, way ot use
Fearne, 263. or devise, as
[ 132 ] II. 7. i.] AN ORIGINAL VIEW [§271—274.
an interest will then be good as a mixed condition, and the ' subsequent
umler a con- limitation witl be good as a conditional limitation. (/) § 14,
ditional limi- 20, 14S — 9a.
tation. To illustrate these points, we may observe, that 271
Illustrations, if, in the case put by Blackstone, the grant were
See § 2C9. to B., on condition, that if within two years he do not inter-
marry with C, then to D. and his heirs ; this, it is conceived,
would be construed as a void condition. For, the words
Avhich specify the event on which the estate is to go over,
form, with the words carrying the estate over, but one un-
divided sentence ; so that the words specifying the event,
are not capable of being dissevered from the words carrying
the estate over, so as to be connected with the preceding
See §26, 34- words creating the prior estate, and thereby be
42. construed to mark out the original limits of that 272
estate. And this view is supported by a passage
in Sheppard's Touchstone, where it is said, that "if a lease
be made to J. S., on condition that if such a thing be or be
[ 133 ] not done, that the land shall remain to J. D., or that J. D.
shall enter; in this case J. D. shall never take advantage of
this condition."(A;)
But if the limitation, instead of being at the com- 273
mon law, were 'by devise,(/) or if it were a grant
to Ji., to the use of B., on condition, that if, within two
years, B. do not intermarry with C, then to the use of D.
See§ 148-9. and his heirs; this would be good as a conditional limita-
tion.
And, if the contingency were not introduced by 273a
the technical words of a condition snbsequent.
See h 18, 19. namely, " on condition," or "provided," or " so that," but
* by the words '""and if," then the subsequent interest to Z>.
and his heirs might have been good as a remainder.(wi)
For,
IV. Where a IV. Where the subsequent interest depends on 274
subsequent an event which, instead of being inserted in, or
interest de- capable of being connected with, the clause by which the
pends on a prjor interest is created, is independent of the measure of
condiiion ^jj^t estate ; (§ 34—43) but the words merely import an in-
precedent tention that on the occurrence of the event a present right
unconnected ^^ future possession or enjoyment, or both, should accrue to
with the de- ^^^ ^^^^^ entitled to the subsequent interest; or, in other
termination ^ ^ ^^^^^ s^^^h interest should then vest in right ; in such
of the prior '
(i) See Fearne, 10, note [h).
(k) Shop. T. 153.
(I) See Sheffield v. Lord Orrery, 3 Atk. 282 ; as stated, Fearne, 239. But
See Lord Hale's remarks in Lady Ann Fry's Case, 1 Vent. 203, as cited,
Fearne, 239, wiiicji, liowever, must be regarded as inaccurate.
(m) See CuUhirst v. Bejushin, Flowd. 23 ; as stated, Fearne, 263.
II. 7. ii.] OF EXECUTORY INTERESTS. [§275—278. [ 133 ]
case, tlie subsequent interest is a continf^ent remainder of the interest, and
second or third class. (§ 79—81, 159, 185— G.) is u contni-
275 Thus, "where land is limited to the use of .^.; fjcnt renmin-
and if C. should die in ^.'s lifetime, then, after der, capable
^.'s decease to B. and his heirs; the limitation to B. '^^ ^ ''^^^^[^'^^^t
remauider, and not a conditional limitation; because, the ^^^^^^^^^^
interest limited to B. is not to take elfect in possession or /^^^^ ^ ^^^^^j
enjoyment, but merely to vest in right, on the death of C. ,.^.,-fjainjer.
in v^.'s lifetime. During the joint lives of ^. and C, it is a Il|^J3tJ.ation3.
contingent remainder; and on the death of C. in .^.'s life- *
time, it does not vest in possession, but merely becomes ^^^ v ' ■ •
changed into a vested remainder, which continues, as before,
to be expectant on the regular expiration of the particular [ 131 ]
estate by the decease oi^ Jl.{n) And "so if land is leased to
one for life, and if such a thing happen, then to remain to
B.{o.)
SECTION THE SECOND.
Practical Suggestions connected with the Distinctions in
the First Section.
277 When the practitioner is desirous of making a There are
prior interest defeasible on a particular contingency, cases where
and of causing a subsequent interest to arise on the same it may seem
contingency; it may seem to him immaterial, whether he doubtful in
accomplishes this general end by making that contingency ^^''.»at way a
the subject of a special or collateral limitation to the prior PJ'i^'' interest
interest, (§ 34—42) and causing the subsequent interest to ^^'^^jj^^jl'ig ''"
arise on the same contingency, as a condition precedent, (§ ^^^ ^ subs'e-
43, 13) by way of contingent remainder, or of a springing ^^^^'^ j^^^^^
executory interest; or whether he makes that contingency ^^^ ^^ ^^^^
the subject of a mixed condition, and causes the prior inter- ^^^^^
est to be defeated, and the subsequent interest to arise, on g^^ c ^rj^^
such contingency, by way of conditional limitation. Or, it jj^^
may appear doubtful to him, which of these two modes is g^^', ^^
the best, ^ow, apart from any other gi'ounds of prefer- 143-9
ence which other legal consequences may suggest for the ^^
one mode rather than the other, it may be observed,
278 I. That if he is desirous of annexing a detcrmi- I- Where the
nabic quality to the prior interest, for the sake "f P^'^*" '"J^""^^^
determining such prior interest on the contingency specified, ^"°"l^ 'j^^^"
irrespectively of the design of creating another interest in its j!!"^'"^^^ ^^ ^
room, and he is desirous that such prior interest should cease l^ccvaX limi-
on that contingency, whether the subsequent interest should j^^j^^^ ^^^
be capable of taking effect or not ; then, the contingency ^j^^ gj^i^g^.
should be made the subject of a special or collateral limita- ^^^^^ i,jter.
(/j) See Fearne 10, note (/i).
(o) Fearne, 2G3. And Colthirst v. Bejiishiii, Plowd. 23 ; as stated, Fearne, 263.
[135] ir. 7. ii.] AN ORIGINAL VIEW [§279,280.
est be limit- tion to the prior interest, and the subsequent interest should
cd bv way of be limited to arise on such contingency, as a condition pre-
remaindcr. cedent, by way of contingent remainder, in case the prior
See § 34-42. interest does not carry the fee, or of a springing executory
See 6 13 43 interest of the seventh kind, in case the prior interest does
See § 159. ' ^^"'^ ^^'^ ^^^^
See § 117, 12G, 165.
II. Where II. But if lie is desirous of annexing a deter- 279
the prior in- minable quality to the prior interest, for the sake
terest should of creating another interest in its room on the contingency
be determi- specified, and he would not wish the prior interest to cease,
nablc, and a \f j[,g subsequent interest intended to be created in its room
subsequent should be incapable of taking effect ; then, he should make
interest be li- ^j^^^. contingency the subject of a mixed condition, and
., c \r\ cause the prior interest to be defeated, and the subsequent
on the fulfd- • ^ ^ ' • u .• u c t<- i
of a interest to arise, on such contingency, by way oi conditional
mixed condi- imitation. (See § 14, 148-9 ) , , , , ,
tJQj-, These suggestions may be illustrated by the lol- 280
T,, \ .. lowing examples : If an estate be devised to A.
* and the heirs of his body, till he becomes possessed of a
certain other estate ; and on his becoming possessed of such
estate, then, to C. for life ; there, if./?, becomes possessed of
the other estate, the first estate will cease by force of the di-
rect special limitation formed by the words " till he be-
come" &c., even though C. be dead, in whose favour alone
the property was to go over, by virtue of the contingent re-
mainder to him. Whereas, if an estate be devised to A. and
the heirs of his body ; but, if he become possessed of a cer-
tain other estate, then to C. for life ; there, notwithstanding
it should happen that Jl. had become possessed of the other
estate, still, the first estate would not cease, by force of the
mixed condition formed by the words "but if he become"
&c. unless C were alive, in whose favour alone it was to go
by virtue of the conditional limitation. For, in this case,
there is nothing to cause it to cease, as to Jl., but that which
was to cause it to go over ; and as there was no one to whom
it could go over according to the terms of the devise, it could
not cease as to Jl.
II. 8. i.] OF EXECUTORY INTERESTS. [§281. [ I3r, j
CHAPTER THE EIGHTH.
CERTAIN CASES OF ABSOLUTE AND DEFEASIBLE VESTED
INTERESTS, DISTINGUISHED FROM SPRINGING INTERESTS,
AND FROM THE SECOND, THIRD, AND FOURTH CLASSES
OF CONTINGENT REMAINDERS.
SECTION THE FIRST.
Cases where an Uncertain Event is made a part of Ike
Description of tUe Devisee or Legatee.
2S1 I. Where real or personal estate is devised or I. Where an
be(]ucatlied to such of the children, or to such child uncertain
or iudividual as shall attain a given age, or the children, S:c. event forms
who shall sustain a certain character, or do a particular act, p-'irtof the
or " be living at a particular time,(«) without any distinct original de-
gift to the whole class, immediately preceding such restric- scripticn,
tive description; so that the uncertain event forms part of See § 282-
the original description of the devisee or legatee ; in such 309.
case, the interest so devised or bequeathed, is necessarily
contingent, on account of the j)erson. For, until the age is
attained, the character sustained, or the act performed, the
person is unascertained ; there is no person in rcrum natiira,
answering the description of tlie person who is to take as
devisee or legatee.
A testator devised his estates at S. and //. to trustees, in r>iifuld v.
trust, in case there should he but one son of his daughter Dtifjiehl, 1
who should attain the age of 21 years, for such son, his heirs Dow &
and assigns for ever ; and in case there should be two or Clark, 268.
more sons who should attain the age of 21, then, in trust
for the second of such sons, his heirs and assigns for ever ; [ 137 ]
and in case there should be no son who should attain the
age of 21 years, then, in trust for such of the daughters (if
any) as should attain that age, or, before that, be married
with consent of the trustees, her heirs and assigns for ever.
And, after directing his trustees to convert the residue of his
real and personal property iiUo money, and invest the
produce in the funds; the testator directed his trustees, by
and out of the rents, issues, and profits of the said estates,
and by and out of the part or share of and in the said stocks,
(a) Reeves v. Brymer, 4 Vcs. 692 ; as stated, 1 Rop. Log. 509, ed. by
White. Sec also Bennett v. Scyjiiour, Ambl. 521 ; as stated, 1 Rop. Leg. 509.
And See Bcnn. d. Radchifc v. Bugshuw, 0, Diirn. kS^ East, 512 ; as stated,
Fearne, 246, note (/j) ; and § 350.
[ 137 ] II. S. i.] AN ORIGINAL VIEW [§281.
funds, and securities, and the dividends, interest, and annual
proceeds thereof, to which any child or children of his
daughter should be presumptively entitled, pay and apply,
for the maintenance and education of any such child or
children, in the meantime, and until his, her, or their share
or portion, shares or portions, should become payable, such
yearly sum and sums as to the trustees should seem meet.
And, by a codicil, revoking that part of his will which di-
rected the sale of his residuary freehold property, the testa-
tor directed, that the son of his daughter who should first
attain the age of 21 years, should, on attaining such age,
change his name for tiiat of Elwcs ; and he devised to such
son, on liis attaining the age of 21 years, and changing his
name to Elwcs, all his freehold property &c. [meaning that
directed by the will to be sold, and what he had subse-
quently acquired,] and his heirs and assigns for ever. The
testator's daughter had one son and four daughters, infants,
at the time of the testator's decease ; and afterwards a second
son was born. The decree of the Vice-Chancellor declared,
that, under and by virtue of the will, G. T. IV. H. Dujffield,
as the only son of the testator's daughter at the time of the
testator's death, took, upon the testator's death, a presently
vested equitable estate in fee, in the estates at »S'. and H.,
subject to be devested by his death under age, or by the
birth of a second son ; and that, upon the birth of Henri/
JJujffield, the second son, the said equitable estate of the said
G. T. W. H. Duffield, was devested, and the said Henry
Dujffield took a vested equitable estate in fee in the said es-
tates, subject to be devested in the event of his dying, or be-
coming neither the second nor only son, before he attained
[ 138 j the age of 21 years; and that, under and by virtue of the
codicil, the said G. T. IV. H Dujffield, upon the testator's
death, took a presently vested legal estate in fee in all the
testator's freehold property (except the said estates at S. and
//.) subject to be devested, in case of his death under age ;
but without prejudice to the question, how far such estate
might be aftectedby his not changing his name on attaining
his majority. The case was carried by appeal from the
Vice-Chancellor to the House of Lords, in the first instance ;
and it was there decided, in consonance with the unanimous
opinion of all the Judges, 1. That the estates at *S'. and H.
vested in a second or only son, on his attaining 21, and not
before ; or, in case of failure of such issue, in a daughter or
daughters, on her or their respectively attaining that age,
or marrying with consent of the trustees, and not before.
2. That the testator's other freehold estate vested in the sou
who should first attain 21, on his attaining that age, and not
before. 3. That until these estates vested, the rents and
profits derived from them passed to the testator's heir at law,
II. S. i.] OF EXECUTORY INTERESTS. [§281. [ 136 J
the residue of the testator's estate not being devised to any-
particular person. 4. That, as to maintenance, there being
two sons infants, the trustees sliould execute the power, by
applying part of tlie rents and profits of the premises first
devised, for the maintenance of the second of such sons,
during liis infancy, and in case such second son should die an
infant, the elder son being an infant and an only son, the
trustees might apply i)art of the rents and profits for such
only son's maintenance, during his infancy, and whilst he
continued an only son ; and that, in case, after the death of
such second son in his infancy, the testator's daughter should
have a third son born during the infancy of the first, the
power of the trustees to apply any part of the rents and
profits to (he maintenance of the first son, would cease, and
they should apply part of the rents and profits for the main-
tenance of such third son; and that, supposing there was an
only son, and a daughter of the testator's daughter, unmar-
ried, and an infant, the trustees would not have the power
of applying any part of the rents and profits for the main-
tenance of such daughter during her minority. Lord Chief
Justice Best, who delivered the answers of the Judges, ob-
served, that it was impossible to say that the words of that [ 139 ]
will did not import conditions precedent; that the estates See § 13,
were not given to any particular children by name, but to
such children as should attain the age of 21 years ; and until
they had attained that age, no one completely answered the
description which the testator had given of those who were
to be devisees under his will; and, therefore, there was no
f)erson on whom the estates could vest. (1 Dow & Clark,
314.) It had been argued from the words "presumptively
entitled," that the persons so entitled took a vested interest.
{lb. 304.) But his Lordship, as well as Lord Eldon, said,
that those words showed that they did not take a vested in-
terest; for, as the former remarked, a presumptive title was
only a possibility ; a prcsinnptive heir, one who will be the
heir, if no one having a preferable claim be in existence at
the time of the death of the person to whom the presump-
tive heir stands in that relation. {lb. 315.) With regard
to any general motives that might induce a leaning towards
one constrtiction rather than another, (he Lord Chief Justice
observed, that the Judges were always inclined to decide
that estates were vested, because, among other reasons, "the
rights of the diO'erent members of families not being ascer-
tained whilst estates remain contingent, such families con-
tinue in an unsettled state, which is often productive of in-
convenience, and sometimes of injury to them." {lb. 311.)
But " the state of the allairs of this family," he added,
" will not be sooner settled by the artificial contrivance of
vesting and devesting the estates, than by keeping themcon-
VoL. II.— 15
[ 139 ] II. S. i.] AN ORIGINAL VIEW [§282.
tingent until a final vesting of them can take place, agreea-
bly to the disposition made by the testator. How can it be
said that the aiiairs of a family are settled by vesting an
estate in an eldest son, and devesting when a second is born ;
then vesting it in the second, and devesting it on the birth
of a third son and death of the eldest ; and by again vesting
it in a daughter, when there are no sons, and devesting it
again on the birth of a son?" {lb. 312.) His Lordship
cited the case of Stephens v. Stephens, as precisely in point.
Tucker v. And so where a tcstater gave 5000/. to trustees, in trust for
Harris, 5 his daughter E., for life, for her separate use ; and after her
8im. 538. death, in trust to apply the interest for the maintenance of
[ 110 ] all her children as should be living at her death, during their
minorities; and, on their attaining 21, in trust to transfer the
same equally between them. Ikit if E. should die without
leaving nny such child ; or leaving such, if such child, or all
such children, should happen to depart this life before at-
taining 21 ; then, to transfer the same unto such children of
his son F., or of his daughters S. and M., as should be living
at the death of E. without issue, or of the last of such issue
under 21. One of the daughters of E. attained 21, but died
in ^.'s lifetime. Sir L. Shadwell, V. C, held, that the de-
ceased daughter of E. took no interest. It was argued for
her administrator, that as no person was to take under the
gift over, unless they were living at the death of E. without
issue, there was no gift over except on a general failure of
issue of E.; and tiiat the case was within the principle of
Perfect v. Lord Curzon. But the Vice-Chancellor ob-
served, that a gift by will differs from the case of a trust
declared by a settlement ; because, in the former, there is
no supposition that any persons can be intended to take ex-
cept those who are described as takers. That the words
"without issue" referred to the event before described in
the gift over, namely, that of the daughter dying without
leaving any such child ; and that the words " or of the last
of such issue under 21," referred to the other event de-
scribed in the gift over by the words " or leaving such, if
such child, or all such children, should happen to depart
this life before attaining 21." And that this was manifest
from a gift of another sum, where the testator, in using the
word " issue," clearly referred to the children of E., and not
to issue generally.
Il.Whcrean II. But ''where a testator devises or bequeaths 282
uncertain real or personal estate to a class of persons, " or
event forms such of them as shall be living" &c., " or the survivors," so
an independ- that the circumstance of being alive at a particular time,
ent super- forms an independent, superadded, restrictive description,
added de- (instead of forming part of one and the .same original de-
scnption. scription, and therefore of necessity rendering the interests
II. 8. ii.] OF EXECUTORY INTERESTS. [§283— 2S5. [ HO ]
contingent, as in cases falling under the last rule, where a
devise or bequest is made to such of a class of ])ersons as
shall be living &c.;) in such case, if at least there is no limi-
tation over in the event of none of them surviving, the whole [ 141 ]
class will take vested interests, notwithstanding the super-
added description, where they would take vested interests in
the absence of sucli superadded description, and
283 where they are all alive at the death of the testa-
tor. And if the survivorship refers to the death See § 97-8,
of the testator, they will take absolute vested interests, the 284.
superadded description being construed to be an
284 alternative limitation of an irregular form. But if Sec § 128,
the survivorship refers to a subsequent period, they 134-5.
will take vested interests, subject only to be devested in fa-
vour of the survivors, in case of the death of some one or
more of them, before (he period to which the survivorship
refers, the superadded description being then construed to
be an irregularly formed conditional limitation. So that, in See § 148-9.
the last case, if all of them survive that period, the interests
of all of them will be changed from defeasible into absolute
vested interests; and if all of them die before that period,
their interests will also become vested absolutely, and be
transmitted to their representatives.((^)
SECTION THE SECOND. [ 142 ]
Cases where the Devise or Bequest has reference to a future
Jige or an Uncertain Event which dues •hot furni part
of the Description of the Devisee or Legatee, and there
is NO Indication of Vesting.
285 I. Where real or personal estate is devised or I. Where the
bequeathed to a person, when or as soon as he shall conditional
attain a given age, or when an event shall happen which words are,
(6) See Browne v. Lord Kenyon, 3 Mad. 410; and Sturgess v. Pearson, 4
Mad. 413 ; stated infra; and Belk v. Slack, 1 Keen, 238. But see Billingdetj
V. Wills, 3 Atk. 219; and Smith v. Vaughan, 1 Vin. Ab. tit. "Devise," 381,
pi. 32 ; as stated, 1 Rop. Leg. 507, 511. As to the time to which survivorship
refers. Sir John Leach, V. C, in Cripps v. Wolcott, 4 Mad. 15, said " that if a
legacy is given to two or more equally to he divided between them, or [or, and]
to the survivors or survivor of them, and there be no special intent to be found
in the will ; the survivorship is to be referred to the period of division." This
rule is approved of by Mr. Jarman, as regards both real and personal estate,
though, as he shows, it is opposed to many authorities. See his review of the
cases, 2 Jarm. Powell on Dev. 730, &rc. See also 2 Rop. Leg. by White, 334
— 355 ; and Doc d. Long v. Prigg, 8 B. & C. 231, where a testator devised to
.4. for life, and after her decease to the surviving children of W. J. and J. W.,
and their heirs, and it was held that the word " surviving" referred to the death
of the testator.
[ 14-2 J II. 8. ii.] AN ORIGINAL VIEW [§286— 289a.
when,assoon may never occur at all, or ''at,(rt) or ''upon,(Z») or from and
as, at, upon, after his attaining such age, or the happening of such event;
from and and there are no other words indicative of an intent to con-
after, fer a vested interest; and nothing, in the form of the limita-
See § 290- tion itself, to indicate an intent hierely to delay the vesting
309. ill possession or enjoyment, and no disposition of the inter-
mediate income ; in such case, the interest of the devisee or
legatee will be contingent until he attains the age
specified, or the event described has happened. 2S6
For, although in this case the person is ascertain-
See § 281. ed, yet the property is only given to him at a future period
which may never arrive ; and the gift can no more attach
upon him before that period, than it could if the testator,
continuing to live, were to defer making any devise or be-
quest till such period Iiad actually arrived.
We find this doctrine in the Civil Law : Si dies 287
The doctrine adposita legato non est, prsesens debetur aut con-
of the Civil festim ad eum pertinet, cui datum est; adjecta, quamvis
Law. longa sit, si certa est, veliui calendis Januariis centesimis,
dies quidem legati statim cedit : scd ante diem peti non
potest. At si incerta, (quasi cutn puhes erit, cum infami-
liani niipserit, cum mugistratum inierit, cum uliquid de-
mum, feccrit) nisi tempus, conditiove obtigit, neque res perti-
nere, neque dies legati cederc potest. D. 36. 2. 21.
[ 143 ] Dies incertus conditionem in testamento facit. 288
D. 35. 1. 75.
Dies incertus appellatur conditio. D. 30. 1. 30, 289
§4.
ISash V. And it is supported by various decisions. Thus, 289a
Smith, 17 where a testator, after empowering his trustees to
Ves. 29. sell part of his real estate, if they should think fit, for pay-
ment of debts, legacies, and charges, directed them to invest
the proceeds in trust to pay the interest to his son T. N.,
until he should attain the age of 30 years; and, in case of
his decease before that age, in trust for his children, and
from and after his son should have attained 30, he directed
his trustees to convey and assign all such parts of his estate,
not applicable for other the purposes of his will, to his son T.
N., his heirs, &c.; it being his intention that his son should
have no power over any part of his real or personal estate,
except as aforesaid, until he should attai)i the age of 30. Sir
W. Grant, M. R. held, that as there was no mention of the
beneficial interest in the real estate, previous to the disposi-
tion of it from and after T. N. should have attained the age
(a) Onslow v. South, I Eq. Ca. Ab. 295, pi. 6 ; and Cruse v. Barley, 3 P.
W. 20 ; as stated, 1 Rop. Leg. 489.
(6) Judd V. Judd, 3 Sim. 525 ; and Hunter v. Judd, 4 Sim. 455 ; as stated,
§ 362.
II.8. ii.) OF EXECUTORY INTERESTS. [§-^90— 292. [ 143 ]
of 30 years; and as T. N. never attained 30; he never took
the real estate under the will, hut as the heir at law, not-
withstanding the declaration that he should have no power
over any part of the real or personal estate.
Again, a testator bequeathed a sum of stock to his trus- Gordon v.
tees, upon trust to stand possessed tliereof for D. G., until Rutherford,
he should attain 25. He then directed them to transfer the Turn. & R.
same to D. G. when and so soon as they should think pro- 373.
per; and in case I). G. should die without issue before re-
ceiving the bequest, the same was ordered to sink into the
residue. Sir Thomas Plumer, M. R., observed, that there
was no direct gift to D. G. except through the medium of a
discretionary transfer, for which no time was fixed ; and
that if he should die without issue before such transfer, the
bequest was to sink into the residue ; and that therefore the
vesting must in the meantime be suspended ; and, conse-
quently, that the dividends must await the final disposition
of the capital.
So where a testator bequeathed to his wife the use of liis Fordy.
furniture, &c., which he desired might be distributed amongst Rawlins, 1
his children on the youngest attaining 21, at her and his ex- Sim. & Stu.
ecutor's discretion ; such part being nevertheless reserved ^28.
for her use as might be thought convenient, and, at her death, [ 144 ]
to be distributed as above directed, Sir John Leach, V. C,
held, that three children who died under 21, did not take, in-
asmuch as there was only a power to the widow and execu-
tors to distribute at their discretion certain specific articles
when the youngest attained 21.
And where a testator gave to ^., as soon as he attained Knight v.
21, the sum of 3000/. with interest; Sir John Leach, V. C, Knight, 2
held, that the expressed intention must prevail ; and that Sim & Stu.
there was no gift either of principal or interest until ^. at- 490.
tained 21.
290 II. But a distinction would seem to exist, between H. Where
devises of real estate and legacies, where, instead the condi-
of the words "when," "at," "upon," "from and after," the nonal words
words "if," "in case," "provided," are used. For, areif.incase,
291 1. '^ Where a legacy is bequeathed to a person, P''o^'»dea.
it', or in case, or provided he shall attain a given l.Inthecase
age, &c.; the vesting of the legacy is suspended, just in the °* legacies.
same way as if it had been bequeathed to him, when he
should attain a given age, &c., or at, or upon, or
292 from and after his attaining such age &c.(c) (1) As (1) Payable
regards legacies payable out of real estate, it is out of real
conceived that they would be equally contingent, whether estate,
the words "if," "in case," "provided," are used, or the
words "when," &:c., for the reasons given in a subsequent
(c) See 1 Rop. Leg. 490; and Elton v. FJton, '^ Atk. .'>04, as there stated.
[ 144 ] II. 8. ii.]
AN ORIGINAL VIEW [§293—298.
Law.
See § 324-6. page, in relation to other cases where they are held
(2) Payable contingent. (2) And, as regards legacies payable 293
out of per- out of personal estate, the subtle distinctions bc-
sonal estate, tween conditions, and those clauses which are termed in a
preceding page indirect limitations, in the original sense, and
the technical distinctions between the words "if," and "in
case," and "provided," were unknown to the Civil Law, by
which legacies payable out of personal estate are governed;
and that Law therefore treats the words in question as tan-
tamount to each other, if not as entirely synonymous ex-
pressions.
The doctrine Si Titio, cum is annoruin quatuordecim esset 294
[ 145 ] fact us legatum fuerit, et is ante quartum decimum
of the Civil annum decesserit verum est ad ha^redem ejus non transire:
quoniam non solum diem sed et conditionem hoc legatum in
se continet,sieffectusesset annorum quatuordecim Nee
interest utrurn scribatur, *S7 annorum quatuordecim factus
erit : an ita. cum priore scriptma per conditionem tempus
demonstratur, sequenti per tempus conditio: ulrobiquc tamen
eadem conditio est. D. 36. 2. 22.
Non solum ita stipulari possumus. Cum mori- 295
eris : sed etiam. Si morieris. Nam sicuti inter
haec nihil interest. Cum veneris, aut Si veneris : ita nee ibi
interest. Si morieris, et. Cum morieris. D. 45. 1. 45. § 3.
2. As regards real estate,
(1) Where a devise is made to a person, pro- 296
vided he lives to attain a given age, &c., so that
the conditional expressions do not precede, but follow the
devise ; and there is no limitation over in the event of his
not attaining such age, this is a condition subsequent, giving
the heir of the testator a right of entry in case of the event
of his not attaining the age specified, instead of being a
condition precedent, suspending the vesting of the estate :
for the word " provided" is one of the three technical
words which jjroprio vigore import a condition subse-
quent.
(2) But if there is a limitation over in the event 297
of the devisee not attaining the age specified, the
words " provided" &c. are a condition, in the widest sense
of the term, of that kind which is termed, in a preceding
page, an irregular special or collateral limitation, the effect
of which is to put a termination to the estate, in the event
of the devisee not attaining the age specified, instead of
being a condition precedent, suspending the vesting of the
estate.
(3) And where real estate is devised to a person 29S
" if," or " in case" he shall attain a given age, &c.,
so that the conditional expressions follow the devise, and
there is no limitation over in the opposite event ; it is con-
2. In the
case of real
estate.
(1) Where
the word
" provided"
follows the
devise, and
there is no
limitation
over.
See§ 12,13,
15 19.
(2) Where
the word
" provided"
follows the
devise, and
there is a li-
mitation
over.
See § 7, 13,
24-43.
(3) Where
the word "if"
or the words
" in case,"
II. 8. ii.] OF EXECUTORY INTERESTS. [§299, 300. [ 1-15 ]
ceived lluit this would be a condition, in the widest sense of follow the
the term, ot" that sort wiiicli is termed in a preceding page devise.
a regular special or collateral limitation of the indirect kind, See § 7, 34,
causing the cesser of the estate, in the event of the devisee 3h, 42.
not attaining the age specified, instead of a condition prece- See § 13.
dent suspending the vesting of the estate.
299 It is certain from Sprhifi^v. C;csar, Edwards v. [ 146 ]
Ilaminond, and Bromfield v. Crowder, that this See § 351.
is the case where there is a devise over in the opposite
event. And, even where there is no sucii devise over, it is
conceived that the same construction would prevail. For,
if these words are capable of that construction where there
is a devise over, it would seem equally clear that they are
capable of the same construction where there is no such
devise over. And if they are capable of that construction,
it would seem that it ought to be adopted ; because an in-
terest, shall, if possible, be considered as vested, rather than ^^^ § 200-9.
contingent.
300 True it is, that the word " if," and the words " in Distinction
case," are directly conditional, and consequently between the
might at first sight appear even more directly and necessa- import of the
rily to import a condition precedent, than the words " when," words " if
" at," " as soon as," "upon," " from and after," which only ^"" 'V^ ,
imply a condition, and yet often denote a condition prece- , .' ^
dent. (See § 285.) But, conditions, we must remember, ,*^ '"^Pj'^
may be either precedent or subsequent, either suspensive or j^ yf\^f.^ "
destructive. (See § 12, 13.) And although the words " if u j,s goon
and " in case" are indeed more directly and necessarily con- ^g » a ^^ "
ditional ; because they properly import contingency, where- u upon,"
as the words " when," " at," " upon," " as soon as," " from " ft-om and
and after," abstractedly regarded, do not import contingency after."
to any greater degree than they import certainty ; yet, the
words *' if" and " in case" are not so directly and necessarily
suspensive, in their import and operation, as the words
"when," "at," "upon," "as soon as," from and after,"
which are necessarily suspensive, either of the ownership, See § 46, 50,
or of the possession or enjoyment.
It may be shown, independently of tlie leaning towards
vesting, and of any such decisions as those to which allusion
has just been made, that the word " if," and the words " in See § 299.
case," are, in their own nature, capable of a non-suspensive,
and yet a conditional operation. For, a devise to a person
if or in case he shall live to attain a given age, is capable
of being interpreted, (as it was in fact in Edwards v.
Hanwiond, and Bromfield v. Crowder,) without doing
any violence to language, to mean an immediate devise
to him, provided, or upon the supposition or condition,
that he shall thereafter live to attain the required age. And [ 117 ]
the same construction maybe fairly adopted, where the sub-
[ 147 ] II. S. iii.] AN ORIGINAL VIEW [§301—8.
ject matter of the condition is the sustaining a certain char-
acter, or the performance of a particnlar act; though, in
these cases, such a construction is not quite so easy of apph-
cation, as in the former case. Tlic words in the former case
amount to the same tiling, as if the words had been, if he
shall continue to live till he shall attain such an age; and
these words are as obviously non-suspensive as the words to
A., and the heirs of his body, Lords of the Manor of Dale,
See M3 24 which (./^. being Lord of the Manor at the time) of course
26 34 42. ' are not a condition precedent, but words constituting a limi-
tation, amounting, in etiect, as they do, to the same as a de-
See § 41. vise to A. and the heirs of his body, so long as they shall
continue to be Lords of the Manor of Dale.
On the other hand, the words "when," "at," "upon,"
"as soon as," "from and after," are not capable of this non-
suspensive, and yet, at the same time, conditional operation.
For there is no condition except that denoted by the period
to which they refer; and that period is a future period; and
there is no gift except at that future period. Of course these
words may be construed to mean the same as the word "if,"
or the words "in case." But such a construction would
not be a fair interpretation. It would not be a construction
of words according to one sense which they will naturally
bear, in preference to another sense which is merely their
prima facie import, as in the case of the above-mentioned
construction of the words " if," " in case :" but it would
amount to a conjectural translation of the words " when,"
"at," "upon," "as soon as," "from and after," into others
of a different meaning ; unless there were some expressions,
independent of these words, indicating an intention to con-
fer a vested interest on the devisee, and depriving such
words of their proper suspensive sense.
[ 148 ] SECTION THE THIRD.
Cases where a Devise has reference to a Time or Event
CERTAIN, and there are no Indications of, or Grounds
for supposing, an Immediate Vesting.
Where real estate is devised to a person at a 301-8
future period, and yet not by way of remainder, it
matters not, as regards the vesting, whether that period is
sure to arrive or not. If the vesting would be suspended,
according to the rule in the preceding section, in case the
event were contingent, the vesting will be equally suspend-
ed, though the event may be one that is sure to arrive.
The only difference is, that, in the former case, the interest
See§75,7.5a, is a certain executory interest, whereas, in the latter it is a
84-6, 90-1. contingent executory interest.
II. S. IV.] OF EXECUTORY INTERESTS. [§309, 310. [ 148 ]
SECTION THE FOURTH.
Cases where a Devise or Bequest has reference to a future
Age, Time, or Event, ^ot forming jnirt of t lie Original
Description of the Devisee or Legatee; and ttierc are
Indications of or Grounds for supposing, an Immediate
Vesting.
GENERAL PROPOSITION.
309 Where real or personal estate is devised or be- ^e^^ § 79-81.
queatlied to a person, and thongh the vesting in
right or interest at first sight appears to depend upon the
attainment of a given age or upon the arrival or occurrence
of an event or time which is sure to happen or arrive, or, in See § 341-3.
the case of residuary bequest without any limitation over,
upon marriage ; yet, if the attainment of such age, or the
arrival or occurrence of such event or time does not form
part of the original description of the devisee or legatee, and Sec § 281,
the suspensive expressions are of such a nature, that tliey 366.
may be construed to refer, not to the vesting in right or Sec § 344.
interest, but to the vesting in possession or enjoyment ; and
it appears, from the form of the limitation, when more close- See § 310.
ly considered, or from the intermediate disposition of the
property, or from other passages, to be probable, that it was [ 149 ]
only intended to delay the vesting in possession or enjoy- See § 328-9,
ment; in such case, the suspensive expressions will bo refer- 340, 340a,
red to the vesting in possession or enjoyment, and the inte- 345.
rest of the devisee or legatee will be actually vested in right
before the age or period specified.
SPECIFIC RULES.
Rule I.
Where the Time is not annexed to the Gift itself.
310 If the testator does not annex the time to the
devise or bequest itself, but merely to the payment,
possession, or enjoyment; or, in other words, if he first makes
a devise or bequest unconnected with the attainment of any
particular age, or the arrival of a future period, and then,
by a distinct sentence or member of a sentence, directs, that
the devisee or legatee be let into possession or enjoyment, or
be paid, as soon as, or ''when he shall attain, or at, a given
age, or when some future period shall arrive, which must See § 342-3.
arrive,(Z>) or on his attaining or from and after such age, or
the arrival of such period; the devise or bequest confers an
(b) 1 Rop. Leg. 485, 486, ed. by White; and Atkim v. Hicvochs, 1 Atk. 500,
as there stated.
Vol. II.— 16
[ 149 j II. S. iv.]
AN ORIGINAL VIEW [§311—313.
1. The appli-
cation of the
distinction to
legacies pay-
able out of
personal
estate,
which are
governed by
[ 150 ]
the Civil
Law.
Doctrine of
the Civil
Law.
Grant v.
Grant, 3 Y.
&C. 171.
B lease v.
Burgh, 2
Beav. 221.
interest immediately vested in right, but not to take effect in
possession till the age or period specified : or, as the phrase is,
with respect to a pecuniary legacy, it is, in such case, debitum
in proesenti, solvendum in fuluro. And this is the case
even where there is a limitation over in case of the death of
the devisee or legatee before the given age or period.
1. This distinction, as to the effect of disannex- 311
ing the future period from the gift itself, is firm-
ly established as regards legacies payable out of personal
estate,
""' Antiently legatory matters arising on personal 311a
estate, were solely under the jurisdiction of the
Ecclesiastical Courts; and the decisions of those Courts were
regulated by the Civil Law :" and when by degrees Courts
of Equity took cognizance of them they adopted the same
rule.(c)
The distinction in question appears in the fol- 312
lowing passage of the Civil Law : —
Ex his verbis, Do, lego .^lise Severinaj filise, meaj, et
Secunda3 decern : qua) legata accipere debebit, cum ad legiti-
mum statum pervenerit : non conditio fideicommisso, vel
legato inserta, sed pctitio in tempus legitimae setatis dilata
videtur, Et ideo, si iElia Severina filia testatoris, cui lega-
tum rclictum est, die legati cedente, vita functa est, ad hsere-
dem suum actionem transmisit ; scilicet ut eo tempore so-
lutio fiat, quo Severina, si rebus humanis subtracta non
fuisset, vigesimum quintum annum setatis implesset. C. 6.
53. 5.
'•This distinction has also been supported by 313
numerous decisions. -(f/)
Thus where a testatrix bequeathed her residuary estate
to her adopted daughter, and, in a subsequent passage, she
directed the daughter's property to be paid on the day she
should attain 25, and not till then ; unless she should marry,
her whole property then to be settled upon her and her chil-
dren. It was held that the daughter, having attained 21,
was entitled to the income of the property.
And so where a testatrix gave her residuary estate to
trustees, to accumulate, and to stand possessed thereof and
of the accumulations, in trust for all the children of /. B.^
(c) Butler's Note, Fearne, 552 {g), II.
\d) See Cases stated, 1 Rop. Leg. 479 — 480 ; nainoly, Bolger v. Macliell,
5 Ves. 509, where the period was the attainnrient of 21 ; Jackson v. Jackson,
1 Ves. Sen. 217, whore it was at another's death; Sidney v. Vaughan, 2 Bro.
Pari. Ca. 254, whore it was at the end of an ai)pronticeship ; Gaskell v. Har-
man, 6 Ves. 159; 11 Ves. 489, where it was after the realization of the assets;
Stuart v. Brvere, Ves. 558, in note ; and Faulkcner v. JloUingsworth, 8 Ves.
558, where it was after a salo of lands ; Enlwistle v. Markland, 6 Ves. 558, in
note ; and Siticell v. Barnard, lb. 522, where it was after a purchase of lands.
II. S. iv.] OF EXECUTORY INTERESTS. [§314,315. [ 150 ]
other (Ikui T. S. Ji., and to be paid on allaiiiing 23; with a
gift over, in the event of the death of all the said children
under 23. J. li. had three children; two born in the life- [ 151 ]
time of the testatrix, and a third A. IV. /?., who was born
afterwards, and attained 23. Lord Langdale, M. R., after
remarking that there was indeed a gift over in the event of
the children dying under 23, said that a gift in terms which
import a present vested interest, with a postponed time of
payment, is not made contingent by a direction to accumu-
late till the time of payment arrives; and that there being a
general description of a class, and vested interests given, and
another child born before the period of distribution, such
other child must be let in to claim a share in the property.
Three observations must here be made:
314 (1) It must be carefully noticed, that where Observations
there is no gift but in a 'direction to pay or trans- on the fore-
fer(e) or ''divide among several persons, (/) at a future ?,^!"^-^
period; though the future period is annexed to the payment, y' '' '^^*
possession, or enjoyment, yet it is also annexed to the de- ' ,
vise or bequest itself. For, in this case, the direction to pay ^^^^^ j^ ^^
or transfer or divide, constitutes the devise or becpiest itself; -^ y^^^^ -^^ ^
and, therefore, the vesting in interest is postponed, and not direction to
merely the vesting in possession or enjoyment. ^^^^ ^c.
315 (2) From cases where the future period is an- .^. ^y. ,
nexed simply to the payment, possession, or en- j-^/c^^^g to
joyment, we must be careful to distinguish those m which ^^^^g where
there is both a gift, and also a distinct direction as to the ,j^^ future
payment, possession, or enjoyment, and the future period period is
is really, though perhaps not apparently, aimexed not only annexed,
to the direction as to the payment or possession, but also to both to the
the gift itself, and consequently the vesting in interest is payment,
postponed. possession,
or enjoyment, and to ihc gift itself.
In the case of Kevern v. Williams, the future period was Kevern v.
annexed simply to the payment or possession. In that case, Williams, 5
a testator bequeathed his residuary estate to trustees, in Sim. 171.
trust for his wife, for life, with power to sell ; and, after her
decease, to preserve the then remaining part of his estate,
or the produce thereof, to and for the use and benefit of the
grandchildren of his brother, to be by them and each of them [ 152 ]
received, in equal proportion to the effects in hand and
remaining, when they and each of them should severally
attain 25, and not before. Sir L. Shadwell, V. C, held,
that the payment alone was postponed till they should at-
tain 25.
(e) Leake v. Robinson, §'722; Murray v. Tancred, 10 Sim. 465.
(/) Sanshury v. Read, 11 \>s. 7').
[ 152 ] II. 8. iv.] AN ORIGINAL VIEW [§31«.
Porter \. Bill, where a testator gave annuities to his widow and
jPoa:, 6 Sim. son, and directed that the surphis income of his real and
485. personal estate should he invested in stock, and the divi-
dends accumulated, and to be and remain assets for improve-
ment, for the benefit of such surviving child or children as
after-mentioned. And he directed his trustees, after the
death of his widow and son, to sell his real estate, and in-
vest the produce in stock as aforesaid, to be and remain
assets for improvement, for the benefit of his grandchildren
and his nephew T. 0., and to be distributed in manner and
form following, that is to say, as they should become of the
age of 25 respectively. It was argued, that there was first
a gift of the property, for the benefit of the grandchildren
and T. 0. ; and then the time for distribution followed, in
a separate sentence. But Sir L. Shadwell, V. C, said that
the distribution was part of the gift.
Dibtiuctiou At first sight, it may appear impossible to distinguish
between this case satisfactorily from the preceding ; but on a more
Porter v. attentive consideration, it will be observed, that the words
Fox, and « in manner and form" &c., are capable of being connected,
Kevern v. not only with the words immediately preceding them, i. e.
^^illiu^is. tiie words "and to be distributed," but also with the other
antecedent words, "to be and remain assets for improve-
ment for the benefit of my grandchildren and my nephew
T. 0." If the words of distribution had not been connected
with the previous words, by the word. " and," the subse-
quent words, "in manner and form" &c., would have be-
longed exclusively to the next preceding words "to be
distributed ;" just as the subsequent words in Kevern v.
TViUiams, denoting the time of payment, belonged exclu-
sively to the next preceding words "to be by them and eacli
of them received." Again; the surplus income, during the
lives of the widow and son, was to be "for the benefit of
such surviving child or children as after-mentioned." The
[ 153 ] surviving children after-mentioned were, in a subsequent pas-
sage to those above recited, explained to be, those who should
live to attain 25. Now, as the surplus income, during the
lives of the widow and son, was not given till the class, or
one of the class at least, should attain 25; so, it was to be
supposed that the produce arising from the sale was in-
tended to be disposed of in the same manner. And accord-
ingly, we find, not only that the words denoting the time
of distribution are connected with and foim part of the
antecedent gift, as already shown, but that the testator so
disposed of such produce, in subsequent clauses, as to ex-
clude, from a participation in the property, every member
of the class who died under 25, except the last survivor. —
It has been thought the more requisite to endeavour to dis-
tinguish this case from that of Kevern v. Williams, as the
II. S. iv.] OF EXECUTORY INTERESTS. [§310—^20. [ ir>.^ ]
learned Reporter states that it was carried by apjieal before
Lord Lyndburst, C.,aiid His l.,ordsbip directed a case to be
made for tbe opinion of tbc Court of Common Pleas,
thougb, before the case was argued, tbc suit was com-
promised.
316 (3) The distinction above-mentioned as to the (3) With re-
disannexing tbe time from tbc gift, *?lias been beld ference totlie
by some equity Judges, altogether without foundation, and character of
by others it has been treated as too refined. (^'•) And it is the disiinc-
expressly stated by, or may be collected from, all, or almost 1'^-'" 5 wliii.li
all the authorities, that it is a rule exclusively applicable to '^. comnioniy
legacies payable out of personal estate. disapproved
317 But, when carefully considered, it is conceived, ' ' . .
that the rule will be seen to be not "a mere posi- ' .?^ "' ,
tlve rule " of the Civil Law, or a subtle "refinement," but '^^^ ^
-. . . ^ 1 1 • 1 • • /• xi • ed on one
a distmction founded m the mtention ol the testator — m one „r.,^,.nr...nr.,-
among several kmds ot mdications oi an mteiit merely to indicationsof
postpone the actual possession. tj^g testator's
318 This is well put by the learned Voet: — Dies in- intention,
certus conditionis loco habetur, et ad hunc diem Quotation
incertum plane reduci debet astas certa, qua testator legata- from Voet.
rio legatum pra^stari voluerit, nisi dies incertus mo-
randa) tantum solutionis gratia adjectus sit: quippe quo casii
statim a morte testatoris legati dies cedit, ac legatario ante
diem moriente, legati expectatio ad hseredes transit
Quando autem dies talis incertus conditionem faciat, aut e [ 154 ]
contrario tantum morandcU solutionis gratia adjectus intelli-
gatur, voluntatis qua3stio est; et si quidem ab initio dies in-
certus pubertatis majorennitatis &c. adjiciatur legato uno
verborum complexu, veluti Titio, cum ad legitimam oetatem
pervenerit, centum do lego, credendum in dubio magis est,
diem incertum conditionis vice a testatore appositum esse,
ac ob id impedire legati transmissionem ; sin divcrsis ora-
tionibus, veluti Titio centum lego, qua; ei prrestari volo,cum
ad pubcrem letatem pervenerit, diem pubertatis potius mo-
randae solutionis gratia addidisse testatorem, quam legato,
quod ab initio pure datum erat, conditionem inseruisse,
prsEsumendum est. — Voet. Com. ad Pand. lib. 36, tit. 2,
sec. 2,
319 2. Regarding, then, the distinction as founded in o. Applica-
the intention of the testator, it is conceived that a tion of the
similardistinction is equally applicable to real estate, distinction to
320 It would seem that there can be no doubt what- real estate,
ever, that if real estate were devised to a person,
with a direction that he should be let into possession of it at
21 or some period that is sure to arrive, which would be an
analogous case, that he would take a vested interest. In-
deed, so great is the leaning in favour of vesting, that it See § 200-9,
{g) Sir W. Grant, RI. R. in Hansom v. Graham, 6 Ves. 245.
[ 154 ] II. 8. iv.]
AN ORIGINAL VIEW [§321—324.
Snow V,
Povlden, 1
Keen, 186.
3. Non-ap-
plication of
[ 155 ]
the distinc-
tion to
charges on
real estate.
would appear that words far less strong, would have the
eliect of vesting tlie interest.
In a case where a testator directed the residue of his pro-
perty to be invested in land, and given to his grandson, who,
by a subsequent clause, was " not to be of age to receive
this" until lie attained 25, and to be entitled to him and his
male heirs ; Lord Langdale, M. R., held, that the devise
took an immediate vested interest, subject to be devested, if
he should not attain 25; and that the rents and profits
were consequently applicable to his benefit during his mi-
nority.
3. But ''the distinction in question does not exist 321
in regard to charges on real estate. (A)
Mr. Cox, in his note to The Duke of Chandus 322
V. Talbot, 2 P. Wms. 612, says, that "with re-
spect to all interests arising out of land, whether the land be
the primary or auxiliary fund, whether the charge be made
by deed or will, as a portion or general legacy, for a child
or a stranger, with or without interest, the general rule is,
that charges upon land, payable at a future day, shall not be
raised where the party dies before the time of payment."
And in support of this proposition, he refers to a multitude
of cases.
The refusal to apply the distinction of the Civil 323
Law to cases not directly governed by it, as to
charges on real estate, would seem, at first sight, to be a re-
flection against its soundness, when applied to real estate
itself, or to legacies payable out of personal estate. But in
real estate, is reality this is not the case. Several reasons may be assign -
no reflection g^j f^j. refusing to adopt the rule of the Civil Law, in regard
against its ^^ charges, by deed or will, on real estate,
soundness. ^^^ Where a legacy or portion charged on real 324
Reasons lor ^^^^^^^ jg ^^ \^q p^ij at a certain age, the money
e non-ap- g-^^^^ -^ ^^^^ jj,^ existence at any time prior to the period ap-
thereof" pointed for its payment : the arrival of such period is, as it
namely were, that which is to call it into being : and therefore, there
(1) Non-ex- can be no gift except at the time for payment; for, that
istenceofthe wiiich is not in esse, cannot be given as an immediate gift,
moneybefore And hence, athough there may seem to be, and there is, in
the future terms, a prior immediate gift distinct from the time of pay-
period, ment, yet, in reality, in this case, there is no gift but at a
future time. And consequently, the principle of the Civil
The non-ap
plication of
the distinc-
tion to
charges on
(A) Pawlett V. Pawlett, 1 Vern. 321, affirmed by the House of Lords ; Smith
V. Smith, 2 Vern. 92; Yeates v. Phettiplace, 2 Vern. 416; Prec. Ch. 140;
Jennings v. Looks, 2 P. W. 276 ; Duke of Chandos v. Talbot, 2 P. VV. 602,
612 ; Prowse v. Abingdon, Gawler v. Slanderwicke, 1 B. C. C. 106, in note;
Harrison v. Naylor, 3 B. C. C. 108; 2 Cox, 247; as .stated, 1 Rop. Leg. 553—
559.
II. 8. iv.] OF EXECUTORY INTERESTS. [§325—328. [ 155 J
Law rule has no application whatever to legacies or portions
payable out of real estate. This, it is submitted, constitutes
at once a suiticient reason for the non-adoption of that rule
as to charges of this kind. But,
325 (2) The charging real estate with legacies, may (2) Favour
amount to a partial disinherison of the heir at law; shown to the
and he is never to be disinherited, except by express words heir.
or necessary implication. And hence, as between the heir
and the representative of a deceased legatee, the mere an- [ 156 ]
nexing of the future period to the time of payment may not
be regarded as a sulficiently clear indication of intention,
that the legacy itself should not be contingent, and that the
heir should be under the obligation of paying it, though the
legatee should not attain the given age.
In Tournay v. Tournay, 2 Ves. Sen. 264, the Lord
Chancellor expressly says, that, in such cases, the portion
sinks " in favour of the heir, and for the benefit of his inher-
itance." And 'the same reason is assigned by Batler.(e)
It is right, however, to add, that,
326 (3) Lord Hardwicke, after observing that the (3)Thecom-
Court had never gone upon the ground that the men law is
heir was a favourite with a Court of Equity, or that the af^hered to in
Court would go as far as it can in keeping an estate free ^'i*^ ^^^^ ^^
from incumbrances, said, that the true reason was this — "in l»"ds.
the case of lands, the rule of the common law has always
been adhered to : as suppose a person should covenant to
pay money to another at a future day; if the covenantee
die before the day of payment, the money is not due to his
representative. "(A.)
327 4. ' " It sometimes happens that legacies are 4. The ap-
charged on a mixed fund, that is, both on real and lication of
personal estate ; in that case, the personal estate is consider- the distinc-
ed to be the primary fund, and the real estate to be the aux- tion to lega-
iliary fund, for the payment of the legacies. So far as the cies charged
personal estate will extend to pay them, the case is governed ^" ^ mixed
by the same rules as if the legacies were payable out of*"""-
personal estate only; and so far as the real estate must be
resorted to for the payment of the legacies, the case is gov-
erned by the same rules as if they were charged on real
estate only. Duke of Chandos v. Talbot, 2 P. W. 601 ;
Proiase v. Mingdon, 1 Atk. 482."(/)
Rule IL [ 157 ]
Where there is a Gift of the Whole Intermediate Income.
328 '"Where the testator gives the whole of the in- Sec § 367-9.
termediate income of real estate, or of personal
(t) Butler's Notes, Co. Litl. 237 a, (1); and Fearnc, 552, {g), II.
[k) 1 Atk. 4S6, as quoted, I Rop. Leg. 556.
(/) Butler's note, Feanie, 552, {g), III.
[ 157 J II. 6. iv.J
AN ORIGINAL VIEW [§329—331.
See § 281.
See § 79-81
Doctrine of
the Civil
Law.
329
330
[ 158 ]
Batsford v.
Kehbell, 3
Ves. Jun.
363.
See also
Taylor v.
Bacon, 8
Sim. 100.
Edwards v.
Symons, 6
Taunt. 213.
estate not arising from a charge on real estate, to tlie per-
son to whom he devises or bequeaths such estate, on the
attainment ot' a certain age, but the attainment of that age
does not form part of the original description of the devisee
or legatee ; the interest of the devisee or legatee is vested in
right before that age, even though there is no prior distinct
gift — no express gift except at that age;(?7z) it being consid-
ered that the testator merely intended to keep the devisee or
legatee out of the possession or enjoyment until he should
have become better qualified to manage, and more
likely to take due care of the property. But, as we
have already seen, the gift of interim interest will
not be sudicient to vest charges on real estate. (n)
This gift of the intermediate income would seem
to have been considered as an indication of vest-
ing by the Civil Law:
Cum ab hajredibus alumno centum dari voluissct testator,
eamque pecuniam ad alium transferri, ut in annum vicesi-
mum quintum trientes usuras ejus summa? perciperct alum-
nus, ac post earn getatem sortem ipsam: intra vicesimum-
quintum annum eo defuncto, transmissum ad hseredem
pueri fideicommissum respondi : nam certam setatem sorti
solvendai pra^stitutam videri, non pure fideicommisso relicto
conditionem insertam. D. 36. 2. 26. § 1.
That the gift of the interim income is an indica- 331
tion of immediate vesting, is also established by
numerous decisions.
In one case, indeed, where a testator gave R. E. the
dividends on 500/. stock, until he should arrive at 32, at
which time she directed her executors to transfer the princi-
pal to him; Lord Loughborough, C, held, that the legacy
did not vest till 32, His Lordship observing that dividends
are always a distinct subject of legacy, and capital stock
another subject of legacy; and that there was no gift but in
the direction for payment, which only attached upon a per-
son of the age of 32.
But this has been overruled by many subsequent de-
cisions.
A testator devised an estate expectant on the decease of
his mother, to trustees, to receive and apply the rents for the
maintenance, education, and advancement of six of his chil-
{m) Goodtitle d. Hayward v. Whitby, 1 Burr. 228 ; as stated, Fearne, 245.
See also Fonereau v. Foncrenv, 3 Atk. 64.5; Hoathv. Hoath,2 B. C. C. 4 ;
Walcoft V. Hall, 2 B. C. C. 30.5 ; and 2 Meriv. 386 ; and Dodson v. Hay, 3
B. C. C. 404, 409; as slated in Roper on Legacies. See also Murray v. Ad-
denhroolc, 4 Russ. 407 ; staled ^ 6i34.
(n) GawUr v. Standerwickc, 1 B. C. C. 106, in note; as stated, 1 Rop. Leg.
558.
II. 8. iv] OF EXECUTORY INTERESTS. [§33l. [ 158 ]
dreii, whom lie named ; and inunedialely on E. (the young-
est) attaining 21, then, he devised the same to his said six
children, and to the survivors and survivor of them, their
heirs and assigns, as tenants in common. One of the six
children died in the testator's lifetime, and 7!, another of
them, died before E. attained 21. It was held that T. had,
at the time of his death, a fee simple estate in one undivided
fifth, which descended to his heir at law.
Again, a testator gave his three granrlchildren 500/. stock Hanson v.
apiece, when they should respectively attain their ages of Graham, 6
21, or days of marriage, provided it was with consent of his Ves. 239.
executors; and he directed that the interest should be laid
out for the benefit of his grandchildren until 21 or marriage.
One of them died at the age of nine. Sir W. Grant, M. R.,
held, that she took a vested legacy. His Honour observed,
that the word " when," as referred to a period of life, stand-
ing by itself and unqualified by any words or circumstances,
is a word of condition ; for, it is just the same, in speaking
of an uncertain event, whether we say " when" or "if" it
shall happen, [that is, the word " when" is certainly no less See § 300.
suspensive than the word '< if "] ; and that such is the doc-
trine of the Civil Law, from which our rules as to pecuniary
legacies were borrowed. (6 \'es. 243.) That the judgment
m May V. Wood, which implies the reverse, as reported,
must be regarded as inaccurate. That the only cases alluded
to in that case, are cases of real estate, where it was evident
that only the payment was postponed for a particular pur-
pose, namely, in order that the devisee might not have the [ 159 ]
possession and management until 21, as in Goodtitle v.
Whitby, and Doe v. Lea; or for the payment of debts, as in
Boraston's Case; or for the benefit of a third person, as in
Manfield v. Dugard. That if those cases therefore had
occurred as to pecuniary legacies, there was no ground to
say that the decision ought to have been different ; for,
from the very same circumstances and expressions it might
be collected that the word " when" was used, not as a con-
dition, but merely to postpone the enjoyment, the possession
in the meantime being disposed of another way. {lb. 24 6,
247.) That, in the present cause, he should have deter-
mined against the plaintiffs, if it stood merely upon the first
words. {lb. 249.) But the legacy was accompanied with
an absolute gift of the interest, which, according to the estab-
lished rule, had the eliect of vesting it. {lb. 250.)
So where a testator gave the interest of money in the j^^^f. y
funds to J. H. L., for his second daughter that should be Qoudge, 9
born, for her education, till she should attain 21; and after Ves. 225.
she should attain 21, he gave the interest to her and to her
lieirs for ever, she being christened Z; and, in default of
such issue, he gave the same to the second son o{ J. H. L.
Vol. II.— 17
[ 159 ] II. S. iv.]
AN ORIGINAL VIEW
[§331.
Doc d. Dol-
leij V. Ward,
9 Ad. & El.
582.
[ 160 ]
Rolfc V.
Sowcrhy, 1
Taml. 1376.
Brcedon v.
Ttigmon, 3
M. & K.
289.
Watson V.
Hayes, 9
Sim. 000.
And he gave 30/. a year to J. H. L. till the said second
daughter should attain 21; and, after slie should attain 21,
then, lie gave the same to her and her heirs for ever. Sir
W. Grant, M. R., held, that both bequests were vested: for,
as to the first bequest, Z. was to have the whole benefit
during her minority •, and, as to the second bequest, suppos-
ing that the Court could not supply the words expressing
the purpose of education, and that the father himself was
entitled, still, it was an interest in remainder, to take effect
in the child at the age of 21.
So where a testator, after giving a life interest to his
daughter .S'., in freehold ajid leasehold estates, devised the
same to such of her children as she then had, or might have,
if a son or sons, at 23, and if a daughter or daughters, at 21,
their heirs, executors, administrators, and assigns, as tenants
in common ; with survivorship, in case of the death of any
child or children of S. under the above age ; and a devise
over, in case of the death of all of them under that age.
And he directed that the rents should (after all necessary
outgoings for repairs, ground-rent, and insurance) be applied
for and towards the maintenance of the children of S. until
they should become respectively interested as before men-
tioned. It was held, on the authority of Doe d. Boake v.
Nowell, and Rcmdoll v. Doc d. Roake, that the children took
vested interests in remainder, immediately on the death of
the testator.
And where a testator directed his personalty to be in-
vested in the hands of his executors, for the sole use and
maintenance of his daughter, until she arrived at 21; and
when she attained 21, to receive the overplus, if any; Sir
John Leach, M. R., held that the daughter took a vested
interest, though she died under 21.
So where a testator gave one third of his personal estate
to his daughter, and, in case of his decease, to have the in-
terest therein, and principal when she attained 25. Sir John
Leach, M. R., held that it was an absolute gift to the daugh-
ter, and that the payment only was postponed ; that the tes-
tator meant not to qualify or restrict the previous gift, but
to distinguish between the time when she was to receive the
interest, and the time when she was to receive the principal;
that upon both grounds therefore the daughter must be held
to have taken an immediate vested interest.
Again, where a testator desired his executors to pay 251.
yearly, by quarterly payments, for the maintenance and
education of .S'., until she should attain 21, or be married;
when he required his executors to pay her 500/. S. died
under age, and unmarried. Sir L. Shadwell, V. C, held,
that she took a vested interest ; because 25/., being the in-
II. 8. iv.] OF EXECUTORY INTERESTS. [§332— 33G. [ 160 ]
terest on 500/. at 5/. per cent., might fairly be regarded as
intended to be the interest oT the legacy.
And in another case, Sir James VVigram, V. C, held, that Lester v.
the legacy was vested, observing that the testator had given Bradley, 1
the whole interim interest for the benefit of the legatees, 'larc, 10.
which wonld vest the legacy, even if the gift and the direc-
tion to pay were not separate from each other.
With regard to the reasons for the foregoing rule. The reasons
332 I. It has been argued, that " a legacy given at a for the rule ;
certain age, with interest in the meantime, is vest- namely,
ed, because, when a testator directs interest to be paid out 1. Giving of
of that legacy in the meantime, he means to separate that [ ^^l ]
legacy from the bulk of his estate injmediately."(c») Tliis interest
may perhaps be true with respect to a pecuniary legacy: shows inton-
but this reason for construing a gift of the interhn income as tion to sepa-
a feature of vesting is obviously inapplicable to residuary I'^te the leg-
bequests, and to devises of real estate, and legacies charged ^^y '™f" "'^
^ \. 7 o o residue.
tliereon.
333 2. Another reason, however, has been assigned, 2. Intermedi-
for construing a gift of interest as a mark of imme- ^^'^ income
diate vesting, which is'applicable, in its spirit, though not in '^ o'^en in
terms, both to residuary bequests, and to devises of real respect ot a
■ • ■ 1 vpstpn inter*
estate, where the internn nicome is given to the person to ' ,l
whom the postponed devise or bequest is made. ^^ 'g t ^
334 Lord Hardwicke, in Hubert v. Parsons, 2 Ves. fj^gff '^ ^
Sen. 264, as a reason why interest is an evidence
of vesting, remarks, that " interest follows the property of
the principal, as the shadow, the substance." And it has
been observed, that as no interest could accrue to the legatee
before the time appointed for payment of the principal, the
testator's intention in giving such interest must be presumed
to have been, to give the capital in all events to the legatee,
and to have allowed him intermediate interest, as a recom-
pense for the forbearance of the capital. "(/?)
335 The reason furnished by these observations ap-
plies, in terras, to personal estate alone ; but they
suggest a general reason why the gift of the whole interme-
diate income of real or personal estate is considered to be
evidence of an interest immediately to vest the eslate itself;
and the reason they so suggest, is, that such income is con-
sidered to be given in respect of the actual existence of a
vested interest in the property itself.
336 3. But why then is the gift of the intermediate 3. But this
interest insufficient to vest charges on real estate ? construction
Does not this reason equally apply to such charges, as well of a girt of
as to devises of real estates, and legacies payable out of per- intermediate
income not
(0) Arg. of Counsel, in Hanson v. Graham, 6 \'es. .lun. 241.
(p) 1 Kop. Leg. 494.
[ 161 j II. 8. iv.]
AN ORIGINAL VIEW [§337, 338.
being one
that arises
from neces-
[ ^G2 ]
sary impli-
cation, such
gift is not
sufficient to
vest an in-
terest, apart
from the
leaning in
favour of
vesting.
sonal estate? In answer to this, it is to be observed, that
the construction or intendment, that the income is considered
as given in respect of a vested interest in the property itself,
is not one arising from necessary implication. True it is,
that, inasmuch as a vested interest would give a right to the
income, the gift of the income i7icfi/ have been given in re-
spect of a vested interest; and that the settlor or testator
may have thought it advisable expressly to give the income,
with the view of preventing any one irom supposing, that
he meant to defer the vesting in right, as well as in posses-
sion or enjoyment ; or, he may have given it in ignorance
of the fact, that an interest vested in right, but not in pos-
session, would confer a right to the intermediate income,
without the necessity of any express gift of such income.
But, on the other iiand, not desiring to accumulate the in-
come, but yet intending to keep the estate itself in contin-
gency, he moT/ have given the intermediate income in
respect only of the probability that the party would attain
the required age, and thereby acquire a vested interest, and
on account of the expediency that he should receive a suit-
able education and support.
The gift, therefore, of the whole intermediate 337
income, would seem insufficient, in itself, to vest
real or personal estate, the possession of which is deferred
till the attainment of a given age; insufficient, that is, apart
from the strong leaning which exists in favour of vest-
And as the
leaning in
favour of
vesting is
counter-
poised by
other consi-
derations in
the case of
charges on
real estate ;
the gift of the
intermediate
income is
insufficient
to vest such
charges.
See § 200-9.
[ 163 ]
nig.
338
Now, assuming that this is the case, we are fur-
nished with an adequate reason why the gift of
the interim income is insufficient to vest charges upon real
estate, although it is sufficient, of itself, to vest devises of
real estate, and interests arising out of personal estate. It
would appear from the reasons already given for the sink-
ing of charges on real estate, even where the future time is
in terms annexed to the payment only, that there is no
leaning in favour of the vesting of charges on real estate,
or none but what is counterpoised by a leaning in favour of
the heir, and by other considerations. Whereas, in the
case of devises of real estate, and interests arising out of
personal estate, there is a strong leaning in favour of vest-
ing, and one which is not counterpoised by any other con-
siderations. It is true, in regard to devises of real estate, that
the heir may be disinherited by giving effect to a devise; and
therefore, at first sight, the favour shown to the heir, might
seem equally to counterbalance the leaning towards vesting,
in the case of a devise of real estate, as in the case of a charge
upon real estate created by will. But it is to be observed,
that if real estate is devised at a future time, and the inter-
mediate income is given to the devisee, the favour which is
II. 8. iv.J OF EXECUTORY INTERESTS. [§339— 340a. [ 163 ]
in general shown to (lie lieir at law, is connterbalanced by
the manifest intention of the testator that he shonld take
nothing. So that the leaning in favour of the heir has a See § 325.
direct eflect in counterbalancing the leaning in favour of
vesting, in the case of charges on real estate, but has no such
effect in the case of devises of real estate itself, where the
intermediate rents are disposed of. And besides this, we See § 324,
have seen that there are other reasons for holding such 32C.
charges not to be vested, which do not ap])ly to devises of
real estate itself, or interests arising out of personal
estate.
339 It may be mentioned in this place, however, But if a
though, indeed, it would seem surticiently clear legacy
without any judicial determination upon the point, that charged on
*» where a legacy charged on real estate was expressly di- i'^^' estate is
reeled to vest immediately on the testator's death, but to be expressly di-
paid to the legatee on attaining 21, and the interest in the reeled to vest
meantime was directed to be applied for maintenance, and '^^'^'''p ^"^
the legatee died before 21, the representative of the legatee ^^' ."^f'^^^.^j
was held to be entitled, by force of the express direction ^^ ^J^^
that the legacy shonld vest on the testator's death. (y)
Rule III.
fVhe?'e Executors are empowered to make advances out of
Portions.
340 And where the executors are empowered to
make advances out of the respective portions of
children, to whom a residuary beqnest is made on their
attaining a certain age, without any limitation over ; the
children take immediate vested interests.
A testator directed his residuary personal estate to be y/,./(j„ y.
equally divided amongst his children on their attaining 21 ; Mills, 1
and that his executors should make any moderate advances, Bcav. 315.
for the purpose of placing his children out in a profession, [ 164 ]
from their respective portions. Lord Langdale, M. R.,
held that a son who died under 21 took a vested interest.
Rule IV.
Where the Postponement is apparently from Necessity, or
for the t/Jccomplishtnent of some Special Purpose in the
meantime, unconnected with a Suspension of the Pro-
perty or Ownership.
340a Where there is, in terms, no devise or bequest See § 341-3.
except on the attainment of a certain age, or
at a future period which is sure to arrive, but such age or See ^ 281.
period does not form part of the original description of the
(q) Wntkim v. Cheelt, 2 Sim. and Stu. 199.
[ 164 ] II. 8. iv.] AN ORIGINAL VIEW [§340a.
devisee or legatee ; and the postponement seems merely to
arise from the circumstances of the estate; or appears to be
for the accomplisliment of some special purpose, uncon-
nected with a suspension of the property or ownership; — as,
for the purpose of 'paying the debts of the testator, out of
the intermediate income(r) or out of a part of the estate,
or 'merely for the improvement of the estate, in point of
value(5) or otherwise; or ^merely for the benefit or con-
venience of some other person to whom the income, or a
particular interest, is given in the meantime ;{l) — in such
[ 165 ] case, it is held that there is a suspension of the possession or
enjoyment, only and not of the property or ownership, as in
the case of a present vested interest in real estate, subject to
a term for years, or as in the case of an ordinary vested re-
mainder in real estate, even though there is no prior distinct
gift, no express gift but at the future age or period.
Bacon v. Sir Edmund Lacon, Bart., upon the marriage of his
Proctor, daughters, demised an estate to trustees, upon trust for rais-
Turn. & ing certain sums to be settled upon the daughters and their
Russ. 31. children : and, by his will, (after charging the estate with
See also other sums to be settled upon the same trusts; with por-
Marshall v. tions for sons ; and with a further sum in discharge of a
Holloicay, 2 mortgage of another estate ;) devised the first mentioned
Swanston, estate to trustees, upon trust, from time to time to receive
^^^- the rents and profits, and invest the same in the purchase of
stock, so as to accumulate and form a fund for the payment
(r) Boraston's Case, 3 Rep. 19 ; as stated, Fearne, 242 ; and noticed by Sir
W. Grant, in Hanson v. Graham, 6 Ves. 239; as stated, § 331.
(s) Love V. V Estrange, Bro. Pari. Ca. 59, 8vo ed. ; as slated, 1 Rop. Leg.
499. See also Doe d. Wheedon v. Lea, 3 D. & E. 41 ; as slated, Fearne, 246.
(t) 1. As REGARDS REAL ESTATE, sce Maufield V. Dugard, 1 Eq. Ab. 195 ;
as stated, Fearne, 245; and noticed by Sir W. Grant, in Hanson v. Graham,
6 Ves. 239; as slated, § 331.
2 As REGARDS LEGACIES PAYABLE OUT OF PERSONAL ESTATE, SCC Monk-
hov'se V. Holme, 1 Bro. C. C.298; Att. Gen. v. Crispin, lb. 366; Benijon v.
Maddison, 2 Bro. C. C. 75, ed. by Belt ; and Scarf eld v. Howes, 3 Bro. C. C.
90 ; as stated, 1 Rop. Leg. 503, ed. by White. Wadley v. North, 3 Ves. 364.
3. As REGARDS LEGACIES PAYABLE OUT OF REAL ESTATE, SCe King V.
Withers, Forrest, 117 ; 3 Bro. Pari. Ca. 135, 8vo ed.; Hutchins v. Foy, Com.
Rep. 716, 723; Lowther v. Condon, 2 Atk. 127; Ernes v. Hancock, 2 Atk.
507; Sherman v. Collins, 3 Atk. 322; Hodgson v. Rawson, 1 Ves. Sen. 44;
Tunstall V. Brachcn, Ambl. 167 ; 1 B. C. C. 124, in note; Enibrey v. Martin,
Ambl 230; Manning v. Herbert, Ambl. 575; Jeal v. Tichcner, 1 B. C. C.
120; in note; Clarke v. Ross, 2 Dick. 529; 1 Bro. C. C. 120, in note; Kemp
V. Davy, 1 Bro. C. C. 120, in note; Pawsey v. Edgar, 1 Bro. C. C. 192, m
note; Thompson v. Dow, 1 Bro. C C. 193, in note; Morgan v. Gardiner, 1
Bro C C. 194, in note; Daivson v. Killet, 1 Bro. C. C. 119; Godwin v. Mm-
day, 1 Bro. C. C. 191 ; and Walker v. Main, 1 Jac. & Walk. 1,7; as stated.
1 Rop. Leg. 560—571.
II. 8. iv.] OF EXECUTORY INTERESTS. [§340a. [ 165 ]
of the aforesaid charges; and, after the same should have
been raised and paid, upon trust for the person in whom,
for the time being, the baronetcy should be vested, to the
end tliat the estate might go along with the title, so long as
the rules of law and equity would permit. It was held,
that the trust for accumulation was good; and that an estate
for life vested at once in the succeeding Baronet, subject to
the charges, instead of being postponed till after the accu-
mulation should be determined. Graham, Baron, sitting for
the Master of the Rolls, observed, that there was no accu-
mulation for the purpose of suspension ; that the Act of the
39th and 40th of Geo. III. did not apply ; and if it did, there [ 166 ]
was an exception, in the case of debts and portions; and
that it was quite clear that the enjoyment, and not the pro-
perty, was tied up.
In another case, a testator devised leasehold houses, held Goodright
for a term renewable, to J. T. S. for his own use and benefit d. Revdl v.
on his attaining 21 ; upon trust that iiis (testator's) trustees Parker, 1
should renew ; and for that purpose make such surrender Maul. & Sel.
as should be requisite ; and, out of the rents, to raise money 692.
for the fines: and also to permit the trustees to receive the
rents during the minority of/. T. S.; and the maintenance
of/. T. S. during his minority to be paid out of the rents.
J. T. S. died under 21. It was held, that this was in effect
a devise to the trustees till J. T. S. attained 21, with a vest-
ed remainder to J. T. S.
Again ; a testator devised land to his wife, for life ; and, Bayley v.
after her decease, to trustees, upon trust to sell, and, out of Bishop, 9
the proceeds, to lay out 500/., part thereof, in the purchase Ves. 6.
of an annuity for the life of his son. Tiie son died in the
lifetime of the' widow. It was argued that he took nothing;
because, a legacy charged upon land does not vest till the
time of payment. But Sir W. Grant, JVI. R., though he said
it was impossible to reconcile all the cases of legacies payable
out of land, held that on the authority of Dawson v. Killet,
1 Bro. C. C. 119, the son took a vested interest on the testa-
tor's death. He previously expressed his opinion, that it was
clear that the testator meant an annuity, in the proper sense,
to be purchased, which was the same, in effect, as giving a
legacy of 500/. to his son : for, on a bill filed, he might have
received the money, and the Court would not have compel-
led the trustees to lay it out in an annuity.
So where a testator gave to G. P. a sum of stock at the Blamire v.
testator's wife's death, and all the residue of his estate he Geldart, 16
gave to his wife. Sir W. Grant, M. R , held that, in etiect, Ves. 314.
he took a vested remainder ; the order in which the clauses
are arranged in a will, not being material.
And where a testator devised in trust for his wife for life, Goxilhourn
if she should so long continue his widow; and, after hex \, Brooks, 2
[ 166 ] II. 8. iv.]
AN ORIGINAL VIEW
[§340a.
You. & Coll. deatli or marriage, for the maintenance of his son T. B., and
539. his daughter E. B., until 21 ; and then, at the death or mar-
[ 167 ] riage of his wife, he devised to his son, T. B., and the heirs
of his hody, only yielding and paying to his daughters, M.
and E., 100/. each. M. attained 21, and died after the mar-
riage of the widow, but before T. and E. attained 21. Al-
derson, B., held that the legacy did not lapse, the payment
being postponed for the convenience of the estate, and not
as a condition annexed to the person of the legatee.
Cousins V. Again ; where a testator gave all his real and personal
Schroder, 4 estate, after payment of debts and legacies, to his wife, for
Sim. 23. life; and directed that, at the end of 12 months after his
death, 1000/. should be laid out in trust for his daughter,
for life ; and, after her decease, to divide the capital
amongst her children, when and as they should attain 21.
Two of the children attained 21, but died in the lifetime of
the widow; one of them within 12 months after the death
of the testator. It was argued, that in order to acquire
vested interests, the legatees must be living at the time
when the legacies were to be paid ; and Ctmse v. Barley,
3 P. W. 20, and 3 Atk. 219, were cited in support of this
view. But Sir L. Shadwell, V. C, held, that the children
having attained 21, took vested interests.
Poole V. And so where a testator devised real estates to »/?., for
Terry, 4 life ; remainder to B., in fee ; and he gave a legacy to C,
Sim. 294. to be paid to her by B., within 12 months after .^.'s death;
and he charged all his estates with the legacy. C. died in
A:s lifetime. Sir L. Shadwell, V. C, held, that the pay-
ment was postponed on account of the circumstances of the
estate, and that the legacy vested on the death of the tes-
tator. His Honour added, that this case fell within the
principle of Loivther v. Condon, 2 Atk. 127, and the cases
of that class.
In one case, a testator, after giving legacies to three other
children at a future time, gave his residuary personal estate
to his executors, to be equally divided among his four chil-
dren, whom he named; the share of his daughter J. E. to
be invested for her separate use, for life, and the principal
for her children, at her decease, if more than one, share and
share alike; provided, that in case any of his children should
die before his, her, or their shares should become payable,
leaving any child or children of such of his said children
who should happen to survive their parent, such child or
[ 168 ] children should be entitled to their parent's share, equally,
if more than one, and if but one, then, the whole to such
only child. ./. E. had three children at the date of the will,
and six others afterwards, three of whom died in her life-
time. Sir R. P. Arden, M. R., held, that the bequest
vested in those children only who were living at their
Spencer v.
Bullock, 2
Vcs. 687.
II. 8. iv.J OF EXECUTORY INTERESTS. [§3ll. [ 165 J
mother's death. The learned Judge observed, that the
proviso, though it could not apply to the case of J. E., yet
was strong to show the intention ; though his opinion was
chiclly grounded upon the circumstance of J. E. having
three children at the date of the will. That if it had vested
in them, and they had died before the testator, it would
have become lapsed. That the testator could not mean the
three then living to take vested interests, which, in case of
their death before him, would have made it undisposed of
residue; biU he was clearly of opinion, that he meant to
dispose of that residue: nothing, therefore, vested in the
children till the death of their mother.
So far, liowever, as this decision rests upon the latter Observations
ground, it would appear questionable: for, apart from the on Spencer
proviso, the cases would seem to show, that all the children v. Bullock.
who were in esse at the death of the testator, would take
vested interests; and all others born afterwards, would also
take vested interests, as soon as they came in esse.
Rule V.
Cases of Residuary Bequests on Marriage.
.341 In the case of a residuary bequest, where there
is no limitation over on the non-happening of the
event on which the gift is apparently contingent, the gift of
the wliole interim income in trust for the residuary legatee,
will be a sufficient indication of immediate vesting, though
the event specified is that of marriage, unless it is to be
with consent: because, where there is no such limitation
over, "every intendment is to be made against holding a
man to die intestate, who sits down to dispose of the resi-
due of his property."
A testator gave the residue of liis personal estate, upon Booth v.
trust, to pay the dividends equally between his grand- Booth, 4
nieces, P. B. and ..^. B., until their respective marriages; Ves. 399.
and from and immediately after their respective marriages, [ 169 ]
to transfer their respective moieties thereof, unto them re-
spectively. P. B. died without ever having been married.
Sir R. P. Arden, M. R., directed one moiety to be paid to
her executors, Ilis Honour being of opinion, that only the
payment or actual possession was postponed until the mar-
riages of the grand-nieces, i. e., until the time when the
testator thought they would want it. His Honour observed,
that every intendment is to be made against holding a man
to die intestate, who sits down to dispose of the residue of
his property, (4 Ves. 407.) That Garbut v. Hilton, and
Atkins v. Hiccocks, 1 Atk. 381, 500, and Elton v. Elton,
3 Atk. 504, were cases of a mere legacy, and not of a resi-
due, and thiMi the legacv was given on a marriage with a
Vol.. II.— 18
L 169 ] II. S. iv.] AN ORIGINAL VIEW [§342—344.
given consent, and it was impossible, in that sort of case, to
say the legatee could be entitled without that; and that
Batsfurd v. Kebbell, was also a mere case of a legacy ;
whereas, this was in fact an absolute gift of the residue,
and accordingly, the testator spoke of it as their shares of
the residue.
Rule VI.
Cases of Particular Bequests or Devises where the Period
is an Vncertain Period other than that of the Jittain-
ment of a given *^gc.
See § 310. But, in general, neither the disanncxing of the 342
See § 328, period from the gift itself, nor the disposition of the
340a. ' property, or the beneficial interest therein for any special
purpose in the meantime, will be a sufficient indication of
immediate vesting, where the period is one that may never
arrive, unless it is the period of the attainment of a certain
age, not being an advanced age, which is regarded in a dif-
See § 351a. ferent light from other uncertain periods or events, because
it is most probable, generally speaking, that a person will
live to attain the age of 21, or some few years older, and,
in fact, that only involves the probable continuance of
something which already exists, namely, of a life already
commenced.
Where the event may never arrive, there is a 343
strong improbability in supposing that the testator
intended the devisee to take a vested interest, and yet to ex-
[ 170 ] elude him from the possession till the arrival of the uncer-
tain period : it is more natural to suppose, that the testator
intended the interest of the devisee to be contingent until
that period should arrive, though, in cases where the be-
quest is a residuary bequest, and the event is that of mar-
riage, the improbability above mentioned is considered to be
overborne by a still stronger improbability.
Rule VII.
Where the Event of attaining a given Age, is introduced
by Words importing a Contingency, and constituting
a Condition Precedent.
And as the interest is in general deemed contin- 344
gent, where the period or event to which the de-
See k 342-3 ^'^^ ^^ bequest has reference, is entirely contingent, so
' w where a devise has reference to the attainment of a given
age. and it is preceded by the conditional expressions, " if,"
See § 290, or " in case " he shall attain, &c., instead of being followed
298-300. ' by these or any other conditional expressions, or of being
preceded by the expressions, "when," "at," "upon," "as
II. 8. v.] OF EXECUTORY INTERESTS. [§34G. [ 170 ]
soon as," "from and after;" or where a bequest is either See § 290-5.
preceded or followed by any one of the conditional expres-
sions, "if." "provided," or "incase he shall attain," &c.;
there, inasmuch as the words, " if," " provided," " in case,"
properly import contingency, the use of these words indi-
cates that the testator considered the attainment of the given
age as an event that might never arrive; and hence, not-
withstanding the disannexing of the period from the gift, or
the existence of a prior devise or bequest, it will be presum-
ed that the testator intended the interest of the devisee to be
contingent until the attainment of the age specified,(?0 /or
the reasons given under the next preceding rule, for holding
an interest to be contingent, where the devise or bequest
has reference to other events of an entirely contingent cha- [ 171 ]
racter.
Rule VIII.
Where a Trustee is appointed for the Intermediate Time]
If a bequest be made to children when they shall attain a
certain age, and the testator appoints a person to be a trus-
tee for them during the intermediate time, it is a sufficient
indication of immediate vesting.
A testator gave to two children, certain personal estate, Branstrom
when they should attain 21, to be equally divided between v. Wilkin-
them ; and she appointed their father in trust for them during son, 7 Yes.
their minority. Sir W. Grant, M. R„ said, that only the 420.
payment was postponed, since the testator would not have
appointed a trustee for them of nothing.
SECTION THE FIFTFI.
Cases lohere a Devise has Reference to an Event which
would be implied by the JVords introducing a Vested
Remainder.
346 Such words as when, then, after, as soon as, and
^even the word if,(a) or the words in case, though
apparently amounting to a condition precedent, which must See § 13.
be performed before a remainder or quasi remainder can be- See § 159,
come a vested interest, have no other force than to point 168.163b.
out the time when the remainder or quasi remainder is to
be clothed with the possession or enjoyment, in cases where
the condition to which they refer, would have been neces-
(m) See Atkinson v. Turner, 2 Alk. 41 ; Elton v. Elton, 3 Atk. 504 ; and
Knight V. Cameron, 3 Bro. C. C. 471 ; as stated 1 Rop. Leg. 490, 491 ; which
are cases of personal estate. And sec Fearne, 240, and Brownsword v. Ed'
wards, 2 Yes. Sen. 243; as cited Fearne, 506, 548, in regard to devises.
(a) Hokroft's Case, Moor, 487.
[ 171 ] II. S. V.]; AN ORIGINAL VIEW [§317—350.
sarily implied without them by the words which nsiially
introduce a vested remainder. Thus,
Cases from ''Where a testator devised to *S'. iiis sou, after 347
Fcarne, with tlie deatii of his wife; and if his three daughters,
observations or either of them, should overlive their mother and *S'. their
thereon. brother and his heirs, they to enjoy the same houses for the
term of their lives, remainder to J. and IV.; the word heirs
meant heirs of the body, and the limitation to J. W. was a
[ 172 ] vested remainder :(<?>) because the condition of the daughters
surviving till the expiration of the preceding estates, would
have been necessarily implied, inasmuch as their estate in
remainder was only to be for life, and therefore could not
take effect at all unless they survived.
And so = where a testator devised three houses 348
to his three children respectively, and willed, that
if either of his said children should depart this life, then the
houses so given them should be equally divided between
them that are living, every child took a particular estate in
his or her house for life, with a vested remainder to the others
for their lives.(c) The death of the children was an event
certain, constituting in itself the boundary of their estates,
by force of the general limitation implied under the old law.
(See §28, 33.) And the survivorship would have been im-
plied in the words commonly used in introducing a vested
remainder after a life estate, as the remainders were only
for life.
See § 170- In both these cases, the remainders depended on 349
182. no other uncertainty, as to the possession itself,
than that of tiieir enduring beyond the preceding estate.
Thus, in the first case, the remainder to J. and W. de-
pended on no other uncertainty than that of their interests
continuing, without being aimihilated by death, surrender,
or forfeiture, till the expiration of the preceding estates.
And, in the second case, each child had a remainder in
the houses of the others, which was sure to take effect in
possession, if such interest in remainder did not determine
by his own death, surrender, or forfeiture, before the pre-
ceding estates of the others.
It was urged that the remainders in the second 350
case, were remainders to the survivors, and there-
fore contingent, inasmuch as it was uncertain wiiich of the
persons would survive. But this case is distinguishable
[ 173 ] from a grant to two for their joint lives, remainder to^ the
survivor for life, or in tail; for, here, so long as their joint
{},) Webh V. Hearing, Cro. Jac. 415; as slated, Fcarno, 243. See also
King V. Rumball, Cro. .Jac. 448, and Chadock v. Cowlctj, Cro. Jac. G95 ; as
stated, Fearne, 24.3. And Anon. Case, 2 Ventr. 303 ; as stated, Fearnc, 244.
(c) FurUscue v. Jihbut, Pollex. 479 ; Sir T. Jones, 79 ; as stated, Fearne, 243,
II. 8. v.] OF EXECUTORY INTERESTS. [§350. [ 17:3 ]
lives conliinic, ncillier can say that he has a rernaiiider:
there is but one remainder; and that is conlini,'ent on ac-
count of the person, apart from the consideration of its dura- See § 94,
tion. In the former case, however, there are as many remain- 187.
ders as there are persons, and each has a remainder, though
it cannot take efl'ect in possession unless it endures beyond
the others' life interest, that is, unless tlie person entitled to
it survives the other, in whose house the remainder subsists.
And the cases above mentioned are also clearly distinguish-
able from ''a devise to il/., during her natural life ; and, from
and immediately after her death, to the lirst son of her body,
if living at her death, and the heirs male of such first son ;
and for default of such issue, to the second son of her body,
if living, at the time of her decease, and the heirs male of
such second son; and so to the third and other subsequently
born sons, in tail male; and for default of such issue, re-
mainder over.(c/) For, here, the words "if living at iier
death," imported a condition precedent, instead of merely See § 13.
expressing that kind of condition which would have been
implied without them by the words which usually introduce
a vested remainder: because they evidently amounted to the
same as the words, " to the first son of her body who shall
happen to be living at her death," which would have clear-
ly passed a contingent remainder of the fourth kind, as in See § 187.
tiiat case, the person who would eventually be entitled,
could not be ascertained till her decease.
And where a testatrix gave a legacy, in trust, to pay the Pearsall v.
interest to 31. S., for life, for her separate use ; and, after Simpson, 15
her decease, to divide the capital among her children then Ves. 29.
living, to be paid at 21 ; and if there should be no child who
should survive M. S\, and attain 21, then, to pay the inter-
est to her husband, 7?. .S'., for life ; and from and after his
decease, in case he should become entitled to such interest,
then, to divide the principal among the testatrix's first
cousins. M. S. died without leaving issue, and though the
husband died in her lifetime, and therefore never became [ 174 ]
entitled to the interest, the limitation over was established ;
Sir VV. Grant, M. R., observing, that there was no sense in
making the right of tlie first cousins depend on the husband's
taking the interest; and that it was not a condition prece-
dent, but fixing the period at which the legatees over should
take, if he ever took.
{d) Demi d. Radchjffe v. Bagshaire, G 1). & E. 512 ; as stated, Fearne, 246,
note (/j).
[ 174 ] II. S. vi.]
AN ORIGINAL VIEW
[§351,
I. Wheretlie
condition oi'
attaining a
certain age
is introLluced
by the words
""if," " in
case," or
" provided,"
and follows
the devise,
and there is
a devise over
simply in the
event of the
non-attain-
ment of that
age.
See § 97-8.
Spring V.
Cxsar, 1
Roll. Abr.
415, pi. 12.
Edwards v.
Hammond,
1 New Rep.
314, as sta-
ted, Fearne,
[ 175 ]
245,note(o').
Broomfeld
V. Crowder,
1 New Rep.
313, as
stated,
Fearne, 247,
note [k)
Doe d. Plan-
ner V. Scud-
amore,2 Bos.
& Pul. 289.
SECTION THE SIXTH.
Effect of a Limitation over.
I. Where a testator devises to a person " if," or 351
" in case," or "• provided" he lives till a certain age,
so that the expressions "if," or "in case," or " provided,"
do not precede, but follow the devise, and constitute part of
the same sentence in which it is made; (See § 297 — 300,
344) and there is a devise over, simply in the event of his
not attaining such age ; the conditional expressions are not
construed as a condition precedent, but as forming a regular
special limitation of the indirect kind, or an irregular limita-
tion, (See § 13, 34 — 43) amounting to the same as the words,
if he should continue to live till, or if he should not die be-
fore, he attains 21; and the interest, instead of being a
springing interest, or a contingent remainder, (See § 117,
159, 170 — 176) is held to be a vested interest, either imme-
diate, or in remainder, as the case may be, subject to be
devested, as well by the operation of the special limitation,
as by the operation of the devise over.
A fine was levied to the use of »/?., and his heirs, if B. did
not pay him 20 shillings on the 10th day of September ; and
if B. paid it, to the use of ^., for life ; remainder to B. and
his heirs ; and it was held not to be a condition precedent,
but that the estate in fee vested in e-^. immediately, to be
devested on the subsequent payment.
Jl. surrendered lands to the use of himself, for life ; re-
mainder to the use oi J. H. and his heirs, if it shall happen
that the aforesaid J. H. shall live to attain the age of 21
years; provided always, and under the condition neverthe-
less, that if it shall happen that the aforesaid J. H. shall die
before he attain the age of 21 years, then to remain to the
use of A. and his heirs. It was held that J. H. took a vest-
ed interest before 21.
And where a testator devised all his real estate to two,
for their lives successively ; and, after the decease of the
longest liver of them, to B., if he lived to attain the age of
21 years, but not otherwise; and in case he died before he
attained that age, then in the manner therein mentioned.
The two particular tenants died before B. attained 21 ; and
it was held that B. took a vested interest, determinable on
his dying under 21.
But where a testator devised lands to G. Z., his brother
and heir at law, for life ; and from and immediately after
his death, then, he devised the same to C. B., her heirs and
assigns, in case she should survive G. Z.,but not otherwise;
and in case C. B. should die in the lifetime of G. L., then,
he devised the same to G. L., his heirs and assigns. It was
II. 8. VI.] OF EXECUTORY INTERESTS. [§351a, 352. [ 175 ]
argued that either the devise to C. B. was a vested remain-
der, subject to be devested upon a condition subseijuent,
Hke the case o{ Edwards v. Hammond; or that the devise
to the lieir at law for hfe was to be considered void, and the
devise to C. B. considered as an executory devise, to take
eflect if the l*eir at law should die before C. B. But it was
held, that the devise to C. B. was a contingent rennaindi^r,
and was barred by a recovery suil'cred by G. L., on the
ground that it was clear that the event was to happen be-
fore the estate should vest, and that a limitation which may
be construed as a contingent remainder, shall not be con-
sidered as an executory devise.
Now this case may be clearly distinguished from Ed-
luards v. Ham,m,ond.
351a The event, in that case, namely, the attainment Observations
of 21, is one which is often considered as a quasi on the pre-
certain event, so that it is not re(iuired that the vesting of an cedingcases,
estate should be suspended till the happening of such event; showing the
it is sufficient if the estate be devested in case it should not pnncipic ot
happen, especially as that event is not of such a character as j!'^ tlistmc-
to constitute the indispensable pre-requisite to the attaching jl^Qg^^^J^^^gg"
of any sort of interest iu the party; on the contrary, it is ^^^^^gfj^g
rather lo be supposed, that the testator, considering it most (.^^^^1^;^,,^ [^
probable that the party would attain 21, should be maintain- r j^-q" -.
ed in a suitable manner, out of the rents and profits, as he ^j^^ attain-
would be if he should take a vested interest, instead of allow- mentofacer-
ing those rents and profits to go to his heir at law, whom he ^^^^ ago, and
has shown no intention to benefit. But, in the principal those where
case, there was evidently an estate for life, with a contingent the condition
remainder to C. B. depending on her surviving the tenant is of another
for life; with an alternative limitation over, in the event of kind,
her dying before the tenant for life. For, C. B. was not a See § 128.
relative of the testator, but an unmarried female friend, who
resided with him, and superintended his family, and conse-
quently there was more reason for considering her survivor-
ship as a condition precedent, than there would have been See § 13.
if her children or heirs were relatives of the testator. And
the reason which existed in the case of Edwards v. Ham-
mond for holding the remainder vested, did not apply to this
case, as C. B. would have been entitled to the rents and pro-
fits as soon as G. L. died, and no sooner, whether the re-
mainder were vested or contingent.
352 The eflect of the devise over upon the prior in- The effect of
terest, in such cases as these, is to aid in rendering the devise
the prior interest defeasible; and in some cases, also, if the over in the
condition referring to the attainment of the specified ages above cases,
begins with the word <' provided," to change that condition |^^)?^;
from a condition subsequent, properly so called^ into an irre- t^^^v J-' }^-
gular special hmUation. ^
[ 176 j II. S. vi.J AN ORIGINAL VIEW [§353—355.
Thn reason The true reason, it is conceived, why the interest 353
\\ hy the in- of the prior devisee, in such cases, is a vested inter-
lercst of the est, is tfiis : The condition, as already observed with regard
prior devisee, iq cases where there is no devise over, is of such a form, that
in cases fall- j|- j-,-,ay fairly be regarded as a condition, in the widest sense
ingwithnithc of the term, of that kind which in a preceding page is called
aboNcriile, 13 ^^^ indirect special or collateral limitation, amounting to the
a \es e in- g,^jj-,g j^g jj^g words, if he should continue to live till, or if he
' should not die before, he attains the age of 21 years, and
ce ij 4-4J. siniilar, in legal character, to the indirect special or collateral
limitation, "to i^., if she shall continue a widow." And as it
See § 200-1. is, in its own nature, capable of this construction, the rule
which requires an interest to be construed as vested, if pos-
sible, rather than contingent, at once steps in, and imposes
[ 177 ] upon the Court the duty of holding that the devisee takes an
immediate vested interest, subject to devestment.
The devise over is not in the slightest degree in- 354
strumental in aiding the Court in construing the
prior interest as vested; much less does it constitute the sole
reason of this construction.
Cases where There are, however, two cases in which it has 355
the prior do- been decided, that a vested interest was taken by
visee was the prior devisee, where the expressions used were not "if,"
held to take or "in case," or "provided," but, "when" he shall attain
a vested in- 21, or "at" 21 ; which were expressions that are not capa-
terest on ac- ble of being construed as limitations; (See § 34 — 42, 298 —
count of the 300), and where there was nothing but the devise over which
devise over, could justify the Court in construing the interest of the prior
devisee to be immediately vested.
Dne d. Hunt ^ testator devised to J. M., when he attained 21, to hold
V. Moore, 14 to 'i™ his heirs and assigns; but in case he should die be-
East, 601. fore he attained 21, then he devised to his brother when he
attained 21, to hold to him his heirs and assigns. It was
held, on the authority of Broornficld v. Crowder, and other
cases, that J. M. took an immediate vested interest, subject
to be devested upon his dying under 21.
/>oc d. And where a testator devised his estates to J. R., for life ;
Roake v. and, on his decease, to and among his children, equally, at
Nowell, 1 the age of 21, and their heirs, as tenants in common ; but if
Mau. & Sel. only one child should live to attain such age, to him or her,
327; Ran- and his or her heirs, at his or her age of 21. vVnd in case
doll d. Doe J, /^. should die without lawful issue, or such issue should
v. Roake, 5 die before 21, then over. Lord Ellcnborough, C. J., said, he
Dow. 202. could see nothing in this devise to distinguish it from Broom-
jield\. Crowder, and Doe v. Moore. And it was held by the
House of Lords, in affirmance of the judgment of the Court
of King's Bench, that the children of J. 7?. took an immedi-
ate vested remainder, subject to be devested in the event of
their dying under 21.
II. 8. vi.] OF EXECUTORY INTERESTS. [§35G. [ 177 ]
356 It is with tlie most unfeigned diffidence, and with But these
the greatest rehiclance, that the author ventures to cases are not
question the soundness of these decisions. But still he can- to be relied
not refrain from humbly suggesting, that in deciding these on.
cases, upon the supposed authority of Edwards v. Hum- ,
7nond, and liroomfidd v. Crowder,\\\Q learned Judges were
deciding tliem upon the authority of cases from which tliey [ 178]
most materially, though perhaps only technically, diftered ;
and that these decisions ought, at the farthest, to be regarded
as authorities, in the determination of future cases, vvhere
the terms of the will are precisely the same. And, in fact,
it may be questioned, whether they ought not to be alto-
gether disregarded, as founded in a mistaken view of pre-
vious cases: {ov,debile fundamentiimfalUt opus. Indeed,
there is little doubt, but that sooner or later they will be
disregarded, if not expressly overruled : for, experience has
shown, »as a learned author observes, with respect to
another point, " that no rule of construction, however sanc-
tioned by repeated adoption, is secure of permanence,
unless founded on principle. "(«)
When we consider the perplexing state of uncertainty
and confusion, in which the preliminary part of the learning
of conditions exists, even in standard text books, it is not
surprising that the existence, in a particular instance, of a
condition of that kind, which is, in a preceding page of this
Essay, termed an indirect special limitation, should escape See § 7, 3.
the notice of those on whom the interpretation of a devise See §34, 37,
devolved. The case of Randoll v. Doe d. Roake was de- 42.
cided by the House of Lords, in affirmance of the judgment
of the Court below; but then it is most material to observe,
that it was decided upon the authority of Doe d. Hunt v.
Moore, as well as the other cases, so that that decision is
hardly to be regarded as an independent decision by the
House of Lords and the Court below, that the case was
analogous to Edwards v. Hammond, and Broomfidd v.
Crowder,oi that it was, independently of the authority of
prior decisions, a case of a vested interest; but rather, as a
decision that it was governed by the next preceding case of
Doe d. Hunt v. Moure, by which indeed it was most un-
doubtedly governed, if any weight was to be attached to
that case. If the case of Randoll v. Doe d. Roake had
preceded the case of Doe d. Hunt v. Moore, there would
liave been a far greater weight of presumption in its fa-
vour; but, as it is, the author humbly submits that it is to
be regarded as but little more than a following of a bad [ 179 ]
precedent.
(a) 2 Jarm. Powell on Devises, 733.
Vol. II.— 19
[ 179 ] II. S. vi.]
AN ORIGINAL VIEW
[§357— 3G0.
The interest It is perfectly clear, upon principle, nnd firmly 357
of the prior established by avUhority, that the expressions used
devisee must in these cases of Doe d. Hunt v. Moore, and Randall v.
have been J)qq (J, Roake, would have amounted to conditions prece-
dent, suspending the vesting, if there had been no devise
over. Was, then, a devise simply in the event of the prior
devisee dying before 21, and not in the complex event of
his dying, without issue, before 21, sufficient entirely to
alter the effect of the preceding words? Quite the reverse.
For,
held contin-
gent, if thc^-e
had been no
devise over ;
and the de-
vise over
could not
render it vested.
II. Effect of II. A devise or bequest over simply in case of 358
a devise over the non-happening of the event on which the prior
simply on the devise is apparently made contingent, (except in the case of
non-happen- ^ survivorship clause hereafter mentioned,) affords some
degree of prcsum])tion, that the prior devise was only to
vest on the happening of that event: so that, though, on the
one hand, it is not sufficient, of itself, to show that the prior
devise is contingent ; yet it may be called in aid of other
circumstances in evidence thereof.
1. In support of this proposition, we may ob- 359
serve, on the one hand, that where a testator
devises to a person when he shall attain a given age, with
a devise over in case of his death before that age ; and the
testator either gives the whole of the intermediate rents and
profits to the prior devisee, or leaves him entirely unpro-
vided for in the meantime ; there, the devise over will not
indeed afford any necessary presumption that the testator
ing of the
event on
which the
prior devise
is apparently
made contin-
gent.
1. Such a
devise over
does not af-
ford a neces-
sary pre-
sumption
that such
prior devise intended to suspend the vesting of the prior interest till the
is contingent, given age. For, the testator, considering it most probable
that the prior devisee would attain the given age, may have
intended that he should in the meantime be entitled to the
rents and profits ; and, with that view, may have intended
that he should have a vested interest, subject to be devested
in the event of his dying tmder the given age. And if the
testator has expressly given him the whole of the interme-
"diate rents and profits, he may have done so, either from
ignorance of the fact that the devisee would be entitled to
them, as incidental to an immediate vested interest, or from
[ 180 ] an excess of caution. And if, on the contrary, he has en-
tirely omitted to provide for the devisee in the meantime,
he may have omitted to do so, because intending the de-
visee to have a vested interest, he knew that the devisee
would be entitled to the intermediate income, as incidental
to his vested interest.
2. But still But still, on the other hand, though such a de- 300
it atibrds vise over does not furnish a necessary presumption,
some pre- it does so far furnish some degree of })resumption, that the
II. 8. vi.] OF EXECUTORY INTERESTS. [§361,362. [ 180 ]
testator intended to suspend the vesting till the given age, sumption
tlmt there is a greater probability that such was his inten- thereof,
tion, where there is such a devise over, than there is where
no such devise over exists. Where there is no such devise
over, it may with great reason he urged, that if the testator
had intended the devise to be contingent until the happening
of the event specified, he would naturally have made some
provision for the case of that event not happening, and the
consequent failure of the interest dependent on the happen-
ing of that event ; and therefore, that the absence of any
such provision furnishes a presumption that he intended
such interest to be immediately vested in right, though not Sec § 79-81.
to be vested in possession or enjoyment, till the happening
of the event specified, or, if vested in possession or enjoy-
ment, to be subject to devestment on its not happening. Sec § 97-8.
Whereas, if there is a devise over simply on the non-hap- See § 3G4-5.
pening of the event on which the prior devise is apparently
made contingent, that argument in favour of the devisee
taking a vesting interest is excluded. In such case, the
testator expressly gives the property to another on the non-
liappening of the event ; and therefore, so far from there
being any reason to think that he considered the prior
interest to be vested, as we have seen there would be if
there were no devise over; it is prima facie rather to be
inferred, that he intended the prior interest to be contingent;
and considering it to be so, he added a provision for the
case of the non-happening of the event, and the failure of
the prior interest.
361 But, even admitting that such a devise over af- q^.^ ^^ .^\\
fords no reason whatever to suppose tiiat the prior events, it af-
interest is contingent, it certainly allbrds no reason whatever fords no
to suppose the prior interest to be vested; for, if the testator ground for
were desirous of preventing an intestacy, or of excluding supposing
the residuary devisee from'the property comprised in the [ ISl ]
prior devise, in case of the non-happening of the event such prior
specified, he must, in order to accomplish that object, make devise to be
a devise over, to take cilect in case of the event not hap- vested,
pening, wheiher the prior interest were unquestionably
vested, or unquestionably contingent; and consequently
such devise over amounts to nothing more than a further
disposition, designed as a provision for the case of the non-
happening of the event specified, and not in any way tend-
ing to explain the nature of the prior interest, as regards
vesting, unless, as we have already observed, it be to atlbrd
some presumption that such prior interest was intended to
be contingent.
362 The proposition in support of which these ob-
servations arc made, is borne out by authority.
[ 181 ] II. S. vi.] AN ORIGINAL VIEW [§362
Skeyv. A testator gave his personal estate to trustees, upon trust
Barnes, 3 to pay the interest to his daughter E. S., for her V\(e', and,
Meriv. 335. after her decease, to divide the principal among the children
of his daughter, and the issue of a deceased child, as she
should appoint; and, in default of appointment, to be
equally divided between them ; the portions of the sons to
be paid at 21, and the portions of daughters at 21 or mar-
riage; but in case there should be no such issue of his
daughter, or all such issue should die without issue before
their portions should become payable, then over. E. S.
left several children surviving her, one of whom afterwards
died unmarried, under 21. Sir W. Grant, M. R., held, tliat
the shares vested immediately, subject to he devested ; that
the contingency had not happened on which they were to
be devested; and consequently, the share of the deceased
child passed to her personal representative. His Honour
said, that a devise over of the entirety might be called in aid
of other circumstances to show that no interest was intended
to pass, but that ^it was not alone sufficient for that pur-
pose, (6) and that though Scoft v. Bargeman, 2 P. W. 69,
would seem to prove tiie contrary, yet he doubted whether
the Reporter had correctly stated the reason on which the
decision was grounded.
[ 182 ] On the other hand, where residuary real and personal es-
Judd V. tate was given by will to trustees, upon trust to pay the in-
Judd, 3 come of one third part to the testator's daughter S. J., for
Sim. 525. life ; and, upon her decease, to stand seised or possessed of
Hunter v. the said one third in trust for the child or children of S. J.,
Judd, 4:S\m. if more than one, share and share alike, and to be paid,
455, assigned, and transferred to them, upon their respectively
attaining 25; but in case -S'. J. should leave but one child
her surviving, then, the whole of such one third should go to
such only child, upon his or her attaining 25, and be trans-
missible to his or her heirs, executors, or administrators ;
and in case S. J. should leave no child her surviving, or such
child should not attain 25, then, to his two other daughters,
or the survivor, and their or her children as therein men-
tioned. The other two thirds were limited in a similar
manner to the other two daughters, except that the words,
"and to be paid, assigned, and transferred to them," were
not inserted in the limitations in favour of the children of the
other two daughters; and the words, "and be transmissible
to," were not introduced before the words, " his or her heirs,
executors, or administrators," in the limitation in favour of
an only surviving child of the second daughter. And, in
default of issue of his three children who should attain 25,
then his trustees should stand seised or possessed in trust for
(h) See Deane v. Test, and Blease v. Burgh, supra.
II. 8. vi.] OF EXECUTORY INTERESTS. [§3n2a. [ 1S2 ]
his real and personal representatives. Then power was
given to the trustees to apply all or any part of the income
for the benefit of any child or children who should be under
25. Sir L. Shadwell, V. C, held, that the gift to the chil-
dren of *S'. ./. was void for remoteness. His Honour observed,
that the gift, in case .V. ./. should leave one child only lier
surviving, was clearly contingent on that child attaining 25;
and the same construction must be put upon the gift in case
she should have more than one child; and when the be-
quests in favour of the children of the other two daughters
were considered, the question was placed beyond all doul)t.
This decision not being deemed satisfactory, because certain
cases, and particularly, Faryner v. Fra7icis, 2 Sim. & Slu.
505, liad not been cited, the point was again argued, and ad- *
ditional cases were cited, lint his Honour observed, that
they did not bear any resemblance to the present case; [ 183 ]
because they were cases of one single gift only : whereas,
in this case, the testator's meaning could not be ascertained
without taking into consideration the wliole will. And he
then showed that the second clause giving the property to an
only surviving child of .S'. J., and the gift over to the sur-
viving daughters antl their children, and the gift over of the
entirety, as well as other parts of the will, completely con-
trolled the first clause, and made it evident, that the children
did not take vested interests before they attained 25.
362a III. Where, indeed, real or personal estate is III. Devise
given to a class of persons on their attaining a cer- oyer to sur-
tainage, with a clause of survivorship, providing, that in case vivors of a
of the death of any of them under that age, the share of him, class affords
her, or them so dying, shall go to the survivors or survivor; some pre-
the existence of such clause of survivorship affords some pre- sumption ol
sumption in favour of holding the interests of the class to be ^^^ '"§•
vested before the given age, inasmuch as if they were contin-
gent, that clause would be superfluous. Eut stdl this presump-
tion is of a very low degree : for, the clause may have been
added from excess of caution or from inadvertence. At all
events, the presumption thereby aflbrded is insufficient to
overcome tlic force, or to change the sense, of express
words of a known legal import.
A testator devised a freehold estate to his wife, during Russell v.
her widowhood; remainder to his nephew, for life; re- Buchanan,2
mainder to the children of his nephew, in fee, as tenants in Cromp. &
common. And, by a codicil of even date with the will, he Macs. 561;
directed, that neither his nephew nor any issue of his ne- S. C. 7 Sim.
phew should, by virtue of his will, take a vested interest 623-
unless and until they should respectively attain 21; and
that in case of the death of any such children under 21,
their shares should go to the survivors upon their respec-
tively attaining 21. The nephew, who became the heir at
[ 183 J II. S. vi.] AN ORIGINAL VIEW [§363—365.
law, attained 21, married, and died, leaving five infant
children, having made his will, wherehy he devised the
premises to certain other persons. The Barons of the Ex-
chequer certified that he took a fee, as heir at law, and that
the infant children took nothing. The children being dis-
satisfied with this certificate, applied to the Vice-chancellor,
r IS 4 1 '^•'' ^- Shad well, that the opinion of another Court of Law
'- ^ ^ might be taken. And it was argued, that, according to the
construction adopted by the Court of Exchequer, the sur-
vivorship clause would be superfluous; for if the shares did
not vest in the children until 21, there could be nothing to
go over in the event of their dying under 21 ; and therefore
that the word " vested" meant " absolute and indefeasible."
But His Honour said, that the rule, in construing instruments,
is to give to the words their natural legal import, although
thereby other words may be rendered useless ; and that the
interests of the children were contingent on their attaining
21, especially as the survivorship clause, though super-
fluous according to that construction, ended with the words
"upon their respectively attaining 21."
IV Wherea ^^- Where the event on which the prior devise 363
prior devise is apparently made contingent, is the attainment of
is apparently a certain age, and there is a limitation to the issue of the
made contiri- prior devisee, in case of his death, under that age, leaving
gent on the issue ; with another limitation over, in case of his death,
attainment of under that age, without issue ; similar observations may be
acertain age, made with regard to the effect of these limitations over,
and there is to those which have already been made with respect to
a devise over the case of a limitation over simply on the non-happening
on death ^f the event on which the prior devise is apparently made
under that contingent.
age without y jg^^^ ^vhere a testator devises or bequeaths 364
issue,after an ^^^^ ^^, pg^sf^,jj^i estate to a person "when," or "as
mtermediate ^^^^ ^^„ j^^ ^^^^^ ^^^^j^^^ ^^^ ,,^^^„ ^^ ,, upon," or " from and
ctevise to ine ^^^^j.,, j^-^ attaining a given age, with no limitation to his
V^Tvh i^^^®' ^" ^'^^^ °^ '^'^ ^^^^^^ under that age leaving issue, but
V. V here a ^^.^j^ ^ limitation over, in case of his death under that age,
^'^"^1^^^"°^ and without issue, or (which amounts to the same thing)
made with a with a limitation over in case of his death under that age,
similar de- which is only to take efl'ect if he has no heir, or for default
vise over, but of his issue ; in such case, his interest is vested in right,
there is no though not in possession or enjoyment before the
intermediate age specified. In some of these cases, the interim 365
devise to the income was given to the devisee, or there were other
issue. words rendering it probable that only the actual possession
See 6 79-81. was postponed. But it is conceived that such a limitation
* over is amply sufficient, of itself, to show that the devisee
r 185 ] was to take a vested interest immediately; because the estate
is not to go over if he dies under the age specified, leaving
II. 8. vi.J OF EXECUTORY INTERESTS. [§3G5. [IS".]
issue; and lliercforo it iniist have been intended that he
should take a vestc-d interest, in order that his issue might be
let in, if he should die under the age specified.
A testator bequeathed the residue of his personal estate /?/""'/ v.
to trustees, upon trust to apply so much of the interest and ff tlfifuns, .3
dividends as might be necessary, for the maintenance and -^I-*^ I'^- 111-
education of the children of his daughter, until they should
respectively attain the age of 24 ; and then, upon trust to
pay and transfer all the said residue, and the undisposed of
interest and dividends, unto and amongst all her said chil-
dren, when and as they should respectively attain that age ;
and with benefit of survivorship between them, in case any
or either of them should die under that age, and without
leaving lawful issue; with a limitation over, in case all of
tiiem should die under that age, and without leaving lawful
issue. The question was, whether the interests limited to
the children were not too remote. Sir John Leach, M. R.,
held, that the time of payment alone was postponed ; and
that the children took a vested interest, with an executory
devise over, in case of death under 24, without leaving issue :
because, in a gift of that nature, he observed, the question
whether the time of vesting is postponed, or only the time
of payment, depends entirely upon the whole context of the
will; and, in that case, the gift over was not simply upon
the death under 24, but upon the death under 24, without
leaving issue. And he said that all the cases upon the sub-
ject, except that of Bull v. Prit chard, 1 Russ. 213, before See § 366.
Lord Gilibrd, were reconcileable with the distinction he
took. With regard to that case, it was urged at the Bar,
that the implication arising from the peculiar form of the
limitation over, was not pressed in the argument, nor noticed
in the judgment; and that, in the principal case, it could not
be supposed, that the testator intended that if any of the
children died under 24, and left issue, the issue should be
wholly unprovided for; when the gift over was not to take
place if issue was left, at whatever time the death might
happen.
Again ; a testator, being seised of an undivided third in Machin v.
lands demised to him and two others their heirs and assigns Reynolds, 3
during the lives of certain other persons, devised the same to [ 1S6 ]
his sister and nephew, for their joint lives, and to the sur- Rj'oJ. &
vivor during his or her life, in case there should happen to l^ing. 122.
be no issue living ; but in case both or either of them should
leave issue, then to the survivor, one moiety, for life, and
the rents and profits of the other moiety to be applied for
the maintenance of the children of the sister or nephew so
dying during their minorities; and, after the death of the
survivor, the other moiety for the maintenance of his or her
children during their minorities; and, when and as such
[ 18G ] II. 8. vi.] AN ORIGINAL VIEW [§365.
children of the sister and nephew, if any, should attain 21,
then, the whole was given to them, as tenants in common in
fee ; and if but one, to such only child in fee ; and in case the
sister and nephew should both die without leaving issue, or
being such, they should die nnder 21, and without issue,
then over. The Court of Common Pleas certified, that
E. S. il/., the daughter of H. M. the nephew, took, upon the
death of the testator, an estate in fee simple in remainder,
during the lives of the cestui que vies, subject to be devested,
in part, by the birth of other children of the nephew and
sister, or either of them, and determinable altogether in the
event of her dying in the lifetime of H. M., or under age,
without leaving issue.
Farmer r. In another case, a testator gave his residuary real and
Francis, 2 personal estate, in trust for his wife, for life ; remainder for
Bing. 151. his daughter for life ; and, from and after their decease, in
and 2 Sim. tYusi for, and he thereby devised unto and amongst, all and
6c Stu. 505. evejy i\^q lawful issue, child, or children, of his daughters,
as should be living at the decease of the survivor of them
his wife and daughter, equally amongst them, if more than
one, to be divided share and share alike, when and as they
should respectively attain 24, and to their respective heirs,
executors, administrators, and assigns, as tenants in common,
and if only one, then, the whole thereof to such only or sur-
viving child, his or her heirs, executors, administrators or
assigns, upon attaining the said age. But, in case there
should be no such issue living at the time of the decease of
the survivor of them his said wife or daughter, or being
such, all should die without lawful issue, under the age of
24 years, then in trust for, and he thereby gave the property
[ 187 ] to E. and T. F. in fee, as tenants in common. The Judges
certified, as to the real estate, that the children of the testa-
tor's daughter, who were living at the death of the survivor
of the wife and daughter, took estates in fee, as tenants in
See § 76. common. And Sir John Leach, V. C, held that they took
absolute vested interests in the personal estate.
Murkin v. So where a testator gave to each of Iiis six grandchildren,
P/tillipson, a legacy of 50/., when the youngest should come of age ;
3 M. & K. and the said grandchildren to receive the interest of the said
257. 50/. mitil the youngest child should come of age, when an
estate should be sold, out of the produce of which, he, in a
subsequent part of his will, directed the legacies to be paid.
If either of those children should not live to come of age,
nor have an heir born in wedlock, the said 50/. to be equally
divided among the surviving children. One of the grand-
children married during her minority, but afterwards attained
21, and died, leaving a child, before the youngest grandchild
attained that age. It was held, that she took an immediate
vested interest in the legacy. Sir John Leach, M. R., said,
II. S. VI.] OF EXECUTORY INTERESTS. [§365. [ 167 J
" In this case, there is no direct gift until the youngest grand-
child attains the age of 21 years: but, inasmuch as interest
on the legacy is given in the meantime from the death of
the testator, this, if it were given out of personal estate,
would be considered as an immediate vested iiUerest, and
will be so considered in tiie present case, if, upon the whole
will, it should a])|)ear that tlie legacy does not sink into the
land. The payment of these legacies might well have been
postponed only for the convenience of the estate, and if that
were so, the case would not be within the principle tliat the
legacy lapses lor the benefit of the land. There is more-
over great weight in the argument, that the legacy would
not sink into the laud, because the testator has directed, that
if any of the six grandchildren should die under the age of
21, without leaving an heir born in wedlock, the legacy
should vest in the survivors. In that case, the testator has
declared, that the legacy shall not sink into the land ; and,
a fortiori, it must be intended, according to the principle of
Lord Ilardwicke, in Lowther v. Condon, that he could not
mean the legacy to sink into the land, when a grandchild
attained 21, and died, leaving a child born in wedlock."
, And where a testator devised his real and personal estate r is8 ]
to trustees, upon trust, as to a certain estate, to convey and Philips v.
assure the same to G. H. A. when and so soon as he should Williams, 5
attain 21, and also to i)ay to G. H. A. 1000/. upon his at- Sim. 41.
taining 21. But, in case G. H. A. should die without issue Pkippsv.
before attaining 21, then, the said estate, together with the .Ackers, 3
said sum of 7000/., was to sink into, and become part of, the Clarke Fin.
residue. And he gave the residue to another, in a different 702.
form of words, which were held to create a contingent in-
terest, depending on the attainment of the age of 24 years.
Sir L. Shadwell, V^. C, on the authority of Broomfield v.
Crowdcr, Doc v. Moore, and Doe v. Nowell, held, that G.
H. A. took an immediate vested interest, liable only to be
devested ; and consequently that he was entitled to the rents
and profits of the estate, though he had not yet attained 21.
Tlie case was carried by appeal to the House of Lords; but
judgment has never been given, the parties, it is understood,
liaving entered into an arrangement. But, in support of the
view of the case which the Vice-Chancellor took, it was
urged, both before him and in the House of Lords, that it
was manifest that the testator did not intend the property to
go over, if G. H. A. died under 21, leaving issue. That the
issue, however, could not take except through him, and he
must be seised of some estate which they could inherit. And
that it was necessary, therefore, that G. H. A. should take
an immediate vested fee, to enable him, if he should die
imder 21, to transmit the projiertv to his issue.
Vol. II.— 20
[ 188 ] II. 8. VI.]
AN ORIGINAL VIEW
[§366.
Warfrr v.
Wur(er, 2
Bro. & Bing
3-49.
[ 1S9 j
VI. Where
the attain-
ment of a
certain age
forms part of
the descrip-
tion of the
legatee or
devisee.
Bull V.
Pritchard,
1 Russ.213.
And so where a testator devised lands to trustees and their
heirs and assigns, until J. W., the son of his sister, M. W.,
should attain 21, and, if he should die in the meantime, until
H. J., second son of M. IV., should attain 21, and, if H. J.
should die in the meantime, until the daughter of M. IV.
should arrive at that age ; upon trust, among other things,
for the maintenance and education of J. W., till he should
arrive at 21; and, when J. IV. should atttain that age, to
pay him the residue of the rents, if any; and, if J, ^F. should
die before 21, then for the maintenance and education of H.
J., till he should arrive at 21; and, when H. IV. should arrive
at that age, to pay him the residue of (he rents, if any ; and,
when and as soon as J. TV. should attain 21, or, in case of
his death, when and as soon as H. W. should arrive at that
age, or, in case of his death, when and as soon as the daugh-
ter of 71/. TV. should arrive at 21, he devised the premises to
the trustees, their heirs and assigns, to the use of J. W. and
his issue in strict settlement ; and, for default of such issue,
to the use of H. W. and his issue in strict settlement ; and,
in default of such issue, to the use of the daughter of M. W.
and her issue, in like manner. And the testator directed,
that his furniture and plate should remain in his house as
heir looms. The Court of Common Pleas certified, that,
upon the death of J. fV, under the age of 21 years, M. E.
M. W.. his only child, became entitled, as tenant in tail male,
of the real estate, and as absolute owner of the heir looms;
and that she became so entitled immediately upon the death
oft/. W.; and that the personal representative oi J. IV. was
entitled to the savings of the rents and profits accrued in the
lifetime o{ J. W.
VI. But where the attainment of a certain age 366
forms part of the original description of a devisee
or legatee, (See § 281 — 4) the vesting is suspended till the
attainment of that age, even though the limitation over is
only to take effect in case of his death under that age, with-
out issue.
Leaseholds and residuary personal estate were devised
and bequeathed, in trust, after a life interest to the testator's
daughter, for the children of his daughter who should attain
the age of 23, share and share alike, with benefit of survi-
vorship, in case of the death of any or either of them under
that age; and, in case there should be but one child, then,
intrust for such only child; and, in case there should be no
such child or children, or, being such, all of them should die
under the age of 23 years, without lawful issue, then upon
trust for the testator's brother and sisters. The testator's
daughter had, at the time of his decease, an only daughter,
who was then about 15 years of age, and died under the
age of 23 years, without issue. It was held, that the attain-
II. 8. vii.J OF EXECUTORY INTERESTS. [§366a. [ 189 ]
mcnt of 23 years was made a condition precedent to the
vesting of any interest in the children; so that the vesting
of the interests of any unborn cliildren might not take place [ 190 ]
till more than 21 years after a hfe in being; that the Court
could not distinguish between children born in the life-time
of the testator, and those who were or might be born after-
wards; nor could it (pialify the words, "in case there should
be no such child," by adding the words, "living at the death
of the tenant for life," the testator's daughter; and therefore
all the limitations after her death were void : the limitation
to the children was void, because it was to vest on too
remote an event ; and the bequest over to the brother and
sisters of the testator was void, because it was to take
effect on one of two conditions; and the first of those con-
ditions could never take place, since there hud been issue ;
and the second required the occurrence of an event which
was too remote, namely, the children dying without issue,
under 23.
SECTION THE SEVENTH.
Of the Effect of Subsequent Explanatory Words.
366a An interest which, according to the form of its
limitation, is most undoubtedly a vested interest,
may be rendered contingent by subsequent explanatory
words, so long as they afford a necessary, though not per-
haps an obvious, inference, that such interest was not in-
tended to be a vested interest,
A testator devised real estate, after the decease of his Critchett v.
daughter, to her second, tliird, fourth, and every younger Taynton, 1
child or children, as tenants in common ; but, in case his Russ. & AT.
daughter should die leaving no issue, or if his daugliter's 541.
second, third, fourth, and every other child should not
attain his, her, or their respective age or ages of 21 years,
and should not be married before such age with the consent
of his the testator's son and daughter, and the survivor of
them, then he devised his estate over. He then directed, that
the consent should be testified in a particular manner; and
added — " otherwise such child or children shall not have or
receive any benefit from this my will." The devise to
them as tenants in common would have given them a vested See § 97-8.
interest immediately, subject to be devested by the opera- See § 148-9.
tion of the conditional limitation, in the event of their
dying under 21 without having been married with consent. [ 191 ]
But the subsequent words prevented them from taking a
vested interest immediately ; because, from such interest
they would be entitled to maintenance, and would conse-
quently take a benefit under the will, even though they
might marry belbre 21 without consent, or die before that
[ 191 ] II. 8. viii.] AN ORIGINAL VIEW [§367, 368.
age unmarried. The subsequent words served to render
the hniitation to tlie children dependent, for its vesting,
See § 13. upon tiie event, as a condition precedent, of their attaining
21, or marrying with consent before 21.
SECTION THE EIGHTH.
Of tlie Effect of an Allowance for Maintenance.
I. We have seen, that, in general, a gift of the 367
whole intermediate income, for tlie maintenance
or benefit of the person to whom real estate, or personal
estate not arising from charges on land, is devised or be-
queathed, on the attainment of a certain age, is, in conse-
quence of the strong leaning in favour of vesting, construed
a sufficient indication of immediate vesting, where there is
no limitation over in case of the death of the party under
that age.
II. But, where there is such a limitation over, 368
the indication of vesting furnished by the gift of
the whole intermediate income, is so far countervailed by
the limitation over, as not to be sufficient evidence of vest-
ing.*
A testatrix gave the interest of her residuary estate to her
four sisters, daring their lives; and directed, that, on their
deaths, the interest of their respective shares, should, at the
discretion of her executor, be applied to the maintenance
and education, or accumulated for the benefit, of the chil-
dren of each of them so dying, until such children should
severally attain the age of 22 years, when they were to be
entitled to their mother's share of the principal ; with limi-
tations over, in the event of the death of either of them
under that age. The sisters had several children, born in
the testatrix's lifetime. Sir John Leach, M. R., said : " I
am not able to distinguish this case from the residuary gift
in Leakey. Robinson. ... In that case. Sir William Grant
[ 192 ] proceeds upon this principle — that the prescribed time can-
not be considered as marking only a time of postponed pay-
ment; because, there is no antecedent gift — no gift but in
the direction to pay at the particular period If the
whole interest had been expressly given to the children until
they attained 22, I do not agree that the shares of the chil-
dren would therefore have vested, subject to be devested.
The case of Batsforcl v. Kebbell, which is referred to by Sir
William Grant in Leake v. Robinson, is an authority direct-
ly in point against that proposition. Where interim interest
I. Where the
\vhole inter-
mediate in-
come is
given, and
there is no
limitation
over.
See § 328-
338.
II. Where
there is a li-
mitation
over.
Vuwdry v.
Geddes, 1
Riiss. & M.
203.
*But see Doe d. Dolly v. Ward, stated § 331 ; which, however, was decided
on the authority of Randall v. Doe d. Roake, a case that cannot be relied on.
(See § 351-362.)
ir. 8. ix.] OF EXECUTORY INTERESTS. [§36.Q,369a. [ \U2 ]
is given, it is presumed the testator meant an immediate
gift; because, for the purpose of interest tiie particular
legacy is to be immediately separated from the bulk of the
property; but that presumption fails entirely, when the tes-
tator has expressly declared tliat the legacy is to go over, in
case of the death "of the legatee before a particular period.
I speak here of gifts of personal estate, and not of real
estate. The language of this will gives an equal interest to
all the children of the sisters, whether born before or after
the death of the testatrix. — The statute of accumulation,
(39 & 40 Geo. III., under or by analogy to which, it was
contended, that the accumulation might be good for 21
years,) was passed subsequently to the death of the testa-
trix, and can have no efl'ect upon this will. My opinion,
therefore, is, that the gifts over to the children of the sisters,
whether born before or after the death of the testatrix, not
being to take etlect until the age of 22, are too remote and
void."
369 III. If a part only of the intermediate income is III. Where
given for the maintenance or benefit of the person part only of
to whom such a devise or bequest is made, this furnishes no the interme-
presumption in favour of vesting: on the contrary, as the diate income
testator expressly provides a less sum for his support, than 's given,
he would be entitled to by mere consequence of law, if his
interest were vested ; there is a presumption against vesting,
rather than for it.
SECTION THE NINTH. [ 193 ]
Of the Effect of a Power of ^Appointment over Real
Estate.
369a "Where real estate is subjected to a power of
appointment in the first taker, with remainders
over in default of such appointment ; the power does not
suspend the vesting of the remainders over, but such remain-
ders vest subject to be devested by the exercise of the
power, whether the power is a power of appointing any
estate or interest generally, or whether it is expressly and
restrictively a power of appointing in fee. (a)
(a) See Fearne, 226 — 233; and Cunningham v. Moody, 1 Ves. Sen. 174;
and Doe d. Willis v. Martin, 4 D. & E. 39, as there stated ; overruling the
opinion of the Chief Justice in Leonard Lovie's Case, 10 Co. Rep. 8ij ; and
ol' Lord Hardwicke in Walpole v. Lord Conway, Barn. Ch. Rep. 153. See
also Smith v. Lord Camelford, 2 Ves. .Tun. 698 ; and Mavndrcll v. Maun-
drtll, 7 Ves. 567, 10 Vcs. 246.
[193] II. S. X.] AN ORIGINAL VIEW [§370—373.
SECTION THE TENTH.
Of the Effect of a Power of ^Appointment over Personal
Estate.
I. Gifts to a I. "Where, by will or settlement, legacies or 370
class subject portions are directly given to a class of individuals,
to a power ot^ subject to a power of appointing the property among them
appointing generally, the persons answering the description, as they
among tliem come in esse, during the life of the donee of the power, take
generally. vested interests, in equal shares, subject to be devested only
as regards the amount of their respective shares, by the
exercise of the power; or, in the case of any one or more of
them who happen to die in the lifetime of the donee of the
power, subject to be devested, as regards the share or shares
of the person or persons so dying, by an instrument in exer-
[ 194 ] cise of the power, appointing the wliole fund among the
survivors. So that,
1. Where no 1. If no valid appointment, or merely an ap- 371
valid ap- pointment of a part of the property, is made, the
pointnient is fund, or so much of it as is not effectually appointed, belongs,
made, or in equal proportions, to the legatees or donees living at the
only a par- death of the donee of the power, and to the personal repre-
tial appoint- sentatives of those who happen to be then dead.
ment. g. But, on the other hand, if the power is pro- 372
2. Where a perly exercised, the share or shares of one or
valid ap- more of them may be partially devested and diminished, in
pointment is favour of the others or other of them, by the exercise of the
made of the power; and in case of the death of any one or more of
whole. them in the lifetime of the donee of the power, he may
appoint the whole fund among the survivors, so as entirely
to devest the share or shares of the person or persons so
dying.(a)
Il.Wherethc II. And, where the power is not a mere power 373
power autho- of appointing to the class generally, but authorizes
rizes a selec- the donee thereof either to appoint to all or to select some of
tion, and them in exclusion of others; (as where it is a power of
there is a appointing to such of them as he shall think proper ;) and
limitation in [\^qxq is alimitation to the whole class in default of appoint-
defaultofap- j^gjjj. ^j^gy ta,ke vested interests, in equal shares, but the
pointment.
(a) Sec 1 Rop. Leg. by White, 537 — 541, and cases there stated; viz.,
Malirn v. Keighley, and Malim v. Barker, 2 Vcs. Jun. 333, 506, and 3
Ves. 150; Bristow v, PFarde, 2 Ves. Jun. 336; Wilson v. Pis^otf, 2 Ves.
Jun. 351. The same learned author also refers to Witts v. Boddington, 3
Bro. C. C. 95, ed. by Belt ; Bobinson v. Smith, 6 Mad. 194 ; Gordon v. Levi,
Ambl. 304 ; Doe v. Martin, 4 T, R. 39, 64 ; Smith v. Camelford, 2 Ves.
Jun. 698 ; Vanderzee v. Adorn, 4 Ves. 771 ; Butcher v. Butcher, 9 Ves.
382; 1 Ves. & Bea. 78, 99; S. C. 1 Scho. & Lefroy, 293; Fane v. Lord
Dimgannon, 2 Scho. & Lefroy, 118.
11.9.] OF EXECUTORY INTERESTS. [§371—376. [ 191 J
share of each is subject to a partial or total dcvestment
in favour of the others.
374 III. But, ''where legacies or portions arc given III. Where
to such of a certain class of individuals as a pariicu- the gift is to
lar person shall appoint ; and there is no limitation to any such of a
of them in default of appointment ; the legacies or portions [ 1!^5 ]
will necessarily be contingent until the donee of the power class as a
shall have exercised it, so as to designate and ascertain the person
individuals who are to take. (A) ^'^^" ^P'
point, and
there is no
limitation in
♦ default ofap-
pointnitnt.
CHAPTER THE NINTH. [ 196 j
CERTAIN CASES OF INTERESTS UNDER LI.MITATIONS OF THE
WHOLE OR OF THE IMMEDIATE PART OF A REVERSION,
DISTINGUISHED FROM CONTINGENT REMAINDERS OF THE
THIRD CLASS, AND FROM SPRINGING INTERESTS.
375 I. Where a person takes a life estate under one I. Where a
instrument, and by a subsequent instrument, a life limitation is
estate is created in favour of another person, with a remain- t" ^'^^^ ^^^cr
der over after the death of both of these persons ; in such the death of
case, the remainder over is a grant or devise of the reversion ^ person who
or of the immediate part of the reversion, being limited to '^^^ ^^ ^^^^
take effect in possession immediately after the regular a^J^^^!^.||J|,g^'^
expiration of the life estate created by the previous instru- i„st,.„„^ent,
ment, and of the other life estate created by the subsequent ^^^^j ^^^^^^ ,[_
instrument. Although, if the existence of the first of these mitation is a
hfe estates had not been known, the remainder over w'ould limitation of
have justly been considered to be a contingent remainder the whole or
of the third class. the immcdi-
"Thus, where ./?. made a feoffment to the use of himself ate part of
for life, and, after the death of ^. and M his wife, to the use the rever-
of B., eldest son of .^., for his life ; this was held a contin- sion, instead
gent remainder in B. But as it afterwards appeared, that, of a contin-
by a former deed, M. had an estate for life ; Lord C. J. gent remain-
Hale held, that it was not a remainder, but a conveyance der of the
of the then subsisting reversion expectant on the death [J"'"a elass,
of M.{a) isr iro
376 II. Where an estate is limited to a person after ^°"' ^"^;
^ or mstcad of
(/>) Sec 1 Rop. Log. by White, 541—543 ; and Duke of Marl-
borough V. Lord Godolphin, 2 Ves. Sen. 61,74, Sl,^as there
stated. The same learned author also refers to 2 Ves. Sen. 208 ;
Ambl. 365; and 1 Ves. Sen. 210.
(a) ff'eal v. Lower, PoUcxf. 63 ; as stated, Fcarnc, 303.
a limitation
[ 196 J II. 9.] AN ORIGINAL VIEW [§377—379.
of a spring- the death of another who takes a hfe estate under a pre-
ing interest, vious instrument ; this, of course, is a grant or devise of
[ 197 ] the reversion, or of the immediate part of the reversion:
See § 169. but, yet, if the existence of such life estate were not
See § 117-9. known, it would be properly considered to be a springing
interest.
Observations It will be obvious from these distinctions, that 377
grounded on wherever an interest is postponed till after the
the foregoing death of a person who takes no life interest under the same
distinctions, instrument; in judging of the limitations contained in such
instrument, it is necessary to inquire whether or not such
person takes a life interest under any previous instru-
ment.
III Where a ^^^- "^ Where an estate tail general is limited to 378
limitation is' ^ person by one instrument, and then, by a subse-
to take cfi'ect qnent instrument, an estate is limited to take to effect on an
on an indefi- indefinite failure of his issue generally; or, where an estate
nite failure tail restricted to a certain description of descendants, is
of issue who limited to a person by one instrument, and then, by a dif-
are all in- ferent instrument, an estate is limited to take effect on an
heritable indefinite failure of his issue of the same description ; in
under estates either case the limitation in the subsequent instrument is an
tail created innnediate grant or devise of the reversion or of the imme-
by a previous (jj^te part of the reversion,(6) though, if the existence of the
instrument; p,-evious estate tail were not known, it would be rightly
and such h- considered as an executory grant or devise of a springing
nutation is a j^igj-ggt, and therefore as void for remoteness. (§ 706, 714.)
limitation of
the whole or the immediate part of the reversion.
IV Wherea ^^- But, where an estate is created out of a 379
limitation is reversion expectant on the expiration of an estate
to take efTect tail limited by a previous instrument ; and such estate so
on an indefi- created out of the reversion, is, in reality and not merely
nite failure of apparently, limited to take effect on an indefinite failure of
issue, some issue generally, or issue of a given description, and that
of whom are failure could or might not take place till a period subse-
not inherit- quent to the regular expiration of the estates tail, in conse-
able under quence of all such issue not being inheritable under such
such estates estates tail ; such limitation on an indefinite failure of issue
tail; and jg ^ limitation of a springing interest out of the reversion,
such limita- and therefore void for remoteness. As *= where estates tail
tion IS a hmi- ^j^jg are limited, by marriage settlement, to the first and
r^^i^QR 1^ other sons of a person by that marriage, and then, by a sub-
L . J . sequent will, a devise is made of the property so entailed,
springing in- ^^^-^j.^ -^ ^^^^ ^^ j^^j^q ^^^^.^ except on an indefinite failure of
terest.
See§ 117, 125, 706; 714.
(Ii) See Fearne, 449.
II. 9.] OF EXECUTORY INTERESTS. [§380. [ l^S J
his issue generally(f) or liis issue male; and ''not merely
on failure of their issue male, or on failure of liis issue male,
in the alternative. (^)
380 An exception occurs, however, where the pos- Exception,
sible interval between such an indefinite failure of where the in-
issue and the rei^ular expiration of such estates tail, may be terval maybe
filled up by imi)lying an estate tail, so as to support the sub- filled up by
sequent liniitatiou on such an indefinite failure of issue, as implication.
a remainder created out of the reversion. S'^c § 159.
But there cannot be such an implication where the limi- Where such
lation on failure of issue is by devise, and the person whose implication
failure of issue is spoken of, neither takes any estate under does not
the will, nor is the heir apparent or heir presumptive of the arise,
testator. Nor can it exist where the person whose failure ^^c § 585-9.
of issue is spoken of, is the devisor himself; because he is
dead when the will takes effect.
A testator having a reversion expectant upon a life estate, Bankes v.
in his wife, under his marriage settlement, and upon inter- Holme., l
ests, under limitations, which, being only to his sons in tail liuss. 394.
male, with remainder to his daughters in tail general, would
not have carried the estate to the female issue of the sons,
made his will, whereby, after reciting that he was seised of
the reversion in fee expectant upon, and to take effect in
possession immediately after, the decease of his wife, in case
there should be no child or children of his wife by him, or,
there being such, all of them should happen to depart this
life without issue, of and in divers messuages, he proceeded
to devise the same, in case he should die without leaving
any children, or child, or, there being such, all of them shall
happen to depart this life without issue. The Vice-Chan-
cellor decided, that the devise of the reversion was void, as
being too remote. And this decision was affirmed by the
House of Lords. The reasons in support of the decree of
the Vice-Chancellor were the following: <' Because, if the [ 199 ]
devises in question were valid in law, they must take effect
either as immediate devises of the reversion, or as executory
devises. But, as immediate devises of the reversion, they
cannot take eftect ; since they are not limited to take eftect
till after the failure of the whole of the testator's issue, or,
at least, of his whole issue by his then wife, some of which
issue, that is to say, the daughters of his sons and their de-
scendants, could take no estates under the testator's mar-
riage settlement. The devises, therefore, are not so limited
as to take effect at all events immediately upon the expira-
tion of the particular estates limited by the settlement : nor
(<•) Lady Lancsborough v. Fox^ Cas. temp. Talb. 262 ; as stated and com-
mented on, Fearne, 448 — 9.
{d) Sanford v. /%, 3 Bar. & Aid. 654.
Vol. II.— 21
[ 199 ] II. 9.] AN ORIGINAL VIEW [§3S1.
can any limitations be implied in favour of the testator's
issue by his then wife unprovided for by the settlement ;
since it appears, from the recital of the settlement contained
in the will, that the testator conceived that all his issue by
his then wife were provided for by the settlement, and he
therefore cannot be taken to have intended to have provided
for any such issue out of the settled estates by his will.
And, as executory devises, the devises in question cannot
take effect ; because they are limited to take effect after a
general failure of the testator's issue, or, at least his issue by
his then wife, and are therefore void in law, as being too
remote. The testator, according to the plain construction of
his will, does not profess to devise, nor is it in the least pro-
bable that he could have intended to devise his estates in
the county of York to iiis collateral kinsmen, in exclusion of
any of his own issue ; and therefore it must be understood,
according to the literal language of the will, that the de-
visees were not to take until failure of all the testator's issue
by his tlien wife or any future wife (or at least all his issue
by his then wife), as well those provided for, as those un-
provided for by the settlement."
V. Where a V. From cases of this kind, however, we must 381
limitation is be careful to distinguish those where estates tail
made of the are created by a previous instrument, and the ancestor, to
reversion, eo whose children such estates tail are given, devises the rever-
nomine, on sion, eo nomine, on an indefinite failure of issue generally,
[ 200 ] or of issue of a certain description, some of whom are not
an indefinite inheritable under the entail previously created ; and there is
failure of ^o intent manifested, in any other part of the will, to post-
issue, some pQf^g the devise to such indefinite failure of issue. In such
of whom are ^g^^^^ jj^g devise will be held to be an immediate devise of
not inherit- ^j. ^^^^ ^^ ^^^^ reversion ; because, as the testator first devises
able under ^j^^ reversion, which is a sufficient description in itself, and
such estates ^^^^ devise would, of course, in itself, pass an interest which
h fmita- "^'^o^^*^ ^^^^^ effect in possession immediately after the regu-
^ion is a™im"i- ^^^ expiration of the previously created estates ; the effect of
tation of the ^^at devise is not destroyed by words which may be regarded
whole or the as merely superadded to the principal description, for the
immediate purpose of explaining what was the nature, as he erro-
part of the neously supposed, of the reversion to which he was entitled,
reversion. and which he intended to devise.
See § 169. An estate at C. was settled on ,/?., for life ; remainder to
E^erlon v, his first and other sons, in tail male ; remainder to Ji., in fee,
Jones, 3Sim. A. devised as follows : " As to the reversion and inheritance
409. of the freehold estate at C. purchased by me in pursuance
of my marriage articles, in case of failure of issue of my body
by my said wife, I give and dispose thereof in manner fol-
lowing; that is to say, I devise the same to my brother, &c."
The estate in tail male in the first and other sons of ^. being
ir. D.] OF EXECUTORY INTERESTS. [§382. [ 200 ]
determined, the heir at law of J?., apprehending that the
devise was void for remoteness, contracted to sell the estate.
The Master having reported in favour of the title made out
under the heir at law, the purchaser excepted to the report,
on the ground thai the devise was good, or that, at least, it
was doubtful whether it was not good. Sir L. Shadwell,
V. C, said, " In cases like the present, it is always a ques-
tion, whether the testator has described inaccurately what
he meant to dispose of, or has made the contingency a part
of the devise. It appears to me that, in this case, the testa-
tor has used the words, "in case of failure of issue of my
body by my said wife," as a description of the thing he
meant to dispose of: and therefore, if I were compelled to
decide the point, I should hold, that the devise in question is
good ; and consequently I cannot force the purchaser to take
this title."
382 VI. Where estates tail are created, by a deed or [ 201 ]
will, in favour of the children of a particular mar- VI. Where a
riage, and then the ancestor to whose children such estates limitation is
tail are given, makes a devise of the hereditaments so en- ^o take effect
tailed, to take effect on an indefinite failure of his issue, o" ^" '""^""
generally, or without restriction to his issue by such mar- "'^''''^''".'■f^°*
riaare, or on an indefinite failure of the issue of his sons, ^^^"^' Y'
1 ° . Ill 11 • I T I • ■(• • out rcstric-
daughtcrs, or children, generally, m such case, if his wite is ^.^^ ^^ .^^^^
stillliving, by whom lie had the children who take the , ,^ ^.^-^^^^
previous estates tail, and there is anything, on the face of [^^.',^^^^1^^,^
the will, to show that he contemplated her surviving him, ^^.j^^ are'*^ '
(*"such as the appointing her executrix, or making any dis- alone inherit-
position in her favour,) (e) it will be considered that he had able under
no other marriage in contemplation, and that, consequently, previously
the devise is a devise of the whole or the immediate part of created es-
the reversion, instead of a limitation of a springing interest, tales tail, but
(See § 169, 117, 125.) yet no other
marriage
was contemplated, and therefore such limitation is a limitation of the whole or the
immediate part of the reversion.
(e) Jo7ies V. 3Ioro;an, as stated, Fearne, 451. Lytton v. Lytlon, 4 Bro. C.
C. 441 ; as stated, Fearne, 454, note (c).
[ 202 ] II. 10.] AN ORIGINAL VIEW [§3S3— 387.
CHAPTER THE TENTH.
OF LIMI'TATIONS TO THE HEIR OR HEIRS OF A LIVING PER-
SON, CONSIDERED IN RELATION TO THE FOURTH CLASS OP
CONTINGENT REMAINDERS: AND, FIRST,
OF SUCH LIMITATIONS, WHEN THEY PRIMA FACIE FALL
WITHIN THE DESCRIPTION OF THAT CLASS, BUT IN RE-
ALITY DO NOT COME WITHIN IT ; THE WORD HEIR MEAN-
ING HEIR APPARENT OR PRESUMPTIVE, AND THE WORD
HEIRS MEANING SONS, DAUGHTERS, OR CHILDREN.
Strict sense The word " heir," in its strict legal sense, denotes 383
of the word the person upon whom the law casts the inheri-
heir. tance, on the decease of the ancestor. Hence the maxim
A remainder is, that nemo est hseres vivenlis; and consequently, a re-
to the heirs mainder which is limited to the heirs of a living person, is a
of a living remainder limited to one who is not yet in existence ; since
person is a no one sustaining the legal character of heir of a certain per-
limitation to ^q^^ can be in existence till that person's death,
a person not ^,jj admitting though there can be no heir till 384
in being, or, ^^i^ ancestor's decease, yet the person who will
if in being, eventually be heir, is in being ; still, it is uncertain whether
not ascer- ^^^ person who would be heir, if the ancestor were to die at
tamed. ^ particular time, may not die before the ancestor; or, if
such person is only heir presumptive, whether he may not
be displaced by the birth of a nearer relative ; and there-
fore, the person who will eventually be heir, is one who,
even if he is in being, cannot be ascertained till the moment
of the ancestor's decease.
And hence Hence, as a general rule, a remainder limited to 385
such remain- the heir or heirs of a living person, falls within the
der is a con- description of, and really is, a contingent remainder of the
tingent re- fourth class. But,
mamder of I. There are cases in which such remainders do 386
[ 203 ] not, in reality, within the description of the fourth
the fourth or any other class of contingent remainders, ihow^h, primd
class. But, facie, as being limited to the heir or heirs of a living person,
I. Sometimes they seem clearly to fall within it.
it does not
fall within the description of that class.
l.Wherethe 1. This happens where the same persons who 387
word heirs is are designated " heirs," are, in another sentence,
used for sons, referred to by the description of sons, daughters, or children,
daughiers,or Hie testator having sons or children at tlie lime; or other
children.
II. 11.] OF EXECUTORY INTERESTS. [388, .389. [203]
expressions arc added, wliicli show that tiie testator used
the term "hens," not in its teciniical sense, but as a syno-
nynie for the first and other sons, to take successive remain-
ders in tail, or for the children, to take as joint tenants or
tenants in common.
Thus, where a testator devised in trust for the mainte- Doe d. Huh
nance of .S'. a feme covert, and the issue of her body during len v. Iron-
the life of S.; and after her decease, in trust for the use of monger, :i
the heirs of the body of .S'., their lieirs and assigns for ever, East, bH\i.
without any respect to seniority of age or priority of birth ;
and in default of such issue, then over. It was admitted
that the remainder was legal, while the preceding estate
was equitable. And it was held, that S. took for life only,
with remainder to her children as joint tenants.
388 2. "Such also is the case where it appears from 2. Where the
other expressions, that the testator uses the term word heir is
"heir" to denote the individual, who, at the time of the used for heir
making of the will, is the heir apparent or heir presumptive apparent or
of a particular person.(«) presumptive.
389 II. Again; there are other cases, in which re- 11. In some
mainders to the heir or heirs of a living person, do other cases,
fall witiiin the description of the fourth class of contingent the remain-
remainders, but yet, in consequence of the application of '^cr does fall
certain rules of law, they constitute exceptions from that [ 204 ]
class of contingent remainders. The cases of this kind are within the
those which are alfected by the rule which rendered a limi- description
tation to the heirs of the grantor inoperative, and those °'' ""^ -^^
which are governed by the rule in Shelley's Case ; which constitutes
form the respective subjects of the two following chapters. \ ' \\q
fourth class
of contingent
* remainders.
CHAPTER THE ELEVENTH. [ 205 ]
FIRST EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT
REMAINDERS, IN THE CASE OF AN ULTIMATE LIMITATION
TO THE RIGHT HEIRS OF THE GRANTOR.
In the preceding chapter, we have seen that, as a general
rule, a remainder limUed to the heirs of a living person, falls
within tlie description of, and really is, a contingent re-
mainder of the fourth class.
(a) Burchett v. Dunlant, 2 Vent. 311 ; James v. liichanhon, 1 Bro. Pari.
Ca. 493 ; Durbison d. Long v. Bemwiont, 1 P. W. 229 ; 1 Bro. Pari. Ca. 4S9 ;
and Goodright d. Broking \. ffliite, 2 Blac. Rep. 1010; as stated, Fearne,
210—212.
[ 205 ] II. 12. i.] AN ORIGINAL VIEW [§390—394.
Limitations But, prior to a modern statute, "if an ultimate 390
to the right limitation was made to the right heirs of the grantor,
heirs of the it did not give a contingent remainder to the heir at law as
grantor be- ^ purchaser, but was entirely inoperative, the ultimate in-
fore stat. 3 & iQYeat remaining in the grantor, as his ancient reversion, and
4 ^^ ill. I\ . passing to iiis right heirs in the ordinary course of descent.(a)
c. 106, rpi^j^ exception is founded on reasons similar to those as-
SeeSect. III. signed in the next chapter for the exception therein dis-
cussed.
Enactment By the stat. 3 & 4 Will. IV. c. 106, s. 3, it is, 391
ofstat,3&4 however, enacted, that "when any land shall have
Will, IV. c. been limited by any assurance executed after the 31st day
106, s, 3. of December, 1833, to the person or to tlie heirs of the per-
son who shall thereby have conveyed the same land, such
person shall be considered to have acquired the same as a
purchaser by virtue of such assurance, and shall not be
considered to be entitled thereto as his former estate or part
thereof."
[ 206 ] CHAPTER THE TWELFTH.
SECOND EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT
REMAINDERS, CREATED BY THE RULE IN SHELLEy's CASE,
WHERE REAL PROPERTY IS LIMITED TO A PERSON, WITH
REMAINDER TO HIS HEIRS.
A remainder
to the heirs of We have seen, in the tenth chapter, that, as a 392
a living per- general rule, a remainder limited to the heirs of a
son is a con- living person, falls within the description of, and really is, a
tingent re- contingent remainder of the fourth class,
mainder. There is, however, a well known exception to this, created
But an ex- ^ ^^g ^^^^ i^^ Shelley's Case.
ception IS
created by SECTION THE FIRST.
the rule m
Shelley's The Rule in Shelley's Case Stated.
^^^,] , In Shelley's Case, a fine was levied by a man to 393
^elley s ^^^ ^^^ ^^ himself for life, remainder to the use of
^^^* the heirs male of his body and the heirs male of the body
of such heirs male, 1 Co, Rep, 93.
What is And the rule called the Rule in Shelley's Case, 394
meant by the is a rule of great antiquity, by which the word
{a)Fenwick v. Mitforth, Moor, 284; Earl of Bedford's Case, Moor, 718;
and Read and Morpeth v. Erington, Cro. Eliz. 321 ; as stated, Fearne, 51.
II. 12. 1.] OF EXECUTORY INTERESTS. [§395—307. [ 206 ]
heirs, in remainders to the heirs of a tenant for Hfe or in Rule in57ie/.
tail, is construed as a word of Hmitation, and which was ley's Case,
referred to by the defendant's counsel in that case, to show
that the heirs males of t)ie body of Edward Shelley did not
take by purchase, but by descent.
395 The Rule is expressed by him in the following The Rule as
terms : — '• It i^yjule of law, that when tlie ances- stated in
tor by any gift or^^^HInu takes an estate of freehold, Shelley's
and, "in the same^^Hv '>rn^'ance(a) an estate is limited, Case,
either mediately o^Bnw <Ui#ly, lo his heirs, in fee, or in [ 207 ]
tail, that always, iil^fc|h ''^1^ the heirs are words of limi-
tation of i'^™*^, and not words of purchase."
396 ''Several Jl^^Jk'' cases in the Year Books in the The same
time of Edwaf(Wl.,are ref^^ed to in Lord Coke's rule appears
Report; but JVIr. Preston observes, Tlie only one among in the Tro-
them'which is intelligible, is, that of the Provost of Beverly, vast of Be-
wliich arose upon a fine sur grant et render, by which vtrly s
lands were settled upon John Sutton, the granting party in ^^^se.
the fine, for his life ; remainder, after liis death, to John his
son, and to Kline his wife, and the heirs of their bodies be-
gotten ; and, for default of such issue, remainder to the
right heirs of John the father. John the fatlier was dead,
and John the son and Eline were also dead, without issue.
Richard, another soh of John the father, entered, claiming
as a purchaser under the limitation to the right heirs of his
father. Thorpe, in answer to the plaintiff's counsel, ob-
served, '-Your title is as heir to your father; and your
father had the freehold preceding; . . . and the re-
mainder was not at all limited to you hy your proper name,
but as heir.'' And, for these reasons, it was decided that
Richard took by descent. (6)
397 Such is the rule of law indirectly pointed out in Observations
this case, and formerly stated in Shelley's Case, on the virtual
from which it has received its name. And it is indispensa- substitution
biy necessary here to observe, that it would have been well of another
if the profession, when they have considered the nature and rule,
extent of the Rule in Shelley's Case, had always really con-
sidered the nature and extent of that Rule, as pointed out
and expressed in the two cases above mentioned, instead of
laying down, or presupposing the existence of a Rule, which,
though termed the Rule in Shelley's Case, is in reality a
translation of that Rule into terms of a far different and
more extensive character; embracing cases, where the
words "issue," "children," "sons," and "daughters,"
have been used instead of the word " heirs." These words
(a) See Fearne, 71; and Doe t]. Fonnereau v. Fonncreatt, Doug. Rep. 486,
as stated, Fearne, 73.
(b) Pres. View of Rule, 50, 52.
[ 20S ] II. 12. i.] AN ORIGINAL VIEW [§398—401.
may indeed have been used in ignorance as synonymes for
the technical word heirs; but still, not having the same
technical import as that word, they have been differently
construed.
The Rule True it is that the Rule may be expressed in 398
may be dif- different and in more or less precise terms, without
ferently destroying its identity. And \^^^^^\ I;ord Goke himself
stated, with- wording it in different ways,^pP|Btaj^pctrts*of his com-
out losing its mentary. Thus, in one placa^P^lBj^P'^here the ancestor
identity; as taketh an estate of freehold, ^■LalicrlKinainder is limited
it is by Lord ^q j^jg Y[cr\n heirs, the fee sinr-^fcff'.'.'ri^ himself, as well as
t-/OKe. if it had been limited to him aipyp^heirs •: for, his right
heirs are in this case words of limitjiTon ^>f estate, and not of
purchase. "(c) Whila^ in auuu.^ljfabsage, he gives the same
Rule as follows : — Whensoever the ancestor taketh any
estate of freehold, a limitation after, in the same convey-
ance, to any of his heirs, are words of limitation, and not
of purchase, albeit in words it be limited by way of remain-
der."(d)
Lord Coke But amidst this variety in other respects, the two 399
retains the essential requisites pointed out by the counsel in
two essential the Case of the Provost of Beverly and in Shelley^ s Case,
requisites are retained by Lord Coke ; namely, a prior limitation of the
thereof. freehold to the ancestor ; and a subsequent limitation to his
*' heirs," by that designation, and in that character.
Another It is the design of the present chapter, to point 400
statement of out the nature, application, and reasons of the Rule
the Rule. referred to iti Shelley'' s Case, and not of some other Rule,
designated by that name, indeed, but being in fact of far
greater extent ; and in pursuance of this, the author ven-
t tires to lay down that Rule in terms, which, retaining all
the essential ingredients, may perhaps serve to express sub-
stantially the same Rule, in a somewhat more plain and
definite manner, and in such a way as to exclude cerlaia
cases which fall within the terms of the Rule, as laid down
by the counsel in Shelley'' s Case, and have usually been
treated as exceptions thereto, but which, as appears from
[ 209 ] the Provost of Beverly's Case, do not, in reality, come
within the scope or meaning thereof
The Rule, when expressed according to this de- 401
sign, may be thus stated : When a person, by any
deed or will, takes a freehold interest, and, by the same deed or
will, a remainder of the same quality, as legal or equitable, is
afterwards limited, whether mediately or immediately,^ to his
heirs or the heirs of his body, ''by that description, and in
that character,(e) or to his heir or the heir of his body, in the
(c) Co. Litt. 319 b. {d) Co. Litt. 376 b.
(c) See Fearne, 188, 194, 19.5, 197—199.
II. 12. ii.] OF EXECUTORY INTERESTS. [§401a— '107. [ 209 ]
singular number, but as a nomen collertlvum in the sense
of heirs or heirs of the body ; the iiilieriianre, in fee. or in
tail, is executed or attaches originally in the person to whom
the freehold is limited, as if it had been limited to him and
his heirs general or special, instead of attaching originally
in the individual first answering the description of his heir
general or spe cial.
401a It will be^JjPJ|ved, that '"limitations of snbse- Limitations
qnetit inter('ljp|3bi are not by way of remainder, "ot by way
such as conditional V\f' Tfn^, are not within the Rule.(/) of remainder
The Rule arose bcfoi^ JK limitations were allowed ; and arc not with-
when they were ini.od'^^ by way of use and devise, the '^ ^"^ '■"'^•
Rule was not held to .apply to them, either dir(^ctly or See § 148-9,
bv analogy, because th% were not within the reasons of 149a, 117,
the Rule. ■ I'il'"''''^-
4o0.
SECTION THE SECOND.
The Terms and the Operation of the Rule explained. Word heir or
402 Apart from the operation of the Rule, the word .^!|^' ^^^°' ^
heir or heirs may be either a word of purchase or ^.^^^^^ or of
a word of limitation. . . , , . limitation.
403 Words ot purchase arc those which designate ]jefinition of
the first purchaser or person who is to take, and wordsofpur-
404 whicli cause an interest to attach in him originally, chase.
Words of limitation are words which serve to mark Definition of
out the limits or quantity of an estate, and its course of de- words ofli-
volution, and under which, in the case of an estate in fee [ 210 ]
or in tail, the heirs do not take originally, but derivatively mitation.
by descent from their ancestor.(^/) See § 26-42.
405 The invariable, proximate, and proper operation The inva-
of the Rule, is, merely to execute the subsequent riable, proxi-
interest in the ancestor himself, just as if, in addition to a mate, and
prior limitation of a freehold to him, there were a proper ope-
406 subsequent limitation to him and his heirs general ration ot the
or special. But, besides this operation, it has also ^"'^•
an occasional, mediate, and indirect eflfect upon the prior V ^y^^^\-
estate limited to the ancestor, by creating, in certain cases, sional, medi-
such a connexion between the two interests, as to let in the a'^»f*" 'nai-
application of the doctrine of merger, and thereby occasion , ^ ,*"
the annihilation of the prior estate of freehold. „
407 Under the Rule in Shelley's C:xsq, and the doc- ^''*fe"t
c .u 1 . ■ . . • .1 modes in
trine of merger, the subsequent interest is executed , ■ , .,
, . ^ =* ' T T -111 which the
in the ancestor m five ways: I. In possession, absolutely. ^^^^1^1^^^^
II. In interest. III. In possession, subject to the liability i,^te,.pst jg
of afterwards becoming only executed or vested in interest, executed in
the ancestor.
(/) Fearne, 276. (a) See Fearne, 79.
Vol. II.— 22
[ 210 ] II. 12. ii.]
AN ORIGINAL VIEW [§408—413.
I. In posses-
sion, abso-
lutely.
II. In inter-
est.
IV. In possession, to some purposes only. V. As a con-
tingent remainder.
I. ^ If the subsequent limitation of the inheri- 408
tance follows immediately after the limitation of
the freehold to tlie ancestor,(6) the freehold merges in the
inheritance, and ''the ancestor becomes seised of an estate
of inlieritance in possession. (/;) The inheritance is then ab-
solutely executed in possession i^
II. ''If there is any interest
the ancestor's freehold and th
to his heirs general or special, (c
the freehold cannot merge, but
estate of freehold in possession
ancestor.
ing betweeti 409
ince limited
uch interest is vested,
'76 ancestor is seised of an
and of an estate of inheri-
III. In pes-
[ 211 ]
session, sub-
ject to the
liability of
afterwards
becoming
only exe-
cuted in in-
terest.
IV. In pos-
session to
.some pur-
poses only.
Cases to be
distinguished
from these.
tance in remainder. (e) The inheritance is then executed in
interest only, in the ancestor.
III. The inheritance may be executed or vested 410
in possession, subject to the liability of afterwards
becoming only executed in interest. For, ^'if there are in-
terests intervening, but they are only contingent, the freehold
and the inheritance are united and executed in possession in
the ancestor, only until such intervening interests become
vested; and then open and separate, in order to admit such
intervening interests as they arise.(e)
IV. If land is limited to two persons for their 411
lives, and, after their decease, to the heirs of one of
them; or to husband and wife, and the heirs of the body of
the husband; the estates in tail or in fee are executed in
possession to some purposes only. For, they are not grant-
able away from or without the freehold, by way of remain-
der ; and yet they are not so executed in possession as to
sever the jointure, or entitle the wife of the person so taking
the inheritance, to dower: and, in the above case of a limi-
tation to husband and wife and the heirs of the body of the
husband, *" recovery against him, with single voucher, will
not bar the isstte or remainder ; though his estate has been
held to be so executed in possession, that his feoffment was
a discontinuance. (/")
And ^so where land is limited to two persons of 412
the same sex, or to two of diff'erent sexes who may
not lawfully intermarry, and the heirs of their two bodies;
the inheritance is executed in possession stib modo:{g) and
'' where the limitation is to the heirs of their two bodies, they
take several inheritances; because they cannot have issue
between them. (A)
There are certain other cases of joint-tenancy, 413
which must be distinguished from these ; namely,
{h) Fearne, 28, 33.
(/) Ih. 36.
(c) lb. 28, 32, 33.
{g) lb. 36.
(e) lb. 37.
{h) lb.
II. 12.iii.] OF EXECUTORY INTERESTS. [§414—119. [ 211 ]
' where there is a joint hniitation of the freehold to several,
followed by a joint limitation of the inheritance to them in
fee simple-, or where the freehold is limited to baron and
feme jointly, and a remanider is limited to the heirs of tiieir
bodies; the inheritance is then executed jointly in
414 possession. (/) And ''so where the freehold is limited
to two persons jointly, who may by common pos- [ 212 ]
sibility lawfully intermarry, and who may therefore have a
common heir betwee^tj^i, and a remainder is limited to
tlie heirs of meiWodies.(A')
415 But, ' whete iJrc limitation of the freehold is not
joint, but successive ; as to one for life, remainder
to the other for life, remainder to the heirs of their bodies ;
there, it seems, the ultimate remainder is not executed in pos-
session, but they take a joint remainder in tail.(/)
416 And '"if land is limited to one parent for life,
remainder to the heirs of the body of baron and
feme; this is no remainder in the tenant for life; because
the freehold is limited to one parent alone, and the person
who is to take in remainder, must be heir of both their
bodies.(m)
417 And "a limitation to a woman and the heirs of
her late husband, on her body begotten, was ad-
judged to give her no more than an estate for life.(;i)
418 V. ° If the subsequent limitation, instead of being y. As a con
unconditional, as supposed in the preceding cases, tingent re-
is expressly limited upon a contingency ; still, it will not be mainder.
a contingent remainder to the heir general or special as a
purchaser, but will attach originally in the ancestor, as a
contingent remainder; so that his heir can only take by
descent. And if the contingency happens in the lifetime of
the ancestor, the inheritance will then vest in him either in
possession or in interest, according to the first two rules.(o)
SECTION THE THIRD.
The Grounds of the Rule explained.
The reasons of the rule wouldappear to be these : —
419 I. The prevention of fraud upon feudal tenure. [ 213 ]
For, "when the heir came in by descent, and was I. Prevention
under age, the lord was entitled to the grand fruits of mili- of fraud upon
(0 Fearne, 36—7. (/.•) Ih. 35. (/) Ih. 36.
(m) Fearne, 38, 65 ; and Gossage v. Taylor, Stiles Rep. 325 ; Lane v. Pan-
nel, 1 Roll. Rep. 230, 317, 438; and Frogmorton v. Wharrey, 3 Wils. 125,
144 ; as there stated.
(«) MamlciiUe's Case, Co. Lilt. 26 b ; as stated, Fearne, iO.
(o) Fearne, 30, 32, 34.
feudal
tenure.
II. Preven-
tion of fraud
upon the
specialty
creditors of
the ancestor.
III. Desire of
facilitating
alienation.
[ 213 ] II. 12.111.] AN ORIGINAL VIEW [§420—422
taiy tenure, wardship and marriage ; but if the heir took
by purchase, then the lord could only claim the trifling
acknowledgment of a relief.(r/)
II. ''The prevention of fraud upon the specialty 420
creditors of the ancestor, who, as Mr. Justice
Blackstone and Mr. Hargrave have observed, would have
been defrauded, if the heirs had been allowed to take by
purchase ; as the land would not have been assets in their
hands. (Z>) It is true that "^this r^m fails as to limitations
to heirs special ; since estates tailwerllv^not subject to debt.(c)
But it might nevertheless be a sifecieAt reason for the rule
as regards limitations to heirs general.
III. But, whatever have been the grounds of 421
the rule in its origin, another reason subsequently
existed, as an inducement to the preservation of the rule
from legislative abolition and judicial discouragement, after
the feudal reason had ceased with the feudal system itself;
and that subsequent reason, is, ''the desire to facilitate
alienation, by vesting the inheritance in the ancestor, in-
stead of allowing it to remain in abeyance until his de-
cease. {d)
IV. But these reasons, which would serve by 422
themselves, to stamp the Rule with the character
of a mere prohibitory Rule, founded in policy, do, in fact,
when closely considered, involve other reasons, which im-
part a different and mixed character to the Rule; enabling
us to regard it as a Rule of Construction, as well as a Rule
of Policy; and furnishing us with the means of gaining
more definite and satisfactory notions of its nature, extent,
and application.
Why should such a mode of limiting an estate have been
treated as a fraud? and why should the Rule be said to
have been adopted for the prevention of fraud? Does not
this very expression indicate, that the limitations in question
would, generally and in the main, have virtually and essen-
tially accomplished the same purpose as a limitation to the
ancestor and his heirs, or the heirs of his body, except as
regards the rights of certain third persons, who were de-
frauded by a variation in the mode of constructing such
limitations ? If such limitations were essentially different
from a gift of the inheritance to the ancestor, there would
have been nothing which could, in any point of view, or
with any sort of propriety, be termed a fraud.
It is allowed, on all hands, that if the parties chose to give
the heirs an estate by purchase, they could do so, by taking
care not to give the ancestor an estate of freehold. There
IV. These
reasons in-
volve
another ;
[ 214 ]
(a) Harg. Tracts, 566,
(c) Fearne, 87.
(b) Harg. Tracts, 501,566.
(d) See Harg. Tracts, 498, 500.
II, 12.iii.] OF EXECUTORY INTERESTS. [§423—425. [ 214 J
was no rule, in such a case as this, to vest the inheritance in
tlie ancestor himself, so as to preserve the ri<,'hts of the lord,
or the rights of llie creditors of the ancestor. Why then
should the heirs have been prevented from taking hy pur-
chase, where the ancestor took an estate of freehold? Why
would this be a fraud, in the latter case, more than in the
former ?
To account for this diversity; to account for the interpo-
sition of a Rule of Policv, prohibiting the heirs from taking
as purchasers, in one Jalfe while no such Rule was inter-
posed in other cases Gquaily falling wilhin the same policy;
we are driven to the necessity of seeking some reason from
the nature of the limitations themselves. And one namelv, that
423 sucli reason has been intimated above ; namely, the two limi-
that in the cases falling within the Rule, the two tations would
limitations to the ancestor and to his heirs or the iieirs of generally
his body, would, generally and in the main, have virtually «»d in the
accomplished the same purposes as a gift of the inheritance, "^'i'" have
in fee or in tail, to the ancestor himself; and therefore, the virtually ac-
law construed those limitations to amount to such a gift, in f^ompl'-^hed
order to prevent the iujury which the lord and the specialty thesamepur-
creditors would have sustained, if parties had been allowed, P°*^ ^'^ ^^^^
generally and in the main, virtually to create an estate, of ^ the inheri-
the same quantity, and the same alienable and transmissible ''*"^^^° ^"®
quality, as one limited to the ancestor himself, and yet, by a
particular mode of limitation, fraudulently to evade the
claims of the lord and the specialty creditors of the an-
cestor.
424 " If such alimitation," observes Fearne,(e) "had [ 215 ]
been construed a contingent remainder, the ances- Illustration
tor might, in many cases, have destroyed it for his owno^''^'^*
benefit, if occasion had called for it ; if not, he might have
let it remain to his heir, in as beneficial a manner as if it
had descended to him ; at the same time that the lord would
have been deprived of those fruits of the tenure which
would have accrued to him upon a descent."
425 It is true that the Rule extends even to cases. Certain
where the freehold is so limited that it may deter- objections
mine in the ancestor's lifetime ; as where an estate is limited answered,
to the ancestor for another's life. It is true, also, that where
the inheritance was limited to his heirs general, ditlerent
persons might sometimes have inherited as heirs to the per-
son first taking as heir, from those who would inherit as
heirs to the ancestor himself. But surely it would be a suf-
ficient reason for one uniform Rule, that limitations to the
ancestor and his heirs general or special, would, as already
(e) pp. 83, 84.
[ 215 ] II. 12. iii.] AN ORIGINAL VIEW [§426—428.
observed, generally and in the main, have virtually accom-
plished the same purposes as a gift to the ancestor himself.
In fact, if one uniform Rule had not been laid down, it
would only have been opening a door to fresh schemes of
fraudulent evasion.
Answer to *"Where, indeed, there is a limitation to the heirs 426
another special, but the ancestor himself takes no estate of
objection freehold, as in Mandevile's Case, 1 Inst. 2G b, the heirs spe-
drawn irom cial take in the same manner as if they had been in under
the case of a a limitation to the ancestor himseif il5ut this is a fictitious
fictitious de- a descent per for mam doni under The statute of entails."(/)
scent, per ^jj^ j^ j^jj^ ancestor were living, and such a gift had been
Jomiam construed to be a gift to the ancestor himself under the Rule,
the ancestor would take an estate in the land, and would
have had the power of disposing of the estate, though the
donor had plainly excluded him from both. And hence it
is obvious why the Rule was not applied to cases of this
kind ; and it is evident that such cases have no effect in im-
peaching the reasons above given for the adoption of the
Rule, as it applies to other cases.
[ 216 ] It may, at first sight indeed, be thought that the 427
latter reason just assigned for the non-application
of the Rule to such cases as Mandevile's^ would equally
serve to show that the Rule ought not to have been adopted
at all in regard to any other cases ; as the effect of it is to
give the ancestor the power of disposing of the inheritance.
But it must be observed, that, in those cases, as mere tenant
See § 770, for life, independent of the Rule, he might have destroyed
776-8. the contingent remainder to his heirs, unless protected by a
limitation to a trustee to preserve.
Fearne's Again, the testator's " meaning (as Fearne ob- 428
answer tothe serves, with his usual acumen, cogency, and felicity
h ^^k^'r of expression,) would be as substantially violated, by invest-
r , ! h i»g the first fortuitous heir with the power of defeating the
/^ ,^ succession to the whole sequel train, as by investing the an-
intention cestor himself with such power; except that the first heir
himself would, in the latter case, be equally subjected to it
with all the rest. And why not, if the testator has not dis-
tinguished that first from the rest, nor of consequence pre-
ferred him to the ancestor? The law imposes the dilemma
of committing such power either to the ancestor or his next
heir : will any reasonable inference of the testator's inten-
tion in the matter induce the preference of an unknown de-
rivative character,accidentally meeting the terms of a general
description, to the original attractive object, the groundwork
of the testator's bounty, and to which the attendant relative
designations seem mere appendages ?"(^)
(/) Prest. View of Rule, 25. Upon this point see also Fearne, 80 — 82.
(g) Fearne, 201.
II. 12. iii.] OF EXECUTORY INTERESTS. [§429—432. [ 21G ]
409 y. Another reason, also fouiidcd in (he nature of V. Tiie ob-
tlie limitations themselves, remains to be adduced, j'^ft of the
In cases tliat fall within this Rule, and in certain other ^^ulc is to
cases noticed in the following Chapters, there are two co- g'v^ cfTect to
existing yet inconsistent intents; the one of which may be ^^^ primary
termed the primary or paramount intent, and the other, the ^^^ i''""\*
secondary or minor intent. And, as these, by reason of |^"°^'J^"^J^'_^^''''
their inconsistenry,camiot be both efl'ectuated, the secondary ' ^'.
or minor intent is sacrificed, in order to give effect to the y^condary or
primary or parantOunt intent. minor intent.
430 The primary or paramount intent, in cases fall- definition of
ing within the Rule, is, that the ancestor should [217 1
have the enjoyment of the estate for his life ; and subject t^g primary
thereto, that the estate should descend to all the heirs general or para-
or special of the ancestor, and to none but those who are mount intent
heirs of the ancestor. in thesecascs.
431 The secondary or minor intent is, to accomplish Definition of
the primary or paramount intent in a particular the second-
mode ; in such a mode, as the grantor or devisor imagines, ary or minor
as to secure that primary or paramount intent from being intent,
defeated by the act of the ancestor; in other words, the
secondary or minor intent is, that the ancestor should
have a life estate only, and that the heirs should take by
purchase.
432 The primary or paramount intent above men- The primary
tioned is imported, ex vi termini, by the word or para-
<' heirs," taken in connexion with the limitation of a pre- mount intent
ceding freehold to the ancestor. For, it is evident that ''the '^ imported
ancestor was the sole ascertained and original attracting |^y'"^. ^^'°'"'^
object, the groundwork of the grantor's or testator's bounty ; "^"'.^' '" ^.''"*
and the heirs general or special being all, as such, eciually ".^■'"°" ^^',
unascertained, have dW, prima facie, an equal claim on the jp„ f,!eehol"d
grantor's or testator's regard, grounded entirely on their *=
common relationship to the ancestor. Unless, therefore,
we have some apparent ground for presuming a distinction
and a preference between the person first happening to
answer the general description, and any others who may
afterwards come under the same description ; it is only fair
to suppose that the testator meant the persons who should
take after the ancestor, should be any persons indiscrimi-
nately who should answer the description of heir general or
special of the ancestor, and be entitled only in respect of
such description ; and that the succession should not be con-
lined to the person so first claiming, and his representatives,
as such, but that it should go equally to all other persons
successively answering the same description of heirs general
or special of the ancestor, and vest in them in that cliaracter
only.(/i)
(/») Sec Fearne, 200.
[ 217 ] II. 12. iii.]
AN ORIGINAL VIEW [§433— 435a.
Necessary to
[ 218 ]"
reject the
secondary or
minor intent
in order to
effectuate the
primary or
paramount
intent.
both in the
case of limi-
tations to
heirs
general.
and in the
case of limi-
tations to
heirs special.
[ 219 ]
Answer to
objection
drawn from
the case of a
fictitious
descent per
for mam
doni.
Now, admitting it to be clearly, and, in fact, 433
necessarily inferrible in this way, that it was the
intent, that the ancestor shonld be succeeded by any person
claiming simply in the character of heir general or special ;
and that all oilier persons to whom the same character of
heir general or special of the ancestor should belong, should,
simply by virtue of their sustaining that character, equally
be entitled to succeed to the estate; in other words, and
more briefly, if the estate is to go to any and every person
who can claim as heir general oi;^pecial to the ancestor,
and every such person is to take sfmply in that character ;
then, in order to effectuate this intent, and secure the succes-
sion to its intended objects, it is necessary to reject, as incon-
sistent and incompatible, any other intent that the ancestor
should take an estate for life only, and the heirs should take
by purchase.
This is perfectly clear as regards limitations of 434
an estate to the heirs general. For, "if it vests in
the first heir general by purchase, it cannot go in succession
to succeeding heirs of the same ancestor, not being heirs
general of such first heir, but may eventually go to strangers,
either in defect or exclusion of heirs of such ancestor. For, if
such ancestor be the father, or ex parte paternd, of the heir
so taking by purchase, and such heir should leave no heirs
ex parte puter7icl ; tlie succession will be to his heirs ex parte
matermi. And if such ancestor should be the mother, or
ex parte maternd, of the heir so taking by purchase ; the
succession will be to his heirs ex parte paternd, in prefer-
ence of his heirs ex parte his said ancestor."(z) Whereas,
if the ancestor is the first purchaser of the inheritance, so
that, on his death, it vests in the first heir by descent, it goes
to those heirs only of the first heir, who would also be heirs
of the ancestor, the first purchaser and the primary object of
the grantor's or testator's choice or bounty.
And the same is the case with limitations to 435
heirs special. For, in order to secure the succes-
sion to all the heirs special of the ancestor, and not merely
to those who shall likewise be heirs special of the first heir
special, an intent that the ancestor should take a life estate
only, and that the heirs special should take by purchase,
must be rejected, as inconsistent and incompatible.
Where, indeed, the ancestor takes no preceding 435a
estate of freehold, a limitation to the heirs special,
though vesting in the first heir special by purchase, will
nevertheless secure the succession to all the heirs special of
the ancestor, in the same manner as if the inheritance had
vested in the ancestor himself. But this, as we have seen,
(i) Fearne, 192.
II. 12. iii.] OF EXECUTORY INTERESTS. [§436—438. [ 2VJ ]
is a fictitious descent, jw^'r formam don't, under the statute See § 426.
of entails; in a case in which, from the non-existence of
any estate in the ancestor under the terms of the grant or
devise, so far from there being any pretext for construing
the estate hmited to tlie heirs special to vest in the ancestor,
such a construction would be admitting the ancestor to an
estate in and a power over the hind, though the grantor or
devisor himself had excluded him entirely. In this case,
therefore, it is fairly allowable to resort to the fiction of a
supposed descent, in order to carry the estate to all the heirs
special of the ancestor, without vesting the inheritance in
the ancestor. Heiice it is evident, that this case does not
invalidate the general argument, that where the ancestor
takes a preceding estate of freehold, it was necessary to vest
the inheritance in the ancestor, in order to carry the estate
to all his heirs special. For it is not to be imagined that
the law would resort to the fiction of a supposed descent,
in order to effectuate the intent above-mentioned, when,
generally speaking, there is virtually and in the main, a real
and perfect descent; the interests of the ancestor and his
heirs special jointly possessing the distinctive essential
qualities of an estate tail in the ancestor, as regards the
number and character of the individuals who are to take
by virtue thereof ^ .
436 And as the mode of succession may well be re- ^^^^ jefinlfe
gardcd as subordinate to the succession itself, and ^"gj^y^that^
the prescribing a certain mode of succession, a secondary or ^^^ ggcond-
minor consideration in comparison with the admission to ^^^ ^^ minor
such succession of all who have a common claim upon the \^{^^[ \^
same ; it is strictly accurate and definite to say, in regard to sacrificed to
the operation and the reason of the Rule, that the secondary effectuate
or minor intent is sacrificed for the purpose of effectuating [ ooq ]
the primary or paramount intent. the primary
437 It is true, indeed, that in the great case o{ Jesson orpara-
v. fVright, Lord Redesdale said, "that the general mount intent,
intent should overrule the particular, is not the most accu- Observaiiona
rate expression of the principle of decision. The rule i:<, ofLord
that technical words shall have their effect, unless, from Redesdale,
subsequent inconsistent words, it is very clear that the tes-
tator meant otherwise. "(A-)
438 And in Doe d. Gallini v. Gallini, Lord Den- and Lord
man, C. J., said, "The doctrine that the general Denman.
intent must overrule the particular intent, is incorrect and
vague. The more correct mode of stating the rule of con-
struction, is, that technical words of known legal import,
must have their legal effect, even thougli the testator uses
inconsistent words, unless those inconsistent words are
{k) 2 Bligh, 56.
Vol. II.— 23
[ 220 ] II. 12. iii.] AN ORIGINAL VIEW [§439—445.
of sncli a nature as to make it perfectly clear that the
testator did not moan to use them in their technical
sense. "(/)
They are These observations of Lord Redesdale and Lord 439
just, but are Demnan are perfectly just; and they accurately
not explana- point out the construction involved in the Rule. But they
tory of the (Jq not furnish, and probably were not intended to furnish, a
grounds of satisfactory explanation of the grounds of the Rule,
the Rule. Why have the technical words the effect of over- 440
Why the ruling other words, which, though not technical,
technical have a known legal import as much as the techni-
wordsover- cal words themselves? "'The intention, expressed 441
ruletheothcr Qj. necessarily implied, SO far as the same is con-
words, sistent with the rules of law, is the controlling rule of con-
struction in wills, and with scarcely any exception,
in deeds also.(r;i) The fact seems to be, that the 442
Wherein technical word '* heirs" has this effect, because (in
consists the addition to the other grounds of the Rule above-mentioned)
incorrectness it expresses the primary or paramount intent; whereas the
and vague- other words only express a secondary or minor
nessofthe intent; and that the incorrectness and vagueness 443
common ^^ j|^g common statement of the principle of the
statement of j^^^|g ^^^^ ^^^^ j-g -j^ ^^^^ ascription of two different intents,
r 221 1 ^^^^ *^"^ °^ which is made to give way to the other; but that
'- -• such statement is incorrect and vague merely by reason of
the adjectives employed, " general" and " particular," and
from the omission of the essential circumstance of the one
intent being inconsistent and incompatible with the other.
This, it is humbly submitted, is sufficiently clear from what
has been said in the preceeding pages : and it is fully borne
out by the words of Lord Eldon, C, who, in moving judg-
ment in the House of Lords in the very case of
Observation Jesson v. Wright, said, "It is definitively set- 444
of Lord TLED AS A RULE OF LAW, thdt wheve there is a
LIdon on ^^^^ particutar and a general or paramount intent, tJie latter
general and shall prevail.{n).
particular ^j^^-j ^i^^ same principle is distinctly expressed 445
intent. -^^ Butler, free from all doubt, with regard to cer-
Observation ^g^j,^ c^ses in which it is in intended that all the issue should
of Butler on take, and yet that unborn sons of an unborn son should take
the general ^^ purchase. "Another rule in the construction of wills,"
and particu- j^^ ^^^^^ ^, which is admitted in a much greater latitude
than it is in the construction of deeds, is, that when a tes-
tator's general intent appears, the Court, in order to give it
(/) .5 Bar. & Adol. 640.
(m) Upon this point See Butler's Note, Co. Litt. 271 b, VII. 2, beginning of
third paragraph. And Fearne, 186.
(n) 2 Bligh, 51.
II. 12. iii.] OF EXECUTORY INTERESTS. [§41G— 119. [ 221 ]
effect, will sacrifice to it a particular intention inconsistent
with it."(o)
446 Hargrave has justly observed, Pthat the Rule The Rule is
cannot be treated as a mediiuu for discovering the notampriiuin
testator's intention, but that the ordinary rules for the inter- for discovor-
pretation of deeds should be first resorted to; and that when ingtheintcn-
it is once settled that the donor or testator has used words tion.
of inheritance, according to their legal import ; lias applied
them intentionally to comprise the whole line of heirs to
the tenant for life; has made him the terminus, by reference
to wliom the succession is to be regulated ; then
447 the Rule applies.( p) But, the Rule is a means for But it is a
cfj'cctuatiiig the testator's primary and paramount means for
intention, "when previously discovered by the ordinary rules eiTectLiating
of interpretation; a means of accomplishing that intention tbc primary
to comprise by the use of the word heirs, the whole line of of P^^''^;
heirs to the tenant for life, and to make him the terminus, """ouiit '"^«^"-
by reference to whom the succession is to be regulated. ^''^"'^ ^oo 1
And the way in which the Rule operates, as a means of L ^^^ J
doing this, is, by construing the word heirs as a word of "^^^'^^^''■^'^•
limitation ; or, in other words, by construing the limita-
tion to the heirs general or special, as if it were a limi-
tation to the ancestor himself and his heirs general or
special.
448 The same learned author, however, has described The Rule is
the Rule as i paramount to and independent of pri- indeed level-
vate intention. ((/) And it has been said, indeed, by a very led against
eminent lawyer, that "instead of seeking the intention of the intent,
the parties, and aiming at its accomplishment, it interferes,
in some at least, if not in all cases, with the presumable,
and, in many instances, the express intention. In its very
object it was levelled against the views of the partics."(r)
The same position has also been advanced and elaborately
and ably maintained by other writers, who have subse-
quently treated of the subject. (*) And it would seem
scarcely possible, indeed, for any one to review the cases,
without perceiving that such was the very object of the
Rule; that "it was levelled against the intention."
449 But, at the same time, from a careful examina- but only
tion of the judgments delivered upon those cases ; against the
tVom a consideration of the views of the profound Fearne, secondary or
by whom, as Butler remarks, the Rule has been " discussed ">i'ior intent,
with infinite learning and ai)ility;" and also, it is humbly
submitted, from the attempt which has just been made iu
(o) Co. Litt. 271 b, note (1), VII. 2. (/)) Co. Litf. 376 b, note (1), II.
Iq) Co. Litt. 376 b, note (1), II. (r) Prest. View of Rule, 12.
{s) See Hayes's Inquiry, and Hayes's Principles, passJ/w ; Jarnian's Powell
on Devises, 801, note{/)); Phillips's Inquiry, 18.
[222] 11.12. iv.] AN ORIGINAL VIEW [§450,451.
the preceding pages to give a more definite, guarded, and
accurate statement of the grounds of the Rule ; it is per-
fectly clear that the intention against which the Rule is so
lev^eiled, is a mere secondary intent.
Summary of In fine, to sum up the principles or grounds of 450
the grounds the Rule, in a few words, it would seem clear that
of the Rule, it was designed to effectuate the primary or paramount (or,
See § 429- as it is commonly but vaguely termed, the general) intent,
449. at the expense, and in defeasance of a secondary or minor
(or, as it is commonly but vaguely termed, particular) intent,
[ 223 ] amounting, in its nature, to an intent to accomplish a mere
See § 4i9, fraudulent evasion of the incidents to a descent, and, as
420. such, prejudicial, in its object or tendency, to the lord and
the specialty creditors of the ancestor; an intent, too, which
See § 421. ^ygg opposed to the policy of the commercial limes which
quickly followed, and was also incompatible with that pri-
See § 430, ^ary or paramount intent, of which a definition and expla-
^^^* nation has already been given.
SECTION THE FOURTH.
The J3pplication and Non-application of the Rule, in
Cases of Legal Estates and Trusts Executed.
Preliminary If we do but carefully bear in mind the terms 451
caution. of the Rule, as expressed by the counsel in Shel-
See § 395-6. i^V'^ Case, and as indicated in the Provost of Beverly^s
Case, and keep steadily in view the principles or grounds
thereof above mentioned, we shall perceive that the numer-
ous decisions upon the Rule, with scarcely a single excep-
tion, are all consistent with each other; and we shall find
little or no difficulty in solving any other cases that may
arise. Whereas if we abandon or misapprehend the prin-
ciple, as stated and explained above, that in the cases under
See § 429- the rule, there is a primary or paramount intent, and a se-
449. condary or minor and incompatible intent, the latter of
See k 430-1. which is to give way to the former; or if we mistake the
true import of those terms; we shall abandon all hope of
untying the knots in the subject, and be driven to cut them
in such a way as to disaffirm the authority of numerous
decisions, which never have, and never ought to be, over-
ruled, and even to deny that ''' " the controlling rule of con-
struction in wills, is, the intention expressed or clearly im-
plied;" to contradict which, Fearne observes, " would be a
mockery, a denial of the import of the word will. "(a) Or,
as the only alternative, we shall be plunged into inconsist-
ency and uncertainty, and shall then, but then only, have
abundant cause to say, with a learned author, " it is much
(a) Fearne, 186.
ir. 12. iv.] OF EXECUTORY INTERESTS. [§452—459. [ 224 ]
and seriously to be lamented, that a line cannot be drawn
so nicely, as to enable a distinction to be clearly taken, dis-
criminating those cases that are, and those that are not, the
objects of the Rule."
452 On attending carefully to the principles above Three gene-
mentioned three general rules or propositions may ral proposi-
be laid down for the guidance of the practitioner in deciding tions may be
as to the application of the Rule in Shelley's Case. laid flown.
PROPOSITION I.
,, . , 1 1 1 I. First gone-
453 No cn-cumstances, however strongly and conclu- ^^-^ proposi-
sivcly indicative merely of an intent that the an- tion,showin2
cestor should take a life estate only, and that his heirs general ^v^Jro the
or special should take by purchase, will be sufficient to pre- Rule applies,
vent the operation of the Rule ; nor, indeed, will the most notwith-
positive direction to that effect be sufficient for the accom- standing ap-
plishment of such a purpose: because, such circumstances parent indi-
or directions ordy serve to make the secondary intent cations to the
more clear, without negativing the existence of, or in contrary,
any way atTecting, the primary intent. Hence the Rule Sec § 429-
applies, 450.
454 1. "Though the property is limited to the ances- 1. Limitation
tor for life only, or for life, and no longer.(«) for life only.
455 2. Though limited to him without impeachment 2. Or with-
of waste. (6) out im-
peachment of waste.
456 3. Though there is a power given iiim, to do 3. Power to
that, which, as tenant in tail, he might do without makea joint-
anysuch power; as ''to make a jointure, or leases.(c) ureor leases.
457 4. Though his estate is subjected to the obliga- 4. Obligation
tion of keeping the buildings in repair, t {d) to repair.
45S 5. ''Though there is a direction that he shall not [ 225 ]
sell or dispose of the estate, for any longer time 5. Restraint
than his lit"e.(^/) of alienation.
459 6. '•Though there is a limitation to trustees to g Ljmiiation
preserve contingent remainders ; and there is no j^ trustees to
preserve contingent remainders.
(a) Thong v. Bedford, 1 Bro. C. C. 313 ; as stated, Fearne, 177.
(6) Jones v. Morgan, 1 Bro. C. C. 276; as stated Fearne, 134. Bennett v.
Earl of Tankcrvile, stated § 475.
{c)Balev. Coleman, 2 Y em. 610 ; 1 P. W. 142; as stated, Fearne, 124.
Jones V. Morgan, 1 Bro. C. C. 276 ; as stated, Fearne, 234. Broughton v.
Langley, 2 Ld. Raym. 873 ; as stated, Fearne, 159.
(r/)t Jisson V. Wright, stated § 475.
((/) Perrin v. Blake, 1 Black. Rep. 672 ; and Hayes d. Foordc v. Foorde, 2
Black. Rep. 698; as stated, Fearne, 156, 173.
[ 225 ] II. 12. iv.] AN ORIGINAL VIEW [§460— 4G2.
7. Limitation
to heirs for
their hves,
8. Concur-
rence of
several of
these indi-
cations.
Roe d.
Thong V.
Bedford,
4 Mail. &
Sel. 362.
Reece v.
Steel, 2 Sim.
233.
See also
Jones V.
[ 226 ]
Morgan, 1
B. C.C.276,•
/-'err^/^ V.
Blake, 1 Bl.
II. 672; and
Hayes v.
Foorde, 2 Bl
9. Freehold
determinable
in the ances-
tor's lifetime.
Curtis V.
Price, 12
Ves. 89.
See also
Fearne 30,
31-33.
contingent remainder, unless the liniitatiou to the heirs is
one.(f)
7. ^"Though the heirs arc to take for their 460
iives.(/) (See §486.)
8. And the Rule will be applied even where 461
several of these indications occur in the same case.
A testator devised to his wife, for hfe; remainder to
trustees, &c., remainder to his daughter, for hfe ; remain-
der to trustees, &c.; and, from and immediately after the
decease of his daughter, he devised to the heirs of her body;
and, for want of such issue, then, to IV. T. and his iieirs;
it being his will and meaning, that after the decease of his
wife, his daughter should have only an estate for life; and
that after the decease of his wife and daughter, the premises
should go to and vest in the heirs of the body of his daugh-
ter; and that for want or in default of such issue, the same
should vest in fV. T. and his heirs; and that his daughter
should not have any power to defeat his intent and mean-
ing in this respect. It was held, that the daughter took an
estate tail.
And where a testator devised to C. H. all iiis real estate,
during the term of her natural life, and to her heirs, the issue
of her body, for ever, during the term of their natural lives.
If his niece had no son, then, to her eldest daughter. Each
heir was only to be tenant for their respective natural lives,
during the term of 99 years from the testator's decease ;
devesting all from power to sell. No timber was to be cut
down, except for repairs. A proviso was added, that if his
niece left no issue, or should they become extinct, all liis
real estate should go over. The Vice-Chancellor held tliat
C. H. took an estate tail.
, R. 698; as stated, Fearne, 134, 156, 173.
462
9. It applies in the case of a freehold determin-
able in the ancestor's lifetime.
Lands were limited to E. B.,{ox life, if she continued sole
and immarried, with an ultimate limitation to the heirs of
her body. And Sir W. Grant, M. R., held, that there was
a vested estate tail, instead of a contingent remainder, not-
withstanding the possibility that the first estate might termi-
nate in the life of the widow, and before there could be an
heir of her body.
(c) Wright V. Pearson, as stated, Fearne, 126, &c. Coulson v. Coulson, 2
Stra. 1125; as stated, Fearne 161. Hodgson w.Jlmbrose, Doug. Rep. 337 ; as
stated, Fearne, 174.
(/) Hayes v. Foorde, 2 Bl. R. 698; as stated, Fearne, 173.
II. 12. iv.] OF EXECUTORY INTERESTS. [§4G3— IGG. [ 22(i ]
463 10. '"It applies where the freehold is by inipHea- 1<». Frce-
tion.(/) ^f^ ^'y ''"-
11. It also applies where the ancestor takes fno p'lcatujn.
4G4 express estate, nor any estate by impUcation, but H- Frec-
an interest is hmitod to liis heirs special, in cases 'lold by re-
where he is the grantor, and that interest is preceded by suihng use,
estates far life or in tail, which of course may regularly ex- '^^"^'•■^ ^ .
pire in the lifetime of the grantor, by their original '''"'^a- J.'|JJjj'^^'|^'^'^
lion,(5-) and '• not merely by surrender or forfeiture.(/0 ^^^ j^^ .^^
In this case, inasmuch as the interest limited to ^^-^ 'r
4G5 tlie heirs special of the grantor, cannot vest till his ^^^^ frrantor,
death, and the preceding interest may regularly q^^'^^ ^g^
expire before his death, nay the very instant after the de- q^^ 4^7/
livery of the deed creating them; there is a freehold use
remaining undisposed of in the grantor, sufficient to attract
the operation of the Rule.
And this is the case even where there is an ulterior vested even where
interest. For, it is evidently the intention that such ulterior there is an
vested remainder should only occupy, or absorb, as it were, [ 227 ]
that portion of the seisin, property, or ownership, subse- ulterior
quent to the death of the grantor : and even then, that it vested jnter-
should so occupy or absorb^it, subject to open and let in the est.
preceding estate, in favour of the heirs special of the grantor, ^J-^^ ^ 40- / ,
in case there should be any at the death of the grantor : ^^•
because, of course there is no probability that the grantor
intended that his heirs special should be excluded, merely
in consequence of the preceding estates happening to expire
before his death. And, in the case supposed, where the
heirs special are the heirs special of the grantor, there is no
good reason why this exclusion should not be prevented, or
why the intention that the ulterior vested remainder should
not occupy or absorb any portion of the seisin, property, or
ownership, anterior to the death of the grantor, should not
be etfectuated, when all that is necessary for the purpose, is,
to regard the intervening portion of the use, between the
expiration of the preceding estates and the death of the
grantor, as undisposed of, and still remaining in the gran-
tor.
4GG Where indeed the limitation is to the heirs spe- Cases where
cial, not of the grantor, but of a third person, then the limitation
the exclusion of the heirs special, in the event of the expira- is to the
tion of the preceding estates, cannot be prevented ; and the heirs special
(f) Fcarne, 41. , ^
(?) mils V. Palmer, 5 Burr. 2615 ; 2 Black Rep. 687 ; as stated, Fearne,
45;" overruling Southcot v. Stoivell, 1 Mod. 226, 237; 2 Mod. 207, 211 ; as
stated, Fearne, 44.
(/i) See 7'ippin v. Cosin, Carth. 272 ; 4 Mod. 380 ; as stated, Fearne, 43—4.
[ 221 ] II. \2. iv.]
AN ORIGINAL VIEW [§167—469.
of a third
person.
12. Freehold
by resulting
use, where a
[ 228 ]
springing in-
terest is lim-
ited to the
heirs special
of the
grantor.
See § 117-
124a, 75.
13. Where
there are
apparently
two concur-
rent contin-
gent re-
mainders.
Dop d. Cole
V. Gold-
smith, 7
Taunt. 209.
14. Where
ancestor's
estate is not
for his own
benefit.
ulterior vested remainder must occupy and absorb the seisin,
property, or ownership, subsequent to the preceding estates;
as well that part which is aiUerior to the death of the ances-
tor, to whose heirs special the intermediate limitation is
made, as that part which is subsequent to his death, subject
to open and let in the remainder to such heirs special. For,
there is no room for the construction adopted in the other
case ; and even if an estate could be raised by implication
in a deed, there is no implication that the ancestor was in-
tended to take an estate of freehold, although, indeed, there
is no probability that the limitation to his heirs special was
intended to fail, merely in consequence of the preceding
estates expiring before his death.
12. The Rule also applies where the ancestor 467
takes no express estate, nor any estate by implica-
tion, but a limitation is made to his heirs special, in cases
where he is the grantor, ''unpreceded by any other limita-
tions, (A) or 'by none but limitations of chattel interests. (?)
In these cases, the entire fee simple remains in the grantor,
whether there are any ulterior limitations or not ; because
even if there are any ulterior interests, none of them can be
vested. And as, therefore, the grantor has virtually a par-
ticular estate of freehold, the rule executes the interest limited
to his heirs special in himself
1.3. The Role applies even where it might ap- 468
pear that the limitation to the heirs of the body of
the ancestor, and the limitation over, were intended to be
two concurrent contingent remainders, the latter to take
effect as an alternative limitation, in case there should be no
heir of the body, at the decease of the ancestor.
A testator devised to F. G. all his lands, to hold to him
and his assigns, for life ; and, immediately after his decease,
he devised the same unto the heirs of his body lawfully to
be begotten, in such parts, shares, &c., as F. G. should ap-
point; and, in default of such heirs of his body lawfully to
be begotten, then, immediately after his decease, over to F.
G. It was held that F, G. took an estate tail by implica-
tion.
14. "^ Where it is limited to the ancestor in trust 469
for another, or to answer some particular purpose,
and not for his own benefit, Fearne considers that the case
does not fall within the Rule. Butler, however, remarks
that Courts of Law must treat the case as falling within the
(A) Pihus V. Mitford, 1 Ventr. 372 ; as stated, Fearne, 41, 42.
(i) Penhay v. Hurrell, 2 Vern. 370 ; as stated, Fearne, 25. Sec also But-
ler's note, Fearne, 41, (y), in opposition to Adams v. Savage, 2 Salk. 679, and
to Rawley v. Holland, Vin. V. 22, p. 189, pi. 11; as stated, Fearne, 42, 43.
ir. 12. iv.] OF EXECUTORY INTERESTS. [§470— 471b. [ 228 ]
Rule ; because they cannot take notice of any trust charged
on legal estate. (A)
470 15. It may here be added, that, ' the Rule is ap- 15. Where
plied in equity where both estates are equitable, (/) [ 229 ]
even though the first be "'for the separate u.se of a feme both estates
covert. (//i) But "it does not apply where the first estate is arc equit-
legal, and the other equitable ;(?i) or " vice versd.{o) ^'^'^'.^"'^ ^''®
^ ' first IS for
separate use of feme covert.
471 16. The i' Rule is equally applicable, whether 16, Copy-
the hereditaments are of freehold or of copyhold hold,
tenure. (;;.)
471a 17. 'hie Rule applies where the limitation to 17. Whore
the heirs of the ancestor, is an ulterior limitation a limitation
to his right heirs male, after an intermediate limitation to to right heirs
his first and other sons. rnale follows
A testator devised to P., for life ; remainder to trustees to o"^ ^^ fi"*^'
preserve &c. ; remainder to the first and other sons of P., ^^^ other
Duke of r^., with remainder to the right heirs male of P. It ^^"^•
was held that P. took an estate in tail male in remainder; Doe A. Earl
Bayley, J., observing, that such remainder was not neccs- ^^ y}'^"^^y
sarily inoperative : tor, cases might be put, where persons ^'' ^ y^"^'*'
would have taken as " heirs male" of the body of the Duke, ^ ^^ '
and yet would not have taken under the limitation to his
first and other sons in tail male; as, if the Duke had had
au eldest son, who died in the lifetime of the testator, leaving
a son.
471b 18. Even where a testator devises to his wife, 18. Tenant
for life; remainder to the heirs of her body by in tail after
him; and she never has any issue by him; the Rule will possibility of
be applied by considering her to be tenant in tail after pos- [ 230 ]
sibility of issue extinct, in respect of the possibility she had issue extinct,
of issue during nine months from the testator's decease.
A testator devised a reversionary estate to his wife (who pinit v.
never had issue by him.) for the term of her life; and from Powles, 2
(A-) Fearne, 35, and note (/>).
{I) F<'arne, 59. Garth v. Baldwin, 2 Vcs. Sen. 646 ; as stated, Fearne, 125,
126. Wright v. Pearson, as stated, Fearne, 126, &c. Brydges v. Bryd^es,
3 Ves. Jun. 120; as stated, But), note (g), Fearne, 201; overruling Bagshaw
V. Spencer, Vcs. Sen. 142 ; as stated, Fearne, 121, ice.
(/ft) Fearne, 56; and Pitt v. Jackson, 2 Brown's Rep. Chanc. 51; as stated,
Fearne, 57.
(«) Tippin V. Cosin, Carfh. 272; 4 Mod. 3S0 ; as stated, Fearne 43, 52. Shop-
land V. Smith, 1 Brown's Rep. Chanc. 75; and Silvester v. Wilson, 2 D. d: E.
444; as stated, Fearne, 57, 58.
(rt) Fearne, 58, 59; and Venables v. Morris,! D. & E. 342, 438; as stated,
Fearne, 59, note (d).
(p) Fearne, 60 — 71.
Vol. II.— 24
[ 230 ] II. 12. iv.] AN ORIGINAL VIEW [§472—474.
Man. & Sel. and after her decease, to tlie heirs of her body by bim ; and
65. for want of such issue, to his brotluM-in-lavv. It was held,
that the wife was tenant in tail after possibility of issue
extinct, the words, and the possibility she had of issue
during nine months from the testator's death, being suflicient
to constitute her such.
II. Second PROPOSITION II.
position ,^^^°' Nor will the application of the Rule be excluded 472
showint^ by any words which do not unequivocally indi-
where tlie cate, but are only capable of being regarded as indicating,
Rule applies, the objects of succession to be individuals other than
See § 429- persons who are to take simply as heirs general or special.
450. Hence,
l.Wordheir, 1. The Rule applies, 'i though the word "heir" 473
in the singu- is used in the singular,(<7) even "-with the restric-
lar, with the live word next, first, or eldest, prefixed to it,(r) unless there
word next, are superadded words of limitation; because "heir" is
first, or nomen collect ivnm, and equivalent to "heirs;" and the word
eldest, but fiist, next, or eldest heir, may mean the heir who from time
\sithout su- to time shall answer that description, and not that person
peradded alone who shall first answer such description,
words of li- g. It also applies, though in addition to the first 474
mitation.^ words of inheritance, namely, heirs or heirs of the
See § 485. j^^jy^ j,-, j^g plural number, there are superadded words,
2. Words of provided they are « similar to the first words,(.s) or provided
limitation ^^^^y t may fairly be assimilated to the first words, merely by
superadded g^ppiyiug^ as an ellipsis, the words which are necessary for
^ ^^^ ^ that purpose, or by understanding the one to be used in the
to the word ^^^^^ ^^^^^^ ^^ ^^^q other ;(/) and by rejecting the word
^^^\ A.9,1 fissigns, if used, as mere surplusage.
^ee 9 40/. ^ testator gave freehold and leasehold estates to trustees
IV 1 9' ^"^ ^'^^''' ^^^^'■^' "P^" ^''"^•' ^° permit his son T. to take the
^- I Sf ^'^''^s and profits, for life ; and from and after the decease of
bim. & fetu. j^.^ ^^^^ y,^ ^j^^ testator gave such freehold and leasehold
estates unto the heirs of the body of his son, lawfully be-
gotten, their lieirs, executors, administrators, and assigns,for
ever; but in case his son T. should die without issue, then,
{q) Blackburn v. Stables, stated § 493 ; Barley's Case, 1 Vent. 230 ; Whit-
ing V. Wilkins, 1 Bulstr. 219; Richards v. Lady Bergavenny, 2 Vern. 324;
and White \\ Collins, Com. Rep. 289; as stated, Fearne, 179.
(r) Miller v. Sengrave, Robinson's Gavelk. 90 ; and Dubber d. Trollope v.
TroUope, Amb. 453 ; as stated, Fearne, 179.
(s) See Dovglas v. Conscreve, 1 Bcav. 59 ; as stated, § 477.
(/) Shelley's Case, 1 Co^ Rep. 93, as stated, Fearne, 181. Wright v. Pear-
son, as stated, Fearne, 120, eVc. Goodright v. Pullyn, 2 Ld. Rayin. 1437, as
stated, Fearne, 100. Morris v. Le Gay, cited 2 Burr. 1102, as stated, Fearne,
101. Hayes d. Foorde v. Foorde, 2 Blac. Rep. 098, as stated, Fearne, 173.
II. 12. iv.] OF EXECUTORY INTERESTS. [§475. [ 231 ]
he gave llic said estates upon trust tor the benefit of his son
IV., and the heirs of his body, lawfully begotten, in like
manner as he had devised the same for the benefit of his
son T. and the heirs of his body. The question was, what
estate T. took in the leaseholds. Sir John Leach, V. C,
held, that the gift over was not, as in the case of Hodi(eson
V. Bussey, 2 Atk. S9, in default of such issue, but in default
of issue generally ; that the devise to the trustees to permit
the son to take the rents and profits, clearly created a legal,
and not a mere equitable estate; that the words of limita-
tion annexed to the gift to the heirs of the body must be re-
jected, as well with respect to the freehold, as the leasehold
estate ; and that 7\ took an absolute interest in the lease-
hold property.
Again; a testator devised to .^., for life; and after her Measttre v.
decease, to her son, J. T., for life ; and after the determina- Gee Jy Mar.
tion &c., to trustees, to preserve &c. ; and, from and after & Aid. 910.
the decease of J. T., then, he devised to the heirs of the
body of J. T., his, her, and their heirs and assigns for ever ;
but, in case there should be a failure of issue of the body of
J. T., then over. The Court of King's Bench certified, that
J. T. took an estate tail in remainder.
So where a testator devised lands, in trust for F. JV., till Nash v.
he should arrive at the age of 21, upon his legally taking Coatcs, 3
and using the testator's surname; and then, upon his attain- [ 232 J
ijig such age, and taking that name, habendum to him, lor Bar. & Adol.
life ; and, from and after his decease, to hold to the trustees, 8-39.
and the survivor of them, and the heirs of such survivor,
to preserve contingent remainders in trust for the heirs male
of the body of f7 IV., taking the testator's name, and the
heirs and assigns of such male issue for ever ; but, for want
and in default of such male issue, then, upon similar trusts
for /'. IV.^s brother and his issue. It was held that F. fV.
would take an estate tail on his coming of age, and taking
the testator's surname.
475 3. The Rule also applies, though words of dis- ^. Superad-
tributive modification are superadded, provided ^p" ^.^'''''"^°'
there are no superadded words of limitation, and no other " " '^*^
unequivocal indications that the word iieirs is not used in '""• ' '^^ i*^"'
the technical sense; because the grantor or testator might g'^radded
have erroneously supposed that the heirs might take in that ^^.^j.jg ^f
character, and yet in a distributive mode ; and therclbre ii,iiitation.
these words of modification are rejected as repugnant. g^g ^ ^gy^
A testator devised to his daughter and the heirs of her 49Sa.
body lawfully to be begotten, for ever, as tenants in com- jy^^ ^
mon ; and in case his daughter should happen to die belbre Candicr v.
21, or without leaving issue on her body lawlully begotten. Smith, MY).
then over. It was held an estate tail in the daughter. Lord ^ e. 531,
Kenyon, C. J., after adverting to Roe d. Dodson v. Grew,
[ 232 ] II. 12. iv.] AN ORIGINAL VIEW
[§475.
Bennett v.
Earl of
Timkerville,
19 Ves. 170.
[ 233 ]
Pierson v.
Vickers, 5
East, 548.
Je.Rson V.
Wrighty 2
Bligh, 51.
2 AVils. 323, said, he admitted that in tliis case the testator in-
tended his daughter to take an estate for Ufe only, and her
children as purchasers ; but then he also intended that all
the progeny of those children should take before any inter-
est should vest in his more remote relations ; and the latter
intention could not be carried into effect unless the daughter
took an estate tail.
Again ; a testator devised to his younger son, to hold to
him and his assigns during the term of his natural life, with-
out impeachment of waste ; and, from and after his decease,
to the tieirs of his body, to take as tenants in common and
not as joint tenants ; and in case of his decease without issue
of his body, to his eldest son, his heirs and assigns for ever;
and in case both sons should die before 21, over. The
Master of the Rolls held that the younger son took an estate
tail. And referring to Strons;^. Goff, 11 East, 668, he
said, that it was evidently distinguishable frotp the other
cases, and from the present. That there was not, in that
instance, any indication of an intention that the estate should
not go over until after an indefinite failure of issue : it was
to go over if the children should not attain 21.
And even where a testator devised to his daughter and to
the heirs of her body lawfully to be begotten, whether sons
or daughters, as tenants in common ; and, in default of such
issue, then over. It was argued, on the one hand, that the
words "sons or daughters" meant no more than " male or
female." On the other hand, the counsel for the defendant
contended, that they explained the words " heirs of the
body" to mean sons or daughters. But Lord Ellenborough,
C. J., asked the counsel for the defendent, how he got rid of
the words "in default of such issue?" To this he replied,
that they referred to sons and daughters: upon which, Law-
rence, J., intimated, that there was nothing in the will to
confine the words to issue living at the death of the daugh-
ter ; and observed, that these words are always construed to
mean an indefinite failure of issue, unless restrained by other
words. The Court afterwards certified, that the daughter
took an estate tail.
So where a testator devised to W., a natural son of his
sister, for life, he keeping the buildings in repair; and, after
his decease, to the heirs of the body of IV., in such shares
and proportions as he should appoint; and, for want of such
appointment, then, to the heirs of the body of fV., share
and share alike, as tenants in common ; and if but one child,
then, to such only child; and for want of such issue, to the
testator's right heirs. It was held by the Court of Queen's
Bench, that W. took an estate for life only, with remainders
to his children, for life, respectively, as tenants in common.
But the House of Lords reversed this judgment, and decided
II. 12. iv] OF EXECUTORY INTERESTS. [§175. [ 233 ]
that IF. took an cstnte tail. The Lord Chancellor, in mov-
ing judgment, remarked, that it was definitively settled, as
a rule of law, that where there is a particular, and a general
or paramount intent, the latter sliall prevail; (2 Bligh, 51;)
and that, upon the whole, he thought it was clear that the [ 234 ]
testator intended thai all the issue of fV. should fail, hefore
the estate should go over according to the final limitation.
(2 Bligh, 55.) Lord Redesdale expressed himself thus: —
" That the general intent should overrule the particular, is
not the most accurate expression of the principle of decision.
The rule is, that technical words shall have their legal effect,
unless, from subsequent inconsistent words, it is very clear
that the testator meant otherwise. In many cases, in all, I
believe, except Doe v. Gojf, it has been held that the words
< tenants in common,' do not overrule the legal sense of
words of settled meaning. It has been argued, that heirs
of the body cannot take as tenants in common; but it does
not follow that the testator did not intend that heirs of the
body should take, because they could not take in the mode
prescribed. This only follows, that having given to heirs of
the body, he could not modify that gift in the two ditferent
ways which he desired, and the words of modification are
to be rejected." (/A. 56, 57.) His Lordship added, that it See § 48Sa.
was impossible to decide the case, without holding that Doe
V. Goffis not law. {lb. 58.)
And so where a testator devised lands to his son-in-law, Doe d. At-
John, and Elizabeth his wife, for their lives, and for the life kimon v.
of the survivor; and, from and immediately after the de- Fctherstone,
cease of the survivor, then unto the heirs of the body of 1 Bar. &
Elizabeth, by John, to be equally divided among them, Add. 944.
share and share alike. And he devised to John, all the re-
sidue of his real and personal estate. It was held, upon the
authority of the case oi Jesson v. Wright, (2 Bligh, 1,) that
these words created an estate tail, and not a life estate, with
remainders to the children of Elizabeth, by John, notwith-
standing the words "to be equally divided between them,"
" share and share alike ;" and although there was no devise
over "for want of such issue," as in the case of Jesson v.
fVright.
In another case, a testator devised to his wife, all his real Gretton v.
and personal estate, she first paying his just debts and funeral Howard, 6
expenses; and, after her decease, to the heirs of her body. Taunt. 94.
share and share alike, if more than one ; and, in default of
issue, to be lawfully begotten by him, to be at her own dis- [ 235 ]
posal. The testator left his wife and six children him sur-
viving. The Court certified that the wife took only an
estate for life, with remainder to all the children as tenants
in conmion in fee.
This case is distinguishable from all the preceding cases, Observations
[235] II. 12. iv.] AN ORIGINAL VIEW [§476,477.
on (ircttoii except the last, in this circnmstancc ; that there is no pri-
V. Haward. niary or paramount intent, manifested by the hniitation over,
to let in all the descendants of the testator and his wife : for,
the failure of issue is clearly a failure of issue in the lifetime
of the wife. But still it would seem that this decision must
be regarded as overruled by Doe d. ^/Itkinson v. Fether-
stone, where there were words of distributive modification,
and no limitation over on an indefinite failure of issue, and
yet the Rule was applied.
4. Word 4. A reference to' the heirs by the name of sons 476
sons or or daughters, will not be construed to control the
daughters, word heirs, "if it may fairly be held to refer to all the heirs
referring to jn ^he sense only of "males" or " females -,"(1^) or if the
the hcu-s, if construing that word so as to control the word heirs, would
only used in g^g^j^ inconsistent with other parts of the will.
the sense of ^ testator devised to his first son, for life; remainder to
^ . °'" trustees to preserve &c.; and, from and after his decease, to
S TisS' ^^*® several heirs male of such first son, so as the elder of
p ^ ^ ' * such sons, and the heirs male of his body, should always be
p i^\ preferred to the younger and the heirs male of his body ;
V, L V 1 ^^^^^ limitations to the other sons and the daughters of the
620 '^' ' testator, and tiie heirs male of their bodies, the elder of such
sons and daughters to be preferred &c. Though the word
sons in the plural could only apply to the sons of the first
son, yet, it was held, that the first son of the testator took
an estate tail : for, otherwise, it would be necessary to hold
that the testator meant to give a different estate to his eldest
son, from that which all the subsequent limitations showed
that it was his intention to give to the other sons.
5. Intention 5. Nor will the operation of the Rule be ex- 477
[ 236 ] eluded, in the case of legal estates or trusts execut-
that thelimi- ed, by the expression of an intention that the limitations
tations should be in strict settlement.
should he in A testator devised real and personal estate to a feme
strict scUie- covert, for life, for her independent use and benefit ; remain-
ment^ der to her husband, for life; remainder to the heirs of her
See Section ^ody, in tail; with remainders over; and he declared, that
^^- all the aforesaid limitations were intended to be in strict
Douglas V. settlement. The Court of Common Pleas certified, that she
Congrevc, 1 ^q^j^ ^^^ estate tail in the real estate. And Lord Langdale,
Beav. 59. jyj_ ^^ ^^^^.^ quoting the words of Lord Tliuiiow in Jones v.
Morgan, as to the words, "for life," that the testor, " in all
cases, does mean so," said, that the words, " in tail," were
merely superfluous ; and that, as to the words in strict settle-
See § 489. ment, there was no executory trust in this case; and that
therefore the feme covert took an estail tail in the real estate,
and the absolute interest in the personalty.
(m) See Pierson v. Vickers, 5 East, 548, as stated § 475.
II. 12. iv.] OF EXECUTORY INTERESTS. [§478. [ 23G ]
478 fi. ''Tlic Rule will be applied even in the case of G. Super-
a devise to or for the scttliiii? of lauds on a j)erson addod words
for life, and, after his decease, to the heirs nriale of his body, usually oc-
and the heirs male of the body of every such heir nnale, curnng in
severally and successively, or severally, respectively, and in hmii.itions to
remainder, as they should be in priority of birth, and seni- "^^ ^"'^ .
■^ c / X Other sons in
ority ot age.(.r) ^.^jj
In one case, a testator devised to tV. F. and his heirs, '^ '
male, according to their seniority in age, and their respect- Fetherston
ively attaining the age of 21 years, all his estates real and ^- g ^ " ,
personal in lands, houses, and tenements, the elder son sur- „'. ^
viving of the said JV. F., and the heirs male of his body ^ ^ 9 Bli<d'i
lawfully begotten, always to be preferred to the second or gg^' ° '
younger son ; and, in case of failure of issue male of the
said IF. F. surviving him, or their dying unmarried, and
Avithout lawful issue male attaining the age of 21 years, then
over. It was held by the House of Lords, in consonance
with the opinion of the Judges, and in atfirmance of the de- [ 237 ]
crees of the Courts of King's Bench and Exchequer Cham-
ber in Ireland, that fV. F. took an estate tail. Lord Chief
Justice Tindaljin delivering the opinion of the Judges, said,
that they thought the rule of construction, laid down by
Lord Al'vanley in Pooh v. Poole, 3 Bos. & Pul. G27, was
the safe and correct rule in such cases; namely, "That the
first taker shall be held to take an estate tail, where the de-
vise to him is followed by a limitation to the heirs of his
body, except where the intent of the testator has appeared
so plainly to the contrary, that no one could misunderstand
it." That, applying that rule to the principal case, they by
no means thought that the subsequent words showed a plain
and unequivocal intention to reduce the estate tail in JP\ F.
to an estate for life : on the contrary, they thought them at
least as compatible with an explanation of what the testator
supposed to be the course of descent under an estate tail.
That the words, on *• their attaining the age of 21 years,"
could not be urged as an argument against the estate in J^V.
F. being an estate tail ; first, because these words would
create the same dilliculty against the holding the estate
given to the sons of IV. F. to be an estate tail, which, on all
hands, was allowed to be the case, if IV. F. had not the
estate tail in himself; and secondly, because, if the devise,
in other respects, was a devise in tail, the testator could not
by interposing such a condition (if indeed it was to be held
to be a condition) create a new estate, or a new course of
descent not known to the law. That if the words "heirs
(x) Legal V. Seioell, 1 Eq. Ab. 395, as stated, Fcarne, 11. '3. Jonea v. Mor-
gan, 1 Bro. C. C. 276, as stated, Fearne, 134. See also Saijer v. Masltrman,
Ainb. 341, as stated, Fcarne, 1G2.
[ 237 ] II. 12. iv.] AN ORIGINAL VIEW [§479—483.
male," weve to be construed " sons," the construction would
be to abandon a direct devise in tail to fV. F., in order to
let in a devise of an estate tail by implication only to his
first and other sons. And that if the sons of IV. F. took
estates tail, as purchasers, it was far from clear that they
could take move than contingent remainders in tail ; viz. on
the contingency of each son's surviving his father ; and it
was very difficult to suppose that the testator could intend
to postpone the whole of the eldest son's issue to that of the
second.
[ 238 ] PROPOSITION III.
III. Third But, if there are any words referring, not merely 479
general pro- to the mode of succession, but to the objects of suc-
position, cession, and clearly and unequivocally >' explaining or indi-
showing eating them to be individuals other than persons who are to
where the take simply as heirs general or special of the ancestor ;(y)
Rule does ^he Rule will not apply. For, these words thereby negative
not apply. jj^g existence of the primary intent, which would otherwise
See § 429- \yQ furnished by the technical word heirs, in connexion with
450. tj^jg estate of the ancestor; and thus leave but one intention
to be accomplished; namely, the intention that the heirs
should take by purchase.
Indication of Though this explanation or indication must be 480
non-applica- clear and unequivocal; yet it may be either, 1.
tion of Rule Direct ; or, 2. Indirect. Thus,
either direct i. The Rule will not be applied if there are any 481
or indirect, words directly and immediately referring to the
1. Direct persons who are to succeed, and clearly and unequivocally
explanation explaining them to be persons who are to take, not simply
or indication ^g \\e\xs general or special of the ancestor, but as his sons,
that the per- cJaughters, or children ; or as his heir apparent, or heir pre-
sons who are g^^^-j-jpjjyg . or as the person first answering the description
to succeed, ^^ ^^j^ j^gj^. general or special, and the heirs general or special
are not per- r i u ■
, ' of such heir,
sons who are
to take simply as heirs general or special.
Lowe V. Thus, where an estate was devised to ^. and 482
Davies, 2 his heirs lawfully to be begotten ; that is to say,
Ld. Raym. to the first, second, third, and any other son and sons, suc-
1.561; as cessively, as they should be in seniority of age, and priority
stated, ^ of birth, the eldest, always, and the heirs of his body, to be
Fearne, 153. pj-gferred before the youngest, and the heirs of his body; it
See § 476. was held that A. was tenant for life, with remainder to his
first and other sons, successively, in tail.
Goodtitle d. And where a testator devised estates to M. D. 483
Sweet V. for her life, without impeachment of waste, re-
Herring, 1
East, 164,
affirmed by (y) See Fearne, 188, 194—199.
II. 12. iv.] OF EXECUTORY INTERESTS. [§484,485. [ 238 ]
mainder to trustees to preserve contingent remainders, and House of
from and after her decease, then to the heirs male of the Lords,
body of the said M. D. to be bes^otten, severally, successively, printed
and in remainder, one after another, as they and every of [ 239 ]
them should be in seniority of age, and priority of birth, the Cases, 1801,
elder of such sons, and the heirs male of his body, being See also
always preferred before the younger of such son and sons, ^/**^ ^•
and the heirs male of his and their body and bodies; and goT^'n
for want of such issue, then to the daughters, &c. ; and in ' ; ^g^"^'
default of sucli issue, over. stated
Again, by a marriage settlement, lands were limited to pg^r^g 151^
the husband, for life ; remainder to the wife, for life; re- g^^ c '^-jq
mainder to the heirs of the body of the husband, on the body ^ ,
of the wife to be begotten, and their heirs ; and if more chil- \f^j./g^^ ' q
dren than one, equally to be divided among them, to take gj^^ 266.
as tenants in common ; and, for default of such issue, to the
wife and her heirs. Sir L. Shadwell, V. C, said, that if it
had not been for the words, " and if more children than one,"
the husband would have taken an estate in tail special, not-
withstanding the superadded words of limitation ; but that
the words, "and if more children than one," must be taken
to be interpretative words, showing that "heirs" meant
" children ;" and hence, that the words, " for default of such
issue," meant "for default of such children;" and conse-
quently the children took, by purchase, estates in common
in fee in the freeholds and copyholds, and the absolute inter-
est in the leaseholds.
484 2. The Rule will not be applied if there are any 2. Indirect
words mediately or indirectly, yet unequivocally, explanation
denoting, that the persons who are to succeed are individuals or indication,
other than persons who are to take simply as heirs general
or special of the ancestor.
The reported cases exhibit six ways at least in which the
word heir or heirs has been thus indirectly explained and
divested of its most usual meaning.
485 (1) ^ By superadding words of limitation, in fee (1) Word
or in tail, to the word heir, when used in the sm- heir, with
gular number.(z) superadded
It is true, that the word heir, as we have seen, may be [ 240 ]
used as a nomen collectivum; but since the heir may also words of
properly be deemed to be persona designata, and such is in limituiion.
fact the natural meaning of the word, when there are super- See § 4«3.4.
added words of limitation to the heirs general or special of
such heir ; it is to be presumed that the testator intended the
(j) Archer^s Case. 1 Co. 66; as stated, Fearne, 150. Willis v. Iliscox, 4
M. & C, 197. Cheek or Clark v. Day or Davy, Moor, 593 ; as stated, Fearne,
150. Walker v. Snow, Palm. 359; as stated, Fearne, 151.
Vol. II.— 25
[ 210 ] II. 12. \v.]
AN ORIGINAL VIEW [§4S6— 488a.
distinction between the singular and plural number, and did
not use tlie word heir as nomen collectlviim.
(2) "By expressly hmiting to the heir in the 486
singular number for life.(«)
In this case, the inheritance is not Umited ; and therefore
the heir could not take simply as heir ; for, an heir is one
upon whom the law casts the inheritance upon the decease
of the ancestor.
(3) By superadding to the first words of inherit- 487
added words ance, other words of limitation, which limit an
of limitation estate in such a manner as to be descendible exclusively to
persons of a different sex; as, where land is limited to the
heirs male, and their heirs female.
These superadded words clearly show, that the heirs male,
the heirs first named, were not intended to take simply as
heirs special ; since, if they were to take simply in that cha-
racter, they, and they alone, wonld take the inheritance ;
or, in other words, the inheritance would devolve from
time to time upon, and be exclusively and perpetually
enjoyed by, heirs male; whereas the inheritance, by the
express words, is to go to the lieirs male, and their heirs
female.
(4) By prescribing for the heirs general or spe- 488
cial, a distributive mode of taking, and also super-
(2) Limita-
tion to the
heir for life.
See § 460.
(3) Super-
vhich limit
the estate to
persons of a
different sex.
See § 474.
(4) Words-
of distribu-
tive modifi-
cation, with
[ 241 ]
superadded
words of li-
mitation.
See § 475.
(.5) Words
of distribu-
tive modifi-
cation, with
a limitation
adding words of limitation : as ''to Jl. for life, remainder to
the heirs, of his body, as well females as males, as tenants
in common, (or share and share alike, or, without any re-
spect to be had in regard to seniority of age or priority of
birth,) and their hen"s and assigns for ever.(6)
The mere addition of words of distributive modification
would be equivocal : for, the grantor or testator might have
erroneously supposed that the heirs might take in that
character, and yet in a partitive mode ; but the engrafting
of superadded words of limitation, besides the addition of
words of distributive modification, shows clearly that he
meant by the first named heirs, the children of the ances-
tor, who are sometimes so termed, as having the capacity
of becoming heirs of the ancestor, cither in succession, if
males, or contemporaneously, if females.
(5) By prescribing a distributive mode for the 488a
heirs general or sjiecial to take, and also limiting
over the property in case the heirs, under the referential
designation of such issue, should die before a certain age.
A testator devised to his daughter M., and the heirs of
(a) White v. Collins, Com. R. 289; as stated, Fearne, 153.
(b) Doe v. Laming, 2 IJurr. 1100, as stated, Fearne, 154. Crump v. Nor-
wood, stated § 438a. The same point was established by Doe v. Ironmonger,
stated § 387 ; and Right v. Creber, 5 Bar. & Cres. 860.
II. 12. IV.] OF EXECUTORY INTERESTS. [§488a. [ 211 ]
licr body begotten or to be begotten, as tenants in common ; ovor in case
but if such issue should die before he, she, or they attained of tlio (k-ath
21, then to his son J., in foe. And then he devised another of such issue
estate to his son, ./., and to the heirs of his body begotten or ""'^^r a cer-
to be begotten ; but, if lie died without issue, or such issue t^'" ^^.i
all died before he or they attained 21, then to il/., and the ^^ ^^
heirs of her body begotten or to i)e begotten; such issue, if ^"e d^
more than one, to take as tenants in common. It was held, }J"^\^'
that M. took for life only, in the first estate, with remainder '^H^ JJ
to her children as purchasers; the words "such issue,-' ^^^ '
taken in connection with the event spoken of, that of such
issue dying before he, she, or they attained 21, clearly
showing that the words " heirs of the body" were equiva-
lent to children of her body ; and there being a particular
intent that the issue should take as tenants in common, [ 242 ]
which was inconsistent with an estate tail, and no other
paramount general intent.
This decision was impeached by Lord Redesdale in "" Jes- Observations
son V. Wright ;{c) but His Lordship appears to have been on Doe d,
labouring under some confusion of ideas upon the subject. Strong v.
He remarked, that the provision, in case such issue should Goff.
die before 21, seemed to him so far from amounting to a
declaration that the testator did not mean heirs of the body
in the technical sense, that he thought they peculiarly
showed that he did so mean; for, they would otherwise be
wholly insensible: if they did not take an estate tail, it was
perfectly immaterial whether they died before or after 21.
Now it is true that these words would seem to show that
the children took an estate-tail; but they also clearly
showed, as Lord Ellenborough, C. J., observed, that the
words, " heirs of the body," to which they referred, meant
children; and consequently that the mother did not take an
estate tail : and the only question which was actually
raised, seems to have been, whether the mother, who was
dead, took for life only, or in tail. The question, whether
the children, who were held to take by purchase, took an
estate tail, does not appear to have been raised or decided.
Again; a testator devised gavelkind land to his nephews, Crump v.
IV. C.,J. C'.,and R. C, equally between them, during their \oncooii, 7
respective lives, as tenants in common ; and, after their Taunt. 362,
several and respective decease, he devised the part and 2 Maish.
share of him or them so dying, unto the heirs lawfully IGl.
issuing of his or their body and bodies; and if more than
one, equally, as tenants in common; and if but one, to such
only one; and to his, her, or their heirs and assigns for ever.
And if any of his said nephews should die without such
(c) 2 Bligh, 51; stated § 475. See remarks on this case in Bennett v. Earl
of Tankervilc, 19 Ves. 170; stated § 475.
[242] II. 12. v.] AN ORIGINAL VIEW [§488b, 488c.
issue, or leaving any such, they all should die without
attaining 21, then the share of him and them so dying
unto the survivor and survivors of his said nephews &c.
Lord Chief Justice Gibbs, who delivered the judgment of
the Court, said, that it was agreed on all hands, that this
[ 243 ] was a devise to fV. C, for life; and if he had children, then,
to them in fee; if he had no children, then, the estate was to
See § 128- go to J. C. and R. C. (7 Taunt. 370.) That this, therefore,
136a. like the case of Doe d. Davy v. BurnsaU, was a contin-
gent remainder wiih a double aspect {Ih. 372); and a
portion of the reversion having descended on W. C, so
much of the contingent remainder as was co-extensive with
that portion of the reversion, was destroyed ; because the
^^ V *'^' pellicular estate supporting the renjainder was destroyed
777, 779. |jy (i^g million of the particular estate and the reversion. [lb.
371. 373.)
(6)Byblend- (g^ «> By blending into one, a limitation to the 488b
ing a limita- hgirs of the body of the tenant for life, and a limi-
tion to the tation to the heirs of the body of another person, where the
heirs ot the }^gjj.g ^f ^j^g body of such other person could not take other-
o y o o- ^yjgg tbmj by purchase ; and by superadding words of limi-
^I ^*"^pr. ' Nation to the heirs and assigns of all such heirs of the body
addingwords allke.(o!)
<"''''""'"'°"' SECTION THE FIFTH.
General Observation on the Jlid afforded, in the applica-
tion of the Rule, by Implication from a Limitation
over on Failure of Issue.
In the majority of the cases above stated where 488c
it was most difficult to apply the Rule, the Courts
were aided, in their application of the Rule, by the exist-
ence of a limitation over on an indefinite failure of issue
generally, or on an indefinite failure of such issue as were
before spoken of, and intended to be capable of inheriting
under the prior limitations. And the Courts of course
See § 564a gladly laid hold of the implication of a primary or para-
564c. mount intention to admit all the descendants generally or of
the given description, so far as the rules of descent would
permit, arising from such a limitation over, where there
was any such limitation, rather than rest their decision, in
giving an estate tail to tlie ancestor, upon the single opera-
tion of the Rule. But still, it is conceived, that even if, in
these cases, there had been no such limitation over, the
[ 244 ] decision would have been the same. For, though it would
then have been less clear that an estate tail should be given
to the ancestor, yet upon a due consideration of the prin-
{d) Jlllgood V. Withers, as stated, Fearne, 120.
ir. 12. vi.] OF EXECUTORY INTERESTS. [§189—4 93. [ 214 ]
ciples contained in the third section, it miglit have been
seen that the cases above referred to were cases for the
appHcation ol' the Rule.
SECTION THE SIXTH.
The AppJication and Non-application of the Rule, in
Cases of Trusts Executory.
489 "An executory trust, as opposed to a trust exe- iJcfiiiition of
cutcd, is a trust raised by a stipulation or direction, an executory
in marriage articles, or in a deed or will, to make a con- trust,
veyance, settlement, or assurance, to uses, or upon trusts,
which do not appear to be formally and finally declared
by the instrument containing such stipulation or direc-
tion. («)
490 I. ''The Rule is not applied in the case of ex- I. Rule as to
ecutory trusts created by will, if there is a clear executory
indication of an intent that it should not be applied. (6) trusts crea-
But, in the absence of any such indication, it will be ap- ted by will,
plied.
491 'In the case of trusts executed, the limitations Ground of
may be deemed to receive their intended shape distinction
from tiie words of the deed or will itself. But, in the case between
of trusts executory, the party may fairly be understood to trusts exe-
leave the limitations to be perfected by the conveyance, set- cuted and
tlement, or assurance, stipulated or directed by him, and to trusts execu-
have intended that the conveyance, settlement, or assurance, ^°0'-
should avoid or correct any relative inconsistencies, or
technical obstacles, arising from impropriety of expression,
to the apparent general scope of the conveyance, settlement,
or assurance, so directed by him.(c)
492 Hence, in cases of trust executory, the Court has [ 245 ]
not applied the Rule where the testator ''expressed Illustrations
his desire, that it should never be in the power of the of the fore-
ancestor to dock the entail ;(rf) or ''where his estate for life going rule,
was without impeachment of waste, and there was a limita-
tion to trustees during his life to preserve contingent remain-
ders.(<?)
493 But the Courts will apply the Rule to trusts
executory created by will, even where the word
(a) See White v. Tlwrnburgh, 2 Vern. 702; and Austen v. Taylor, Amb.
376 ; as stated, Fearne, 110, 133 — 4. And see Prest. View of the Rule, 126 —
130, and cases there cited. And Fearne, 137 — 144.
(b) White V. Carter, Amb. 670, as stated, Fearne, 184.
(r) Fearne, 141, 144.
(d) Leonard v. Earl of Sussex, 2 Vern. .526, as stated, Fearne, 115.
(«) Papillon V. f'oice, 2 T. W. 471, as stated, Fearne, 115.
[ 245 J II. 12. vi.] AN ORIGINAL VIEW [§494—496.
heir is used in the singular, if there are no particular indica-
tions of a contrary intent.
Blackhurnc Thus, where real estate was devised in trust for a son of
V. Stables, 2 the testator's nephew, at tlie age of 24 ; with limitations
V. & B. 367. over, if he had no son ; and with a direction that the execu-
tors should not give up their trust till a proper entail be
made to the male heir by him. Sir W. Grant, M. R., held,
that this was an executory trust; but that a son who was
in ventre sa mere took an estate tail. He observed, that in
the case of a will, there was no presumption that one
quantity of interest was meant more than another ; for, the
subject being mere bounty, the intended extent of that
bounty can be known only from the words in which it is
given.
II. Rule as J J. j^ the case of executory trusts created by 494
to trust icxe- rnarriage articles, the Court of Chancery will
cutory ere- refuse to apply the Rule, even in the absence of par-
ated by rnar- ticular indications of an intent that it should not be applied,
^^^ ' 1. In those cases where it is not in the power of either
with the ex- parent, without the other, to bar the issue.
ceptions 2. Where the issue are otherwise effectually provided for
hereto. |^y ^.j^g articles ; or it appears, from other limitations, that the
parties knew and intended the distinction between words
which give the parent an estate for life only, and those
which would give him an estate tail.
3. Where a trust, created by a formal settlement not
expressed or not clearly appearing to be made in pursuance
of the articles, is substituted for the articles.
[ 246 ] The reason for not extending the Rule to trusts 495
Distinction executory, applies with peculiar force to those
between created by marriage articles ; '"because marriage articles are
trusts exe- considered as mere heads of agreement ; and a principal
cuted and intention is, to secure an effectual provision for the issue,
trusts execu- ^jj^ ^j.g g^]j purchasers for valuable consideration, and not
tory IS more ^^^^^ volunteers, like devisees.f/)
,°/. Hence, >? where it is agreed to limit lands to the 496
the case of '^"^band for life, remainder to the heirs of his body,
those created ^^ ^^^ intended wife,(^) or, ''to the wife for life, remainder
by marriage ^^ ^^^ \\e\rs of her body, by her intended husband, (A) or
settlement? ' ^^ ^^e husband and wife for life, remainder to the heirs
Illustrations of their bodies ;(z) these words are construed to mean
(/) Fearne, 112.
{g) Trevor v. Trevor, 1 Eq. Ab. 387 ; and 2 Brown's Cases Pari. 122 ; as
staled, Fearne, 90 — 92,
(h) Jones v. Langhton, 1 Eq. Ca. Ab. 392, as stated, Fearne, 93.
(i) Cusack V. Cusack, 1 Brown's Cases Pari. 470 ; and Nandick v. Wilkes,
1 Eq. Ab. 393, c. 5; 1 Gilb. Eq. Rep. 114; as stated, Fearne, 93.
II. 12. vi.] OF EXECUTORY INTERESTS. [§497— '301. [ 246 ]
first and otlior sons of the marriage, and the heirs of tiieir ofthe second
bodies. forogoiug
497 And ^ where it is agreed to hmit lands to tlie I'u'e.
husband for hfe, remainder to the heirs male of
his body, remainder to the heirs female of his body, the
expression heirs female will be taken to denote
498 daughters ;(A') though a remainder to the heirs of
the body, following one to the first and other sons,
will not be so construed, where, at least, an express pecu-
niary provision is made for tiie daughters , for, it may
extend to the daughters of sons, as well as the daughters of
the marriage. (/)
499 And '"post-nuptial settlements, and even pre-
nuptial settlements, if purporting or appearing to
be made in pursuance of such articles, but conferring an
estate tail on the ancestor, will be rectified accordingly, (m)
"except against a purchaser for valuable consideration with- [ 247 ]
out notice.(n)
But, as already intimated,
500 1. The Rule takes place in marriage articles. Cases consti-
"where the parent may take an estate tail, without tuting the
leaving it in the power of either parent singly, to bar the first excep-
issue, either during or after the coverture: as, where the tion to the
wife alone takes an estate tail ex provisiotie viri; in which second of the
case, as the husband takes no estate tail, he cannot bar the foregoing
issue, either during the coverture, or afterwards; and the i""'es.
wife, of course, cannot bar it during the coverture without
liis consent ; nor can she bar it afterwards, because she is
prevented by the statute of Hen. VII. (o)
501 2. The Rule has also been allowed, i' where, in 2. Casescon-
the articles, the issue are provided for by another stituting the
fund or estate, limited in strict settlement, (;;) or '»in such a second e.\-
way, that neither parent could bar it alone ;{q) or, by an caption.
(k) West V. Errissexj, 2 P. W. 349, as stated, Fearne, 100, 101,
(/) Feariio, 101—104; and Poiccll v. Price, 2 P. W. 535, as there stated.
(m) Streatficld v. Streafjield, Cas. Temp. Talb. 176, as stated, Fearne, 92.
Honor v. Honor, 2 Vern. 658 ; 1 P. W. 123, as stated; Fearne, 98. West v.
Errissey, 2 P. W. 349, as stated, Fearne, 100. Roberts v. Kingsley, 1 Ves.
Sen. 238, as stated, Fearne, 104, 105; overruling Burton v. Hastings, Chlb.
Eq. Rep. 113, as stated, Fearne, 99.
(n) Fearne, 108, 109; and Wandck v. Warrcick, 2 Atk. 291, as there
stated.
(0) Fearne, 94. And Honor v. Honor, I P. W. 123; ^liatehy v. Amp,
cited 2 Ves. Sen. 358 ; Green v. Elkins, 2 Atk. 473 ; and Highway v. Banner,
1 Bro. C. C. 584, as stated, Fearne, 94—96.
(p) Chambers \. Chambers, Fitz-G'ihh. Rep. 127; 2 Eq. Ab. 3;j, c. 4 ; as
stated, Fearne, 96.
(</) Howell V. Howell, 2 Ves. Sen. 358, as stated, Fearne, 97.
[ 247 ] II. 13.1 AN ORIGINAL VIEW [§502—504.
express pecuniary provision; because these circumstances
show that the parties themselves knew and intended the
distinction.
3. The third 3. And where both articles and settlement are 502
exception. previous to marriage, the settlement, unless ex-
pressed to be made in pursuance of the articles, will control
the articles, and the words will be left to their legal opera-
tion; because it will be considered to be a new agreement
respecting the terms of the marriage, which the parties are
at liberty to make before marriage, though not afterwards.
[ 248 ] CHAPTER THE THIRTEENTH.
THIRD EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT
REMAINDERS, WHERE REAL ESTATE IS DEVISED TO A PER-
SON AND TO HIS ISSUE, AND THE WORD ISSUE IS CONSTRUED
TO BE A WORD OF LIMITATION, BY ANALOGY TO THE RULE
IN Shelley's case, and under the cy pres doctrine.
Difficulty of Perhaps there is no one single point, in the whole 503
construing range of legal learning, involved in more uncer-
devisestoor tainly and difficulty, than that of the construction of the
for a person word issue in express or implied devises to or for a person
and his issue, and his issue. But yet, after a patient comparison of the
express or cases, and a full consideration of the distinctions which
implied. principle would seem to suggest, the construction of such
devises, may, it is conceived, be reduced to a system har-
monising almost all the cases, and commending itself to
reason and the analogy of law.
Where the I. Where real estate is devised, either directly to, 504
word issue is or by way of executed trust for, a person and his
a word of li- issue, whether in one unbroken limitation, or in two distinct
imitation, in limitations, the word ^ issue will be construed a word of iimi-
the case of itation,(«) so as to confer on the ancestor an estate tail, if
direct de- there are no expressions clearly showing, that, by issue, the
vises and testator meant children, or particular individuals among the
trusts exe- descendants of the ancestor, and no expressions indicative of
^"^^•J- an intent that the issue should take by purchase, or none but
See § 489, ^^^^^ ^^^ capable of being resolved into the mere redundant
S^^f '.r>o expression of that which would be included in an estate tail
See § 40.3. . r
in the ancestor.
(a) But see Williams v. Jekyl, and Elliott v. Jekyl, 2 Ves. Sen. 681 ; as
stated, Fearne, 499 ; wiiich was a case of a lease for lives.
II. 13.] OF EXECUTORY INTERESTS. [§.505—510. [ 213 ]
505 II. Rut if there arc any expressions clearly show- Whore the
issue will be construed a word of purchase, if the issue may ^!^^^ ^^^"
take as purchasers consistently with the rule against pcrpe- ^^.^^^jg ^.^g.
tuities; and the ancestor will take an estate fo"" I'fp, wuh ^^^^ '
a contingent or a vested remainder to his issue, as the case ^^^ ^ 403-4,
may be. . ry.i'Sa.
506 Or, 10 embrace both rules in one short proposi- ^^,^ ^^^
tion : — bracing both
Where real estate is-devised, either directly to, or by way j^^ preccd-
of executed trust for, a person and his issue, the word issue j„g ^ules.
will be construed a word of limitation, so as to confer an
estate tail on the ancestor, unless there are expressions icne-
quivncaVy indicative of a contrary lawful intent.
507 " The word issue," as Mr. Baron Alderson justly Different
remarked, <' is used in different senses, either as senses of the
including all descendants, or as confined to imme- word issue.
diate descendants, or some particular class of de- <■<■ Issue is a
508 scendants livins: at a given time." And, as Lord word either
Chief Justice Wilmot observed, in Roe v. Gre/^;, of purchase
2 Wils. 322, and Lord Kenyon, C. J., in Doe d. Cooper v. or of limita-
Collis, 4 Durn. & E. 294, "in a will, issue is either a word tioninawill;
of purchase or of limitation, as will best answer the inten- but always a
tion of the devisor, though, in the case of a deed, it is uni- '^^'O''^ ^} P^^r-
,1 1 V 1 J) chase in a
versally a word ot purchase." . ,
509 ^The word issue is a word of purchase in a J^^ * . .
deed;(6) because, in a deed, no word, except the "hy it is a
word heirs, will pass an estate of inheritance ; and hence ^''^ ^' P"''"
the word issue cannot there be a word of limitation. It is ^"^^^ '" ^
therefore a word of purchase, in this case; because that is
the only construction by which it can become operative, and
not because it is aptly a word of purchase.
510 For, in consequence of its ambiguity and latitude It is ill adapt-
of meaning, it has been considered by some, as ed for a word
extremely unfit for a word of purchase, unless assisted by of purchase,
other expressions. A word of purchase should be deier- See § 403.
minate ; whereas the word issue is so far indeterminate, in [ 250 ]
the case of a limitation to the issue, if it were intended that
the issue should take by purchase, that it seems to have
been the opinion of Sir Thomas Plumer, that 'it would be
ditiicult to determine whether all the descendants who
are living are to take by purchase, or only the imme-
diate descendants or children : and if all the descendants
are so to take ; whether they are to take per stirpes or in
(6) Wheeler v. Duke, 1 Cromp. 6: Mccs. t>lO.
Vol. II.— 26
[ 2-.0 ] II. 13.] AN ORIGINAL VIEW [§511—515.
cajnta.{c) But admitting/' according to tlieojjinion 511
of Sir W. Grant, JNI. R.. that issue, uiiconfiiied by
any indication of intention, includes all descendants, and
that a necessary consequence is, tiiat the division must be
per capita, among those who are living ;((/) is it likely, not
to say certain, that this was the intention of the testator?
If he left one son, and ten grandchildren by a daughter, is
it likely he would wish the property to be divided equally
between his twelve descendants ? or, supposing the daughter
to be dead, between his eleven descendants ? Is it not more
likely that he would wish the son and daughter to take
alone by purchase, in the first case, and the grandchildren
to take their parent's share only, in the second
case? Whether, then, we regard the word issue, 512
unassisted by other expressions, as indeterminate,
or as determinate, in the only sense in which, according to
Sir W. Grant's opinion and upon principle, it can be deter-
minate, namely, as including all the descendants, and point-
ing out all the descendants who are living as purchasers 7?er
capita; it must be evident, that it is by no means adapted
for a word of purchase.
But it is well On the other hand, though the word issue is not 513
adapted for the technical word of limitation, yet as soon as it
a word of li- is used in a will as a word of limitation, and consequently
mitation. becomes subject to the operation of the rules of descent, it
See § 404. possesses the same aptitude for this purpose, as the technical
expression heirs of the body, which it most nearly resem-
bles, and for which, in fact, it is used as a synonyme in the
Statute De Bonis. It is as well adapted, therefore, for a
[ 251 ] word of limitation, as it is ill adapted for a word
And this is of purchase. And for this reason, as well as for 514
one of the the purpose of giving effect, as will presently ap-
grounds of pear, to the paramount intent of the testator, it is construed
the foregoing a word of limitation, including all the descendants in infi-
rules. nitum, unless there are expressions which indicate, that, by
issue, the testator meant children, or particular individuals
only among the descendants of the ancestor, or words which
unequivocally show that he intended the issue to take by
purchase.
How the tos- '^''^ testator may manifest this intention by '"di- 515
tator may reeling that the ancestor shall take for life only;[c)
manifest an or tha^ the issue shall take distributively, as tenants in com-
intention mon, or otherwise ; or that such issue only should take as
that theword should attain a given age; or by any other unequivocal
issue should manifestation of an intent which would be inconsistent with,
(f) See Sir Thomas Plumer's observations in Lyon v. Michell, infra.
(d) Lngh V. No. bury, 13 Ves. .lun, 344.
(f) Backhouse v. Wells, 1 Eq. Abr. 184, pi. 27, as stated, Fearne, 152.
II. 13.] OF EXECUTORY INTERESTS. [§51(3—518. [ 251 ]
or would not be accomplished by giving the ancestor, an not Ijeaword
estate tail, and admitting the issue by descent from him, in- oriimitation.
stead of by purchase. It must be observed, liowever, that See § 530.
fsuch manifestation of intent may be counterbalanced by
any other clauses or expressions indicative of an opposite
intent. (/)
51 G And this brings us to the question, whether he It is not ma-
does not show tiiat such was his meaning or iiUen- nifested by
tion, when, to the word issue, he superadds the words of superadding
limitation, to their heirs, or to the heirs of their bodies. At w<;>rds ofli-
first sight, it would certainly appear that this clearly indi- mitation, or
Gates, that he uses the word issue in the sense of children ; &'^'"o t'lc
and that he intended that they should take by purchase: ^^^^'j^'^J^ ''"
for, otherwise, the superadded words would be inoperative. ^^^, p^,.
And this might appear still clearer, e if the ancestor's estate jip^^ J ^^^^^,
were expressly for life, or without impeachment of Waste, out'i^peach-
But these expressions are not sufficient to convert the word ^^^^^j^^ ^p
issue into a word of purchase ;{g) or, in other words, to |- 052 ]
prevent it from operating as a word of limitation, and ^vastc.
thereby giving the ancestor an estate tail. They do not un-
equivocally and with certainty denote that the testator in-
tended thai the ancestor should take a life estate only, and
that his issue should take by purchase. All these expres-
sions, though, at first sight, they seem clearly and positively
to do this, may, after all, be resolved into the mere redun-
dancies of an unprofessional style, into the mere useless
expression of that which would be included in an estate tail
in the ancestor, instead of that which is inconsistent with an
estate tail in him.
517 For the same reason, where the devise to the Nqr by in-
issue is introduced by words of contingency, /jWma troducing
facie, importing a condition precedent, (See § 13,) but the words of
condition would have been necessarily implied, (as, '' if he contingency
should leave any issue); this, of itself, will not create a con- which would
tingent interest in favour of the issue, by purchase, and pre- 1^^^^. °^^"
vent the ancestor from taking an estate tail. (A) implied.
518 Again ; '' where the devise to the ancestor is for Nor by pro-
life, and he is expressly forbidden to commit hibiting the
waste,(A) even this does not show with certainty, that the ancestor
testator intended the ancestor to take for a life estate only, from com-
and the issue to take by purchase. For this may only mining
amount to the attempt to create an estate possessing the dis- waste,
tinctive essential qualities of an estate tail, as regards the
(/) See King v. Burchell, Amb. 379, as staled and commented on, Fearne,
163—4.
(f?-) See Lord Talbot's observations in Lord Glcnorchj/ v. Bosrille, Cas.
Trmp. Talb. '.i. M. 1733, as stated, Fearne, 117.
(/j) Shaw V. Weigh, 2 Stra. 7 98 ; S. C. 1 Eq. Ca. Ab. ISA, pi. 26.
[ 252 J II. 13.] AN ORIGINAL VIEW [§519—524
acquisition and transmission of the property by and to cer-
tain designated objects, and yet deprived of some of the
inseparable incidents of an ordinary estate tail.
These indi- It may indeed be iiighly probable, in these 519
cations are cases, that the intention was, that the ancestor
equivocal. should take a life estate only, and that the issue should take
by purchase. But as it is not unequivocal and certain, the
law will not take this view of the testator's intention, be-
cause, if it were to do so, it would be thereby sacrificing a
more important intent.
Another For, even in the cases treated of in the present 520
ground of the chapter, where the devise is to the issue, and not
foregoing the heirs generally, or heirs of the body, eo nomine, as in
f 253 1 'lie cases in the preceding chapter, and where there is no
, devise over to take effect on an indefinite failure of issue, as
rules; name- . , . , .i i . .i .
I two CO- "■' ^'■'® cases m the seventeenth chapter, there are two co-
existinf^ vet existing yet inconsistent intents; the one of which may be
inconsistent termed the primary or paramount intent, and the other, the
intents the secondary or minor intent. And as these, by reason of their
oncof which inconsistency, cannot be both effectuated, the secondary or
must be sa- minor intent is sacrificed, in order to give effect to the pri-
crificedtothe mary or paramount intent,
other. Compare § 429, 564b.
Definition of The primary or paramount intent, in the cases 521
the primary treated of in this chapter, is, that the ancestor
or para- should have the enjoyment of the estate for his life; and,
mount in- subject thereto, that the estate should descend to all his de-
tent, scendanis, so far as the rules of descent will permit.
Compare § 430, 564b.
Definition of The secondary or minor intent is, to accomplish 522
the second- the primary or paramount intent in a particular
ary or minor mode; in such a mode, at least as the devisor supposes, as
intent. to secure that primary or paramount intent from being
defeated by the act of the ancestor : in other words, the
secondary or minor intent is, that the ancestor should
have a life estate only, and that his issue should take by
purchase.
By what the This primary or paramount intent, in the cases 523
primary or treated of in the present chapter, is not indeed
paramount expressed by any positive declaration, or, as in the cases in
inte.nt is im- the preceding chapter, by the use of the technical word
ported or heirs; but yet there is "a vehement presumption" of its
evidenced, existence, not excluded by any unequivocal expressions
Compare to the contrary, nor resting in mere conjecture, but, on
§ 432, 564c. ^jjg contrary, supported by the primd facie sense of the
See §511. v/ord issue.
For, even in the cases treated of in the present 524
chapter, where the devise is not to the heirs, gene-
rally, or heirs of the body, and where there is no devise over
II. 13.J OF EXECUTORY INTERESTS. [§525,526. [ 253 ]
to take effect on an indefinite failure of issue, if there is no
uneciuivocal and certain indication of an intent that the
ancestor should take a hfe estate only, and that the issue
should take by purchase; there then exists a vehement pre-
sumption of an intention, that all the descendants of the
ancestor should be admitted, and not that the estate should
revert before all the descendants of the ancestor should have
failed. In these cases, indeed, the ancestor was not the sole
ascertained object of the testator's bounty, as he was in the [ 254 ]
case of a devise to a person and the heirs of his body. IJut See § 432.
yet he was evidently the original attracting object, "the
groundwork of tlie testator's bounty :" and, in the absence
of some apparent grounds of distinction and preference, all
persons answering the description of issue of the ancestor,
iji the sense in which the word issue is used, must have an
equal claim, (apart from the operation of the rules of
descent,) founded entirely upon their common relationship,
as such issue, to the ancestor. And we have already seen,
that where real estate is devised to a person and his issue,
and the word issue is unassisted by any other expressions
indicating that by issue, the testator meant children, or par-
ticular individuals only among the descendants of the ances-
tor, or unequivocally showing that he intended the issue
to take by purchase; the word issue includes all the de-
scendants. So that all the descendants must have an equal
claim, apart from the operation of the rules of descent: and
it must have been intended that all should accordingly take,
so far as the rules of descent would allow.
525 If, in the cases to which the present chapter Observations
relates, the children were to take by purchase, showing the
according to the supposed secondary intent, then, it any expediency
child died in the lifetime of the testator, leaving issue, that and pro-
issue would take nothing; for, the issue of the deceased pricty of con-
child would, according to the hypothesis, only take by struing the
descent from their parent; and, as the parent took nothing, wordissueas
they could take nothing by descent from him : whereas, if ^ word of li-
the word issue were a word of limitation, and the ancestor, m'tation, in
the father or mother of such deceased child, were to take °''°'^'* '° ®'"
the estate tail, instead of the children, then the issue of the 'ec^Liate the
deceased child would be capable of taking by descent from P'"'"''^0 or
1 , r 1 r 1 . . .' 1 .1 . .1 paramount
the ancestor, the first purchaser of the estate tail, so tiiat tiie |^^^^^ j^
primary intent of the testator would be accomplished; for, caspg 'failing
all the descendants of the ancestor would be admitted, be- ^y-^\^\j^ \\^q
fore the estate would revert or go over. first rule.
526 Hence, the law will not restrict the estate of the
ancestor to a life estate, and give the inheritance to
the issue as purchasers, where it is not certain that such was
the intent of the testator; because, in this case, there is, on
the one hand, an apparent primary or paramount intent,
founded in the most vehement presumption ; and, on the [ 255 ]
[ 255 ] II. 13.] AN ORIGINAL VIEW [§527, 528.
other hand, an apparently, and only an apparently, certain
secondary or minor intent; and hence there is nothing snffi-
cientiy express and nnequivocal to exclnde or negative the
apparent primary intent; and consequently such apparent
primary or paramount intent is justly allowed to overrule
the apparent secondary or minor intent.
Observations But, where the testator has expressly and nne- 527
showing the quivocally manifested his intention that the issue
propriety of should take by purchase, by expressly 'restricting the ances-
construing tor to an estate for life only; (/) or by desiring that the issue
the word should take in a way in which they could not take, if they
issue a word came in by descent ; then, indeed, ^ unless these indica-
ol purchase, tjons of an intent that the issue should take as purchasers,
in cases all- ^^^ counterbalanced by other indications of an opposite in-
. = , /" . tent,(>4') the word issue is construed a word of purchase; and
1 the ancestor takes an estate for life, with a contingent re-
mainder to his issue, if unborn, or a vested remainder, if
born and ascertained, with a remainder over to the ances-
tor in tail, in case there is a devise over on an indefinite
failure of his issue, as we shall see in the seventeenth chap-
ter. For, in this case, there is no question between a pri-
mary and a secondary intent ; for, as the intent that the issue
should take by purchase, is not a matter of conjecture, pre-
sumption, or construction, however probable, but an intent
unequivocally expressed, it excludes or negatives the sup-
position of the existence of any incompatible intent, arising
See § 521, merely from a presumption, however vehement, supported
523-4. by \\\q prima facie meaning of the word issue.
There is less There is a less degree of presumption against 528
presumption construing the word issue, a word of purchase, than
against con- against construing the words heirs of the body to be words
slruing issue of purchase ; and a still less degree of presumption against
[ 256 ] that construction of the word issue, than against the same
a word of construction of the word heirs generally: so that, prima
purchase facie, the word issue is more likely to be a word of purchase
than against than the words heirs of the body; and still more likely than
construing the word heirs generally. For, we have seen that the heirs
heirs a word general of the first heir general of the ancestor, may not be
of purchase, f|,Q ^,gjj.g ^^ ^^ ancestor himself: whereas, the issue of the
especially ^-,Qj.g immediate issue, or, in other words, of the children
leirs gene- ^^^^ grandchildren of the ancestor, are also the issue of the
^ ancestor himself. And, as regards heirs special, though the
heirs of the body of the first heir of the ancestor's body, are
See § 383-4. also heirs of the body of the ancestor himself; yet the heirs
of the body are not ascertained ; for, nemo est hseres viventis;
{%) Backhouse v. Wells, 1 Eq. Abr. 184, pi. 27, as stated, Fearne, 152.
(k) See King v. Burchell, vVmb, 379, as stated and commented on, Fearne,
163—4.
II. 13.] OF EXECUTORY INTERESTS. [§529. [ 2,'->G ]
and it may be uncertain whether the person who may first
answer the description of heir of the body of the ancestor,
will be his child, grandchild, or great-grandchild. And,
consequently, in a devise to a person and the heirs of his See § 432.
body, the ancestor is the sole ascertained object of the testa-
tor's bounty; and all who may answer the description of
heirs of his body, have an equal claim, founded entirely on
their common relationship to him, as the sole ascertained as
well as the original attracting object of the testator's bounty.
Whereas, in a devise to a [)erson and his issue, the issue, if
already born, are ascertained in every respect; and, even if
unborn, still they are only unascertained, because unborn,
and not in res])ect of the necessity of sustaining a certain
character, which may not be sustained by any one more
nearly related to the ancestor, than in the third degree. And
hence there is a less antecedent improbability that the word
issue, than that the word heirs, should be used as synony-
mous with children of the ancestor or his descendants living
at a certain time ; and this is especially the case with the
word iicirs generally, as contradistinguished from heirs of
the body.
529 The first of the foregoing rules, whicli shows in
what instances the word issue is construed a word
of limitation, may be illustrated by a case, which, although
a case of personal estate, was decided with express reference
to real estate ; and consequently may be cited in illustration
of the rule above laid down. In that case, a residue of per- [ 257 ]
sonal estate was directed by will to be divided equally among Lyon v.
the testator's sons, share and share alike, as tenants in com- Michell, 1
mon,and to the issue of their several and respective bodies; Mad. 473.
but, in case of the death of any' or either of them, without
issue living at the time of his or their respective deaths, then,
the part or share of him or them so dying to go to the sur-
vivors and survivor, equally, share and share alike, and to
the issue of then- several and respective bodies. Sir Thomas
Plumer, V. C, held, that as the words would have created
an express estate tail, if applied to real estate, the four sons
took absolute interests in the personal estate according to the
general rule; (1 Mad. 475;) but, that on the death of one See § 593-
of the sons without issue, his share survived to his brothers, 600.
by way of executory devise, which was not too remote, See § 70ij,
because it was to take effect, not on an indefinite failure of 714.
issue, but on the failure of issue living at the death of the
party. {lb. 470.) His Honour observed, that the sons had
no issue at the time ; and that the word issue was generally
used, in a will, as a word of limitation. That if the word
issue was there a word of purchase, it must be used either
for the purpose of making them tenants in common with
their pareiUs, or to enable them to take in remainder. That
[ 257 ] II. 13.]
AN ORIGINAL VIEW
[§530.
Tale V.
Clarli, 1
Beav. 100.
See also
Goodright
V. ^Vrisht,
1 P. W. 397,
as stated,
Fearne, 165.
[ 258 ]
Franklin v.
Lay, 6
Mad. 258,
stated, infra.
Observations
on Tate v.
Clark.
Compare
§ .383, 453,
472, 479.
Hockley v.
Mav'bey, 1
Yes. 142.
if it was intended to make them tenants in common with
their parents, it came after the description of those who were
to be tenants in common, and it wo\ild be dilTicnlt to fix
upon the persons who were to take as issue; that word iti-
chiding grand-children as well as children, and to determine
the proportions m which they were to take ; and that if they
were to take in remainder, the same difficulty would occur.
And wliere .,'?. devised real estate to his widow, for life;
with remainder to trustees, to pay costs &c., and to divide
the residue of the rents amongst all his brothers and sisters
who should be living at the time of the decease of his wife,
and to their issue male and female, after the respective
deceases of his said brothers and sisters, for ever, to be
equally divided between and amongst them. Lord Lang-
dale, M. R., said, that the word issue is a word of limitation,
if the context of the will does not afford sufficient reasons to
construe it otherwise. That the words of distribution might
be applied to the brothers and sisters ; and that though it
was most unlikely that the testator should have intended to
make no provision for the children of a brother and sister
who died in the lifetime of the widow; [and though there
was no gift over in default of issue, a circumstance to which
His Lordship also adverted;] yet, being unable to find such
clear indications of intention that the technical words should
not have their ordinary effect, he must hold, that the chil-
dren of a sister who died in the lifetime of the widow took
nothing. And a similar decision was made with respect to
the personal estate.
The words of distribution not only ?na)/ be applied to the
brothers and sisters, but they seem in fact exclusively to
belong to them ; for, the word " them," whether explained
by the next antecedent, or by the foregoing word " their,"
properly refers to the brothers and sisters alone. And hence
this decision is clearly in conformity with the general cur-
rent of authorities. But, it may be observed, that when
the learned Judge speaks of the word ''issue" male as a
technical word, he must be understood to mean, a word to
which the technical signification of heirs of the body is ordi-
narily attached in the absence of other words; and not that,
like the word " heir," it is intrinsically a technical word; a
word of such a nature as to control the force of other expres-
sions, unless translated, as it were, into a popular word, by
such other expressions.
The following cases, where the word issue was 530
construed a word of purchase, will illustrate the
second of the foregoing rules.
A testator devised his freehold and leasehold estates to
his wife, for life ; remainder to her son, and his issue law-
fully begotten or to be begotten, to be divided among them
II. 13.] OF EXECUTORY INTERESTS. [§530. [ 258 ]
as he should think fit; and, in case ho should die without
issue, he directed that tlie estate should be sold, and the pro-
duce divided among certain other persons. The Lord
Chancellor held, that there was a contingency with a double Sec § 128-
aspect ; in the one case, to the children of the son ; in the 136.
other, to the other persons pointed out. That it was clear
that he did not intend the estate to go to the issue, as heirs [ 259 ]
in tail : for, he meant that they should take it distributively,
and according to projiorlions to be fixed by the son. That
it had been often decided, that where there is a gift in tliat
way, the parties must take as purchasers ; for, there is no
other way for them to take. That if the gift was not di-
vided by the son among his children, it was a gift to them
equally; as the testator intended to vest an interest in the
children of his son independently of the son, except as to
the proportions. That it was true that the word "issue"
would extend to descendants, however remote, but only as
a description of the objects among whom the power of the
son was to obtain to make partition. That it was an estate
devised upon two alternative contingencies; one, that there
were objects capable of taking under the first limitation ;
another, that there were none such, but that there w(?re
objects capable of taking under the second.
Again; a testator devised to his niece, and the issue o( Doc d. Davy
her body, as tenants in common, if more than one ; but, in v. Bumsall,
default of such issue, or, being such, if they should all die G D. & E.
under the age of 21, and without leaving lawful issue, then 30.
over. The niece suffered a recovery, and levied a fine, and
died without ever having had any issue. It was argued,
that the word issue meant children, on account of the super-
added words, and because the testator considered that the
issue of the niece might «// die, and yet leave issue. And
it was held accordingly; and that the limitations subsequent
to that to the niece, were all contingent; and the particular See § 766.
state of freehold by which they were supported, having
been destroyed before they were capable of taking effect,
they were also destroyed with it. Lord Kenyon, C. J., said,
that it was a contingency with a double aspect, like Lod-
dington v. Kimc ; if the niece had any children, the estate See § 128-
was limited to them in fee; if she liad no children, or if she 136.
had any, and they all died under 21, and without leaving
issue, then, it was to go over.
So where a testator devised to A., and to the issue of his Doe A. Gil-
body, his, her, or their heirs, equally to be divided, if more man v. El-
than one ; and if ./I should have no issue of his body living vty, 4 East,
at the time of his decease, then over. It was considered, 313.
lliat »/^. took an estate for life; remainder to his unborn [ 2G0 ]
issue in fee, if he had any; and if their estate should not
take effect, then over in fee. But it was not necessary to
Vol. II.— 2 7
[ 260 ] II. 13.] AN ORIGINAL VIEW [§530.
decide this point : for, it was held, that qudcunqne. vid datd,
a recovery suti'ercd by ^,'1., before he had any issue, barred
the hmitations.
Merest v. And where a testator devised to the use of his daughter,
James, 4 for Hfe ; and, after her decease, then, to the use of the issue
Moore, 327; of her body, lawfully begotten ; and in default of issue, or
S.C. 1 Brod. in case none of such issue lived to attain the age of 21 years,
&Bing. 127. then over. The Court of Common Pleas certified, that the
daughter took an estate for life only.
Observations It is to be observed, that the words "or in case none" &c.,
on Merest v, describing a failure of issue by death under 21, as a distinct
James. event from that described by the preceding words, "and in
default of issue," show that such preceding words did not
mean an indefinite failure of issue : for, in that sense, they
would have inckided the failure of issue afterwards de-
scribed as a distinct event, but meant in default of children,
in the event of no children being born, and thereby made
it evident, that, by the issue to whom the estate was expressly
devised, the children of the daughter were intended.
Lees V. Mos- Again ; a testator devised to his son, H. J., for life ; with
ley, 1 You. remainder to his lawful issue, and their respective heirs, in
& Coll. 589. such shares and proportions, and subject to such charges as
//. J. should appoint ; but, in case H. J. should not marry
and have issue who should attain 21, then to his son O., in
fee. It was held, tliat H. J. took an estate for life ; with
remainder to his children, as tenants in common in fee.
Alderson, B., in delivering the judgment of the Court, said
" The word issue is used in different senses ; either as in-
cluding all descendants, in which case it is of course a word
See § 403-4. of limitation ; or, as confined to immediate descendants, or
some particular class of descendants living at a given time.
Probably it will be found most frequently used in the former
sense; and it therefore most frequently lias the effect of
giving an estate tail to the ancestor. It might even perhaps
be conceded, that this is prima facie its meaning. But the
[ 261 ] authorities clearly show, that whatever be the primd facie
meaning of the word "issue," it will yield to the intention
of the testator, to be collected from the will ; and that it re-
quires a much less demonstrative context to show such in-
tention, than the technical expression of heirs of the body
would do." (1 You. & Coll. 609.) " Now, if issue be taken
as a word of limitation, the word " heirs" would be first re-
strained to " heirs of the body," and then altogether rejected
as unnecessary. The word " respective" could have no
particular meaning annexed to it; and the apparent inten-
tion of the testator to give //. J. an estate for life, and after-
wards to distribute his property in shares amongst the issue,
would be frustrated." {lb. 610.)
In another case, Jl. devised residuary freehold, copyhold.
II. 13.] OF EXECUTORY INTERESTS. [530. [ 261 ]
and leasehold estate, to his son and four daughters, and their Cursham v.
hiwfal issue respectively, in tail general, witli benefit of sur- Newland^ 2
vivorship to and amongst their issue respectively, as tenants Beav. 145.
in common ; provided always, that such issue should not
have a vested interest until they attained 21, being sons,
and being daughters, until they should attain that age, or
be niarried ; but, during the minority of the said issue, the
trustees might, after the deaths of the testator's son and
daughters, apply the whole of the interest of the presump-
tive share of each child, for his, her, or their maintenance,
education, and advancement, and in case his son or daugh-
ters, or any or either of them, should die without leaving
lawful issue, or with lawful issue, and such issue, being
sons, should not attain 21, or, being daughters, should not
attain that age or be married, then, the shares of them so
dying to be for the benefit of the survivors and their issue,
in the same maimer as their original shares. The Court of
Exchequer (in unison with the certificate of the Court of
Common Pleas, except as to the accruing shares of the
entirety.) certified, that the testator's children took estates
for their respective lives in the freehold and copyhold lands,
as tenants in connnon, with contingent remainders in their
respective shares to their respective children, by purchase,
as tenants in common, in tail, with cross remainders in tail
between such children, in each respective share ; with cross
remainders over in the whole of each of such shares respec- [ 262 ]
tively, on failure of all the children of any son or daughter
and their issue, to the survivors or survivor of them, the tes-
tor's son and daughters, and the children of such surviving
son or daughter, in like manner as in the original share of
such son or daughter ; and that the testator's son and daugh-
ters took corresponding interests in the leaseholds. Lord
Langdale, M. R., confirmed the certificate of the Court of
Exche([uer, adding, that the word "survivor" was to be
construed "other."
And where a testator devised to his wife, for life only ; Doe d.
remainder to his daughters E. and S., to be equally divided Cooper v.
between them; viz. the one moiety to E. and her heirs for Collis,Al).
ever, and the other moiety to S. during the term of her natu- ^ t.- 294.
ral life ; and, after her decease, to the issue of her body law- ^^^ ^'^°
fully begotten, and their heirs for ever. iS'. had one child ^^^y^^'^\
living at the time of the devise. It was held, that the chil- ^" ^^ ^g^
dren of ^S*. took a fee, as purchasers. Lord Kenyon, C. J., gt^fgj " '
in accordance with L. C. J. Wilmot's observations in Boe v. pgarnc 152-
Gretv, 2 Wils. 322, said, that, in a will, issue is either a Loddinsiton
word of purchase or of limitation, as will best answer the y Kimc, 1
intention of the devisor, though in the case of a deed, it is galK-. 224,
universally taken as a word of purchase. In this case, the stated,
prior devise of the first moiety to the other daughter E. and Fearne, 152,
Observations
[ 262 ] II. 13.]
AN ORIGINAL VIEW [§531— 533a.
on Doe il.
Cooper V.
Collis.
III. Trusts
executory,
created by
marriage
settlement.
See § 489,
494-5, 706,
710.
See § 520-
527.
[ 263 ]
See § 598.
IV. Trusts
executory
created by
will.
V. Where
the two limi-
tations are
not both
legal, or both
equitable.
VI. Where
the issue
cannot take
by purchase
on account
of the rule
against per-
petuities.
See § 706.
her heirs for ever, showed that the testator intended to make
a distinction between the two daughters, by giving E. the
absolute power over her moiety, and by restricting S. to a
life estate, and securing the estate to her issue after her
decease.
III. But, in the case of an executory trust by 531
marriage articles, in favour of a person in esse, and
his issue, his children will take as purchasers, even in the
absence of any indication that they should take by pur-
chase : because, they are considered as purchasers for valua-
ble consideration ; and, in the case of an executory trust,
the intent that the issue should take by purchase, can be
effectuated without sacrificing the primary intent of admit-
ting all the issue ; for, the conveyance to be made in pursu-
ance of the trust, can be so framed, that all the descendants
shall take, before the estate can revert or go over. So that
'where it is agreed to limit lands in remainder to or for the
issue of the tenant for life, a strict settlement will be directed
to be made upon the first and other sons, in tail, remainder
to the daughters, &c.(/)
IV. '" In the case of an executory trust by will, 532
in favour of a person in esse, and his issue, the
children will take by purchase, if, on the whole, it appears
most probable that the testator intended them to take in that
manner.(?7i)
V. "Where the limitation to the ancestor, view- 533
ed by itself, would create a mere equitable estate,
and the limitation to the issue a legal estate; or, vice versa;
the issue will take by purchase, in the same manner as the
heirs of the body, under similar circumstances.(w)
VI. "And if the issue cannot take by purchase, 533a
on account of the rule against perpetuities, the
word issue will be construed a word of limitation, in cases
where, but for that rule, it would be construed a word of
purchase, according to the second of the foregoing rules in
the present chapter.(o)
{I) Hart V. Middlehurst, 3 Atk. 371 ; and Dad v. Dad, Amb.
Rep. 274 ; as stated, Fearne, 105 — 6.
(m) Lord Glenorc.hy v. Bosvile, Cas. Temp. Talb. 3 M. 1733 ;
as stated, Fearne, 116 — 7.
(n) See Mog^ v. Mogg, 1 Meriv. 654 (as regards the devise of
the lower Mark estate), stated § 705. See also § 401, 470.
(o) See Mogi( V. Mogg, 1 Meriv. 654, stated § 705.
II. 14.] OF EXECUTORY INTERESTS. [§534,535. [ 2G4 1
CHAPTER THE FOURTEENTH.
FOURTH EXCEPTION FROM THE FOURTH CLASS OF CONTIN-
GENT REMAINDERS, UNDER THE CY PRES DOCTRINE,
WHERE REAL ESTATE IS DEVISED TO THE CHILDREN OF
AN UNBORN CHILD.
534 "Where a testator devises an estate tail to a
grandchild, by a child not yet born at the testator's
death, to take by purchase ; and he appears to have in-
tended that all the issue of such unborn child should take,
so far at least as the rules of descent will permit; the Courts,
though obliged to sacrifice his minor intent that the grand-
child, by such unborn child, should take by purchase,
because it is contrary to the rule against perpetuities, will Sec § 706,
nevertheless, under the doctrine of approximation, or, as it is 710.
commonly called, the cy pres doctrine, give effect to his See § 430.
paramount intent, that all the issue of the unborn child
should take, by giving an estate tail to such unborn child,
so as to enable the grandchild to take derivatively through
such unborn child, though it cannot be allowed to
535 take in the particular mode pointed out by the
testator.(«) And ''in the case oi Pitt v. Jackson,
this construction was adopted, though, in that case, the
grandchildren by the daughter were intended to take con-
currently, (6) which was of course essentially different from
the devolution of the land under the estate tail, which the
Court gave the daughter, under the doctrine of approxima-
tion.
(a) See Butler's note, Co. Lilt. 271 b, (1) VII. 2. Sec also his note to Fearne
201, {g) ; and Nichol v. Nichol, 2 W. Blac. 1159, as there cited.
(b) 2B. C. C. 51.
[ 2G5 ] II. 15.]
AN ORIGINAL VIEW [§536, 53Ga.
CHAPTER THE FIFTEENTH.
I. Perpclual
succession of
life estates,
by way of
executory
trust, in fa-
vour of un-
born de-
scendants.
See § 700,
710.
FIFTH EXCEPTION FUOM THE FOURTH CLASS OF CONTINGENT
REMAINDERS, UNDER THE CY PRES DOCTRINE, IN THE
CASE OF AN INTENDED PERPETUAL SUCCESSION OF LIFE
ESTATES.
536
I. =* Where a testator attempts to create a perpe-
tual succession of life estates, by way of executory
trust, in favour of unborn children, and more remote de-
scendants, the children, when born, will take estates tail, (a)
under the cy pres doctrine or doctrine of approximation, in
order that the descendants of such unborn children, may
take derivatively through such children, as they cannot take
independently by purchase, on account of the rule against
perpetuities.
II. Perpetual H- And where a testator attempts to create a 536a
succession of perpetual succession of life estates in favour of
life estates in children in esse and more remote descendants, the children
favour of will take estates tail under the cy pres doctrine, in order to
children in effectuate the apparent primary or paramount intent of ad-
esse and mitting all the more remote descendants to take derivatively
more remote through the children, as those among them who were un-
descendants. born children of persons not in esse, could not take inde-
See § 436. pendcntly, by purchase, on account of the rule against per-
petnities.
A testator devised an estate to trustees, in trust to permit
the devisor's six children to receive one sixth part each of
the rents, during the terms of their natural lives ; and, after
their respective deceases, then to permit all the children of
such of his sons or daughter so dying to receive the rents
of such share or shares of him, her, or them, so dying; and
so, in like manner, from children to children ; and in case
any or either of his said children should die without leaving
issue, then, the rents belonging to such of his sons or daugh-
ter should be received by the survivor or survivors. It was
held that the six children took estates tail ; because, (Best,
C. J., said,) the testator went on to attempt that which was
impossible — to give an estate for life to unborn grandchil-
dren; he is not allowed so to advance towards the creation
of a perpetuity : but the Court must do that which would
approach nearest to his intentions. But there were other
See § 706,
710.
Wollen V.
Andreives,
2 Bing. 126
[ 266 ]
(a) See Humberston v. Humberston, 1 P. W. 332, us stated, Fearne, 503.
II. 15.] OF EXECUTORY INTERESTS. [§536b. [ 2GG ]
words (he added) which placed the matter out of doubt ;
namely, the gift over on faihire of is.sue. Observations
This decision, in order to be satisfactory, must be relerred ^^ f^follenv.
simply to the principle above laid down. For, an estate for ^qndrcires.
life muy be given to an unborn grandchild by a child in esse ^^.^, ^711.
at tiic lime ; and the gift over on failure of issue was not a 713.
gift over on an indefinite failure of issue. Sec § 553-4.
In another case, a tester devised lands for the use of his Brooke v.
three children, for their lives, in equal shares, and to the Turner, 2
issue of their respective bodies, for their respective life only, Bing. New
in equal shares for ever; and, in case of the death of any Cases, 422.
or either of his said children, without issue, then, in trust for
the survivors or survivor, in ei^ual shares, for life only, or
to their respective issues, in equal shares, for life only ; and,
in case there should be only one child then living, then,
upon trust for such only child, for life only, and for the issue
of such only child, for life only, in equal shares ; and, if but
one issue of such child, then, to such only child's issue, for
life only, and the heir of his or her body for ever; with a
limitation over, in case there should not be any lawful issue
of such child, or the child of such child. Either child who
should marry, was to have power to make a settlement, for
the lives of the parties, and the lives of their issue, with
remainder over in tail. By a codicil, he devised the same
lands to his said three children, as tenants in common, for
99 years, if his children should so long live ; remainder to
trustees to preserve contingent remainders ; and the uses
expressed in the will, as far as the rules of law would per- [ 267 ]
mit, were to be carried into perfect execution. The Court
of Common Pleas certified, that the three children took
estates for 99 years, if they should so long live, as tenants
in common; remainder to trustees to preserve contingent
remainders; remainder to the three children, as tenants in
common, in tail general ; with cross remainders between
them, in tail general.
536b III. But, where there is a single intent to create Hf. Limited
a limited number only of life estates in succession, number of
not warranted by the rule against perpetuities, an estate tail life estates,
will not be given to any of the persons intended to take such
life estates.
A testator gave an estate to his son F., during his natural Seaward v.
life; and, after him, he gave it to his eldest or any other son Willock, 5
after him, during his natural life; and, after them, to as I^ast, 598.
many of his descendants, issue male, as should be heirs of
his or their bodies, down to the tenth generation, during
their natural lives. It was held, that F. took for lite only,
Lord EUenborough, C. J., observing, that in Ixobinson v.
Robinson, 1 Burr. 38; Doe v. Applin, 4 T. R. 82; Doe d.
Bean v. Halley, 8 T. R. 5, expressions were used denoting
[ 267 ] II. 16.] AN ORIGINAL VIEW [§537.
an intention that the lands should continue in the descen-
dants of the first taker as long as there were any, without
specitying or marking what estates such descendants should
take. That this case, however, was not a case of a particu-
lar and a general intent, but a case of a single intent to create
a succession of estates not warranted by law.
Observation The restrictive words "down to the tenth generation,"
on Seaward plainly distinguish this case from the preceding, and nega-
V. W'dlock. tive tlic existence of any primary or paramount intent to
admit all the descendants.
[ 268 ] CHAPTER THE SIXTEENTH.
SIXTH EXCEPTION FROM THE FOURTH CLASS OF CONTIN-
GENT REMAINDERS, UNDER THE CY PRES DOCTRINE,
WHERE THE WORD SON OR CHILD, IN A DEVISE OF AN
ESTATE IN REMAINDER, IS CONSTRUED AS A WORD OP
LIMITATION.
Where a testator devises in remainder to the un- 537
born child of a prior taker, even though it be by
the designation of eldest son, but he appears to have in-
tended that all the issue of the prior taker should inherit, so
far as the rules of descent will permit ; in such case, to give
See § 436. effect to the paramount intent of admitting all the issue, the
prior taker will have an estate tail, and the description
eldest son, child, &c., will not be regarded as a designatio
personx, as pointing out a particular individual who is to
take by way of contingent remainder, but as as a nomen
See § 403-4. collectivum, and a word of limitation.
Doe d. Gar- A testator being seised in fee of freehold land, and of
rod V. Gar- copyhold intermixed with it, and descendible to the youngest
rod, 2 Bar. son, devised the same in the following manner: As to my
& Adol. 87. worldly estate I dispose thereof as follows : I give to my
nephew ./. G. all my lands, to have and to hold during his
natural life, and to his son, if he has one; if not, to the
eldest son of my nephew, J. G., during his natural life, and
to his son after him ; if not, to the regular male heir of the
G. family, as long as there is one of them in being ; and if
they should be all extinct, then to the regular heir of my
nephew T. F.'s family. By a codicil, stating, that his
nephew J. G. had then a son, he gave and bequeathed to
him, after his father's decease, all his lands, both freehold
and copyhold, and to his eldest son, if he had one; but if he
had no son, then, to the next eldest regular male heir of the
II. 1G.| OF EXECUTORY INTERESTS. [§537. [ 2rJ8 ]
G. family, as long as there should be one in being. It was
held that J. G/s son, John, took an estate tail; Lord Tenter- [ 209 ]
den, C. J., observing, that as it was plainly not the intention
of the testator that the estate should go over to the next
heir male of the G. family, while issue male of John should
remain, the greatest chance of eHectualing the general intent
was to hold that John took an estate tail. 'J'he consequence
of this construction was, that the copyhold descended to the
youngest son of John, instead of going to " the eldest,"
while the freehold would descend to the eldest. But His
Lordship remarked that this was a mere consequence of
law, and probably the testator never contemplated it, and
perhaps never knew of the custom.
Again; a testator devised his real estate to trustees and />opd.Jo;?cs
their heirs upon the following trusts: "to permit my daugh- v. Dories, 4
ter not only to receive the rents and profits to her own use, Bar. &A(Jol.
or to sell or mortgage any part, if occasion requires; but 43.
also to settle on any husband she may take, the same, or
any part thereof, for life, should he survive her. But should
my daughter have a child, I devise it to the use of such
child, from and after her decease, with a reasonable main-
tenance for the education &c. of such child in the meantime.
Should none of these cases happen, I give and devise my
real estate, from and after my daughter's decease, unto"
&c. It was held that the word child, since the daughter
had no child at the time, was not a designatio personx,
but comprehended a class ; and that the daughter took an
estate tail ; because the testator had prefaced the gift by
words showing that he contemplated the possibility of the
estate going over to the remainder-man, in the event only
of the daughter dying unmarried ; and because the words
introducing the gift in remainder, " should none of these
cases happen," showed an intent that the estate should only
go over on failure of the issue of the daughter.
Vol. II.— 2S
[270] II. 17. 1.] AN ORIGINAL VIEW [§538,539.
CHAPTER THE SEVENTEENTH.
CASES OF AN ESTATE TAIL, llY IMPLICATION SIMPLY, OR
BOTH BY IMPLICATION AND BY ANALOGY TO THE RULE
Sec Ch. XII. i^' Shelley's case, with a vested remainder over,
IN REAL PROPERTY, DISTINGUISHED FROM CASES OF A
Sec § 159- l-IPE ESTATE, AND A CONTINGENT REMAINDER OVER,
195_ EITHER WITH OR WITHOUT AN ALTERNATIVE LIMITA-
Sce § 128- tion; or of a life estate, with a limitation over
136^ of a springing interest; or of a fee, with a con-
SCC§117- DITIONAL limitation OVER.
127a, 148.
158. -^^
SECTION THE FIRST.
Rules fur determining whether an Indefinite Failure of
Issue is meant, or merely a Failure of Issue within a
I In devises certain Ti?ne, in Cases of a Limitation over on a
ofrcalestatc, ^^.^^^^,^ of Issue.
before 18-38, *'
Ihc words I, It will be pGrceivcd, from the cases stated in 538
" die without the following sections, that, as regards real estate,
issue," " die no distinction exists between the words "die without issue,"
without leav- ^nd " die without leaving issue," and " in default," or " on
ing issue," failure," and "for want of issue;" but that all those ex-
" in default," pj.gggJQj^j,^ jj^ devises made before the year 1838, are Con-
or "on fail- s[j.^^gj iQ import of themselves, an indefinite failure of
ure, or "for • '■
• issue,
want of is- J j^ j^^^j^ .^^ jj^g ^^^^ ^^ personal estate, bequeathed 539
alThcldTo^ before the year 1S3S, while the words "die with-
import an in- ^"^ issue," of themselves, are construed to import an indc-
dcfinitc fi"'fe failure of issue, "the words "die without leaving
failure of issue" arc construed, in their natural and obvious sense,
issue. of dying without leaving issue living at the death of the
See § 563. person the failure of whose issue is spoken of,(«) because,
[ 271 ] the construing them to refer to an indefinite failure of issue,
II. But in would not benefit the issue, in the case of personal estate,
bequests of by implication in favour of the parent, in the same manner
personal cs- as that construction would, in the case of real estate. And
tatc, before this distinction between real and personal estate, as to the
(a) Atkinson v. Hutchinson, 3 P. W. 258; Read v. Snell, 2 Atk. 642 ; and
Lampley v. Blower, 3 Atk. 390; as stated, Fearnc, 473. Goodtitle d. Peake
V. Pcgden, 2 D. and E. 720; Porter v. Bradley, 3 D. and E. 143; and Roe
d. Sheers v. Jrfcnj, 7 D. and E. 5S9 ; as slated, Fearnc, 474, note («).
II. 17. i.] OF EXECUTORY INTERESTS. [§.'510. [ 271 ]
words (lie without leaving issue, is observed even where 1*^38, iIk.-
both kinds of property are limited over in the same words, words ''dio
A testator devised real estate to his eldest son .S'., and the wuhoutlcav-
heirs of his body ; and, in case of his death, without leaving '"o '^s"^"
issue of his body, then over. The testator then befpicathed ^^^-■'•0 »ot so
■ , ,- 1 • 1 . .If 1 1 r . 1 .1 f construed,
the residue of his personal estate to .V.; •'i'"' ''t: directed, that '
in case .V. should die witliout issue ol his body, tiie residue (^(|n.r\.x,)rcs.
should also go over. Lord iManners, C, held, that the be- ^-^^^^^^ ^'.^.j.^.'
quest over of the residue was not too remote : for, by the construed in
word "also" the testator had made the bequest over of the t],.^t manner,
residue to depend on the same event on which he iiad before '<,^.^. ^ 5(33.
limited his real estates, that is, on the death of the fust taker /'^/^ ,, v_
without leaving issue. And hence, on the authority o( ij.win,2V>.
Forth v. Chapman, the bequest was i^ood. c\: B. 4:3",.
In another case, a testator devised freehold and leasehold jiadford v.
estates to j2. and 7i., as tenants in common, and the heirs of UadforcL 1
the body and bodies of tlie said JI. and B., as tenants in Keen, 48G.
common ; and if either of them should die without leaving
issue, then, his share to the use of the survivor, and the heirs
of liis body; and in case both of them should die without
issue of his or their body or bodies, then, to the use of C,
for life, &c. Lord Langdale, ]M. R., held, that the limitation
to the survivor was good, on the authority of Forth v. Chap-
man; and that, by the word " issue," in the succeeding limi- j^^ ^yjjp,.^,
tation, the testator intended such issue as were to take under ^jiJ j^^yig^
the prior limitation ; and that consequently the limitation ^^^ ^j^^ j^^^^
over was not too remote. malcisintro-
540 III. Where property is devised to a person for juced by
life, and then to his " issue male and his heirs," [ 272 ]
and it is introduced by words of contingency referring to the words of
event of there being any " issue male," and prima facie im- contingency,
porting a condition precedent ; and there is a devise over in and the limi-
fee, in the exactly opposite event of the prior taker dying tation over
" without issue male ;" it is evident, from the form and Ian- is an alterna-
guage of the limitations, that the words referring to a failure tive to take
of issue male, refer to the non-existence of sons or a son ; efl'cct in the
and that the devise to the issue male is a contingent remain- opposite
der to the eldest or only son in fee ; and the devise over is a cv'""' " .
concurrent contingent remainder, as regards the estate of the ^"'^''^ "^'"S
prior taker, and an alternative limitation, in regard to the "*^ ^^"los
limitation to the issue, to take effect merely as a substitute 13^^(37"^^."
for that limitation, in the event of no son being born. ^^^
This rule is deduced from "^ the case of Loddington v.
Kime, where a testator devised to A., for life, without im-
peachment of waste ; and if he have issue male, then, to
such issue male and his heirs for ever; and, if he die with-
out issue male, then, to B. and his heirs for ever.(/>)
(/>) 1 Salk. 2?4 ; 1 Ld. Knym. 203 ; as stated, Fcarne, 225.
[ 272 ] II, 17.1.] AN ORIGINAL VIEW [§541—543.
IV. \Vlicrc IV^. And ^ where property is devised to a person 541
the devise is for life, and, nlU-r liis death, to his children, equally,
to the chil- and their heirs ; with a limitation over in case he should die
dren of the witliout issue; the words referring to a failure of his issue
prior taker, yefer to the event of his having no children, so as to intro-
equallv, and jj^igg ^n alternative limitation, instead of denoting an in-
/"^u . i'^^' definite failure of issue, so as to show that, by heirs of
uith a iimi- jjjg children, the testator meant heirs of the body, and thus
, introduce a remainder over after an estate tail in the chil-
in case lie , , ,
should die dren.(c)
without issue, which is an alternative.
V. Where V. But '' where property is devised to a person 542
the devise is for life, and then to his issue and their heirs, and
to the issue the issue would take by purchase under the second rule in
of the prior the thirteenth chapter, if there were no devise over; and
taker, and there is a devise over in case the prior taker should die
[ 273 ] without issue, or all such issue should die without issue; it
their heirs; is evident that the words referring to the prior taker's dying
with a Iimi- without issue refer to his dying without children ; but that
tationovcrin the words providing for the event of all such issue dying
case he without issue, clearly show, that, by heirs of the issue, the
should die testator meant heirs of the body ; and consequently, that the
without is- children of the prior taker were intended to take an estate
sue, or all j^jj^ instead of an estate in fee.(^) So that, in this case, there
, ^ J J ^• is a life estate, with a contingent remainder over in tail, fol-
,.,;fu^,.f ;. lowed by a limitation which is to take effect either as an
without IS- , y .^ , ,,11 , M , -1
sue • which alternative, if there should be no children, or as a remainder
is both an ^^^'^^ ^^^ estate tail in the children, if there should be children,
alternative ^i^^ there should afterwards be a failure of issue,
and a remainder after an estate tail. — See § 128, 159, 6G8-9.
VI. Words VI. Words referring to a failure of ^' such issue," 543
referring to may either refer to an indefinite failure of such
a failure of issue in general or of issue male or female, or not to an in-
such issue definite failure, according to the degree of comprehensive-
import an j-iess of the antecedent expressions, to which the restrictive
indefinite words " such issue" refer. For,
failure of is-
sue, or not, according to the degree of com-
prehensiveness of the antcccdcntexprcssions.
, rp, J 1. If the antecedent expressions, to which the words
whcre%ch " such issue" refer, are sufficiently comprehensive to com-
cxpresslons P^^^^^ ^^^ ^'^^ ^^'"'"^ i" general, or all the issue male or female ;
comprise all then, the words " such issue" refer to an indefinite failure as
the issue ge- niiich as the word issue when standing unrestricted,
nerally or male or female. — See § 570,
(r) Goodriglit d. Docking v. Dunham, Dougl, Rep. 251, or 3d ed, 264, as
stated, Fearne, 375.
{(1) Doe d. Barnard v. Ilea son, cited 3 Wils. 244 ; and Fcarno, 370.^
II. 17. i] OF EXECUTORY INTERESTS. [§r,11. [273]
2. But if the antecedent expressions, to which the words 2. They do
"such issue" refer, comprise some oiilyof liie issue in gene- not, where
ral or of (he issue male or female; then, the words "such such expros-
issue" refer only to a failure of tiie particular issue hcfore sions com-
, . ^c i)ri.se some
spoken of. ' . „ ,
So that if land is devised to the sons, daugliters, or chil- ""'y "^' '"^'
dren, in remainder, after a devise to their parent, and there ^""^^l^^ ^^'male
is a limitation over, in default, or on failure, or for want of ^'* ^ ^^ ^
such issue, the words " in default of such issue" &c., do not [ 274 ]
refer to the issue generally of the prior taker, so as to raise ^,1- female,
an estate tail in him, by implication, hut solely, of course, to As where the
the issue before described, that is, either solely to the sons, devise is to
daughters, or children, or to them and their issue before dcs- the sons,
cribed. Tlius, daughters,
or children, of tlic prior laker.
544 (1) '"Where the sons, daugliters, or children, (1) Where
woidd take the fee, irrespectively of the limitation they would
over in default of such issue, or a limitation of the same im- take the fee,
port; these words do not cut down the fee to an estate tail, the limitation
but refer solely to the sons &.c.,and the limitation over is an "^^ "l"^"
alternative, to'take elfect in the event of no son, &c., being I''^""- o'^"^"
born.(/) (See§12S-13G.) iraTalSna-
A testator having a daughter and granddaughter, both .
named 7?., devised to his grand-dauglitcr li., for life ; re- '
mainder to trustees to preserve contingent remainders; re- ™ . ' ,, /^
mainder to the use of the issue of the body of B., in such ^ f,;^tyf <<;i(jf.
parts, shares, and proportions, manner and form, as R. should Lj-g'-j i^^^t
appoint; and, in default of appointment, to the use of all the'521.'
children of li. lawfully to be begotten, and their heirs, as
tenants in common; and, in default of such issue, to the use
of all the other children of his daughter 7i. to be begotten,
and their heirs, as tenants in common; and, in default of
such issue, to the use of his own right heirs. li., the grand-
daughter made no appointment. It was held that her only
child took an estate in fee; Lord Ellenborough, C. J., ob-
serving, that the words "in default of such issue," referred
to the "children" of Ji., and not to their "heirs;" that the
daughter might, under the words in such "manner and
form," have appointed in fee to all or any of the children ;
so that no argument could be drawn from the power of ap-
pointment ; and that, in the case of Ives v. Lcgge, the words
were " in default thereof," which might well be referred to
the word "heirs;" and that the case o{ Lewis (\. Oriiiond v,
IVarters was not determined on the ground of the words
"for want of such issue," being, in their ordinary and pro- [ 275 ]
per sense, referable to tiie word "heirs," but on this, tliat it
(/) Doe d. Comberbach v. Pcrryn, 3 Durn. & East, 481 ; as stated, Fcarne,
o7t).
[275] II. 17. i.] AN ORIGIiNAL VIEW [§545,540.
■wns clear the testator meant the first and other sons of his
eldest son to take in snccession.
(2) Whore (3) Whore the sons,danghters,or children, would 545
they would take estates for life, irrespectively of the limitation
take life es- over " in default of such issue," or a limitation of the same
tales, siicli import; these words do not raise an estate tail, by implica-
limitation {Jq,, j^ favour either of the parent, or of the sons, daugliters,
over IS a re- ^j, children, but refer solely to the sons &c., themselves ; and
main or oa- jj^^ limitation over is both an alternative and a remainder,
t-'V' ^rr^ >fr ^^' ^^ ^^^^^} it is a remainder, capable of taking elTect either
oither'as an ^^ ^'^ alternative, in case there should be no son born, or as
alternative ^ remainder, on the decease of the sons &c., as the case may
or as a re-' ^''- i^^ § ^^S, 159, G6S— 9.)
maindor. ^ testator devised to his daughter E., for life; remainder
Goodri'rhtA to her first and other sons; and for want of such sons, to
Lloyd V ' ''^'' ^^''^"S'l'ers, equally, &c, : and, in default of such issue of
Jones 4 ^'•' then, to his daughter M., for life; remainder to her first
Mau. & ^"^1 other sons; and, for want of such, to the daughters of
Sel. 88. M., equally, &c.: and for want of all such issues, to his own
right heirs. A', had a daughter. It was held, that it ap-
peared from the ultimate limitation, that the words "in de-
fault of such issue," meant, if there should be no issue, or,
being issue, if such issue should fail.
Foster v. In anotiier case, a testator devised to his nephew, 7'., for
Lord Rom- life; remainder to trustees &c. ; remainder to all and every
nf//,ll East, the son and sons of the body of T., severally and succes-
594. sively; and, for default of such issue, the testator devised
the estate to three other nephews in succession, and their
sons respectively, in the same manner. T. had a son. It
was held, that the nephews and their sons took life estates.
Hay V. Lord And so where a testator devised to »/?., for life ; remainder
Coventry, 3 to trustees &c.; remainder to her first and other sons in tail
I), & E. 83. male ; and, in default of such issue, to the use of the daugh-
ters of ,/?., lawfully issuing, as tenants in common ; and in
default of such issue, to his own right heirs. It was held
that the only daughter of ./^. took an estate for life only;
[ 276 ] Lord Kcnyon, C. J., observing, that if the word "such" had
not been introduced, the Court might perhaps have said,
that as issue is ^' ffenus j^eneralissimum," it should include
all the progeny. But that there the word "such" was rela-
tive, and restrained the words which accompanied it.
(3) Where (3) ^ Where the sons, daughters, or children, 546
they would would take estates tail, irrespectively of the limita-
lakc estates tion over "in default" of such issue, or of a limitation of
tail, such li- ij^g same imj)ort; these words refer to the sons, daughters,
mitationover ^j. children, and their issue before described and inheritable
IS a remain- ^^,^(]qj. ^)^Q entail ; and the limitation over is both an altcrna-
'''' ^■^P''^'-'''-' live and a remainder, or, at least, it is a remainder, capable
V''*.''"n of taking cff'ect cither as an alternative, in case tiicrc should
eliect cither ^ '
ir. 17. i.] OF EXECUTORY IiNTERESTS. [§547,548. [ 27G ]
be no son &c. born, or as a remainder, on the tlcatli of tlie as an alter-
sons &.C., and the extinction of issue inheritable under the native or as
entail.(5-) . .. a remaimJcr.
A testator devised to seven of his sisters, for lile, share Ladij Dacre
and share alike; and, after the decease of any of them, her v. Doe, in
share to go to her first and other sons in tail ; and, in default Error, S I),
of such sons, to and amongst her daughters &:c. It was & E. IfJ.
held, upon the whole will, that the daughters took an estate
tail, notwithstanding the mere birth of a son.
In another case, a testator devised to D. 0., his eldest son, Leivis d.
for life; remainder to trustees to preserve &c.; remainder Onnondv.
to the first and other sons of I). O., and their heirs ; and, for Waters., (i
want of such issue, to his second son, J. 0., &c., with like I'^^ist, 330.
remainders to his first and other sons; and, for want of such
issue, to the testator's own right heirs. It was held, that
the first and other sons of D. O. took estates tail in suc-
cession; the words "such issue," referring to the word.
" heirs."
547 VII. Where the limitation over is on failure of yjf_ ^yi^^j.^
issue generally, but the testator, in another passage, ^j^^ j^^^,p ,,j.(j
refers to the same persons by the name of children, and referred to
thereby explains, that by the word issue, he means children ; by the name
of course it is the same as if the limitation over were ex- of children,
pressly on failure of children. and thereby
explained to mean children.
A testator gave his bank stock to trustees, in trust for F. [ 277 ]
JS. for life ; and his funded property to the same trustees, in Ellis v. Scl-
trust for fF. li. E., for life; and, from and after his decease, hy, 7 Sim.
then, upon trust (should JV. JR. E. have issue of his body '^52. Sec
lawfully begotten, whether male or female) to apply the in- ^'^'so She/-
terest for the maintenance and education of such issue, till/^'^^'- ^-^rd
21, and tlien, to transfer the capital to them. And he di- ^^!f^^''-\-^,
rected the trustees, after the decease of F. i?., to pay the ^y*^' ~'^*'' ^^
dividends of his bank stock to JV. R. E., for life ; and, from 1^ " ' ...
and after his decease, to apply the dividends and capital for ' '
the benefit of the children or child of fV. R. E., in such
manner as he had directed respecting the funded property.
And should JV. R. E. die without issue male or female of
his body lawfully begotten, then, in trust for certain other
purposes. Sir L. Shadwell, V. C, held, that the ultimate
trust of the funded property and bank stock was not too re-
mote, as the testator had himself interpreted issue to mean
" child or children."
548 VIII. Wiiere the whole of a fund is given to the VIII. Where
same persons, and the limitation over of one the issue are
moiety is explained, in the manner mentioned in the last so rclLrred to
{g) But sec Kccnc \. Pinnock, cited 3 Durn. 6c East, i95 ; and 3 Fcarnc,
379, contra.
[ 277 ] II. 17. i.]
AN ORIGINAL VIEW
[§54S.
in the limita'
tion of one
inoicty, but
not in the li-
mitation of
another
moiety.
See § 563.
Carter v.
Bentall, 2
Bcav. 551,
[ 278 ]
KirJcpatrick
V. Kirk-
pa trick, 1.3
Ves. 476.
See§ 549,
553.
proposition, to be inteiKied to take effect on failure of chil-
dren, instead of an indefinite failure of issue, but the limita-
tion over of the other moiety, on failure of issue of the prior
taker, or on his decease without issue, is not so explained;
the limitation over of the latter, it seems, will (except in
cases governed by the stat. 1 Vict. c. 26, s. 29) be construed
to be intended to take effect on an indefinite failure of issue,
though there may appear to be no reason for supposing but
that both moieties were intended to go over in the same
event.
A testator gave the undisposed of income of his personal
estate, and the rents of his real and leasehold estates, to his
daughter, for life ; and, after the decease of his wife and
daughter, he gave the residue of his real and personal estate
to trustees, upon trust to sell, and pay one moiety of the
produce to the issue of his daughter, equally between them,
to be paid at 21; and if only one child, then to such one
child; and, in default of such issue, he gave the said moiety
unto and amongst all his nephews and nieces who should
be living at the decease of his daughter. And, as to the
other moiety, after the decease of his wife and his daughter,
without issue, the testator gave the same to his trustees, in
trust as therein mentioned. Lord Langdale, M. R., held
that the gift over of the first moiety was not too remote, as
the use which the testator had made of the words "only one
child," and "such only child," showed, that, by the word
"issue " in this clause, he meant " children;" and that con-
struction was strengthened by other expressions. But His •
Lordship held, that the gift over of the other moiety was
too remote : for, as the testator had made a distinct gift to
the issue, and had explained "issue" to mean children in
the first clause ; whereas he had done neither in the second;
the Court could not, upon any safe principles, imply the
gift to issue or children, where it was omitted, or give to
the word issue the meaning of "children," without an ex-
planatory context, or any reference to a prior limitation.
In a case, however, where a testator gave to each of his
two illegitimate sons, a sum of money; but, in the event of
the deatli of either of them, before 21, and without issue,
his share to go to the survivor ; but, in the event of both
dying without issue, then over ; Lord Erskine, C, held, that
the ultimate limitation was not too remote : for, on the au-
thority of Shepjiurd v. Lessingham, Amb. 122, and other
cases, if a preceding limitation over is made to depend on a
dying without leaving issue living at the death of the person
dying, the same construction is to be given to the words
"dying without issue" generally, on which a subsequent
limitation is made to depend, the intention appearing the
same, though the limitations arc differently expressed for the
sake of brevifv.
II. 17. i.] OF EXECUTORY INTERESTS. [§549—552. [ 27S ]
519 IX. Where property is ''(lcvisccl(/i) or 'be- jx. \\'lipro
qncatlicd(/) to a person iiidefuiitely or otherwise, i o^jj i
with a hmitatioii over, if he dies under a certain age without |„-,,|,f.,iy
issue; the words importing a dying withotit isstie, evidently is limited
refer to a faihue of issue at his death, instead of denoting over on
an indefniite faUure of issue. death undi-r
a certain age, without issue.
A testatrix devised to her grand-cliihh'cn, as tenants in Toovcj/ v.
common ; but, in case of tlie death of either of them, under lUixscit, 10
age, and without leaving issue, then over. It was held that l^ast, 400.
the testatrix could not have contemplated an indefniile
failure of issue at any remote period ; because, she only
looked to a period while her grand-children were underage.
And that, on the authority of Fro'j;morton v. Holiday,
3 Burr. IGIS, and Doe v. Cundall, 9 East, 400, tlie grand-
children took the fee, with executory devises over, if any of
them died under 21, and without leaving lawful issue Hving
at the time of their respective deaths.
550 X. We have ah'cady seen that where a testator X. Whore a
devises over an estate in cnsc the prior taker should ''(-'viso over
die under a certain age, or without issue, or in case he should '^."". ''''^'f'
the within any other limited period, or witiiout issue; the }^''j"" '! '"""
word or is construed and, so that the failure of issue is held '' l"'riod,
to be a faiku-c of issue livnig at his death. (8 235—240.) f"" ^^'"''^1^/
° ^^ ' issue, and
or is construed and.
551 XI. And ''the words importing a failure of XI. Where a
issue, are construed to refer to a failure of issue at devise over
death, where the devise over is in case the ]nior taker should is on the
not live to attain a certain age, or should live to attain such I'*"'*^^" t^'l^ci's
age, and should afterwards die without issue. (Ar) These ^'<^"^*'> iinder
words do not denote an indefinite failure of issue so as to ^ccitainage,
raise an estate tail by implication; because, there is no ap- °\*^" *'^
parent intention that the issue should take in the event of, \,*^^"^1'
,.,.. L.i- ir,i death wiih-
his having issue, but dymg under 21. ,,, • ,_
~ ^ C5 out IS.SUC,
552 XII. And where property is devised to a ])erson ^11 vyi '
and his heirs, with a devise over if lie should die ^ , " ■
. \\ <l('vi.'^c over
without leaving issue, or having such issue, such issue should j^ -^^^ jj^^
die under 21, withoiU issue; it will apj)ear, from the ninth of " r o^^g 1
the foregoing rules, that tiie failure of issue which is meant, pyent of
is a failiH'e of issue of the children of the prior taker, at the d,.a(h with-
death of such children, under age; so that the limitation oi,t ic^vin''
over, instead of being a remainder after an estate tail, or an issuc,orhav-
executory limitation void for remoteness, is good as a ing such
(//) Thrvstout d. SmaU v, Denny, 1 Wils. 270; as stated, Fearne, 401, 470.
\i) See Kirhpalricic v. KirlqxttricI,; 13 Ves. 47G ; stated § .'J4>!.
(A:) Glover V. xMonckton, 3 Bing. 15, us cited, 2 Jannan's rowell on Dcv. 573.
Vol. II.— 29
[ 280 ] II. 17. i.] AN ORIGINAL VIEW [§553—555.
issuejofsuch conditional limitation, by way of executory devise, to take
issue dying effect, at the furthest, within a life in being and 21 years
under a cer- from tiie death of the testator,
tain age without issue. — Sec § 148-9, 706.
Beachcroft A testator devised an estate to .'?. and his heirs, &c., for
V. Broome, ever; and, if he should die without having settled or disposed
4 D. & E. of it, or without leaving issue of his body, or having such
441. issue, such issue should die under 21 without issue, and his
son IV. should then be dead, without issue ; then, over.
Lord Kenyon, C. J., said, that he should have thought it
extremely clear that the limitation over might have taken
effect as an executory devise.
XIII. ^^'here XIII. If 'personal estate is given to two or 553
a bequest more persons for life, with a limitation over to the
over is to the survivor or survivors, (simply, witliout adding the words,
survivor, executors, administrators, and assigns,) in case of the death
without of any or either of such persons witliout issue ; the presump-
words of li- {\ow^ prima facie, is, that the word survivors is used in the
mitation. plain and obvious sense, as meaning such of those persons
as should ^e living when any of them happened to die, and
not as simply equivalent to the word " others;" and that the
testator did not not refer to an indefinite failure of issue;
but that he referred to the dying of any of them without
issue living at their death. (/)
XrV Where ^I^- ^^^ '"where the words executors or ad- 555
benuest ministrators, are added to the word survivor, that
over is to word furnishes no such presumption that a failure of issue
the survivor ^^ death was contemplated. (m)
with words of limitation.
[ 281 ] A testator charged his real estate with two legacies, in
Massey v. favour of E. P. and V. P. ; and, in case E. P. or V. P.
Hudson, 2 should die without issue, then, the whole of the two legacies
Meriv. 130. was to be paid to the survivor, his or her executors, admin-
istrators, or assigns. E. P. died without issue, in the tes-
tator's lifetime. Sir W. Grant, M. R., held, that the bequest
over was too remote ; and therefore, that the legacy had
lapsed. His Honour observed, that a bequest to ^., after
the death of ^., did not import that t/?. must himself live to
receive the legacy, but that the interest vested at the death
of the testator, and was transmissible to t^.'s representatives,
who would take whenever B. died; and that, for a similar
reason, a bequest to ./^., in case B. should die without issue,
was void for remoteness. That it was otherwise, however,
(/) Ranelagh v. Ranelagh, 2 M. & K. 441. See also Massey v. Hudson,
2 Meriv. 130, stated § .55.). Hughes v. Sayer, 1 P. W, ,534; as stated Fcarne,
472.
(m) But see Nichols v. SJcinncr, Chanc. Prec. 528 ; us stated, Fcarne, 472.
II. 17. i.] OF EXECUTORY INTERESTS. [§556—559. [ 2S1 ]
with a bequest over to the survivor of two persons; for,
there, primd facie, it would be presumed that the survivor
was meant personally to enjoy the legacy. But that the
addition of the words executors, &.c. excluded that presump- ^y •\yKpj.Q
property is
556 XV. "Where a testator bequeathed personal bequeathed
estate to his two daughters, and directed, that upon to two sisters,
the demise of either of them, without issue, the share of her ^ith a limi-
so dying should go to her sister, without adding the words, tation over,
and to her executors, &c. ; the limitation over was construed on the death
as if it were a limitation to the " survivor ;"(n) because the ofone with-
dying of one without issue, seemed to mean a dying with- out issue, to
out issue in the lifetime of the other. her sister.
557 XVI. "Where the words introducing a limita- XVI. Where
tion over of personal estate, put the case of the it is directed
prior taker's dying without issue indefinitely, but the testa- that property
tor in limiting it over, adds that then after his (the prior shall go over
taker's) decease, the property shall go over; in such case the a^er the
failure of the issue is construed to be a failure of issue at the P^'ior taker's
prior taker's decease. (o) decease.
XVII. PAnd it has been held, that where a testator de- y^j-, £?,^ J
vises to a person for life, and no longer, and after his decease ^|;ii;**^ here
to such of that person's issue as he should by will appoint ; ^ 'nirtation
and m case he should die without issue, then over, the fail- ^^j'^j^'^'^*^'
ure of issue which is meant, is a failure of issue at his death ; bcnuest^o
because, it is to be intended such issue as he should or might g^^^j^ of the
appoint to. (;?) nrior taker's
559 XVIII. Where land is devised to a person and jgg^je j^g ^g
his heirs, with a limitation over on failure of issue, shall appoint
and all the ulterior limitations dependent upon the failure of to.
issue, are for life only; the failure of issue is construed to XVIII.
mean a failure of issue at the death of the prior taker, the Where all
person whose issue is spoken of; because it is not likely, in the ulterior
such case, that the testator was contemplating an indefinite limitations
failure of issue, as that might, and most probably would not are for life
happen until very many years after the death of the objects only.
of the ulterior limitations. But it is otherwise where some
only of the ulterior limitations are for life.
In Barloiu v. Salter, Sir W. Grant, M. R., said, "Wliere Barlow v.
nothing but a life interest is given over, the failure of issue f>^ilter, n
must necessarily be intended a failure within the compass }_^^- '^^'^•
of that life. But where the entire interest is given over, the See also Doe
mere circumstance that one taker is confined toalife interest, A f^^\^n
furnishes no indication of an intention to make the whole i^'^TT'oig!
(n) Mackinnon v. Peach, 2 Keen, 555. But see Green v. Rod-, Fitzgibb. 68 ;
as stated, Fearne, 481. And see Fearne, 483.
(a) Pinhury v. Elkin, 1 P. W. 563 ; as stated, Fearne, 473.
(/j) Target v. Gaunt, 1 P. W. 432 ; as stated, Fearne, 472.
[ 2S2 ] II. 17. i.] AN ORIGINAL VIEW [§560—562.
statcLl S'tGS Vjoqnost depoiid on the existence of tlml person at the time
a' 1 p ' wlien the event hap]>en.s on wliich the; hinitation over is to
Fe-irnc 488- ^^^'^^ ell'ect." And tliis latter point was decided by the same
9 ' ' learned Judge in the case of Boehm v. Clarke.
Boehm v. Clarke, 9 Ves. 580.
XIX Where XIX. ''The same construction is adopted, where, 560
the deviso on faihu'e of issue, tlie property is devised in trust
over is for for payment of debts(y)-, because, it could not be supposed
jKiyinent of that the testator would provide for the payment of debts, on
[ 283 ] an indefinite failure of issue, which might not happen for
debts. two or three Innidred years.
XX. Where XX. Where property is devised to a person and 561
tho estate is his heirs, with a limitation over of the same on
subject to failure of his issue, subject to the payment of a sum of
the payment money, to be disposed of by his will; such failure of issue
of a sum to jg construed to be a failure of issue at his death,
be disposed ^ testatrix devised to M. H. and her heirs for ever; and,
of by the jj-, ^^^q ]\,j jj should die, and leave no child or children,
will of the then, she devised to J! i?, and her heirs for ever, paying
prior taker, jooo/. to the executors of M. H., or to such person as she
Do€i\. Smilh should by will direct. It was held that " child or children,"
V. Webber, j-,ieant issue; but yet that M. 11. took a fee, with an execu-
1 I'.ar. & j^j.y jgyisQ over, which was not too remote ; for the pay-
Aid. / 13. lYient being a personal provision, and to be made to a person
or persons appointed by M. 11. , the event contemplated
seemed to be a fliilure of issue at M. IL's death, and not an
indcflnite failure at any remote period.
Dor (]. Kin"- In another case, a testator having nn only son, and also a
V. Frost, '^ daughter who had several children, devised to his son, W.
Bar. & Aid. F., and his heirs for ever, all liis lands &c. ; and, if TV. F,
546. should have no children, child, or issue, the estate was, on
the decease of W. F., to become the property of the heir at
law, subject to such legacies as TV. F. might leave by will
to any of the younger branches of the family. It was held,
that IF. F. took a fee, with an executory devise over, in the
event of liis dying without leaving any children living at
his decease; because, the testator si)oke of the estate going
over "on the decease of W. F.; and it would have been
necessary to have given him tlie power of charging the
estate with legacies, if the will had given him an estate tail,
with the reversion in fee to him as heir at law.
XXI Where XXI. Where limitations in tail do not extend to 562
a tf;rm for ^^^ ^''t! descendants of a devisee, and a term created
raisiii" le<ra- for the sole purpose of raising legacies, is limited in default
ciesisTimitcd of such issue as are included in those limitations, but the
{q) See French v. Caddell, 6 Bro. Par. Ca. 59 ; and Wellington v. Welling-
ton, 4 Burr. 2165 ; as stated, Fcarnc 450, note {b.)
II. 17. i.] OF EXECUTORY INTERESTS. [§5G.3. [ 2S3 ]
legacies are not given till a failure of issue generally ; it will on tlio e.xpi-
bc presumed, that the legaeies were intended to be given on [ 284 ]
the same event on which the term is to arise; and that the ratldn of an
failure of issue on wliicli the legacies are given, refers to estate tail,
the failure of such issue as are inheritable under the prior and the lega-
limitations. cics are held
A teslatiix, having an absolute power of appointment ^'^ i "'^*^"
over the reversion in fee simple of certain lands, devised the °" same
reversion to c.'/ for life; remainder to t/?.'s first and other '^^'^" '
sons, in tail male ; remainder to ./7.'s daughter, in tail gene- -^*'^'**^ ^'•
ral; with cross remainders between them in tail; with re- ^'^. '
mainder, in default of all such issue, to trustees, for the term p'^^'/'ooy
of 1000 years, to raise and pay such legacies as she should "*'^'
thereafter give. And, in a subsequent part of the will, slie
bequeathed, from and after the decease and failure of issue
of ^J., certain legacies, the better to secure the payment of
which, she charged them on the reversion she had before de-
vised. In this case, there was no limitation to carry the estate
to the female issue of the sons; and, although the term
was limited " in default of all such issue," that is, such issue
as were inheritable under the prior limitations, yet the lega-
cies were not given till after " the failure of issue of Ji."
generally; and, as there might be female issue of the sons,
tlie bequest might not be capable of taking elfect until some
time after failure of the issue inheritable under the prior
limitations; so that, in fact, the bequest appeared to depend
upon an indefinite failure of issue of Jj., unsupported by
any express limitations co-extensive with the existence of
the issue of ,/!., and consequently seemed to be void, as
being too remote. IJut Sir John Leach, V. C, held, that the
legacies were well charged. And this decision was allirmed
by Lord Eldon.
5G3 XXII. Certain words which, in a will made be- XXII, En-
fore 1838, imported, or were construed to import, actmcnt of
an indefinite failure of issue, will now, when they occur in stat. 1 Vict,
a will made since the beginning of that year, be construed c. 2G, s. 29.
to mean a failure of issue at or before the death of the per-
son whose issue is relerred to. For, by the stat. 1 Vict. c.
26, s. 29, it is enacted, "■ that in any devise or bequest of real
or personal estate, the words ' die without issue,' or < die
witliout leaving issue,' or 'have no issue,' or any other [ 285 ]
words which may import either a want or failure of issue of
any person in his lifetime, or at the time of his death, or an
indefinite failure of his issue, shall be construed to mean a
want or failure of issue in the lifetime or at the time of the
death of such person, and not an indefinite failure of his
issue, unless a contrary intention shall appear by the will,
by reason of such person having a prior estate tail, or of a
preceding gift, being, without any implication arising from
[ 2S5 ] TI. 17. ii.]
AN ORIGINAL VIEW
[§564—565.
Rule of con-
struction.
The princi-
ple of this
construction.
Two co-ex-
isting yet in-
consistent
intents ;
namely, the
primary or
paramount
intent, and
[ 286 ]
the second-
ary or minor
intent, which
How the pri-
mary or pa-
ramount in-
tent is mani-
fested.
Compare
§ 523-4.
This con-
struction is
adopted
where the
prior limita-
tion is in fee,
such words, a limitation of an estate tail to such person or
issue, or otherwise : Provided, that this Act shall not extend
to cases where such words as aforesaid import if no issue
described in a preceding gift shall be born, or if there shall
be no issue who shall live to attain the age, or otherwise
answer the description required for obtaining a vested estate
by a preceding gift to such issue."
SECTION THE SECOND.
Cases of a Limitation over on an Indefinite Failure
of Issue of a Prior Taker , where there is no Express
Devise to his Issue.
Where a testator, after devising real estate to 564
one person, withoiU any express devise to the issue
of such person, makes a devise over to another on an indefi-
nite failure of issue male or female, or issue in general,
of the prior taker ; in such case, the prior taker has an
estate tail by implication, with a remainder over to the other
person.
This construction is adopted in order to effectuate 564a
the indirectly declared intent that the estate should
not go over till an indefinite failure of issue male or female,
or issue in general, of the prior taker.
For, as in the cases comprised in the thirteenth 564b
chapter, so also in those falling within the scope of
the present chapter, where there is a limitation over on an
indefinite failure of the issue of a prior taker, there are gene-
rally two co-existing yet inconsistent intents, of the same
kind as those which exist in the cases treated of in the thir-
teenth chapter; the one of which, namely, the secondary or
minor intent, is sacrificed, in order to give effect to the
other, namely, the primary or paramount intent. (See §
520—2.)
is sacrificed to the former.
This primary or paramount intent, in the cases 564c
treated of in the present chapter, is expressed or
necessarily implied in the limitation over on an indefinite
failure of issue of the prior taker, which amounts to a decla-
ration of an intent that the estate should not go over from
the prior taker or takers, till an indefinite failure of issue of
the person whose failure of issue is spoken of.
This construction is adopted, as well where the 564d
prior limitation is in words which would pass a
fee, as where it is indefinite, or expressly for life.
For, where the prior limitation is to the ancestor 565
and his heirs, it is only necessary to interpret heirs
to mean heirs of the body, disregarding the word assigns as
II. 17. ii.] OF EXECUTORY INTERESTS. [§56G— 5G8. [ 28G ]
mere surplusage, where it is added. Where tlie or indefinite,
566 prior hmitatiou is iiideihutc, the raising an estate or for h(c.
tail by implication, virtually supplies the want of
words of limitation, in the devise to the ancestor. Sec § 404.
567 And where the prior limitation is expressly for life,
the raising an estate tail by implication, merely
amounts at most to a sacrifice of a secondary or minor
intent for the purpose of effectuating the primary or
568 paramount intent of the testator. And, in all these
cases, it gives elfect to the general rule, that a Sec § 19G-9,
limitation shall, if possible, be construed as a remainder,
rather than as an executory devise. And it prevents the
intention of the testator from being entirely frustrated : for, Sec § 117-
if the limitation over were construed an executory devise, 127a, 148-
whether it were a limitation of a s|)ringing interest or a l-^8> '706,
conditional limitation, it would be void for remoteness: and '^^'^•
the maxim is, Ut magis vakat quain pereat.
A testator devised the rents and profits of his freehold Chapman «!.
and leasehold estate to his executors, until his daughters Schohs v.
should attain 21, in trust to improve the same, for the ad- Sc/ioles, 2
vantage and education of his daughters; and, as to the free- Chitty, 643.
hold and inheritance, he devised the same to his daughters
when and as they should attain 21, equally between them,
and their heirs, as tenants in common : provided that if both
liis daughters should die without lawful issue, then, over.
It was held that the daughters took an estate tail.
And where a testator devised to his nephew ; but, if he [ 287 ]
should die without male heir, then, over; it was held an Denn d.
estate tail in the nephew by implication. Slater v.
Again; a testator, after confirming his wife's senlcmeni Slater, 5J).
of part of his estate, devised the rest to his daughter and ^ ^- '^•^^•
only child, and her heirs; and he devised that part settled Doe tl. lYe-
on his wife, to his daughter, after the death of his wife ; "i^^e v. Ri-
and, in case his daughter should die without issue, he gave »'^'**' ~ P;
her a power of appointment over the whole ; and, for want ^ ^- ^'^'
of such issue and appointment, then, the same should go to
his own right heirs. It was held, that the daughter took an
estate tail.
So where a testator devised a messuage to his son, /., his Doe d. Ellis
heirs and assigns for ever ; but, in case /. should die with- v. Ellis, 9
out issue, then, he devised the same to the child with which l^^st, '682.
his wife was enceinte, his or her heirs and assigns for ever. Sec also Roe
It was argued that /. took a fee, determinable in the event v. Scott and
of his dying without leaving issue, and the word "assigns," Smart, as
and the word "then" were relied upon in support of that stated,
construction. But the Court held, that /.took an estate I'^^rnc, 473,
tail, according to Bricc v. Smith, 1 Willes, and the cases "<^^^ («)•
there cited.
So where a testator devised to his son and his right lieirs Tcnmj d.
for ever, a certain house &c., and also nine closes; which .Ijarv.
[ 2S7 ] II. 17. ii.] AN ORIGINAL VIEW [§568.
Agar, 12 closes, he thereby gave to liis son and his heirs for ever,
East, 252. upon this condition only, that he should pay to his daugh-
ter 12/. a year till she attained 21, and, after that age, pay
her 300/. ; and, for default of payment, she should enter
and enjoy the closes, to her and her heirs for ever; and
in case his son and daughter should both die without
leaving any child or issue, then over. It was held, that
the son took an estate tail, and the daughter an estate tail
in remainder, with a remainder over; such being plainly
the intention, and it being a rule, that if a devise over can
take eflect as a remainder, it shall not be taken to be an
executory devise.
RomUhj V. And where a testator devised to his brother //. ^S*., all
James, 6 his real estates, subject to the several devises in his will
Taunt. 263. afterwards mentioued. The testator then devised to his
brother's son, H. S., the younger, a certain estate; adding,
at the conclusion of his will, that in case H. S. and //. S.
[ 2S8 ] the younger should happen to die, having no issue of either
of tiieir bodies, then, he devised all his real estate to /. C.
and his heirs. It was held, that the last clause cut down
the estates of IJ. S. and IL S. the younger to estates tail ;
and that //. *S'. the younger took an estate tail, with re-
mainder in tail to //. 6'., remainder in fee to /. C.
Dansry v. So where a testator devised to his eldest son, Ii. D., and
(rriffit'/is, 4 his heirs for ever, all his manors &c., and personal estate ;
.Mail, vise Sl-I. but, if Ji. I), should die, and leave no issue, then, he gave
61. all his aforesaid manors and estates unto his son, fV. D.,
and his heirs; and, if he should die without issue, then, to
his son, E. C. D.; and in the like case, to his son, G. H.
D., and in like case to his son, /. D.; and, in failure of issue
from him, &c. The Court of King's Bench certified, that
7i. D. took an estate tail.
Doe Oi. Jones And where a testator gave his real estate to his wife, for
V. Oit-ens, 1 her life; and then, to be relinquished to his son J3. at her
B. & Ad. decease. And he directed, that if B. should die without
318. issue, that his real estate should go equally between his
daughters, M. and S., for the life of M., and at her death,
the whole to *S'. and her heirs. The testator also directed
that if B. should survive his mother, he should pay S. 51.
withi)! twelve months after his mother's decease. It was
Sec § 559. held, that 7^. took an estate tail, with a remainder over.
Bailey, J., observing, that if life estates only had been de-
vised over, Boe v. Jeffery might have applied, and the
terms "die without issue," might have been confined to a
failure of issue at ^.'s death, that is, if no distinction were
to be insisted upon between "dying without issue," and
"leaving no issue." But, in the present case, the inheri-
tance was given to <S'., and would have passed, though M.
had died in the lifetime of B.
II. 17. iii.J OF EXECUTORY INTERESTS. [§5G9. [288]
And so where a testator devi.scd lands to trustees and Doc H. C'a-
tlieir heirs, in trust to apply the rents to the maintenance o( <Jo'^(in v.
/, until siie should attain the age of 25, and afterwards in Jf'^irarl, 7
trust for /. and her heirs ; but, in case it should happen that y'- '^ ^'^^^
/. should depart tliis life without leaving issue, then he de- ^^^*
vised the lands to fT. and D. in fee. There were divers
trusts which rendered it necessary that the trustees should
taUe the legal estate in fee. And the Court held, that /., [ 289 ]
who died under 25. after sutfering a recovery, in which the
trustees did not join, look a vested equitable estate tail; and
that fV. and D. took equitable remainders ; and that such
equitable remainders were barred by the equitable recovery
sulfered by /.
And again, wlicre a testator devised lands to his son, J., MacInU v.
for life; but if J. should die without issue, not leaving any Weeding, 8
children, then, he directed that the lands should be sold, and Sim. 4.
the j)roceeds divided amongst his three other sons; and if
any of Ihem should die before J., then, that their shares
sliould be divided among their children. Sir L. Shadwell,
V. C, held, that J. took an estate tail, observing, that it is a
settled point, that whether an estate be given in fee, or for
life, or generally without any particular limit as to its dura-
tion, if it be followed by a devise over in case of the devisee
dying without issue, the devisee will take an estate tail.
SECTION THE THIRD.
Cases of a Limitation over on an Indefinite Failure of
Issue of a Prior Taker, ichere there is an Express De-
vise to his Issue, eo nomine,
569 I. Where there is an express devise to the I, Wjirrcilic
issue in general, or issue male or female, co )W7ninc, ancestor
interposed between the prior devise to the ancestor and the lakes an es-
subsequent devise over on an indefinite failure of his issue tate tail in
iu general or issue of the given description ; and the word possession,
issue, in the intermediate devise, would, according to the
first rule in the thirteenth chapter, be construed a word of
limitation, if there were no such devise over; of course the
addition of such devise over does not prevent the word issue
from being construed as a word of limitation, but operates
in aid of that construction; so that the ancestor takes an
estate tail in possession, as well under the first rule in the
thirteenth chapter, by analogy to the Rule in Shet/ct/'s
Case, and under the ct/ pres doctrine, as by implication
arising from the devise over on an indefinite failure of his
issue. Frankfin v.
A testatrix devised an estate to her grandson and the J,uy, 6 Mad,
issue of his body, and to the heirs of such issue for ever; 25'!*,
but, if her said grandson should die without leaving any [ 290 ]
\'oL. II. — JO
[ 290 ] II. 17. iii.] AN ORIGINAL VIEW [§570.
issue of his body, then, she devised the estate to her nephew
and his lieirs for ever. The grandson insisted that he took
an estate tail ; but the defendant contended, tliat the words
"leaving issue," were to be construed as leaving issue
Hving at his death. Sir John Leach, V. C.,held, that "leav-
Sce § 538-9. ing issue," as apphed to real estate, innported a general
failure of issue, and brought the case within the authorities
cited by the plaintiff, and that the whole will might be re-
conciled by construing the words "heirs of such issue," as
heirs of the body.
Murthwaite In another case, a testator devised to his tliree nieces,
V. Barnard^ equally to be divided between tiiem, share and share ahke,
2 Bred. & for the term of their respective lives; and, after their de-
Bing. 623. cease, he desired, that the lawful issue of them and each
S. C. nom. Qf them should have his or her mother's share for life, in
MJirtliwaite |j|,g nianner; and that, if either of his nieces should die in
^ ^9 n^'- ^''^ lifetime of the others or other of them, without issue,
^r '^'Q *^'^^ '^*^'" ^'^^^® should be shared by the survivors, for their
' lives, and afterwards by their issue. And, if all liis nieces,
save one, should die without issue, then, he declared his
will to be, that such surviving niece should have the whole,
for the term of her life; and, from and after her decease,
that her issue should have the whole, to hold the freehold
part to them, their heirs and assigns, as tenants in common,
and, if but one, to such only one, his or her heirs and as-
signs. And if all his nieces should die without issue, then
over. The Court of Common Pleas certified, that the nieces
took estates for life, with cross remainders between them,
for life, in the event of one or two of them dying without
issue ; and that G. B., son of one of the neices, took an
estate tail in remainder in his brother's third part, subject to
be devested in part by the birth of other children of his
mother ; and that he would have an estate tail, in the whole,
in the event of his being the only issue of the three nieces
living at the death of the survivor of them, no other issue
having been born. But the Court of King's Bench certified,
that the nieces took estates tail.
It is imma- ^^^ ^'i^ case supposed in the preceding rule, it is 570
terial, in the immaterial whether the expression, in the devise
r 291 1 over, is, "issue," indefinitely, or "such issue;" because the
'■ ^ word issue in the intermediate devise, in the supposed case,
suppose being construed a word of limitation, and therefore embrac-
, 'fh ' ^^^ ^'^ ^^^ descendants generally, or of the given description,
• • in infinitum, a failure of "such issue," is tantamount to a
the devise failure of " issue " indefinitely. (See § 543.)
over is " issue," or " such issue."
Denn d. A testator devised to N. W., for life, without impeachment
Webb V. of waste 5 and, after his decease, to the isiue male of his
II. 17. iii.] OF EXECUTORY INTERESTS. [§570. [291]
body lawfully begotten, and to the heirs and assigns of such Pucley, 5
issue male for ever; and, for default of such issue male, DLirn. At
then over. A^. fV. sufl'ered a recovery before he had any East, 209.
issue. It was held, that A''. IF. took an estate tail. Lord
Kenyon, C. J., observed, that nothing could be clearer than
that tlic first intention of the devisor, was, to give only a life
estate to N'. IV., but that his general intention was, that the
male descendants of A^. JV. should take the estate, and that
none of those to whom the subsequent limitations were
given, should take, until all the male descendants of N. JV.
were extinct; and that general intention would be best an-
swered by deciding, that A^. fV. took an estate tail. For, if
he took an estate for life, it would be dillicult to extend the
estate to the issue, to more than one son; and he conceived
that the eldest must have taken the absolute interest in the
estate. But that would defeat the devisor's intention ; be-
cause, if it descended to that one son, and he had died with-
out making any disposition of it, it would have gone to the
other grandsons of the devisor, the persons interested under
the subsequent limitations. But that, even if these words
comprehended all the male issue as tenants in common in
tail, that would not have answered the devisor's intention ;
because there were no words to create cross remainders
between them. The Court, however, held, that even if A'',
JV. were tenant for life, with a contingent remainder in fee
to his children, if he had any, and, if he had none, then a
contingent remainder over; still, all the limitations over
were destroyed by the recov'ery which destroyed the parti-
cular estate.
Where a testator devised to ^^. for life, without impeach- FranTc v.
ment of waste, and with a power of jointuring ; and, from Siovin, 3
and after his decease, then, to the use of the issue male of East, 548.
his body and their heirs; and in default of such issue, over. [ 292 ]
It was held, that ^'S. took an estate tail, according to Hoe v. Sec also Roe
Greiv, 2 Wils. 322. d. Dodson
Another case may be noticed in this place, in which a v. Greu', 2
testator devised to his wife, for life; and after lier decease, *^ '1^- ^y^'^
that the estate should be settled by able counsel, and go to ?f ^^^ ,'co.
and amongst his grandchildren of the male kind, and their '^"1' "'
issue in tail male; and, for want of such issue, upon his 'r> , ,?
female grandchildren. Sir Thomas Plumer, V. C, held, on * , g-g.
the authority of Bluckbiwii v. Slablcs, and Dodson v. Grew, ^^^ stu'ed and
2 Wils. 322, that a grandchild of the testator took an estate commented
tail male; though His Honor admitted, that this was an q,-, Fcarne
executory trust ; and that the Court, in executing such a 363-4.
trust, does not adhere to the formal words used by the ;siarshnU v.
testator, but will modify them so as to elfectuatc the real jiousficlJ, 2
intent. Mad* 160.
[ 292 ] II. 17. iii.] AN ORIGINAL VIEW [§571—573.
II. Whore II. Whore there is an express devise to the issue 571
(upon princi- in i^eneral, or issue male or female, eo nomine, iu-
ple) the an- definitely, or for life, or in tail, interposed between the prior
cestor woiiUl devise to the ancestor and the subsequent devise over on an
take an cs- indefinite failure of his issue in general or issue of the given
late tail in description ; and the word issue, in the intermediate devise,
lemauKicr. -^vo^jij^ according to the second rule in the thirteenth chapter,
be construed a word of purchase, if there were no such de-
vise over; the better opinion upon principle, though not
upon authority, would clearly seem to be, that the addition
of the devise over, does not prevent the word issue from
being construed a word of purchase, and the intermediate
devise from conferring a distinct estate upon the issue, unless
See § 583. the object of the intermediate devise is to create a perpetual
succession of life estates ; but yet, that it raises an estate
tail, by implication, in favour of the ancestor, to take effect
in remainder after the intermediate estate conferred upon
tiie issue.
Absurdity of Such would seem to be the better opinion upon 572
contrary principle ; because it would appear perfectly ab-
doctrine. surd to hold that the addition of the devise over, by the mere
force of implication, has the effect of annihilating an express
intermediate devise, which, but for such devise over, would
confer a distinct estate on the issue, and to maintain that
[ 293 ] the devise over has such an effect, although, by a different
construction adopted iu analogous cases, full effect could be
given to it in another way, which would completely accom-
See § 564a- plish the primary or paramount intent, denoted by it, of ad-
564c. milting all the issue, and yet without sacrificing the secon-
dary or minor intent, of giving the immediate issue an estate
by piu'chase.
Observations There are indeed decisions which support this 573
on the fact doctrine to some extent ; but probably these cases
that there would have been differently decided, if the construction
are decisions above mentioned, and the decisions bearing by analogy
in support of ypQ,-^ jjj^ point, had been suggested and sufficiently urged
the contrary ^pj^^ the Court. And experience has shown, as a learned
doctrine. author observes with respect to another question, "" that no
rule of construction, however sanctioned by repeated adop-
tion, is secure of permanence, unless founded in princi-
ple."(«)
Doe d. In one of these cases, a testator devised to JV. D., to hold
Blundford to liim during his natural life ; and, after his decease, to and
V. Applin, 4 amongst liis issue; and in default of issue, over. It was
D. & E. 82, held, in order to effectuate the general intent, that fV. D.
and observa- took an estate tail. This case has been sometimes considered
tions there- as showing that words of distributive modification do not
on.
(«) 2 Jarinan's Powell on Devises, 738.
II. 17. ill.] OF EXECUTORY INTERESTS. [§573. [ 203 ]
prevent llie parent fVoin takiiiG: an estate tail in possession,
but may be rejc^ctcd as repuQ;nant. And in support of tliis
view, it may indeed be uru:ed,that Bulier, J., remarked, that
that construction rendered it necessary to reject the words,
"and amongst." ]}nt, siMtins; aside the probability tliat
these words were merely added by mistake, currcnte cahnno,
it does not seem at all necessary to reject them : for, they
may fairly be considered as referring, not to a tenancy in
common, or a joint tenancy, but merely to the case of two
or more coheiresses or their representatives.
And in another case a testator devised a messuage to 7i. Doe <1. Cock
C, for the term only of his natural life ; and, after his de- v. Cooper, 1
cease, to the lawful issue of A*. C, as tenants in common ; East, 2'^Q.
but, in case A*. C. should die without leaving lawful issue,
then and in such case, after his decease, he gave the same [ 294 ]
to E. H. It was held, on the authority of Robinson v. Rob-
inson, 1 Burr. 3S; Roe d.- Dodson v. Grew, 2 Wils. 323; and
iJoe d. Cand/cr v. Sntith, 7 T. R. 531, that R. C. took an
estate tail, on the ground, that it was the general intent that
all his issue should inherit the entire estate, before it went
over. In the argument, no notice seems to have been taken Observations
of ^ the words, *' then and in such case, after his decease,"(d) on JJoe d.
taken in connexion with the distinction which, in cases of Coc^- v.
personal estate, is drawn between the words " without Cooper.
issue," and the words " without leaving issue," which are ^^^- § ''^^~>
the words used in this case. These several expressions seem '^'^^■y-
clearly to show, that the limitation over to IJ. If. was to
take etfect, not on an indefinite failure of issue of 7i'. C, but
in the event of his leaving no issue at his decease. And if
so, they do not show that the intention was, that all the
issue, i. e., all the descendants of R. C. should inherit the
whole estate before it should go over, so as to raise an estate
tail in R. C. by implication. And if, then, R. C. took a life
estate only, according to the express terms of the will, fol-
lowed by a devise to his issue, as purchasers, which, as being
indefinite, only gave them a life estate; what is the nature
of the limitation to E. 11.] It is not a conditional limitation; Sec § 148-
because, it was not to cut short the preceding interest of the 158.
issue of ^. C, before it would expire according to the terms
of its original limitation. = It would clearly seem to be an See § 12S-
alternative limitation : for, it would appear to be a devise of 130.
an estate for lite to A'. C , followed by two concurrent con-
tingent remainders ; namely, if R. C. should leave any issue,
then, to such issue as tenants in common ; but if he should
die witliout leaving any issue, then, to E. H.{c) But what-
{b) See Doe d. Kins; v. Frost, as stated, § 561.
(c) See Itockh'ti v. Mawhry, I Vcs. 142 ; Doc d, Dnry v. BiirnsaU, 6 D. ^k'
E. 30; and Doc d. (Jilinan v. Eliri/, 4 East, 313; stated § ");U).
[ 294 ] II. 17. iv.]
AN ORIGINAL VIEW [§574—577.
[ 295 ]
Ward V.
Bevil, 1
You. & Jcr,
512.
Observation
on Ward v.
Bevil.
See § 13.
III. Where
no estate tail
can be raised
in remain-
der.
I. Where
(upon princi-
ple) the an-
cestor would
take an es-
tate tail in
remainder.
[ 296]
See § 583.
Rules de-
duced by Mr.
ev^er may have been the nature of the Umitatioii to E. II., it
is conceived that if the words of the will above alluded to
had been pressed on the Court, they would not have held
that i?. C. took an estate tail by implication : for surely it
must appear that the alleged ground for such implication did
not exist ; or, even admitting that the words did denote an
indefinite failure of issue, and consequently that there was
ground for the implication of an estate tail, yet, that a dis-
tinct effect should have been given to the devise to the issue
as tenants in common, and an estate tail raised by implica-
tion in B. C, in remainder.
However, the same construction was adopted, even where
a testator devised a messuage to his son, during the term of
his natural life ; and, in case he should have issue, it was
his will that they should jointly inherit the same after iiis
decease. And all the residue of his property, real and per-
sonal, he gave to his son ; but in case his son should die
without issue, then, it was his will that the whole of his
property should be ascertained &c. It was held, that the
words in the first clause, taken by themselves, would give
the son an estate for life only; but that in consequence of
the subsequent words, " in case," &c., he took an estate tail
in the real estate, and the absolute interest in the personalty.
This is a strong decision, as the devise to the issue was in-
troduced by words of contingency prima facie importing a
condition precedent, though indeed it was a condition which
would have been necessarily implied.
III. Of course, if the issue were held to take in 574-5
fee by purchase, no estate tail could be raised by
implication in remainder. (See § 159, 165.)
SECTION THE FOURTH.
Cases of a Limitation over on an Indefinite Failure
of Issue of a Prior Taker, where there is an Express
Devise to his Sons, Daughters, or Children, eo nomine.
I. Where there is an express devise interposed 576
between the p.-ior devise to the ancestor and the
limitation over on an indefinite failure of his issue, and that
intermediate devise is not to his issue, eo nomine, but to his
sons, daughters, or children, indefinitely, or for life, or in
tail; the sounder construction, upon principle, if not upon
authority, would seem to be, that the words, introducing the
limitation over, raise an estate in him, by implication, in
remainder after the estate limited, by the intermediate
devise, to his sons, daughters, or children ; unless the object
of the intermediate devise is to create a perpetual succession
of life estates.
A learned and talented writer on the construe- 577
II. 17. iv.] OF EXECUTORY INTERESTS. [§578. [ 29G ]
tion of deviscs,(ri) has submitted tlic following propositions, Jarman from
as " plainly dcdiicible" from the cases : — i'"^ cases.
« 1st. That the words, in default of issue, or words of a
similar import, following a devise to children, in tail or in
/ec, mean in default of children. (c) This is free from all
doubt.
" 2dly. That these words, following a devise to all the
sons successively in tail male, and daughters concurrently in
tail general, are also to be construed as importing 5wcA issue,
even in the case of an executory trust. (/)
<' 3dly. That words devising the property over on a
failure of issue male, following a devise to the whole line of
sons successively, in tail male, are also referential to such ob-
jects ;(o-) but not, it seems, where such sons take for life
only ; in which case, they will raise an implied estate tail
in the parent. (/j)
"4tlily. That where there is a prior devise to a certain
number of sons only, in tail male, with a limitation over in
case of default of issue or issue male of the parent, an estate
tail will be implied in the parent, to carry it to the other
sons.(z)
" 5thly. That in the case of executory trusts, words im-
porting a dying without issue, following a devise to the first [ 297 ]
and other sons of a particular marriage, in tail male, will be
held to authorise the insertion of a limitation to the parent
in tail general, in remainder expectant on those estates. (A^)
<' Gtlily. That such words, (whether they refer to issue
or issue male) following a devise to the eldest son in tail,
will not be referable to such son exclusively, but will give
the parent an estate tail;(/) and where the devise was to
him and his heirs, these words were held also to cut down
his fee to an estate tail."
578 JVow admitting this to be the result of the then Observations
existing authorities, it is conceived that it would on these
be very unsatisfactory for the law to remain in such a state, rules.
(d) Mr. Jarman, in his Treatise subjoined to Powell on Devises, 551.
(e) Goodriglit v. Dunham, Doug. 764. See also Ginger d. fVhite v. White,
WiUes, 348.
( f) Blackborn v. Edgletj, 1 P. W. 600 ; Morse v. Marquess of Ormonde,
5 Mad. 99.
(g) BamfieU v. Popham, 1 P. W. 54, 760 ; 1 Eq. Ca. Ab. 183, 2 \ern.
427, 449.
(h) Wight V. Leigh, 15 V<^s. 464.
(i) Langley v. Baldwin, 1 P. W. 759; 1 Eq. Ca. Ab. 185, pi. 29; 1 Ves.
Sen. 26, S. C. ; Jlttorncy-General v. Sutton, 1 P. W. 754; S. C. in Dom.
Proc. 3 B. P. C. Toml. Ed. 75.
(A-) Jillnnson v. Cliiherow, 1 Ves. Sen. 24.
(/) Stanleij v. Lcnnard, 1 Ed. 87; Doe d. Bean v. HaJlcy, 8 T. R. 5.
[ 207 ] IT. 17. iv.] AN ORIGINAL VIEW [§579.
In those cases where the words "in default of issue," &c.,
arc, according to the first and second of these rules, and the
first part of the tiiird rule, not held to raise an estate tail hy
implication in the ancestor, but are considered as referential
to the objects before described, it is of course necessary to
supply the word " such," making the words " in default of
issue," to mean, in these cases, " in default of such issue:"
while, in the other cases, falling under the last part of the
third and the three following rules, the words " in default of
issue," are allowed to retain their unrestricted meaning.
What foimdation is there for this distinction? What is it
that authorises the Court to supi)ly the word " such," and
thereby restrict the meaning of the words, in the former
cases, and yet not in the latter? It would seem that there
is but one answer that can be given — it is mere unnecessary
conjecture, however probable it may be. It is true, that
there is a far greater probability that the word issue was
used by the testator as merely referential to the objects be-
fore described, in the cases falling under the iirst two rules,
and the first part of the third, than in the cases falling under
the latter part of the third and the subsequent rules. But
still this is evidently a mere question between different de-
[ 298 ] grees of probability, the highest of which comes far short
of moral certainty, necessary implication, or violent pre-
sumption. Nor is it the most probable of two or more
conjectures, founded in some measure upon the words of
the instrument, and made in a case where some conjecture
must be resorted to, in order to give eflect at all to the limi-
tations, ut res magis valeat quam pereat. On the con-
trary, it is a conjecture which controls and restricts the
words themselves, though the limitations would be capable
of taking effect without any such restriction.
The Teamed author above referred to, whose 579
work was published in the year 1827, before he
proceeds to submit the foregoing rules, observes, that "in
the present state of the authorities it is extremely dangerous
to hazard any general conclusions upon the subject." And,
even looking to those authorities alone, in connexion with
the preceding remarks, it would be too much to regard the
doctrine as perfectly settled upon authority, much less as
satisfactory upon principle. L'ut the fact is, that subse-
quent decisions have either overruled those cases which
construe the words "in default of issue," &c., as merely
referential ; or have completely unsettled the point.
Parr v. A testator devised real estate to A. for life; and, after her
Sivindds, 4 decease, nnto and equally between and among the children
Riiss. 283. of ^^., and, in case she shoidd die without leaving any law-
ful issue, then, over. Sir John Leach, M. R., held that .^.
took an estate for life ; willi remainder to her children, as
II. 17. iv.] OF EXECUTORY INTERESTS. [§5S0. [ 298 ]
tenants in common, for life ; remainder, by implication, to
A. in tail.
And where a testator devised to M. II. and A', //., in re- Franks v.
maindcr, during the term of their natural lives, share and Price, o
share alike ; and, in case either should die without leaving Bii'g. New
issue male of his body, then, to the survivor, during the Cases, 87.
term of his natural life; and if M. II. should (after the
deaths of the prior takers) die before A". //., leaving issue
male of his body ; then one moiety of tlic estate to the
first and other sons of M. II, successively, in tail male;
and, in default of such issue, to A''. //. for the term of his
natural life, and, after his decease, to his first and other
sons, successively, in tail male; with similar limitations of [ 299 ]
N. //.'s moiety, in case he should die before M. H.; and,
in case M. H. and A^. //. should both die without leaving
any issue male, or, such issue male should die without
leaving any issue male, then, to such person or persons as
should, at the death of the survivor of them the said iV. //.
and A^. //., be the testator's right heir or heirs. It was
argued, that, in the ultimate limitation, an indefinite failure
of issue was meant; and, that therefore A^. II., in whose
lifetime M. II. died without issue, took an estate tail in
liie whole. And the Court of Common Pleas certified
accordingly.
This decision would seem to be wrong. The ultimate Observations
limitation over is indeed postponed till an indefinite failure t)» Iranks
of issue ; but then, it appears to be postponed till an indcfi- ^'' "'"'c<^.
nite failure of issue of the sons, and not of M. II. and A: II.
themselves; and consequently, the limitation over merely
corresponds with, and is referential to, the estate tail express-
ly given to the sons. For, when it provides for the case of
i\L II. and A'! //. dying without leaving any issue male,
those words do not refer to an indefinite failure of issue;
the words issue male there do not mean all the descendants,
but merely the sons: for, if it meant all the descendants,
then there would be no sense in the latter branch of the limi-
tation over, providing for the case of such issue male dying
without leaving any issue male.
The Court, however, appears to have considered the limi-
tation over as amounting to a limitation over on an indefi-
nite failure of issue male of M. H. and A''. //. theinselves ;
and, as such, suflicient to raise an estate tail in A". //. by im-
plication, and not merely as referential to the estates tail
given to the sons. And hence, whatever may be its autho-
rity, it is opposed to the third of the foregoing propositions See § 577.
deduced from the cases by the learned author above refer-
red to.
580 Looking, then, to these two decisions, and to the Suggested
preceding remarks upon the previous cases, it result of the
Vol. II.— 31
[ 209 ] II. 17. iv.] AN ORIGINAL VIEW [§581—583.
preceding Avould seem that the authorities upon the point nrnist now
cases and re- be regarded as conflicting ; and that, in future, the Courts
marks. ought to adopt that construction which principle alone would
appear to suggest. And that construction, it is humbly sub-
[ 300 ] niitted, is the one which, in accordance with the recommen-
dation of Lord Redesdale, does "not rely on petty distinc-
tions which only mislead parties, but looks to the words
used in the will ',"(77?) that construction, which, instead of
allowing the estate to go over before a failure of issue, con-
trary to the express words, raises an estate tail in the parent,
so as to effectuate the testator's primary or paramount intent
of admitting all the issue, so far as the rules of descent will
permit, and yet does not sacrifice his other intent to give liis
sons, daughters, or children, an estate by purchase, but
raises an estate tail by implication in remainder after the
estate or estates so taken by the sons &c. by purchase.
Observations " I have from long experience, (says a learned Judge)
ofLord Chief been extremely fearful of adopting, as a system, a theory of
Baron llich- what may be the supposed intention of the testator. I am
ards on the perfectly persuaded, that that is not the just mode of collect-
intention of ing the intention of the testator. We must collect it from
testators. ^i^^ p^per itself."(n)
II. Wlicre 11. Of course ° if the sons, daughters, or children 581
there can be were held to take estates in fee simple, no such es-
no estate tail tatc tail could be raised by implication in remainder. (See
in remainder. § 159, 1 65.)
And if, after a prior devise to the ancestor, the 582
property is devised to his unborn sons, daughters, or
childreu,and their heirs, the words "in default of issue" &c.
of the ancestor wiU be construed to refer simply to the sons,
daughters, or children, instead of being referred also to their
heirs, and of being regarded as showing that the heirs meant
are heirs of the body,(r>) as they would where the property
is devised to the ancestor and his heirs, with a devise over
in default of issue, witliout any intermediate devise to the
sons, daughters, or children ; in which case, as we have
See §50-1, already seen, it is established that the word heirs means
'565. heirs of the body.
III. Whore III. If, as already intimated, the object of the in- 583
[ 301 ] termediate devise is to create a perpetual succes-
tho ancestor sion of life estates, it will be disregarded, and the ancestor
will take an will take an estate tail in possession,
estate tail in
possession.
(ot) In Jesson v. Wright, 2 Bligh, 51.
(n) Jlichards, C. B. in Driver v. Frank, 8 Taunt 484.
(0) Goodright d. Docking v. Dunham, Dougl. Rep. 251, or 3d cd. 264; as
stated, Fcarnc, 375.
II. 17. V.J OF EXECUTORY INTERESTS. [§584. [ 301 ]
A testator directed his trustees to pay and divide the Mortimer \.
rents, and profits, and interest of his real and personal ^^^>s/, 2 Sim.
estate to and amongst .i., B., C.,&c., [who were the illegi- -"^4.
mate children of il/. />.,] for their lives; and, after their de-
cease, to their respective ciiildren, for life ; and so to he con-
tinued, ;7fr stirpes, from issue to issue, for life. But, if any
of the said children of M. IJ., or their respective issue, should
die leaving no issue, then, the share of him or her so dying,
to go and be divided amongst the surviving brothers and
sisters, equally, for their lives, and among the issue of any
deceased hrolhcrs or sisters, according to the share their
parent would have had; and, for default of any such issue
descending from the said children of il/. D., then over.
The Vice-Chancellor observed, that besides the intention to
give life estates, tliere was an intention that the estates should
not go over until there was a general failure of issue; and
that that circumstance, according to Seaward v. fVil/ock,
and Jesson v. IVright, compelled him to hold that the chil-
dren took estates tail in the real estates. The decree also
declared that they had cross remainders in tail in the real
estate ; and that they took the leaseholds and personal estate See § 593.
absolutely. 593a.
SECTION THE FIFTH.
Cases of a TAmitation over on a Failure of Children onhj
of the Prior Taker, or on a Failure of Issue within a
certain Time.
584 Where the limitation over is to take eflect, not
on an indelinite failure of issue of the prior taker,
but on a failure of children only, or on a failure of issue
within a given time; there, the limitation over will not raise
an estate tail, by implication, in the prior taker, but he will
liave a life estate, with a contingent remainder over; or a S(^o § 117-
life estate, with a limitation over of a springing interest ; or l-'^^i 148-
a fee, with a conditional limitation over, as the case may be. 1^--
A testator devised to S. S'., her heirs and assigns for ever; L -^^^ J
but, as. S. should die leaving no child or children, lawful yj^^ r ,i i
issue of her bodv, living at the time of her death, then, over. i"'y"^ '„^'
It was held, that S. .S'. took a fee, with an executory de- „ c n i
vise over, and not an estate tan, wUh a remamder over. c..-^.
Lands were devised to a trustee and his heirs, in trust to <^^c'also
pay annuities to several persons; and, from and after their jHyni-et v.
decease, in trust for D., L., V., and .S'., (females) ; and, in jiolmcs, 1
case any of them should die leaving a daughter or daugh- Lev. 11 ; as
ters, then, the share of her or them so dying should go to stated,
such daughters as they should be in seniority of age. Pro- Fcnrno, 341.
vided always, that in case any of them tlic said /)., L., I'., Bcnnclt v.
and S.y should happen to depart this life witliout issue in Loire, 7
Bing. 5.35.
[ 302 ] II. 17. vi.] AN ORIGINAL VIEW [§585—587.
the lifetime of the said annuitants, then, that the share of her
or them so dying should go to certain other persons in suc-
cession. And the testatrix devised all the residue of her
estates to the said I). The Judges certified, that D., L., V.,
and S., took life estates; that the three daughters of D., L.,
and /"■., took life estates in remainder in their parents' shares ;
and that D. took the remainder in fee in the whole of the
premises.
SECTION THE SIXTH.
I, Where the Cases of a Limitation over on an Indefinite Failure of
person Issue of a Poison to whom no Express Devise is made.
whose failure j^ Where a testator devises to one person, after 585
of issue IS ^^^ indefinite failure of issue of another to whom
spolccn ot, IS ^^ express devise is made, but who is the heir apparent or
h 1ra\a"ent '^"^i^ presumptive of the testator, the better opinion seems to
or'presuinp- t)e, that an estate tail will arise by implication to such per-
tive and he son, whose faihu'e of issue is referred to, and consequently
take's an cs- that the interest to take efiect on that failure of issue, will
tate tail. not be a springing interest, but a remainder after an estate
See §117- tail by implication in the heir apparent or heir presump-
127a. tive.
Reasons for For, in the first place, the rule is, that a limita- 586
this con- tion shall, if possible, be construed as a remainder,
St ruction. rather than as an executory devise.
Sec § 196-9. Secondly, the construction ought, if possible, to be, iit res
[ 303 ] onagis valeat quam percat. And if the devise on an inde-
fini'te failure of issue, is an executory devise, it is void for
See § 706, remoteness : whereas, if an estate tail is raised, by implica-
714. tion, in favour of the heir apparent or heir presumptive, the
express devise is then good as a remainder.
Thirdly, supposing the devise to be good, as of course the
testator considered it to be; he, in effect, left the property to
descend to the heir at law and his issue, so long as there
should be any: can it then be right to refuse to imply an
estate tail in his favour, when, virtually, the testator inten-
ded and created one by postponing the devise till an indefi-
This con- ^^^^ failure of issue of the heir?
struction not It ^s true, that, p in the case of Lanesboroiigh v. 587
allowed in ^ox, the House of Lords refused to admit such an
Lanesbo- implication. (7?) But it was admitted in the case of Walter
rov^h V. ' v. Drew,{q) and also in the case oi Daintry v. Daintry.
Fox, but ad- There, a testator gave his only son an annuity, increasing
mittcd in at diflerent ages till 30, to be paid to him till he should
other cases, marry ; and, in case he should marry before 30, then he
Duintri) v. devised to him and the heirs of his body, all his real and
Daintri/, ,
Durn. &
Kast, 307. (/') Sec Fearnc, 417. (<?) Sec Fcarne, 477.
II. 17. vi.] OF EXECUTORY INTERESTS. [§588,589. [ 303 ]
personal estates; and if his son should die without leaving
issue of his body, then, over. The son attained 30, and did
not marry. It was held, that the son took an estate tail in
the real estates, and the absolute interest in the personalty;
Lord Kenyon, C. J., observing, that, according to the con-
trary supposition, if the son had lived to 30 without marry-
ing, and then married and had children, there would be no
provision for those who ought to have been the first objects
of the testator; but that there was sufficient to raise a devise
of an estate tail in the son, even in the event that had hap-
pened, of his not marrying before 30.
5SS II. Where, however, a testator devises to one n. Where
person, on an indelinite failure of issue of some tlie person
other person to whom no express devise is made, and such whose fail-
other person is not the heir apparent or heir presumptive of ure of issun
the testator; •" there, an estate will not accrue to him by im- [ 304 ]
plication, (r) "nor to his issue,(.9) and consequently the is spoken of
devise on an indefinite failure of his issue, is a springing is not the
interest, and void for remoteness. (See § 117 — 127a, testator s
-jrj^ \ heirapparcnt
589 An estate tail docs not arise in this case, because, °T P^<^"S"'"P-
an heir at law can only be disinherited by express *'^^' ^ j^^
devise or necessary implication; and nothing more than a °*^'' "° 'V'|^
probable, and not a necessary, implication arises in favour "^ '
of a stranger, from the postponement of a devise till a failure J^^^^^°^"^^
of his issue, since the testator 7?«r/y have postponed the de-
vise lor the purpose of allowing the heir at law to inherit in
the meantime, and not with the view of benefiting the per-
son whose failure of issue is referred to. Indeed, a case
may be put, where such an intention would be by no means
improbable; namely, where the heir at law is entitled to the
reversion or remainder in other property entailed on the
person whose failure of issue is spoken of; in which case, it
might be intended that the heir at law should enjoy the' pro-
perty which is devised on failure of such person's issue, as
long as, but no longer than, he should be kept out of the
entailed property. So that the third of the before mention-
ed reasons for raising an estate tail by implication, where
the person whose failure of issue is referred to is the heir
apparent or heir presumptive of the testator, does not apply,
where such person is a stranger. And though the other
reasons apply, yet they are overborne by the rule, that an
heir at law shall not be disinherited by any implication short
of necessary implication.
(r) 1 Jarman on Wills, 491. {s) Sec Fearne,449, 450.
this con-
struction.
[ 305 ] II. IS.]
AN ORIGINAL VIEW [§590—592.
CHAPTER THE EIGHTEENTH.
CASES OF A VESTED REMAINDER AFTER A LIFE ESTATE BY
IMPLICATION, DISTINGUISHED FROM CASES OF A SPRINGING
INTEREST.
I, Devise to
testator's
hcirapparciU
or presump-
tive, after
tlic death of
another to
whom no
devise is
made, gives
the former a
remainder.
II. A similar
devise to the
residuary de-
visee has the
same eflcct.
See § 117-
127a, 159.
III. But a
similar de-
[ 306 ]
vise to one
who is
neither heir
apparent or
presumptive,
nor residu-
ary devisee,
gives him a
springing
interest.
I. "Where a testator devises to his heir apparent 590
or heir presumptive, after the death of another to
whom no express devise is made, such other person will
take an estate for hfe by implication,(«) ^ miless the will
contains a residuary devise ;{l}) and consequently the in-
terest of the person who was heir apparent or heir presump-
tive, is not a springing interest, but a remainder after a hfe
estate. (See § 117— 127a, 159.) « The inference that the
testator intends to give an estate for hfe to the other person,
is irresistible ; as he cannot, without the groosest absurdity,
be supposed to mean to devise real estate to his heir, at the
death of the other person, and yet that the heir should
have it in the meantime, which would be to render the de-
vise nugatory.(c)
II. *! And, for the same reason, where there is a 591
residuary devise, and the testator devises particular
lands to the residuary devisee, to take effect, in possession, on
the decease of another person to whom no express devise is
made, such other person will take an estate for life by im-
plication :(^/) and consequently the interest of the other per-
son will not be a springing interest, but a remainder.
III. 'But where a testator devises to a person 592
who is neither heir apparent, nor heir presump-
tive, nor residuary devisee, after the death of ./^., no estate
will arise to j2. by implication ;(e) becausp '"it is possible to
suppose, that, intending the land to go to the heir during the
life of./?., he left it for that period undisposed of.(/) And
consequently, in this case, the express devisee takes a spring-
ing interest, and not a remainder.
(a) 1 Jarman on Wills, 465, 466. {b) lb. 474.
(c) lb. 466. (d) lb. 474.
(e) 1 Jarman on Wills, 465, As to the doctrine of implication
in certain other cases of unfrequent occurrence, see Mr. Jarman's
able observations, p. 467, &c.
(/) lb. 466.
II. irj.J OF EXECUTORY INTERESTS. [§593—595. [ 307 ]
CHAPTER THE NINETEENTH.
LIMITATIONS OF PERSONAL ESTATE, SIMILAR TO LIMITATIONS
VVniCII WOULD CREATE AN ESTATE TAIL IN REAL ESTATE,
ACCORDINC; TO THE TWELFTH, THIRTEENTH, AND SEVEN-
TEENTH, OF THE FOREGOING CHArTERS.
593 Chattels, wliether real or personal, cannot be Chattels can-
entailed, not being transmissible to the real repre- not be cn-
sentatives, as such, and not being within the statute De tailed.
donis, even if they were so transmissible.
593a Such being the case, ""it is a general rule, that General rule
where the words would raise an estate tail in real re.sultini;
estate, they will give the absolute property in person- h-om this,
alty."(^/) And therefore, I Bequests
593b I. ''Where personal estate is limited directly to, " „_ \j. „
or by way of executed trust for, a person and the „„,.,^„ ^„a
1 • /• 1 ■ t 1 • 11 1- • • 1 11 pel son, ana
heirs 01 nis body, in one unbroken limitation, the whole jj^^ \\c\xs, of
vests in such person himself (/;) j,ig bodv.
594 II. *" Where personal estate is limited directly to, |j Li,i-,"[t^.
or by way of executed trust for, a person for life, jj^^g {^ ^^
remainder to or for the heirs of his body; and such limita- f,-,i. ^ person
tions would, according to the rules laid down in the twelfth for Hfc, rc-
chapter, on the Rule in Shelley^ s Case, create an estate tail maindcr to
in the first taker or ancestor, if the subject were real pro- the heirs of
perty ; the entire interest in the whole vests in him,(c) '•even liis body,
though only the use, interest, dividends, or profits, are de- [ 30S ]
vised to him, and the chattels themselves to the heirs of his which would
body.(f/) create an es-
595 For, as the estate cannot be entailed, tlie heirs of f-'i^e tail in
the body cannot take by descent. And it was not ^'^^^ pi'o-
intendcd that they should take by purchase: for, the word P^i'ty.
heirs, unexplained, must be taken in its technical sense, as a Grounds of
word of limitation ; and, if the property were allowed to go the rule.
to the first person answering the description of heir, the
(a) Lord Eldon, in ChandJcss v. Price, 3 Vcs. 99, as cited, Fcarnc, 466, (A).
\b) Scale V. Scale, 1 P. W. 290, as stated, Fcarnc, 463.
(c) BrowncJicr v, Bagot, 19 Vcs. 574. Kinch v. Ward, 2 Sim, »5e Stu. 409,
stated § 474. Douglas v. Congrcve, 1 ncav. 59, slated § 477. Dod v. Dicken-
son, 8 Vin. 451, pi. 25 ; and Jiutlcrficld v. Butter field, 1 Vcs. 133, as stated,
Fcarnc, 401. Wchb v. Webb, 1 P. "W. 132, as stated, Fcarne, 493.
(d) Earl of Chatham v. Daw Tothill, G Bro. Pari. Ca. 450, as stated, Fcarnc,
464—5. fhccbridgc v. Kdburne, 2 \'cs. Sen. 233 ; and Garth v. Baldwin, 2
Vcs. Sen. 6-16; as stated, Fcarnc, 491—2.
[ 308 ] II. U).] AN ORIGINAL VIEW [§595.
whole interest must vest in him; and since it must vest
cither in such person or in the ancestor himself, it is more
See § 429- likely, that the primary or paramount intention of the testa-
448. tor, imported by the word heirs, would be circctuatcd, by
allowing the whole interest to vest in tlie ancestor; inas-
much as there would then be a greater probability, that all
who should from time to time answer the description of heirs
of his body, would enjoy the property, than if the whole
interest vested in tlie child or grandchild first answering such
See § 428. description. And besides, it is more likely that the testator
would wish the whole to vest in the ancestor, as he is the
sole ascertained attracting object and the groundwork of his
bounty, tlian iu the person first answering the description of
heir, who must be unascertained by and unknowu to the
testator, and only an object of his regard by reason of his
connexion with the ancestor.
Elton V. A testatrix devised her residuary real and personal estate,
Eason, 19 upon trust to apply the rents and profits for her son, during
Yes. 7-3. his life; and afterwards for the heirs of his body, if any;
and, in default of such issue, then in trust for her grandson
&c. It was argued, that the words " if any," had a peculiar
force in this case, tlie son being a lunatic. But the Master
of the Rolls held, that, even considering this as a mere dis-
[ 309 ] position of personalty, the son took an absolute interest in
the personalty, notwithstanding the words "if any," which
must always be implied.
Britton v. And where .^. directed 20,000/., which he had in the
Twining, 3 funds, to be firmly fixed, and there to remain, during the
Meriv. 17G. hfe of his wife, for her to receive the interest; and, after her
death, to be in the same manner firmly fixed upon PF. C,
to be so secured that he may only receive the interest during
his life ; and, after his decease, to the heir male of his body ;
and so on in succession to the heir at law, male or female ;
with a direction, that the principal should never be broken
into, but only the interest to be received as aforesaid; his
intent being, that there should always be the interest to sup-
port the name of Cobb as a private gentleman. Sir W.
Grant, M. R., held, that if this had been a devise of land, it
would have created an estate tail; and therefore TV. C.
took the absolute interest. The learned Judge observed,
that he did not conceive that the testator had any reference
to a future settlement ; and even if he had, that would make
no difference ; that there was nothing to show that the words
" heir male" were not used in their strict technical sense ; on
the contrary, the testator conceived he could make a per-
petual entail of the property, so as to make it pass from heir
to heir in succession, with a restriction on the power of dis-
position.
II. 19.J OF EXECUTORY INTERESTS. [§596, 597. [ 309 ]
590 111. IJiit, 'where llic word licirs would \>o roii- llf. Limita-
striied a word of purchase, if tlie subject of the tionstoorfor
huiitations were real estate, accorchng to the rules hiiddown « person's
iu Jhe twelfth chapter, on the Rule in Shelley^s Case ;(e) or '''<^^ ""h re-
'"whcre there are superadded words of limitation to the "^"'/"^*^''" '^
executors of the heirs ;(/) or where there are superadded j^''.'^"" *!^^.
words of liniitatiou which would carry the fee in real pio- l"-'"*'^ *^ *!
pertv, followed bv a limitation over in default of such issue, ' ■\ '
' • 1 • 1 1 1 „ ,1 I \\'j>il<l not
apparently uitended as an alteruativc ; or sany other words j- ^^^ -.
showing that the word heirs was not used in its technical ^^^^^^"^^ ^
.sense ;(,i,'-) the ancestor only takes a life interest; and the ^^^jj^j^ ^'^jl j^^
whole riMnaining interest vests in the issue, if there are any; ^^^^
and if there are no issue, tlic property reverts to the personal p^i-ty-^
re|)resentalivesof the testator, or passes to the objects of the
alternative limitation.
A testator gave a leasehold messuage to L. P., and to the Wilkinson
heirs of his body lawfully begotten, and to their heirs and v. South, 1
assigns for ever; but, iu default of such issue, then, after his D.&E. 555.
decease, to go to T. Jf., his heirs and assigns for ever. It
was held, that the limitation over Avas not too remote, Lord
Kenyon, C. .1., intimating that it was a limitation with a
double aspect. ,,,•,•, , IV. Disposi-
597 IV. \\here personal estate is devised or ue- ^j^^ j^ P^^^^^^j.
queathed either directly to or by way of executed ^^^ person
trust (Sec § 489) for a person and his issue, whether in one ^^^j j^jg j^.
unbroken limitation, or iu two limitations; and such limita- g^^^ which
tion or limitations would, according to the first rule in the would create
thirteenth chapter, create an estate tail in the ancestor, if the an estate tail
subject were real property ; ''the entire interest in the whole in real pro-
vests in him. (A) perty.
A testator gave all his real and personal estate to .Q. and Bonn v.
his male issue. For want of male issue after him, to B. and Penny, 1
his male issue. Sir W. Grant, JNI. R., held that .2. took the Meriv. 20.
absolute interest in the personal estate.
So where a testator gave 500/. slock to .S'. 7'., to receive ,|;/^,.„pw.
the interest, during life, and then, to her issue ; but, in case ^<^,„^,,.q/ y
of her death without issue, the said 500/. to be divided be- j^^i„fit 2
tween &.c. 7\ S. died without issue. Lord Langdale, M. ]{ecn, 57.
R., held, that she took the absolute interest under the g^e also
first words; and that the limitation over was void for re- Lyon v.
moteness. MicheU, 1 Mad. 473, asstated§529.
(e) Sec Peacock v. Spooncr, 2 Vcrn. 43, 195; and Dajforne v. Goodman, 2
Vern. 3G2 ; as stated, Fearne, 493 ; in wliich cases the term was not limited to
the prior takers for lile, but fur so many years as they should live.
( /■) Hodfreaon v. lius^rif, 2 Alk. b9, as staled, Fcarnc, 19 1.
(<() ^ci'Rcad V. iSndl, 2 Atk. 612, as stated, Fearne, 47 3, 494.
{/i) liut sec Kniirfii v. Ellis, 2 fho. C. C. 570; anil Wurman v. Seaman,
Fin. Chan. Kep. 279 ; as stated, Fearne, 490, (a), and 495.
Vol. 11.— 32
[ 310 J II. 19.] AN ORIGINAL VIEW [§597a, 598.
Gihbs V. Again ; a lestator gave what should be remaining of the
[ 311 ] residuary monies, the interest of which he had given to his
Tuit, 8 Sim. wife T. U., during widowhood, unto and equally among all
132. the daugliters of T. D., and their issue, with benefit of sur-
vivorship and accruer. Sir L. Shadwell, V. C, held, that
the issue of a daughter who died in the lifetime of T. D.,
took nothing; for, the testator spoke of the residue, as if it
would be uncertain, until the death or second marriage of
his widow, what the residuary estate would consist of; and
therefore he meant those only to take who should be in
existence when the property was to be distributed. [See
Halves v. Herring, M'Cleland & You. 295, stated § 655.]
Secondly, that the two surviving daughters took absolutely;
for, it would be very inconvenient tliat they and tlieir issue
should take simultaneously.
Turner v. And where a testator gave his residuary estate in trust for
Cape/, 9 iiis wife, for life ; and after her death, he gave the same to
Sim. 158. j-jis son and daughters, share and share alike, and their
respective issue ; with benefit of survivorship unto and be-
tween his said children, or their issue respectively. Sir L.
Shadwell, V. C, held, on the authority of Pearson v. Ste-
■phen, that the son and daughter took absolutely ; and not
for life only, witli remainder to their issue ; and that the
survivorship was to take place in the event of there being
a failure of issue of either of the children in the lifetime of
the widow.
V. Disposi- V. But where personal estate is devised or be- 597a
tion in favour queathed either directly to, or by way of executed
of a person trust for, (See § 489.) a person and liis issue, whether in one
and his issue, unbroken limitation, or in two distinct limitations, and such
which would limitation or second of such limitations would, according to
not create an (he second rule in the thirteenth chapter, give the issue an
estate tail in estate tail by purchase ; 'the ancestor only takes for life;(«)
real pro- ^^^ j^e whole remaining interest vests in the issue, if there
perty. ^^^ ^wy, and if there are no issue, the property reverts to
the personal representatives of the testator, or if there is an
See \ 128- alternative interest, passes to the objects of the alternative
136. hmitation.
[ 312 ] VI. Where personal estate is limited in favour 598
VI. Execu- of a person and his issue, by way of executory
tory trust in trust, (See § 489, 491) the same construction will be adopted
favour of a as that which is adopted in the corresponding case of real
person and estate, even though there may be a limitation over on an
his issue. indefinite failure of issue.
See § 5:31-2. ^ testator gave one third of his residuary personal estate
Stoncr V. ^^ j.^|^ niece, which he desired might be settled by his execii-
Curu-en, 5 ^^^^ ^^^ j.^-^ ^^-^^ niece, for iier separate use, during lier life,
Sim. 264.
(i) See Lampley v. Blower, 3 Atk. 398, as stated, Fearne, 473, 495.
II. HI.] OF EXECUTORY INTERESTS. [§599, GOO. [ 312 ]
l)Ut (0 devolve to her issue ul licr death ; and, failing issue,
then, to revert to Iiis iiopliew. This being an executory
trust, Sir L. Shadwell, V. C, directed a settlement to be
made to the niece for life, for her separate use; and, after
her decease, in trust for such of her children as should be
living at her death, and for such issue of children dying in
her lifetime as might be living at her deatli ; the issue of
any deceased child to take such share only as the deceased
child would have taken, if livin?; and, if there should be
no child, nor any issue of a child of the niece living at her
death, then in trust for the nephew.
599 VII. "^ Where personal estate is limited, either VII. Liniila-
directly to, or by way of executed trust for, (See § tionsovor on
489,491) a person indefinitely, or for life, with a limitation f" indefinite
over on an indefinite failure of his issue ; the whole interest f^^'b're of
vests in the ancestor.(/r) issue.
In this case, it is not intended that tlie property should go Grounds of
over, except on failure of his issue, but that his issue should the rule,
be benefited by it ; and as there is no direct gift to the issue,
to enable them to take by purchase, the nearest way of
eflTectuating the intention, is, to give the entire interest to
the ancestor, that they may have the benefit of the projierty,
derivatively, through him ; especially as the other intent of
the testator, that the property should go over on failure of
issue, could not have effect ; because the limitation over on
an indefinite failure of issue, except by way of remainder [ 313 ]
after an estate tail, is, as we shall see in a subsequent chapter. See § 700,
void for remoteness. 714. 714.
COO VIII. But, where the limitation over is on fail- VIII. Limi-
ure of children only, or on failure of issue within tations over
a given time, the ancestor will have a life estate, with a on failure of
limitation over in the nature of a contingent remainder, or children
with a limitation over of a springing interest; or the entire pnly^ or of"
interest, with a conditional limitation over. (See § 159, 's^"*^ within
117-127a, 14S-15S.) a given time.
A testator bequeathed the residue of his personal estate Stone v.
to // /)., for liis own use and benefit; and, in case H. D. Maule, 2
should die in the testator's lifetime, or afterwords, without Sim. 490.
having any child or children, then over. //. D., who was
an illegitimate child, survived the testator, but died without
having had a child. It was argued for the Crown, that the
words would create an estate tail by implication in real
estate; in which case, //. D. would have taken the per-
sonal estate absolutely, and the Crown would have been
entitled to it, as he died without issue. But the Vice-Chan-
cellor, after observing that the words were not synonymous
(k) See Fearne, 466, note (A), and 490, note (a) ; and Burford v. Lee,
2 Frccm. 210, as stated, Fcarnc, 4'=^0.
[ 313 J II. 20.] AN ORIGINAL VIEW [§601.
with the expression " without issue/' held that the gift over
took ctl'cct.
BraJshawv. And where a testator devised leaseholds iii trust for his
Ski/beck, 2 daughter, for life ; remainder to her two eldest sons, for and
Bing. New during the terms of their natural lives, as tenants in com-
Cas. 182. mon. And, in case his daughter should not have a son or
sons to attain 21, and of such sons dying without lawful
issue, then, to all and every the daughters of his daughter
&c. It was held that the sons took only for life, with limi-
tations over, and not a quasi estate tail ; Tindal, C. J.,
observing, that these words did not import a giving over
of the leasehold upon a general failure of issue of the two
sons, which would be an estate tail, but a dying without
issue under 21.
C ^^^ J CHAPTER THE TWENTIETH.
LIMITATIONS OP PERSONAL ESTATE TO OR IN TRUST FOR
THE PERSONS WHO SHALL FROM TIME TO TIME BE EN-
TITLED TO REAL ESTATES ENTAILED.
I Where ^- Where cloattels real or personal are either fiOl
such limita- directly given to, or directed to be held or enjoyed
tions are not by, the person and persons who shall from time to time be
by way of entitled to real estates which are entailed ; and there is no
executory direction for, or reference to the making of a future settle-
trust, ment or conveyance, for the purpose of securing the use of
See § 489, such chattels to such person or persons ; the chattels, sub-
491. ject to the life interests of the prior tenants for life, if any,
of the real estate, become the absolute property of the first
tenant in tail, on his attaining a vested interest in the real
estate, whether at his birth, or ''at 21,(«) or at some other
time.
Fordyce v. A testator devised freehold estate to his brother and his
Ford, 2 Vcs. wife, for their lives ; remainder to ,/?. and the heirs male of
536. his body; with remainders over; and he directed that cer-
tain leasehold premises should belong to the several persons,
in succession, who, by virtue of the will, should for the time
being be entitled to the freehold, so far as the rules of law
would admit. Sir R. P. Arden, M. R., held, that ./?. took
the leasehold absolutely ; it being clear that the testator
meant an estate tail in ^'2. as to the freehold, not knowing
he could put it in his own power; and he meant the
same estate, with the same succession to the same line of
issue, in the leaseholds, so far as the rules of law would
permit.
(o) Trafford v. Trafford, 3 Atk. 347.
II. 20.] OF EXECUTORY INTERESTS. [§G02— G05. [ 314 ]
Atid where a testator gave leasehold estates, in trust to Wcirc v.
pay the rents and profits to the persons for the time being Polhill, 11
entitled to n-al estate under limitations thereof in strict set- ^ es. 1J57.
tlement, with power to the trustees, at any time, with con- [ 315 ]
sent of the persons so entitled, or if minors, at their own
discretion, to sell and invest the produce in real estate to
the same uses. Lord Eldon, C, held, that the leaseholds
vested absolutely in the first tenant in tail on his birth ; and
that the power of sale was void, as it might travel through
minorities for two centuries.
602 II. But where such a disposition is made of H. Whore
chattels, by way of trust executory, that is, where die disposi-
there is a direction for, or reference to the making of, some ^'"" '^ '^y
future settlement or conveyance, for the pm-pose of finally ^^'''^y tJ^cxe-
and formally declaring the trusts, which do not appear to *r,"^°'.y ^'""^^•
have been so declared by the instrument containing such di- *^ ^ '
rection or reference; in such case, the chattels do not vest
absolutely and indefeasibly in the first tenant in tail, until
he attains the age of 21 years.
603 This distinction is only in accordance with the Distinction
distinction which has been made, in other cases, exhibited in
between trusts executed and trusts executory. these two
604 In the case of a trust executed, the trust being ^'"^^^ ^^ i"
finally declared by the instrument creating it, a accordance
Court of Equity can give the words no other force than that "'•''' die dis-
which they literally possess, in themselves, consistently with '"''^■|"^.'^
the rules of law ; for, in such case, the Court is not called "^? ^"
upon to frame new limitations, in order to carry out the " '
intention; but to act upon limitations or directions already '^°\'."
framed and subsisting. *.^'^' ^'^^'"'''
But, in the case of trusts executory, all that is done by ^*^"'
the testator or settlor, is, to intimate the mode in which he
wishes his property to be settled by some future settlement
or conveyance : and a Court of Equity is at liberty, and,
indeed, feels bound, to settle or convey it in that mode
which will best accord with the spirit of the party's
G05 directions. In the case of a trust executory, there
is not that degree of presum])tion that the party
has accurately expressed what he intended, which there is
in the case of a trust executed. And therefore, whether a
Court of Equity would have been justified in giving greater
etiect to the supposed intention of the party, in the case of
a trust executed, or not; there can, at all events, be no [ .'ilfi ]
doubt, that it is justified in carrying out his intentions, in
the case of a trust executory. And by not giving an ab-
solute interest in the chattels to the tenant in tail, before
21, the Court renders such chattels unalienable, in the
case of an executory trust, for the same length of time as
the real estate, and secures their transmission from one per-
[ 31G ] 11.20.] AN ORIGINAL VIEW [§G06— 613.
son entitled to the real estate, to another, as long as the law
will allow.
If a Court of Equity were not to give effect to GOG
executory trusts in this way, it would be an ano-
maly of the most arbitrary kind ; it would be refusing to
make a distinction between trusts executed and trusts exe-
cutory, in this respect, while, in others, a distinction is uni-
formly made.
Executory For this reason, executory trusts ought to he GOT
trusts shuulil construed in the manner above mentioned, whether
be coustrued ^\-^Qy ^re created by marriage settlement or arti-
accorduig 10 ^^^^^ q^ merely by will. But such a construction 608
the second ^\^q^^\(j^ ]^q adopted more especially in the case of
' . ,, marriage settlements or articles : for, there, the issue in
especially . =', ,, , . \ r \ • i
when created ^■^'^^'^^""sr are all purchasers, mstead of being volun-
bv marriage teers. , , ,
settlement or ^^ "^^ sometimes been thought that where the GOO
articles. disposition is made, not by a direct gift, but through
\ cift ^^^® medium of a direction that the chattels shall go to per-
throufh the ^^"^ sustaining a certain character with reference
mediiun of a ^o tl^e realty, the trust is a trust executory. It is 610
direction is true that Fearne uses the word directory, as syno-
not noces- nymous with executory, but, in ''his definition of a trust
sarily a trust executory, he only includes those which refer to the
executory, execution of a future settlement or conveyance. (/>>) Gil
And though an executory trust is necessarily di-
rectory, yet, a trust may be directory, and at the same time,
executed, where it is finally declared in the instru-
ment creating it. And, it may be asked, what 612
substantial difference is there, upon, principle, be-
tween a trust which is, and a trust which is not, directory
in its terms? If a testator gives a sum of money in trust,
and directs it to be equally divided among a given number
of persons; and there is no gift of the money to those per-
[ 317 ] sons, independently of the direction to divide the money
between them ; is not this the same thing, so far as the
present question is concerned, as if there were distinct gifts
of the respective shares in trust for the respective indi-
viduals ? Even where chattels arc bequeathed without the
medium of a trust, the legal right to them vests in the
executors, as much as it does if the executors are
directed to dispose of them. So that, upon prin- 613
ciple, as well as ujoon the indirect authority of
Fearne, in his definition of trusts executory, such directory
trusts as these, are trusts executed, and not executory, so as
to call for that kind of construction which trusts executory
in general receive.
{h) Fearne, 143.
11.20.] OF EXECUTORY INTERESTS. [§G14— G16. [ 317 J
614 In some cases the words " so far as tlic rules of The words
law will permit," have been inserted. And, in " so far as
one sense, «='Mhese,"as Lord Ilardwicke says, " are very il'<^ ri'l^-'s of
material words;" namely, as prechidnis: any inteiichnent '^')^,^^^'" P<^r-
contrary to the rules of law: "for," His Lordship adds, " it "J'^ P'-'--
is impossible to object that the testator had any intention f-'J'^'f- '^"y
contrary to the rules of law ; for he hath by these words ' _";^"'^''"
delivered Inmself from any nnputalion ot the j^^^^ •'
615 kind. "(c) l^it they have no force in enabling the '
Court to tie ur) the chattels for a longer time than ^^} ^f, ^
,.,, ,1, 1 ri I not enable
that for which they could be tied up, if these words were ^^^ ^^^^.^ ^^
omitted : for they iiupiy no more, in this view, than would ^j^ ^.j^^^^
be implied without them; and their meaning is capable of ^^i^ |-^^ ^^^
being satisfied by supposing them merely indicative that the lonrrer time,
testator was aware of the different natures of real and per-
sonal estate. (^Z)
616 Having said what appears to the author to be Cases,
the true doctrine upon the subject of this distinc-
tion between trusts executed and trusts executory, he now
proceeds to draw the reader's attention to the cases relating
to it.
Henry, duke of Newcastle, covenanted, on the marriage The Duke of
of the Earl of Lincoln, to settle leasehold estates, in trust jyetccastle \.
for such persons, and such or the like estates, &c., as far as [ 318 ]
the law would allow, as declared concerning real estate The Conn-
thereinbefore limited to the earl of Lincoln, for life; re- tess of Lin-
mainder to his first and other sons in tail male; remainder coin, 3 Ves.
to Lord Thomas Pelham Clinton, second son of the Duke, 387.
for life ; remainder to his first and other sons in tail male ;
with divers remainders over. The Earl of Lincoln died,
leaving issue a son, Henry Pelham Clinton, who died soon
after his birth, and a daughter, Catherine Pelham Clinton.
Henry, Duke of Newcastle, died, and was succeeded by his
only surviving son, Lord Thomas Clinton, who died : upon
which his eldest son, Henry, became Duke of Newcastle.
It was insisted, that, upon the death of the Earl of Lincoln,
his son, Henry Pelham Clinton, became entitled to the lease-
holds ; and that, upon his death, the Countess Dowager of
Lincoln became entitled thereto, as his personal representa-
tive. But Lord Loughborough, C, held, that, in cases of
marriage articles, where leasehold property is to be the sub-
ject of a settlement of freehold estate, and the limitations of
the freehold go to all the sons in succession; the settlement
to be made of the leaseholds, is to be analogous to that of
the freehold ; (3 Ves. 397) [/. e. analogous, not in terms.
(r) Gowcr v. Grospcnor, 5 Mud. 317.
(f/) Sec J'auirhan v. Burslem, 3 Bro. C C. by Belt. lUG ; and Lord Rcdes-
dalc's note, S. C. 101.
[ 318 ] II. 20.] AN ORIGINAL VIEW [§617—620.
but ill cllect ;] and that no person sliould be entitled to the
absokite property, unless he shall attain 21, or die under
that age, leaving issue male. {lb. .39^,) His Lordship ob-
served, that, admitting that if the subject of the articles were
freehold, and the articles were so drawn as to give an estate
to the heirs of the body of the father, it would be impossi-
ble that lie should be tenant in tail, but he must be reduced
to an estate for life; in parity of reasoning, it was impossi-
ble, in this case, to give a vested interest to a son upon his
birth. {lb. 398.) The decree directed the leaseholds to be
settled in trust for Henry, Duke of Newcastle, and his exec-
utors, administrators, and assigns ; but if he should die under
21, without leaving issue male living at the time of his
death, then, in trust for his brother, Thomas Pelham
The Covn- Clinton, in like manner; with similar limitations over. The
teas of Lin- case was carried by ajjpeal to the House of Lords, who
cobi V. The athrmcd the decree, with the exception of leaving out the
[ 319 ] limitationssubsequent to the word "assigns," in consequence
Jjuke of of the Dnke having attained his majority, whereby such
Newcastle, limitations became imnecessary.
12 Yes. 218. Qi-cat dilference of opinion existed, in terms at 617
Difference of least, in regard to this case, between Lord Lough-
opinion borough, who made the above decree, and Lord Ellenbo-
among the rough, C. J., Lord Eldon, and Lord Erskinc, C, wlio pre-
judges in sided when it came before the House of Lords,
that case. When the cause was heard, and previously to 618
f r^^q^^'*^"^ delivering judgment, Lord Loughborough is re-
T ]\ ported to have expressed himself as follows: "I lay no
^^ah °' §r<5at stress upon the words, 'as far as the law will admit;'
^•^"S • ]jLit I put it to you, whether, in the nature of things, there is
not a radical and essential difference between marriage set-
tlements and wills. The parties contract upon a settlement
for all the remainders. They are not voluntary, but are
within the consideration. The issue then, are all pur-
chasers." (3 Ves. 394.)
Observations On the other hand, Lord Eldon said, that there 619
of Lord was no difference in the execution of an executory
Eldon ill the trust created by a will, and of a covenant in marriage arti-
sarne case, clcs ; and that such a distinction would shake to their foun-
dation the rules of equity. (12 Ves. Jun. 227.) He ad-
mitted, however, that there is a distinction, if the will makes
a direct gift, and the articles contain a covenant to be exe-
cuted, {lb. 230.)
and ill Jer- And in Jervnise v. The Diikc of Northumbey'- 620
vo'iHc V. The land, 1 Jac. & Walk. 574, Lord Eldon said, if it
Duke (f was supposed, that he said there was no difference between
jSorthiim- marriage articles and trusts executed, he never meant to say
berland. so. And he further observed, that, in marriage articles, all
the considerations that belong peculiarly to them afford
II. 20.] OF EXECUTORY INTERESTS. [§621— G23. [ 319 J
•prinitl facie evidence of intent which does not belong to
executory trusts under wills. IJut that he took it, according
to all the decisions, allowing for that, an executory trust in
a will is to be executed in the same way.
621 Now, with regard to this difference in opinion, Mfjaning of
real or apparent, it may be observed that Lord the cx|.res.
Loughborough's meaning might be, and probably was, not sions used
that a diiierent construction, if the thing were res inte<J!:r(i, '^Y Lord
• T V 1
ougiit, on principle, to be adopted in a covenant to settle in -Liougnjo-
a marriage settlement, from that which would be proper in ''o^S".
an executory trust in a will; but that, even admitting that [ 320 ]
similar words to those in the principal case, had been con-
strued, in the case of a will, to confer an indefeasible vested
interest on the first tenant in tail, on his birth; yet that a
Judge, who dill not approve of that construction, was not
bound to adopt it in the case of a marriage settlement,
where, besides the mere argument of intention, there was
the additional ground, that the issue in remainder were all
purchasers ; whereas the issue in the case of a will are all
volunteers. Lord Loughborough did not say, or intimate,
either that he approved or disapproved of such a construc-
tion, in the case of a will; or that such a construction had
ever been made, in the case of an executory trust ; but
merely showed, that, whether such a construction had been
made, or not, in Foley v. Burnell, 1 Bro. C. C. 274, and
Vaitghan v. Btirslem, 3 Bro. C. C. 101, which were pressed
upon him ; still, a different construction might fairly be
adopted in the principal case, it being a case of a marriage
settlement, and not of a will.
622 Wliatever was Lord Loughborough's meaning,
however, surely it would only be right that a dif-
ferent construction should be made in the case of mar-
riage articles, if it were true that such a construction as
that above-mentioned had been adopted in the case of
wills.
623 But, supposing for a moment, (as will appear An exccu-
hereafter,) that no such construction has in fact tory trust by
been made, in the case of an executory trust created by will ought
ivill ; and that the matter is res Integra; it is humbly sub- not to be
mitted that such a construction ought never to be adopted, construed so
even in the case of a will. For, it is allowed, on all hands, ^^ to confer
that a Court of Equity has the liberty to mould the limita- ^" •"^lefca-
tions, so as to execute the intention as far as the law will .^'^ vested
permit, in the case of an executory trust, where a convey- 'j^^^^^^f °"
ance is directed — that the Court is not restricted to the '° !""^^ fj"""
technical operation of the very words themselves, as they ^'- , ■ ,'
stand, ni tlic case ot a trust executory, as it is in the case ot
a trust executed. And yet the construction which gives the
absolute property to the first tenant in tail at his birth, only
Vol. II.— 33
[ 320 ] II. 20.]
AN ORIGINAL VIEW
[§624.
And in fact
[ 321 ]
no such con-
struction of
an executory
trust has
been adopt-
ed.
Foley V.
Burnell, 1
Bro. C. C.
274,
■was not an
executory
trust.
Nor was
Vaughan v.
Burs/em, 3
Bro. C. C.
101.
[ 322 ]
Nor was
Carr v.
Lord Erroll,
14 Ves. 478.
ties up the property to the extent to which a trust executed,
couched in similar terms, would tic it up. (See Caj-r v.
Lord Erroll, 14 A'es. ITS.)
lint, when the cases are closely examined, the 624
fact seems to be that no such construction of au
executory trust has ever been made, even in the case of a
will. Lord Eldon thought it had in Foley v. Burnell, and
Vaiighan v. Burslem; but he appears to have fallen into a
misapprehensioi], in regarding those as cases of executory
trusts s])ecifically and properly so called, that is, of execu-
tory trusts which are opposed to trusts executed, and which
alone are the subject of the above distinction.
In Foley v. Burnell, the testator bequeathed plate and
other personal chattels, to be held and enjoyed by the seve-
ral persons who from time to time should be entitled to the
use and possession of the real estate, as and in the nature of
heir-looms; and Lord Thurlow, C, held, that the chattels
vested absolutely at his birth, in the first tenant in tail, who
died 14 days afterwards; and that his father, the tenant for
life, was entitled to them as his administrator. The cause
was reheard ; but the decree was alfirmed by the Lords
Commissioners, Lord Loughborough, Mr. Justice Ashurst,
and Baron Hotham ; and afterwards by the House of Lords.
But, in this case, there was no direction that any convey-
ance of the chattels should be made; and accordingly, Mr.
Justice Asluu'st treats the trust as a trust executed. "Where
the testator leaves it to the Court," says the learned Judge,
" the Court will protect the property, as far as may be : here,
he has taken upon him to be his own conveyancer."
So, in Vuughan v. Burslem, the testator directed tliat
chattels should go, as heir-looms, with his real estate, and be
held and enjoyed by the person or persons for the time being
entitled to his real estate, as far as the rules of law and equity
would permit ; and Lord Thurlow held, that the tenant for
life, as personal representative of the first tenant in tail, who
died six weeks after his birth, was entitled to the chattels.
But here again, there was no allusion to any conveyance;
and hence 'Lord P^llenborough, though he said he could not
reconcile this decision with the decree in the principal case,
yet treated the trust as executed, observing, that it was the
case of a testator executing his own purpose. (e)
And Sir W. Grant, M, R., must have considered it in the
same light, from what he says of the case of Carr v. Lord
Erroll, 14 Ves. 478. In that case, the testator directed that
all his plate &c., at his mansion house, should remain there,
as heir-looms; and devised ilie same to trustees, upon trust,
to permit the same to go together with the mansion, to such
(fO 1^ Ves. 225.
ir. 20.1 OF EXECUTORY INTERESTS. [§G25— G2S. [ 322 ]
persons as should from time to time be entitled to it, for so
long a time as the rules of law and ecjuity would permit.
Sir W, Grant held that the absolute interest vested in tlie
first tenant in tail, and, upon liis death under age, passed to
his personal representative. And His Honour said, tliat the
only difference between that case, and Vaiis^han v. Burshin,
was, that trustees were interj)Oscd in the former ; and that
there was nothing executory in the trust interposed ; and
therefore the question, whether there was any dilference
between an executory trust by a will and a covenant in
marriage articles, did not arise.
G25 The fact is, that Lord Eldon considered execu- Lord l-^Klou
tory trusts, as opposed to trusts executed, to com- supposed
prehend trusts in which the gift was made by way of direc- that dircct-
tion that the properly should be enjoyed by persons sustain- ory trusts
ing a certain character. His Lordship says, of Foley v. were sync-
Biirncll, that the clause being clearly directory, it was one nymous with
which a Court of Llquity would mould to the' purposes of ^^'^^^^<=*''y
the testator, upon its general principles. But it will have ti""sts.
already appeared, that these directory trusts do not belong
to those which a Court of Equity will attempt to mould, so
as to carry out the intention of the party to a more full extent
than would be accomplished by the technical operation of
the words themselves.
G2G Lord Eldon objected, that the decree in the prin- Objection
cipal case, did not accomplish that which it was ur^cd by
designed to accomplish; that, in fact, it did not tie them up Lo^-d Eldon.
as far as the law would permit ; for, the moment a son came
to the age of 14, he might (subject to the contingency of his
death under the age of 21, not leaving issue male.) bequeath
the leasehold estate; and if a son died under 21, leaving
issue male, that issue male would not take the leasehold
estate, as he would the real estate, but the leasehold estate
would be part of his general personal estate, which might [ 323 ]
go to his next of kin, and equally to the wife with them.
And in Bm-re/l v. Crutchlcy, 15 Ves. 553, Lord Eldon, C,
said, the diliiculty that always occurred to him, was, what
was to become of it if the party died under age,
62S leaving issue. But, Lord Loughborough gave an
answer to these objections, when 'he said, that it
was much more probable that a new-born child should die,
than that a .son should have a child, and live till very near
the age of 21, and then die. If, however, such an improb-
able event should happen, the intention to keep the real per-
sonal estate together would still be in a great measure effec-
tuated. (/)
(/) 3 Vcs. 295,
[ 323 ] II. 20.1
AN ORIGINAL VIEW
[§G29— 632.
Observations
on some
other re-
marks of
Lord Eldon.
[ 324 ]
Observations
of Lord Er-
skine.
Remarks
thereon.
Lord Eldon remarked, that by omitting the 629
limitations snbsequcnt to the word " assigns," as
above mentioned, a great deal of difTicnUy was removed:
for the decree [of the House of Lords] could not serve as a
guide to conveyancers, as to what is to be done under any
other circumstances than a tenant in tail in possession attain-
ing 21. And in Bin^reU v. Cruichley, 15 Ves. 553, His Lord-
ship said, he did not take the case to have decided anything
with regard to any case that might possibly arise, except
that precise case, when the Duke had attained 21.
Upon this, it is to be observed, that the decree 630
sufficiently establishes this point — that, in the case
of a covenant in a marriage settlement, of the kind in ques-
tion, the chattels do not vest in the tenant in tail absolutely
on his birth. For, Henry, Duke of Newcastle, who had at-
tained 21, was not the first tenant in tail under the settle-
ment. Henry Pelham Clinton, son of the Earl of Lincoln,
was the first tenant in tail ; and yet, as he died an infant, it
was decided by the House of Lords, that the chattels did not
pass to his personal representative, but belonged to Henry,
Duke of Newcastle, the second tenant in tail, though, as the
latter had attained 21, it became unnecessary to decide
whether they vested in a tenant in tail, at his birth, or on
the death of a preceding tenant in tail, subject to be devest-
ed, or whether the vesting was suspended until 21 ; and if
they vested at his birth, whether they were subject to be
devested simply in the event of dying under 21, or in the
double event of his dying under 21, without issue generally,
or issue male.
The Lord Chancellor, Lord Erskine, coincided 631
in the views of I^ord Ellenborough, in regard to
the propriety of the decree made by Lord Loughborough.
Lord Erskine, after saying that he found it impossible to
reconcile all the cases, observed, that a Court of Equity
should give a construction to an executory covenant of this
kind, agreeably to what would have been the direction of a
conveyancer consulted by the party. That if he would be
his own conveyancer, and create the estate, the Court had
no jurisdiction to alter that estate; but, upon such a cove-
nant as this, the Court had jurisdiction, under the authority of
Goiver v. Grosvenor; and it was reasonable that the intention
should be executed when the Court could see '\\..{g)
It is to be lamented that Lord Erskine should 632
have rested his decision on the opinion of Lord
Hardwicke, in Goiuer v. Grosvenor; a case in which the
terms of the will cannot be substantially distinguished from
those in Foley v. Burnell, and Vaughan v. Burslem; a
{g) 12 Ves. 238.
II. 20.] OF EXECUTORY INTERESTS. [§G33, 634. [ 32 1 ]
case, therefore, of a trust executed, and not of a trust execu-
tory; a case in which nothing was decided; and a case in
which the question was ahogether different from tiie point
at issue in The Countess of Lincoln v. 7'Ae Duke of New-
castle.
In Gower v. Grosveno7\ Sir liiciiard Grosvenor devised Gower v.
real estate to Thomas Grosvenor, for \\{ii\ remainder to his Gmsvenor,
first and other sons in tail male ; remainder to Robert Gros- 5 Mad. 347.
vcnor, for life ; remainder to his first and other sons in tail.
And he declared his will and mind to be, that his library,
&c,, should go as heir-looms, as far as they could by law, to
the iieir male of his family successively, as his real estate
was thereby settled. Sir Thomas Grosvenor died, without
ever having any issue. Lord Hardwicke came to no deci-
sion ; but he was of opinion, that the chattels were given to
Sir Thomas Grosvenor; and afterwards to his son, if ho
should liave any, but as he had none, to Sir Robert.
G33 Now, it must be observed, that here the ques- [ 325 ]
tion was between one tenant for life and another ; Observations
and consequently Lord Hardwicke's opinion has in reality thereon,
no bearing upon the question in T/ie Duke of Newcastle v.
The Countess of Lincoln, where the question was a ques-
tion between one tenant in tail and the representative of a
deceased tenant in tail, relating to the time when tiie chat-
tels vested absolutely in the tenant in tail. True it is, that
Lord Hardwicke said, that there was only a directory clause
to the executors; and that when a man makes use of words
of this sort, he does not make the limitation himself, but he
leaves it to the law to do it for him. l?nt His Lordship does
not say, that this was an executory trust expressly referring
to a future settlement or conveyance. And all that he
seems to have meant, is, that the testator had not made the
limitation himself, in direct terms, but had left it to the
operation of law, to mould an express limitation out of the
directions he had given, according to the legal import of
those directions, by giving the same effect to them, as to ex-
press limitations of the same legal import. In other words,
the learned Judge seems to have meant that whicli he had
just before observed, namely, that there were no express
words of devise ; and that it would be a very hard construc-
tion to call this an express gift or legacy to the party, on
purpose to defeat the intention of the testator, and though
Sir Thomas enjoyed them for his life, yet the inteniion
of the testator was, to have I hem go in succession. {lb.
349.)
634 Observations might be made upon other parts of Concluding
Lord Eldon's speech ; but it does not seem neccs- observations
sary to do so for the present purpose. From what has been on the cases
said it will probably be sulliciently apparent, that, notwitii- above no-
ticed.
[ 325 ] II. 21. i.] AN ORIGINAL VIEW [^G35— G38.
standing the objections of Lord Eldon,and the impossibility,
in the opinion of J^ird Ellunborongh and Lord Erskine, of
reconcihng all the cases; yet it is clear, upon the authority
of Mr. Justice Ashm't, Lord Ellenborougli, and Sir William
Grant, that the cases of Foley v, Burnell, and Vaiighan
V. Burslem, are cases of trusts executed; and that,
upon the authority of Lord J^oughborough, Lord 635
Ellenborougli, and Lord Erskine, as well as upon
principle, an executory trust of the kind in question, espccial-
[ 32G ] ly when created by marriage settlement or articles, ought not
to be construed so as to vest the chattels real or personal in
the first tenant in tail of the real estate, in an ab-
solute and indefeasible manner, at his birth. And 636
assuming, upon the authority of Mr. Justice Ash-
urst, J^ord Ellenborougli, and Sir W, Grant, and upon
principle, that Foley v. Burnell, Vuughan v. Bnrslem,
Carr v. Lord Erroll, and Gower v, Grosvenor, were cases
of trusts executed, while the case of The Duke of Newcastle
V. The Countess of Lincoln, was a case of an executory
trust, it would seem necessarily to follow, that the
latter case does not at all interfere with the former. 637
If the former cases are considered as trusts execu-
ted, according to the opinion of Mr. Justice Ashurst, Lord
EUenborough, and Sir W. Grant, all the cases are in har-
mony, and the whole doctrine is clear and consistent. But,
if these cases are considered as trusts executory, contrary to
the opinions of those learned Judges, then, the cases are
totally irrcconcileable, and the subject of the present chap-
ter, and in fact the whole subject of executory trusts, is
involved in the greatest uncertainty and confusion.
[ 327 ] CHAPTER THE TWENTY-FIRST.
WORDS APPARENTLY AMOUNTING TO A MERE ALTERNATIVE
LIMITATION, BUT IN REALITY CONSTITUTING A REMAIN-
DER; AND VICE VERSA.
SECTION THE FIRST.
%fl General Rule Suggested.
A SUBSEQUENT limitation, in doubtful cases, ought 638
Sec § 159, to be construed as a remainder or fj?iasi remainder,
1G8-I68b, rather than as an alternative limitation.
128, IGl.
II. 21.1.] OF EXP:CUT0RY interests. [§G3«^— G44. [ 327 ]
G39 A remainder or quasi remainder, as will appear
in a subsequent chapter, is ordinarily capable of
operating as an alternative limitation, in case of the non- Sec § 6G'J.
vesting of the prior interest: Avhcreasan alternative limitation
can never operate as a remainder or (/nasi remainder; and See § 130.
yet, it may be clear that the testator did not intend that the
subsecjuent limitation, wiiich is capable of taking elfect as a
remainder or quasi remainder, should entirely fail, merely
because the prior limitation had once vested, though merely
for a moment.
G40 On the contrary, in all cases where the words
do not clearly constitute a mere alternative limita-
tion ; and there is no indication, in any other part, that they
were intended to create a mere alternative limitation ; and
where the prior limitation does not carry the fee in real pro- See § 159,
party, or absolute interest in personal property, and conse- 1G5.
quently the subsequent limitation can operate as a remainder
or <7i/<75i remainder ; there, it would appear clear that the
testator intended that such subsequent limitation should be
allowed to operate as a remainder or quasi remainder,
when it could not operate as an alternative, in the events
that happened.
641 For, first, where such subsequent limitation is
followed by a still more remote limitation, it can r 32s ]
luirdly be supposed, that such more remote limitation, was
intended to exclude the less remote limitation, in one event,
when, in another event, it would have had to await the ex-
piration of the less remote limitation: those who were the
prior objects of the testator's bounty, in the one event, would
surely be the prior objects in the other event, wiicn that
event could have no connexion with or influence upon the
testator's preference of the objects of the less remote limita-
tion to the objects of the more remote limitation.
G 12 And. secondly, where such subsequent limitation
is not followed by any other ulterior limitation, and
consequently it is then a question between the person claim-
ing under it, and the heir at law, or the person or persons
entitled to the undisposed of personal estate, the better opin-
ion would seem to be, that, even in this case the subsequent
limitation should be allowed to operate as a remain-
G43 der or quasi remainder. It is true that the heir
can only be disinherited by express words or neces-
sary implication. But it was said by the Lord Chief Baron , ^- .
in Toldervij v. Colt^ and, with the above qualification, truly p ,■ ' jj.,^
said, that " the doctrine has long been exploded that the
heir at law has any particular privilege or favour from the
Court." "What he has (added Mr. Baron Aldcrson) is a
c\Qi\r primd facie title, which you may show to
Gil have been taken away." In the case supposed, See § 63?.
[328] II. 21.ii.] AN ORIGINAL VIEW [§645—647.
there are express words : but then those words are am-
biguous, and the Cou/t,must lean one way or the other.
Must it lean in favour of the heir, who does not seem to
have been an object of the testator's regard, and against the
person who, in one event at least, was clearly intended to
take, and who would seem, judging a priori, to be equally
an object of the testator's bounty, in the other event? The
observation of the Lord Chief Baron, approved as it evident-
ly was by the other learned Judge, would seem clearly to
negative this ; and numerous cases in which wills have been
so construed, as to disinherit, prove the truth of that obser-
vation.
No rule such as that above suggested seems to 645
have been laid down by authority; but there have
Sec § 605. been cases in which the principle has been virtually acted on.
[ 329 ] SECTION THE SECOND.
Devise to a Certain Rules of a more Specific Character.
person, and ,,, i . . • i • i ^ i . ^ , ^
to his issue Where real estate is devised to a person, and to 646
or his sons' ^^^ issue, or his sons, daughters, or children, with
daii'rhters or ^ limitation over on his death without issue, or without
children, ' leaving issue, or for want, or in default, or on failure of
Avith a limi- issue, or of such issue, or of sons, daughters or children;
faiion over and it is desired to ascertain whether such limitation over is
on his death a remainder, or an alternative limitation : it is necessary, in
without the first place, to determine what estate the ancestor or his
issue, &c. issue take. And,
I. Where the I. If, under the rules in the thirteenth and seven- 647
ancestor or teenth chapters, or otherwise, the ancestor or his
his issue issue take an estate tail, or the issue take a life estate in re-
take an es- mainder ; and such estate is a vested and absolutely limited
fate tail, or estate; the limitation over, as regards such estate, is a re-
the issue mainder, and not an alternative limitation : because an alter-
take a life native limitation is inoperative and bad in its very creation,
estate in re- ^^iggg the interest which it is intended to confer, is a substi-
'"^'" ' tute for a contingent or an hypothetically limited interest;
such estate ,^^^ ^^s 130) and the construction ought to be such, t^^
IS vested and ^ . i' . . °
, I,,] res magis valeat, quam pereat.
iimitcd ^ testator devised an estate to Jl., for life ; remainder to
, * trustees to preserve, &c.; remainder to all the children of ./?.,
4 V/'^'^ fi' as tenants in common, and not as joint tenants; and, for
S'^ * 3"'8 want of such issue, to i?., for life; remainder to trustees to
preserve, &.C.; remainder to all the children of ^., as tenants
in common, and not as joint tenants; and, for want of such
issue, to C. in fee, J2. had children living at the date of the
will. The Master reported, that ail the limitations in the
will, subsequent to the devise to the children of *^., failed,
II. 21. ii.] OF E.^^^'^*'^"'^^;^3;i?RESTS. [§G48, G19. [ 329 ]
, . , . . I tlie prior limitation ,
as being only to takdiw;- ' u^pnunut i^icvcr was any snch
child. Bin, Sir L. Shaihvell, r.lj^'r!^ Il, that the children
of yj. took estates for life, as tcnai'iTsHi coninion, with cross
remainders between them, for life [notwithstanding the
words "and not as joint tenants"]; remainder to B., (or
life ; remainder to the children of Z?.,as tenants in common, [ 330 ]
for life ; with cross remainders between them, for life ; re-
mainder to C. in fee.
The following case also may perhaps be fairly regarded Doed. Jear-
as an illustration of the same principle, A testator devised rad\. Ban-
tiuis: — "to .S'. M. and her heirs, if she has any child; \inister,l
not, after the decease of she and her husband, then I give it ^^^^^- ^ ^^ •
F. M. and her heirs." S. M. had a, child, who was living ^^^•
at the date of the will, but died four days afterwards, in the
testator's lifetime. It was held, that S. M. took an estate
tail ; " heirs" being explained by the word "child" to mean
"heirs of the body;" and that, upon her death without
heirs of her body, the property passed to F. M.
G IS II. And even if the estate for life or in tail is II. Where
contingent, as where the devisees are unborn ; or such estate
if it is hypothetically limited ; unless there is some particu- is contingent
lar indication of a contrary intent, the limitation over, it is o^' hypo-
conceived, is a remainder, and not an alternative limitation, thetically h-
npon the principles involved in the first general rule above "^'t^^-
suggested, and also upon the principle, that "an estate tail,"
as Lord Ilardwicke observed in Brownswordv. Edwards^
" is capable of a remainder, and it is natural to expect a re-
mainder after it."(a)
G49 III. But, ^if an estate in fee, simple or qualified. III. Where
is taken by the ancestor or the issue, the limitation such estate
over, as regards such estate, is an alternative limitation ; is in fee.
because there cannot be a remainder after a fee simple(Z»),
or qualified. See § 165.
(a) 2 Ves. Sen- 249. And see Ivts v. Legge, 3 Durn. & East, 488, in note,
as stated, Fcarne, 276, 277. But sec contra, Keene v. Pinnock, cited 3 Durn.
& East, 495, and bv Fearnc, 379.
{b) See Loddington v. Klme, 1 Salk. 224, as stated, Fearnc, 225, 373.
Goodright d. Docking v. Dunham, Doug. 26 1, as stated, Fearnc, 375. Doe d.
Comherbach v. Perrijn, 3 Durn. & East, 484, as stated, Fearnc, 376. And also
Hockley V. Mawbey, 1 Ves. 142 ; and Doe d. Oilman v. Elvcy, 4 East, 313;
stated § 530.
Vol. II.— 34
[331] II. 22. i.] A^ OJjrU'^^^^'^ [§650-652.
h
rords : but then J^^
V;;t,must^
CHAPTER THE TWENTY-SECOND.
CERTAIN CASES OP CONDITIONAL LIMITATIONS, DISTIN-
GUISHED FROM CASES OF MERE ALTERNATIVE LIMITA-
TIONS ; AND VICE VERSA.
SECTION THE FIRST.
Certain General Rules suggested.
Introductory We have seen in the first chapter, that, in doubt- 650
observations, ful cases, a hmitation shall, if possible, be construed
See§ 196-9. ^ remainder, rather than an executory devise, whether of
that kind which is termed a conditional limitation, or of
any other. And, in the chapter next preceding the present,
See § 638, a rule has been suggested, that a subsequent limitation, in
645, ' doubtful cases, ought to be construed as a remainder, if
possible, rather than as an alternative hmitation. It now
remains to give some rules applicable to cases where a limi-
tation is not construed as a conditional limitation, and yet
it cannot be construed as a remainder, because the prior
See § 649. hmitation carries the fee in real property, or the absolute
See 99-10-3. interest in personal property.
I. Where the 1- Where the prior limitation carries the fee in 651
prior interest real property, or ''the absolute interest in personal
in fee is not property, a subsequent limitation, in doubtful cases, ought
vested and to be construed as an alternative limitation, if possible,
absolutely rather than as a conditional limitation, provided the prior
limited, and limitation cannot fairly be construed to confer an interest
the subse- vested prior to the event on which the subsequent limita-
qucnt limita- tion is to take effect, and an absolutely limited interest,
tion is an al- either by reason of the form of its original limitation, («) or
ternativc. of some subsequent explanatory expressions.
r 332 1 For, suppose the prior limitation to be executory 652
See § 111, ill its original creation, but afterwards to confer a
75-91. ' vested interest, it would seem that the subsequent limitation
Sec § 128- ought, in a doubtful case, to be construed, if possible, as an
1.36, 148- alternative, and not as a conditional limitation, in order that
158.' the estate of the persons taking under the prior limitation,
who were the primary objects of the testator's regard, may
not be defeated in favour of those claiming under the sub-
sequent limitation, the secondary object of his regard. On
(a) See Wallv. Tomlinson, 16 Ves. 413.
II. 22. i.] OF EXECUTORY INTERESTS. [§G53, G51. [332]
the other hand, if the prior hmitation never takes effect
at all, it is clear that the suhsequent limitation, even with-
out the necessity of heing construed as simply an alternative
in its original creation, would be allowed to operate as an
alternative, according to the doctrine staled in a subsequent Seo § 669,
chai)tGr. 671.
653 No rule to the effect of that above suggested
has been laid down by authority: but, it would
clearly appear to commend itself to reason and the analogy
of law; and it would also seem to be exemplified in the
cases of Galland v. Leonard^ Home v. Pillans, Monteitk
V. Nicholson, and other cases cited in the present chapter,
in support of other more specific rules.
654 The construction which leans towards holding
a limitation to be an alternative rather than a con-
ditional limitation, is sometimes aided by the doctrine of
remoteness. For, where a limitation would be too remote. Sec § 706.
if it were held to be a conditional limitation, but not too
remote, if held to be an alternative, it should, if possible, be
construed an alternative, according to the maxim, Ut res
magis valeat, quam pereat.
A testator, after giving several life annuities, amounting Murray v.
to 270/. a year, proceeded as follows: "Which 2101. \)QX Mden-
annum, as the several life annuities fall in, I give and be- hrooh, 4
queath to my aforesaid trustees, for the use and benefit of ^^uss. 407.
the eldest surviving son of the aforesaid Sir J. 31.; and,
failing the male issue of the said Sir /. il/., to the daughters
of the said Sir J. M. living at the demise of such male issue,
in equal proportions " And the testator disposed of the
residue of his property in the following manner: "The
remaining produce is to be enjoyed by my wife, 717. M.,
during her natural life; and then, I give and bequeath the
aforesaid sums, at her demise, to the eldest surviving son [ 333 ]
of Sir J. M., upon his coming to the age of 25 years; the
interest arising therefrom, after the demise of my said wife,
to be applied to the use of the said surviving eldest son, as
to my trustees may seem most proper, till he comes to the
age of 25 years, as before specified, or failing such male
issue, to the daughter or daughters of the aforesaid Sir J.
M., living at the time of the demise of the last of such male
issue, in equal proportions." Sir J. M. had one son only,
J. AA, who died under 25, before any of the other annui-
tants, and did not leave any son. Lord Lyndhurst, on a
petition of appeal as to the annuities, and on an original
petition as to tlie residue, atfirmed the decree of the Master
of the Rolls, Sir John Leach, as to the former, and held, that
the gift to the eldest son was not too remote ; but that the
eldest son surviving the widow, if there had been one,
would have taken, whether born or unborn at the death of
[ 333 J II. 22. i.] AN ORIGINAL VIEW [§655.
the testator; and tliat such son would have taken a vested
interest in tlie residue, on the death of the widow; because,
the whole of the interest was given to him from her decease.
And, for the reasons given below. His Lordship held that
the limitation to the daughters was an alternative limitation
to take elfect if there should be no son surviving the annui-
tants, in the case of the annuities, and the widow, in the
case of the residue, in favour of the daughters, living at the
death of the son, or the last son who died in the lifetime of
the annuitants or the widow. It was not a limitation to
take etfect after the enjoyment of another particular estate
by the eldest son, either on his decease after the death of
the widow, or on a general failure of his issue; in either of
See § 706, which cases it would have been too remote. It was not to
714. take eflect after a general failure of male issue. For, the
testator only contemplated a personal benefit to such eldest
son of Sir J. M. as should survive the annuitants, or, in the
case of the residue, the widow ; for, if the first son had died
before the annuitants or the widow, leaving a son, the
second son surviving the annuitants or the widow must
have taken, in exclusion of the first son. And the testator
could not have meant that the succession of the daughters
[ 334 ] should depend upon the failure of issue male who were not
to take before the daughters. Besides, the gift was to the
daughters living at the demise of such male issue. The
failure he contemplated was to take place in the lifetime
of the daughters; and the word demise is more referable to
the death of an individual, than to tlie extinction of a whole
line of issue. Nor was it to take elfect on (he death of the
eldest son after the decease of the annuitants or the widow.
For, had there been a son who survived tlie annuitants or
the widow, he would have taken absolutely ; and in no
subsequent event could the property have then devolved
upon the daughters.
II. Where H. But, where the prior limitation may fairly 655
the piior in- \^q construed to confer a vested interest before the
terest IS vest- event on which the subsequent limitation is to take effect,
ed and abso- according to the form of its original limitation, or by reason
lutcly lirnit- Qf gpf^je other expressions; and it is limited absolutely, (and
ed, and the ^^^ hypothetically, in the event of such person's surviving
r" u?'^^^" the testator,) there, the prior limitation shall be construed to
ndtV nal ^^ vested, because the law leans in favour of giving a vested
limitation interest, especially to those who are the prior objects of the
See 6 200-9 testator's bounty; and consequently, the subsequent limita-
* lion, unless dependent upon an event to occur at or before
See § 128, the testator's death, shall be construed a conditional, rather
148-9. than an alternative limitation, because the construing it to
be an alternative limitation, involves the necessity of con-
struing the prior limitation to be either a contingent or an
See § 130. hypothetical limitation.
II. 22. i.J OF EXECUTORY INTERESTS. [§G55. [334]
Thus, where land is devised to a person when he attains Illustrations.
21, with a hniitation over in case of iiis deatii nnder tliat
age-, there, if, upon the whole will, tlie prior limitation is
capable of being construed to create a vested interest, it
shall be so construed ; and the limitation over shall conse-
sequently be construed a conditional, and not an alternative
limitation.
And where a testator gave the interest of personalty to Stur<^ess v.
*,^., for life; and, after her decease, he gave the same to be Peamon, 4
equally divided amongst her three cliildren, or such of them Mad. 413.
as should be living at her decease, the same to be paid to And see also
them at their age of 21 years. The three children all died [ 335 ]
in the lifetime of the tenant for life. Sir John Leach, V. C, Belh-v.
held, that they took vested interests. He observed, that ^'tack, 1
the vested interests first given by the will, were, by the form Kfcn, 238.
of the expression, only defeated in case there should be I>Litsce5t/-
some or one, and not all, of the children living at the ^^'f-^^^y v.
mother's death: but that event did not happen: for, there ^^ "'*» ^
was not one child living, at the mother's death. And he , ^ . ,'
said that the case of Harrison v. Foreman, 5 Ves. 207, was ," /" * ^'
I'l point. Yin. Ab
From these observations, it appears that he thought the j:. ^^ j. '
words "or such," &c. constituted a conditional limitation, vise" 381
It is true, indeed, that he speaks of them immediately after- pi_ 32 • as'
wards as "the alternative branch of the sentence;" but it stated, 1
must not be supposed from this, that he regarded that branch Rop. Lc"-.
of the sentence as an alternative limitation. If the first words .507, 511.
gave vested interests, as His Honour expressly declared they Observations
did, there could be no room for an alternative limitation : on Stur"-ess
for, it would be contrary to the nature of an alternative limi- v. Pearson.
tation to operate so as to defeat the vested interests of the Sec § 128,
children, in the event he mentioned, or in any other event. 130, 148-9,
The words would indeed admit of being resolved into a con- 157.
tingcnt limitation to the three children, if all three should be
living at the mother's death; with an alternative limitation
in case all should not be then living, to such as should be
then living. But then, the children would only have had
contingent interests at first; and as they «// died in the life-
time of the mother, neither they nor their representatives
would have taken any thing. And such a construction
would have violated the rule, that an interest shall, if possi- See § 200-9.
ble, be deemed to be vested rather than contingent.
Again; a testatrix being entitled to a sum of money Browne v.
charged upon her brother's lands, bequeathed the same to Lord Ken-
trustees, upon trust to pay the interest to two persons and yon, 3 Mad.
the survivor; and, after the death of the survivor, to pay HO-
the principal to i>. ; but, if he should be then dead, then, to
his two brothers, in equal shares, or the whole to the survi-
vor of them. B. and his two brothers all died in the life-
[ 336 ] II. 22. i.] AN ORIGINAL VIEW [§655.
time of .^., the surviving tenant for life. Sir John Leach,
V. C, held, that the word " then" was to be applied not to
the vesting, but to the possession. That the only questiou
arose in the bequest to the two brothers, on the words, " or
the whole to the survivor." That the obvious meaning
was, that if one only survived the tenant for life, he should
take the whole. And that it was therefore a vested gift to
the two, as tenants in common, subject to be devested, if
one alone should survive the tenant for life, but which never
was devested, because that event did not happen.
Observations It would appear, at first sight, that, in this case, there
on Browne were a succession of alternative limitations; that B. was to
v.Lord take, if he were living at the death of the tenant for life ; or
Kenyon. jj-,q ^^^.q brothers of B., if he were not living at the death of
bee ^ 136a. ^j-^g tenant for life, and the brothers were; or the survivor
of the two brothers, if only one of them should be living at
the death of the tenant for life. If B. had survived the
See § 99- tenant for life, he would have taken the absolute interest ;
103. for, the principal was to be ahsolutely paid over to him:
and his brothers were only to take in the event of his not
surviving the tenant for life. And hence it would at first
sight seem impossible that they should take vested interests
before the death of B. in the lifetime of the tenant for life:
for, up to that time, there was a probability that the absolute
interest might become vested in B., to the entire exclusion
of his brothers. And even after the death of B., in the life-
time of the tenant for life, it may be thought that the brothers
See § 96-8. cannot be consistently regarded as taking vested interests,
liable to be devested in the event of one alone surviving the
tenant for life: for, if the representatives of the one who
died in the lifetime of the tenant for life, were not to take,
in the event of the other surviving the tenant for life, why
should the representatives of either of them take, in the
event of both of them dying in the lifetime of the tenant for
life? Would not the same intention which would devest
the moiety of one brother, in the first case, equally require
that the entirety taken by the two brothers should go from
them, in the latter case? Surely, then, (it may be argued)
if both survived the tenant for life, they were to take the
[ 337 J whole between them ; if one alone survived, tliat one was
to take the whole; if neither survived, neither were to take
any. Such, indeed, would prima facie appear to be the
true construction of the will. But, it is to be observed, that
See §200-9. the law favours vesting; that the first words, "to his two
brothers in equal shares," would, of themselves, confer a
vested interest on the death of B.; and that the subsequent
words, instead of serving to qualify the preceding words, so
as to suspend the vesting, may fairly be considered as merely
a short irregular way of expressing the same thing as if it
II. 22. i.] OF EXECUTORY INTERESTS. [§655. [ 337 ]
had been said, " but in case of the death of cither of them in
the Vik of the prior taker, then, to the survivor;" 'Mviiieh
would liave been a con(iilional limitation, and not an alter-
native ;{b) and which would have been a species of limitation
very common in such cases. And as to tlie above argu-
ment upon the intention, such would probably have been
the intention, if there had been an ulterior limitation ; but,
in this case, the two brothers were the only more remote
object of the testator's bounty, and the question of prefer-
ence in his mind, lay between the representative of a de-
ceased brother, and a surviving brother, and not between the
representatives of the deceased brothers, and any other indi-
viduals.
The same point was estabUshed in another case where a Bromhead
testator gave personal proj)crty to trustees, to be settled on v. llmit^ 2
the marriages of his daughters, for their separate use; and, Jtif^- &
on their deaths, upon trust for their children; with a limita- Walk. 403.
tion over in the event of either of his daughters dying with-
out having been married, or without leaving any children
her surviving. 31. E., one of the daughters, had three chil-
dren, of whom only one survived her; and he claimed the
whole of M. E.'s share, insisting, that the vesting of the
gift was suspended till tlie daughter's death, inasmuch as
the representatives of none of the children of ]\I. E. would
have taken, if all the children liad died before her; and it
could not have been intended that the right of the represen-
tatives of those who died, should depend on the circum- [ 33S ]
stances of one surviving M. E. But the Lord Chief Baron,
assisted by two of the Masters, sitting for the JMaster of the
Rolls, held, that the shares of the children of each daughter
were vested, subject to be devested in the event of all dying
before their mother; and there being one child of M. E.
alive at her death, that the representative of the two otiier
children who died before lier, was entitled to their shares.
The Lord Chief Baron remarked, that there was no limita-
tion over in the event of some of the children dying in the
hfetime of their mother ; and if it were to be supplied, it
could only be by inference. And he referred to Skerj v.
Barnes, 3 Mer. 335, and St urges v. Pearson, 4 Mad. 411,
as direct authorhies for the principle on which the Court
proceeded in the above decision.
But where a testator gave all the residue of his real and Iloices v,
personal estate, in trust to sell, and invest the produce, and Herring,
apply so much of the interest to dividends as might be neces- M'Clel. Osi
sary, for the maintenance of his five children, during their You. 295.
minorities, and to accumulate the surplus for their benefit;
{h) See Harrison v. Foreman, 5 Ves. 207; Deane v. Test, 9 Vcs. 147; Da
vidson V. Dallas, 14 Vcs. 576.
[ 33S ] II. 22. ii.] AN ORIGINAL VIEW [§656.
and, upon their severally attaining 21, to pay them 2500/.
each ; and, in case there should be any overplus, to pay and
divide it unto and amongst all his five children, or such of
them as should be living at the lime when the youngest of
them should attain 21, share and share alike. 13nt, never-
theless, that in case any of his five children should die under
21, without issue, then, the share or sliares of such child or
children should go to the survivors or survivor. But, if any
one or more should die under 21, leaving issue, then, his,
her, or their share or shares should go to such their issue.
One of the children attained 21, and died, leaving issue, but
before the yoinigest child had attained 21. It was held,
that the child so dying did not take a vested interest in the
surplus of the testator's estate; and that her issue took no
interest in such surplus; but that the whole of such surplus
went to the surviving children of (he testator.
Observations In this case, a different construction was adopted, because
on Hoivcs V. the gift of the surplus was clearly contingent: for, not only
Herring. JiJ the words prima facie import that the surplus was in-
tended for those alone who should be living when the
youngest child should attain 21; but it was uncertain till
[ 339 ] that period whether there would be any surplus, and, if
any, what would be the amount thereof. (See Gibbs v.
Tait, 8 Sim. 132, stated, § 597.)
SECTION THE SECOND.
Certain Specific Rules as to the Period to ivhich the Event
of Death, when mentioned as if it tvere a Contingent
I. Where Event, is to be referred.
personal es- I. Where personal estate is given to a person 656
tate is limit- indefinitely or absolutely, " and in case of his
ed over m death," or, " in the event of his death," to another; this
case or in the disposition, though apparently constituting a gift of a life in-
dent ot terest, with a quasi remainder, or, more strictly, a gift of the
fr^ l'''^l ■ • ^^-^^^^'^ interest, with a conditional limitation over to take
J ] ] / 1 effect on the death of the prior taker whenever it may hap-
(leath^nThe P^"' ^^^^ ^^^' ^^ — ^^^' 148—158,) is, ^ in the absence of all
testator's indications of a contrary intent, (c) construed to amount to
lifetime. ^^^ hypothetical limitation of the absolute interest, to take
See § 114. effect in the event of the person named as first taker surviv-
See § 128- ing the testator, with an alternative limitation over, to take
136. effect ''in case of the death of the first taker in the lifetime
of the testator,(af) unless there is a gift of a particular interest
(c) Billings V. Sandom, 1. B. C. C. 393; and Nowlan v. Nelligan, 1 B.C.
C. 489 ; as stat(.d, 2 Jarm. Pow. on Dev. 760.
(d) Trotter v. Williams, Pre. Cha. 78; S. C. 2 Eq. Ca. Ab. 344, pi. 2, as
stated, 2 Jarm. Pow. on Dev. 759.
II. 22. ii.] OF EXECUTORY INTERESTS. [§657. [ 339 ]
in the same property, antecedent to tlm gift to (he person See § 6r>8.
whose death is spoken of, or a mention of some period to
which his death can he referred. Amongst other See § G59.
657 reasons mentioned in a snbsequent page, this con-
struction is adopted in order to satisfy the import
of tiie words " in case," or " in the event of," which de-
note a contingency, whereas death at some lime or other,
and not at a given time, or under particular circumstances,
is not a contingency, but a thing inevitable.
A testatrix gave to her sister, everything she had power jUncklexi v.
to leave [which included leasehold premises and other per- Simmonx, 4
sonal estate], and, in case of her death, she then gave all Yes. IGO.
she had to iier mother. I^ord Iwoughborough, C, held, on [ 340 ]
the authority o[ Lnw/wld v. Slotic/ia/n, 2 Str. liiGl,that the
words imported contingency, and that the sister was entitled
absolutely.
The Lord Chancellor must liicrefore have considered the Observations
disposition as amounting to an hypothetical limitation to the on Hinclley
sister absolutely, if she should be living at the death of the v. Simmons.
testatrix, with an alternative limitation to the mother, in
case of the sister's death in the lifetiinc of the testatrix. It
may be observed, that the opposite construction, that of the
words referring to death at any time, was, in this case, ex-
tremely improbable, inasmuch as it was very unlikely that
the mother would survive the sister, if the sister survived
the testatrix, and continued to live as long as it might be
supposed she would.
Again; a testator bequeathed to his eldest sister, 31., Cambridge
4000/.; and, in case of her death, to devolve upon her sister v. Rous, 8
C. And he bequeathed to C, 4000/.; and. in case of her ^'^'s- 12.
death, to devolve upcju her sister 31. vSir W. Grant, M. R.,
held, that the words referred to a death in the testator's life-
time. His Honour observed, tliat the words iiad not in
themselves, nor had they by construction received, a precise
and definite meaning, in which they must be uniformly un-
derstood. That the expression was incorrect, either iu not
specifying the period to which the death was to be referred,
if a conliugcnicy was meant, or else in applying words of
contingency to an event certain, if they refer to death gene-
rally, whenever it may happen. (S \'es. 21.) That the con-
struction therefore must depend upon the intention. {lb.
23.) That it was absurd to suppose that when 31. died,
her 4000/. was to go liom her family to C, and when C.
died, her 4000/. was to go to il/.'s family: and, to prevent that
■consiructii)n, the words " in the lifetime " of the other must
be supplied, which would be departing i>om the construc-
tion of dying geni^rally, and so far giving way to the argu-
ment of the other side. {lb. 24.) And then [even if these
words were to be supplied, still] during their joint lives,
Vol. II. — 33
[ 340 ] II. 22. ii.]
AN ORIGLNAL VIEW
[§657.
[ 341 ]
Sladex.Mil-
ner, 4 Mad.
144.
Ommaney v
Bevan, 18
Ves. 291.
Crijsan v.
Baines, 7
Sim. 40.
See also
Child V.
Gibletf, 3
M. & K. 71
[ 342 ]
Lord /Jong-
las V. Chal-
mer, 2 Ves.
Jun. 500.
neither could touch a shilhng; and if one died leaving chil-
dren, her share could not have been used for her family, but
would have gone to her sister for no other reason but that
she happened to survive. {lb. 23.)
And where a testatrix made the following bequest : " to
M. .9., 2000/. stock; and, in case of her death," the said
2000/. shall then be equally divided between her children.
She also made other bequests in similar terms. And after
disposing of the residue, she added the following direction:
'* in case these my residuary legatees shall have departed
tliis life before me, and consequently before this will takes
place, it is then my will that the aforesaid residuum ....
shall then be equally divided between" &c. It was argued,
that M. S. took an estate for life only, with a remainder to
her children, inasmuch as it appeared that when the testa-
trix intended to make a bequest over in the event of the
legntee dying before her, she distinctly said so. But Sir
John Leach, V. C, held, that the words, " in case of her
death," referred to a dying before the testatrix; and that as
M S. survived the testatrix, she took absolutely. He ob-
served, that the interest of the legatee was not limited to her
life ; and that " in case of her death" imported contingency,
or death which might or might not happen before another
event. And that the residuary clause only showed that the
testatrix had m her contemplation the possibility that the
legatees might die before her.
So where a testator gave his residuary real and personal
estate in trust for ^2. P.; and, in case of her death, to be
equally divided between the children of fV. IV., A. P. sur-
vived the testator, and then died ; and Sir W. Grant, M. R.,
decreed payment to her executor, as having taken the abso-
lute interest.
So also where a testatrix bequeathed 4000/. to A. ; and,
in case of his decease, she gave the same to his wife ; and,
at her decease, to their eldest daughter. Sir L. Shad well,
V. C, held, that ji., having survived the testator, was abso-
lutely entitled to the legacy.
In another case, however, it was considered that the tes-
tator intended the gift over to take efTect at the death of the
legatee, whenever it might happen; and therefore it was
construed accordingly. In that case, a testatrix bequeathed
all the residue of her personal estate, in trust for, and to the
use and behoof of, her daughter, Lady D. ; and, in case of
her decease, to the use and behoof of her children, share and
share alike, to whom her trustees and executors should ac-
count for and assign the said residue. And, by a codicil,
she declared, that she would have her wearing apparel
given to her housekeeper, M. M., or, if she should be dead
before the testatrix, to have these things divided between
II. 22. ii.] OF EXECUTORY INTERESTS. [§G58. f 342 ]
whoever is in lior ))laco, and the testalrix's clianibermaitl.
Lord Loughborough, C, held, that Lady 1). took only a
life interest, and, at her decease, the children were to take
the capital. His Lordship observed, that, taking the words
by themselves, such a gift naturally implies that kind of dis-
position, and that it would be much too subtle to make a
different construction from that which would arise from the
words, "at her decease," or "from her decease." He also
adverted to the fact, that the codicil expressed the very con-
tingency U[)on which the limitation to tlie children was sup-
posed by the plaintids to depend. And His Lordship con-
cluded by saying, that if he were to adopt the other con-
struction, the whole residue would vest in Lord D. ; the
children could not take by Lady D.'s gift ; for she could
have no power to give it ; nor could they take as represen-
tatives of her, nor as sole representatives of Lord D. ; for he
had other children by a former wife. On a subsequent day,
the matter was reheard, but the Lord Chancellor adhered to
the same opinion.
658 II. Where there is a gift of a particular interest n. Where
in the same property, antecedent to the gift to the personal es-
person whose death is spoken of, tRe death, in the absence tate is so li-
of all indications of a contrary intent, is construed to be a inited over,
death in the lifetime of the first taker, whether subsequent or and the death
prior to the death of the testator. is held to be
A testatrix gave personal estate, in trust for TJ. T., for a death in
life ; and, after the death of E. T., she gave the same to the the lifetime
three children of E. T., to be divided among them, in equal '^^ '' P^"'°'"
shares ; and, in case of the death of either of them, the share t^^<^''-
of such of them as may die to go to the children of the per- Ilervey v.
sons so dying. It was held, that one of the children, who M'Laugh-
died in the lifetime of E. T., took a vested interest, subject [ 343 ]
to be devested by his death in the lifetime of E. T., the I'm, 1 Pri.
tenant for life, leaving issue; and consequently his share 264.
belonged to his children, and not to Iiis personal represen-
tatives.
Again ; a testator bequeathed his leasehold and other Clar'ke v.
personal estate to his wife, lor life ; and, after her death, to (lould, 7
a trustee, in trust to pay the rentsand profits for and towards Sim. 197.
the support and maintenance of his six nephews and nieces ;
and, in case of the death of any of them, for the support
and maintenance of the survivors. Sir L. Shadwell, V. C,
held, that the words referred to a death in the lifetime of the
tenant for life ; and that a niece who died after having sur-
vived both the testator and the tenant for life, had become
absolutely entitled to one sixth of the property.
And where a testator gave all his copyhold and leasehold /,^ Jcime v.
pro])erty, and all other his property, to his wife, for life ; and, j.e Jeune, 2
at her decease, he directed it to be sold, and to lie divided B<av. 701.
[ 343 ] 11. 22. ii.] AN ORIGINAL VIEW [§G59, GGO.
into iivo equal shares, one of which he directed to be paid
to each of four sons that should be hving at the time of her
decease. And, in case of either of their deaths, tlien, the
share of such so dyiug to be paid to his issue. Lord Lang-
dale, INI. R., held, that the child of a son who died in the
testator's lifetime was entitled to his share; His Lordship
observing, that the words," in case of either of their deaths,"
might be referred to any time prior to the death of the tenant
for life, even though the time should be in the lifetime of the
testator himself.
Smith V. This construction is supported by another case, where the
Smith, 8 death was expi'cssljj a death in the lifetime of the wife, who
Sim. 353. was tenant for life of the residue. The words were: "pro-
vided that in case any of my children, who shall happen to
die in the lifetime of my wife, shall have left issue" &c.
And Sir L. Shad well, V. C.,held, that the case of Thornhill
V. Thornhill, 4 Mad. 377, was wrong ; and that the issue
of a child who died in the wife's lifetime, prior to the testa-
tor's decease, was entitled to a share.
Giles V. Ill tlie case of Giles v. Giles, the testator, at the date of
Giles, 8 his will, had but one daughter; but he had had another
Sim. 360. daughter, and she left issue, who survived him : and Sir L.
[ 344 ] Shadwell, V. C, held, that such issue was entitled to a share
in the residue. And though this decision was grounded on
the special reason, that it appeared from the word "daugh-
ters," as used in one passage of the will, that the testator
was contemplating a provision for the issue of more than
one daughter ; yet, the learned Judge observed, that it may
be reasonably supposed, that the testator intends as much to
provide for his grandchildren, by a child then living, but
which may thereafter die.
III. Where III. Wliere, indeed, the will furnishes any other C59
personal es- period besides the death of the testator, to which
tate is soli- the death of the legatee can be referred, it will be held, in
mited over, the absence of indications of a contrary intent, to mean a
and the death before such other period ; '' rather than a death gener-
death is held ^Hy j^j some time or other, and indeed rather than simply a
to be a deatli ^p^i\i before the testator :(e) because, it is more natural for
at some g^ testator to provide against the death of a legatee before
o tier peuod. ^q^^ event which may and probably will happen subse-
quent to his, the testator's, own decease, than for
him simply to provide against the legatee dying 660
before himself. And if the deatli is construed to
mean a death at a period prior to the vesting of the interest
See § 128- in the party whose death is spoken of, the gift over is an
136, alternative limitation ; but if it means a death at a period
See § 148- subsequent to the vesting of such interest, it is a conditional
158. limitation.
(e) See Home v. Pillans, 2 M. & K. 15, stated, § 663.
II. 22. ii.] OK EXECUTORY INTERESTS. [§Gfil. [ 31-1 ]
CGI IV'. Whore llic izift over is iiitrodiicetl l)y llic I\'. Wlmre
words '-ij" he should die," or hy the words "or in die gilt over
case," or by llic words '- Ijiil in case," instead of the words is introduced
"and in case of his death," the iiitfiilion to refer to a death '*>' "'''^''
in the testator's hfeliinc, or at some other partieiilar period, "'J'"')"^ ^^
instead of death generally whenever it may happen, is still contingency.
more clear.
A testatrix gave to lier son, when he had attained 23, Kini^ v.
certain sums of stock, and also household goods &:c., and to Taylor, 5
lier daughter, certain other sums of stock, and the testatrix's Vcs. 800.
wearing apparel. And she willed, that if either of her chil-
dren should die, the surviving child should have what she [ 3 15 ]
had left to the other. The daughter survived the testatrix,
and then died, leaving the son surviving. It was argued,
that the clause of survivorship referred to the event of death
in the testatrix's lifetime : for, it was impossible that the
linen, wearing apparel, and china, were intended to he used
only, witliout any absolute interest in them, till the deatli of
one of the children ; and it was not likely that the testatrix
would have fixed the age of 23, in the bequest to the son,
if she intended each child should have only the interest till
the death of one of them. And Sir R. P. Arden, M. R.,
held, that the clause did refer to the case of lapse by deatii
in the testatrix's lifetime. He remarked, that the words
were, " if either should die," and not " in case of her death,"
as in the cases of Billings v. Sdudojn, and Nowhm v. Ncl-
Ugan, 1 ]iro. C. C. 393, 39S. That the reasons for decision in
Lord Douglas v. Chalmer^Wd not apply to this case. And
that in Billings v. Sandorn, there was nothing, upon the
fiice of the will, to restrain the construction to dying in
the life of the testator, which would not be supposed to be
the intention, unless there could be no other. But, the pre-
sent case, His Honour added, was exactly like Trailer v.
JVilliams, Pre, Ch. 7S ; and the construction that the words
meant, whenever the death of either should happen, would
be totally inconsistent with the rest of the will ; and there-
fore, there was an absolute interest in the daughter, at the
deatli of the testatrix, and in the son, at 23.
So where a testator bequeathed a sum of stock to his Turnvr v.
nephew, 7i'. I)., then or then lately residing in India, or, in Moor, i>
case of his death, to his lawful issue; but, if his nephew Ves. r>56.
should be deceased at the time of his death, without leaving
any lawful issue, then, he bequeathed to J. T., or, in case
of his decease, to his lawful issue, part of the stock. Also,
in like manner, he bequeathed another part to R. T., or his
lawful issue. Also, in like maimer, he bequeathed another
part to iV. /»'., then or then lately residing in the town of
Leith, or, in case of his death, to his lawful issue. The
Master staled his opinion to be, that R. D. died in the tes-
[ 345 ] II. 22. ii.] AN ORIGINAL VIEW [§661.
tator's lifetime, unmarried. Sir W, Grant, M. R., (after
adverting to the circumstance, that the will was made eleven
[ 346 ] years after B. D. had sailed on a voyage in which in all
probability he perished,) as a reason why the testator ex-
pressed himself with more particularity as to li. Z)., observed,
that the testator having clearly expounded his meaning in
one instance, must be supposed to have the same meaning
by the same words in the other parts; and that, in the pre-
sent case, it was clear that the parent and the children were
not both to take, but either the parent or the children in the
alternative ;. whereas, in Billings v. Sdndoni, and in Lord
Douglas V. Chalmer, the word " and" was used, showing
that both were to take — the parent and the children.
Webster v. And where a testator gave a sum of stock, in trust for the
Hale, 8 Yes. use, exclusive right, and property of his sister C; but,
410. should C. happen to die, then the stock was to be divided
among C'.'s children. And he bequeathed to her another
sum, to be paid to her as soon as possible ; or, in the event
of her death, the said siun was to be divided among the
children. He also bequeathed to his sister, H., a sum of
stock ; and, in case of her death, the sum was to be divided
among her children. Sir W. Grant, M. R., held, that the
limitations to the children were alternative dispositions, the
word " but" being used in the first bequest, and that word
being disjunctive and adversative, opposing one case to an-
other; the word "or" occurring in the second, as well as a
previous direction for payment, strongly implying entire and
absolute property; and it being by no means probable, as
to the third bequest, that the testator meant to make any
dilference between //. and her sister.
In another case, however, it clearly appeared to be the
testator's intention tliat the gift over should take efiect on
the legatee's death, whenever it might happen ; and there-
fore it was construed accordingly. In that case a testator
Smart v. bequeathed as follows : — " I give to my son E. C, who is
Clark, 3 uq^- at sea, the interest of 500/. stock, during his life, if he
Russ. 36.5. comes to claim the same within five years after my decease ;
but, if he should die, or not come to claim the same within
tlie time limited, then, I give the said stock to the children
of my daughter ^nn Smart, with all the interest that may
[ 347 ] be due thereon," The residue of his estate he bequeathed
to liis four daughters. E. C. came and claimed the stock
within the five years, received the dividends during his life,
and died after the five years had elapsed. The Lord Chan-
cellor, on the authority of Billings v. Sandoni, 1 Bro. C. C.
394, held, that the children of the daughter were entitled,
though E. C. did not die within the five years. The word
"if," ^% prima facie importing a contingency, would, at
first sight, seem to show that the children of the daughter
II. 22. ii.] OF EXECUTORY INTERESTS. [§602, 663. [ 317 ]
were only to take if E. C. sliould die williiii the five years.
But, as their counsel remarked, " the testator was naturally
drawn into the use of an expression importing contingency ;
because one event for which lie was providing, namely, that
of ^c^2w/7y/ not claiming the legacy within five years, was
contingiMit."
662 Y. Even whore tiie gift over is not merely de- V. Where
pendent on (he simple event of death, hut is to the glA over
take edect " in case of the death leaving children," or *'in is not simply
case of the person "dying unmarried and without issue, "(/") on the event
the event will be construed to mean, not a death generally of death,
at some time or other, but a death in the testator's lifetime,
or at some other particular time, if the fund or property
itself, and not merely the interest or income is given "abso-
lutely" to the person wliose death is spoken of; or, if it is
not to vest till a future period, and the dying may fairly be
referred to a dying before that period; or if, for any other
reason, it does not appear that the testator intended to refer
to deatli generally.
663 In these cases, the ditRcuIty of this construction Grounds of
is much greater; because, the event not being, as the rule.
in the other cases, simply the death of the legatee, but being
in fact entirely contingent, it is unnecessary, for the mere
purpose of satisfying its contingent import, to construe the
event to mean a death at any particular time. But, such a
construction is considerably aided by the policy of the law,
which ought to lean in favour of the primary objects of the
testator's bounty, and also favours the absolute enjoyment [ 318 ]
and the transfer of property, which would be prevented by Sec § 223-0.
the opposite construction.
In a case of a residuary devise of real and personal estate. Doe d. Lif-
the words, " in case of the death," were held to refer to fod y. , Spur-
death in the lifetime of the testator; the testator having ex- '"^^^S 13
pressly confined some of the limitations to the event of a ^^^U ^^59.
death in his lifetime; from which, and for other reasons, it
might be inferred that he was contemplating a death in his
lifetime in the preceding clause, when he spoke of the death
of either his son or daughter, leaving issue.
And where testator gave personal estate, in trust to pay Galland v.
the interest to his wife, tor life; and, upon her death, to pay Leonard, 1
and divide the trust monies unto and equally between his Swans. 161;
daughters, H. and ^., for their own use and benefit abso- S. C. 1
lutely; and, in case of the death of them, or either of them, ^Vils. 129.
leaving a child or children living, to apply the interest for
the maintenance of the children till 21, and then, to divide
the trust money amongst them; his will beiuii;, that the child
or children should be respectively entitled to the same share
(/) Laffer v. Edwards, 3 Mad. 210, stated § 130a.
L 3 IS ] II. 22. ii.] AN ORIGINAL VIEW [§6G3.
his her or tlieir mother would be enthled to if then hving;
and upon this ultimate trust, that, in case of the death of his
said daughters, without leaving issue living at their respec-
tive death, in the event also happening of all their children
dying minors, then to pay and divide the trust monies among
his nephews and nieces then living, for their own use and
benefit absolutely. Sir Thomas Plumer, INI. R., after ob-
serving that the fund itselt, and not merely the interest, was
given to the daughters, and given "absolutely," held, that
the testator meant, that if his daughters survived his widow,
they should take the absolute interest; but that if they were
not then living to enjoy his property, it should pass to their
children, if they left any; or, if they died without children,
to his nephews and nieces: a construction that reconciled
every part of the will, and was borne out by the expression
of the testator's intention, that the children sliould take the
same share to which their mother would have been entitled
"if then living."
r 349 1 Again ; where a testator gave to his two nieces, 2000/.
Home V. Pit- each, when and if they should attain 21, for their sole and
hm.s, 2 M. separate use ; and, in case of the death of his said nieces, or
6c K. 15. either of them, leaving children or a child, he gave the share
or shares of such of his said nieces or niece so dying, unto
their or her respective children or child. The Master of the
Rolls held, that the interest of the nieces did not become
absolute on their respectively attaining 21, but continued to
be subject to an executory bequest over, in the event of their
leaving childr<3n living at their death. But Lord Brougham
C, on appeal, reversed that decision, and licld, that the
nieces took an absolute interest in their legacies, on attaining
the age of 21 respectively. "It may be stated," said His
Lordship, " as a general proposition, that where the bequest
over is in case of the legatee's death, and no other reference
can be made, the period taken is the life of the testator ; but
where another can be found, that will be preferred, [' inas-
much as the maker of a will does not naturally provide for
tlie event of his surviving his legatees, the selected objects of
his posthumous arrangements.' (2 M. &. K. 22.)] A pre-
ceding gift for life, or other interest less than the absolute
property, will furnish this reference. But this is not the
only means of restricting the generality; and a direction that
the gift shall vest at a given time, afibrds just as easy and
as natural a reference as a preceding lite interest. Thus, a
bequest to i/?.; and, in case of his death, to B.; is a gift ab-
solute to t/2., unless he dies in the testator's lifetime. A be-
quest to C. for lile ; and then to ^1.; and, in case of his death,
to yy.; is a gift absolute to ^d., unless he dicji dm'ing C.'slife.
A bequest to ^., wiien and if he attain the age of 21 ; and,
in case of his death, to B.; is a gift absolute to t,,2., unless lie
II. 22.ii.] OF EXECUTORY INTERESTS. [§663. [ 349 ]
dies under age." {Ih. 23, 24.) ''In the present case, no
period can be derived from any prior life estate, at the deter-
mination of wiiicli the gift over is to take etfect. But the
whole clause taken together furnishes a period for the re-
striction, at once natural, and obvious, and consistent with
tlie plain meaning of the testator, and peculiarly agreeable
to the frame of the bequest. He first gives his nieces the
monies when and if they shall attain 21; at the age of ma-
jority, therefore, the legacies vest ; and, as far as this branch
of the clause goes, vest absolutely If we read the [ 350 ]
latter part as contemplating a dying at any time, and as con-
verting the legatee's interest, from an absolute interest in
the capital sum, into a life annuity, in the event of her leav-
ing a child at her death ; we entirely destroy the first part of
the clause, which provides for the interest vesting at 21.
According to this construction, she has attained her age of
21 in vain [as regards the capital]: for, at that period so
anxiously pointed out by the will, as the time when she was
to receive the sum of 2000/., she only acquires the chance of
her will operating upon it in case she dies childless. During
all the days of her life, she has no more control over it after
21 than she had before. It appears quite clear to me that See §223-6.
the other construction is the sound one. Having first provi-
ded for the legacy vesting when the legatee is of age, and
secured it against the interference of others, in the event of
marriage ; the testator provides for the case of the legatee
dying under age and leaving a child or children : in that
case, they take their mother's legacy, because she did not
live till it vested in her. (/Z). 25, 26.)
And so where a testator bequeathed his personal estate to Monteilh v.
his brothers and sisters absolutely, and declared, that if any ^^"'^^^*''"'
of them should die in his lifetime, or afterwards, without ~ ^'^een, 719.
leaving issue him surviving, his share should go amongst
the survivors; and that if any should die in his lifetime, or
afterwards, leaving issue him surviving, his share should be
divided among his issue ; such child or children taking their
parents' share. And he declared it to be his will that none
of the legatees should be entitled to any bequest until they
attained 21. The brothers and sisters claimed the absolute
interest. The child of one of them insisted that they took a
life estate only. Lord Langdale, INI. R., held, that each legatee
took an absolute vested interest on attaining 21, and the limi-
tation to the issue was to take etfect only in the event of the
legatee dying under 21. — There was in effect a limitation to Observation
the brothers and sisters, if and when they attained 21; follow- on Montieth)
ed by two alternative limitations; namely, a limitation to the v.yichobon.
survivors, if one or more of the brothers and sisters should See § 12S-
die under 21, without leaving issue, or, to the issue of him 136a.
her or them so dying, if he, she, or they should leave issue. [ 351 ]
Vol. II.— 3G
[ 351 ] II. 22. ii.] AN ORIGINAL VIEW [§064—666.
YI. The VI. It would seem that tliis qualifying construe- 664
same con- tjou is equally applicable to real estate,
struction '1 here is however an exception to this : for, s"' it 665
seems appli- seen s that where a testator devises an estate tail
cable to real ^q y, person; and if he died, over; the words 'without
estate. issue' are supplied, to render it correspondent with that
Exception, estate ;"(i>-) a construction which does not militate against
the application of the rules above laid down to real estate,
but is merely an illustration of the rule stated in the twenty-
first chapter, that a limitation shall, if possible, be construed
a remainder, rather than an alternative limitation.
Decision to It has been decided, indeed, that the rules above 660
the conirarv. Stated do not apply to real estate, where the
' words, "in case of the death," follow an indefinite devise.
But perhaps But perhaps that decision may be thought to have been
that decision based upon reasons which do not constitute any solid dis-
is question- tinction in this respect between real and personal estate; and
able. at any rate they do not apply to wills which have been
Atall events, niade since the beginning of the year 1838, and which are
it has no ap- governed by the stat. 1 Vict. c. 26, s. 28.
plication to jj-^ ^^^^^ g^gg, a testator gave one third of his real estate, to
devises made j^jg sisters, share and share alike; and, in case of their
since 1838. ^jgj^jse^ he devised their respective shares or proportions to
Bcwes v. he equally divided amongst their children, or their lawful
Scowcroft,2 j^g|j.g_ Alderson, B., held, that the sisters took estates for
You. & Coll. j-^g Qj^^y^ ^y-jj-^ remainder to their children, as tenants in
^^^' common in fee. It was argued, that the limitation to the
children was an alternative, to take effect in case of the
demise of the sisters in the lifetime of the testator. But the
learned Judge said, that many cases to this effect were
cited; but they were all cases of personal property, and not
of devises of land. That there was an obvious distinction
between the tv/o: a bequest of personal estate to ./?. gives
him the whole interest. A devise of land to ./^. gives him
r 352 1 only a life interest. That, in the former case, therefore, the
words in case of their demise preceding a bequest over, can-
not well have their proper effect, except by considering
them as applicable to a bequest over as a substitution for the
previous gift, in case the party to whom it is given should
not survive the testator. But that, in the case of land, the
most natural meaning of the words (which seemed to him to
be after their demise) may very reasonably have its full
effect.
Observations With the utmost deference for so great an authority, it
on Bowes V. may perhaps be fairly questioned, whether the distinction
Scowcroft. taken by the learned Judge is altogether satisfactory. There
is no doubt but that the Court is only desirous of giving
ig) 2 Jarm. Pow. on Dev. 764 ; and dnon,, 1 And. 33, there cited.
II. 22.ii.] OF EXECUTORY INTERESTS. [§606. [352]
effect to the real intention of the testator, in regard to the
words in question; and that if it appeared clear, from any-
other expressions, tliat the intention was, to guard against
lapse, that intention would be effectuated, as much in regard
to real estate, as to personal. The only question, then,
seems to be, whether there is any distinction between real
and personal estate in point of intention?. But the distinc-
tion adverted to by the learned Judge is one which arises,
as was urged at the bar, from construction of law, and is at
variance with the real intention, and is abolished by the
Statute 1 Vict. c. 26, s. 28, on that account, so that a devise
of land to Jl. indefinitely, will now pass a fee, " unless a
contrary intention appear by the will." The learned Judge
indeed did not allude to it as affording any clue to the inten-
tion, but in relation to the cM'ect which the words in question
have upon the previous disposition. Now with respect to
that, it may be replied, that the cases of personal property
have been expressly decided upon what has been considered
the grammatical meaning of the words "in case of" &c.; as
importing a coiuingency instead of an event certain, and
not with any regard to the quantity of the preceding in-
terest. Indeed the bequest to A. gives the whole interest,
only because it is not restricted by any subsequent words.
If the testator adds " and after the demise of Jl., then, to
the children of A. absolutely," those words would have
their proper effect, by restricting Jl. to a life interest. And
so, if the subsequent limitation had been introduced by the
words "and in case" &c., instead of " and after," &c,, the [ 353 ]
elfect would have been the same, if it had been considered
that those words did not properly import a contingency. So
that the quamiiy of the previous interest is, in one sense,
dependent upon the intrinsic meaning of the words "and in
case" &c., introducing the subsequent limitation, instead of
the meaning or operation of those words being dependent
upon the quantity of the preceding interest. In many cases,
if not in all, where the words are, "and in case" &.c., and
not "or in case" &.C., or "but in case" &c., perhaps the
real meaning is that which is not the grammatical one.
And, so far as the present decision is concerned, such would
seem to be the case. For, if the testator had meant to refer
to the event of lapse, he would have said "in case of the
demise of either or both of them:" for, it was not a very
improbable event that one should die in his lifetime ; but
that both should die in his lifetime was very improbable;
and yet, that is the event he contemplated, if the words
refer to lapse. On this ground, the decision itself in this
case appears to be perfectly sound: but yet, notwithstanding
this decision, it may not be considered a settled point, that
there is a distinction in this respect between real and per-
sonal estate, even as regards wills made before the year 1838.
[ 354 J II. 23.]
AN ORIGINAL VIEW
[§66
CHAPTER THE TWENTY-THIRD.
CERTAIN CASKS OF VOID CONDITIONAL LIMITATIONS, DEPEND-
ING ON THE NON-DISPOSAL OP PROPERTY, DISTINGUISHED
FROM LIMITATIONS IN DEFAULT OP THE EXERCISE OF A
POWER.
Ross V.
Ross, 1 Jac<
«Si Walk.
158.
See also
other cases
cited in the
Reporter's
note.
[ 355 ]
Cutkbert v.
Furrier,
Jac. 415.
If property is limited to such uses as a person 667
shall appoint, and, in default of appointment, to
other uses, this, as it is well known, is good as a power of
appointment, with a limitation in default of the exercise of
the power.
But, if property is limited directly to, or to the use of, a
person, instead of being limited to uses to be appointed by
the exercise of a power; it cannot be limited over in the
event of such person not exercising that power over it
with \vhich he is clothed by the law itself, as an incident to
property.
A testator bequeathed a sum of money to ,^., to be paid
at 25, or between 21 and 25, if the executors should think
proper ; and directed maintenance thereout in the meantime ;
and that in case t/^. should not receive, or dispose of, by will
or otherwise in his lifetime, the aforesaid sum, then, the said
sum should return, and be paid and payable to another
person. ^9. attained 25, and died. He did not receive the
legacy; but the amount had been carried to his separate
account, in a suit to which he was not a party. Sir Thomas
Plumer, M. R., held, that the limitation over was void. He
observed, that the case differed from a power, and a re-
mainder over in default of its exercise: the right of dispos-
ing of the legacy was given him not m lerminis, but as a
consequence of property: it was not given as a power, but
followed from the property being his. That the testator
assumed that he would have a right to it at 25 ; and if ab-
solute property be given to a person, it cannot be subjected,
for his life, to a proviso, that if he does not spend it, his in-
terest shall cease. One of the consequences would be, that
if he had not spent it, and were to die indebted to any
amount, his creditors would be excluded from it.
And where a gift was made by will to the testator's
natural son, to be paid to him at 21, with a bequest over in
the event of his dying under that age, or afterwards, with-
out lawful heirs, and intestate; it was held, that the limita-
tion over was not good, on the ground that a person, after
investing another with the absolute property, cannot give it
II. 24.] OF EXECUTORY INTERESTS. [§fj68. [ 355 ]
over ill the event of the legatee's not exercising that power
which is incident to and a consequence of pro()erty. 'i'hc
case of Boss v. Ji\jss was referred to by the JNlasler of the
Rolls, as decisive of the point.
CHAPTER THE TWENTY-FOURTH. [ 356 ]
LIMITATIONS orERATI.VG DIFFEnENTLY, IN REGARD TO J, ^\n jntcr-
ANOTHER LIMITATION, IN DIFFERENT EVENTS. cst limited aS
an altcrna-
668 I. An interest may be specially limited to take tive or as a
effect either as an alternative, in case a prior in- remainder or
terest should never vest, or as a remainder or quasi remain- qvasi re-
der after it. (See § 128, 159 — 16Sb.) maindcr.
668a II. And even where an interest might appear, II. An infcr-
andca- at first sight, to be a mere alternative, it shall be est shall, if
ses sta- construed as a remainder or quasi remainder, if possible, be
ted § possible, as well as an alternative. (See § 128 — construed as
545-6. 1.36a, 159 — 16Sb.) a remainder
Thus, where a testator devised to two trustees ^"^ ?"«*i re-
and their heirs, to receive the rents until B. should attain 21; '""^'nd^r, as
and if i^. should attain 21 or have issue, then to B. and the ^^, as an
heirs of his body, but if Z?. should happen to die before 21 and ^'^c'"^i''^'<^-
without issue, remainder over; B. attained his age of 21, ^^oicns-
and afterwards died without issue. Lord Hardwicke de- ^'°^"' v._£.a-
crced that the limitation over should take eflcct. The great y J.^
authority upon this subject observes, ^ that Lord Hardwicke g * , '
construed the word "rt«(^/," in the limitation over, as "oa"(c/) ,Soi(thbi
But, in reality it would clearly appear that His Lordship Stonihous'e
regarded the limitation over as both a remainder and an 2 Ves 610'
alternative ; and he does not appear to have construed as slated
"and " as "or," but to have supplied an ellipsis, so as to Fearnc 507.
make the limitation over capable of taking effect on a failure
of issue of B. after 21, and yet, at the same time, to have
prevented the limitation over from taking effect, to the
exclusion of jB.'s issue, if B. had died under 21 leaving
issue. His words are these: " Having first given the whole
legal fee to trustees and their heirs, he did not intend either
of these two children should have anything vested till 21,
or the having issue; and then to have an estate tail: con- [ 357 ]
scquently, as soon as John [B.] attained 21, or had issue,
though he died before 21, that defeated and determined the
estate in law given to the trustees and vested a fee tail in
(a) Fearne, 506.
[ 357 ] II. 24.] AN ORIGINAL VIEW [§669.
him. He did attain 21 ; and therefore had an entail as he
would if he died before 21, but had issue. Then the con-
struction could not be, as insisted for the plaintiff, as with a
double aspect; if he attained 21, then to vest in him an
estate ; or, if he died before, leaving issue, then to give it to
that issue: that is not the construction: but it is, to give an
estate tail in either event. . . . There is a plain natural con-
struction upon these words: viz. if the said John [7>.]
shall happen to die before 21, and also \or, and if he] shall
happen to die without issue: which construction plainly
makes the dying without issue to go through the whole, and
fully answers the intent." — If "and" had been construed
" or," the dying without issue would have had no refer-
ence to a dying under 21; and if B. had died under 21,
leaving issue, the estate must have gone over, to the exclu-
sion of such issue, contrary to the express words, and the
clear intent, as Lord Hardwicke thought, of the testator.
Doe d. The case of Doe d. Usher v. Jessep may at first sight ap-
Ushtr V. pear to clash with Brownsiuord v. Edwards. In Doe d.
Jessep, 12 Usher v. Jessep, Ji. devised to trustees and their heirs in
East, 288, trust for his natural son J. and the heirs of his body ; and if
distinguished j; should die before he attained his age of 21 years, and
{xomBrown- without issue, then over. J. attained his majority, but died
sword V. Ed- without issue. The case of Brownsword v, Edwards was
xoards. oXi^d ; but the Court refused to give effect to the devise over.
The fact is, that this case was essentially dissimilar. The
language of the limitation over was indeed perfectly similar
to that of the limitation over in Brownsword v, Edwards.
But the prior interest in Doe v. Jessep was a vested interest,
whereas the prior interest in Brownsword v. Edwards was
See § 148-9, contingent upon attaining 21, or having issue. And hence
157. the limitation over in Doe v. Jessep was a conditional limita-
tion.
III. Every III. ^ Every remainder or ^wrm remainder, with- 669
remainder or out being specially limited for that purpose, has the
quasi re- effect of an alternative limitation, in case the preceding in-
[ 358 ] terest never vests at all, whether the failure of such preced-
maindcr has ing interest arises from the death of the prior taker in the
the effect of lifetime of the testator, or from the failure of the contingency
an alterna- on which it depended ; unless such contingency, either ac-
tive hmita- cording to the grammatical construction or the apparent in-
lon, in case te^^tiQj^^ extends to the remainder or quasi remainder also;(6)
(h) See Chatteris v. Young, 6 Mad. 30, See also Horton v. WhittaJecr, 1
Durn. & East, 346; Davis v. Norton, 2 P. W. 390; and Doe d. Watson v.
Shipphurd, Dougl. Rep. 7.5 ; Scatterwood v. Edge, 1 Salk. 229 ; and Lord
Hardwicke's remarks in Avelyn v. Ward, 1 Ves. 420 ; as stated, Fearne, 235 —
237; and the limitation to V. in Vachel v. Vachel and Lernmon, 1 Chan. Cas.
129, as stated, Fearne, 404.
II. 24.] OF EXECUTORY INTERESTS. [§6G9. [ 358 ]
and unless there is some other condition wliich consti- ing interest
stitutesa preretjuisile to the vesting of the remainder or quasi never vests,
remainder, and such condition is not fnlfdled. Sec § 159,
In the tbllowing case the condition extended to the re- l^*^' ^28-
mainder. l'^^^- ^
A testator devised real estates, upon trust tliat his daugh- ToJdervy v.
ter M. should, until 21, if sole and unmarried, receive there- Colt, 1 You.
out, an annuity of 60/., and that she should thereafter, and & Coll. 621.
until 31, if sole and unmarried, receive a further amuiity of
40/.; but, in case his daughter should marry without the
consent of his trustees, then, she should receive only an an-
nuity of 50/., and the said estates should, inmiediately upon
such marriage, be in trust for the children of M., as tenants
in common in tail ; and, for default of such issue, in trust
for the testator's sister, S. : provided that, if M. should marry
with the consent of the trustees, it should be lawful for tliem
to settle the estates upon il/. and her husband, for their joint
lives, and the life of tlie survivor, with remainder to tlie issue
of M. &.C. M. married with consent, and died without issue.
The Court, on a reliearing, reversing its former decision,
held, that as M. married with consent, the remainder to S.
failed, though M. died without issue. The Lord Chief Baron
considered the words, "and for default of such issue," as
referring to the issue of the children, and the limitation to
^., as a remainder depending on an estate tail (1 Y. & C. [ 359 ]
636-7); and he was of opinion that the condition upon which
the estate tail was limited, clearly applied to the limitation
to S., upon the words of the instrument as they stood [lb.
639); and that the Court could not, by anything but a prob-
able conjecture, which it had no right to act upon, insert the
proviso immediately before the limitation over of the re-
mainder to the sisters {Ih. 612). There was one case in
which the testator had clearly omitted to make any provi-
sion for his sisters, namely, in the event of the daughter
never marrying at all. And His Lordship asked, why the
other case might not be ranged under the same class, either
of a design to die intestate, or of a casus omissus {lb. 641).
Immediately after stating his opinion to be that the con- Observations
dition extended to the limitation to A'., Ilis Lordship added ^n Toldervy
another reason for the failure of that limitation, appareiuly v. Colt.
treating the failure thereof as a necessary consequence of the
total failure of the estate tail on which it depended ; but
His Lordship's words are ambiguous, and probably were
either inaccurately reported, or not intended to convey the
meaning they apparently convey. Admitting that the limi-
tation to S. is not simply an alternative, amounting to a
limitation to S. for default of such children, but a remainder,
to lake elfect on the expiration of the preceding estate tail;
yet we have seen that every remainder lias the effect of an See § 669.
alternative limitation, in case the preceding interest never
[ 359 ] II. 24.] AN ORIGINAL VIEW [§669a— G70*.
takes effect at all, unless, as in this case, the contingency on
which the preceding interest depends, atlects the remainder.
— In this case, there was, first, in the event of the daughter
See §117- marrying without consent, the limitation of a springing
12ra, 159. interest to the daughter's children in tail, with a remainder
to S., that is, a remainder in relation to the preceding limi-
tation, but a limitation of a springing interest, when viewed
in relation to the absence of a present particular estate.
But, secondly, in the event of the daughter marrying with
See § 128- consent, there was an alternative limitation to her and her
136a. husband for their joint lives &c. As soon as the daughter
married with consent, the first two limitations became inca-
pable of taking elfect ; and the third limitation at once took
[ 3G0 ] effect, as an alternative for them, in consequence of the hap-
pening of the second-named event, instead of its opposite,
the first-named event.
Conse- As a consequence of the rule last stated, it fol- 669a
qiienceof the lows, that *= where a testator, after creating contin-
abovc rule, gem estates tail in real property, with a remainder over,
as regards directs, that personal estate shall go to the persons entitled
chattels jq {jjg ^.q^i estate, as far as the rules of law or equity will
which are to pei-itjit . i^ such case, as the limitation in remainder is ca-
gotothe per- p^l^lg ^^ operating as an alternative, as regards the real
f°"^f!^,J f estate, in case the contingent estates tail never vest; so the
^Tl d^ ^ ^^ limitation over shall also enure, in that event, as an alterna-
en ai e . ^.^^ limitation of the personal estate in favour of the indi-
vidual entitled to the real property under the same ;(<?)
though it could not pass the personal estate to him, if the
contingent estates tail had become vested, and the remain-
der were consequently to take effect, in regard to the real
estate, as a remainder; because personal estate, as we shall
See § 719. see hereafter, cannot be limited in remainder after an inde-
finite failure of issue.
Instance of Where a prior interest vests in the first instance, 670
remainder or afterwards becomes vested in right, a subsequent
taking effect limitation in remainder takes effect even though such prior
as such, interest never becomes vested in possession. But then,
though tak- such subsequent limitation takes effect, as a remainder,
ing as an al- g^^jg^, ||,g pj-ior interest has vested, in interest, but has regu-
ternativcas larly expired before it could become vested in possession:
regards the }( ^Jq^s not take effect, as an alternative limitation, simply
possession. ^^ ^ substitute for a prior interest which has never taken
effect at ail; for the prior interest, according to the hypo-
thesis, has vested in right or interest, though not
in possession. An interest may be limited to take 670*
effect either as a remainder after a preceding in-
(f) See Gower v. Grosvenor, stated, Fearne, 521-2.
II. 24.J OF EXECUTORY INTERESTS. [§G70a— fJ72. [ 3G0 ]
tercst, or as a conditional limitation, in defeasance iheieor.
(See § 240.)
670a IV. ''An interest may be specially limited to IV. An in-
take effect either as an alternative, in case a pre- 'crest may
ceding interest should never vest at all, or as an interest belimiled to
under a conditional limitation, in defeasance thereof in a par- ^^'^^ cfTect
ticLilar event. (f/) (See ^ 128 — 13U, 148 — 158.) either as an
^ ^ ^ ^ '' nlternnfive
or as an interest under a conditional limitation.
671 V. But 'a mere conditional limitation will have [ 361 ]
the effect of an alternative disposition, if the prior V. A mere
interest entirely fails, (<>) unless the condition annexed to the conditional
conditional limitation is not fulfilled, and it does not ap- limitation
pear to have been intended that tlie subsequent limitation ^^'" have the
should take effect except upon the fulfilment of the condi- effect of an
^JQ,-j_ alternative,
67Ia ""And a limitation of a springing interest of the I' '^""^^^
seventh kind may have a similar effect.f /) (See '"^^^■*^^^
X in io7o \ v«/ / ^ never vests.
§ 117 — 12/a.) ^ , ..J
672 The reason why remainders, conditional limita- ^\; J? r^
,,..,,. ^ . '. . ,. , . a umitation
tions, and limitations oi springing interests ot this ^r^ e,...;„„
kind, arc usually capable ol operating as alternative limita- jj-|„ jntprelt
tions seems to be this: that where an interest is postponed so oHhe sev-
as to take elfect by way of remainder, conditional limita- cnth kind.
tion, or springing interest, this seldom arises from any other Pfinciple of
motive than a desire of benefiting the person to whom the the third and
prior interest is limited; and therefore, where he cannot take {\[\\^ rules.
at all, through the failure of the contingency on which his
interest depends, and the reason for postponing the ulterior
interest fails on that account, such ulterior limitation, whether
by way of remainder, conditional limitation, or limitation
of a springing interest, is allowed to take effect immediately
as an alternative limitation.
A testator, after providing for such children as he might Meadows v.
leave, preceded thus: but in case all the said children shall Parry, 1 V.
die before 21, then, I give all such residue to my wife. Sir «Sc B. 124.
W. Grant, INI. R., held that the bequest over took effect,
though the testator never had any child.
So where a testatrix directed, that incase she should have ^furray v.
but one child living at the time of her decease, or all but Jones, 2 V.
&B. 313.
(d) Sec limitation to T. in Vachel v. J'aehel and Lcmmon, 1 Chanc. Cos.
12'J, as stated, Fcarnc, 401; and Masscnbiirgh v. Ash, 1 Vern. 304, as stated,
Fcarne, 518.
(f) Jones V. Wcstcomh, 1 Eq, Abr. 245 ; Andrews v, FuIIiam, 1 \\'ils. 107;
Gidlhcr V. Wickeff, 1 Wils. 105 ; and Lord Ilardwickc's observations in Avchjn
V. Ward, 1 Vcs. 420 ; as stated, Fearnc, 510 — 513. Doe d. Herbert v. Sclby,
2 Bar. & Cres. 926.
(/) Jlvelijn\. Ward, 1 Vcs. 420, as stated, Fcarnc, 513.
Vol. II.— 37
[ 3G1 ] 11.2 1.] AN ORIGINAL VIEW [§673
Olio sliould die under 21 and unmarried, then, her trustees
should stand possessed of the rcsidne in trnst for another
family. The testatrix never had a child. Sir W. Grant, M.
R., held, that the bequest over took effect; observing, that if
[ 3G2 ] the subject admitted of gradation, it might be said, that the
condition was more than fnlfilled; the circumstance which
was to exclude the residuary legatee being the existence of
more than one. (2 V. & B. 320.) But that even if the
words imported, if she should have one child living at her
death, then, the case fell within Jones v. JVestcumb: the
limitation over depended on the failure of that which prece-
ded it, but that the testatrix had not taken in all the modes
by which it might fail. {lb. 322.)
Mitcldnnon And where a testatrix gave the residue of her personal
V. Sfwell, 2 estate to her daughter C. D., for life; and, after the decease
M. & K. of C. I)., to her grand-daughter, C. L. D., if she should sur-
202. vive her said mother, and live to attain 21; with a direction
for her maintenance in the meantime. And in case the said
C. L. D. should not survive her said mother, and live to
attain 21, then, to such other child or children of her said
daughter C D., as should be living at the time of her said
daughter's decease, to be paid to them when and as they should
have attained 21; with a direction for their maintenance.
And, in case of the death of any of them [i. c, such other
children as should be living at C. Z^.'s decease] before such
age, then, the share or shares of such child or children so
dying, to go to the survivors or survivor of them, on their or
liis coming of age. And if all such other children of her
said daughter C. D. should happen to die before attainment
of the said age, then, to her daughter L. M. C. L. D. died
in the lifetime of the testatrix's daughter C. D.; and the only
other child J. i>.,also died in the lifetime of C. D., after
having attained 21. Sir L. Shad well, V. C., and afterwards
Lord Brougham, C, on appeal, held, that the bequest over
to L. M. took elfect. His Lordship observed, that the Res-
pondent did not read the words as if they were " all the
other children of C'«?'o//«e," but took them literally as they
stand, "all such other children of Caroline,'' and contended
that they described one class of the children of Caroline,
namely, those who survived her. That as none survived
her, and therefore that class never came into existence,
(2 M. & K. 210), there seemed nothing inconsistent with the
general intent in giving effect to the executory limitation,
by treating it as a gift over upon the removal out of the
r 3G3 ] ^^^y o^ ^''° preceding interests, in Avhatever manner that
removal was edected ; whether by persons coming into exist-
ence, so as to make the interests vest, and their dying under
21,80 as again to devest their estates; or by their never
coming into existence, and thus never taking the interests at
11.21.] OK EXECriTORY INTERESTS. [§ti72. [ 3G3 ]
all. {lb. 213.) That if indeed anything had turned on the
circumstance of their being surviving chiUlren of Caroline,
the reasoning would liavo failed (/A. 21.0); for, wherever
the words plainly import a condition as in the testator's
contemplation, and where tliat condition cannot be under-
stood to have been substantially complied with by the event
which has actually happened, the gilt over fails. {Ih. 217.)
Tlie limitation to "such other children of C. I), as should Observations
be living at her decease," would have given the children, if on Mackiit-
any, who survived C. I)., a vested interest at her death; for, non v.
the payment alone, as Lord Brougham intimated, and not Scwell.
the vesting, was postponed till their majority. And hence
the nltimaTe limitation to L. M. was a conditional limitation, Sec § 148-9.
to take etlect in defeasance of the estate of the children of
C. B. who survived her, in case of their dying before 21.
But as there were no such children, that is, no children who
survived C. />., and consequently the limitation "to such
other children as should be living at her decease," entirely-
failed, the ultimate limitation to L. M. took efl'ect, not as a
conditional limitation, in defeasance of a prior estate, but as
an alternative limitation, by way of substitution for a prior See § 128-
estate which never took ellect at all: so that, in the events 130.
which happened, the disposition made by the will was con-
strued as if it amounted to a bequest "to all such other chil-
dren of C. D. as should be liviug at her decease," to be paid
to them at 21, but if there shall be no such children, then, to
L. M.
So where a testator requested that his plate &c. might be 'MacVmnon
divided equally between his two daughters; and, upon the v. Peacfi,--i
demise of either of them without lawful issue, then the share Keen, 5o.j,
of her so dying should go to her sister. One of the daugh-
ter's died unmarried in the testator's lifetime. I^ord Lang-
dale, M. R., said, that, in the event of either daughter dying
without lawful issue, her share was given to her sister, /. e.
to the survivor of the two daughters; and that the circum- [ 3G1 ]
stance of the deceased daughter having died in the testator's
lifetime did not prevent the gift over to her sister from taking
effect. His Lordship referred to Norlhei/ v. Burba^^c, Prec.
in Chan. -171, pi 4 ; IVilUns: v. Baine, 3 P. W. 113 ; Hum-
phrey's V. Howes, 1 Russ. & JNI, 639.
And so, where a testator gave a sum of money in (rust to Wihon v.
pay the interest to A., for life ; remainder to B., for life ; re- Mount, 2
mainder to such of the children of .1. as should be living at the Beav. 397.
decease of the survivors of .7. and B.,\o be paid at 21; with
benefit of survivorship, in case of the death of any of them
under 21; and if all such children should die under that age,
then, from and after the decease of .^7. and />., to pay over
the capital to certain other persons. ^. had only two chil-
dren, and they attained 21, and died, leaving issue, in »/i.'s
[ 3G4 ] II. 2 1.]
AN ORIGINAL VIEW [§672a, G73.
Exception.
Foutleds^e v.
Dorril, 2
Yes, Jun.
356.
[ 365 ]
VI. Condi-
tional limita-
tion becom-
ing a re-
mainder in
the room of
a preceding
remainder in
fee.
See § 148-9,
1.59.
Doe d. Har-
ris V. How-
ell, 10 Bar.
&Crcs. 197,
203.
lifetime. Lord Lan2:dale, ]M. R., held, on the authority of
Mackinnon v. Sewell, (though that, as his Lordship observ-
ed, was tlie case of a residuary gift) that the words were not
to be taken according to their strict meaning, but that the
gift over took etVect,
But where the prior limitation is void for re- 672a
motencss, a subsequent conditional limitation fails.
A person made a testamentary appointment of a sum of
money to M. D., for her life, for her separate use ; and after
her decease to her children; and, incase she should leave no
children, or they should die before 21 or marriage, to R. D.,
his executors and administrators. The appointment to the
children being held to be void for remoteness, in consequence
of not being confined to 21 years from lives in being at the
creation of the power, it was argued, that the subsequent
appointment to R. 1). was only accelerated by the failure of
the prior limitation. But Sir R. P. Arden, M. R., held, that
it was void: because (he observed) it would be monstrous
to contend, that although it was appointed to R. D. in fail-
ure of the existence of persons incapable of taking, yet, not-
withstanding they exist, he should take as if it was well
appointed to them and they had failed. And though there
were no children of M. D., and there might be none, yet he
agreed with Lord Kenyon, in Gee v. Jludley, that the Court
would not wait to see what contingency would happen,
when, at the time it was given, it was at a period more dis-
tant than the law would ]iermit. (2 Ves. Jun. 363.)
VI. Where a remainder in fee, and not in tail 673
or for life, is subject to a conditional limitation, to
take effect in defeasance of such remainder, in an event
which must happen, if at all, before the regular expiration
of the particular estate; in such case, although the condi-
tional limitation has no connexion with the particular estate,
in the first instance ; yet, if the event happens, on which
the conditional limitation is to take effect, the conditional
limitation then becomes a remainder expectant upon the
particular estate, in the room of the original remainder in
fee.
A testator devised to his daughter, E. H., the wife of
W. II., for life ; remainder to W. H., for life ; remainder to
John, his daughter's son, and his heirs and assigns for ever;
but, in case he should die before the testator's daughter,
E. II., and she should have no other child living at her
death, liis will was, that his said daughter should give and
devise the pretniscs to such person as she should think
proper. The testator died in February 1763, and John,\.\\e
daughter's son, in April following. In .lanuary 1766, the
daughter had another son, JV. II., the younger. In No-
vember 1770, JV. II. the elder died; and in llilary Term
IL 24.] OF EXECUTORY INTERESTS. [§674—077. [ 3G5 ]
1773, E. II. levied a fine with proclamations. Bayley, J.,
in delivering the judgment of tiie (\)iut, said, that until the
death of the testator's grandson, John, the limitation by im-
plication to any other child or children wiiom E. II. should
leave at her death, " could avail only as an executory devise,
by reason of the previous gift of the whole fee to the testa-
tor's grandson, John. Upon the death of John, we think
thc character and quality of this limitation changed, and it
became a contingent remainder Fur, at the time the
fine was levied, the only vested estate was in Elizabeth, the
testator's daughter, and her husband in her right; and the
only otlier interest was a contingent remainder in favour of
any child or children she should leave at her death, and that [ 3CG ]
remainder the fine has destroyed.
G74 VII. K future interest (as the reader may have VII. A future
perceived from ^a preceding passage (,»•),) is never interest is
construed as an interest under a conditional limitation or as not con-
a springing interest, whether by way of use, or devise, strucd an in-
wherc a preceding freehold has once vested, and the future tcrcst under
interest is so limited, that, at the time of the limitation, there ^ conditional
was a possibility of its taking ellect as a remainder; tliough hn^'tation or
other circumstances may seem to indicate that it was not in- ? spnngmg
tended to take effect as a remainder; and though eventuallv, '"l^""^^.^'
• -» • * w non it f*in
in lact, It may be incapable of operating in that , , ,
-_- n ^ 1, I J- c I ij u- u tX3 construed
675 way. But, '' where a precedmg freehold, which • ,
was capable of supporting a future interest as a g^.^ c 148.9'
remainder, is, by a subsequent accident, (as by the death of \yi 159
the first devisee in the testator's lifetime) precluded from p.ut'whcn
taking any effect at all; the future interest may take effect tlic prcced-
as a springing interest by way of use or devise, ina freehold
676 And, in such case, an ulterior interest in remainder fails, what
after such Idss remote future interest as above men- would other-
tioned, until the less remote future interest vests, also be- wise have
comes a springing interest, when regarded abstractedly in- been a re-
stead of in relation to the less remote future interest; but, mainder, is
as soon as such less remote future interest vests, then such construed a
ulterior interest is not only a remainder in relation to such ^pi'ingmg m-
Icss remote future interest, but it is simply a remainder, even ^^'"c^'-
when abstractedly considered; having altogether ceased to ^^"^/*" ^"^^'
be a springing interest, and having resumed that character !"^' interest
111 T*oni 1 1 IK It ' P
which it would all along have borne, had the preceding free- 1,1'
hold taken effect as intended. (A) „ t...:„J '^
^ ' a springing
interest, abstractedly regarded, though it is a remainder as regards the less re-
mote springing interest.
677 And, in like manner, in other cases, 'an ulterior And so, in
interest in remainder after a less remote future in- other cases,
(,^) Sec ^ 19G — 199, and rases there referred to. And see Fearnc, 526.
(//) Sec Hopkins v, Hopkins, Cn?. temp. Talb. 44, as stated, Fcarne, .525-0.
[ 3GG ] II. 25.] AN ORIGINAL VIEW [§678.
until a less terest, until such less remote future interest vests, is a spring-
i-emote fu- ins: interest, when regarded abstractedly instead of in rela-
[ 367 ] tion to such less remote future interest; but as soon as
ture interest such less remote future interest vests, such ulterior interest
vests, an iil- becomes simply a remainder, even when abstractedly cou-
terior inter- sidered.(/)
est in re- A testatrix devised lands to J. N., his heirs and assigns
niainder is a fQj. gycr . provided that if J. N. should die without any issue
springing in- q,-^ [\^q body of his then wife begotten, that the lands, after
terost, ab- ^jj^ death of J". N. and his wife, sliould go to all the children
stractcdiy of tlje testator's grand-daughter, M Z)., as tenants in com-
considcred, ^^^^^^^ j ^_ ^j^^| without issue, in the lifetime of the testa-
?ainder ^ ^^^^' leaving his wife him surviving. It was held, tliat J. N.
'^"^^' , would have taken an estate tail if he had survived the testa-
such less rc-^'^*^^ '^"^ ^^^° limitation to M. Z).'s children would have
mote future operated by way of contingent remainder; but that, as the
interest. estate tail had lapsed, and the law would not raise an estate
jj 1 c // for life by implication in J. N.'s widow, there was no estate
^R ' cJ^% of freehold to support the interest of M. Z).'s children, as in
Mau & ' remainder; and therefore, on the authority of Hopkins v.
Selw. 482. Hopkins, Cas. Temp. Talb. 44, the limitation to them ope-
rated by way of executory devise. Lord Ellenborough,
C. J., stated the rule to be, that no limitation shall operate
by way of executory devise, which, at the time of the death
of the testator, was capable of operating by way of contin-
gent remainder. His Lordship observed, that it was clearly
the intent to benefit J. N. and his issue in the first place ;
and, in the next place, M. H.'s children ; but that the
manner of carrying the intention into execution, whether by
way of remainder, or executory devise, or any other mode,
rarely enters into the mind or constitutes part of the inten-
tion of tlie testator.
[ 3GS ] CHAPTER THE TWENTY-FIFTH.
LIMITATIONS OPERATING DIFFERENTLY IN REGARD TO
DIFFERENT LIMITATIONS.
I Thosamo ^- "^^^^ ^^^^ hmitation may be "at once an 678
limitation alternative limitation in regard to the next pre-
may be a ceding limitation, and a conditional limitation with respect
remainder, to another preceding limitation ;(«) or a remainder, in rela-
(i) Stephens v. Stephens, Cas. temp. Talb. 228, as stated, Fearne, 519, 526.
(a) See Fearne, 514, note (/).
11.25.] OF EXECUTORY INTERESTS. [§G79—(JS1. [308]
tioii to the next preceding limitation; an alternative limifa- an aliorna-
tion, in regard to anotlier limitation ; and a. conditional tivc, am] a
limitation, with respect to a still earlier hmitation. conditional
679 For, since a remainder usually lias the eti'ect of limitati.tn.
an alternative limitation, if the preceding interest ^^^ § 1^'''
never takes ellect at all ; where the preceding interest is an l-*^. 14'^-'J.
alternative limitation, which does not carry a lee simple or ^"-'^ > ""^•
(jualilied, and which is a suhstitnte lor a jjrior limitation in
i'ee, and ncithi'r the prior limitation in fee, nor the inter-
vening alternative limitation so substituted for it, take any
elfect at all, the remaiiidcr, operating in this case as a sub-
stitute for a substitute, that is, for the intervening alternative
hmitation, must be a substitute for the prior hmitation in
fee: and hence, the remainder, at the time of its creation, is
capable of operating either as a remainder, or as an alterna-
tive limitation, as regards the intervening alternative limita-
tion, and also as a simply alternative limitation in
680 respect to the prior limitation in fee. And where
a clause takes eflect, by way of alternative limita-
tion, as a substitute for a conditional limitation, it must be
itself a conditional limitation, with respect to the interest to
be defeated by the conditional Hmitation for which it is a
substitute.
GSl To illustrate the truth of these positions, let us
suppose that lands are devised to the use of i/?.
and his heirs; and if he shall leave no child of his body [ 3G9 ]
living at his decease, to the first son of J3. who shall attain
the age of 21, and his heirs; and if B. shall have no such
son, to all the daughters of B. who shall attain the age of
21, or marry, and the heirs of their bodies, &.C., remainder to
C. and his heirs. In this case, if ./?. leaves no child living
at his decease, and B. has no son who attains 21, but the
estate vests in the daughters of B., and there is afterwards
a failure of issue of their bodies, the limitation to C. will
operate as a remainder in relation to the limitation to the
daughters of B. But if ..'Z leaves no child of his body living
at his decease, and B. has no son who attains 21, nor any
daughter who attains that age or is married, the limitation
to C, instead of operating as a remainder, takes ellect as a
substitute for the intervening alternative limitation to the
daughters of ^., which is a substitute for the prior limita-
tion to the son of B. ; and thus the limitation to C, is
mediately and virtually a substitute for the prior limitation
to the son of B., or, in other words, an alternative limitation
in regard to the gift to the son of B. And, in such case, it
is also a conditional limitation as respects the limitation to
,9. ; inasnnich as the gift to the son of B., for which it is
mediately and virtually an alternative or substitute, is a
conditional limitation, as regards the limitation to »'i. If .7.
[ 369 ] II. 25.] AN ORIGINAL VIEW [§6S2, 682a.
has no child of his body hving at his decease, the fee is to
pass from him, and whatever hmitation may happen to be
the one which attracts and transfers the fee from him to an-
other person on that event, is a conditional hmitation, as
regards the limitation to A.: so that, if ^d. leaves no child
living as aforesaid, and B. has no child who becomes capa-
ble of taking, the limitation to C. will take effect on the
death of A.\ and by transferring the fee from A. to C, will
operate as an alternative limitation, as regards the condi-
tional limitations to the sons and daughters of B., and thus,
jl7l,c sfjij^g standing in their place, will also operate as a conditional
limitation limitation, as respects the limitation to A., in the same
in.iv be an manner as the limitation to the sons of B. would have opc-
alicniative rated, had it taken any effect.
ViwA an aiig- II- And it would seem, that, in a similar man- 682
[ 370 ] ner, the same limitation may be an alternative
nicniative limitation in regard to the next preceding contingent limita-
limitation, or tion, and, at the same time, as respects another preceding
a limitation limitation, or the absence of any preceding vested limifa-
ofa spring- tion, an augmentative limitation, or a hmitation of a spring-
ing interest, ing interest.
►_ce § 128, jii^ Every more remote limitation may be a 6S2a
137, 117. remainder, as regards a prior limitation, though it
III. Every is not limited next after such prior limitation, so long as it is
more remote to take effect, if at all, on the regular expiration of the in-
Imiitation tcrest created by such prior limitation,
jnay be a yr ^ devised to his son G. for life; and, from and after
^!^"'^j '^""^ his decease, unto all and every the children and child of G.,
r' lawfully to be begotten, and their heirs for ever, to hold as
prior limita- , , ■ -^ \ ■ c \ ■ /-. i \ ^ \- ■ i
tion thou"h ^^nants m common ; but, it his son G. should die without
not limited ^^^"^j or leaving issue, and such child or children should die
next after it ^^^^^''^ attaining the age of 21 years, or, without lawful issue,
.See \ 159. tlien, he devised the same estates unto his son 7'., his
Doe d Her- daughter A. S., and his son-in-law W. D., and to their heirs
bcrt V* Sel- ^^"^ ever, as tenants in common. After the testator's death,
hii 2 Bar & ^" suflered a recovery, and died unmarried, and witliout
Crcs. 926. issue. Baylcy, J., remarked that the devise must be read
"if the children should die before 21 a«^ without issue,"
Sec § 159. as otherwise the remainder [executory devise] would be too
remote. And he added that "an estate may be devised
over in either of two events; and that, in one event, the
devise may operate as a contingent remainder [in relation
to the particular estate] ; in the other, as an executory de-
vise, [in relation to an intervening interest]. Thus, if
George had left a child, a determinable fee would have
vested in that child, and then, the devise over could only
.Sec § 148- have operated as an executory devise, [e. e. as a conditional
158. limitation by way of executory devise]. But, George having
died without having a child, the first fee never vested, and
II. 2G.] OF EXECUTORY INTERESTS. [§GS3— G8G. [ 370 ]
the remainder over conlinued a contingent remainder " [in
relation to the particular estate]. And the Court held ac-
cordingl}'', that it was a contingent remainder, and was there-
fore defeated by the destruction of the particular estate by
the recovery.
CHAPTER THE TWENTY-SIXTH. [ 37i ]
LIMITATIONS INTENDED TO OPERATE IN DIFFERENT WAYS,
IN REGARD TO DIFFERENT PORTIONS OF PROPERTV.
683 It would seem that a limitation may operate in Li"i'tations
different wavs in regard to different portions of ["^>' °P^''^^<^
property, thus, in this way.
684 I. There would appear to be no reason why a h A hmita-
limitation siiould not, by express words, be made ^'^^" "Y"
to operate as a conditional limitation in regard to property pf'""ca so as
previously devised to some other person, and also as a limi- ^ cipf'J'\e as
J ■ c • • • . . ■ ' 1 » , ^ a conditional
tation ot a springing mterest m regard to properly not ,. • ..
before devised, in such a way, that, in one and the same ^^^j ^^^ ^ jj^
event, both portions of property may go to the same per- niitation of a
^^^' s])ringirig in-
terest, in regard to different portions of property. — See § 148-9, 117, l:.i7b.
685 II. In a similar manner, it is conceived, that a II. A limita-
limitation may be penned so as to operate as an tion may be
alternative limitation, in regard to one portion of property, so penned as
and as another kind of limitation, in regard to another por- t° operate as
tion of property. ^" 'dterna-
686 It may indeed be objected, that as the person '^^'^ ['"'^/^.'^
who is the object of an alternative limitation, is f^"'|'.^''^.''" '^.'"^
only a substitute for the primary obiect of the testator's ° ""' '^ "^'"'
HI ro*-'0.rti to
bounty, there is an improbability, a priori, that the alterna- j;,t. .p, . ^^..
tive limitation should be intended to vest in iiim a larger ,;'*^ ^r.,.^
1 1 ..... 1,1 lions ol pio-
amount ot property than the prior limitation would liave pp,.ty
vested in the primary object, in whose stead he is to take. ^,>p\' joq
But, yet, it is conceived, that an alternative limitation, may, ijo^ 70(5^
by express words, have this operation, unless the event on Qbiection
which the alternative limitation is to take elfect, is too re-
mote as regards the additional property.
Vol. II.— 38
[ 371 J II. 2G.] AN ORIGINAL VIEW [§687.
In the case of MtiJcnlm v. Taylor, the contrary CS7
mip:lit seem to he decided; hnt probahly it is not
to be regarded as going the length of estahhshing a general
rule, to the etiect, that an alternative limitation cannot be
[ 372 ] made to pass more than vvonld have passed in the opposite
event, nnder the prior limitation, for which it is a substitute.
Malcolm V. I* that case a testatrix devised and bequeathed a West
Taylor, 2 India plantation, and all the residue of her money in the
Riiss. *S^ M. funds, and also her plate, books, and certain portraits, to
416. E. G. T., and M. T., for their lives, equally; and, after the
death of either, the whole to the survivor, for life; and,
after the decease of the survivor, then, unto such children
of M. T. as she should appoint ; and, in default of appoint-
ment, then the plantation and the residue of the stock to be
equally divided among the said children and their heirs;
the slock to be an interest vested in them, being sons, at
21, and, being daughters, at 21 or marriage; but in case
M. T. should die without issue of her body, the testatrix
devised the plantation equally among the children of */i. T.
and their heirs and assigns ; and in case M. T. should die
without issue as aforesaid, the testatrix bequeathed the said
residue of stock, and all her said plate, books, and portraits,
unto /. il/. and his assigns, for his life, and, after his decease,
she bequeathed the same to his eldest son for ever. But, in
case the said /. M. should die under age and without issue,
she then gave the said residue of stock, plate, books, and
portraits, to M. M. absolutely. M. T. survived E. G. T.,
and died without having been married. It was held by the
Master of the Rolls, and afterwards by Lord lirougham, (J.,
on appeal, that /. M. took a life interest in the stock, but
no interest in the plate, books, and portraits. 1. /. M. took
an interest of some kind in the stock. It was argued, that
the words, "in case M. T. should die without issue as
aforesaid," imported an indefinite failure of issue. But it
was decided, that they referred back to the children, so as
to amount to an alternative limitation in the event of M. T.
having no children at all; the testatrix clearly intending lo
bequeath (he stock to the children of M. T, if she had any
children, and to /. AL, if she had not any children. 2. The
interest which /. M. took was only for life: for, it would be
doing the utmost violence to the obvious meaning of the
See § 403-4. clause, to construe "son" a word of limitation, when, in
[ 373 ] almost every case, it is a word of purchase, and the interest
of/. M. was expressly restricted to a life interest; and the
meaning of the subsequent words, "in case the said f. Al.
shall die nnder age, and without issue," nnght liurly be
taken to refer to the contingency of his dying without
havinc had anv children. 3. It was held that /. M. took no
II. 2G.J OF EXECUTORY INTERESTS. [§687. [ 373 ]
interest in llie books, plate, and porlraiis. The reason of
this decision is thus stated by Lord IJroiighani. *' It [/. e.
the plate] is first given, with the plantation and the stock,
to Elizabeth and Maria, and the survivor, for life, and,
after the survivor's decease, to Maria's children, as she
may appoint. Here the plate [together with the books and
portraits] is dropped, and no ))rovision with regard to it is
made, in the event of Maria Taijlor faihng to exercise her
power of appointment. So that, in this first portion of the
will, there is no dealing with the plate, to which, in con-
struing the subsequent gift over, the words ' without issue
as aforesaid' can be referred back. If then the construction
as to the stock be a sound one, which refers those words to
such issue as had been mentioned when dealing with the
same fund in the former clause, and not to the issue men-
tioned when dealing with the plantation; by parity of
reason, all reference back must be excluded, in construing
the same words as to the plate ; inasmuch as there is
nothing before mentioned touching the plate in connexion
with the children, or with any thing to which issue can refer.
The plate, then, will be given over on a general failure of
issue, and whether from the gift being too remote, or from See § 706,
the gift to her being what in the case of realty would be an 714, 719.
estate tail — it is indifiercnt which — Maria Taylor takes See § 5!J:3,
absolutely, and consequently, the interest in this part of 593a.
the property now vests in her personal representatives."
(2 Russ. & INI. 444.)
With the utmost deference for so great an authority, it Observations
may perhaps be questioned, whether this part of the deci- on Malcolm
sion is altogether satisfactory — whether there was any ne- v. Taylor,
cessity for the conclusion to which the noble and learned
Judge thought himself, by parity of reason, obliged to come.
Tlie reasoning at the bar would seem to be perfectly incon-
trovertible, when it was urged, that there was " but one
set of words introchicing the gift over, both of the funded [ -^74 ]
property and of the plate and books, and equally referable
to both. How then was it possible to deny to the same
words the same construction, with reference to one and the
same subject matter ? for, though the descriptions of pro-
perty are two, they form the subject of but one gift ;" {Il>.
128) and (it might liave been added) they are of the same
legal nature, being both personal estate. It is true, indeed,
there was some degree of improbability, d priori, in the
supposition, that the alternative limitation should have been
intended to confer on /. I\I. and his son, a larger amount oi
property, in the event of tiiere being no children of 71/. T,
than those children, the prior objects of the testator's bounty,
would have taken, if any such had existed. Hut this dif-
[ 374 ] II. 2G.] AN ORIGINAL VIEW, &c. [§6S7.
ference, as was urged at tlic bar, probably arose from a
mere accidental slip. But admitting that it did not, the
simple question would seem to be, not what was the proba-
bility or improbability, a jviori; but, what were the express
words ? and, whether there is any rule of law, preventing
an alternative limitation, however it may be framed, from
conferring on the person who is the object of it, a larger
amount of property than the other party would have re-
ceived for whom he is substituted ?
PAET III.
RULES AND PRINCIPLES RELATING TO MISCELLA-
NEOUS POINTS IN THE LEARNING OF EXECUTORY
INTERESTS.
in. 1.] OF EXECUTORY INTERESTS. [§688— 690. [ 377 ]
Ilcrnativc,
CHAPTER THE FIRST.
or THE EFFECT OF THE NON-FULFILMENT OF CONDITIONS(«)
PUECEDENT AND MIXED.
688 I. When the vesting of an interest, whether in real I. Eni-ct of
or personal estate, is made to depend upon a con- the non-ful-
dition precedent or mixed, and such condition is not exactly filment of
lulfilled, the interest which is to arise thereon, if it is not a direct comli-
mere ailernalive interest, fails altogether, however plain the f''^"'* pi"cce-
a])parent intention to the contrary may be, unless such intcn- ^^"^ ^'"^
tion is sufficiently expressed by, or necessarily implied in, '""'Y ^^^ ^^'
other words in the instrument. ^ '■'. ^.'"^''^
689 And ''if such interest was to arise by wav of f"^"''"^'''"^^"^"
I-.- 1 1- •♦ .- ■ 1 r r ■ ' ■ IS not a mere
conditional limitation, in defeasance oi a prior in- ,
n 1 icrnnt i
tcrest, such })rior interest then becomes absolute and inde- .<;^ ,.^o\
feasible :{b) because, the condition, as regards such prior
interest, is a condition subsequent ; and an interest subject g^^^, ^ U jo
to be defeated by a condition subsequent, of course becomes
absolute, when tlie fulfilment of such condition can no longer
take place.
'I'he exact fulfilment, then, of a condition precedent or
mixed, being requisite, it follows, that
690 1. Where an event may take place under difler- •'•. "p'^^'^'^
cut circumstances, and the testator has only pro- ^^^'^ ^^F'
.,,/.., . 1 . . r • . • pf'ns under
vided lor its happening under one state ot circumstances; in ' .
such case, if it happens under other circumstances, the in- funistances
erest limited will fail, unless it is a mere alternative interest, than those
although the diti'erencc in the circumstances may appear to specified
be perfectly immaterial, and although it is almost certain, con- r 373 i
jecturally, that the testator, in providing for one case, forgot ^nd the liini-
to provitle for others that might arise, instead of intending tation is not
the interest to depend on the event happening in the mode a more ahcr-
specificd. naiivo.
A testator, if his son should die, leaving his, the testator's, jfohnrs v.
wife, without leaving a widow or any child, after his death I'radorh-, 3
and his wife's, gave to F. II. a legacy charged on his real Vcs. 317.
estate. The son survived the testator's wife, and then died,
without leaving a widow or child. Sir R. P. Ardeii, M. R.,
(on the authority of Doo v. Brabani, and Caltkorp v.
(<j) As to the question, what amounts to a fulfilment of a condition, the reader
is referred to the learning of conditions in the text hooks and altridumonts, such
as Coke upon Littleton, Shoppard's Touchstone, and Viner's Ahridiiim nt.
(\i) See Jackson v. .\oblr, 2 Keen, 590.
[ 37S ] III. 1.] AN ORIGINAL VIEW [§691.
Gongh, 3 Bro. C. C. 393, 395; and Denn v. Bagshaw, 6
T. R. B. R. 512,) held, (hat the legacy failed: for though he
was perfectly satisfied as to the intention, yet it was not
sufficiently expressed to enable him to execute it.
Parsons v. So where a testator directed, that in case J. H. siiould die
Parsons, 5 before 21, leaving issue, then, that his executors should
Vcs. 578. divide a sum of money among the children of J. II. ; and
See also J. //. died, leaving issue, before the time at which the money
Pvarsall v. was given to herself, but after she had attained 21. Sir R.
Simpson, 15 p. Arden, M. R., on the authority of the same cases, held,
^es. 29. ti^at jj^g legacy failed ; though he observed that Z)e/2n v.
Bagshaw revolts the feelings of any man sitting in judg-
ment, provided he is at liberty to indulge them in anything
beyond necessary implication.
Diclen V. And where a testator, after making other limitations, pro-
Clarkc, 2 ceeded thus : " But, in case of such, my son's demise in the
You. & Coll. widowhood of his mother, without leaving lawful issue,
572. then, I direct the whole of the proceeds of my property to
be paid to her during her widowhood, subject to an annuity
of 40/. per annum to be paid to 7\ B.; and, in case of tlie
marriage or death of my wife, my son being dead, and
leaving no lawful issue, then, I give the whole of the pro-
ceeds of my estate to J. BP The son survived the widow,
2, Where a ^nd died without issue. Alderson, B., held that the estate
limitation belonged to the heir-at-law.
over IS on ^^ ^^^j where a testator confines his bounty to 691
. ' . ^ ' ' certain descendants only of himself or another
in<f issue, yo- i .i i- •. .i . • r i •
n- • 11 • 1 P^''^°'^' ^'"^ \\\^\\ hmits the property over, m case of his or
not'inerelv ^f such Other persons dying without leaving issue; in this
r 379 1 case, if he or such other person does leave issue at all, though
on the not no"e of the description to whom the property was expressly
Icavin'^ issue '^'^^^°'^' ^^^ Court ^vill not supply the word "such," or
wiio can take "said," so as to make the limitation over capable of taking
under the effect on the failure of the issue who were the objects of the
prior limita- prior limitations, but will hold the limitation over to have
tions. failed.
Doe A. Rew, A testator devised one moiety of and in a house, as fol-
V. Lucraft, lows: "In trust for such son of mine, by my present wife,
8 Bing. 380. as shall first attain the age of 21, as and when such sou
shall attain such age, and for his heirs and assigns for ever.
But, in case I shall depart this life without leaving a son, or,
leaving such, none shall live to attain the age of 21 years,
then, in trust for my daughter, J. N., if she shall live to
attain the age of 21 years, and for her heirs and assigns for
ever. But, in case my said daughter shall depart this life,
under that age, then, in trust for such other my daughter,
by my present wife, as shall live to attain the age of 21
years, and for her heirs and assigns for ever. But should I
d'-part this life without leaving issue, then, in trust for A". L.
III. 1.] OF EXECUTORY INTERESTS. [§G92, 693. [ 379 ]
(his wife's brother), liis heirs and assigns, for ever." J. N.,
the testator's daughter and only child died at the age of 4
years. It was held that N. L. took nothing.
And where a testator beiiueathed a sum of stock, in trust Andrcc v.
for G. G., for life ; and, in case he should marry any woman Ward, I
with 1000/. fortune, then, his will was, that the said sum of Kuss. xiGO,
stock be settled upon iiis wife and the issue of such mar-
riage ; but, in case of his son's decease, leaving no issue,
then, lie gave the stock to certain other persons, and be-
queathed the residue of his estate to W. JV. Two suits
were instituted respecting this property. And Lord Gilford,
M. R., held, that the words of the will were not suificient
to create a quasi entail in G. G., since the fund was given
over, not upon a failure of G. G.'s issue generally, but upon
his leaving no issue at the time of his death ; and it was
far from the testator's intention, that the effect of his bequest
should be, to give his son the absolute property of the fund,
whomsoever he might marry, which would in fact be the
consequence, by the rules of law in regard to personal estate,
if the son took a r/uasi estate tail. Neither were these [ 380 ]
words suilicient to imply a gift to the issue of G. G. And
riis Lordship refused to insert the word " such," in favour
of the persons claiming under the limitations over, and to
read the clause, " in case of my son's death leaving no such
issue ;" but held, that the limitations over failed, because
the son did leave issue.
692 II. Where a conditional limitation is limited in H. ElTect of
favour of unborn persons, or persons who shall tlic non-cx-
answer a given description, and no such persons come in i>=tcnce ot the
esse or answer such description, the preceding estate becomes ol^jec's ol a
absolute : because, although the express condition may have f'oiditional
been fulfilled, on which such estate is to go over, yet, as hmitaiion.
there is no one to whom it can go over, according to the
terms of the conditional limitation, it must of ne-
693 cessity remain undevested by the fulfilment of the
express condition. Or, to view the point in an-
other light; if the existence, at some period, of the objects
of the conditional limitation, is regarded as indirectly form-
ing a part of the condition; then, the subsequent interest
necessarily fails, on account of the non-fulfilment of such
condition, according to the first general rule in the present
chapter,
A testator gave personal estate to his wife, for life ; and, Smifher v.
from and after her death, the capital to be divided between IIV/AW.-, 'J
the testator's brothers and sisters, in equal shares; but, in ^ «-'s. 233.
case of the death of any of them in the lifetime of the wile,
the shares of him, her, or them so dying, to be divided
between his children. Owe of the brother's died m llie life-
time of the testator's widow, without having ever iiad a
Vol. II.— 39
[ 380 J III. l.j
AN ORIGINAL VIEW
[§694, 695.
Harrison v.
Forevutn^ 5
Ves. 206.
[ 3S1 ]
III. Where
the limita-
tion is a mere
alternative
limitation.
Principle of
the distinc-
tion.
See § 13.
Presfwidge
V. Groom-
bridge, 6
Sim. 171.
See also
Fanner ea u
V. Fonne-
reau, 3 Atk.
315, as
stated,
Fcarnc, .512
child. Sir W. Grant, M. R., lield, that lie took a vested
interest, subject to be devested only, [in etlect,] in the event
of his death in the life of the widow, leaving children ; and
consequently that event not having happened, his represen-
tative was entitled.
And where a testator gave 40/. per annum, part of a sum
of annuities, in trust to pay the dividends to S. B., for life,
for her separate use ; and, after her decease, upon trust to
transfer the said sum of 40/. per ainium, or the stock or
fund wherein the produce might be invested, to P. S. and
S. S. S., in equal moieties; and, in case of the death of
either of them in the lifetime of S. B., then, he gave the
whole to the survivor living at her decease. P. S. and *S'.
S. S. both died in the lifetime of S. B. Sir R. P. Arden,
M. R., held, that, as in the case of real estate, they took
vested interests, subject to be devested on a contingency that
had not happened.
III. But, a limitation which is simply an alter- 694
native limitation, will be allowed to take effect, if,
in any way, the next preceding limitation fails to take any
effect, even though the precise event on which such alter-
native limitation is to take effect never happens.
It is considered that the testator intended that so 695
long as the preceding limitation fails of taking
effect, whether in the event specified, or in any other, the
alternative limitation shall operate in lieu of it: for, as the
condition on which a mere alternative limitation is rnade to
depend, is not of such a nature as to constitute intrinsically
any ground or reason for the testator's bounty towards the
objects of the alternative limitation, but it is the mere nega-
tion of the contingency on which the preceding limitation
depends; it is more consonant to sound construction, not to
regard it in the light of an ordinary condition precedent,
constituting a literal pre-requisite to the vesting of the inter-
est, but to view it as amounting to a general expression of
an intention, that in the event of the failure of such preced-
ing interest, another should take effect in its stead.
A testatrix directed the interest of her residuary estate to
be applied in defraying the expenses of the education of her
nephews George and Charles; and the principal to be ap-
plied, either in binding them apprentices at the age of 14, or
to be reserved till they attained 21, to commence business.
And, in the event of George and Charles (both or either of
them) being settled before the will should come in force, she
provided, that the next boy {James or Henry) should " have
the benefit, and so on." George and Charles survived the
testatrix, but died under 21, before the principal was applied
in binding them apprentices. Sir L. Shadwell, V. C, said,
that the intention of the testatrix was, to make a provision,
in. 2.] uF p:xecutory interests. [§g9g. [ ss^ ]
out of the fund, for two of her brother's sons; and if the
provision failed as to either George or Char/es, that James
should be supported out of it; and if it failed as to both of
them, then, that Henry should be sujiported out of it.
And where a testator bequeathed the interest of a sum of Aiton v.
stock to ^i. and 7?., for their lives; and, after their deaths, Brooks, 7
he directed his trustees to transfer the capital to their chil- '^'"i- ~^-l-
dren then living who should attain 21; with a proviso, that ^''^ ^^^^
in case either of them, j'J. and B., should have any child or Bratlford v.
children living at the time of their respective deceases, but '. ''y,^''^'=''
which should all die before 21, then, his trustees should as- i^'^P- ^-^j as
sign the share of the legatee so dying without issue, to enjoy ,, ' ^„.
as aforesaid, unto the survivor of them the said A. and B. , '■ , ' " '
,,,.,,'. , ., , , . , , rt r 1 which was a
*/I. died, leaving a child, who attained 21. B. aiterwards ^.^^^ ^^^.^,,^1
died, without having had any issue. Sir L. Shadwell, V. ^gjafg
C, held, according to Muckinnon v. Sewell, that the limita-
tion over took effect, and t/5.'s personal representative was
entitled to Z?.'s moiety of the stock. His Honour observed,
that he could not but think that the testator intended the
limitation over to take elfect in the event of either of the first
takers not having a child to take, as well as in the event of
cither of them not liaving a child who should take so as to
enjoy ; and that the word " survivor" must of necessity be
taken to mean "other;" for, the testator contemplated [/. e.
intended to provide for] the event, not of one of the legatees
dying in the lifetime of the other, but of one of them dying
childless.
Without dillering from the learned Judge, in his opinion Observation
that Muckinnon v. Sewell governed this case, it may be on Aiton v.
useful to observe, that Mackinnon v. Sewell was the case Brooks.
of a conditional limitation allowed to operate as an alterna- Sec § 671-2.
tive, in the events that happened ; but, in this case, the
limitation is simply an alternative, to take effect in case the
limitation to the children should never vest.
CHAPTER THE SECOND. [ 3S3 ]
OF THE EFFECT OF THE ORIGINAL INVALIDITY OR THE
EVENTUAL IMPOSSIBILITY OF CONDITIONS.
696 Without entering minutely into the question. What condi-
what conditions are void, which is a subject fully tions are
discussed under the head of conditions in the text books and void,
abridgments, it may here be observed, that conditions are
void,
[ 3S3 J III. 2.] AN ORIGINAL VIEW [§697, 698.
1. Morally 1. '> If they require the performance of an act which is
wrong ui- morally wrong or civilly unlawful. («)
civilly un- 2. ''If they arc repugnant to a rule of law : as where the
law'iiil. condition is a condition at common law, to defeat a part
2. Repug. oi^]y of ^^,-j estate tail.(Z»)
nant to a g^ cjf t|jgy r^y^ contrariant in themselves: as in the case
rule ol law. ^^ ^ proviso for determining an estate tail as if tenant in tail
. Lontia- ^ygi-Q clead,(c) without adding any such words as '^"and
,/ , there were a general failure of issue inheritable under the
themselves. . -i ,,/ ,v °
4. Uncertain entaiL"(^)
or ambi'^Li- '^- '^ ^^ ^'^^7 ^^^ uncertain or ambiguous : as in the case of
Q^,g_ ° a proviso against advisedly and effectually attempting &c.
5. Restrain- to alien. (e)
ingfromsuf- 5. '"If they restrain tenant in tail from suffering a re-
fering a re- covery, or levying a fine within the statutes of 4 Hen. VII,
coveiy or c 24, and 32 Ilcn, VIII. c. 36 ;(/) and not from levying
[ 384 ] or making &a mere fine at common law, feoffment or other
levying a tortious discontinuance or alienation, (^) or •'asale or lease
fine within before a certain age. (A)
Stat. 4 II. 6. 'If they are impossible at the time of their creation, or
"V II. and 32 afterwards become so, by the act of God, by the act of law,
n. \1II. Qj. by ti^g f^Q); Qf [\^Q party who is entitled to the benefit of
6 Impossi- them.(/)
^'®' 7. If the contingency is too remote a possibility. 697
f I ° '^^'. *^A limitation may be made to depend on any
mo e 3, po.s- j-j^^-j^gj, of contingencies, even though they may be en-
,-,, ■ . grafted on each other, so long as each amounts to a common
vV hit IS ton / o
' probability, and so long as they may, according to common
,•,.,' probability, grow out of, or be connected with, each other,
^ ^* in the maimer specified by the instrument contain-
ing the limitation. But a limitation is invalid, 698
when made to depend on a single contingency, if
it is made to depend on a remote possibility, or when made
to depend on two contingencies, if, according to common
(a) Sec Fcarne, 249, 276. (b) lb. 252.
[e) Corbet's Case, 1 Rep. 83 b ; Jermyn v. Ascot, 1 Rep. 85 a ; and Cholme-
ley V. Humble, 1 Rep. 86 a ; as slated, Fcarne, 253. Sec also Phsingtori's
Case, as stated, Fearne, 256.
(ri) Fearne, 254, note (e).
(e) Mildmaxfs Case, 6 Rep. 40 ; and Foy v. /. Hynde, Cro. Jac. 696 — 7;
as stated, Fearne, 255, 256.
(/) Mary Portington' s Case, 10 Rep. 36 ; and Sonday's Case, 9 Rep. 128 ;
as stated, Fcarne, 258. Sec also remarks on Rudhall v. Milward, Savilc, 76 ;
Fearne, 259.
{g) Fcarne, 259, 260. Pearcey. Win, 1 Vent. 321; and Crokerv. Trevithin,
Cro. Eliz. 35, and 1 Leon. 292; as stated, Fcarne, 260.
(h) Spilth and Davie's Case, 2 Leon. 38; Moor, 271; as slated, Fearne, 261.
{i) 2 Bl. Com. 15G, 157; Prcst. Shcp. T. 129 ; and Shep. T. 132, 133.
III. 3.] OF EXECUTORY INTERESTS. [§G99— 703. [ 3S4 ]
probability, they do not grow out of, or are not connected
with, each other, in the manner specified. (/c)
699 I. ^ l( u void coiidilion is prcct.dent, the interest I. EfTect of
which is to vest on the fulfil mcnt thereof can never the invalidity
take effect. (See § 13.) of condiiions
700 II. If the void condition is subsequent, as tlie prt-'ccdent.
estate to which it is annexed cannot be defeated Jf. Effect of
by it, such estate is absolute in the first instance, or afler- theinvalidity
wards becomes so.(/) of conditions
subsequent. — Sec § 12, 15-19.
700a III. If the void condition is a mixed condition, m. EfTect of
the preceding estate intended to be annihilated by r 335 ]
it, is absolute in the first instance, or afterwards becomes so; theinvalidity
and the estate to arise or be accelerated on the fulfilment of of a mixed
the condition cannot arise or be accelerated. condition.
Sec §14,20-22.
701 IV, And "Mf the condition is of that species IV. Effect of
which are termed, in a preceding chapter, special theinvalidity
or collateral limitations, the efiect is the same as if it were <"'f a special
a proper condition subsequent. (/;i) See § 3, 7, 12, 24 — 43. or collateral
limitation.
CHAPTER THE THIRD. [ ssc ]
OP THE TIME FOR THE VESTING OF REMAINDERS.
702 I. ""lTisageneralrule,thatevcry remainder must !• A remain-
vest either during the particular estate, or else at Jc'i'intistvest
the very instant of its determination. "(«) Or, to state the during, or on
rule somewhat more precisely; a contingent remainder can- the detenni-
not vest at all, unless it vests during the existence of a pre- "^li*^" "f» the
vious estate of freehold, or at least at the very instant of P^'^''''<^ii'^'»»'
the determination of the sole or last subsisting previous ^^^''^'*^-
estate of freehold.
703 ""This rule," observes the learned authority
upon this subject, "was originally founded on
(k) See Fcarnc, 250—2.32, and Butler's note (c).
(/) 2 Bl. Com. 150, 157; Pros. Shcp. T. 129; and Shcp. T.
132, 133.
(m) See Shep. T. 133. See also Aislahic v. Rice, 3 Mad. 2G0,
for an instance of the effect of the eventual impossibility, by the
act of God, of an irregular collateral limitation. Sec § 39.
(a) Fearnc, 307, 308. And see Doe d. Mussel v. Morgan, 3
Durn. & East, 763, as stated, Fcarne, 309.
[ 386 ] III. 3.] AN ORIGINAL VIEW [§702a— 704.
feodal principles, and was intended to avoid the inconve-
niences which might arise, by admitting an interval, when
there should be no tenant of the freehold to do the services
to the lord or answer to strangers' praecipes; as well as to
preserve an uninterrupted connexion between the particular
estate and the remainder, which, in the consideration of law,
are but several parts of one whole estate, "(r?) Some further
observations upon the point will be found in a subsequent
chapter.
II. A remain- U, ^"it follows, that an estate limited on a con- 703a
dcr may fail tingency, rnay fail as to one part, and take effect
as to one as to another, wherever the preceding estate is in several
part only. persons in common or in severalty; for the particular tenant
of one part may die before the contingency, and the par-
ticular tenant of another part may survive it."(/^)
[ 387 ] III. '^^ So likewise a contingent remainder may 703b
III. A re- take effect in some, and not in all the persons to
maindermay whom it was limited; according as some may come in esse
fail as to before the determination of the preceding estate, and others
some persons not.'Vc)
o"'y- For, an estate by way of remainder, when it 704
A remainder, has once vested in possession in some person or
when it has persons, cannot afterwards open, so as to let in others who
once vested ^yere not in esse till after the determination of the particular
in posses- estate ; though '^ where it has only vested in interest, it will
sion, and not opgj-,^ go as to let in others who become capable of taking
merely m in- i^^f^^Q ^]^Q remainder has actually vested in possession, that
terest, in -^^ before the determination of the particular estate. (^)
.some per- j^^ other words, where real property is limited, by way of
sons, c3.nnoL . ^ in " m /• i
open and let remainder, to a class of persons, some or all ot whom are
in others unborn; if any of them come in esse before the determina-
tion of the particular estate, the property will vest in such
person or persons, subject to open and let in the other mem-
bers of the class, who may happen to come in esse before
the determination of the particular estate. But those who
are born after the determination thereof, will be excluded :
for, a similar rule to that which applies to an entire property
limited in remainder to one person, requiring that it should
vest before that period, applies to the individual share of
any property limited to a class of persons.
(a) Fcarne, 307, 308. And sec Doe d. Mussel v. Morgan, 3 Durn. & East,
703, as stated, Fearnc, 309.
(h) Fearne, 310; and Lane v. Pannel, 1 Roll. Rep. 238, 317, 438, as tliere
stated.
(c) Fearnc, 312.
(d) Doe d. Comherhach, v. Pernjn, 3 Durn. & East, 484 ; Doe d. Willis,
V. Martin, 4 Durn. & East, 39, as stated, Fearne, 314; Matihetrs v. Temple,
Domb, 467, as stated, Fearne, 313.
III. 'J.\ OF EXECUTORY INTERESTS. [§705. [ 3S7 J
705 The application, however, of such a rule to the (Jroiiiids of
vesting of the individual shares, after the aggre- ilie third
gate property has vested in some one of the class, must de- ru't-"-
pend on dill'erent reasons from those above mentioned in See § 703.
relation to an entire property limited in remainder to one
person : since there /.y a tenant of the freehold, and there is
an unintcrruj)tc(l connexion between the particular estate
and tile remainder. The application of the rule to the vest-
ing of the individual shares, in tlic given case, appears
rather to be grounded upon a principle of convenience, and
to be analogous to those cases of personal estate bequeathed [ 388 ]
to a class of persons, in which those alone arc admitted,
who come in esse before the period of distribution.
A testator devised the residue of freehold estates, called Mogg v.
the Littleton estates, to trustees, during the life of his son, Mogg, 1
J. II., upon certain trusts; remainder to his son's children, Mcriv. 051.
for their lives ; and, from and after their decease, he devised
the same unto their lawful issue, to hold unto such issue and
their heirs, as tenants in common, without survivorship ; and,
in default of such issue, he devised to the children of his
daughter, S. M., and their issue, in the same words ; and, in
default of such issue, to certain other persons. J. II. died,
without ever having a child. S. M. had nine children.
The Court of King's Bench certified, that six of the nine
children of *,V. il/., namely, five who were born in the life-
time oft/! //., and one who was in ventre ?natris at the
death of J. II., took estates in tail general, with cross re-
mainders ; but that the other children took nothing.
As to the reason for excluding the three other children, it Observaiiou
is a rule, that a limitation shall not be construed as an on iliis part
executory devise, which may be supported as a remainder; of the case,
and hence the limitation to the children of S'. 31. was doubt-
less considered to be a remainder expectant on the decease
of J. H. ; and, being a remainder, it was necessary that
those who were to take under such limitation, should be in
esse at the determination of the particular estate, that is, at
the death of./. II.
The testator devised otlier parts of the Littleton estates to <; {^\ \
his wife, for life ; and, after her decease, to the same uses as ;\Ieiiv.
in the devise last stated. The Court certified, that all the
nine children of ^'. M. took under this devise, in manner
aforesaid, all being born in the widow's lifetime, and there-
fore capable of taking on the determination of the particular
estate, that is, of her life estate.
The testator, (according to a fictitious clause inserted in S. ('. 1
the case stated to the Court) devised another fee simple Meiiv.
estate, called the Upper INIark Eytate (without any previous
limitation) to the children of S. M., and their issue, in the
same words as before. The Court certified, that all the
nine cliildren look in manner aforesaid.
[ 3SD ] III. 3.] AN ORIGINAL VIEW [§705.
Observation It would seem that this must have been regarded, not as
on this part a purely immediate devise, though S. M. had two children
of the case, born before tlie date of the will, but as a sort of mixed de-
See § 111, vise, immediate in regard to the children born at the date of
11 la. the will, and executory in regard to the children born after-
wards. (See Fearne, 533 — 7.)
S. C. 1 The testator devised another fee simple estate, called the
Meriv. Mark Estate (or Lower Mark Estate, to distinguish it from
the fictitious estate above mentioned) to trustees, for the
maintenance of the children of S. M., during their lives;
and, after their decease, he gave the estate to the lawful
issue of such children, in the same words as before. The
Court certified, that the issue of such of »S'. JM.'s children as
were born prior to the testator's decease [i. e. the issue of
four of her children] took, as tenants in common in fee
simple, expectant upon the determination of the estate limited
to tiie trustees.
Observations Here, the word issue was construed a word of purchase,
on this part^ because, the interest given to the children of *S'. M., being
of the case, merely equitable, could not unite with the legal interest
limited to their issue. The issue of the other children were
necessarily excluded; because, the unborn issue of parents
See §^706, ^yj^o are themselves yet tinhorn, cannot take by purchase,
709, 710. ij-jg^^ being contrary to the rule against perpetuities.
S. C. 1 The testator (according to the case stated to the Court)
Mciiv. also devised leaseholds for lives and years, so that the issues
and profits might belong to the children of *S'. M., and so on
as before. The Court certified, that all the nine children
Sec § 100-3. took the absolute interest in the leaseholds for years; and
that they took interest in the nature of estates tail, with
limitations thereupon in the nature of cross remainders, in
the leaseholds for lives.
The certificate was confirmed by Sir W. Grant, M. R.
Observations And in Doe d. Long v. Prigg, I3ayley, J., said, " There
ofBnylcy,.!., is no doubt but that upon an ordinary limitation by way of
in Doe d, remainder to a class, as children, grand-children, &c., all
Long V. who come in esse before the particular estates end, and the
Prigg, 8 limitation takes efi'ect in possession, are to be let in, and take
[ 390 ] a vested interest as soon as they come in esse; and that they
Bar, & Ores, and their representatives will take as if they had been in
235. g^^g at the testator's death. This is settled by Baldwin v.
Carver, 1 Cowp. 309 ; Roe v. Perryn, 3 T. R. 4S4 ; Doe
V. Dorrell, 5 T. R. 518; Meredith v. Meredith, 10 East,
303 ; and Jiight v. Creber, 5 Bar, & Cres. SGG."
in. 4. i.] OF EXECUTORY INTERESTS. [§70G— 707. [ Ol J
CHAPTER THE FOURTH.
OP THE TIME KOK THK VESTING OF EXECUTOKY INTERESTS
NOT LIMITED T5V WAY OF REMAINDER.
SECTION THE FIRST.
The General Rule against Perpetuities stated and
Explained.
TOG " Executory interests, other than those in re- The rule
mainder after or eni^rafted on an estate tail, (a) stated.
must he so limited, that, from the first moment of their hmi-
tation, it niay be said that they will necessarily vest in right,
if at all, within the period occnpied by the life of a person in
being, that is, already born, ''or in ventre viatris,{b) or the
hves of any number of persons described and in being,
' "not exceeding that to which testimony can be applied to
determine when the survivor of them drops,"(c) and by the
infancy of any child born previously to the decease of such
person or persons, or ''the gestation and infancy of any
clhid in ventre matris at that time;(/^) or, '' witliin the period
occupied by the hte or lives of such person or persons iu
being, and an absolute term of 21 years afterwards, and no
more, without reference to the infancy of any person;(c^) or,
within the period of an absolute term of 21 years, without
reference to any Hfe.
707 *"The reason why some kind of limit is pre- Reason for
scribed for the vesting of sucii executory interests, fixing a iitnit.
is, that executory interests (other than those which are in [ 392 J
remainder after or engrafted upon an estate tail, and which
were capable of being destroyed by the tenant in tail by
means of a recovery,) cannot be destroyed by the prior de-
visees or legatees; and they therefore tend to a perpetuity,
by being unalienable until the contingency happens on
which they are to vest in right, which is inconsistent with
(a) Sec Fearnc, 565, note, and 567, note. And see Fearne, 429 — -il'.i.
(b) Lon<>: V. lilackall, 7 Durn. & East, 100, as stated, Fearne, 434, note(/),
(r) Lord Eldon in Thrllusson v. Woodford, 11 Vcs. 146.
(rf) Be>igoiii;h V. Edrids^e, 1 Sim. 273; S. C. tiom. Cadell v. Palmer, 1
Clark & Fin. 372, and 10 Bing. 140.
Vol. II. — 10
[ 392 ] III. 4. ii.] AN ORIGINAL VIEW [^708—710.
the welfare of the state, and therefore contrary to the pohcy
of the law.(/)
Reason for Nor hove the particular limits so prescribed been 708
adoptinsTthe arbitrarily adopted. ^The Court, in setting the
limits fixed bounds they have to the suspension of the vesting, have
by the rule, been governed by analogy to the case of a strict entail,
which could not be protected from fines and recoveries,
longer than for the life of the tenant for life in possession,
and the attainment of 21 by the first issue in tail.(^)
SECTION THE SECOND.
Rules of a viore Specific Character for determining
whether or not a Limitation is too Hemote.
I. Limitation I. It will appear from the above statement of the 709
must be such rule, that ''to render a gift valid, it is not enough
as muat take that it may take efiect within a life or lives in being and 21
effect within years afterwards; or, that, in the events which have happen-
the prescrib- ed, it would take effect within that period, though, under
ed period. other circumstances, it might not : it must have been so
limited, that, from the first moment of its limitation, it may
be said that it will necessarily take effect, if at all, within
one of the periods above mentioned. (A)
Hence limi- And hence, it follows, that real or personal estate 710
tations to cannot be limited to the children of a person who
children of is not in esse at the date of the will, so as to enable such
persons not children to take as purchasers, even though their parent may
in esse, at the happen to be born before the death of the testator, unless
[ 393 ] the testator expressly limits the property to the children of
date of will, a person who shall be born in his, the testator's, lifetime,
are not good. Thus, where a testatrix gave one moiety of a certain
Arnold V. amount of stock to her son's eldest male child living at her
Congreve, 1 demise, for life ; with remainder to the issue of that male
Russ. & M. child; and the other moiety to the other unborn children of
209. her son, for life; withremainder to their issue. The limitation
to the issue of her son's eldest male child was held good;
because, the testatrix, by adding the qualification " living at
my demise," had confined the vesting of the interest of that
male child's issue to the period prescribed by the rule against
perpetuities. But, the limitations to the issue of the other
unborn children of her son were void, though such children
hap])ened to be born in the lifetime of the testatrix, because,
the birth and death of such other tU)i)orn children of the tes-
tatrix's son, and the birth of their issue, might not have hap-
pened within the period of a life or liv^es in being, and 21
years afterwards.
(/) See Fearne, 418—428, and 556—567, note. ^
(g) Fearne, 444, note (a), and 566, note.
(A) See Palmer v. Holford, 4 Ruos. WS.
III. 4. ii.] OF EXECUTORY INTERESTS. [§710a— 712. [ 393 ]
710a And "as the law does not permit to be done Nor are
indirectly, what cannot beelTected in a direct man- clauses de-
ner, the rule whicli forbids the giving of an estate to tlic signed indi-
issue of an unborn person, equally invalidates a clause in rectly yet
a settlement or will containing limitations to existing persons |'irt>^'ally to
for life, with remainder to their issue in tail, empowering '"^'^^^'?^'^'^^
trustees, on the birth of each tenant in tail, to revoke the ^_ '' ,
' ,. . r ^■r t ■ r \ .u oianuiibom
uses, and hunt an estate for life to such niiant, with remain- ^^^^^ ^^
dertohisissue."(0 purchasers.
711 II. Butjit will appear, from the above statement „ . , ••
r 1 . 1 1- •■ I 1 111 11. out limi-
of the rule, tliat hmitations to the unborn children ^.^^-^^^^^^ ^^
of persons in esse, at the date of the deed or will, whatever y^|^^j,.„ ^.■\^■^\,
may be the quantity of the interest limited to them, are not jj.^,| ofper-
too remote, inasmuch as such unborn children must come g^j^g \^ ^^^g
into existence, if at all, within the compass of a life in being, aj-g frood.
namely, the life of their parent.
712 There are, indeed, certain dicta, and, in fact, an [ 394 ]
actual but anomalous decision, which might seem it has been
to prove that a life interest cannot be limited to an unborn thought that
person, unless at least the remainder vests at the same time, a life interest
Thus, where a testatrix, after expressing her desire, that cannot be
a certain sum should remain in the 3 per cents, for ever, be- linaitcd to an
queathed the dividends to her seven children, for their lives; unborn per-
and directed, that in case of the decease of any of them, son.
their annuity should devolve among the rest of the surviving Hayes v.
children; but, after the decease of the whole of them, tiien Hayes, 4
should their children succeed severally to the annuity of Ri^ss. 311.
their deceased parent; and, after the decease of her seven
children's children, the dividend arising from the above sum
should devolve in annuities upon her lawful heirs for ever.
Sir John Leach, M. R., said, " The true effect of this will is,
a limitation to the seven children for life ; with remainder to
their children, whether born or unborn at the death of the
testatrix, for their iives; with a contingent remainder over
to persons who shall answer a particular description, at the
death of the siuviving grandchild. This is plainly too re-
mote. You cannot limit to an unborn person for life, unless
the remainder vests in interest at the same time. The gift
to the children of the children is therefore void : and the
seven children, who take life interests under the will, being
the next of kin, are entitled to the remainder, as undisposed
of."
This decision, as regards the grandchildren, appears to be Observations
clearly erroneous. The gift over to the lawful heirs of the on Hayes v.
testatrix was obviously loo remote. But, in what way the Hayes.
invalidity of that limitation could atfect the preceding gift
(?) 1 .Tarman on Wills, 247; and Dnhc of Marlhorou^h v, Farl (ioihlphin,
1 Kden, 404, there cited.
[ 394 ] III. 4. ii.] AN ORIGINAL VIEW [§713—714.
to the grandchildren, it is difliciilt to understand. " Tiie
only efl'ect," (as was contended at the har) " of the remote-
ness of that limitation, was, that immediately on the deatli
the testatrix, the ultimate interest devolved to the next of
kin, snbject to vested life interests in her children, and con-
tingent life estates to unborn grandchildren." Had there
been no limitation after the gift to the grandchildren, that
gift would have been clearly valid. And if the only limita-
tion after such gift was void, that gift must have been as
valid as if no such subsequent limitation had ever existed.
[ 395 ] This decision, then, must be regarded as contrariant to prin-
ciple, and it is also opposed to the current of au-
An estate for thorities. A learned author(A;) has remarked, that 713
life may be the validity of a devise to an unborn person for
limited to an life, seems to have been settled so long as the early case of
unborn per- Cotton v. IIectth;{l) and he refers to several cases where it
son. -^yjjs assumed, in the discussion of some other question,
without even an attempt being made to impeach the validity
of the gift.(m) And he adds, that the validity of such a
devise is treated by Fearne(?i) " as a point rather to be taken
for granted, than discussed."
III. Llmita- III. It is obvious that if a limitation is to take 714
lions on an effect on an indefinite failure of issue in general, or
indefinite of issue male or female, or by a particular marriage, and not
failure of "merely on a failure of issue within a life or lives in being
issue. ^,-,(j 21 years and a few months afterwards ;(o) I'it is within
the foregoing rule against perpetuities, and therefore void
for remoteness ;(/?) unless it is a remainder after, or a limifa-
See § 706-7. lion engrafted on an estate tail; or ia limitation of a sum of
money to be raised by means of a term in remainder after
[ 39G ] an estate \di\\\{q) or ''a limitation over of a term which is
(A-) Jarman on Wills, 340.
(/) 1 RolI.Ab. 612, pi. 3.
{m) Namely, Doe d. Toole.y, v. Gunnis, 4 Taunt. 313; Doe d. Liver mge
V. Vavghan, 1 Dowl. & R. 52; S. C. 5 B. & Aid. 464; Ashley v. Jlshley,
6 Sim. 358 ; Denn d. Briddon v. Page, 3 D. & E. 87 n. ; 11 East, 603 ; Hcnj
V. Earl of Coventry, 3 D. & E. 83 ; Foster v. Lord lloinney, 11 East, 594 ;
Bennett v. Lowe, 5 Moo. & Pay. 485.
(«) Fcarne, 503.
(o) Duke of Norfolk's Case, 3 Chan. Cas. 1; Pollcx, 223; and Lamb v.
Archer, 1 Salk. 225, as stated, Foarnc, 469, 470; and Soiithey v. Lord Somcr-
vile, 13 Ves. 486. See also Nichols v. Hooper, 1 P. W. 198 ; Target v. Garmt,
1 P. VV. 132; Keily v. Fowler, Pro. Pari. Ca. 300; and other cases, stated,
Fearne, 471 — 473, and supra. Part II. c. XVII. sect. T.
{p) Burford v. Lee, 2 Freem. 210; and Beauclerk v. Dormer, 2 Atk. 308 ;
as stated, Fearne, 480 — 2.
(q) Goodwin v. Clarke, 1 Lev. 35, as stated, Fearne, 476.
III. 4. ii.] OF EXECUTORY INTERESTS. [§715— 719. [ 39G ]
determinable on the dropping of a life or lives in being,(r)
where a tenant riyht of renewal does not exist. (.s)
715 Hero two preliminary qnesiions may present
themselves: First, Whether the words really, and
not merely apparently, import such an indefinite
failure of issue ? Secondly, Whether (if tiiey do)
716 an estate tail is created? Because, if the words
do not im])ort such indefinite failure of issue, or if
an estate tail is created ; in either of these cases,
tiie limitation may be good.
717 The reader will find an answer to these ques-
tions in the first section of the seventeenth ciiapter
of the Second Part, so far as regards real estate.
718 And, as regards the application of the first qiies- Answer to
tion to personal estate, llie answer to it will be tbe first
found in the rules in the same section. question as
719 As regards tlie application of the second ques- rf^'o^rds per-
tion to personal estate, (namely, whether an es- ^°"^' estate.
tatc tail is created?) we have seen in the eighteenth chap- I'ersonal es-
ter of the Second Part, that personal estate cannot be *^^^ cannot
entailed, and that, with the exception of the words ''die uc entailed,
without leaving issue," the same words which would create
an estate tail by implication in real estate, in favour of the
person the failure of whose issue is spoken of, will serve to
confer on him the absolute interest in personal estate; and ^ind a limifa-
conscqucntly, that the limitation over of personal estate on ^''^'| over on
an indefinite failure of his issue, instead of being good as a ^" indefinite
remainder after an estate tail, as we have seen it would be ''^'1^';^ t)' is-
in the case of real estate, is a conditional limitation, (See § ^"^' '^ ^°'"
148— 15S,) which is void for remoteness. '^'' ^^'"^^'e-
J3ut, 'as regards the construction of a limitation over of '
personal estate in the event of death without issue, it makes ^.^""
no dltfercnce whether the first taker has a life estate only, ^ "'^ '°!1 °.
or whether he is held to take a quasi estate tail,(/) which , ,'■
I '\ I talion over
amounts to the same as a limitation of the absolute interest. i- qn-y -i
In either case, the limitation over is void for remoteness, j^ ^^^ same
unless it can be collected from the words of the will, that the \v.|,ere the
testator meant a death without issue at the time of the death f^^st taker
of the first taker. ji^s ^ nfe
A testator gave the interest of his residuary personal estate estate only.
to t/?., for life; and then, the residue to her nieces; but, \^ F^tcresi \ .
they die without issue, over. The Lord Chancellor held, GcU, 1 Ves.
that the limitation over was too remote; and that on the 28G.
death of tlie aunt, the nieces took the whole.
(r) Sec Fearnc, 489.
(s) See Fearnc, 500, note (c), and Reporter's Observations on DuliC of Graf-
ton V. Ilanmcr, 3 P. W. 266, in tho note, as cited, Fearnc, 497.
(/) Lepine v. Ferard, 2 Russ. & M. 378.
[ 397 ] II. 4. ii.] AN ORIGINAL VIEW [§719.
Chandh'ss v. So where a testator gave all the residue of his real and
Price, 3 personal property, on failure of legitimate issue by his
Vcs. 98. daughter M. TV., to his daughter-in-law, C. J.] and, after
her decease, without legitimate issue, to S. M. Lord
See § 593— Loughborough, C, said, that where words would create an
600. estate tail in real estate, whether express or implied, they
See § 100-3. give the absokite interest in personalty, unless words can
be found in the will " to tie it up," i. c. to confine the inter-
est to a mere tenancy for life; and that consequently the
limitation to S. M. was too remote.
Camphell v. So where a testator gave to his natural daughter, a sum
Harding, 2 of stock, and his house and land at C; but, in case of her
Russ. & M. death without lawful issue, then, he willed the money so
411; Canilj/ jgf^ [q j^er to be equally divided between his nephews and
V. Camphdl, ,-,[eces who might be living at the time, and the land at
2 Clark & q jq ^jg nephew. And he directed, that if she should
Fin. 421. niarry, the property should be solely settled upon herself
and children, and in no way changed or alienated. It was
decided by the Vice-Chancellor, and afterwards by Lord
Brougham, C, and subsequently, upon appeal, by the
House of Lords, that the daughter took the absolute in-
terest in the stock, and that the bequest over was void for
remoteness.
The grounds of the decision were in substance these : —
That the expression "living at the time," being elliptical,
so far from aiding the case, by pointing out at what time the
contemplated failure of issue was to take place, itself re-
quired explanation by means of the next antecedent ; and
that antecedent was the daughter's "death without issue,"
And that as the authorities showed that the expression,
" death without issue," denoted, of itself, an indefinite fail-
ure of issue, it necessarily followed, that the expression
[ 39S ] " living at the time," {L e. of the daughter's death without
issue) referred to a living at the time when there should be
an indefinite failure of issue.
Moiikhouse Again, where a testator bequeathed personal property to
V. Monk- J. A., eldest son of M. 31., for life ; and, after his death, to
house, 3 his eldest son lawfully begotten, for life; and to remain en-
Siin. 119. tailed on the eldest son descended from the same J. Jl. and
his posterity from one generation to another for ever. But
in case of death or want of issue from J. A., then, to the
second son of M. M., and to his descendants, as above men-
tioned, from one generation to another for ever. And in
case of his death or want of issue, to the third son ; or, if no
son, to a daughter, and to her descendants, in manner before
mentioned. J. Jl. died intestate, and without having been
married. The Vice-Chancellor said, that the testator had
not spoken of any son except the eldest ; but it appeared he
meant all the sons of J. Ji. to take; for, in the bequest to
III. 1. li.] OF EXECUTORY LNTERESTS. [§719. [398]
M,his expression is, "and lojiis descendants as above
mentioned ;" and therefore it rnnst be taken as if lie had
^iven the property to J. A., for life; with remainder to his
first and other sous in tail. And that as there was no gift
over except in the event of a general failure of isssue of (he
sons of/. A., the bequests over were void for remoteness.
And where a testator gave the profits of bis business, if Dun]; v.
continued by liis executors, and the interest of the monies Fmncr, 2
arising from the sale of it, if disposed of, and also the in- j^^i'';;'^- ^ ^^^
terest of the securities on which the rest of his capital should ^^0.
be invested, to his daughter, for life: her receipt to be a dis-
charge. He then gave her the rents and profits of all his
real estates, during^her life ; and, at her decease, he devised
and bequeathed to her lieirs, all his estates real and per-
sonal, as tenants in common: should his daughter have but
one child, such child to possess the whole; but, if she should
die without issue, then, at her decease, he gave certain lega-
cies, lie next directed, that, at his daughter's decease
without issue, all his effects should be sold, and the said
legacies paid, and a sum sufficient to produce 150/. a year,
should be invested, and the interest paid to her husband for
life. He then ordered, that all his real estates should be [ 399 ]
sold, at the decease of his daughter, or at the decease of his
brother and sisters, according as a particular event might
turn out ; and he gave over to certain persons, all the
residue of his personal estate, including the proceeds of the
sale of the real estate when sold, and the rents of them until
they were sold. The daughter died without having had
issue. Sir John Leach, M. R., held, on the authority of
Jesson V. JVright, 2 Bligh, 1, that the danghter took an
estate tail in the freeholds, on the ground, that the testator
intended that all the issue of his daughter should fail before
the estate should go over. And, with regard to the per-
sonal estate, he held, that as it was the plain intention, in
the limitations over, that the real and personal estate should
go together, the words must receive the same construction
as to both estates; and consequently, the daughter took an
absolute interest in the personal estate.
It was urged at the bar, and it would seem justly urged, Observations
that the context showed, that the words " die without issue" on Dunk v.
denoted, not an indefinite failure of issue, but merely a Fenncr.
failure of issue at her death : for, the testator immediately
proceeds, "then, at her decease, I give to my brother-in-
law &c. 100/. each." (2 Russ. & M. 561, 559.) And though,
in the next sentence, the testator directed that tiie legacies
should be paid at " his daughter's decease without issue,"
thereby going back to the ge'nerality of the first words, " die
without issue;" yet, in the same sentence, and in the same
event, he directs an annuiiy to be paid to her husband, for
[ 399 ] II. 4. ii.] AN ORIGINAL VIEW [§719a— 721.
his life, which clearly shows that he referred to a failure of
issue at her decease.
IV. Limiia- IV. As a general rule, " a limitation over on a 719a
over on failure of heirs, is void for remoteness. («) Two
[ 400 ] exceptions, however, occur to this: first, ^ where the limi-
lailurc of tation over is on failure of heirs of a prior taker; and the
heirs. limitation over is made to an individual who is a relation
of, and capable of being collateral heir to, the person whose
failure of heirs is referred to :{x) secondly, ^ where the limi-
tation over is on failure of heirs of a prior taker, and the
limitation over is to the heirs of the testator, and they must
also be heirs of the prior taker.(y) In each of these cases,
it is evident, that by heirs, the testator meant heirs of the
See § 706-7. body, and that the limitation over is a remainder after an
estate tail.
Griffiths V. A testator gave the residue of his real and personal estate
Grieve, 1 to his nephew, ^., for life ; remainder to his children ; but,
Jac. & if he should die without children living at his death, to his
Walk. .'31. niece, i?., for life; remainder to her children: and, if she
should die without children living at her death, then, to her
heirs, executors, administrators, and assigns. And, by a
codicil, he gave the same to the City of Aberdeen, after the
decease of the before mentioned persons in his will, ./^. and
his heirs for ever, and B. and her heirs for ever. Lord El-
don, C, held, that the gift over of the personal estate to the
City of Aberdeen was void for remoteness, inasmuch as the
word heirs did not mean children only; and even if it was
not used in its strict sense, it certainly was co-extensive with
the word issue, and the testator did not contemplate giving
over the property to the City, till a failure of all the descend-
ants of ^. and B.
Y. Trusts of V. ^ The trusts of a term limited previous to an 720
a term limit- estate tail, for raising portions on the failure of
ed previous issue inheritable under the entail, arc too remote: because,
to an estate the term being limited antecedently to the estate tail could
tail. not be defeated by a recovery ; so that even after a recovery
had been suffered, there would remain trusts to be performed
[ 401 ] on an event which might not happen till a very remote
period. (z)
VI. Interests VI. Where the property is to vest only in a 721
to vest on person who shall sustain a certain character, (as.
(u) Tilbury v. Barhut, 3 Atk. 617 ; Right or Wright v. Hammond, 1 Stra.
427; and ^It. -General v. Gill, 2 P. W. 369 ; as stated, Fearne, 446,456,
467 — 8. Crooke v. De Vandes, 9 Yes. 197, as stated, Fearne, 475, note (s).
(x) Webb V. Hearing, 3 Lev. 470 ; and Ti/(e v. Willis, Cas. temp. Talbot,
1; as stated, Fearne, 407.
(y) Nottingham v. Jennings, 1 P. W. 23, as stated, Fearne, 467.
(z) Case V. Drosier, 2 Keen, 764.
III. 4. ii.] OF EXECUTORY INTERESTS. [§721. [ 101 ]
for instance, in a person who sliall bear a given title, or " be in the sustain-
lioly ordcrs,(rt) or be a tenant in tail of iiie age of 21 ;) and iug a certain
no person sustaining such character may be in existence character,
within the period fixed by the general rule against perpe-
tuities; the limitation, unless it is by way of executory trust, Sec § TOG.
is void for remoteness.
Vere, Lord Vere, bequeathed certain chattels to trustees, Lord Dcfr-
in trust for his wife, for life; and, after her decease, for his Imrst v. The
son, for life; and after the decease of the survivor of them, J^^ke of St.
in trust for such person as should from time to time be Lord -^Hban'n^Ji
Vere; it being his will and intention and sole motive for ^'^^-232;
making that disposition, that the same should, after the de- ^\ y- ""'"•
cease of his wife, from time to time go and be held and ^oUcmuc/ie
enjoyed with the title of the family, as far as the rules of g'^i.^,!']!",^^'
law and equity would permit. The testator left liis wife ^^^ '^^^
and son surviving him, and also two sons of his son. After
the death of his wife and son, the eldest grandson succeeded
to the title and the chattels, and became third Lord Vere,
and died, leaving an infant son, who then succeeded to the
title as fourth Lord Vere, and died an infant and unmarried,
leaving the second grandson of the testator surviving him.
It was held by the Vice-Chancellor, and by Lord Lyndhurst,
C, on appeal, that the administratrix of the fourth Lord
Vere was absolutely entitled to the chattels. But it was
decided by the House of Lords, that the chattels vested
absolutely in the third Lord Vere, the eldest grandson of
the testator. Lord Cottenham, who had succeeded Lord
Lyndhurst, proposed that decision on the ground, that
though the individuals who afterwards happened to be the
second and third Lords Vere were in existence at the testa-
tor's death, as individuals; yet, that the Lords Vere, as
peers, were not in existence at that time; and, in conse-
quence of attainder and abeyance, no Lord Vere might [ -102 ]
have happened to come into existence for an indefinite
number of years; and therefore, the executory bequest over
to such person as should be Lord Vere, was void lor remote-
ness, as regarded the fourth and s\icceeding Lords Vere, if
not as regarded even the third Lord Vere.
And where a testator devised his reversion in fee in his Ibhrtson v.
mansion to his brother, for life; remainder to his first and lhbctsori,\0
other sons in tail male; with divers remainders over. And Sim. 495.
he bequeathed iiis plate, pictures, &c., in and about his
mansion, to trustees, in trust to permit the same to be used
and enjoyed by the person and persons who for the time
being should be in possession of his mansion, under, the
(«) Prorior v. Up. of Bath and Wells, 2 II. Blac. 358, as stated, Fearnc,
510, note (A).
Vol. II.— 41
[ 402 ] III. 1. ii.J AN ORIGINAL VIEW [§722.
settlement on his marriage, or the hmitations contained in
his will, imtil a tenant in tail of the age of 21 years shonld
be in possession of his mansion ; and then, the plate, pictnres,
&c., were to go and belong to such tenant in tail. A tenant
in tail, of tiie age of 21 years, namely, the brother's eldest
son, became possessed of the mansion within 21 years from
the death of the testator. Yet, Sir L. Shadwell, V. C, held,
that the trust declared of the plate, pictures, &c., was void
for remoteness, so far as it was to take effect after the death
of the brother; since the suspension of the vesting of the
chattels might endure for ages; and the validity of the gift
must be determined by considering how it stood at the death
of the testator; and unless it was then such, that if it ever
took effect at all, it must of necessity have vested the abso-
lute interest in some one within the period allowed by law,
it was bad then, and must ever bo so. And this decision
was afiirmed by the Lord Chancellor.
BanJies v. But where a nobleman conveyed real estates to trustees,
Le Despen- in trust, after the death of himself and his eldest son, to
cer, 10 Sim. settle such estates, so that the same should, so far as the law
•^'^' would permit, be strictly settled so as to go along with the
dignity of Le Despencer, so long as the person possessed of
the same dignity sliould be a lineal descendant of the settlor ;
and that during every suspension or abeyance of the same
dignity, within the limits prescribed by law for strict settle-
ments, the rents and profits of the same premises should or
[ 403 J might be equally divided among tlie co-heirs per stirpes of
the person or persons by reason of whose deatli or deaths
without issue male such suspension or abeyance should be
for the time being occasioned. This being an executory
trust, Sir L. Shadwell, V. C, held, that it was not void
for remoteness ; and the Master was directed to approve
of a proper settlement according to the language of the
trust.
VII. Where VII. Where real or personal estate is devised or 722
the vesting bequeathed to a class of persons, and the vesting is
of a devise suspended until a certain age, and some of the class may
or bequest to possibly not come into existence till so late a period, that the
a class is gjfi to tliem may be too remote ; in such case, the gift to the
suspended whole class will be void for remoteness: because, it was in-
till a certain tended that the whole class should take, as a class, and not
age, and jj-,^^ some of them sliould take, in exclusion of others. (See
some of tliem c ^nr \
in'^essetll r ^ testator gave real and personal estate to trustees, to
remote a ' ^PP^y ^^'*^ ^®"^^ ^""^ interest, or such parts as they should
period think proper, towards the maintenance, education, or ad-
, , ' vancement of his grandson, JV. R. R., until 25 ; and, after
Robinson 2 ^^^^ attaining that age, to pay to or permit him to receive
III. 1. ii.J OF EXECUTORY LNTERESTS. [§722. [ 403 ]
the same during her life; and, after his deatli, to pay tlie Mcriv. .3C'3.
same or such part &.c. lor the maintenance &.c. of ail his Sf-c- alsf»
children, until, heiiig sons, they should attain 25, or, heing Vau-dnj v.
daughters, they should attain such age or marry; and then, (^'f^ddes, I
to transfer and assign to such children wiio should attain '^"j^s- '^ ^^^
such age or marry as aforesaid. And he directed, that in '^^•^' ^^^''^'^
case JV. K. li. should die witliout leaving issue Hving at \ jj
his decease, or, leaving sucli, they all should die before at- j !\ ^'o-
taining 25, or, being married as aforesaid, then, the trustees r'!,'r .'' V""'
should aj)j)ly the real and personal estate unto all the 't7' ' '
brothers and sisters of JV. R. R., share and share alike, j., , , . J-
upon attammg 25 or marriage, as aforesaid. Ihe testator 45:5. stated
then gave the residue upon trust to pay one moiety of tiie k 350
rents and interest to his daughter JR., for life ; and, after her /j,,// y_
death, to her husband, for life; and, after the death of tiie Pritchard
survivors, for the maintenance &c. of the children of /?., 1 Russ. 213,
(except JV. li. li.) in the same manner as in the former stated § 3GG.
gift: and, as to the other moiety, upon like trusts for liis
daughter M., her husband and children. And the testator [ 401 ]
directed, that in case of the death of any of his said grand-
children before 25 or marriage, the shares of them so dying
should go to the survivors ; and, in case of the death of
either of his said daughters without leaving issue by her
said liusband living at iier decease, her share should go to
the issue of his surviving daughter. JV. R. R. died unmar-
ried. At the date of the will, he had a brother and three
sisters hving. Two other brothers were born after the tes-
tator's death, and before the deatii of JV. R. R. ; and after-
wards, another sister. Sir W. Grant, M. R., held, that the
particular bequests and llie bequests of the moieties of the
residue to the children of R. and M. were void for remote-
ness ; that so far as the particular bequests were ill disposed
of, they fell into the residue; and that as il/. had died leav-
ing issue, iier moiety belonged to the next of kin ; and that
the moiety of R. rested in contingency during the life of R. ;
and if she should die without leaving issue, it would go over
to the children of M., the word "surviving" meaning
"other;" but if she should die leaving issue, it would be-
long to the next of kin. His Honour observed, that the vest-
ing was in every instance suspended till 25, there being no
gift antecedent to the direction to pay and transfer at that
age (2 JSIeriv. 385;) and the circumstances, that the testator
unnecessarily provided for survivorship ; that he had spoken
of shares of grandchildren dying under 25; and that, in the
last proviso, he had given over the moieties of the residue
only in the event of cither of liis daughters dying without
leaving issue — did not all'ect the question of vesting; as
none of these clauses made any new git^t to the grandchil-
dren, or altered the terms or conditions of that which had
[ 104 ] HI. 1. ii.] AN ORIGINAL VIEW [§722.
been alrcatly made. {lb. 3SS.) That wherever a testator
gives to a parent for life, with remainder to his children, he
iTieans to include all the children such parent may at any
time have. {lb. 382.) That assuming, therefore, that chil-
dren born after the death of the testator were to be let in,
and that the vesting was not to take place till 25, the limita-
tion to the brothers and sisters of fV. Ii. Ii. were wholly
void for remoteness, unless the Court could distinguish be-
[ 405 ] twoeu children born before, and those born after the testa-
tor's death, {lb. 3SS.) That the alteration which this would
involve would only give the bequests a partial effect, and
that too by making a distinction, which the testator never
intended to make,, between those who were the equal objects
of his bounty. {lb. 3S9.) That the bequests were not
made to individuals, but to classes ; and what he had to
determine was, whether the class could take. {lb. 390.)
Tliat in Jee v. ^^xidley, 1 Cox, 324, there were no afterborn
children, and yet the mere possibility that there might have
been, was sufficient to exclude those who were capable of
taking. (76.390,391.)
Porter v. Again, where a testator gave annuities to his widow and
Fod-, G Sim. son, and directed that the surplus income of his real and per-
4S5. sonal estate should be invested in stock, and the dividends
accumulated, and to be and remain assets for improvcmeut
for the benefit of such surviving child or children as after-
mentioned. And he directed his trustees, after the death of
liis widow and son, to sell his real estate, and invest the
produce in stock as aforesaid, to be and remain assets for
improvement for the benefit of his grandchildren and his
nephew T. O., and to be distributed in manner and form
following, that is to say, as they should become of the age
of 25 years respectively. Two grandchildren were bOrn in
the testator's lifetime, and another after his decease. His
nephew T. O. was 19 years of age at the date of the will.
It was argued, that there was, first, a gift of the property
for the benefit of the grandchildren and T. O.; and then the
time for distribution followed in a separate sentence. That,
at all events, 7! O. was entitled to a share in proportion to
the number of the grandchildren ; for, it did not follow, be-
cause he was named with persons whose legacies were void
for remoteness, that he was not to take. But Sir L. Shad-
well, V. C, said, that the distribution was part of the gift.
That the testator used the word children as comprehending
the children of liis son, and also the cliild of his nephew.
That he meant that the right of each child should depend
on there being a class formed [as fully appeared from the
subsecpient words]. That the first memlDers of that class
should take a share, the amount of which should be deter-
mined by the number of individuals then constituting the
III. 1. ii.J OF EXECUTORY INTERESTS. [§722. [ 40G ]
class. And that if the whole intention could not prevail,
effect could not be given to any part of it. His Honour added,
that there were several passages in the judgment in Leach
V. Robinson, which exactly applied in spirit to this will.
So where a testator gave 30,000/. to the children of his />"'/</ v.
daughter who should be living at tlic time the eldest should l^'u/ce, 9
be 24, and the issue of such of them as might be then dead, '"^i'"- 615.
to be paid to them when and as they should attain 2 t, but
witiiout interest in the meantime. Sir L. Shadwell, V. C,
held, that the bequest was void for remoteness.
So where a testator, after devising lands to his son for Newman v.
life, directed his trustees to stand possessed of the proceeds Newman, 10
of the sale thereof, in trust for all his grandchildren, the Sim. 51.
children of his son and three daughters, who should attain
24. The son and daughters had children living at the tes-
tator's death, and no other children were born afterwards.
Sir L. Shadwell, V. C, held, that the trust was void for
remoteness.
And where a testator devised his real and personal estate, Cromek v.
upon trust to sell, and invest so much of the produce as Lumb, 3 ^
should be suincicnt to raise three annuities of 100/., and to }ou. & C.
apply one of such annuities towards the maintenance of his ''^6^-
grandchildren, the children of his daughter //. deceased,
until the youngest should attain 23; and then he directed
that the principal sum invested for the purpose of raising the
annuity should be paid and divided unto and equally among
liis last mentioned grandchildren. And, upon further trust,
to pay to each of his daughters C. and JV., for their lives,
the like annuity of 100/. And, as to each of such principal
sums as should have been invested for the purpose of rais-
ing the last mentioned annuities, he directed his trustees to
divide them, from and immediately after the death of C. and
jr. equally among all the children of C. and fF. then living
or thereafter to be born. And he directed that the shares
(subject and without prejudice to the life interest of his
daughters) of all his grandchildren, should be paid to such
grandchildren at 23, in the case of sons, and at 23 or mar-
riage, in the case of daughters. Provided that the share of
each should be a vested and transferable interest in each
grandchild, being a son, on his attaining 23 or leaving issue
at his decease, and in each grandchild, being a daughter, on [ 407 ]
her attaining that age or marrying. Then followed a clause
of survivorship, and a clause of maintenance. There wore
five children, and three of them attained 23; of whom ./. //.
died, after surviving M. If, who died under 23, and prede-
ceasing D. II., who died under that age. It was held, that
J. II. took an original one fifth share of the annuity fund
provided for the children of //, and one third of M. //.'s
share, but no part of D.'s share ; the words "survivors and
[ 107 ] III. 4. ii.]
AN ORIGINAL VIEW [§723, 724.
Distinction
suggested,
that some
should take
under the
will, where
none could
take in case
of an intes-
tacy; but
that none
should take
under the
will, where
they could
all take in
case of an
intestacy.
[ 40S ]
Objection
answered.
survivor" being used in their natural sense. It was also
held, that the limitations of the annuity fund from which C.
and IV. derived their life annuities, were void for remote-
ness, even as to the children of C. and W. living at the date
of the will.
At first sight, it would seem, that, as a general 723
rule, the Court should give eUcct to the disposition
of the will, in favour of as many of the class as could law-
fully take ; and that, though the testator did not intend to
draw any distinction between persons who were equally
the objects of his bounty, yet, if it became a question whe-
ther all should take under the will, or none, he would pre-
fer, that, at all events, some should be admitted, if all could
not. And this, in fact, would surely be the intention of the
testator, if the objects of his bounty would be deprived of
his property altogether, unless they could take under the
will ; as, where they are all strangers, or such relatives as
are not the persons to whom the statute of distributions
would give it in the event of his intestacy. But, where
they would take in case of an intestacy, and it therefore
would not be a question, whether all should take, or none,
but merely a question, whether all should take under the
will, or none; there, as a general rule, it would seem that
the testator would prefer, that none should take by the
will, but that the succession should be left to the disposition
made by the statute of distributions. Suppose, for instance,
the testator gives the ultimate interest, subject to the life
interest of a prior legatee, to a class of persons who are his
next of kin : his intention, if his personal estate were not
exhausted by his debts, would be elTcctuated, if none were
allowed to take under the will, though the bequest would
fail ; whereas, if some only were allowed to take under the
will, his intention that all should take, would be defeated.
Would it not, therefore, be a just distinction to allow those
individuals of the class to take, who lawfully could take,
where the/ would otherwise be entirely deprived of the
property intended for them ; but to admit none of the class
under the will, where they would all take under the statute?
This suggestion is thrown out with great diffidence, as appa-
rently founded in common sense, and in furtherance of the
real intention, which is the governing principle in the con-
struction of wills.
It may be objected, that the validity or inva- 724
lidity of the dispositions of a will ought not to
depend on the character of the objects, when they are not,
in themselves, incapable of the testator's bounty. But, why
should not a testamentary disposition be dependent on the
character of the objects, just as much as upon the nature of
the subjects, as in cases where the words "leaving issue,"
III. 4. ii.] OF EXECUTORY INTERESTS. [§725. [ lOS ]
arc interpreted in regard to personal estate, in a different
manner from that in wliich they are interpreted in regard to Sec § 538-9.
real estate. No evil of nncertainty arises, it would seem, in
either case; because, the character of the objects and the
nature of the subject is known at once, and remains un-
changeable. And therefore, it is not like determining the
validity or invalidity of a limitation, according to the events
that happen after the testator's death ; for, in that case, the
limitation might be regarded as invalid one hour and valid
the next, which would be productive of the greatest mis-
chief.
Again, why should not the Court admit some of a class,
and exclude others on the ground of remoteness, when, in
numerous instances, it has admitted some of a class, and ex- See § 227-
cludcd others, on the ground of inconvenience .'' 230c.
725 VIII. Where a testator expressly coufmes his vm. Where
bounty to a certain description of persons among a a testator
given class, evidently for the purpose of avoiding a trans- gives tosomc
gression of the limits prescribed by the rule against perpe- only of a
tuities, and yet makes the limitation over depend in terms class to keep
upon the failure of the whole class, without restriction ; the [ 409 ]
limitation over will be so construed as to be capable of tak- within the
ing cllect simply on failure of those of the class who are to ^'"^ against
take under the express limitations, especially if the testator pcrpetuitios,
excludes some of the class, irrespectively of the rule against ?"" ^'^' ^'"^*
perpetuities. And, for the purpose of this construction, the l!^./^^'*^^' ^"
word " such," or "said," will, if necessary, be supplied. wliXd lis
A testator beaueathed all the residue of his personal ^^ c ^ar'''
estate, upon trust, lor his grandson i?., the son of his son , .. .
Jsaac, at 25, for life; and, after the death of B., in case he ^y''^o'«|^_^ ^'•
should have a son who should attain 21, then, for such s'^r'^fTr-'
son of //,, who should first attain 21, absolutely; and, in 121^
case B. should have no son who should attain 21, upon
trust for the testator's grandson, J., the son of Isaac, at 25,
for life; and, after the death of J!, in case he should have a
son who should attain 21, then for such son, absolutely;
with the like limitations successively in favour of any other
grandsons, sons of Isaac, born m the testator's lifetime, and
their respective sons first attaining 21 ; and in case no son of
Isaac, then born, or to be born in the testator's lifetime,
should have a son who should live to attain 21, then, upon
trust for any son of Isaac born after the testator's decease
who should first attain 21, absolutely; and, in case no son
of any son of /iY/r/c born in the testator's lifetime, nor any
son oi' Isaac horn after the testator's decease, should live to
attain the age of 21 years, then, from and immediately after
the decease of all the sons and grandsons of Isaac, upon
trust for the testator's nephew G., for life ; and, upon G.'s
decease, in trust for such son of G. as should first attain 21.
[ 109 ] III. 4. ii.] AN ORIGINAL VIEW [§726.
Lord Cottcnham, C.,held, that the words, "after the decease
of all the sons and grandsons," must be read as if they had
been ''after the decease of all the said," or "all sitch sons
and grandsons;" and, therefore, that the limitation over, in
favour of the first son of G., was not too remote. It was
obvious, from the provisions 'preceding the limitations over
in favour of G. and his son, that the author of the will knew
well to what extent the law would permit tlie vesting of
the residue to be postponed; and that he had framed those
[ 410 J provisions accordingly ; and hence, it would be unreasonable
to suppose that he intended to transgress those bounds by
the limitations over to G. and his son. (3 M. & C. 147.)
Besides, it was evident that all the grandsons of Isaac were
not to take : for, of all the grandsons of Isaac who might
come in esse, the testator fixed upon one only, who, to be-
come entitled, must have attained 21, and have been born
of a father himself born in the testator's lifetime. {lb. 148.)
And as it was clear that the whole of the class were not to
take, the gift over, though made to depend upon the failure
of the whole class, was to be construed to take place upon
the failure of that description of the class who were take;
{lb. 151:) for, there could be no motive for postponing it
for any longer period than was necessary to let in those
who were the prior objects of the testator's bounty. {lb.
138, 148.)
IX. Where a IX. Where the prior limitations are confined to 726
testator gives a certain description of persons among a given
to some only class; and the persons falling within such description may
of a class, take, without transgressing the rule against perpetuities;
without and there is a limitation over, which was apparently in-
transgress- tended to take effect, as an alternative limitation, in the
ing the rule event of the non-existence of the persons so described,
against per- though, in terms, it is only to take effect in case of a failure
petuitiesjbut, ^^ ^j^^ -^yjiole class; it will be treated as an alternative limi-
jn terms, h- tj^jJQj^^ (q j^j^q effect in the above-mentioned event, and
rnits o^'cr^on jj^g^gi-Q^g j^5 ^(5t ^,QJj f-Qf remoteness. (See § 128, 706.)
, , , A testator bequeathed the residue of liis personal estate
whole class, . ,^,r i- i i. r i-r -1
and vet an- to trustees, m trust for his daughter, for life; remainder to
parentlv'in- ^^^^ children, at 21; and, in case any or either of the said
tended to ' children should die under the said age, and have one or
createamere more child or children who should survive his said daughter,
alternative and live to attain the said age, such last mentioned child or
interest. children should be entitled to his or their parent's share;
Trickey v. "^^ith an ultimate limitation over, if tlierc should be no child
Trickcy, 3 of his said daughter, or, there being any such, no one of them
M. & K. should live to attain the age of 21 years, nor leave any issue
560. wlio should attain thereto. Sir John l^each, M. R., held,
that as tiie first provision in favour of the children of the
child of the daughter who should die under 21, was confined
III. -1. ii.] OF EXECUTORY INTERESTS. [^S727— 730. [ill ]
to such grandcliildrcn, [of the daughter] as should survive
the daughter; so, iu the suhsequent passages, the testator
was to be understood to speak of such graudchildren only;
and therefore the hnnitation over being to take effect upon
faikire of grandchildren [of the daughter] who should
survive the daughter, and not live to attain 21, was not
too remote, as it extended only to a life in being, and 21
years.
727 X. •'Where a prior limitation depends on too X. When an
remote an event ; and there is an alternative alternative
limitation which depends simply on the non-happening limitation is
of that event ; and it is possible, at the date of the instru- void lor re-
nient, that it may not be decided, within the period pre- rnoteness.
scribed by the rule against perpetuities, whether or not such See § 700.
event will or will not happen; in such case, the alternative li-
mitation is void, as well as the prior limitation ; because, each Sec § 128-
is iu fact limited on too remote a contingency. (A) 136.
728 XI. "^In the case of a particular or qualified XI. Interests
power of appointing real or personal estate, that under par-
is, a power of appointing it to or among particular objects ticular or
only; no estate or interest created by the exercise of the lualified
power, will be good, unless it might have been created by I'<^"<^''^ 'nust
the deed or will itself conferring the power. So that, limi- "*^ ^"*^" ^^
tations which would have been void for remoteness, if in- ^^^^^ j^r
serted in an instrument conferring a particular power, will " ^P,
also be void for remoteness, if inserted in the instrument by > , , -^ ,
which the power is exercised. And hence, estates or inte- „ •i, „ ' ■
rests cannot be appointed under a particular or qualified j^^,, ^^^^
power, to any persons, as purchasers, who are the children po°ver
of persons not in being at the time of the execution of the gpg § 706-
deed or at the date of the will. 710.
729 XII. But, in the case of a general power, that xn But in-
is, a power of appointing the fee to anyone whom terests under
the donee of the power thinks proper; it is not necessary rrcneral
that the estates created by the exercise of the power, should [ 412 ]
be such as would be good if created by the deed or will powers need
conferring the power. not be of
730 The reason of this difterence is, that in the case such a cha-
of a particular power, the specification of the ob- racter.
ject takes the land out of commerce or locks up the capital. Reason of
and tends to a perpetuity. Whereas, there is no tendency the above
to a perpetuity in a general power, as it enables the party to distinction,
vest the whole fee in himself, or in anyotlier person, and to
liberate the estate entirely from every species of restriction,
through the medium of a seisin previously created and vested
(6) See Proctor v. The Bishop of Hath and Wells, 2 H. Black. 358 ; and
Cambridge v. Rous, 8 Ves. 12 — 24; as stated, bVarne, 508, note (/r).
Vol. II.— 42
[ 41-2 ] III. 4. ii.] AN ORIGINAL VIEW [§731—733.
in other persons, to tlic same unlimited extent as he could
have done by a conveyance of the land itself, if the seisin
had been vested in him, instead of being vested in others to
such uses as he should appoint. (c)
XIII. Powers XIII. If a power is not to arise till an event 731
to arise on (such as an indefinite failure of issue) that proba-
an indefinite (i|y n^ay ,iot occur within the period prescribed by the rule;
lailure oi is- jij^ power and the appointment are both void for remote-
1"^- ness, even though it may happen that the event occurs
bee ^ 706. ^^((1,^^ {j^g prescribed period.
Reason for It would be inconvenient and unreasonable, if 732
the foregoing the power were held to be good, so far as to enable
'■"'^- the donee to make a good appointment in case the event
should occur within the prescribed period : for, according to
See § 79-81. this construction, the vesting in interest of the property, or
See § 369a- the absolute and indefeasible vesting thereof, as the case
374. may be, might remain for many years suspended upon an
event which probably would not happen in time for any
appointment to be made,
Bristow v. A settlement was made on husband and wife, for their
Boothby, 2 lives ; remainder to the sons, in tail male : remainder to the
Sim. & Stu. daughters, in tail; remainder to the survivor of the husband
465, jjj-,j vvife, in fee. And it was provided, that in case there
should not be any child or children of the marriage, or, being
such, all of them should die without issue, and the husband
f 413 ] should survive the wife, then it should be lawful for B., the
wife, by deed or will, to charge the premises with 5000/., to
be raised and paid after the decease of the husband and wife
and such failure of issue as aforesaid, to such person as the
wife should direct. There was only one child, who died at
the age of eight years ; and the wife afterwards died in the
husband's life-time, having, by her will, exercised the power.
Sir John Leach, V. C, held, that as the estate was not limited
to all the issue of the marriage (the limitation to the sons
being in tail male, and not in tail general) and the power
was to arise on an indefinite failure of issue, it was too re-
mote.
XIV. Powers XIV. But, where a power authorises an ap- 733
of appoint- pointment among a class of persons, the power is
rncnt among good, provided some of the class will probably come into
a class of existence within the period prescribed by the rule, though
persons, others may not ; for, in such case, it is sufficient if the actual
some of appointment made in exercise of the power, is confined to
whom will objects who have come or may come into existence within
probably g^^^^j^^ prescribed period,
come in esse
within the period prescribed by the general rule.
(c) See Butler's note, Co. Lilt. 271 b. (1) VII. 2, as regards real estate.
b
III. 4. ii.] OF EXECUTORY INTERESTS. [§731,7:35. [ MS ]
734 III this instance, as tlierc will proljably be occa- Reason for
sion for that suspension of the vestint^ in interest, ilie foregoing
or of (he absolute and indefeasible vesting, which is caused rule,
by the creation of the power; in other words, as there will
probably be objects to whom a valid appointment may be
made, without transgressing the rule against perpetuities,
there is no more inconvenience and mireasonableness in
allowing such suspension, than there is in the ordinary cases See ^ 117-
of contingent springing or shifting interests, limited without l-^7b, 148-
the medium of a power. ^'^'^•
A power was given, by a marriage settlement, to the hus- Rouihdgc
and and wife, or the survivor, to appoint personal estate v. Durril,
among all the children and grandchildren or issue of the J \es. Jun.
marriage. A'. D., tlie wife, survived ; and, having (besides '^^^•
other children) a daughter B., who had ihree children living
at her, E. D.'s, decease, she appointed part of the iiioney,
by will, to E. for life, for her separate use; and, after /v.'s
decease, to all her children (and not to the three only who
were living at E. Ws death). Sir R. P. Arden, M. R.,
held, that the power was good; (2 Ves. Jun. 362;) hut that [ 4ii ]
the appointment which was actually made, was too remote;
and that, on the authority of Gee v. AuiUey, it was there-
fore void, as to all the children of E.; and that it could not
be supported in favour of those who were living at the death
of E. D.; because E. D. did not mean those only, but all.
{lb. 3(J2— 6.)
E. D. made a similar appointment in favour of a son, H.
/;., and his children. 7?. D. had no children at the death of
E. D. It was argued that the intention should be executed
cij pres. The JNlaster of the Rolls said, that where, indeed,
re«/ estate is limited to a person unborn, for life ; remainder
to his first and other sons, in tail; as (hey cannot take as
purchasers, but may as heirs of the body; and as the estate
is clearly intended to go in a course of descent; it shall be
construed an estate tail in the person to whom it is given for
life. liut that this mode of executing the intention ci/ pres
was not applicable to personal estate; for, the Court could
only give the personal estate to the unborn tenant for life,
absolutely; and then it would not go in a course of descent,
but would go to his executors and be liable to his debts.
{[h. 365.)
735 W\ A learned aiithor(r/) refers to several XV. Powers
cases, («) in proof (hat a power of sale is valid, of sale,
though not restricted to the period allowed by the rule See § 706.
against perpetuities.
(rf) 1 Jarman on Wills, 250.
\c) Biddlew Perkins, 4 Sim. 135; Pmvis v. Capron, Id. 13^» n.; Warms; v.
Coirntry, 1 .Myl. & K. 249 ; Bcycc v. Hunning, 2 Crump. & Jer. 33 \ ; Holder
V. Preston, 2 Wils. 400.
[ 414 J 111. 4. ill.] AN ORIGINAL VIEW [§736—738.
SECTION THE THIRD.
Cert ail} Points connected ivith the Doctrine of
Jiemoteness.
I. Where the I. Where a testator first makes a gift in terms 736
absolute in- which would carry the absolute interest in chat-
[ 415 ] tels, and then proceeds to restrict it to an estate for life; add-
terest is af- ing a limitation over which is void for remoteness; the
terwards re- entire interest as conferred by the original gift, remains un-
stricted to a affected by the subsequent attempt at restriction. (See §
life interest 706.)
with a liml- ^ testator bequeathed his residuary personal estate upon
tation over trust, for his wife, for life, or during widowhood; and, after
winch IS void j^gj, decease or second marriage, upon trust to divide the
for remote- ^^^^^^ between his four children, his two sons, »/3. and B.,
^^^^' his two daughters, C. and D.; the shares of the sons to be
^^'^g V. pa^i(^ immediately. And he directed that the shares of his
Hardtvich j^^q daughters C. and B. should be invested for them, for
2 Beav. 3ox.. jj^^^ ^^^ ^^^^^ ^1^^-^ respective deaths, divided between their
respective children, and to become vested in such children
at the age of 25. And that, in case either daughter
should die without leaving any child who should live to
attain 25, then, the property should go to the children of
the others who should attain 25. Lord Langdale, M. R.,
held that the gift to the children was contingent, notwith-
standing the testator had used the word "share," in refer-
ence to their interest before 25; and that consequently it
See§ 100-3. was too remote, and the absolute interest remained to the
daughters, according to the original gift.
II. Remain- II. ^ Where a limitation is void for remoteness, 737
der after too a limitation in remainder after it, is not accelerated,
remote an b^jt is also void.(/)
interest. ju Where a term limited in remainder in trust 738
III. Money ^^ j.g^jgg g^^g ^f money, is well created ; but the
raised by a ^^^^^ ^^j. ^^^ch the money is to be raised, are void for re-
term well n^oteness; and the devisees in remainder after the term, are
created, the .y. ^^ ^^^^ ^^^^^ ^^^^ money shall have been raised, or the
areVoid fo? ^^^"^ determined, the money will belong to the heir at law,
remoteness' as a resulting trust . . r rr i • t 'i
r 416 1 ^ testator, after hmitmgcerlam estates for lite and m tail,
Tre^oniell devised the lands to trustees for a term, in trust to raise
V. Snden- sums of money for uses which were void on account of their
ham, 3 Dow. remoteness, and then proceeded to limit other estates " after
194.' * the said sums should be raised for the said uses, or determi-
nation of the said term." The Court of Exchequer made a
(/) Robinson v. Hardcastle, 2 Bro. C. C. 22 ; and S. C. 2 Dmn. & East,
241, 380, 781; as stated, 1 Jarrnan on Wills, 213.
III. 5. i.J OF EXECUTORY INTERESTS. [§738a. [416]
decree, whereby tliey virtually put the term of GO years
entirely out of the will, and gave up the lands to the next
tenant for life, as if he liad been the immediate devisee.
But this decree was reversed by the House of Lords, who
lield that as the term was well created, and the devisees in
remainder after the term, were, by express words, only
to take after the money should be raised, or the term de-
termined; the money belonged to the heir at law, as a
resulting trust.
CHAPTER THE FIFTH. [ 417 J
OF THE RESTRAINTS IMPOSED ON THE ACCUMULATION OF
THE INCOME OF REAL AND PERSONAL ESTATE J AND OF
THE DESTINATION OF INCOME RELEASED FROM ACCU-
MULATION OR ACCRUING BEFORE THE VESTING OF AN
EXECUTORV DEVISE OR BEQUEST.
SECTION THE FIRST.
The Jlccumulalion allowed before the Statute.
738a * Before the passing of the statute 39 & 40 Geo.
HI. c. 98, a person might suspend the enjoyment
of real and personal estate, and direct that the whole of the
rents, profits, and produce thereof, should be accumulated,
for as long a period as (hat during which it was allowable
to suspend the vesting of the ownership or property of and
in such real and personal estate. (a)
But if the accumulation exceeded that period, it was void
in toto, and not merely as to the excess.
Thus where a term was limited, in trust, during the re- Lord South-
spective minorities of the respective tenants for life, or in ampton v.
tail, in possession, or entitled to the rents of real estate, to Marquis of
receive and lay out the rents in stock, to accumulate for Htrtfonl^ 2
such person or persons as should, upon the expiration of V. tV B. 54.
such minorities or death of the minor or minors, be tenant
or tenants in possession or entitled to the rents, and of the
age of 21. Sir W. Grant, M. R., held that the trust was
altogether void, except so far as it was a trust for the pay-
(a) SeeFcarnc, 533, note (x); and Thelussonw Woodford, 11 Vcs. U'J, 146,
as stated, Fcarnc, 436, note (/).
[ 417 J III. 5. i.] AN ORIGINAL VIEW [§73Sa.
ment of debts ; because it might extend beyond the period
allowed for executory devises or trusts for accumulation, in
consequence of a succession of minorities. It was argued
at the bar, that a series of minorities might prevent aliena-
[ 418 ] tion in the case of any limitations in tail. But, to this it was
justly replied, that the incapacity of alienation in the latter
case, is not produced by the parties themselves.
Marshall v. And where a testator devised and bequeathed his real
HoUotcay, and personal estate, upon trust, to invest the rents and profits
2 Swanston, and annual proceeds as and when and so often and during
451. all such times as any person or persons beneficially inter-
ested in or entitled to any real and personal estates under
the trusts afterwards declared, should be under 21; adding
all such investment to his personal estate, in order to accu-
mulate the same ; and, subject to such trusts and certain
others, upon trust for the eldest son, then living, of his
daughter, for life ; remainder to his first and other sons in
tail, with divers remainders over. Provided always, that
such person or persons as should be entitled to an estate tail
in possession in his said real estate, should not be absolutely
entitled to his leasehold and personal estate until he, she, or
they respectively should attain 21; and, in the meantime,
the said leasehold and personal estates should remain subject
to the trusts before declared thereof. The testator then di-
rected, that every person who should become entitled to the
possession or the receipt of the rents and profits of his said
real and personal estates, should within a year after attain-
ing 21 and so becoming entitled, assume the surname and
arms of Holloway. It was argued for the lieir-at-law and
next of kin, that the proviso gave a direction and operation
to every clause, and was to be considered as a part of the
gift ; and that no person was to derive any benefit before
21; and hence, that no property was intended to vest either
in enjoyment or right, before 21. That if the testator had
intended an immediate gift, he would have directed an im-
mediate assun)ption of his name and arms. (2 Swans. 441.)
That the words "subject to the trusts," meant "after per-
formance of the trust;" and that all the limitations of the
real estate to unborn persons after the first estate for life,
being designed not to take elfect till after the performance
of a trust which was too remote, were void. {lb. 441 — 2.)
Lord Eldon, C, held, that the trust for accumulation was
void, because it might last for ages, {lb. 450,) but that the trust
[ 419 ] lo accumulate would not, more than a trust for payment of
debts, prevent the vesting ; and that the eldest grandson took
a vested estate for life, and was entitled in possession to the
rents and profits of the real estate, and the dividends, inter-
est, and anmial proceeds of the personal estate, and that the
remainders over were valid.
III. 5. iii.] OF EXECUTORY INTERESTS. [§738b-738d. [ 419 ]
SECTION THE SECOND.
The Periods to which, except in certain cases, ^Accumula-
tion is restricted by the Stat. 39 & 40 Geu. III. c. .98.
738b The mischievous extent to which Mr. Thehis- Orij^'in of tho
son availed himself of the power of creating an statute :J9
accumulation which formerly existed, gave rise to the statute ^ 4U (ho.
39 & 40 Geo. III. c. 98, for preventing the recurrence of a ^"' ^* ^'^•
disposition which was alike impolitic and unnatural; as
tenditig to withdraw capital from general circulation, and to
keep the nearer relations of a settlor or testator in a state of
indigence, for the sake of augmenting the fortunes of some
remote and unascertained descendants.
738c By the first section of that statute, it is enacted, Enacimenta
" that no person or persons shall .... settle or thereof,
dispose of any real or personal property, so and in such man-
ner that the rents, issues, profits, or produce thereof, shall be
wholly or partially accumulated for any longer term than
" The life or lives of any such grantor or grantors, settler
or settlers,
"Or the term of 21 years from the death of any such
grantor, settler, devisor, or testator,
"Or during the minority or respective minorities of any
person or persons who shall be living, or in i>entre sa mere
at the time of the death of such grantor, devisor, or testator,
" Or during the minority or respective minorities only of
any person or persons who, under the uses or trusts of the
deed, surrender, will, or other assurance, directing such
accumulations, would, for the time being, if of full age,
be entitled unto the rents, issues, and profits, or the iiuer-
est, dividends, or annual produce so directed to be accumu-
lated."
SECTION THE THIRD. [ 420 ]
Observations and Decisions respecting the liestrictions
i?nposed by the Statute.
738d I. ''The prohibition of the statute is not con- I. The stat-
fined to an accumulation for the benefit of persons i"f applies
who are not in being or not yet ascertained, though the •-'^f'" '"^ ^^^
principle upon which such prohibition is founded certainly f'lmnlations
applies with more than ordinary force to such cases; but it '" 'a^'^'u^ot
even affects accumulations in favour of persons who take P*'^^^'^"^*' ^
vested interests, in the funds accumulated, from the verv . f '\
' . , 1 ■ / / X ■ inteit'sts.
connnenccment ol the accunuilatiou.(6)
(&) See Shaiv v. Rhodes, 1 M. & C. 135, stated § 738k.
[ 420 ] III. 5. iii.l
AN ORIGINAL VIEW [§738e— 7S8h.
II. It applies
even where
accmnula-
tion is not
directed.
See § 741a.
TIT. Accu-
mulations
are void only
as to the
eventual
excess.
See § 741a.
IV. Accu-
[ 421 ]
mulation
void after
21 years
from testa-
tor's decease,
though it has
not lasted
that time.
V. Whether
accumula-
tion may be
made during
minority of
person not
in esse at
grantor's or
testator's
death.
II. 'The statute applies to such dispositions as 738e
have the eflect of causing an accumulation, though
there may he no direction to accnmulatc.(c) This is clear
from the introductory words of prohibition above quoted;
though it is observable, that the clause relating to the des-
tination of the income released from accumulation, only
speaks of cases where an accumulation shall be "direct-
ed."
III. ''It is not required that the whole or even 738f
any part of the period of accumulation, should, by
force of the provisions of the instrument, necessarily fall
within the time allowed by the statute ; but the accumula-
tion for any part which, in the events that happen, chances
actually to fall within that time, is good.((/) That this is
the true construction of the statute, clearly appears from the
clause respecting the destination of the income released from
accumulation.
IV. As the statute does not allow 21 years' 738g
accumulation, unless the 21 years fall within 21
years from the death of the testator ; *^ where a testator di-
rects the accumulation of a fimd to commence on an event
or at a time subsequent to the death of the testator ; the
accumulation becomes void at the expiration of 21 years
from his decease. (e)
V. If there were no decision to the contrary, 738h
it would seem clear that the statute allows an accu-
mulation during the minority of any person who, if of full
age, would be entitled to the income accumulated, whether
such person was in esse or not at the time of the death of
the grantor or testator. For, otherwise, the fourth period
mentioned in the statute, instead of constituting a distinct
period, is in fact included, and specifically, and not merely
in effect, included, in the preceding period. So that, accord-
ing to that construction, the mention of that period would
be a mere unmeaning surplusage. And it is observable
that the word " only" is added after the word " minorities,"
in the mention of the period lastly specified in the statute;
whereas it is not added after the word "minorities," in the
mention of the period previously specified in the statute.
This would seem to afford some indication, that by the mi-
norities to which the restrictive word " only" is added, the
minorities of persons not in esse at the death of the grantor
or testator, were meant. For, it would seem that the word
(c) See M' Donald v. Brice, 2 Keen, 276, stated § 731 e.
(Vi) See ShaiD v. Rhodes, 1 M. & C. 135, stated § 738k. Sec also Griffiths
V. Vere, 9 Ves. 127; and Longdon v. Simpson, 12 Ves. 295; and Craivley v.
Crawley, 7 Sim. 527, stated § 741d.
(e) Webb v. fVebb, 2 Beav. 493.
II. 5. iv.] OF EXECUTORY INTERESTS. [§7381, 738j. [ 421 J
"only" was added, to prcveDt an accnniulalion during a
lil'c or lives in being, in addition to the j)eriod of the
minority of an unborn person, for which time it was allow-
able to accumulate before the statute, and to restrict it
to the minority or minorities onli/ of an nnborti person or
persons.
There is however a decision to the contrary, but it is Haley v.
conceived that it cannot be supported. In that case, the liannister, 1
dividends on a sum of slock were directed to be accumu- Mad. 278.
lated till one of the children of A., born, or to be born,
should attain 21, at which time the principal was to be
transferred to such children. Sir John Leach, V. C, said,
" the statute (39 & 40 Geo. III. c. QB^) prevents an accumu-
lation of interest during the minority of an unborn child; [ 422 ]
but, as to the principal, the law remains as before the
statute. The excess of accumulation prohibited by the
statute, would form part of the residue."
SECTION THE FOURTH.
The Saving Clause in the Statute.
738i IJv the second section it is enacted, "that nothing Words of the
in this Act shall extend to any provision for Pay- Act.
ment of Debts of any grantor, settler, or devisor, or other
person or persons,
" Or to any provision for raising Portions for any child or
children of any grantor, settler or devisor, or any child or
children of any person taking any interest under any such
conveyance, settlement or devise,
" Or to any direction touching the produce of Timber or
Wood upon any lands or tenements, but that all such provi-
sions and directions shall and may be made and given as if
this Act had not passed."
738j It is conceived that the word interest, as used in .Meaning of
the second of the above exceptions, refers to a free- the word in-
hold interest, or at least to a long term for years, in the pro- tcrest in the
pcrty, the income of which is directed to be accumulated, second ex-
or to an interest in the funds accumulated, considered as a c-cptioii.
certain co;y;?/.?, analogous to a corporeal hereditament; and
that it docs not refer to a mere right to something issuing
out of or collateral to such property or accumulated funds.
Indeed, if it were otherwise, the exception would open so
wide a door to provisions for accumulation, as virtually to
repeal the Act, the second exception of which, as Mr. Pres-
ton has observed, 'seems to have been inserted to prevent
the necessity of the nobility '• disposing of their landed pro-
perty for the purpose of raising portions for their younger
children, or the children of those for whom they were
Vol. II. — 13
[ 422 ] III. .5. iv.J
AN ORIGINAL VIEW
[§738k.
[ 423 ]
An annuity
is not an in-
terest within
the second
exceplion.
Shaw V.
Rhodes, 1
M. & C.
135.
[ 424 ]
providiiig,"(/) in the ordinary cases (may it not be added?)
where the parents tliemselves took interests in the land
itseU', as tenants for life, or in tail, or at least as termors for
years determinable upon their deaths.
It has been decided that an annuity payable out 73Sk
of the rents and profits to be accumulated, is not
an interest within the meaning of the second exception in
the Act.
A testator, after cliarging his estates with an annuity to
his son J. S.. of 400/.; an annuity to his son T. S.,o( 100/.;
and an annuity to liis daughter, of 100/.; and directing that
the legatees who should become entitled to any annual pay-
ments, or to the accumulations thereinafter mentioned, should
not be paid by anticipation ; devised the same estates, upon
trust to invest and accumulate the surplus produce thereof
for the benefit of his grandchildren, then born, or thereafter
to be born, until the youngest should attain 21, when the
accumulations'were to be equally divided among such of his
grandchildren as should then be living. And he directed,
that in case any of his said children should be living after
the youngest of his grandchildren should have attained 21,
the residue of the said rents and profits should be further
accumulated, and that such last mentioned accumulation
should be equally divided among all his grandchildren who
should be living at the death of the survivor of his said sons
and daughter. And, charged as aforesaid, he directed, that
immediately after the decease of the survivor of them his
sons and daughter, the whole of his said estates should stand
charged for 20 years with the payment of two third parts of
the clear produce, in equal shares and proportions, of so
much money as would in 15 years make in the whole,
30,000/.; and which sum, with the interest and produce
thereof, he directed should be equally divided among all his
grandchildren who should live to attain 21, their executors
or administrators. The testator died in the year 1812, leav-
ing ten grandchildren, of whom nine were the children of
J. *S'., and the tenth was the child of a son of the testator
who died before the will was made. No grandchildren
were born after the making of the will. The ten who sur-
vived the testator attained their majority; the eldest having
come of age before the execution of the will, and the young-
est in the year 1830. The daughter survived the two sons,
and died in the year 1831. The Vicc-Chaticcllor held, that
the gift of 30,000/. was valid as a charge; and that the
grandchildren were entitled to that sum, to be raised within
20 years from the deatli of the daughter, out of the two
thirds of the rents and profits, by annual paym.ents of 1500/.,
(/) Fearne, 511, note (j).
III. 5. iv.] OF EXECUTORY INTERESTS. [§73Sk. [ 424 ]
to be deducted out of the rents and profits. The cause was
brought by appeal before Lord Brougham, C, who was
inclhied to tliiiik, with the Vice-ChaDcellor, that it was not
an accumulation proliil)ite(l by the Theiusson Act, but deem-
ed it advisaljle to direct a case for a Court of Law. It being
found impossible to frame a case which would fairly submit
the point as a legal question; the appeal was reheard before
the Lords Conmiissioners; and judgment was afterwards
given by Lord Cottenham, C, reversing the decree of the
Vice-Chancellor, in accordance with the opinion of Mr.
Justice IJosanquet, one of the Lords Commissioners, who,
at the Lord Chancellor's request, stated the reasons which
he was prepared to give, if the case had been set down for
judgment before the expiration of the Commission.
It had been argued for the respondents, that a direction to
raise 30.000/. by a charge on the animal profits of an estate
or on a fixed proportion of those profits, was not an accu-
mulation, merely because the time of payment is postponed;
each successive portion, as it from year to year accrued, in-
stantly became a vesicd interest, capable of being dealt with
and disposed of, although not actually receivable till the
whole burden had been discharged; and that, in fact, there-
fore, the gift in question was no more than a deferred charge.
(1 M. & C. 148.) That, in a sense indeed, it might be said
that this was a trust for accumulation, inasmuch as the very
nature of every charge imi)lies, that the growing profits of
the subject cliargcd should be laid up and appropriated to
satisfy the burden; but that that was not the species of accu-
mulation struck at in the Theiusson Act. That that act jiad
reference solely to an accumulation such as that directed in
the two preceding clauses of the present will, tlie effect of
which is imperatively to lock up the rents of an estate, while
the.se go on accumulating at compound interest for a long [ 425 ]
series of years, for the benefit of an individual or a class of
takers who acquire no certain and vested interest in any
portion of the fund until the determination of the prescribed
period when the aggregate fund becomes divisible. {lb. 149,
150.) That, at all events, the case fell within the second
exception in the Act, respecting provisions for raising por-
tions for children of persons taking an interest under the
devise. {lb. 150.)
Mr. Justice Bosanquet, in reply to these arguments,
observed, That there were three clauses in the will bearing
upon the subject. That it appeared from them, that the
whole surplus rents and profits were to be accumulated:
first, until the youngest grandchild should attain 21, when a
division among the grandchildren then living, was to take
place; and then a second accunuilation was to commence,
and be continued until the death of all the testator's own
[ 425 J HI. 5. iv.] AN ORIGINAL VIEW [§73Sk.
children, if any of them should outlive the period at which
the youngest grandchild should attain 21, when a further
division among the grandchildren then living, was to be
made. That both these clauses had taken ert'ect; and the
question then was, whether the third clause, which came
into operation in the year 1831, on the death of his last sur-
viving child, 19 years from the death of the testator, could
be carried into ctiect beyond the year 1833. That no one
of the three clauses was illegal on the ground of being too
remote, except so far as it was atTected by the Thelusson
Act, since no one of them embraced a greater length of time
than the period allowed for executory devises [the charges
being in favour of a class of persons all of whom must neces-
sarily be ascertained, at the latest, at the end of 21 years
after the determination of three lives which were all in being
at the time when the will spoke, namely, of the testator's
three children, {lb. 146,)] and that consequently any accu-
mulation required to be made by the clause in question,
could only be void for the excess of time beyond 21 years
from the death of the testator, that is, for the excess of time
from and after the 10th of July 1833, the death of the tes-
tator having occurred on the 10th of July 1812. That the
[ 42G ] preamble of the statute recited, that it was expedient that all
dispositions of real or personal estates, whereby the profits
and produce thereof are directed to be accumulated, and the
beneficial enjoyment thereof postponed, should be made
subject to restrictions. That, in the principal case, the gift
to the grandchildren was only to be found in the direction
to divide, and they were not entitled to any division of any
portion of the rents and profits de anno in annum, but at
the exi)iration of 15 years, if two-thirds of the rents and
profits should then have amounted to the sum of 30,000/. ;
if it fell short of that sum, they would be entitled to a
further accumulation till the expiration of 20 years, for the
purpose of making good the deficiency, and also (he appre-
hended) of paying niterest on 30,000/. from the expiration
of the 15 years to the end of 20 years. That no term was
created, nor was any power given to raise the money by
mortgage or sale for the time during which the estate was
charged ; and though, when the daughter died, the interests
of the grandchildren were vested interests, yet the testator
had expressed a strong disapprobation of all anticipation of
benefits given by his will, and intended that the beneficial
enjoyment of the annual produce should be postponed till
the whole sum to be divided should be accumulated. {Ih.
153 — 157.) That he was therefore of opinion, that, accord-
ing to the true construction of the third clause, an accumula-
tion of a portion of the rents and profits was required to be
made ; that such portion, whatever it might be, was with-
irr. r,. v.] OF EXECUTORY INTERESTS. [§739. [ 42G ]
drawn from beneficial enjoyment during the period of accu-
mulation, and was a partial accumulation within the mean-
ins: of the statnto, and consequently void, so far as that
period exceeded 21 years from the dtuUh of the testator. (/Z».
158, 159.) That he did not thiidv the case fell within the
meaning of the second exception in the statute ; for, where
the whole rents and profits were given in the first place to
persons dnring the lives of their parents, with the exception
of small annuities only to be paid thereout to the parents
themselves for their own lives, and a gift to the same per-
sons, after the death of their parents, is superadded, to be
paid out of the subsequent rents and profits, he could not
think that the superadded gift is to be considered within the
meaning of the statute, in the nature of a portion to the [ 427 ]
children of persons taking an interest under the devise.
{/b. 159.)
SECTION THE FIFTH.
Of the Intermediate Income accruing before the Vesting
of an Executory Devise or Bequest, ivhere such Income
is not affected by the Statute of Accumulations. j -^y,
739 I. K Where there is an executory devise of real there is no
estate, and the freehold, between the death of the disposition
testator or the determination of a preceding estate, and the of the
vesting of an executory devise, is not disposed of, the free- immediate
hold and inheritance descend to the heir at law.(^) freehold.
The position in which the heir at law stands, and the Observations
circumstances under which alone he is excluded, are lucidly of Lord
explained by Lord Brougham, in the case of Ackers v. Brougham
Phipps, 3 Clark & Finelly, 689, before the House of Lords: o'^ the posi-
" Tlie heir at law," says His Lordship, « takes through no !j°" °' j" ^^
intention of the testator, but paramount the will, and inde- ^" " ^^'
pendent of it, or, as it has been sometiiues expressed and
not very correctly, against the will. This is indeed quite
plain : it is only saying, that he takes as heir, and not as
purchaser. But, from this, it follows, that he has no occa-
sion at all for arguments upon construction, or to ascertain
intentions in his favour. The arguments belong to the party
who would displace him, and by means of the intention ex-
pressed, defeat his claim ; nor can he be so displaced and
defeated except by direct words or plain intention — an ex-
pression which I prefer to necessary intention. There must
appear to be such an intention to exclude him as to leave
(g) DuJiM V. Di/fehJ, 1 Dow & Clark, 268, stated § 281 ; Pay's Case, Cro.
Eli/.. 878 ; Clarke v. Smith, 1 Lutw. 798 ; Gore v. Gore, 2 P. W. 28 ; Hay-
71'anl V. Stillinisjlect, 1 Alk. 422 ; Hopkins v. Hopkins, Cas. temp. Talb. 44;
and Bidlock v. Stones, 2 Ves. 521 ; as .'-.tated, Fearne, 537 — 54.'^.
[ 427 ] III. 5. v.] AN ORIGINAL VIEW [§740—741.
no reasonable doubt in the Court that it existed in the mind
[ 42S ] of the testator : and it will manifestly not be sufficient, that,
from the general circumstances and situation of the party,
or even from the general aspect of the instrument, we may
have no moral doubt of how the framer of it would have
answered the question, had he been asked to declare his
meaning; for, this is to let in every case of plain omission
by mistake, and of gift by inept words, or in contravention
of the rules of law. The words used in the will must be
sufficient, according to their legal sense, and within the rules
II. Where of law, to indicate the intention."
tliere is no n. *» Where the intermediate income of personal 740
disposition of estate is entirely undisposed of, or there is only a
the interme- partial disposition thereof which is not for the maintenance
(hale income ^^ edncation of the person to whom the executory bequest
of personal j^ made ; the whole of the intermediate income, in the first
estate, or ^^^^^ ^^^^j ^j^^ surplus of it, in the second, will accumulate
^i^fV ^^^^■' for the benefit of the person who may happen to acquire
tia isposi- ^ vested interest after the accrual of such income. (A)
tion which IS . - , . • ■ r »i • * \Ji
for the ^ testator, after making a provision for the maintenance
benefit of the of his son T. IV. G., and of his daughter E. G., gave all
person to the residue of his real and personal estate to T. TV. G., to
whom the be a vested interest upon his attaining 21 ; provided, that,
executory in case he should die before 21, then, alt the residue should
bequest is go to E. G.; with other limitations over. Sir W. Grant,
made. M. R., held, that the interest of T. IV. G. was contingent
Glanril v. till 21; and therefore, that by virtue of the will, the rents
Glanvil, 2 and interest of the real and personal estate were to accu-
Meriv. 38. mulate till he attained that age.
III. Wheic III- But where the intermediate income of 740a
the interme- personal estate is partially disposed of for the
diate income benefit of the person to whom the executory bequest is
of personal made, the rest of the intermediate income will fall into the
estate is par- residue : for, it is a maxim, that expression facit cessare
tially dis- taciturn.
[ 429 ] Thus, where a testator gave a sum of money, in trust for
posed of for unborn children, and directed that until their shares should
his benefit, become payable, the interest should be applied in their main-
Harrisv. tenance ; Lord Eldon, C., held, that the interest before the
Lloyd;Turn. ^■^^^Y^ of a child, fell into the residue.
w w^^' ^^' ' ^"^' "^^^^^ t'^^'*^ ^^ ^ devise or bequest of 741
IV . VV here ^jj ^j^^^ ^.^^^ ^^. pp^g^nal estate, or both, the interme-
there is are- ^.^^^ income accruing between the death of the testator or
^'se^'^^hc*^-* ^^^ determination of a preceding estate, and the vesting of
quest*^'^ ' ' ^" executory devise or bequest, belongs to the residuary
(h) Atkinson v. Turner, Barnardist. Rep. Chan. 74 ; Studholme v. Hodgson,
3 P. VV. 300 ; and Bullock v. Stones, 2 Ves. Sen. 52 ; as stated, Fearne,
546—7.
III. 5. vL] OF EXECUTORY INTERESTS. [§741a. [ 429 ]
devisee or legatee, whether he is the same person who is
entitled to the executory devise or bequest, or not.(i)
Thus, ill a case where a testator devised all his real and Phlpps v.
personal estate to trustees, (with power to sell all except a WiUnmx,^
certain part, and add the monies arising from such sale to^"n-'l^;
his personal estate) upon a certain trust, as to a part, and as ^- ^'- "'J'"-
to a certain sum of money, for G. II. ,fl. And as to the -'^ij''^^'^ ^'•
rest, residue, and remainder, of his personal estate, he direct- iJ/yj'"^ ^
cd it to accumulute at compound interest until J. C. ^.^ ~. ^
should attain 24 years; then, upon trust to convey, assign i>j";j/43'o
&c. unto the said ./, C. ^^. (upon his giving security, and » ' * •
executing such deeds and assurances, to the satisfaction of
the said trustees, for the regular payment of the several
annuities before bequeathed) all the legal estate and interest
of and in all the freehold, leasehold, and copyhold lands,
tenements, rents, and hereditaments, and all other the testa-
tor's real and personal estate whatsoever and wheresoever
not devised and bequeathed. And the testator directed the
trustees to pay a large sum annually for the maintenance
and education of the said J. C. Jl. The heir at law (be- Sec Phipps
sides claiming the estates devised to G. H.Ji. which accrued v. Ackers^ 5
before he attained 21, and which were not claimed by,/. C. Sim. 704.
*d.) claimed the rents of the estate devised to J. C. Jl. until [ 430 ]
he attained 24. The Vice-Chancellor held, that the words
respecting the giving security and the execution of deeds
and assurances by J. C. A. were clearly a condition prece-
dent, and, till that was performed, his interest was contin-
gent; and as there was no trust for the account of the rents,
that the rents and profits of the residue of the real estate
belonged to the heir. The House of Lords, however, deci-
ded, that the residuary gift of real and personal estate to J.
C. A. displaced the heir, as to the rents and profits between
the time of the testator's death and the attainment of the age
of 24 by J. C. A.
SECTION THE SIXTH.
The Destination of the Incojne released from Accumula-
tion hy the Statute.
741a Bv the first section of the statute, it is enacted, Words of
that " in every case where any accumulation shall the Act.
be directed otherwise tlian as aforesaid, such direction shall
be null and void, and the rents, issues, profits, and produce
of such property so directed to be accumulated, shall, so
(i) Stephens v. Stephens, Cas. temp. Talb. 228 ; Gibson v. Lord Montfort,
and Rogers v. Gibso)i, 1 Ves. 485; Chapmanw Blissctt, Cas. temp. Talb. 145;
and Duke of Bridgcwater v, Egerton, 2 Ves. 121 — 2 ; as stated, Fearne, 54 I —
5. Generu v. Fitzgerald, Jac. 468.
[ 430 ] III. 5. vi.] AN ORIGINAL VIEW [§741b— 741d.
long as the same shall be directed to be accumulated con-
trary to the provisions of this Act, go to and be received by-
such person or persons as would have been entitled thereto
if such accumulation had not been directed."
Effect of this It appears from several decisions upon the sub- 741b
clause. ject, that the effect of this clause, is, to release the
income from being accumulated for any longer period than
that which is allowed by the Act, and to subject it to the
operation of the other parts of the will, so far as they can
apply in the disposition thereof; or, to the operation of the
ordinary rules respecting the disposition of real property
which is not disposed o{ by a will, or the operation of the
statute of distributions, in case the other parts of the will,
[ 431 ] the trust for accunuilation being removed, cannot pass such
income so released from the trust for accumulation. And
hence the excess of accumulation may belong, in some cases,
to a person entitled to a vested particular interest; in other
cases, to a residuary devisee or legatee ; in other cases, to
the heir at law, or the next of kin. Thus,
I. Where the I. i^ Where a trust for accumulation is engrafted 741c
trust for ac- on a vested interest, so as to operate by way of
cumulation exception out of such vested interest, the excess of accumu-
is engrafted lation will belong to the person entitled to such vested inte-
on a vested rest.(/fc) For, the income being released from the trust for
interest, and accumulation, constitutes an incident to such vested interest,
tiie income ^^ jj. ^yould if no accumulation had been directed.
goes to tlie jj_ j^^jj where the income of a particular legacy 74ld
person hav- ^^ portion of property, is to be accumulated prior
mg such ^^ ^^^ vesting of such legacy or portion of property, the in-
m eres . ^ome accruing beyond the period allowed by the statute for
II. Where It accumulation, upon or from such legacy or portion of pro-
goes to the perty, and upon or from the accumulation made whhin the
residuary de- ^^^^^^ allowed by the statute, goes to the residuary devisee
\isee or e- ^^ legatee, if there is a residuary devise or bequest, or to the
^^ ^^* heir at law, in the case of real estate, or the next of kin, in
the case of personal estate, if there is no residuary devise
or bequest.
Grounds of For, it cannot be considered that the persons to whom the
the rule. contingent devise or bequest is made, would have been en-
titled to the income if an accumulation had not been express-
ly or impliedly directed or authorised : for, as their interest
is only contingent, they could have no right to the inter-
mediate income, prior to the vesting of such interest ; and,
as it is uncertain whether that interest will ever vest, it can-
not be said, with any degree of truth, that they would even
eventually have been entitled to the intermediate income, if
an accumulation had not been expressly or impliedly direct-
(k) See Trickey v. Trickey, 3 M. & K. 560.
III. 5. vi.] OF EXECUTORY INTERESTS. [§7ne. [432]
ed or authorised. And hence tlie income accruing beyond
the period allowed, is held to belong to the residuary devisee
or legatee.
A testatrix gave SOOO/. in trust to accumulate until A. Crawleij v.
should attain 25; and when he should have attained that 6Va(r/f »/, 7
age, in trust to transfer the SOOO/. and the accumulations Sim. 427.
thereof, to him. Sir L. Shadwell, V. C, held, that the trust See also
was good for 21 years after the testatrix's death, but was O'iVet// v.
void for the excess beyond that period, and that the accu- f^"'^"*' ^
mulation beyond that period would fall into the residne, and '^^^"' ''^ •
form part of the capital thereof.
711 III. Where the income of residuary proj)erty is m. Where
to be accumulated prior to the vesting indefeasibly it goes to the
of such residuary property; the income accruing beyond the heir or ne.xt
period allowed by the statute for accumulation, upon or of kin.
from such residuary property, and upon or from the accu-
mulations made within the period allowed by the statute,
goes to the heir at law, in the case of real estate, or to the
next of kin, in the case of personal estate.
In this case, the income to be accumulated could not go Grounds of
to the residuary devisees or legatees. It could not be allow- the rule,
ed to form part of the capital of the residue ; because that
would be contrary to the statute, the income to be accumu-
lated, in the supposed case, being that of residuary property.
Nor could it form part of the income of the residuary pro-
perty; because that would have been contrary to the other
parts of the will : for, that would have been giving the resi-
duary devisees or legatees an immediate enjoyment, though
the will had given them only a contingent right, or, at most,
only a present but defeasible right of future enjoyment.
A testator gave the residue of his property to R. S., eldest M'Donald
son of P. S., on his coming of age : failing him, to the next v. Brice, 2
male child of F. S. who should attain 21; failing the male Kctn, 276.
children of P. S., to certain other legatees. B. S. survived
the testator, and died an infant; and P. S.,who was far
advanced in years, had no other son. The period expired,
which the statute allowed for the accumulation which result-
ed from the suspension of the vesting of the limitation to
the first son who should attain 21, or of the alternative limi-
tation to the other legatees. And Lord Langdale, M. R.,
held, that the dividends to accrue, till the determination of [ 433 ]
the contingency upon which the residue was given, Oii the
residue and its lawful accumulations, belonged to the next
of kin, and not to the residuary legatees.
In another case, a testator gave certain annuities out o( Eyre \.
his residuary estate, to his three children; and requested 3f<frsrff«, 2
that the surplus of tlie annual incoriie might be applied in Keen, 504.
accumulation of the capital of his properly, for the benefit
of his grandchildren, and which was to be divided among
Vol. II. — It
[ 433 ] III. 6.] AN ORIGINAL VIEW [§742, 743.
tliem after the death of the survivor of his three children.
And tlie will contained clauses substituting the issue of
grandchildren dying leaving children for such grandchildren;
and carrying over to the survivors the shares of such as
shoiild die without cliildren. Thirty years elapsed between
the death of the testator and the death of the survivor of his
children. Lord Langdale, M. R., held, that as two of the
grandchildren were not the children of any person taking
an interest under the will, and as the accumulation seemed
to be a provision, not for raising portions, but for making
additions to the capital for the purpose of making one gift
of an ajTgregate fund, the case was not within the exception
of the Act. And his Lordship also held, that the accumu-
lations beyond 21 years from the testator's death, arising
from the personal estate, belonged to the next of kin, and
not to the residuary legatees, and that those arising from
the real estate, belonged to the heir at law. " Nothing,"
observed His Lordship, "is to be paid to the grand-
children until the death of the surviving child, and in the
meantime the interests of the grandchildren may be de-
vested, and become vested in other persons; and to direct
that payments shall be made at the end of 21 years, before
the death of the testator's surviving child, would be to
direct that which the testator has not directed, and to
give and defeat interests directly contrary to liis meaning
and intention."
[ 434 ] CHAPTER THE SIXTH.
I. Division py ,^^j, TRANSMISSION OF EXECUTORY INTERESTS.
of executory
interests ^ Looking to the capacity of transmission, in case 742
^r to the "^ death before the contingency happens, as such
^a^uci'tv of capacity exists at the time of their limitation, 1. Some execu-
^rans mission ^^ry interests are transmissible in all events. 2. Others are
transmission . . ., , ,^ , ■ i i •
existin<r at untransinissible. 3. Others are transmissible ni some events
the tirrTe of only.
their lirni- 1. Executory interests in real property, which 743
tation. are not contingent on account of the person (§ 94),
l.Transmis- descend to the heir of the persons to whom they are limited,
sible in all and such ''executory interests in personal property, pass to
events. the executor or administrator(a) of the persons to whom
(a) Pinhury v. Elhhh 1 P. Wms. 503; BarncH v. Allen, 1 Bro. C. C. by
Belt; and filanlcrj v. Wise, 1 Cox, 43:i ; as stated, 1 Hop. Leg. 513, 514.
Iir. G.] OF EXECUTORY INTERESTS. [§7 h— 7 18. [ 434 ]
they are limited, where they die before the contingency
happens on which such interests are to vest.
744 2. Those executory interests which arc contin- 2. Untrans-
gent sim])ly on account of the person, are of neces- niissible.
sity untransniissible executory interests: because, if there
should be no person answering the given description, of
course no interest ever attaches in any one. And if there
should be such a person, the interest limited to him becomes
a vested interest in him; so that, on his death, it is trans-
mitted to his representative, not as an executory interest,
which it has ceased to be, but as a vested interest.
745 3. Those executory interests which are execu- .'3. Trans-
tory both on account of the person and also by missible in
reason of being made to depend on some other contingency some events
which does not concern the person, are transmissible in only. ^
some events only. For, if there should be any person
answering the given description, and yet the other contin-
gency does not happen during their lifetime; the interests [ 435 ]
haviiig attached in a person existing and ascertained, and
yet still remaining executory on account of the suspense of
the other contingency, are, in such case, and not otherwise,
transmissible as executory interests. But,
746 II. Looking to the capacity of transmission, as II. Division
it exists at the death of the persons to whom ex- of executory
ecutory interests are limited, such interests must of course at interests witli
that moment be either, 1. Transmissible. 2. Untransmis- I't'erence to
sible. Thus, ""' ^aP'ifi.ty
747 1. ''Where the executory interest was not in the f'' 'ransmi^-
first instance contingent on account of the per- ■'^"'" ^^'^ '?°
son,(A) or where it ceases to be contingent on account of p ,
the person; the interest is transmissible, though of course, entitled
in the latter case, unless it continues executory on account t|,preto
of some other contingency on which it depends, it is then . ,p
transmissible as a vested and not as an executory in- '• •,',
•' missible.
terest.
748 2. Of course, if there never happens to be a 2. Untrans-
person answering the given description, *= whether missible.
he is directly or indirectly required to be living at a certain
time,(c) or whatever else the qualification directly or indi-
rectly may be, the executory interest never attaches in any
one, and therefore it can never be transmitted, but fails alto-
gether.
{b) Wcod^s Case, 1 Rep. 99a, as stated, Fcarne, 364. Pinbvnj v. Elkin, I
P. ^V. 563; King v. Withers, Cas. temp. Talb. 117 ; Gurnel v. Wood, S ^'in.
p. 112, ca. 38; Chaiincy v. (iraijdon, 2 Atk. 616; Peck v. Parrot, 1 Ves.
►Sen. 236; and Goodright v. Searle, 2 Wils. 29; as stated, Feavne, 006 — 561,
(c) Moorhouse v. WainJiovsr, I Black. Rep. 63^*, as stated, Fearue, 365.
[ 436 ] III. 7.] AN ORIGINAL VIEW [§749—753.
CHAPTER THE SEVENTH.
OF THE ALIENATION OF EXECUTORY INTERESTS.
I. By assign- I. ^ Executory interests, in persons in being and 749
nient in ascertained, are assignable in equity, for valuable
equity. consideration; and they are assignable, even for good con-
sideration, except as against bona fide creditors.(«)
^ And It would also seem that executory interests 750
in favour of persons who do not yet answer a given
description, can be assigned in equity, before such persons
See §71. answer such description. (Z>) For, Mhere are cases where
even a mere hope or expectancy has been assigned in
equity. (c) When it is said that executory interests are as-
signable in equity, ''it is meant, that an assignment of them
is treated by a Court of Equity as a contract or agreement of
which it will decree a specific performance. (^)
II. By re- H- ''Executory interests in real estate are re- 751
lease. leasible to the terre-tenant or owner of the land,
but not to a stranger.(e)
III By de- I^^- *^ Executory interests, even before the sta- 752
vise before tute 1 Vict. c. 26, might be disposed of by the will
the Stat. 1 of any person to whose representative the property would
[ 437 ] have passed, had he died immediately before the making of
Vict. c. 26. the will.(/)
By devise And, by that statute, (s. 3) it is enacted, that " it 753
under slat, shall be lawful for every person to devise, iDequeath
1 Vict. c. 26, or dispose of, by his will executed, &c., all real and personal
s. 3. estate which he shall be entitled to, either at law or in equity,
at the time of his death, and which if not so devised, be-
queathed, or disposed of, would devolve upon the heir at
law, or customary heir of him, or if he became entitled by
descent, of his ancestor, or upon his executor or administra-
tor; and that the power hereby given shall extend to ... .
all contingent, executory, or other future interests in any real
(a) Sec Fearne, 549; and Wright v. Wright, 1 \^es. Sen. 409, as stated,
Fearne, 550.
(b) See Fearne, 549; and Higden v. Williamson, 3 P. W. 132, as stated,
Fearne, 549. But see Pope v. Whitcombe, 3 Russ. 124.
(c) Beckley v. Newlaml, 2 P. W. 182, 187 ; and Hobson v. Trevor, 2 P. W.
191; as cited, Fearne, 550 — 1.
(<Z) See Fearne, 551,
(e) 2 Pres. Abstr. 284.
(/) Moor et Ux. v. Hem-kins, cited 1 H. Blac. Rep. Com. PI. 33, 34, as stated,
Fearne, 369. And see Fearne. 371.
III. 7.] OF EXECUTORY INTERESTS. [§751— 75G». [ 437 ]
or personal estate, whether the testator may or may not be
ascertained as the person or one of the persons in whom the
same may res{)ectiveiy become vested, and whether he may
be entitled thereto nn'der the uistinnient by which the same
respectively were created or nnder any disposition thereof
by deed or will."
754 IV. KExecntory interests may be bound by IV. Ry os-
estoppel, even though merely created by an inden- toppel and
ture ;(a'-) but '"they cannot be^ransferred by deed. Nor, in- convoyanc.e.
deed, can an executory interest, whilst it continues such, be
directly, though it may be indirectly, transferred by a fine or
recovery. (A)
755 If a fine was levied of an executory interest, or
of a mere expectancy of an heir apparent, it ope- Sec § 71.
rated at first by estoppel only : it did not actually transfer
the interest or expectancy : nor had it any other present
effect than that of indirectly binding the interest or expect-
ancy, so as to preserve it for the cognizee by estopping or
preventing the cognizor and those claiming under him from
contradicting what he had done, by any attempt to dispose
of or alfect it in any other way. But, as soon as the inter-
est or expectancy became a vested interest in the cognizor, [ 43S ]
the fine operated as a conveyance to the cognizee, in the
same manner as it would have operated in the first instance,
if the interest had been a vested interest, and therefore
capable of being transferred. And thus the estoppel vir-
tually and finally amounted to, though it was not, in the
first instance, an actual transfer of the executory interest or
expectancy.
75G ' And so an executory interest might be indi-
rectly transferred by a common recovery wherein
the person entitled to such executory interest came in as
vouchee. (/)
756* A testator devised an estate to his wife, for life ; Doe d.
remainder to all and every the children of R. E. Brune v,
and M. P. who should be living at the time of his wife's 3/aW?/«, 8
death. Two of these children levied a fine sur con. tie droit Bar. vfe Cres.
come ceo &c., of their shares, during the life of the wife. 527.
Bayley, J., in delivering the judgment of the Court, said,
" That a fine by a contingent remainder-man passes nothing,
but leaves the right as it found it : that it is therefore no bar
when the contingency happens, in the mouth of a stranger
to that fine, against a claim in tlie name of such remainder-
man ; that it operates by estoppel, and by estoppel only;
and that parties or privies may avail themselves of that
estoppel, but parties and privies only." A stranger caimot,
(?) 4 .Tarm. Conv. 124.
(/j) 2 Pres. Abstr. 118 ; 2 Pres. Shep. T. 238 ; Fearnc, 365—6, uol — .
(i) Fearne, 366.
[ 438 ] III. 8.] AN ORIGINAL VIEW [§756a, 757.
because he is not estopped liimself, and estoppel must be
reciprocal. (8 B. & C. 52 1—527.)
Doe d. In another case, testator devised lands to his wife, for life ;
Christmasw remainder to all the children of his brother that should be
Oliver, 10 living at her decease. His brother left one daughter, who
Bar, & Cres. married, and afterwards, with her husband, levied a fine
1S7, 190. come ceo in the lifetime of the testator's widow. Bayley,
See also J., delivered the judgment of the Court ; and, after advert-
Weale v. j^^^ ^^ ^[^^ ^^^^ q|- j^^^ ^ Brune v. Martyn, said, that, in
1 "^4' that case, « the operation of the fine by estoppel was sufR-
sT^' d ' '^^ ^'^"^ ^°'' ^^^^ purpose of that decision : whether it operated
Feani'e 365 ^^ estoppel only, or whether it had a further operation, was
' ' quite immaterial in that case :" but that, in the principal
case, it was necessary to investigate that point ; and that the
[ 439 ] Court was of opinion, that the fine, in that case, "had a
double operation ; that it bound the conusors by estoppel or
conclusion, so long as the contingency continued; but that
when the contingency happened, the estate which devolved
upon the testator's daughter fed the estoppel ; the estate
created by the fine by way of estoppel, ceased to be an
estate by estoppel only, and became an interest, and gave
the party claiming by virtue of the fine, and those having
right under him, exactly what he would have had, had the
contingency happened before the fine was levied."
[ 440 ] CHAPTER THE EIGHTH.
OF THE SUPPORT OP CONTINGENT REMAINDERS.
Conlingent "A contingent remainder for years does not 756a
remainder require a preceding freehold to support it;(«) for,
for years though it is a remainder, in a lax sense, as regards the pos-
ncedsno pre- session, it is not a remainder, strictly so called, as regards
ceding h-G(^- the seisin, property, or ownership. (See § 46 — 7, 50, 58,
hold. 159.)
But a con- ^ A contingent remainder of the measure of free- 757
tingent free- hold, unless the legal estate is in trustees, must be
hold remain- supported by a previous vested freehold estate \{b) that is,
der must be it must be originally preceded by a vested interest, of the
supported by measure of freehold, which is capable, in its original limita-
a preceding tion, of enduring till the vesting of the remainder ; otherwise
freehold. jj jg void ab initio: and one such previous estate of freehold
(a) Fearne, 285.
(h) Fearne, 281,284. Goodrighf v. Cornish,! Salk.226; and Scafterwood
V. Edge, 1 Salk. 229 ; as stated, Fearne, 282. Davies v. 'Speed, as stated,
Fearne, 284.
III. 8.] OF EXECUTORY INTERESTS. [§758—762. [ 1 10 ]
must actually endure until that period; otlicrwise the re-
mainder will subse([ucnlly fail.
In elucidation of this proposition, let us consider sepa-
rately each of the rules embodied therein. T .
758 I. A contnigcnt remauidcr ol the measure of ^^^ ,
freehold must be originally preceded by a vested j^,. ^p {1,^
interest of the measure of freehold; otherwise it will be f„pj,^„pp ^p
void ah initio. ficohold
must be originally preceded by a vested freehold.
759 A freehold interest, whether vested or contin- A freehold
gent, unprcceded by any other interest, or by any interest not
otiier than a contingent or a chattel interest, cannot be so preceded
termed a freehold remainder, as regards the seisin, property, cannot bo a
or ownership, any more than tlie portion first severed or I'cniainder.
taken from any corpiis, can be termed a remainder or rem-
nant thereof.
7(iO Thus, 1. Where a vested interest of the mea- [ 441 ]
sure of freehold is limited after a term for years; 1. A vested
although the limitation is good, yet the interest so limited is freehold in-
not an interest in remainder, but a present interest, so far as tcrcst after a
regards the seisin, property, or ownership, subject oidy, as ^crm for
regards the possession, to a previous chattel interest. (See § yc^irs, is not
159, lUe, 4G— 7, 50, 58, 245—257.) ^ rcmninder.
761 2. And where a contingent interest of the mea- 2. A contin-
sure of freehold is limited by deed at common r'^n^''''^^hokl
law, to take effect as a remainder after a chattel interest ; as •iii'-'^cst linu-
*= where lands are granted to j2. for 21 years, with remainder ^^^ ''^ ^ f ^
to a person unborn ; the limitation is void :fc) because, of ^ '^''^ inter-
course, it is no more a romamder, as regards the seisin, than , '.
' , . . . c, , c =". . , J mon law, is
a vested mterest alter a term lor years, is a remainder; and
the interest, being contingent, cannot take effect as a present ^ajpfjej. ^^j
interest; so that it necessarily fiiils. is void '
7G2 For, it is a rule, that the freehold shall never be ^^^ t gg
in abeyance; and as the contingent freehold re-
mainder cannot take efiect as a present interest, the freehold
must reside, as a present interest, in some other person than
the contingent remainder man; and, whether it resides in
the grantor or his heir at law, or in the heir at law of the
devisor, or in an ulterior vested remainder-man, as a present
interest, the contingent interest limited after the chattel,
necessarily fails; because, if it were allowed to take effect
on the happening of the event on which its vesting is sus-
pended, it could only take effect in defeasance or suspension
of the present interest so residing as aforesaid in the other
person, instead of taking effect after a term, unprcceded by,
and not affecting, any other freehold interest. It could not
lake eiiect, therefore, in the way intended ; and the other
(f) Burton's Compendium, pi. 33.
[ 4-U ] III. S.] AN ORIGINAL VIEW[§762a —765.
mode of taking effect, in defeasance or suspension of another
Sce§ 148-9, interest, was a mode which was foreign to the simphcily of
149a. the common law.
3 A contin- '^- ^"^ though a contingent interest of freehold 762a
"ent freehold duration limited after a chattel interest may be
f 442 1 good, if hmited by way of use or devise ; yet it is not good
intercut limi- as a remainder, but as a springing interest. (See § 159,
ted after a 117— 127a.)
chattel interest, by way of use or devise, is good, but not as a remainder.
4. A freehold 4. Again ; where a freehold interest, limited by 763
interest lini- way of use or devise, is only preceded by a con-
itcd by way tingent interest of freehold duration, though it may be good,
of use or de- j^j-jj though it may be termed a remainder in relation to such
vise after a preceding contingent interest, and it has the capacity of be-
contuigcnt coming a remainder, in every respect ; yet, so long as it is
mterestonly, ^^^^^ preceded by a contingent interest, it cannot be a remain-
js good, but ^gj, j|_| ^jj^ gjj.jpj ggj^g^ ^^ jl^g jg,.^^ . jt cannot be a remaining
not as a re- p^^jj^^j ^^ tj^^ seisin, property, or ownership, any more than
mauiuer. .^ .^ ^^^^,^ ^^^^ preceded by any freehold interest at all. (See
§ 46—7, 50, 159, 677.)
5. A freehold 5. Where a freehold interest, at common law, is 763a
interest lim- only preceded by a contingent interest of the mea-
ited after a sure of freehold, it is void. For, as already observed, it is a
contingent rule that the freehold shall never be in abeyance; and as
intercstonly, ^j^g ulterior freehold interest was intended to be a future
at common interest, the present freehold must reside in some person
law, is not other than the person entitled to the ulterior freehold interest,
a rcmanider, ^^^^ ^^ course it must reside in some other individual than
and is void, ^j^^ person entitled to the preceding contingent interest ; and
hence it must reside in the grantor or his heir at law; and
consequently the ulterior freehold interest fails, for the same
Sec § 762. reasons as those above assigned for the failure of a con-
tingent freehold interest limited by deed at common law
after a term.
II. A contin- II. A contingent remainder is void ab initio, 764
gent remain- not only unless it is preceded by a vested freehold
der must interest of some kind, but also unless it is preceded by a
continue freehold interest which may, by its original limitation, on-
to be preced- dure until the vesting of the remainder : and it will subse-
ed by a vest- qijently become void, unless one such freehold interest
ed freehold eventually endures until that period.
capable of j^ there is any intervening undisposed of portion 765
enduring till ^^ seisin, property, or ownership, between the dc-
the vesting termination of a prior interest, and the commencement, that
r 4 dVl' ^^' ^^^® vesting in right, of a subsequent contingent interest,
L "j -' such subsequent interest cannot take effect as a remainder;
mainder. because, when the period of the determination of the prior
interest arrives, the subsequent contingent interest lails, for
III. y. i.] OF EXECUTORY INTERESTS. L§7G5a— 706. [ 113 ]
the same reasons as those already given for the faiUue of a Sec § 762.
contingent interest which is hmited to take effect as a remain-
der after a chattel, and is unpreceded, in its original limita-
tion, by any freehold.
765a '' If the remainder is all along preceded by such But not ne-
a ])receding estate, it is suflicient, though the first cessarily by
preceding estate may have become forfeited or determined the first pre-
before the vesting of the remainder.(^/) ceding estate.
765b HI. 'Ttis not necessary that there should be a m ^ot ^e-
preceding estate which is vested in possession : it cessary that
is sufficient if there is such a preceding estate of freehold the prcccd-
duration as is vested in interest, so that it would under the ing estate
old law confer, at the time when the remainder should vest, should be
a present right of entry. (e) vested in
possession. — See § 79-81.
765c IV. f" Where the legal estate is devised to and IV. A pre-
vcsted in trustees in trust, there is no need of any ceding estate
]ncceding particular estate of freehold to support contingent 's not neces-
limitations: for, the legal estate in the general trustees will ■'^^''y' '^^here
be siimcicnt for that purpose.(/) cstatcTs in
trustees.
See § 783.
CHAPTER THE NINTH. [ 441 ]
OF THK DESTRUCTION OF CONTINGENT REMAINDERS AND
OTHER EXECUTORY INTERESTS.
SECTION THE FIRST.
The Destruction of Contingent Remainders created out
of a Legal Fee Simple in Freehold Hereditaments.
■^ A contuigcnt
766 It will appear, from the foregoing chapter, that i-cmaindcr is
whenever the legal estate is not in trustees, and destroyed by
there is, in the first instance, or there happens to be, event- the dciermi-
ually, but one preceding estate of freehold duration, and nation of the
that estate is determined, so as not even to exist as a right sole subsist-
{(I) Corbet v. Tichhorn, 2 Salk. 576, and Linch v. Cook, 2 Salk. 469, as
stated, Fearne, 283. But see -S'ir Thomas Pahnefs Case, Moor, 815, as stated,
Fcarne, 282.
(e) See Fearne, 286—301, and Butler's Notes thereto.
(/) Fearne, 303; and Chapman v. liUssd, and Hopkins v. Hopkins, Can.
tump. Talb. 145, 44, as staled I'Varne, 304—5.
Vol. n.— 45
[ 444 ] III. 9. L] AN ORIGINAL VIEW [§767—773.
ing prcccd- of entry, before the event happens on which a contingent
ing estate, remainder is to vest ; such remainder is necessarily destroyed,
before such » And it will never afterwards arise, even though tiie par-
remainder ticular estate be subsequently restored. («)
vests. Now, tlie preceding estate may be determined, 767
This deter- so as to cause the destruction of a contingent re-
mination mainder limited thereon, whether at common law or other-
n)ay happen ^yise, in various ways. Thus,
in various j_ -\v[^ej.e (he sole subsisting preceding estate 76S
ways. happens to expire, according to its original limita-
I. By regular jJQij^ before the contingency occurs, upon which the re-
expiration. j^ainder is to take etfect : as, where an estate is given to A.
for life, remainder to the right heirs of J. S\, and */S. dies in
the lifetime o( J. S., and consequently before there can be
See § 383. any heir of J. S.
[ 445 ] II. ^ Where the tenant of the preceding estate 769
II. By dis- was disseised, and his right of entry tolled. (6)
seisin and III. Where the preceding legal estate is de- 770
tolling of the stroyed, and a new estate created, by the tenant of
right of such preceding estate, by the operation of a tortious assur-
entry. ance, as a *= feoffment, fine,(c) or ''recovery.(c/)
III. By the And, as regards the operation of the assurance, 771
destructive it is the same whether the tenant of such preceding
operation of estate is beneficially entitled, or is only a trustee. 772
a feoffment, Before the statute of uses, indeed, '^^"if feoffees in
fine, or re- trust had aliened without consideration or with notice, the
covery, by lands would have been subject to the old uses ; but that was
the tenant of i^gp^^^gg the feoffees themselves, before that statute, stood
the preced- ggisg^j of the legal fee simple; and of course their alienee
^"P ^f'^f' • came in, either of the same estate, or of an estate
? "^P*^.^ ,.^^^ derived out of that. But since the statute it is 773
„.!♦•, 1^,1 ^„ otherwise : for now the feoffees are seised of no
entiiieu, or ' , , . n i- -. i • . .i
jjQj greater estate than what is actually limited m use to them,
the seisin being executed to the uses by the statute : from
whence it follows, that when the feoffees do not take the
use in fee, if they make a feoffment, their feoffees come in,
neither of, nor under, the estate of which they were seised,
but of a new estate acquired by disseisin. "(e)
(a) Fearne, 315, 349. An alteration merely in the quality, and not in the
quantity, of the particular estate, will not destroy a coniingent remainder.
Fearne, 338, and cases there cited.
(b) See Fearne, 286, note (e).
(c) Archer's Case, 1 Rep. 66; and Co. Lift. 290 b. (1) IV. & V. 4.
(d) Denn d. Webb v. Puckn/, 5 JJ. & E. 299, stated § 570. Driver d. Ed-
gar V. Edgar, Cowp. Rep. 379; and Fountain v. Gooch; as stated and com-
mented on, Fearne, 426 — 428.
(e) Fearne, 325. And Chudlei^li's Case, 1 Co. Rep. 120, as stated, Fearne,
324.
in. 9. i.] OF EXECUTORY INTERESTS. [§771— 779. [ 4 15 ]
774 The student must be careful to observe, that it h is the de-
ls the destruction of the particular estate by a tor- structiun,not
tious assurance whicli destroys contingent remain- t''*^ transfer,
775 ders, and not the mere transfer thereof by an inno- of the par-
cent assurance. For, '"if a tenant for life separately ^'CLilar es-
bargains and sells, or if he leased and released, to a stranger ^J^^^' ^^'i'*^h
in fee; these are innocent conveyances, which pass no more ^'^•'^'^oys a
than wliat lawfully may pass, and cannot eft'ect tlie estate l J
for life in any other way, than by transferring it to another ^''" ^^?^^^
person. (/) remainder.
776 IV. s VVherc the tenant for life does some act IV. By for-
which amounts to a forfeiture ; such as the accept- fciture.
ance of a fine cojjie ceo, &c., from a stranger, and there is no
right of entry in any other person, except a subsequent vested
remainder-man, and such remainder-man takes advantage
of the forfeiture ; the intermediate contingent remainders
are destroyed. (^'•)
777 V. Where the particular estate merges in the V. By mer-
inheritance in fee or in tail, either by the act of the ger.
particular tenant, or by the descent of the inheritance on the
particular tenant subsequently to the taking effect of the
particular estate.
77S I. This merger may be occasioned by the act of 1. By act of
the particular tenant, in various ways — tcnantfor life
(1) *• If the tenant for life accepts the reversion in fee before or i" *^'''
the vesting of the contingent remainders.(A)
(2) If the tenant for life ' surrenders, (/) "^bargains and
sells, or leased and released, (A-) to the immediate vested re-
mainder-man in tail or in fee, or to the reversioner.
(3) 'If the tenant for life and the immediate remainder-
man or reversioner join in a conveyance. (/)
(4) '" If a tenant for life, having also the immediate vested
remainder or reversion, bargains and sells, or leased and
released. (w)
779 2. "The merger of the particular estate, and the 2. By de-
destruction of contingent remainders thereby, may scent of the
be occasioned by the descent of the inheritance on the par- inheritance
ticular tenant subsequently to the taking effect of the par- [ 447 ]
ticular estate. on the par-
In this case, the descent of the inheritance may be allowed ticular ten-
its tuU operation of merger, without rendering the limitations ant subsc-
originally and totally abortive ; for, the particular estate qucntly to
(/) Compare Fearnc, 32'2, with Butler's note (/'), 322.
(g) Sec Fearnc, 323, and Lloyd v. Brooking, 1 Vent. 188, as there stated.
(/j) Piirefoy v. Rogers, 2 Saund. 380, as stated, Fearnc, 317.
(/) Thompson v. Leach, 2 \'ent. 198, as stated, Fearne, 318.
(A.) Fearne, 321, note (/').
(Z) Fearne, 321, note (/), and 340.
(m) Foarne, 321, note (/).
[ 447 ] III. 9. i.] AN ORIGINAL VIEW [§7S0— 7S2.
the taking having once taken eflect before the descent of the inherit-
etiectoftlie ance happened, there is no more reason that it should be
particular exempt iVom the accidental operation of merger in this case,
estate. than in any other case where the inheritance becomes united
with the particular estate. (;i)
3. But not by 3. But, " where a testator limits a particular 780
the descent estate to the heir, with a contingent remainder over
of the in- without any ulterior vested remainder carrying the fee, so
heritance on ^y^^^ j]-jq inheritance descends to the heir till the contingency
the particu- i^^ppens, at the very time when his particular estate first
iar tenant at {^|,gg effect ; the inheritance is not executed in him perfectly,
ni^^Tr'^o- ^^ ^^ ^^ merge the particular estate, but only sub modo, so
tr f n ^ ^^ ^^ leave an opening for the interposition of the remainder,
parUcular^^ ^^''^^^ ^^^ contingency happens.
estate '^o'^, in this case, as the descent takes place at the very
time when the particular estate takes effect, namely, at the
death of the testator; if merger were to take place, the par-
ticular estate would arise, and be destroyed, in one and the
same instant, and would be destroyed by a descent permitted
by the very same will by which it was created. (o)
4. Nor by 4, p And, in like manner, where, by the same 7S0a
the union of conveyance a particular estate is first limited to a
the particu- person, with a contingent remainder over to another, with
larcstateand ^^^^j^ ^ reversion or remainder to the first person, as would,
the nihent- -^^ j^^ ^^^^^ nature, drown the particular estate first given him ;
ance ei ^j^^ ^^^^ limitation is construed as executed sub modo only,
r'^.^g^Y^' in order that the arrangement of the settlor may be carried
ance bv ^"^° effect, instead of being defeated in its birth, (/;)
whicli, and at the time when, both were created.
Trust estates The liability of contingent remainders to destruc- 78 1
to preserve tion in these ways, occasioned the introduction of
contingent trust estates to preserve them.(^)
remainders. ^nd '" it has been decided, that if a fine deter- 782
Mere right mines the particular estate, the right of entry in
of entry in the trustees to preserve contingent remainders, supports
the trustees them, without an actual entry.(?')
is sufficient^
(n) See Fearne, 343—34.3; and Kent v. Har pool, T. i ones, 76 ; and Hooker
V. Honker, Rep. temp, tlard. 13; as staled, Fearne, 342.
(0) See Fearne's observations, 343 — 34.5; and Plunkct v. Holmes, 1 Lev. 11;
Boothhy v. Vernon, 9 Mod. 147; and Archer's Case, 1 Rep. 66; as cited,
Fearne, 341, 342. (p) Fearne, 346.
[q) Fearne, 326. Little else remained to be done in regard to the subject of
this chapter, than to express or arrange the points in the corresponding chapter
in Fearne, in a somewhat more perspicuous manner. And as to the nature of
trust estates to preserve contingent remainders, and the jurisdiction of a Court of
Equity for the purpose of transposing and supplying them, and of punishing the
trustees for joining, or ordering them to join, in destroying contingent remainders ;
it is only necessary to refer to Fearne, 326 — 338.
(r) Davies v. Bvsh, M'Clcl, & You, 88.
III. 9. ii.] OF EXECUTORY INTERESTS. [§783. [ ^1-18 ]
SECTION THE SECOND.
The Destritdion of Cuntini^cnt liemainders crcitted out
of an Eijititable Fee Si7?iple Estate in Freehold IFcre-
dit(i7ne)its, or uji Eqxiitahlc Subordinate Fee Simple in
Copyholds.
783 ''There is no necessity for the continuance of a No necessity
preceding particular estate of freeiiold to preserve for tlie con-
contingent remainders, where the legal estate in fee is vested linuanceofa
in trustees: for, the legal estate of tlie trustees, will be siiffi- particular
cient to preserve the contingent remainders, notwithstanding <^=^taie, where
the regular expiration of the particular estate, before the '^"^ 'p§^^ ^^'
contingent remainder can vest. (5) *^^^ '^ '"
In iioe d. Clemett v. Briggs, the Lord Chief Justice ob- ^'""stees.
served, that where a contingent remainder is created out of Observations
a common fee simple estate, it must have a previous estate [ 449 ]
of freehold to support it; and the destruction of every such of Lord El-
previous estate before the remainder vests, destroys the re- lenborough
mainder: but where the remainder is created out of what as to this
may be called a subordinate fee simple estate, as out of a poi"t.
copyhold, where the ordinary fee simple is in the lord ; or
out of an equitable fee simple, where the ordinary legal fee
simple is in some other person ; the destruction of the pre-
vious estate will not aflect the remainder, but it shall be
supported by the ordinary fee simple estate. (/!)
And where a testator devised freehold and copyhold sur- Hahergham
rendered to the use of his will, to trustees and the survivor v. Vincent,
and his heirs, in trust to pay debts and legacies, &c.: then, 2 Ves. 204.
on the marriage of B. N. II., to convey to her and to her
children in tail, as therein mentioned, remainder to such
persons, &c.,as he should, by any deed or instrument attest-
ed by two witnesses, appoint. The next day, by deed poll
attested by two witnesses, and reciting the will, ho directed
his trustees, immediately after the death of B. N. H., and
failure of her issue, to convey all his real estate to the chil-
dren of his son in tail, as therein mentioned ; then, to the
right heirs of the survivor of his trustees, his heirs and as-
signs, for ever. No conveyance was made. B. N. II. and
the son died without issue, leaving one trustee surviving.
Lord Loughborough, C, and Wilson, J. and J3uller, J. held,
that the deed was to be considered as a codicil sullicient to
pass the copyholds ; and that the last limitation was a con-
tingent equitable remainder to the heir of the surviving
(s) See Chapman v. Blissett, Cas. temp. Talbot, 145; and Hopkins v. IIop'
kins, lb., as stated, Feariie, 304, as to freehold.
(/) Lord E^llenborough, C. .1., in Roe d. Clemett v. Briggs, IG East, 413, in
accordance with Lord Kcnvon's observations in Doc v. Martin, 4 D. »5\: E. 64.
[ 449 ] III. 9. iii.] AN ORIGINAL VIEW [§784—787.
trustee, and was supported by the legal estate whicli the
trustees took under the will. The Court, however, were
agreed that if the remainder had been of the legal estate, it
would iiave been void ; Mr. Justice Buller observing, that
Lane V. Pannel showed that; (2 Ves. 233) and the Lord
Chancellor remarking, that the only distinction between
[ 450 ] freehold and copyhold was, that the estate of the lord will
preserve contingent remainders against a forfeiture. [Ih.
209.)
Ceshd que "Ace.?/i</^i/e ^r?/s/ for life cannot, by feoffment or 784
trust for life other conveyance, destroy a contingent remainder;
cannot dc- for, since he has not the legal estate in him, whatever convey-
stroy a con- ance he may make, passes only what he can lawfully grant,
tingent re- that is, his trust estate for life, and there is a right
mainder ; of entry residing in the trustees :(w) though, a "re- 785
But cestui covery by a tenant in tail of a trust estate, is alio w-
qiie trust in gj j^^ y^^^ ^l^g remainder, because he is master of the estate,
tail may. ^^^^ j^-^.^y ^,^n -^^ j.|^g legal estate whenever he pleases. (.r)
SECTION THE THIRD.
The Destruction of Contingent Remainders created out of
a Legal Fee Simple in Copyholds.
I. Where the I. > It would seem, that in the case of copyholds, 786
preceding where the preceding estate expires, by original lim-
estateexpircs itation, or would have expired, by original limitation, be-
by original fore the vesting of a contingent remainder ; such remainders
limitation, ^yq destroyed:(y) because, although the ordinary freehold
the rcmam- jg j,.j [\^q }qj.j^ g^^id that is capable, in itself, of supporting a
der is do- contingent remainder, yet, if such estate were construed to
stroycd. support the remainders, they would be enabled to take ef-
fect in a different way from that provided by their original
limitation ; whereas, the settlor or devisor may possibly
have intended that they should fail, if they could not take
effect in the way contemplated by the limitation.
I[. But II- But where the preceding estate is determined 787
where the by the act of the tenant, as 'by surrender to the
(u) Fearnc, 321.
{x) Fearnc, 321 ; and Doe A. Cadogan v.Lwart,! Ad. & EI. 636; stated §
568.
(y) See Fearne, 320. And see Habergham v. Vincent, 2 Ves. 233, stated §
783.
III. 9. iv.] OF EXECUTORY INTERESTS. [§78S, 788a. [ 451 ]
]ord(r) or "to another person, («) or ''acceptance of the preceding
reversoii,(/'>) or "^ forfeiture, (c) and would not have expired, estate is dc-
by original Hniitation, before the vesting of the contingent lermined by
remainder, such remainder is supported by the ordinary ^ct of the
freehold in the lord: because, the settlor or devisor cannot t<^'n^'iit, the
be supposed to have contemplated tlieir destruction by the rcmaindcr is
act of the tenant of the preceding estate, or, at all events, ""^ °^'
must liave intended that they should be supported and take ^"°>'^ •
elfect notwithstanding any such act.
7S8 HI. ^ If, however, the freehold of inlicritance in III. Rcmnin-
the lord of a manor, becomes united with a par- dor destroy-
ticular estate of copyhold, by a deed of enfranchisement, cd by enCran-
the contingent remainders expectant upon such particular chiscmcnt.
estate, are thereby destroyed. (r/)
SECTION THE FOURTH.
The Desb'uction of Contingeyit Remainders created out
of Estates pur aider vie.
78Sa " Where estates pur outer vie are hmited to
one in tail, [or rather, for an estate in the nature
of an estate tail,] he may, by any conveyance proper for
passing estates of freehold, bar his own issue and all re-
mainders over, and make a complete disposition of the
whole cstate."(e) " For though the original lease be only
for three lives, yet it being the interest of both landlord and
tenant that the leases should be renewed, and it being the [ 452 ]
doctrine of the Court of Chancery, that all such new leases
are subject to the old trusts, the estate might by this
means continue for ever, without the possibility of being
barred."(/)
" But an estate pur outer vie may be limited to one for
life, so as to confine his interest and power of disposition to
his own life estate only."(^)
(:) Pawsey v. Lowdall, 2 Roll. Abr. 794, pi. 6, as slated, Fearne, 319.
(a) Lane v. Funnel, 1 Roll. Rep. 238, 317, 43S, as cited, Fearne, 319.
(b) Mildmay v. Uungerford, 2 Vcrn, 243, as stated, Fearne, 320.
(c) Fearne, J320. See also Ilabergham v. Vincent, 2 Ves. 209; stated § 783.
(d) Roe d. Chmett v. Briggs, IGEast, 400.
(e) Fearne, 499. See also, lb. 496 ; and Mogg v. Mogg, 1 Mcriv. 654,
stated § 70.5. Duke of Grafton v. Hanmer, 1 P. \V. 266, in the note; Baker
V. Bat/Icy, 2 Vern. 22.'3 ; IVorton v. Frecker, 1 Atk. o2 1 ; and Saltern v. Sal-
tern, 2 Atk. 370 ; as stated, Fearne, 497 — 499.
(/) Reporter's observations on Duke of Grafton v. llanmcr, 3 P. W. 220,
in note, as cited, Fearne, 497.
(g) Fearne, 499.
[ 452 ] III. 9. v.l AN ORIGINAL VIEW, &c. [§789, 790.
SECTION THE FIFTH.
The Destruction of Executory Interests not limited by
way of Remainder.
By recovery. These *» executory interests, if engrafted on an 789
estate tail, might be destroyed by the tenant in tail,
by means of a common recovery. (A)
Not bv mere Cut 'such interests cannot be prevented or 790
alteration in destroyed by any alteration whatsoever in the
estate. estate out of which or after which they are limited.(i)
{h) Fearne, 424; and Page v. Ilayward, 2 Salk. 570, as there stated.
(i) Fearne. 418, 421; and Lee v. Lcc, Moor, 268, as stated, Fearne, 422,
INDEX.
ABEYANCE.
The legal ownership or freehold aud inheritance cannot be in abey-
ance . . • • • > ^^
Consequences of this . . . • § 60 62
ABSOLUTE INTEREST,
Definition oi ^ defeasible [uieresi . . § ^7
AN absolute or indefeasible interest . § 9S
THE absolute interest . . . § 100
a limited interest . . • § l.^^l
Distinction between the absolute interest, and an absolute in-
terest . . . • • .§ 102—3
Construing an interest to be absolute rather than defeasible.
The Rule suggested . . • . § 223
Reasons thereof; viz.
Odiousness of conditions . . . §224
Leaning in favour of vesting . ; §225
Leaning in favour of free enjoyment and alienation of pro-
perty . . . . . §226
Application of the Rule.
See Legacy, § 227-234.-Or, § 235— 240.-Portions, § 241-4.
ACCUMULATION,
Before the statute ... . § J3Sa
Or/^m of the statute .... § 73Sb
Restrictions of the statute.
Enactments thereof . . • § "7380
The statute applies even to accumulations in favour o^pei'sons
taking vested interests . . . § 73Sd
It applies even where accumulation is not directed § 738e
Accumulations are void only as to the eventual excess § 7381
Accumulation void after 21 years from testator's death,
though it has not lasted that time . . § ''S'^g
Whether accumulation may be made during the minority of
a person not in esse at grantor's or testator's death § 738h
Exceptions in the saving clause of the statute.
rrorf/5 of the act . . • . • § "'^^l
ISIeaning of the word interest in the second exception § 738j
An annuitij is not an interest within the second exception
§ 73Sk
Vol. II.— 16
151 INDEX.
ACCUMULATION— co«/mwerf.
Destination of the income released from accumulation.
//o/yA' of the act .... § 741a
Effect thereof . . . . § 741b
Where the trust for accumulation is engrafted on a vested in-
terest, and the income goes to the person having such vested
interest . . . . . § 741c
Where it goes to the residuary devisee or legatee § 74 Id
Where it goes to the heir or next of kin . . § 7416
ADVx\NCES,
Vcstins; indicated by power to make advances . . § 340
AFTER,
Denoting a condition precedent . . . § 285 — 6
Referring only to the possession or enjoyment . § 346
AGE. See Vested— Ou
ALIENATION in generaly
Favoured by the law ... § 226, 421
ALIENATION of Executory Interests,
By assignment in equity . . • § "749 — 750
By release . . . . . § 751
By devise before stat. 1 Vict. c. 60 . • . § 752
under stat. 1 Vict. c. 60, s. 3 . . § 753
By estoppel and conveyance . . . § 754 — 6
ALTERNATIVE LIMITATIONS,
Defined . . . . . § 128
DilFerent names given to them . . • § 1^9
Requisites to . , , , § 130
Omission of the condition on which the jirior limitation is to take
effect . . . . . § 131
Two kinds, as regards their form . . . § 132
Definition of an alternative limitation
o( {\\Q proper ox ecrplicit form . . § 133
oii ihe improper ov elliptical iorm . . § 134
Contingency sometimes implied by the word " or^^ § 135, 283
in the context . § 136
^ny number of them may be limited in succession . § 136a
Distinguished trom remaiJiders generaWy . . §161
co?i(^^7^on«/ limitations generally . §157
Vv^'ords apparently amounting to a mere «//crn«//t'c limitation, but
in reality constituting a remainder; and vice versa.
A general rule suggested . . § 638 — 645
More specific rules.
Devise to a person, and his issue, or his sons, daughters,
or children, with a limitation over on his death without
issue, &c. . . • • § 646
Where the ancestor or his issue take au estate tail, or
the issue take a life estate in remainder, and such
estate is vested and absolutely limited, § 647
Where such estate is contingent, or hypothctically limi-
ted . . . • § 648
Where such estate is in fee . . § 649
INDEX. 455
ALTERNATIVE LIMITATIONS— co;i//ni/er/.
Mav take effect notwitli.standing no n -fulfilment of the condition
^ § GfM— 5
See Death.
Conditional Limitations . • • § ^*'''^' — ''
Limitations . . § GGS— G72a, GTS— GS2, G8-;_G
Remoteness . . . • • § ^27
Issue.
AND. See Or.
ANNUITY,
Is not an interest within the second exception in llic stafntc of ac-
cunuilations . . • • • § "'"^^k
APPOINTMENT,
Definition of a poioer oi :^\^\^q\\\\\\\Q-w\, • • §''2
Effect of apoiver of appointment,
over ref// estate . . . §^3G9a
over personal estate . . • § '"^^ '*
Limitations in default of,
defined . . • • _ § 1^5
distinguished from certain cases of void conditional limita-
tions . . • • ^ § [JG7
See Remoteness ... § 72S — 7.35
AS SOON AS,
Denoting a condition precedent . . § 285 — G
Not denoting a condition precedent, l)nt referring only to the pos-
session or enjoyment • • • § -^^^
ASPECT,
Contingency with a double aspect . . § 129
See Alternative Limitations,
ASSIGNMENT. See Alienation.
AT, .
Denoting a condition precedent . • § 2So — G
AUGMENTATIVE LIMITATIONS,
Definition . . • • § 137
Illustrations . . . • § 138— 14G
Distinguished from Conditional Limitations . §158
Remainders . • § 1^3
See Livery of Seisin.
BARGAIN AND SALE,
When a contingent remainder is destroyed by it • § ~"^
BEQUESTS. See Legacy— Personal Estate— Vested.
CESSER,
Clauses of cesser and acceleration defined . . § 22
See Condition.
Limitation.
Conditional Limitations.
Augmentative Limitations.
DiMiNUENT Limitations.
456 INDEX.
CESTUI QUE TRUST,
for life cannot destroy a contingent remainder . § 784
but cestui que trust in tail may . . § 785
CHARACTER,
^Jee Vested . . . §210— 214, &c.
Remoteness , . . § 721
CHARGES ON REAL ESTATE,
Definilion of • . . . § 73
Bequests tliereof to »'?., if or in case, ox provided, &c., do not vest
immediately . . . . § 292
Do not vest immediately, when there is a reference to a future
a<^e, time, or event, though such age, &c., is disannexedfrom t/ie
gift itself .... §321—7
Gift of intermediate income will not vest charges on real es-
tate .... § 336—9
Vest before day of payment, if directed . § 339
CHATTELS,
Freeholds limited after chattel interests, § 119 — 124a, 245 — 257
See Personal Estate.
Quasi Remainder.
Vested . , . . § 245—257
CHILD,
A word of limitation ... § 537
CHILDREN. See Legacy — Portions — Remoteness.
CIVIL LAW,
Doctrine of the . §287—9,294-5,312-318,330
CLASS, bequests to a. See Legacy — Remoteness.
COLLATERAL Limitations. See Limitations.
COMMON LAW,
Freehold could not be limited, at common law, to commence in
futiiro, except by way of remainder . . § 60
CONDITION,
Division
in the widest sense of the term .
of conditions properly so called
of g-enertt/ conditions ....
of conditions subsequent
of w/a-e^ conditions ....
Properly so called ....
Express ......
Implied ......
Direct ......
Indirect ......
General ......
Special ......
Subsequent.
Definition. ......
Two forms of ....
Definition of a condition subsequent of the concise or im-
plied form . . . . § 16
§2,3
§4
§11
§ 15
§20
§4
§5
§6
§7
§8
§ 9,11
§ 10
§ 12
§15
INDEX. 4.37
CONDITIO'^— con/ inued.
Definition of a condition subsequent of tho unconcise or ex-
1 1 licit form . . • • § 17
Ilhisl rated . . . . §1«, 1!^
Pt'ecec/cnt.
Definition . ■ • • § ^'^
Same contingency may be both a special limitation and a
condition precedent . . • § 43
Where a condition precedent annexed to a preceding interest
extends also tu a subsequent interest . § 222a
Where a condition wiiich under ordinary circumstances, would
clearly be held to be a condition precedent, is construed a
co)idition subsequent . • • § 140
Wliere construed according to the letter, not the spirit § 220
Mixed.
Definition of . • • • § l-*
Two kinds of . . . . § 20
Definition of a mixed condition of the destructive and
creative kind . . • . § 20
of the destructive and accelcrative kind § 22
Sometimes termed conditions precedent, and sometimes con-
ditions subsequent . . • • § 20
Z)/.?//;?^-?//.?^^^ from certain others . . §21
Where a prior interest should be determinable, and the sub-
sequent interest be limited to arise, on tho fulfilment of a
mixed condition . • • § 279, 2S0
In deed . . . • § 5
Inlaw . . . . • §6,26
" On Condition.^^
One of the three technical expressions introducing a
conditio?! subsequent . § 16, IS
Introducing a special or collateral limitation of the
i?-regular kind . . § 39
Odiousness of . . . • § 225
Etfect of the non-fulfilment of conditions precedent and mixed
where the condition is a direct condition, and the limitation is
not a mere alternative
— as regards the interest to be created . § 6SS
— and as regards the interest to be defeated § 6S9
— where the event happens under other circumstances
than those specified . . § 690
— where the limitation over is on the not leaving issue
generally, and not merely on the not leaving issue who
can take under the prior limitation . § 691
where the existence, at a particular time, of the objects of a
conditional limitation, is regarded as indirectly forming a
part of the condition on which such conditional liniitation
is to take effect . . • § 692—3
where the limitation is a mere alternative limitation, § 694 — 5
45S INDEX.
CONDITION— fo/2//;u/e^/.
Invalidity of conditions,
What conditions are void . . . § G96
jMorally wrong or civilly iinlawful.
Repugnant to a rule of law.
Contrariant in themselves.
Uncertain or ambiguous.
Restraining from suffering a recovery or levying a fine
within the stat. 4 H. VII. and 32 H. VIII. '
Impossible,
Too remotely possible.
What is too remote a possibility . § G97 — 8
Effect of the Invalidity of
Conditions
precedent . . . • § ^99
subsequent ... § 700
mixed . . . • § 700a
special or collateral limitations . . §701
See Hypothetical Limitations.
Conditional Limitations.
Springing Interests.
Augmentative Limitations.
DiMiNUENT Limitations.
Alternative Limitations.
Contingent Remainders.
Reversion.
Vested.
Portions.
CONDITIONAL LIMITATIONS,
Ge?ieWc sense of the term . . . § 14S
Use of the term in this sense is not incorrect, Imt yet is pro-
ductive of miscliicf
Specific sense of the term ....
Of an irregular form
Must be really limited in defeasance of a prior interest
Can only be by way of use or devise
Term shifting and springing uses, and executory devises
Reason of the term " conditional limitation,"
Not expedient to extend the term " springing interests,''^
csts under conditional limitations
Conditional limitations in general distinguished
— from conditions subsequent
— from clauses of cesser and acceleration
— from special or collateral limitations in one respect
— from special or collateral limitations, in another re-
spect . . . . § 154
— from remainders and limitations of springing interests
§ 155—6
— from alternative limitations . . § 157
— and from augmentative and diminuent limitations § 158
§148
§ 149
§ 284
§ 149*
§ 149a
§ 150
§ 151
to inter-
§ 152
§ 153
§ 153
§ 153
INDEX. 459
CONDITIONAL LIMITATIONS— cun/inued.
Certain cass of coDclitional limitations di'ilini^uishcd
— Iioni curtain cases of vcslcd remaind'r.s, and the first,
secotid, and third sorts of contingent remainders, and the
seventh kind o( springing interests; and vice vcrsd.
Wliere a snbscqaenl interest depends on the determina-
tion of the prior interest
— by force of a regular, or irregular, special or col-
lateral limitation, ViWii such subseciuent interest is
a remainder, or a limitation of a springing inter-
est of the seventh kind . § 2G3 — y
— by force of a mixed condition, and such subse-
quent interest is not a remainder; nor is it good at
the common law in any other way; but it may be
good, if by way of use or devise, as an interest
under a conditional limitation . §270 — 3
Where a subsequent interest depends on a condition pre-
cedent unconnected luith the determinatio7i oj the
prior interest, and is a contingent remainder, cdipahla
of afterwards becoming converted into a vested re-
mainder . • • . . . ^ '^^'^ — ^
— from certain cases of mere alternative hraitations; and
vice versa.
Introductory observations . . § 650
Where the prior interest in fee is not vested and abso-
lutely limited, and the subsequent limitation is an
alternative ... § 651 — 4
Where the prior interest is vested and absolutely limited,
and the subsequent limitation is a conditional limita-
tion . . • . § 655
— from limitations in default of appointment § 6G7
Effect of the no7i-existence of the objects of . § 692
See Condition — Death — Implication — Limitations.
CONTINGENCY,
With a double aspect . • • § ^^^
Gifts with a double contingency, or two alternative contingen-
cies . • . • • V ^-"^
See Condition — Alternative Limitations.
CONTINGENT INTERESTS, generally,
Definition of an interest wliich is contingent on account of the
person . • • • .§91
See Executory Interests.
CONTINGENT REMAINDERS,
Three modes of difiniug vested and contingent remainders § 170
Vested and contingent remainders defined.
— luithout reference to the right of possession or enjoyment,
or the possession or enjoyment itself . § l''^ — -^
— with reference to the right of possession or cnjoymenl
§ 173 — I
460 INDEX.
CONTINGENT REMAINDERS— crmlinued.
— ivi/h reference to tlie possession or enjoyment itself
§ 175—6; and see § 258
Distinctions between vested and contingent remainders.
Distinction as regards the mode of their creation, forming a
true criterion .... §177,258
Consequential distinctions pertaining to their nature and
qualities ... • § 178 — 9
It is not the indefeasibleness of the right of possession
or enjoyment, nor the absohUe certainty of the posess-
sion or enjoyment itself, which distinguishes a vested
remainder . . § 180
But still a vested remainder is only uncertain on account of
the relative uncertainty of its own duration, § ISl — 2
A remainder may be limited on a contingency, and yet be
vested • . . § 183
The several kinds of contingent remainders defined § 184 — 7
Remarks on a devise to two, and the survivor, and the heirs of
such survivor . . . • § lS7a
All the kinds of contingent remainders strictly depend on a contin-
gency, irrespective of their oivn duration - § 188 — 190
They may be all combined in the same limitation § 191
Remainders after estates tail . . § 192 — 4
JNIay 6cfo?72e a t'c^/e^/ remainder . . . §195
Exceptions from the first class.
First exception, formed by the usual limitation to trustees for
preserving contingent remainders. Part II. Chap. 5.
Second exception. Part II. Chap. 6.
Where a remainder limited on a contingent determination
of the preceding estate, may take effect on the certain
expiration thereof . . § 259
As in the case of a devise to testator^s wife for life,
if she shall so long continue his widow ; and in
case she marry, to ^. in fee . § 260
Where a remainder can only take effect on a contingent
determination of the preceding estate . § 261
Exceptions from iha fourth class.
First exception, in the case of an ultimate limitation to the
right heirs of the grantor. Part II. Chap. 11.
Second exception, created by the Rule in Shelley'' s Case, where
real property is limited to a person, tvith remainder to his
heirs general or special. Part II. Chap. 12.
See Rule in Shelley's Case.
Third exception, where real estate is devised to a person and
to his issue ; and the word issue is construed to be a word
of linntation, by analogy to the Rule in Shelley\s case, and
under the cy prcs doctrine. Part II. Chap. 13.
See Issue.
Fourth exception, under the cy pres doctrine, where real
INDEX. 461
CONTINGENT KEMAINDERS— con/Z/^HC^/.
estate is devised to the children of an unborn person.
Part II, Cliap. 14.
Fifth exception, under the cy pres doctrine, ni the case of an
intended perpetual succession of life estates. Part II.
Chap. 15.
Sixth exception, under the cy pres doctrine, where llie word
son, iluui^hter, or child, in a devise of an estate in re-
mainder, is construed to he a word of hniitalion. Part II.
Chap. 16.
Distinguished from other hmitations not by ivay of remainder.
See Remainders — Vested Interests § 245 — 257, 281, &c.
Alternative Limitations . • §638 — 649
Springing Interests.
Augmentative Limitations.
DiMiNUENT Limitations.
Hypothetical Limitations.
Conditional Limitations . • § 263 — 275
Reversion . • • § ^'^^ ^^^
Heir .... §383-388
Entail .... § 564, &c.
See also Alienation.
Destruction.
Support.
Time for Vesting.
Transmission.
COPYHOLD. See Destruction.
CY PRES. See Contingent Remainders.
DEATH,
Period to which death, when mentioned as if it ivere a contingent
event, is to be referred.
Where personal estate is hmited over " in case,^^ or '' in the
event o/" death, and the death is held to be a death
— in the testator's lifetime . § 656—7
— in a prior taker's lifetime . • § 658
— at some other period . . § 659 — 660
Where the gift over is introduced by other ivords of contin-
gency . . . . § 661
Where the gift over is not simphj in the event of death
§662—3
Same construction seems applicable to real estate as to per-
sonal . . . • . § 664
Exception . . • .§ ^^^
Decision against the apphcation of this construction to
real estate. lint perhaps that decision is questionable
§ C^i^Q
DEFEASANCE,
Defined . . . • . § 23
DEFEASIBLE interest defined . • • § ^7
Vol. II.— 47
462 INDEX.
DESCENT. See Transmission.
DESCRIPTION. ^£-6 Vested.
DESTRUCTION of contingent remainders created out of a
Legal fee simple in Freehold hereditaments.
A contingent remainder is destroyed by the determination of the
sole subsisting preceding estate before such remainder vests
§766
But not by an alteration in the quality § 766, note (a).
A remainder mviy fail as to one part only . . § 703a
A remainder nmy fail as to some persons only . § 703b
The precedins: estate may determine, so as to cause the destruction
of a contingent remainder, in various ways . § 767
By regular expiration ... § 768
By disseisin and tolling of the right of entry . § 769
By the destructive operation oidL feoffment, fine, or recovery,
by the tenant of the preceding estate . § 770
Whether he is beneficially entitled or not § 771 — 3
It is the destruction, not the transfer of the particular
estate, which destroys a contingent remainder § 774 — 5
^y forfeiture . . • • § '^'^^
By merger . . . • § "777
By act of the tenant for life or in tail . § 778
— by acceptance of the reversion.
— by surrender, bargain and sale, or lease and re-
lease to the remainder-man or reversioner.
— by bargain and sale, or lease and release, where
the tenant for life has also the immediate remain-
der or reversion.
— by joining the remainder-man or reversioner in a
conveyance.
By descent of the inheritance on the particular tenant,
subsequently to the taking effect of the particular estate
§779
But not by the descent of the inheritance on the particu-
lar tenant at the moment of the taking effect of the
particular estate ... § 7S0
Nor by tiie union of the particular estate and the inheri-
tance under a conveyance . . § 780a
Equitable fee simple in Freehold or Copyhold hereditaments.
No necessity for the continuance of a particular estate, where
the legal estate is in trustees . . § 783
Observations of Lord Ellenborough . . § 783
Cestui que trust for life cannot destroy a contingent remainder
§784
But cestui que trust in tail may . • § 7S5
Le^al fee simple in Copyholds,
Where the preceding estate expires by original limitation, the
remainder is destroyed . . • § 786
Where the preceding estate is determined by act of the tenant,
the remainder is not destroyed . . § 787
INDEX. 468
DESTRUCTION of other executory interests.
Remainder destroyed by enfranchisement . § 788
YiSldiics pur (inter vie . • • § 788a
Trust estates to preserve contingent remainders . § 781
Mere right of entry in the trustees is sullicient . § 782
By recovery . • • • § ^''^'^
Not by mere alteration in estate . • § 790
DETERMINABLE quality, what is meant by a . § 34
DEVISE,
Division into immediate and executory . • § m
Executory devise,
^6716^/0 sense of the term . . • §llla
Specif c and usual sense . ■ §llla
The general term " executory devise" is connnonly used in-
stead of specif c terms . • ' § mt>
This has generally arisen from the imperfect state of the
science, and has been very prejudicial . § lUc
See Alienation.
DIGNITIES,
Not previously subsisting, iriiglil be limited in futuro, even at
common law . .^ . § 1 11 a, note (e)
DIMINUENT LIMITATIONS,
Defined . . . • • § 147
Distinguished from conditional limitations . . §158
remainders . . § 164
DIRECTORY TRUST. Sec Executory Trust.
DIVISION,
Necessity for division of estates into classes . §29
DURING, denoting a special or collateral limitation . § 35, 41
ENLARGEMENT of estates on condition . . §137
ENTAIL,
Whether raised by implication from a limitation over of real
estate
— on an indefinite failure of issue of a prior taker
— where there is no express devise to his issue, and yet
he is held to take an estate tail . § 564
The principle of this conslruclion § 5G4a
Two co-existing, yet inconsistent intents ; namely,
the primary or paramount intent, and the ^e-
condary or ininor intent, which is sacrificed to
the former . . . § 564b
How the jiriuiary or paramount intent is manifested
§ 56 Ic
This construction is adopted, whether the prior limi-
tation is expressly in fee or indcfniite, or lor life
§ 5G4d— 8
— where there is an express devise to his issue, co
nomine
464 INDEX.
ENTAIL— CO/?/ /m/cc?.
— and the ancestor takes an estate tail in posses-
sion . . . § 569
It is immaterial, in the supposed case, whether
the expression for the devise over is issue
indefinitely, or " such issue^'
— and (upon principle) the ancestor would take
an estate tail iii remainder . § 571
Absurdity of contrary doctrine . § 573
Observations on the fact that there are decisions
in support of the contrary doctrine § 573
— and an estate tail cannot be raised in remainder
§ 574—5
— where there is an express devise to his sons, daughters,
or children, eo nomine
— and (upon principle) the ancestor would take an
estate tail i?i remainder . . § 576
Rules deduced by Mr. Jarman, from the cases
§ 577
Observations on these rules . § 578 — 9
Suggested resiclt of the preceding cases, and
remarks ... § 580
Observations of Lord Chief Baron Richards, on
the intention of testators . § 580
— and there can be no estate tail in remainder
§ 581—2
— and the ancestor will take an estate tail in pos-
session . . • • § 583
— on a failure oi children only of the prior taker, or on b. fail-
ure of issue within a certain time . . § 584
— on an indefinite failure of issue of a person to ivhom no
express devise is made
where the person whose failure of issue is spoken of
is the testator's heir apparent or presumptive, and he
takes an estate tail ... § 585 — 6
This construction, not allowed in Laneshorough v.
Fox, but admitted in other cases . § 587
where the ])erson whose failure of issue is spoken of is
not the testator's heir apparent or presumptive, and
he does not take an estate tail . § 588 — 9
Limitations of personal estate similar to limitations which would
create an estate tail in real property
Chattels cannot be entailed ... § 593
General rule resulting from this . . § 593a
See Personal Estate.
ENTRY, right of . . • . • • § 69
See Destruction of contingent remainders . § 781—2
ESTOPPEL,
Executory interests may be passed by estoppel and conveyance
§ 754—756*
INDEX. 465
EVENT. See Condition— Vest.
EXECUTED.
See RiTLK IN Shelley's Case, § 407 — 117; § 491, 495.
P]XECUT0KV TuirsT.
EXECUTORY DEVISE.
See Conditional Limitations.
Springing Interests.
Quasi Remainders.
Devise.
EXECUTORY INTERESTS,
Division . . . . . . § 75
Two modes of defining vested and executory interests § 75a
Defnition oi executory interests with reference to tlie right of pos-
session or enjoyment
Of an e.rec?//ory interest . . . . §84
Of a certain executory interest . . . § 85
Of a contingent executory interest . . § 86
Definition of executory interests without reference to the right of
possession or enjoyment
Of an executory interest — certain and contingent § 90
Are most cerreclly defined tvithout reference to the right of pos-
session or enjoyment . . . . § 91
Several kinds of . . . . . . ^ 92
See Springing Interests.
Augmentative Limitations.
DiMiNUENT Limitations.
Conditional Li.-mitations.
Alternative Limitations.
Remainders.
Contingent Remainders.
Contingent Interests.
Quasi Remainders.
Reversion, &c.
EXECUTORY TRUSTS,
Definition ......§ 4S9
Gj'ound of the distinction between trusts executed and trusts exe-
cutory .....§ 491, 604 — 6
A gift through the medium of a direction, is not necessarily a trust
executory .....§ 609 — 613
See Rule in Sitelley's Case . . • § "189 — 502
Personal Estate . . . § 598, 601 — 637
Issue ......§ 531—2
Life Estates.
EXPECTANCY,
Definition . . . . . . . § 71
Assignable in equity .....§ 750
FEE, on a fee . . . . . . . § 165
FINE. See Alienation — Destruction.
466 INDEX.
FORFEITURE,
Contingent remainder destroyed by forfeiture of the particular
estate ......§ 776
FREEHOLD,
Dcfm i I ion of a legal iniercsl oi {reeho\(l . . . § 65
an equitable interest of freehold . .§ 67
Cannot be in abeyance . . . . . § 59
Could not be limited, infutnro, at common law, except by way of
remainder, but may by way of use or devise . . § 60
See Ownership.
FROM AND AFTER,
Denoting a condition precedent ... § 285 — 6
Referring only to the possession or enjoyment . . § 346
GENERAL TERMS . . . . § 111c
HEIR,
Strict sense o{X\\e\Yoxdi .... §383
Where used for sons, daughters, or children . § 387
Where used for heir apparent or presumptive . § 388
A remainder to the heirs of a living person is a limitation to a per-
son not in being (§ 383), or not yet ascertained . § 384
Favour shown to . . . • § 325, 643
Positio7i of.
Observations of Lord Brougham . . § 739a
the Judges in Toldervy v, Colt § 643
Hope or expectancy of the heir is assignable in equity § 750
Ultimate limitation to the right heirs of the grantor § 390 — 1
Devise to testator^ s heir apj)arent or presumptive after the death
of another to whom no devise is made gives to the former a re-
mainder . . . . § 590
A word of limitation . . . § 3 1
Not a ivord of limitation, but denoting a special occupant § 32
See Rule in Shelley's Case.
HYPOTHETICAL LIMITATIONS defined . • § 114
Introducing an indirect special or collateral limitation § 35, 42
Not denoting a condition precedent^ but referring only to the
vesting in possession or enjoyment . • §346
\\\\XQCi\\Q\x\%?!i condition jiveccdent. . . §350
See Vested ... § 290—300, 351
IMPLICATION,
Rule in Shelley^ s Case,
applies even where the ancestor takes a freehold by implica-
tion, only .... § 463
General observation on the aid afforded, in the application of
the rule, by implication frorn a limitation over on failure
of issue . . . • § 488c
INDEX. «'i'
IMVhlCATlON— con finned.
Of an estate fai/.
Where the possible interval between a faihire of issue nihcri-
table under an estate tail, and an indefinite failure of issue,
may be filled up by implication . • § 380
See PINTAIL.
Of an estate /or /(/^ . • • • §590—2
IN CASE. See Vested . • § 290—300, 351
INCOME,
Where a gift of the intermediate income is an indication of vest-
ing. See Vested . • • § 328 — 339
Accruing before the vesting of an executory devise or bequest,
— where there is no disposition of the intermediate free/iold
§739
Observations of Lord Brougham on the position of the
heir at law . ^ • • § 739a
where there is no disposition of the intermediate income
of personal estate, or only a partial disposition which is
not for the benefit of the person to whom the executory
bequest is made • • • § ^"^^
Where the intermediate income of personal estate is par-
tialis/ disposed of for his benefit . § 740a
— where there is a residuary devise or bequest . § 741
INDEFEASIBLE INTEREST . . • § 98
INTENT,
Primary or paramount, and
Secondary or minor intent,
— in cases falling within the rule in Shelley's case § 429—450
in devises to a person and to his issue, eo tioniijie, y/here
there is no devise over on an indefinite failure of issue
§ 520—4
— in devises to the children of an unborn child § 534^5
— in the case of an intended popetual succession of life
estates . . • • § 53G-536b
— in devises in remainder to a son, daughter, or child, eo no-
mine, and iis a noynen collect ivum . • §.'^•^7
in devises to a person and to his issue where there is a limi-
tation over on an indefinite failure of issue § 564a — c
Observations of L. C. B. Richards on the intention of testators § 5S0
INTEREST,
In the tvidest sense of the term,
/)<>/;« i7/o/i of an interest, in this sense . . § 44
The ditferent classes of such mlercsis defined and distinguished.
Introductory divisions, definitions, and ilistinctions.
Rights or interests eixher perfect or imjjerfect.
A perfect interest described . • § -15
Three kinds of interests commensurate with the du-
ration of real hereditaments; viz. legal owner-
ship, equitable ownership, and mere possession.
These may be either united or disunited § 50
4(J8 INDEX.
INTEREST— coJitinued.
Other interests which are not commensurate with
the duration of real hereditaments, and are always
collateral . . . § 51
t.'lnother division of interests, in tlie luidest sense of the
term, in lands and tenements . . § 64
Definition of a legal interest of freehold . § 65
a legal interest for a term of years § 66
an equitable interest o? freehold § 67
an equitable interest tor a term of years, § 68
a quasi interest . . § 69
The different species of qtiasi interests . . § 69
Alere precarious possessions . . § 70
Definition of an expectancy . . § 71
a ;;ot^Jer of appointment . . § 72
a charge . . . § 73
a lien . . . § 74
Interests, in the widest sense of the term, in personal es-
tate . . . . . § 74a
Division of interests of the measure oi freehold iii lands and
tenements, and interests in chattels,
— with reference to the existence, &c. of the seisin, pro-
perty, or ownership . . . § 75
— with reference to the nature of the contingency § 93
— with reference to the capacity of transmission § 742
— witli reference to the certainty of duration . § 96
— with reference to the quantity of interest . § 99
In tlie /ecA??ec«/ generic sense of the term . §65,67
In the technical specific sense , . . § 84
See Executory Interests, &c.
ISSUE,
Whether an indefinite faihire of issue is meant, or merely a failure
of issue within a certain time, in cases of a limitation over on
failure of issue.
In devises o{ real estate before 1838, the words, ^^ die without
issue^'' "die without leaving issue," "in default,''^ or "o?i
failure,^' or "/or want of issue," were all held to import
an indefinite faihire of issue . . §538
But in bequests of personal estate before 1838, the words
"die without leaving issue, were not so construed, though
the other expressions were construed in that manner § 539
Where the devise to the issue male iajntt^oduced by words of
contingency, and the limitation over is to take effect in the
opposite event of there being no son . § 540
Where the devise is to the childre?! of the prior taker equally,
and their heirs, with a limitation over in case he should die
without issue, which depends on his having no children
§ 541
Where the devise is to the issue of the prior taker, and their
heirs, with a limitation over in case he should die without
INDEX. 469
ISSUE — continued.
issue, or a/l snck issue should die wil/iout issue, and tlie
first contingency is that of the prior taker's dying without
children, and the second is that of his children dying without
issue .... § 5 12
Words referring to a failure of such issue, import an indefinite
failure of issue, or not, according to the degree of compre-
hensiveness of the antecedent expressions . § 543
They do, where such expressions comprise all the issue
generally, or male or female . . § 543
They do not, where such expressions comprise some only
of the issue generally, or male or female: as where the
devise is to the sons, daughters, or children of the prior
taker . . . ■ . § ^^^
Where the issue are referred to by the tunne of children, and
thereby explained to mean children . § 547
Where the issue are so referred to in the limitation of one
moiety, but not in the limitation of another moiety. § 548
Where the property is limited over on death under a certain
age without issue • • • § ^^^
Where a devise over is on death within a li7nited period, or
without issue, and " or " is construed " and " § 550
Where a devise over is on death under a certain age, or on
subsequent death without issue . . § 551
Where a devise over is in the event of death without leaving
issue, or, having such issue, of such issue dying under a
certain age ivithout issue . • § 552
Where a bequest over is to the survivor, ivithout words of
limitation . . . • § 553 — 4
Where a bequest over is to the survivor, with words of limi-
tation . . • • § 555
Where property is bequeathed to two sisters, with a limita-
tion over, on the death of one without issue, to her sister
§ 556
Where it is directed that the property shall go over after the
prior taker's decease . . • § 557
Where a limitation over is preceded by a bequest to such of
the prior laker's issue as he shall appoint to . § 55S
Where all the ulterior limitations are for life only § 559
Where the devise over is i'or payjyient of debts . § 560
Where the estate is subject to the paynient of a sum to be dis-
posed of by the will vf the prior taker . § 561
Where a. term for raising legacies is limited on the expiration
of an estate tail, and the legacies are held to be given on the
same event . . • • § 562
Enactment of 1 Hct. c. 26, s. 2D . . § 563
Whether the word issue is a word of purchase or a word of limi-
tation,
( 1 ) where there is no deviseover on an indcfinitcfailurc of issue.
Vol. II.— 48
470 INDEX.
ISSUE — continued.
Where the word issue is a word oi limitation, in the case
o^ direct devises and trusts executed . . § 504
Where it is a word of purchase, in the case of direct
devises and trusts eo-'ccti/et/ . . §505
Hule embracing both the preceding rules . § 506
Difi'erent senses of the word issue . § 507
It is a word either of purchase or of limitation in
a will ; but always a word of purchase in a deed
§ 508
Why it is a word of purchase in a deed § 509
It is ill adapted for a word o{ purchase, §510 — 512
But it is ivell adapted for a word o( limitation, § 513
And this is one of the grounds of the foregoing rules
§ 514
How the testator xm-Y manifest an intention that the
word issue should not be a word of limitation
§ 515
It is not manifested by superadding kindred
words of limitation, ox giving the ancestor an
estate expressly for life, or without impeach-
ment of waste . . § 516
Nor by introducing ivords of contingency , which
would have been implied . . § 517
Nor by prohibiting the ancester from commit-
ting 2vaste . . . § 518
These indications are equivocal . § 519
Another ground of the foregoing rules ; namely,
two coexisting yet inconsisle?it intents, the one of
which must be sacrificed to the other . § 520
Definition of the primary or paramount intent
§521
Definition of the secondary or m.inor intent, § 522
By what the primary or paramount intent is
imported or evidenced . § 523 — 4
Observations showing the expediency and propriety
of construing issue a ivord of limitation, in order
to effectuate the primary or paramount intent in
cases falling within ihe first rule . § 525 — 6
Observations showing the propriety of construing
issue a word of purchase, in cases falling within
the second rule . • • § 527
There is less presum.ption against construing issue a
ivord of purchase, than there is against construing
heirs a word of purchase, especially heirs gene-
rally . . . ^ S2H
Illustratio7is of the first rule . . § 529
second rule § 530
INDEX. 471
lS^\JE—co?iti>iucd.
Where the disposition is by way of executory trust,
— by marriage settlement . . §531
— by will . . • § 532
Where the two limitations are not both legal or both
equitable . . . § 533
Where the issue cannot take by purchase, on account of
the rule against perpetuities . . § 533a
(2) where there is a devise over on an indefinite failure of
issue.
Where the ancestor takes an estate tail in possession
§ 569—570
Where (upon principle) the ancestor would take an estate
tail in remainder . . . § 571
Absurdity of contrary doctrine . § 572
Observations on the ftict that there are decisions in support
of the contrary doctrine . . § 573
Where 730 estate tail can be raised in remainder § 574 — 5
Limitation over in default of issue, an indication that an aggregate
sum given to a class of children is to be shared by all § 232 — 4
Where a limitation over in default of issue, or a limitation of the
same import, is
— a limitation of the whole or the immediate part of the re-
version . . • § ^~^' ^^1 — 2
— a limitation of a springing interest . § 379 — 380
— diW alternative \\xm\.di\\on . §540 — 1,544,649
— a remainder, capable of operating either as an alternative
or as a remainder . . § 545 — 6, 646 — 8
— both a remainder and ari alternative . § 542
LEAVING,
Construed " having had," or '- having" . . § 243a
LEGACY,
To a class.
Where an aggregate sum is given to a person's children, and
there is no limitation over on failure of his issue, or other
particular indication of intention that all should take
§227 — 230c
Where a 5';;ec(/?c sum is given to e«cA . §231
W^here there is a limitation over in default of issue of the
parent, or some other indication of an intent that all should
take . . . • § 232—4
See Portions.
LIEN, defined . . . § 74
LIFE ESTATES,
Intended perpetual successioji of,
— by way of executory trust, in favour of imborn descendants
§ 536
412 INDEX.
LIFE EST ATES—con I inued.
— in favour of children in esse, and more remote descendants
§53Ga
Limited numbei' oi . . . § 536b
See Remoteness ... § 711 — 713
LIMITATION,
Two senses of the word . . • § 24
Z)c;?«///o;i of a limitation in the or^m«/ sense . §26
in the derivative sense § 1^6
In the o/'2^/na/ sense of a. restrictive expression /ot^ming the limits
or bounds to the quantity of an interest,
Division of such limitations . . . § 27
General limitations.
Defined . . . . § 28
Either express or implied . . . § 30
Examples of ea7?re.9.9 general limitations . §31 — 2
Instances of implied general limitations § 33
Special or collateral limitations,
Defined, . . . . §34
Examples . . . . § 35
Remarks on the term '■'■ collateraV^ applied to special
limitations . . . § 36
Distinguished ixovci conditional XvciiM'oXxon'Sr,, § 153 — 4
And see § 263— 273a
Either regular or irregular . . § 37
Definition of a regular special limitation § 38
an irregular special limitation § 39
Qualification of a regular special limitation § 40
Definition of a direct regular limitation § 41
an indirect regular limitation § 42
Same contingency may be both a special liwilation and
a condition precedent . . § 43
Where a subsequent interest depends on the determina-
tion of the prior interest,
by force of a regular special limitation § 263
an irregular special limitation,
§ 264—9, 297
Where the prior interest should be determinable by
force of a special limitation, and the subsequent interest
be limited by way of remainder § 278, 2S0
Effect of the invalidity of a special limitation § 701
In the derivative sense of an entire sentence creating an interest,
Division of such limitations § 107, 111, Hid — g, 112
Definition o{ <x. simple \\m\{ii{\o\\ • . §108
qualified limitation . . § 109
Distinction between directly qualified and indirectly quali-
fied limitations . . . §110
Definition of immediate and executory limitations § 1 1 1
absolute limitations . . § 1 1 3
INDEX. 173
LIMIT ATIO'S— continued.
hypothetical Wimiv^hons . . §114
limitations in default nf appointment § 115
limitations creating potvers of appointment, § 116
Limitations operating dijfercntly in regard to another liini-
lation in different events.
An interest may be limited to take efrect either as an
alternative, or as a retnainder or r/uasi remainder
§ 6GS, 542
An interest shall, if possible, be constrned as a re-
mainder or quasi 7'etnainder, as well as an alternative
§ 666a; and cases stated, § 545 — 6
Every remainder or quasi remainder has the effect of an al-
ternative limitation, in case the preceding interest never
vests . . . • § 669, 672
Consequence of the above rule, as regards chattels tvhich are
to go to the persons entitled to real estates entailed § 669a
Instance of a remainder taking effect as such, though taking
efiect as an alternative as regards the possession § 670
An interest may be limited to take efi'ect either as an alterna-
tive, or as an interest under a conditional limitation, § 670a
An interest may be limited to take effect either as a remainder,
or as an interest under a conditional limitation § 670*
A mere conditional limitation will have the effect of an alter-
native, if the prior interest never vests . § 671, 672
Exception . . • • § 672a
So also will a limitation of a springing interest of the seventh
kind .....§ 671a
Conditional limitation becoming a remainder in the room of
a preceding remainder in fee . • § 673
A future interest is not construed an interest under a condi-
tional limitation or a springing interest, when it can be
construed a remainder . . • § 674
But when the preceding freehold fails, a future interest which
would otherwise have been a remainder, is construed a
springing interest . . • ^ 675
And an ulterior interest in remainder also becomes a springing
interest, abstractedly regarded, though it is a rc7nainder as
regards the less remote springing interest . § 676
And so, in other cases, until a less remote future interest vests,
an ulterior interest in remainder is a springing interest, ab-
stractedly considered, though it is a remainder as regards
such less remote future interest . . ^6"/
IJynifations operating differently in regard to different limi-
tations.
The same limitation may be a remainder, an alternative, and
a co;?r////o7i«/ limitation . . §678 — 6S1
The same limitation may be an alternative -^wdi an augmenta-
tive limitation, or a limitation of a springing interest § 6S2
474 INDEX.
LIMITATION— co;2//;2wef/.
Every more remote limitation may be a remainder as regards
a prior limitation, though not limited next after it § 682a
Lim,itaiions intended to operate in different ivays in regard to dif-
ferent portions of property.
Limitations may operate in this way . . § 683
A limitation may be penned so as to operate as a conditional
limitation and as a limitation of a springing interest in re-
gard to dilTorent portions of property . § 684
A limitation may be so penned as to operate as an alternative
and as another kind of linrnitation in regard to different
portions of property . . . §685
Objection . . . . § 686
Words of limitation defined . . • § 404
See Issue . . . . § 506—528
See Remainders, generally.
Contingent Remainders.
Quasi Remainders.
Reversion.
Springing Interests,
Augmentative Limitations.
DiMiNUENT Limitations.
Absolute Limitations.
Hypothetical Limitations.
Conditional Limitations.
Appointment, limitations creating powers of, and limitations
in default of.
Alternative Limitations.
LIVERY of seisin,
Where it is, and where it cannot be, dispensed ivith, m the case of
an enlargement of an estate on condition . § 138 — 144
Must pass a present freehold, and cannot give a freehold in fu-
turo . . ... § 141
See Seisin.
MAINTENANCE. See Vested . . . § 367—9
MARRIAGE,
Residuary bequests on ... § 341
MERGER. See Destruction — Rule in Shelley's Case.
OFFICES,
Not previously subsisting might be limited infuiuro,e\evi at com-
mon law .... § Ilia, note (e)
ON,
Devise or bequest to A. on &c. . . § 285 — 6
OR,
Where "or" is construed '■'■ and ^^'' in limitations over
— of real estate on death under a certain age, or without
issue . . . § 235 — 6
INDEX. 175
OR — continued.
— of /?er5ona/ estate ill the same event . §237
— of real estate on death under a certain age, or without
children . . . • § 238
— of I'eal orpersofial estate on deatli within some other time,
or witliout leaving some other object who might derive a
beneiit through the devisee or legatee § 239, 243, 550
Where "or" is not construed ^^ and" . • § 210
'^ ».^nd" is not co7istrued ^' or," in limitations over on death under
a certain age and without issue . . § 237a
Contingency of an alternative limitation sometimes implied by the
word "or" . . . . • § 135
OWNERSHIP
Defined . . . . . § 46
111 what manner divisible . . § 52, 355, 58
May reside in different persons, but not without privity of
estate . . . • § 52 — 57
Cannot be in abeyance . . . § 59
Consequences of this . . • § ^0 — 62
PAYABLE,
In a clause of survivorship or cesser, or a limitation over, is re-
ferred exclusively to the age specified or marriage, and means
vested . . . . . § 242
PAYMENT. .S'ee Vested . . . §310—327
PERPETUITIES,
General rule against . . • § 706 — 8
See Life Estates — Remoteness.
PERSONAL ESTATE,
Limitations of personal cstCLte, similar to litnitations which would
create an estate tail in real estate.
Chattels cannot be entailed . . • § 593
General rule resulting from this . . § 593a
Bequests to or for a person and the heirs of his body § 593b
Limitations to or for a person for life, with re?naindcr to the
heirs of his body,
— which would create an estate tail in real property
§ 594—5
— which would not create an estate tail in real property
§ 596
Disposition, by direct gift or trust executed, in favour of a
person and his issue,
— which would create an estate tail in real property
§ 597
— which would not create an estate tail in real property
§ 597a
Executory trust in favour of a person and his issue § 598
Limitations over on an indefinite failure of issue § 599
Limitations over on failure of children only, or of issue icithin
a given time . . . • § 600
476 INDEX.
PERSONAL F.ST ATE— continued.
Limitations of personal estate to or in trust for the persons entitled
to real estates entailed,
Rule L Where such limilations are not by way of executory/
trust .... § 601
Rule II. Where they are by way o[ executor'y trust § 602
The distinction exhibited in these two rules is in accord-
ance with the distinction made in other cases § 603
Grouno'* of the distinction . . §604 — 6
Executory trusts should be construed according to the
second rule ... § 607
especially when created by marriage settlement or
articles . . - • § ^^8
A gift through the medium of a direction, is not neces-
sarily a trust executory . . §609 — 613
The words "50 far as the rules of law ivill jmnnit,"
preclude any intendment contrary to law . § 614
But they do not enable the Court to tie up chattels for
any longer time . . . § 615
Difference of opinion among the Judges in Duke of New-
castle and Countess of Lincoln . . § 617
Observations of Lord Loughborough § 618
Observations of Lord Eldon in the same case § 619
and in Jervoise v. Duke of Northumberland
§ 620
Meaning of the expressions used by Lord Lough-
borough . . • § 621 — 2
Executory trust by will ouglit not to be construed
so as to confer an indefeasible vested interest on
the first tenant in tail at his birth . § 623
And in fact jio such constructio7i of an executory
trust has been adopted . . § 624
Lord Eldon supposed that directory trusts were
synonymous with executory trusts . § 625
Objection urged by Lord Eldon . § 626 — 8
Observations on some other remarks of Lord Eldon
§ 629—630
Observations of Lord jGr*A;me . . §631
Remarks thereon . . § 632
Concludifig obse?^vations . § 634 — 7
See Quasi Re.-maixder.
PORTIONS or LEGACIES,
Apparently depending on surviving parents, as a condition prece-
dent. Application of the rule, that an interest shall be con-
strued to be vested rather than contingent.
General Pkinciples.
When the leani?ig in favour of vesting is peculiarly strong,
§215
INDEX. 477
It is so where a porlioii or legacy seems to depend on snr-
vivini^ jxtrcnls ■ • • §216
Disliiiction between a gilt by will and a trust by .settlement,
§217
Leaning against construing survivorship a prc-rcrpiisite, is
strong even in the case of a ^vill . . § 218
But much stronger in the case of a marriuge settlement., § 219
Specific Rules.
Where one child survives, and the words importing necessity
of surviving are construed so as to admit others who did
not survive . . . . § 220
Where no child survives, but words importing necessity of
surviving are construed so as to admit those luho did not
survive . . • • • § 221
Wiiere no child survives, and none are admitted § 222
Apparently liable to be defeated by a condition subsequent in case
of not surviving parents. Application of the rule that an inter-
est ought to be construed to be absolute rather than defeasible.
Postponement of payment till after parents' death is a post-
ponement of the actual possession only . § 211
Word payable in a clause of survivorship or cesser, or a limi-
tation over, is referred exclusively to the age specified or
marriage . . • • § 242
Words supplied, or the word "or" changed into '' and'^ § 243
Leaving construed ^'having had,^^ or ^'having'' § 243a
Where the children who do not survive, take nothing § 244
POSSESSION,
Different modes of . . • • § 49
Were possession rightful and unlimited . . § 50
Mere precarious possessions . . . § 70
POSSIBILITY,
In the technical and specific sense of the term . . § 69
In the popular sense . . • § "^
Of reverter . . • • ' ^ 2^
Less than a . • • • § ^^
See Expectancy — Interest — Quasi Interest.
POWER of Appointment,
Defined . . • . . § 72
See Appointment.
Vested . . • • § 369—374
Remoteness . . • • § .''^^ '7^5
PRACTICAL Suffsestions connected with Special Limitations
^^ § 377— 3S0
PRESUMPTION, where admitted . - . p. 78
PROPERTY. See Owneusiiip.
PROFITS. See Income.
Vol. II. — 19
478 INDEX.
PROVIDED,
Is one of the three technical words introducing a condition sub-
sequent . . . . § 16, 18
Introducing an irregular special or collateral limitation . § 39
See \^ESTED ... • § 290 — 7
PURCHASE,
Words of purchase defined . . • § 403
Word heir a word either of purchase or of limitation § 402
See Issue . ... § 504 — 533a
QULIFIED FEE, interest limited on a . . § 126—7
QUASI ENTAIL,
Under the statute De Donis . . § 426 — 7, 435a
See Personal Estate.
QUASI INTEREST,
Defined . . . . . § 69
Different species of . . . . § 69
QUASI REMAINDER,
Defined . . . . . § 168
There cannot be a remainder in joer^ona/ 77ro/?er/y . §168
Chattels real may now be limited over, but a limitation over
of them is not a remainder, strictly so called, though it may
be analogous to one . . . § 168a
The same is the case with chattels personal . § 168b
RECOVERY,
Alienation of executory interests by suffering a recovery § 756
Z>e5//'Mc/?ow of contingent remainders thereby . §770
other executory interests . . § 789
REMAINDER,
Zaar ^en^e of the term . . . . § 159
Definition of a limitation of a rema'mder, proper li/ so called, § 159
Distinguished /ro?n future bequests . . § 159a
co/i^e7/ona/ limitations . §1^0
alternative limitations . . § Id
the first six kinds of limitations of springing
interests . . . § 162
augmentative limitations . § 163
dijninuent limitations . . § 164
the seventh kind of limitations of springing
interests . . . § 165
limitations of the whole or the immediate part
oi the reversion . . §167
Of the construing a limitation to be a remainder rather than afi
executory limitation not by way of remainder,
The general rule as commonly stated . . § 196
as more accurately stated . §197
i?ea.90M.s for the same . . . §198 — 9
After an estate tail . . . . § 192 — 4
INDEX. 479
REMAINDER— con/mt^ec?.
After a ///e estate by implication distinguished from cases of a
springing interest,
Devise to testator's heir apparent or presumptive after the
death of another to whom no devise is made, gives to the
former a remainder . • • • § >''J^0
A similar devise to tlie residuary devisee has the same elfect
§ 591
But a similar devise to one who is neither apparent or pre-
sumptive, nor residuary devisee, gives him a springing in-
terest . . . . . § 592
After too remote an interest ... § 737
What particular estate is necessary.
A freehold mterest not preceded by a vested freehold cannot
be a remainder . . . • , § ''^9
A vested freehold interest after a term for years is not a
remainder . . . • § "'^^
A contingent freehold interest limited after a chattel
interest at common law is not a remainder, and is void
§ 761—2
A contingent freehold interest limited after a chattel in-
terest by way of use or devise, is good, but not as a
remainder . . . • § 7G2a
A freehold interest limited, by way of use or devise, after
a contingent interest only, is good, but not as a re-
mainder . . . . • . § ''^^
A freehold interest limited after a contingent interest
only, at common law, is not a remainder, and is void
§ 763a
Time for vesting oi .... §702
See Contingent Remainder.
Quasi Remainder.
REMOTENESS,
General Rule against Perpetuities.
The rule stated . . • . § 706
Reason for fixing a limit of some kind . . § 707
adopting the limits fixed by the rule . § 70S
Specific Rules.
Limitations in favour of unborn persons, ivhether forming a class
or not.
A limitation must be such as 7nust take eftecl within the pre-
scribed period, if at all . . • § 709
Hence limitations to children of persons nut in esse at Uie
dateof the will, are not good . • ; § "^^
Nor are clauses designed indirectly yet virtually to limit es-
tates to the issue of an unborn person as purchasers § 710a
But limitations to unborn children of persons in esse arc good
§ 711
480 INDEX.
REMOTENESS— co7?//;i?/er/.
It has been thought that a hfe interest cannot be Hmitecl
to an unborn jierson . . § 712
But this notion is erroneous . . § 713
Limitations on 2i failure of issue . . § 714
1l\yo preliminary qucstio7is . . §715,716
Answer to these, as regards real estate . § 717
Answer to the first question, as regards personal estate
§718
Personal estate cannot be entailed, and a hmhation over
on an indefinite fliihire of issue is void for remoteness
§719
The construction of such a hmitation is the same,
where the prior taker lias a life interest only
§719
Trusts of a term limited previous to an estate tail, for raising
portions on the failure of issue inheritable under the entail
§ 720
L,\m\idi{\o\\s ox\ ^i failure of heirs . . § 719a
Interests to vest on the sustaining a certain character § 721
Interests limited to unborn persons forming a class, whether at a
given age or otherwise
Where the vesting of a devise or bequest to a class is suspend-
ed till a certain age, and some of them may not be in esse
till too late a period . . • § "^22
Distinction suggested that some should take under the
will, where none could take in case of an intestacy;
but that none should take under the will, where they
could all take in case of intestacy . § 723
Objection answered . . • § '^^4
Where a testator gives to some only of a class, to keep within
the rule against perpetuities, and yet limits over a failure of
the whole class . . . § 725
Where a testator gives to some only of a class, without trans-
gressing the rule against perpetuities, but, in terms, limits
over on failure of the whole class, and yet apparently in-
tended to create a mere alternative interest . § 726
Alternative limitation void for remoteness . § 727
Powers,
Interests under particular or qualified powers must be such
as would have been good if created by the deed or will con-
taining tiie power . . . • § "^^S
But interests under general powers, need not be of such a
character . . . . § 729
Reason of the above distinction . . § 730
Powers to arise on an indefinite failure of issue § 731 — 2
Powers of appointment among a class of persons, some of
whom will probably come in esse within the period pre-
scribed by the general rule . . § 733 — 4
Powers of *a/e .... §735
INDEX. 4S1
REMOTENESS— <'o«//n?<«/.
Ceutaix points connected with Remoteness.
Where the absolute interest is aflenvards restricted to a life
interest, with a Hniitation over, whicli is void lor remoteness
§ 73G
Remainder after too remote an interest . § 737
Money raised by a term well created, the uses whereof are
void for remoteness , . • ^ 738
RENTS,
Conditions relating to . . . ^10
Not previously subsisting, might be limited in futuro even at com-
mon law . . . . § Ilia, note (e)
RESULTING TRUST,
Where money raised by a term, the uses whereof are void for re-
moteness, is a resulting trust . . ^ 738
REVERSION,
Definition of a limitation of the whole or the immediate part of the
reversion , . . . . § 169
Certain cases of interests under limitations of the whole or the im-
mediate part of the reversion, distinguished from contingent
remainders of the third class, and from springing interests.
Where a limitation is to take effect after the death of a person
who has a life estate under a previous instrument, and
sucii limitation is a limitation of the whole or the immediate
part of the reversion, instead of a contingent remainder of
the third class . . . • § 375
Or instead of a limitation of a springing interest § 37G
Observation grounded on the foregoing distinctions, § 377
Wliere a limitation is to take effect 07i an indefinite failure of
issue who are all inheritable under estates tail created by a
previous instrument; and such limitation is a limitation of
the whole or the immediate part of the reversion § 378
Where a limitation is to take effect on an indefinite failure of
issue, so77ie of whom arc not inheritable under such estates
tail, and such limitation is a limitation of a springing inter-
est, . . . . § 379
Exception, where the interval may ha filled up by impli-
cation. . . . • § 3S0
Where such implication docs ?iot arise . §. 3S0
Where a limitation is made of the reversion, eo nomine, on
an indefinite failure of issue, some of whom are not in-
heritable under sucii estates tail; and such limitation is a
limitation of the whole or the immediate part of the re-
version .... § 381
Where a limitation is to take effect on an indefinite failure of
issue, without restriction to issue by a particular marriage,
who are alone inheritable under previously created estates
tail; but yet no other marriage was contemplated, and
482 INDEX.
REVERSIO'S— continued.
therefore such limitation is a hmitation of the whole or the
immediate part of the reversion . . § 382
RULE IN SHELLEY'S CASE,
The Rule stated.
Shelley's case .... § 393
What is meant by the Rule in Shelley's case . § 394
The rule as stated in Shelley's case . § 395
The same rule appears in the Provost of Bevey^ly' s case, § 396
Observations on the virtual substitution of another rule, § 397
The rule may be differently stated without losing its identity;
as it is by Lord Coke ... § 398
Lord Coke retains the two essoitial requisites thereof § 399
»/inother statement of the rule . . §400 — 1
Li?nitatio}is not by icay of remainder are not within the
rule . . . . • § 401a
Terms and Operation of the Rule explained.
Word heir or heirs a word either of purchase or of limita-
tion , . . . • § 402
Definition of words of purchase . . § 403
Definition of words of limitation . . § 404
The invariable, proximate, and proper operation of the rule
§ 405
The occasional, mediate, and indirect effect thereof § 406
Different modes in which the subsequent interest is executed
in the ancestor . . . • § 407
In possession, absolutely . . § 408
In Interest . . . • § 409
In possession, subject to the liability of afterwards be-
coming only executed in interest. . § 410
In possession to some purposes only . §411,412
Cases of joint tenancy to be distinguished
§ 413—417
As a contingent remainder . . § 418
Grounds of the Rule explained.
I. Prevention of fraud upon feudal tenure . § 419
II. Prevention of fraud upon the specialty creditors of the an-
cestor .... § 420
III. Desire o{ facilitating alienation . . § 421
IV. These reasons involve another . § 422
Namely, that the two limitations would generally and in the
main have virtually accomplished the same purpose as a gift
of the inheritance to the ancestor . . §423
Illustration of \k\\^ . . . §424
Certain objections answered . . § 425
Answer to another objection drawn from the case of fic-
titious descents per formam doni . § 426 — 7
Fearne's answer to the objection that the rule frustrates
the testator's intention . . § 428
INDEX. 483
RULE IN SHELLEY'S CASE— continued.
V. The object of the rule is to give effect to the primfin/ or
par/nnuunl intent at tlie expense of the secondary or minor
intent .... § 429
Definition of ihc primary or paramount intent § 4.30
Definition of the ^econa'ary or m//?or intent . § 431
The primary or paramount intent is imported tjy the
word heirs, in connexion with the preceding freehold
§432
Necessary to reject the secondary or minor intent, in order
to effectuate the primary or paramount intent § 433
both in the case of Umitations to heirs general § 434
and in the case of limitations to heirs special § 435
Answer to an objection drawn from the case of a
fictitious descent per formam doni § 435a
It is accurate and dejinite to say that the secondary or
minor intent is sacrificed to efiectuate the primary or
paramount intent . . • § '136
Observations of Lord ^ef/e5^a/e . §437
Denman . . § 438
They are just, but are not explanatory of the grounds
of the rule . . • § -^39
Why the technical words overrule the other words,
§ 440—2
Wherein consists the incorrectness and va fineness of the
cowmon 5/fl/eme/j/ of the principle of the rule §443
Observation of Lord Eldon on the general and particu-
lar intent . . . • § 444
Butler on the general and particular intent
§ 445
The rule is not a medium for discovering the intention
§ 446
But the rule is a means for effectuating the primary or
paramount intention, when discovered . § 447
The rule is indeed levelled against the intent § 448
But only against the secondary or minor intent § 449
Summary of the grounds of the rule . . § 450
Application and Non-application of the Rule, in Cases of
Legal Estates and Trusts Executed.
Preliminary caution . . • § 451
Three general propositions may be laid down § 452
I. First general proposition, showing where the rule ap-
plies, notwithstanding apparent indications to the contrary
§ 453
1. Limitation for life only . . . § 454
2. Or without impeachment o{ ivaste . . § 455
3. Power to jointure or make leases . . § 45G
4. Obligation to repair . . . § 457
5. Restraint of alienation ... § 45t>
484 INDEX.
RULE IN SHELLEY'S CASE— con/ inued.
6. Limitation to trustees to preserve contingent remainders,
§ 459
7. Limitation to heirs for their lives . . § 460
S. Concunence oi' several of these indications . §461
9. Freehold determinable in ancestor's lifetime § 462
10. Freehold by implication . . • § 463
11. Freehold by resulting use, where ^.remainder is limited to
X\\Q heirs special of the grantor . . §464 — 5
Even where there is an ulterior vested interest § 465a
Cases where the limitation is to the heirs special of a third
person . . • . § 466
12. Freehold by resulting use, where a springing interest is
limited to the heirs special of the grantor . § 467
13. Where there are apparently two concurrent contingent re-
mainders . . . • § 468
14. Where the ancestor's estate is not for his own benefit, § 469
15. Where both estates are equitable, even though the first be
for the separate use of a feme covert . § 470
16. Where the estate is copyhold . . . § 471
17. Where a limitation to right heirs male follows one to first
and other sons . . • .§ 471a
IS. Tenant in tail after possibility of issue extinct § 471b
n. Second general proposition, showing where the rule ap-
plies, notwithstanding apparent indications to the contrary
§472
1. Word heir in the singular, with the word first, next, or
eldest, but without superadded words of limitation, § 473
2. Words of limitation superadded to the word heirs § 474
3. Superadded words of distributive modification, without
superadded words of limitation . . § 475
4. Word S071S or daughters, referring to the heirs, if only
used in the sense of males or females, &c. . § 476
5. Intention that the limitation should be in strict settlement
§ 477
6. Superadded words usually occurring in limitations to first
and other sons in tail ... § 478
III. Third general proposition, showing where the rule
does 720/ upi>ly • • ■ • § 479
Indication of the non-application of the rule may be either
direct or indirect . . . § 480
1. Direct explanation or indication that the persons who are
to succeed are not persons who are to take simply as heirs
general or special . . . . § 481
2. Indirect explanation or indication . § 484
(1) Word heir with superadded words of limitation,
§485
(2) Limitation to the heir for life . . § 486
INDEX. 48d
RULE IN SHELLEY'S CA^E—co7it hived.
(3) Superadded words of IhnJiaiion U'liicli limit the
Q.s{i\{<i to persons of a different .sex . § 187
(4) Words of distrihulive modification., with sujier-
added words (f limitation . . § 4S8
(5) Words of distributive modification., with a limita-
tion over in the case of the death of such issue under
a certain age . . • § 4SSa
(6) By blending a limitation to the heirs special of ano-
ther person, and superadding words of liniitution,
§ 4SSb
Aid afforded, in thk Application of the Rule, bv Lmpi.i-
CATION FROM A LIMITATION OVER ON FaILUKE OF ISSUE § 4S8C
Application and Non-application of the Rule in Cases of
Trusts Executory.
Defnition o( an e.recufori/ trust . . §189
I. Rule as to executory trusts created by will § 190
Ground of distinction between trusts executed and trusts ex-
ecutory . . . . § ^191
///ii5/ra/w«s of the foreogoing rule . § 't92 — 3
II. Rule as to trusts executory created by marriage settle-
ment, with the exceptions thereto . § 494
Distinction between trusts executed and trusts executory is
more strongly marked in the case of those created by mar-
riage settlement . . . • § "^^-^
Illustrations of the second of the foregoing rules § 496 — 9
1. Cases constituting the first exception to the second of the
foregoing rules ... § 500
2. Cases constituting the second exception . § 501
3. The third exccptioji ... § 502
SAID,
Supplied ....
Not supplied ....
SEISIN defined ....
See Livery — Ownership.
SO LONG AS, denoting a special or collateral limitation
SO THAT,
Is one of the three technical expressions introducing a condition
subsequent . • • • §16, IS
Introducing a special or collateral limitation of the irregular kind
§ 39
SON,
Construed a word of limitation . . • §537
SPRINGING INTERESTS,
Definition of a limitation of a springing interest
— in rcrt/ property . . • §117
— of the first kind . . . § 119
— of the second kind . • § 1-0
— of the third kind . • • §121
— of the fourth kind . . §123
— of the fifth kmd . • . § 124
Vol. H.— 50
§725
§ 691
§47
35, 41
486 INDEX.
SPRINGING INTERESTS— co?i/m?^cf/.
— of the sixth kind . . . §125
— of the seventh kind . . §126
— in 7J£'r,90/?«/ property . . . § 127b
Limitations of these interests in real property can only be by wuy
of use or devise, and are termed springing uses and execulory
devises . . . . . § 127a
Not expedient to extend the term to conditional limitations § 152
J)isti)iguished from others, and vice versa.
Danger of confounding the second, third, and fourth kinds
of limitations of springing interests with contingent re-
mainders . . . • § 122
See Remainders — Contingent Remainders.
Limitations of vested interests subject to a chattel interest,
must be distinguished from the second, third, fourth, and
fifth kinds of limitations of springing interests § 124a
See Vested.
Cases of an estate tail by implication simply, or both by im-
plication and by analogy to the rule in Shelley's case, loith
a vested remainder over, distinguished from cases of a life
estate, with a limitation over of a springing interest. See
Part II. Ch. 11, passim.
See Conditional Limitation . . § 263 — 275
Reversion.
SUCH,
Supplied . . . . • § 725
Not supplied .... § 691
See Issue.
SUPPORT of contingent remainders,
Contingent ret)iai?ider /or yea?'s needs no preceding freehold § 765a
Contingent freehold remainder must be supported by a preceding
freehold . . . . . § 757
It must be originally preceded by, and must continue to be
preceded by, a vested freehold capable of enduring till the
vesting of the remainder . . §758 — 765a
Not necessary that the preceding estate should be vested in pos-
session. . . . . • § 765b
A preceding estate is not necessary where the legal estate is in
trustees. .... § 765c
SURVIVOR— Survivorship,
Devise to two, and the survivor, and the heirs of such survivor § iy7a
Bequest over, in case of death without issue, to the survivor
— without words of limitation . . §553
— with words of limitation . . . §555
To what /?mo6/ it refers . . § 284, note (6)
Where survivorship would have been implied in the words intro-
ducing a vested remainder . . § 3 IS — 350
TERINI of years,
Definition of a legal interest for a term of years . § 66
Definition of an equitable interest for a term of years . § 68
Freehold after IK iexm o{ ye^xi'H . . §119 — 124a
INDEX. 187
TERM of years, — coiitinned.
See Vested . . . . § 2 15— 2.57
Personal Estate.
Quasi Remainders.
THEN,
Not denoting a condition precedent, but referring only to tlie pos-
session or cnjovmcnt ... § 3 IG
TILL,
Denoting a special or collateral limitation of the direct kind
§ 34—5,41
TIME for vesting
— of contingent remainders . • . §702
— of other executory interests . . § "OG — 8
TRANSMISSION of executory interests.
Division of executory interests with reference to the capacity of
transmission existmfj; at the time ofllteir limitation § 742
Transmissible in all events . . • § "'^^
Untransmissible ... § 744
Transmissible in some events only . . § 745
Division of executory interests with reference to the capacity of
transm,ission existing at tfie dcatti of tlie persons entitled
thereto . . ■ • . § 74G
Transmissible .... § 747
Untransmissible . . . • § '^'^^
TRUSTEES,
Trust estate to preserve contiiigent remainders . § 781
Forms an exception from the first class of contingent remain-
ders . . . . . § 258
Mere right of entry is sufficient to preserve contingent re-
mainders . . . • § 7S2
Where the appointment of a trustee is an indication of vesting § 345
UNTIL,
Denoting a special or collateral limitation of the direct kind
§ 34—5, 41
UPON,
Devise or bequest to v^. upon &.c. . . § 2 85 — G, 346
USES,
Shifting . . . . . § 150
Springing . . . • § 127a, 150,152
VESTED INTERESTS, generally.
Vested Interests in general divided and defined.
Division . . • • . § 75
Two modes of defining vested and executory interests § 75a
Definition of vested interests with reference to the riglit of posses-
sion or enjoyment,
— of a vested interest or actual estate, § 7G. See also § 48
— of a y;rf.sf/i/ vested interest . . . § 77
— of a/<//i<re vested interest . . §78
When an estate is vested in possession . . § 79
in right or interest . § SO, 81
4SS INDEX.
VESTED INTERESTS gcncvaWy—contiiiited.
Dcfinifion of vested interests ivithoitt reference to the right of pos-
session or enjoyment,
— of a vested interest or actual estate . . § 87
— of a present vested interest . . | 88
— oi Vi future vested interest in lands or tenements § 89
in chattels . . § 89a
Are most correctly defined without reference to the right of pos-
session or enjoyment . . . . § 91
Remarks on the distinction between di present vested interest and a
future vested interest . . . • § 7Sa
Vesting inchoately or inceptively • . §82
Of Limitations of Present Vested Interests, when
considered with reference simply to the posses-
SION OR Enjoy:ment, or both.
Limitations of interests vested in possession, or iii enjoyment, or
in both . . . . . Hid
Limitations of^ vested interests
— in real estate, subject to a term for years . § Hie
— in real or personal estate, subject to a chattel interest of
w/2cer/r//;i duration . . . § Hlf
— in real or personal estate, subject in any other way to a
suspension of the possession or enjoyment, or both § 1 1 Ig
Of the construing an Interest to be Vested rather
than Contingent, according to the general Rule.
The Rule stated, and the reasons thereof explained.
The general rule as commonly stated . , § 200
as m.ore precisely stated . § 201
Reasons thereof; namely, —
1. Dcstructibility of contingent interests . §203
2. Abuse of property by the heir at law in the interim § 204
3. Unsettled state of the family whose interest is con-
tingent . . . . § 205
4. Want of provision for children of parents dying under
age of 21, to which vesting is postponed . § 206
Weight of this reason may be doubted . § 207
5. Want of provision for children in other cases where the
interest is contingent on account of the person § 208
G. Want of maintenance for the persons themselves, in
certain cases, to whom contingent interests are
given . . . . § 209
7. Leaning in favour of the free enjoyment and aliena-
tion of property ... § 209a
Jipplication of the rule to limitations in favour of a person of a
given character.
When an ultimate limitation in favour of an heir creates
a vested interest . . §210,211
a contingent interest . •. § 212
Devise to a person by any other description denotes a person
sustaining such description at the testator's death § 214
INDEX. 489
VESTED INTERESTS gencYa\\y—co7itinue(/.
JippUcaliun of the rule to legacies and jiortions apparenlly de-
pcndiiii,' on survivin<; parents, as a coiidilioii precedent.
See PoKTioNs.
*/Ipplicatioa of the rule to suhserjuent interests limited after in-
terests depending on a condition precedent . § 222a
Present Vested Interests subject to a Term of Years,
DISTINGUISnED FKOM VeSTEI) AND CONTINGENT REMAIN-
DERS, AND FROM SPKINGING INTERESTS.
4/? freehold after a tcrjn may be termed a remainder, so far as re-
gards the possession, with or without the beneficial interest
iiut it is not a remainder, properly so called . § 246
But is either a present vested interest subject to a term ; or
else a springins^ interest . . § 247
Where a freehold afterni a term is a present vested interest,
subject to a term . . . . § 248
— where it is limited on the effluxion of years . § 251
— where it is limited on the dropping of a life or lives, § 252
Freeholds after a term are called remainders by Fearne, in
some sense; and assumed to be such in several cases, \\\
some sense at least. But this assumption was extra-judi-
cial. And if Fearne assumes them to be remainders, pro-
perly so called, this would appear to be an oversight, § 253
The same remark applies to Butler . . § 254
Where a freehold after a term is a springing interest § 255
— where it is limited on the effluxion of years, nnd'iw
other cases . . . § 256 — 7
Certain other Cases of Vested Interests, distinguished
FROM Executory Intersts.
Cases where an uncertain event is made a part of the description
of the devisee or legatee
I. Where an uncertain event forms part of the original de-
scription . . . . ^2S1
II. Where an uncertain event forms an independent super-
added description . . • § ~S- — "*
Cases where a devise or bequest has reference to a future age or
an uncertain event which docs yoTf^rm part of the description
of the devisee or legatee, and there is no indication (f vating.
I. Where the conditional words are when, as soun as, at.,
upon, from and after . . § 285 — 6
The doctrine of the Civil Law . . § 287 — 9
II. Where the conditional words are if, in case, provided, § 290
1. In the case of /e^«c/c.y . . . §291
(1) payable out ofrealvsinle . § 292
{2) \rdyi\h\e out of personal esVdtc . §293
The doctrine of tlic Civil Law . § 294 — 5
2. In the case of real estate,
(1) Where the woxd:' provided^'' follows the devise,
and there is no limitation over . § 296
4 90 INDEX.
VESTED INTERESTS genera.\\y— continued.
(2) Where the word "provided" follows the devise,
and there is a Hmitation over . § 297
(3) "Where the word " i/" or the words " //i case"
follow the devise . . § 298 — 9
Distinciioji between the import of the words "if" and " in
case," and the import of the words "when," "as soon as,"
"at," "upon," " from and after " . . §300
Cases where the devise has reference to a lime or event certain,
and there are no indications of, or grounds for supposing, an im-
mediate vesting . . . . § 301
Cases where the devise or bequest has reference to a future age,
time, or event, -mor forming part of the original description of
the devisee or legatee; and there are indications of or grounds
for supposing an immediate vesting.
General proposition . . . • § '^^^
I. Where tlie time is not annexed to the gift itself § 310
1. Application of the distinction to legacies payable out
of personal estate . . . §311
Which are governed by the Civil Law § 311a
The doctrine of the Civil Law . . §312
Observations on the foregoing rule,
(1) With reference to cases where there is no gift
but in a direction to pay, &c. . § 314
(2) With reference to cases where the future period
is annexed both to the payment, possession, or
enjoyment, and to the gift itself . § 315
(3) With reference to the character of the distinc-
tion, which is commonly disapproved of § 316
But is in reality founded on one among many indi-
cations of the testator's intention . § 317
Quotation from Voet . . . § 318
2. Application of the distinction to real estate § 319, 320
3. Non-application of the distinction to charges on real
estate . . . . § 321 — 2
Non-application of the distinction to charges on real
estate, is no reflection against its soundness § 323
Reasons for the non-application thereof; namely,
(1) Non-existence of the money before the futnre
period ... § 324
(2) Favour shown to the heir . . § 325
(3) The common law is adhered to in the case of
lands . . . . . § 326
4. Application of the distinction to the case of legacies
charged on a mixed fund . . § 327
II. Where there is a gift of the whole intermediate income
§ 328—9
Doctrine of the Civil Law . . § 330
Reasons for the rule; namely,
1. Giving of interest shows intention to separate the
legacy from the residue . § 332
INDEX. 491
VESTED INTERESTS generally— con/mz/f-f/.
2. Intennediate income is given in respect of a vested
interest in the property itself . § 333 — 5
3. Ikit this constrnction of a gift of intermediate
income not being one that arises from necessary
implication, snch gift is not sufRcient to vest an
interest, apart from the leaning in favonr of vest-
ing . . " . § 336-7
And as the leaning in favonr of vesting is connter-
poised by other considerations in the case of charges
on real estate, the gift of the intermediate income
is insnfhcient to vest snch charges . § 338
But if a legacy charged on real estate is expressly directed
to vest before the day for payment, it will so vest § 339
III. Where executors are empowered to make advances out of
portions . • • • § 340
IV. Where the postponement is apparently from necessily, or
for the accomplishment of some special purpose unconnected
tvith a suspension of the property or ownership § 3 10a
V. Cases of residuary bequests on marriage . § 34 1
VI. Cases of particular bequests or devises where the period
is an uncertain one other than that of the attainment of a
given age • • • • § 342 — 3
VII. Wliere the event of attaining a given age, is introduced
by tvords importing a contingency, and constituting a con-
dition precedent ... § 344
VIII. Where a trustee is appointed iox the intermediate time
§ 345
Cases where the devise has reference to an event lohich would be im-
plied by the words introducing a vested remainder § 347 — 350
Effect of « limitation over.
I. Where the condition of attaining a certain age is introduced
by the words " if," '■ in case,'' ''provided," and it follows
the devise, and there is a devise over simply in the event of
the non-attainment of that age . . §,'^^J
Observations on the preceding cases, showing \\\e princi-
ple of the distinction between those cases where the
condition is the attainment of a certain age and those
where the condition is of another kind § 351a
Effect of the devise over in the above cases . § 352
The reason why the interest of the prior devisee, in cases fall-
ing within the above rule, is a vested interest § 353 — 4
Cases where the prior devisee was held to take a
vested interest on account of the devise over § 355
But these cases are not to be relied on § 356
The interest of the prior devisee must have been held
contingent, if there had been no devise over; and
the devise over could not render it vested § 357
II. Ertect of a devise over si?nply on the non-happening of the
event on which the prior devise is apparently made contin-
,rcnt . . . . . § 358
-192 INDEX.
VESTED INTERESTS geneYa.\\y—co?itmued.
1, Such a devise over docs not afford a necessary pre-
sumption that the prior devise is contingent § 359
2. But still it affords some presumption thereof § 3G0
Or, at all events, it affords no ground for supposing such
prior devise to be vested . . § 361
III. Devise over to s^irvivors of a class affords some presump-
tion of vesting .... § 362a
IV. Where a prior devise is apparently made contingent on
the attainment of a certain age, and there is a devise over
in case of death under that age without issue, after an
intermediate devise to the issue . . § 363
V. Where a similar prior devise is made, with a similar devise
over, but there is no intermediate devise to the issue
§ 364—5.
VI. Where tlie attainment of a certain age forms part of the
description of the legatee or devisee . § 366
Yt^eci oi subsequent explanatory ivords . . § 366a
Effect of an allowance for Tnaintenance.
I. Where the ivhole intermediate income is given, and there is
no lim,itution over . . . § 367
II. Where there is a limitation over . . § 368
III. Where /;crr/ only of the intermediate income is given § 369
Effect oi a power of appointment over real estate § 369a
Effect of a power of appointment over personal estate.
I. Gifts to a class, subject to a power of appointing among
them generally . . • § 370
1. Where no valid appointment is made, or only a partial
appointment . . . § 371
2. Where a valid appointment is made of the whole § 372
II. Where the power authorises a selection, and there is a
limitation over in default of appointinent . § 373
III. Where the gift is to such of a class as a person shall ap-
point, and there is 7io limitation in default of appointment
§ 374
VESTED REMAINDER. See Contingent Remainders.
WHEN, — Denoting a condition precedent . § 285 — 6
Not denoting a condition precedent, but referring only to the
possession or enjoyment . . • § 346
WHILST, — denoting a special or collateral limitation § 35, 41
WIFE, — Devise to testator's wife, if she shall so long continue his
widow, &c. . . . • § 260
WORD,— Supplied . . . . §243
Not supplied . . . . § 691
THE END.
V
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