AN ESSAY ON* THE LEARNING OF CONTINGENT REMAINDERS AND EXECUTORY DEVISES. By CHARLES FEARNE, Esq. BARRISTER AT LAW, OF THE INNER TEMPLE. THE TENTH EDITION; CONTAINING THE Notts, Cases, anti otfjcr Jtftatter atfocfc to tfjc former Coitions By CHARLES BUTLER, Esq. OF LINCOLN'S-INN, BARRISTER AT LAW. WITH AN ORIGINAL VIEW OF EXECUTORY INTERESTS IN &eal anfc personal property, COMPRISING THE POINTS DEDUCIBLE FROM THE CASES STATED IN THE TREATISE OF FEARNE, AS 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. II. LONDON: SAUNDERS & BENNING, FLEET STREET; AND STEVENS & NORTON, BELL YARD, LINCOLN'S INN. 1844. 1644 LONDON : WILLIAM STEVENS, PRINTER, BELL YARD, TEMPLB BAR. AN ORIGINAL VIEW OF EXECUTORY INTERESTS IN REAL AND PERSONAL PROPERTY. ^30-.*^-^* >--^ --_ « How excellent and difficult a thing it is, rightly to divide, especially in law, the learned do know." Co. Litt. 19 b. " A confusion of terms, in any science, tends to confound the science itself, by destroying that precision of ideas, that distinc- tion among its objects, which is the very groundwork of all knowledge: ' Nomina si perdas, certe distinctio rerum perditur.' " 1 Fearne, Coll. Jur. 238. " The mixture of those things by speech which by nature are divided, is the mother of all error. To take away therefore that error which confusion breedeth, distinction is requisite." Hooker's Eccl. Pol. B. V. c. 1, § 1. " The reason of the law is the life of the law." Co. Litt. 183 b. AN ORIGINAL VIEW or EXECUTORY INTERESTS IN REAL AND PERSONAL PROPERTY, COMPRISING THE POINTS DEDUCIBLE FROM THE CASES STATED IN THE TREATISE OF FEARNE, AS 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. PREFACE.* In submitting the following Essay to the indul- gent consideration 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 accu- rate knowledge of this subject is highly requisite to all who are engaged in the practice of convey- ancing. 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 indis- pensably and constantly necessary. * See Preface to the present edition of Fearne, in the First Volume. PREFACE. 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 overpowered by their multitude, and the subtlety of the distinctions between them/' And yet these constitute but a part, and, in their own na- ture, by no means the most difficult part, of the sub- ject of executory interests. In the cases falling within the scope of the following sheets, the same words are frequently used in different senses; sometimes in a generic sense, at other times in a specific sense; some- times 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 par- ticular species of executory devises or uses is spoken of as if it included the whole body of executory limitations. Cases essentially dissimilar to each other are often improperly 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, with- out the necessary qualifications. Dicta and opi- nions 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. * 2 Bligh, 50. PREFACE. Some decisions are really at variance with others ; while many more appear to be conflicting, when in reality they admit of reconciliation. And the fre- quent 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 con- sideration 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 concep- ceptions. 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 other- wise have been set at rest for ever, have been liti- gated again and again. In short, a general and most baneful ignorance has prevailed, which the vague- ness and endless discrepancies of the books, have ren- dered inevitable to most persons, and excusable in all. The absence of accurate divisions and definitions of the various kinds of interests, conditions, and limitations, has been at once the necessary conse- quence, and the most prolific source, of the ignorance and misapprehension that have so generally pre- vailed. 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 complete view of the whole sub- ject. And it has been the most prolific source of that ignorance and misapprehension ; because, ac- curate divisions and definitions are as essential for the assistance of the student and the practitioner, in this abstruse and intricate subject, as are the defi- nitions of the several parts of speech, and the ar- PREFACE. rangement of nouns into declensions, and verbs into moods and tenses, in a Greek grammar, for the assistance of the student in classics : and the state of perplexity and confusion which has been so com mon, in regard to executory interests, has been as unavoidable as that which the student in classics would experience, 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 o-iven the whole of it a censorious complexion, utterly repugnant to his feelings. In some lew 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 Trea- tise to which these pages are subjoined. But, gene- rally speaking, he has avoided so disagreeable a task ; and he has carefully abstained from specifi- cally noticing any misapprehension or oversight in living authors, lest, possibly, he might be inflicting 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 fol- lowing Essay has been, to divide or analytically ar- range the various kinds of interests, conditions, and limitations, in such a way as to exhibit their intri- cate variety at one perspicuous view ; — to frame cor- rect definitions of them, so as generally, yet clearly, PREFACE. to distinguish 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 miscellane- ous points, as might seem to be required, by means of precise rules and propositions, supported and illus- trated by abstracts of cases; — to point out the grounds andreasonsof theseveral distinctions; — and todeduce general principles from " a crude discordant mass' 1 of decisions, " long permitted to accumulate in silent and indescribable confusion;''* — and thus to give an accurate, well-defined, and perspicuous view of execu- tory interests, reconciling and harmonizing, to the ut- most possible extent, apparently clashing cases, jar- ring dicta, and discordant passages, and commending itself to reason and the analogy of law. Such is the attempt made in the following pages. How far it is successful, it remains for others to decide. Some of the definitions are rather of the length of descriptions. 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 defined, 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 Hayes on Limitations, Introd. p. 18. PREFACE. 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 deci- sions by Fearne and Roper, and in one or two in- stances, by some other writer. But he has not im- plicitly adopted or relied upon the rules or proposi- tions which the}^ have deduced from the cases, but has made or added such qualifications or modifica- tions of those rules or propositions, or deduced such fresh conclusions from the earlier cases, as seemed to be requisite, upon a careful consideration of their abstracts of those cases, and of the later cases ab- stracted 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 adhering to the words of the PREFACE. 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, by enabling him to dis- cern, at once, whether the case before him is go- verned by previous cases, or may be distinguished from them. To enable him to do this, it was neces- sary to specify the grounds on which these cases were decided, as well as to state the cases them- selves : 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, instead 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 commenced 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 far from PREFACE. 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 act mil decisions of the Judges, as distinguished from their extra-judicial dicta ; because they have had the immense advantage of hearing both sides of the ar- gument ably discussed ; and, therefore, he has always striven to reconcile their decisions with each other, and with principle ; and in the very few instances in which he has ventured to question the soundness of a decision, he has done so with extreme reluctance. And with respect to the text books, he has gladly availed himself of the authority of such standard works as Coke upon Littleton, Sheppard's Touch- stone, Blackstone's Commentaries, 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 copied 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 page, are printed both at the beginning and ending of the points sup- ported by such authorities. This plan was adopted out of caution, in order that in considering any par- ticular 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, insomuch, that in PREFACE. 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 perhaps 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 unfeigned diffidence, that he ventures to submit these pages to the judgment of the profession. He does so in the humble hope, that, bearing in mind the fallibility of those who cri- ticise, as well as of those whose writings are the sub- jects 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 well 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 FOLLOWING ISSSag on Stfccutorg Sntertftd. PART I. THE VARIOUS KINDS OF INTERESTS, AND THE DIF- FERENT SORTS OF CONDITIONS AND LIMITATIONS ON WHICH THEY DEPEND, OR BY WHICH THEY ARE CREATED OR AFFECTED, ANALYTICALLY AR- RANGED, DEFINED, AND DISTINGUISHED. CHAPTER I. THE DIFFERENT KINDS OF CONDITIONS ON WHICH INTERESTS MAY DEPEND, OR BY WHICH THEY MAY BE AFFECTED, ANA- LYTICALLY ARRANGED, 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 term. 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 subsequent. 13. Definition of a condition precedent. 14. Definition of a mixed condition. 15. Two forms of conditions subsequent. b 20 21. 22. AN ANALYSIS OF THE FOLLOWING 16. Definition of a condition subsequent of the concise or implied form. 17. Definition of a condition subsequent of the unconcise or explicit form. 18 19 The two forms of conditions subsequent illustrated. Definition of a mixed condition of the destructive and creative kind. Mixed conditions sometimes termed conditions precedent, and sometimes conditions subsequent. Mixed conditions distinguished from certain others. Definition of a mixed condition of the destructive and acce- lerative kind. 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 RENDEHKD DETERMINABLE, ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED. 24. Two senses of the word "limitation;" 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 implied 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 condition precedent. ESSAY ON EXECUTORY INTERESTS. iii CHAPTER III. THE DIFFERENT KINDS OF INTERESTS ANALYTICALLY ARRANGED, DEFINED, 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. 46. III. Definition of property or ownership . 47- IV. Definition of seisin. 48. V. When 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, equitable ownership, and mere possession. These may be either 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 equitable ownership and the possession are of si- milar 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 owner- ship is divisible. 59. XIV. The legal ownership or freehold and inheritance cannot be in abeyance. 60 — 62. Consequences of this doctrine. b2 IV AN ANALYSIS OF THE FOLLOWING SECTION II. The different Classes of Interests, in the widest 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 equitable 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. 74. X. Definition of a lien. 74a. Interests, in the widest sense of the term, in personal pro- perty. SECTION III. The different kinds of Interests, of the measure of Freehold, in Lands and Tenements, and Interests in Chattels, analytically arranged, de- fined and distinguished. 75. I. Division of freehold interests with reference to the ex- istence, &c. of the seisin, property, or ownership. 75a. Two modes of defining vested and executory interests. 1. Definition of vested and executory interests, with re- ference 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, 81. When an estate is vested in right or interest. 82. Vesting inchoately or inceptively. 84. Definition of an executory interest. 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. ESSAY ON EXECUTORY INTERESTS. 88. Definition of a present vested interest. 89. Definition of a future vested interest in lands or tenements. 89a. Definition of a future vested interest in chattels. 90. Definition of an executory interest — of a certain executory interest — and 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. 99. V. Division of interests with reference to the quantity of interest. 100. Definition of the absolute interest. 101. Definition of a limited interest. 102 — 3. The distinction between the absolute interest, and an abso- lute interest. 104. Foregoing definitions applicable to legal and equitable in- terests, and to real and personal estate. CHAPTER IV. BEMAINDERS IN GENERAL, AND OTHER, KINDS OF LIMITATIONS, IN THE DERIVATIVE SENSE, ANALYTICALLY ARRANGED, DE- FINED, 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 Qualified, with Definitions 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. 110. Distinction between directly qualified and indirectly qualified limitations. vi AN ANALYSIS OF THE FOLLOWING SECTION II. Division of Limitations into Immediate and Executory, with Definitions of those terms, and Observations thereon. 111. Division of limitations into immediate and executory. Ilia. The generic sense of the term executory devise. — The specific and usual sense of the term. 111b. 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 Interests, when considered with reference simply to the Possession or Enjoyment, or both. llld. I. Of limitations of interests vested in possession, or in enjoyment, or in both, llle. II. Of limitations of vested interests in real estate, subject to a term for years. 11 If. III. Of limitations of vested interests, subject to a chattel interest of uncertain duration, lllg. IV. Of other limitations of vested interests, subject to a suspension of the possession, or enjoyment, or both. 112. SECTION IV. A Fourth Division of Limitations into those forming the Subject of the following Sections. SECTION V. Of Limitations of Present Vested Interests, when considered with refer- ence to the modes in which they are constructed. 113. I. Of absolute limitations. 114. II. Of hypothetical limitations. 115. III. Of limitations in default of appointment. 116. SECTION VI. Of Limitations i n futtjro: and first, Of Limitations creating Powers of Appointment. ESSAY ON EXECUTORY INTERESTS. v ii SECTION VII. Of Limitations of Springing Interests. 117. Definition of a limitation of a springing interest in real 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. Definition 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 uses and executory devises. 127b. Definition of a limitation of a springing interest in personal property. SECTION VIII. Of Alternative Limitations. 128. Definition of an alternative limitation. 129. Different names given to these limitations. 130. Requisites in an alternative limitation. 131. The omission of the condition on which the 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. Torin, 6 Sim. 255. 136. The contingency sometimes implied in the context. Pearson v. Stephen, 2 Dow & Clark, 328. Observations thereon. via AN ANALYSIS OF THE FOLLOWING 136a. Any number of alternative interests may be limited in suc- cession. Laffer v. Edwards, 3 Mad. 210. Observations thereon. SECTION IX. Of Augmentative Limitations. 137. Definition thereof. 138 — 46. Illustrations. SECTION X. Of Diminuent Limitations. 147. Definition thereof. SECTION XL 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. Rackstraw v. Vile, 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. 150. They are termed shifting and springing uses and executory devises. 151. Reason of the term conditional limitation. 152. It is not expedient to extend the term " springing inter- ests " 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 ; ESSAY ON EXECUTORY INTERESTS. i x 160. Remainders distinguished from conditional limitations; 161. — from alternative limitations ; 162. — from the first six kinds of limitations of springing in- terests ; 163. — from augmentative limitations ; 164. — from diminuent limitations ; 165. — from the seventh kind of limitations of springing inter- ests ; 167. — and from limitations 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. l6Sa. 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 Whole, or the Immediate Part, of a Reversion. CHAPTER V. VESTED AND CONTINGENT REMAINDERS DEFINED AND DISTINGUISHED. SECTION I. Vested and Contingent 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 the possession or enjoyment itself. 173 — 4. The same defined with reference to the right of possession or enjoyment. 175 — 6. The same defined with reference to the possession or en- joyment itself. SECTION II. The Distinctions between Vested and Contingent Remainders pointed out, with Observations thereon. 177. Distinction as regards the mode of their creation, forming a true criterion. AN ANALYSIS OF THE FOLLOWING 178—9. Consequential distinctions pertaining to their nature and qualities. ISO. It is not the indefeasibleness of the right of possession or enjoyment, nor the absolute certainty of the possession or enjoyment itself, which distinguishes a vested re- mainder. 181—2. But still a vested remainder is only uncertain on account of the relative uncertainty of its own duration. 1S3 A remainder may be limited on a contingency, and yet be vested. SECTION III. The several kinds of Contingent Remainders defined, with Observations 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. PART II. RULES AND PRINCIPLES FOR DISTINGUISHING CER- TAIN CASES OF ONE KIND OF LIMITATION CRE- ATING AN INTEREST, FROM ANOTHER KIND TO WHICH THEY MAY APPEAR TO BELONG. CHAPTER I. OP THE CONSTRUING A LIMITATION TO BE A REMAINDER, RA- THER THAN AN EXECUTORY LIMITATION NOT BY WAY OF REMAINDER. 190. 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. ESSAY ON EXECUTORY INTERESTS. 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 certain 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. 211. Reason for the rule. O'Keife v. Jones, 13 Ves. 412. Doe d. Pilkington v. Spratt, 5 Bar. & Adol. 731. 212. II. When an ultimate limitation in favour of an heir creates a contingent interest. Marquis Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 1. 214. III. Devise to a person by any other description denotes a person sustaining such description at testator's death. Perry v. Phelips, 1 Ves. 250. Driver v. Frank, 3 Mau. & Sel. 25. Observations thereon. Adams v. Bush, 6 Bing. New Cas. 164. Stanley v. Stanley, 16 Ves. 491. Stert v. Platel, Bing. New Cas. 434. SECTION III. The Application of the Ride to Legacies and Portions apparently depending on Surviving Parents, as a Condition Precedent. General Principles. 215. When the leaning in favour of vesting is peculiarly strong. XI AN ANALYSIS OF THE FOLLOWING 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 necessity 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. 43S. Howgrave v. Cartier, 3 V. & B. 79. 221. II. Where no child survives, but words importing neces- sity of surviving are construed so as to admit those who did not survive. Powis v. Burdett, 9 Ves. 428. 222. III. Where no child survives, and none are admitted. Hotchkin v. Humfrey, 2 Mad. 65. Whatford v. Moore, 7 Sim. 574. S. C. 3 M. & C. 270. 222a. SECTION IV. The Application of the Rule to Subsequent Interests, limited 'after Interests depending on a Condition Precedent. 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. Odiousness 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. Hill v. Chapman, 1 Ves. Jun. 405. Davidson v. Dallas, 14 Ves. 576. ESSAY ON EXECUTORY INTERESTS. xih 230b. Taylor v. Langford, 2 Ves. Jun. 118. Godfrey v. Davis, 6 Ves. Jun. 43. Walker v. Shore, 15 Ves. 122. 230c. Hoste v. PraM, 3 Ves. 729- Barrington v. Tristram, 6 Ves. 344. Whitbread v. Lord Sf. Jo^ra, 10 Ves. 152. Gilbert v. Boorman, 11 Ves. 238. C7ar£e 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. Day v. Day, 16 East, 67; and observations thereon. 237. II. Where "or" is construed "and," in limitations of per- sonal estate. Mytton v. Boodle, 6 Sim. 457. Hawkins v. Hawkins, 7 Sim. 173. 237a. III. " And" not construed " or" in such limitations. Doe d. Everett v. Cooke, 7 East, 69. Doe d. Usher v. Jessep, 12 East, 288. 238. IV. Other cases where "or" is construed " and," in limi- 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 object 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 whom 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. X1T 242. AN ANALYSIS OF THE FOLLOWING 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, l6Ves. 168. Fry v. Lord Sherborne, 3 Sim. 243. Mocatto v. Undo, 9 Sim. 56. Bright v. Rowe, 3 M. & K. 316; and observations thereon. Torres v. Franco, 1 Russ. & M. 649 ; and observations thereon. 243. H. Words supplied, or the word " or" changed into " and." Clutterbuck v. Edwards, 2 Russ. & M. 577- Miles v. Dyer, 5 Sim. 435 ; and observations thereon. 243a. III. " Leaving" construed "having had" or " having." Marshall v. Bill, 2 Mau. & 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, DISTINGUISHED 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. 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. ESSAY ON EXECUTORY INTERESTS. xv 258. CHAPTER V. FIRST EXCEPTION FROM THE FIRST CLASS OF CONTINGENT RE- MAINDERS, FORMED BY THE USUAL LIMITATION TO TRUSTEES FOR PRESERVING CONTINGENT REMAINDERS. CHAPTER VI. SECOND EXCEPTION FROM THE FIRST CLASS OF CONTINGENT REMAINDERS. 259. I. Where a remainder limited on a contingent determi- nation of the preceding estate, may take effect on the certain expiration 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 A. in fee. 261. 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 Limitations. 262. The grand distinction between a remainder and a conditional limitation. 263. I. Where 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 irregular special or collateral limitation, and such subsequent interest is a remainder. 265 — 69. Illustrations. 270. HI. 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 XVI AN ANALYSIS OF THE FOLLOWING be good, if by way 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 re- mainder. 275. Illustrations. SECTION II. Practical Suggestions connected with 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 VIII. CERTAIN CASES OF ABSOLUTE AND DEFEASIBLE VESTED INTERESTS, DISTINGUISHED FROM SPRINGING INTERESTS, AND FROM THE SECOND, THIRD, AND FOURTH CLASSES OF CONTINGENT RE- MAINDERS. SECTION I. Cases ichere an Uncertain Event is made a part of the Description of the Devisee or Legatee. 281. I. Where an uncertain event forms part of the original de- scription. Duffield v. Duffield, 1 Dow & Clark, 268. Tucker v. Harris, 5 Sim. 538. 282 — 4. II. Where an uncertain event forms an independent super- added description. ESSAY ON EXECUTORY INTERESTS. xvii SECTION II. Cases where a Devise or Bequest lias reference to a Future Age or an Un- certain Event which, does not form part of the Description of the Devisee or Legatee, and there is no Indication of Vesting. 2S5 — 6. I. Where the conditional words are, when, as soon as, at, upon, from and after. 287—9- The doctrine of the Civil Lav/. 289a. Nash v. Smith, 17 Ves. 29. Gordon v. Rutherford, Turn. & Russ. 373. Ford v. Raivlins, 1 Sim. & Stu. 328. Knight v. Knight, 2 Sim. & Stu. 490. 290. II. Where 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 Immediate Vesting. SECTION IV. Cases where the Devise or Bequest has reference to a Future Age, Time, or Event, n ot 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. 311. 1. Application of the distinction to legacies payable out of personal estate, 311a. which are governed by the Civil Law. 312. The doctrine of the Civil Law. 313. Grant v. Grant, 3 Y. & C. 171. Blease v. Burgh, 2 Beav. 221. Observations on the foregoing rule, c XY111 314. AN ANALYSIS OF THE FOLLOWING (1) With reference to cases where there is no gift but in a di- rection to pay &c. . 315 (2) With reference to cases where the future period » an- nexed both to the payment, possession, or enjoyment, and to the gift itself. Kevernv. Williams, 5 Sim. 171- Porter v. Fox, 6 Sim. 485. , x ^ _,., Distinctions between Porter v. Fox, and Kevern v. WtU Hams. . ... 316 . (3) With reference to the character of the distinction, which is commonly disapproved of; 317. but is in reality founded on one among many indications of the testator's intention. 318. Quotation from Voet. 319—20. 2. Application of the distinction to real estate. Snow v. Poulden, 1 Keen, 186. 321—2. 3. Non-application 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. Where there is a gift of the whole intermediate income. 330. Doctrine of the Civil Law. 331. Batsford v. Kebbell, 3 Ves. Jun. 363. Edwards v. Symons, 6 Taunt. 213. Hanson v. Graham, 6 Ves. 239- Lane v. Goudge, 9 Ves. 225. Doe d. Dolley v. Ward, 9 Ad. & El. 582. Rolfe v. Sowerby, 1 Taml. 376. Breedon v. Tugman, 3 M. & K. 289- Watson 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 in- terest in the property itself. 336 — 7. 3. But this construction of a gift of intermediate income not being one that arises from necessary implication, such gift is not sufficient 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 insufficient to vest such charges. 339- But if a legacy charged on real estate is expressly directed to vest before the day for payment, it will so vest. ESSAY ON EXECUTORY INTERESTS. xix Watkins v. Cheek, 2 Sim. & Stu. 199. 340. III. Where executors are empowered to make advances out of portions. Vivian v. Mills, 1 Beav. 315. 340a. 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 pro- perty 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. Goulbourn 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. 341. V. Cases of residuary bequests on marriage. Booth v. Booth, 4 Ves. 399- 342 — 3. VI. Cases of particular bequests or devises where the period is an uncertain one other than that of the attainment of a given age. 344. VII. Where the event of attaining a given age is introduced by words importing contingency and constituting a con- dition precedent. 345. VIII. Where a trustee is appointed for the intermediate time. Branstrom 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 v. 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. Ceesar, Roll. Abr, 415, pi. 12. Edwards v. Ham- mond, 1 New Rep. 313. Broomfield v. Crowder, 1 New Rep. 313. Doe 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 is the attainment of a certain age, and those where the condition is of another kind. 352. Effect of the devise over in the above cases. c2 \\ AN ANALYSIS OF THE FOLLOWING - !. The reason why the interest of the prior devisee, in cases falling within the above rule, is a vested interest. 355. Cases where the prior devise was held to take a vested in- terest on account of the devise over. Doe d. Hunt v. Moore, 14 East, 601. Doe d. Roake v. NoweU, 1 Mau. & Sel. 327. Randall v. Doe d. Roake, 5 Dow. 202. 356. Hut these cases are not to be relied on. 357. The interest of the prior devisee must have been held con- tingent, if there had been no devise over; and the devise over could not render it vested. 35S. II. Effect of a devise over simply on the non-happening 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. 3G0. 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. Barries, 3 Meriv. 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. Russel 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 intermediate 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. Williams, 3 M. & K. 411. Machin v. Reynolds, 3 Brod. & Bing. 122. Farmery. Francis, 2 Bing. 151, and 2 Sim. & Stu. 505. Murkin v. Phillipson, 3 M.& K. 259. Phipps v. Williams, 5 Sim. 44. Phipps v. Ackers, 3 Clark & Fin. 702. Warter v. Warter, 2 Brod. & Bing. 349. 366. VI. Where the attainment of a certain age forms part of the description of the legatee or devisee. Bull v. Pritcliard, 1 Russ. 213. SECTION VII. Of the Effect of Subsequent Explanatory Words. 366a. Rule. Critchett v. Taynton, 1 Russ. & M. 541. ESSAY ON EXECUTORY INTERESTS. xxi SECTION VIII. Of the Effect of an Allowance for Maintenance. 367. I. Where the whole intermediate income is given, and there is no limitation over. 368. II. Where there is a limitation over. Vawdry v. Geddes, 1 Russ. & M. 203. 369. III. Where part only of the intermediate income is given. SECTION IX. Of the Effect of a Power 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 OF A REVERSION, DISTINGUISHED FROM CONTINGENT REMAINDERS OF THE THIRD CLASS, AND FROM SPRINGING INTERESTS. 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 such 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 failure of issue who are all inheritable under estates tail created by a previous instrument ; and such limitation is xxn AN ANALYSIS OF THE FOLLOWING a limitation of the whole or the immediate part of the reversion. 370. IV. Where a limitation is to take effect on an indefinite failure of issue, some of whom are not inheritable under such estates tail ; and such limitation is a limitation of a springing interest. 380. Exception, where the interval may be filled up by impli- cation. 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. Egerton v. Jones, 3 Sim. 409. 382. VI. Where a limitation is to take effect on an indefinite failure of issue, without restriction to issue by a particular marriage, who a.e 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, CONSIDERED IN RELATION TO THE FOURTH CLASS OF CONTIN- GENT REMAINDERS. 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 MEANING 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 children. ESSAY ON EXECUTORY INTERESTS. xxiii Doe d. Hallen v. Ironmonger, 3 East, 583. 388. Where the word heir is used for heir apparent or pre- sumptive. 389. II. In some other cases, the remainder does fall within the description of, but yet constitutes an exception from the fourth class of contingent remainders. CHAPTER XI. FIRST EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS, 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. 391. 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. I ^\1V AN ANALYSIS OF THE FOLLOWING SECTION II. The Terms and the Operation of the Rule explained. 402. Word heir or heirs a word either 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 effect thereof. 407. Different modes in which the subsequent interest is executed in the ancestor — 408. I. In possession, absolutely. 409. II. In interest. 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 fic- titious descents per formam 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 the 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. ESSAY ON EXECUTORY INTERESTS. xxv 435a. Answer to an objection drawn from the case of a fictitious descent per formam doni. 436. It is accurate and definite to say that the secondary or minor intent is sacrificed to effectuate the primary or para- mount intent. 437. Observations of Lord Redesdale 438. and Lord Denman. 439. They are just, but are not explanatory of the grounds of tbe Rule. 440 — 42. Why the technical words overrule the other words. 443. Wherein consists the incorrectness and vagueness of the common statement of the Rule. 444. Observation of Lord Eldon on the general and particular intent. 445. Observation of Butler on the general and particular intent. 44G. 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. 448. The Rule is indeed levelled against the intent, 449. but only against the secondary or minor intent. 450. Summary of the grounds of the Rule. SECTION IV. The Application and Non-application of the Rule in cases of Legal Estates and Tnists Executed. 451; Preliminary caution. 452. Three general rules or propositions may be laid down. 453. I. First general proposition, showing where the rule ap- plies, notwithstanding apparent indications to the con- trary. 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 tbird person. XXVI AN ANALYSIS OF THE FOLLOWING 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. Doe 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, 11 East, 548. 471b. 18. Tenant in tail after possibility of issue extinct. Piatt v. Powles, 2 Mau. & Sel. 65. 472. II. Second general proposition, showing where the rule applies, notwithstanding apparent indications to the contrary. 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. Kinch v. Ward, 2 Sim. & Stu. 409. Measure v. Gee, 5 Bar. & Aid. 910. Nash v. Coates, 3 Bar. & Adol. 839- 475. 3. Superadded words of distributive modification, without 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. Jessonv. Wright, 2 Bligh, 51. Doe d. Atkinson v. Fea- therstone, 1 Bar. & Adol. 944. Gretton v. Howard, 6 Taunt. 94, and observations thereon. 475. 4. Word sons or daughters, referring to the heirs, if only used in the sense of males or females, &c. Poole v. Poole, 3 Bos. & Pul. 620. 477. 5. Intention that the limitations shouldbein strict settlement. Douglas v. Congreve, 1 Beav. 59- 478. 6. Superadded words usually occurring in limitations to first and other sons in tail. Fetherston 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. Martin, 6 Sim. 266. 484. 2. Indirect explanation or indication. ESSAY ON EXECUTORY INTERESTS. xxvii 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 different sex. 488. (4) 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 certain 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 another 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. 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. &XV111 AN ANALYSIS OF THE FOLLOWING CHAPTER XIII. THIRD EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS, WHERE REAL ESTATE IS DEVISED TO A PERSON VM, TO HIS ISSUE; AND THE WORD ISSUE IS CONSTRUED TO RE A WORD OF 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 +he 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. 516. It is not manifested by superadding kindred words of limit- ation, or giving the ancestor an estate expressly for life, or without impeachment of waste. 517. Nor by introducing words of contingency which would have been implied. 518. Nor by prohibiting the ancestor from committing waste. 519. These indications are equivocal. 520. Another ground of the foregoing rules ; namely, two co- existing yet inconsistent intents, the one of which must be sacrificed to the other. 521. Definition of the primary or paramount intent. 522. Definition of the secondary or minor intent. 523 — 24. By what the primary or paramount intent is imported or evidenced. 525 — 26. Observations showing the expediency and propriety of construing the word issue as a word of limitation, in or- der to effectuate the primary or paramount intent, in cases falling within the first rule. 527. Observations showing the propriety of construing the word issue a word of purchase, in cases falling within the se- cond rule. ESSAY ON EXECUTORY INTERESTS. xxix 528. There is less presumption against construing issue a word of purchase, than there is against construing heirs a word of purchase, and especially heirs of the hody. 529. Illustrations of the first rule — Lyon v. Michel, 1 Mad. 473. Tate v. Clark, 1 Beav. 100, and observations thereon. 530. Illustrations of the second rule — Hockley v. Mawbey, 1 Ves. 142. Doe d. Davy v. Burnsall, 6 D. & E. 30. Doe d. Gilman v. Elvey, 4 East, 313. Merest v. James, 4 Moore, 327. S. C. 1 Brod. & Bing. 127, and observations thereon. Lees v. Mosley, 1 You. & Col. 589. Cur sham v. Newland, 2 Beav. 145. Doe d. Cooper v. Collis, 4 D. & E. 294, and observations thereon. 531. III. Trusts executory created by marriage settlement. 532. IV. Trusts executory created by will. 533. V. Where the two limitations are not both legal, or both equitable. 533a. VI. Where the issue cannot take by purchase, on account of the rule against perpetuities. 534-5. CHAPTER XIV. FOURTH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS, UNDER THE CY PRES DOCTRINE, WHERE REAL ESTATE IS DEVISED TO THE CHILDREN OF AN UNBORN CHILD. CHAPTER XV. FIFTH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS, UNDER THE CY PRES DOCTRINE, IN THE CASE OF 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. Wollen v. Andrewes, 2 Bing. 126, and observations thereon. Brooke v. Turner, 2 Bing. New Cas. 422. 536b. III. Limited number of life estates. Seaward v. Willock, 5 East, 598, and observations thereon. XXX AN ANALYSIS OF THE FOLLOWING CHAPTER XVI. BIX TH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT BKMAINDERS, UNDER THE CY PRE8 DOCTRINE, WHERE THE WORD SON OR CHILD, IN A DEVISE OF AN ESTATE IN RE- MAINDER, IS CONSTRUED AS A WORD OF LIMITATION. 537. The rule stated. Doe] d. Garrod v. Garrod, 2 Bar. & Adol. 87. Doe d. Jones v. Davies, 4 Bar. & Adol. 43. CHAPTER XVII. 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, DISTINGUISHED FROM CASES OF A LIFE ESTATE, AND A CON- TINGENT REMAINDER OVER, EITHER WITH OR WITHOUT AN ALTERNATIVE LIMITATION ; OR OF A LIFE ESTATE, WITH A LIMITATION OVER OF A SPRINGING INTEREST; OR OF A FEE, WITH A CONDITIONAL LIMITATION OVER. SECTION I. Rules for determining whether an Indefinite Failure of Issue is meant, , or merely a Failure of Issue within a certain Time, in cases of a Limi- tation 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. 539. II. But in bequests of personal estate before 1838, the words " die without leaving issue," were not so con- strued, though the other expressions were construed in that manner. Foley v. Irwin, 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 effect in the opposite event of there being no son. Loddingtonv. Kime, 1 Salk. 224. ESSAY ON EXECUTORY INTERESTS. xxxi 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. As where the devise is to the sons, daughters, or children of the prior taker. 544. (1) Where they would take the fee, the limitation over in default 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 Mau. & Sel. 88. Foster v. Lord Romney, 1 1 East, 594. Hay v. Lord Coventry, 3 D. & E. 83. 546. (3) Where they would take estates tail, such limitation over is a remainder capable of taking effect either 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. Selby, 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. Bentall, 2 Beav. 551 ; Kirkpatrick v. Kirkpatrick, 13 Ves. 476. 549. IX. Where the property is limited over on death under a certain age, without issue. Toovey v. Bassett, 10 East, 460. 550. X. Where a devise over is on death within a limited period, or without issue, and or is construed and. 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. Beachcrqft v. Broome, 4 D. & E. 441. xxxu 553—4 555. 556. 557- 558. 560 561 562 AN ANALYSIS OF THE FOLLOWING XIII Where a bequest over is to the survivor, without X^e^t over is to the survivor, with words of limitation. Massev v. Hudson, 2 Meriv. 1 30. XV Where property is bequeathed to two Bisters, with a limitation over, on the death of one without 1S sue, to her XvTwhere it is directed that the property shall go over after the prior taker's decease. XVII Where a limitation over is preceded by a bequest to such of the prior taker's issue as he shall appoint to. XVIII Where all the ulterior limitations are for life only. 509 ' Barlov, v. Salter, 7 Ves. 483. Boehm v. Clarice > 9 Ves. 580. XIX Where the devise over is for payment of debts. 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 Par. & Aid. 713. Doe d. King v. Frost, 3 Bar. & Aid. 546. _ 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 Russ. 382. 5G3. XXII. Enactment of 1 Vict. c. 26, s. 29. SECTION II. Cases of a Limitation over on an Indefinite Failure of Issue of a Prior Taker, where there is no Express Devise to his Issi?. 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, which is sacrificed to the former. 564c. How the primary or paramount intent is manifested. 564d— 8. This construction is adopted whether the prior limitation is expressly in fee, or indefinite, or for life. Chapman d. Scholes v. Scholes, 2 Chitty, 643. Demi d. Slater v. Slater, 5 D. & E. 335. Doe d. Nevile v. Rivers, 7 D. & E. 276. Doe d. Ellis v. Ellis, 4 East, 382. Tenny d. Agar v. Agar, 12 East, 252. Romilly v. James, 6 Taunt. 263. Dansey v. Griffiths, 4 Mau. & Sel. 61. Doe d. Jones v. Owens, 1 Bar. & Ad. 318. Doe d. Cadoganv. Ewart, 7 Ad. & El. 636. Machell v. Weeding, 8 Sim. 4. ESSAY ON EXECUTORY INTERESTS. xxxiii 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, eo nomine. 569. I. Where the ancestor takes an estate tail in possession. Franklin v. Lay, 6 Mad. 258. Murthwaite v. Barnard, 2 Brod. & Bing. 623. S. C. nom. Murthwaite v. Jenkinson, 2 Bar. & Cres. 359. 570. It is immaterial, in the supposed ease, whether the expres- sion in the devise over is "issue" indefinitely, or, " such issue." Denn d. Webb v. Puckey, 5 D. & E. 299- Frank v. Stovin, 3 East, 548. Marshall^. 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. Applin, 4 D. & E. 82, and observations thereon. Doe d. Cock v. Cooper, 1 East, 229, and obser- vations thereon. Ward v. Bevil, 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. Where (upon principle) the ancestor would take an estate tail in remainder. 577- Rules deduced by Mr. Jarman from the cases. 578 — 9. Observations on these rules. Parr v. Swindells, 4 Russ. 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 there can be no estate tail in remainder. 583. III. Where the ancestor will take an estate tail in possession. Mortimer v. West, 2 Sim. 274. xxxiv AN ANALYSIS OF THE FOLLOWING SECTION V. Cases of a Limitation over on a Failure of Children only of the Prior Taker, or on a Failure of Issue within a certain Time. 584. Rule stated. Doe d. Barnfield v. Wetton, 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 Lanesboroitgh 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 springing interest. ESSAY ON EXECUTORY INTERESTS. xxxv 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. 593b. I. Bequests to or for a person and the heirs of his body. 594. II. Limitations to or for a person, for life, with remainder to the heirs of his body, which would create an estate tail in real property. 595. Grounds of the rule. Elton v. Eason, 19 Ves. 73. Britton v. Twining, 3 Meriv. 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. Wilkinsonv. 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. Penny, 1 Meriv. 20. Att. Gen. v. Bright, 2 Keen, 57. Gibbs v. Tait, 8 Sim. 132. Turner v. Capel, 9 Sim. 158. 597a. V. Disposition in favour of a person and his issue, which would not create an estate tail in real property. 598. VI. Executory trusts in favour of a person and his issue. Stonor v. Curwen, 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. LIMITATIONS OF PERSONAL ESTATE TO OR IN TRUST FOR THE PERSONS WHO SHALL FROM TIME TO TIME BR ENTITLED TO REAL ESTATES ENTAILED. 601. I. Where such limitations are not by way of executory trust. c/2 XXX vi AN ANALYSIS OF THE FOLLOWING Fordyce v. Ford, 2 Ves. 536. Ware v. Polhill, 11 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 made 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," pre- clude any intendment contrary to law. 615. But they do not enable the Court to tie up chattels for any longer time. GlG. Duke of Newcastle v. Countess of Lincoln, 3 Ves. 387. Countess of Lincoln v. Duke of Newcastle, 12 Ves. 218. 617. Difference of opinion among the Judges. 618. Observations of Loid Loughborough. 619. Observations of Lord Eldon in the same case, 620. and in Jervoise v. Duke of Northumberland. 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. Burnett, 1 Bro. C. C. 274, was not an executory trust. Nor was Vauyhan v. Burslem, 3 Bro. C. 0. 101. Nor was Carr 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. ESSAY ON EXECUTORY INTERESTS. CHAPTER XXI. WORDS APPARENTLY AMOUNTING TO A MERE ALTERNATIVE LIMI- TATION, BUT IN REALITY CONSTITUTING A REMAINDER ; AND VICE VERSA. SECTION I. 638 — 45. A 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. Ashley v. Ashley, 6 Sim. 358. Doe d. Jearrod v. Bannister, 7 Mees. & W. 292. 648. II. Where such estate is contingent, or hypothetically limited. 649. III. Where such estate is in fee. CHAPTER XXII. CERTAIN CASES OF CONDITIONAL LIMITATIONS DISTINGUISHED FROM CASES OF MERE ALTERNATIVE LIMITATIONS ; AND xxxvn VICE VERSA. SECTION I. Certain General Rules suggested. 650. Introductory observations. 651 — 4. I. Where the prior interest in fee is not vested and abso- lutely limited, and the subsequent limitation is an alter- native. Murray v. Addenbrook, 4 Russ. 407. 655. II. Where the prior interest is vested and absolutely limited, and the subsequent limitation is a conditional limitation. Sturgess v. Pearson, 4 Mad. 413, and observations thereon. Broicne v. Lord Kenyon, 3 Mad. 410, and observations thereon. Bromhead v. Hunt, 2 Jac. & Walk. 463. Hoices v. Herring, M'Clel. & You. 295, and observations thereon. XXXV111 AN ANALYSIS OF THE FOLLOWING SECTION II. Certain Specific Rules as to the Period to which the Event of Death, 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 thereon. Cambridge v. Rous, 8 Ves. 12. Slade v. Milner, 4 Mad. 144. Ommaney v. Bevan, 18 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. M'Laughlin, 1 Pri. 264. Clarke v. Gould, 7 Sim. 197. Le Jeune v. he Jeune, 2 Beav. 701. Smith v. Smith, 8 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 Ves. 556. Webster v. Hale, 8 Ves. 410. Smart v. Clark, 3 Russ. 365. 662. V. Where the gift over is not simply on the event of death. 663. Grounds of the rule. Doe d. Liffordv. Sparrow, 13 Ves. 359. Gallandv. Leonard, 1 Swans. 161. S. C. 1 Wils. 129. Home v. Pillans, 2 M. & K. 15. Monteith v. Nicholson, 2 Keen, 719, and observations thereon. 664. VI. The same construction seems applicable 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. Bowes v. Scowcroft, 2 You. & Coll. 640, and observations thereon. CHAPTER XXIII. CERTAIN CASES OF VOID CONDITIONAL LIMITATIONS DEPENDING ON THE NON-DISPOSAL OF PROPERTY, DISTINGUISHED FROM LIMITA- TIONS IN DEFAULT OF APPOINTMENT. 667. The rule stated. Ross v. Ross, 1 Jac. & Walk. 158. Cuthbert v. Purrier, Jac. 415. ESSAY ON EXECUTORY INTERESTS. xxxix CHAPTER XXIV. LIMITATIONS OPERATING DIFFERENTLY IN REGARD TO ANOTHER LIMITATION 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 re- mainder or quasi remainder, as well as an alternative. Brownsword v. Edwards, 2 Ves. 243. 669. HI- 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 effect as such, though taking effect 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 limitation. 671. V. A mere conditional limitation will have the effect of an alternative, if the prior interest never vests. 67la. So also will a limitation of a springing interest of the seventh kind. 672. Principle of the third and fifth rules. Meadows v. Parry, 1 V. & B. 124. Murray v. Jones, 2 V. & B. 313. Machinnon v. Sewell, 2 M. & K. 202, and observations thereon. Mackinnon v. Peach, 2 Keen, 555. Wilson v. Mount, 2 Beav. 397- 672a. Exception. Routledge v. Dorril, 2 Ves. Jun. 356. 673. VI. Conditional limitation becoming a remainder in the room of a preceding remainder in fee. Doe d. Harris v. Howell, 10 Bar. & Cres. 197, 202. 674. VII. A future 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 re- mainder 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 interest, abstractedly considered, though it is a remainder as regards such less remote future interest. Doe d. Scott v. Roach, 5 Mau. & Sel. 4S2. xl AN ANALYSIS OF THE FOLLOWING 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. HI. Every more remote limitation may be a remainder as regards a prior limitation, though not limited next after it. Doe d. Herbert v. Selby, 2 Bar. & Cres. 926. CHAPTER XXVI. LIMITATIONS INTENDED TO OPERATE IN DIFFERENT WAYS IX 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- 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 different portions of property. 686. Objection. 687. Malcolm v. Taylor, 2 Russ. & M. 416, and observations thereon. PART III. RULES AND PRINCIPLES RELATING TO MISCELLA- NEOUS POINTS IN THE LEARNING OF EXECUTORY INTERESTS. CHAPTER T. 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, ESSAY ON EXECUTORY INTERESTS. xli 689- and as regards the interest to be defeated. 690. 1. "Where the event happens under other circumstances than those specified, and the limitation is not a mere alter- native 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, generally, and not merely on the not leaving issue who can take under the prior limitations. Doe d. Rew v. Lucraft, 8 Bing. 386. Andree v. Ward, 1 Russ. 260. 692 — 93. II. Effect of the non-existence of the objects of a condi- tional 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. Groombridge, 6 Sim. 171. Alton v. Brooks, 7 Sim. 204, and observations thereon. CHAPTER II. OF THE EFFECT OF THE ORIGINAL INVALIDITY ON THE EVENTUAL IIV1 POSSIBILITY 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 the 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. CHAPTER 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. xlii AN ANALYSIS OF THE FOLLOWING 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. Mogg v. Mogg, 1 Meriv. 654, and observations thereon. CHAPTER IV. OF THE TIME FOR THE VESTING OF EXECUTORY INTERESTS NOT LIMITED BY WAY OF REMAINDER. SECTION I. The General Rule against Perpetuities stated and explained. 706. The rule stated. 707. Reason for fixing a limit. 708. Reason for adopting the limits fixed by the rule. SECTION II. Rules of a more Specific Character for determining whether or not a Limitation is too Remote. 709. I. A limitation must be such as must take effect within the prescribed period, if at all. 710. Hence limitations to children of persons not in esse at the date of the will are not good. Arnold v. Congreve, 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. II. 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. III. 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 limitation 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. ESSAY ON EXECUTORY INTERESTS. xliii Everest v. Gell, 1 Ves. 286. Chandless v. Price, 3 Ves. 98. Campbell v. Harding, 2 Russ . & M . 4 1 1 . Candy v. Cam/>- 6eW, 2 CI. & Fin. 421. Monkhouse v. Monkhouse, 3 Sim. 119. D«mfc v. Fenner, 2 Russ. & M. 566, and observa- tions 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 Deerhurst v. Duke of St. Allan's, 5 Mad. 232. S. C. nom. Tollemache v. Lord Coventry, 2 Clark & Fin. 611. Ibbetson v. Ibbetson, 10 Sim. 495. Bankes v. Le Despencer, 10 Sim- 576. 722. VII. Where the vesting of a devise or bequest to a class is suspended till a certain age, and some of them may not be in esse till too late a period. Leake v. Robinson, 2 Meriv. 363. Porter v. Fox, 6 Sim. 485. Doddv. Wake, 8 Sim. 615. Newman v. Newman, 10 Sim. 51. Cromek v. Lumb, 3 You. & Coll. 565. 723. 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. 724. Objection answered. 725. VIII. Where a testator gives to some only of a class, to keep within the rule against perpetuities, and yet limits over on failure of the whole class. Ellicombev. 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 appa- rently intended to create a mere alternative interest. Trickey 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. Bristow v. Boothby, 2 Sim. & Stu. 465. 733 XIV. Powers of appointment among a class of persons, some of whom will probably come in esse within the pe- riod prescribed by the general rule. 734. Reason for the foregoing rule. Routledge v. Dorril, 2 Ves. Jun. 356. 735. XV. Powers of sale. AN ANALYSIS OF THE FOLLOWING SECTION III. Certain Points connected with the Doctrine of Remoteness. 73G. 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 whereo are void for remoteness. Tregonwell v. Sydenham, 3 Dow. 194. CHAPTER V. OF THE RESTRAINTS IMPOSED ON THE ACCUMULATION OF THE INCOME OF REAL AND PERSONAL ESTATE ; AND OF THE DES- TINATION OF INCOME RELEASED FROM ACCUMULATION OR ACCRUING BEFORE THE VESTING OF AN EXECUTORY DEVISE OR BEQUEST. SECTION I. The Accumulation allowed before the Statute. 738a. The rule stated. Lord Southampton v. Marquis of Hertford, 2 V. & B. 54. Marshall v. Holloway, 2 Swans. 451. SECTION II. The Periods to which, except in certain cases, Accumulation is restricted by the Statute. 73Sb. Origin of the statute 39 & 40 Geo. III. c. 98. 738c. Enactments thereof. SECTION III. Observations and Decisions respecting the Restrictions imposed by the Statute. 738d. I. The statute applies even to accumulations in favour of persons taking vested interests. 738e. II. It applies even where accumulation is not directed. 738f. III. Accumulations are void only as to the eventual excess. 738g. IV. Accumulation void after 21 years from testators death, though it has 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. ESSAY ON EXECUTORY INTERESTS. xlv SECTION IV. The Saving Clause in the Statute. 738i. Words of the Act. 738j. Meaning 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 Executory 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 in- come of personal estate, or only a partial disposition which is not for the benefit of the person to whom the executory bequest is made. Glanvil v. Glanvil, 2 Meriv. 38. 740a. III. Where the intermediate income of personal estate is partially disposed of for his benefit. Harris v. Lloyd, Turn. & R. 310. 741. IV. Where there is a residuary devise or bequest. Phipps v. Williams, 5 Sim. 44. S. C. nom. Ackers v. Phipps, 3 Clark & Fin. 667 ; 9 Bligh, 430. SECTION VI. The Destination of the Income released from Accumidation by 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. 74ld. II. Where it goes to the residuary devisee or legatee. Grounds of the rule. Crawley v. Crawley, 7 Sim. 427- 741 e. III. Where it goes to the heir or next of kin. Grounds of the rule. M'Donald v. Brice, 2 Keen, 276. Eyre v. Marsden, 2 Keen, 564. 742. AN ANALYSIS OF THE FOLLOWING CHAPTER VI- 0F T HE TRANSMISSION OF EXECUTORY INTERESTS. I. Division of executory interests with «f^^^ city of transmission existing at the time of then linuta- tion. 743. 1. Transmissible in all events. 744 2. Untransmissible. 745 ' 3. Transmissible in some events only. 7 46 II. Division of executory interests with reference to the capacity of transmission existing at the death of the per- sons entitled thereto. 747. 1. Transmissible. 748. 2. Untransmissible. CHAPTER VII. OF THE ALIENATION OF EXECUTORY INTERESTS. 749_50. I. By assignment in equity. 751. II. By release. 752. HI. By devise before the stat. 1 Vict. c. 60. 753. By devise under stat. 1 Vict. c. 26, s. 3. 754—6. IV. By estoppel and conveyance. 756*. Doe d. Brune v. Martyn, 8 Bar. & Cres. 527- Doe d. Christ- masy. Oliver, 10 Bar. & Cress. 187, 190. CHAPTER VIII. OF THE SUPPORT OF CONTINGENT REMAINDERS. 756a. Contingent remainder for years needs no preceding free- hold. 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 interest 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 remainder. ESSAY ON EXECUTORY INTERESTS. xlvii 763. 4. A freehold interest limited by way of use or devise after a contingent interest only, is good, but not as a re- mainder. 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. OP THE DESTRUCTION OF CONTINGENT REMAINDERS AND OTHER EXECUTORY INTERESTS. SECTION I. The Destruction of Contingent 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 re- mainder 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, 771 — 3. whether he is beneficially entitled or not. 774 — 5. It is the destruction, not the transfer, of the particular estate, which destroys a contingent remainder. 775. 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 re- version. (5) By joining the remainder-man or reversioner in a con- veyance. xlviii rso. 7S0a AN ANALYSIS OF THE FOLLOWING ESSAY. 77Q 2 By descent of the inheritance on the particular tenant ' subsequently to the taking effect of the particular estate. 3. But not by the descent of the inheritance on the parti- cular tenant at the moment of the taking effect of the particular estate. . 1 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 Equitable Fee Simple Estate in Freehold Hereditaments, or an Equitable Subor- dinate Fee Simple in Copyholds. 783. 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 trust in tail may. SECTION III. The Destruction of Contingent Remainders 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. SECTION IV. The Destruction of Contingent Remainders created out of Estates pur auter vie. SECTION V. The Destruction of Executory Interests not limited by tcay of Remainder. 789. By recovery. 790. Not by mere alteration in estate ( xlix ) TABLE OF CASES STATED AND REFERRED TO IN THE FOLLOWING ESSAY * # * This comprises the cases inFearne, with the exception of some which are referred to by Canning, and are not directly connected with the subject ; and of certain others which are referred to in the " Original View, 1 ' by a general reference to the pages of Fearne where they are cited. Abingdon, Prowse v.. r. 155-6. Ackers, Phipps v. r. 429. v. Phipps, 188. 429. Aclom, Vanderzee v. r. 194. Adams v. Bush, 81. v. Savage, r. 228. Addenbrook, Murray v. 332. — r. 157. Adolphus, Gordon, v. r. 126. Agar, Tenny d. Agar v. 287. Airey, Ellison v. r. 92. Aislabie v. Rice, r. 385. Aiton v. Brooks, 381. Alban's (Duke of), Lord Deerhurst v. 401. Allanson v. Clitherow, r. 297. Allen, Barnes v. r. 27. 434. — ; — (Doe d.) v. Ironmonger, 203. Allgood v. Withers, r. 243. Ambrose, Hodgson v. r. 225. Amherst v. Donelly, r. 127. Andree v. Ward, 379. Andrewes, Wollen v. 265. Andrews v. Fulham, r. 361. Applin, Doe d. Blandfordr. r. 293. Archer, Lamb v. r. 395. Archer's case, r. 239. 445. 447. Arnold v. Congreve, 393. Ascot, Jermyn v. r. 383. Ash, Massenburgh, v. r. 360. Ashley v. Ashley, 329.— r. 395. Atkins v. Hiccocks, r. 149. Atkinson v. Hutchinson, r. 270. v. Turner, 428.— r. 170. (Doe d.) v. Fetherstone, 234. Attorney-General v. Bright, 310. v. Crispin, r. 92. 164. v. Gill, r. 399. v. Sutton, r. 296. Austen v. Taylor, r. 244. Avelyn v. Ward, r. 358. 361. Ayton r. Ayton, r. 92. Vol. II. Backhouse v. Wells, r. 251. 255. 262. Bacon v. Proctor, 165. , Taylor, v. r. 158. Bagot, Brouncker v. r. 307. Bagshaw, Denn d. Radclyffe v. r. 136. 173. v. Spencer, r. 229. Baines, Crigan v. 341. Baker v. Bayley, r. 451. , Eastman v. 98. Baldwin v. Carver, r. 390. , Garth v. r. 229. 308. , Langley v. r. 296. Bale v. Coleman, r. 224. Bamfield v. Pophain, r. 296. Bankes v. Le Despencer, 402. v. Holme, 198. Banner v. Banner, 247. Bannister, Haley v. 421. , Doe d. Jearrad v. 330. Barbut, Tilbury v. r. 399. Barker, Maliru v. r. 194. v. Suretees, r. 97. Barley, Cruse v. r. 142. Barlow v. Salter, r. 282. Barnadiston, Carter v. r. 21. Barnard, Murthwaite v. 290. — — (Doe d.) v. Reason, r. 273. , Sitwell v. r. 150. Barnefield (Doe d.) v. Wetton, 302.— r. 71. Barnes v. Allen, r. 27. 434. , Skey v. 181. Barrington v. Tristram, 94. j Bassett, Toovey v. 279. Bath and Wells (Bp. of), Proctor v. r. 401. 411. Batsford v. Kebbell, 158. ' Bayley, Baker v. r. 451. 1 v. Bishop, 166. j Beachcroft v. Broome, 280. C TABLE OF CASES. Bean (Doe d.) f- Halley, r. 29,. Beauclerk v. Dormer, r. 395. Beaumont, Darbison d. Long 0. r. 203. Becklev v. Newland, r. 436. Bedford's (Earl of) case, r. 205. Bedford, Thon? v. r. 224. , Roe d. Thong v. 225. Bejushin, Colthirst v. r. 132-4. Belk v. Slack, r. 141. 334. Bengough r. Edridge, r. 391. Bennett v. Lowe, 303. — r. 395. r. Seymour, r. 136. r. Earl of Tankervile, 232.— r. 224. Bentall, Carters. 277. Ben von V. Maddison, r. 164. Bergavenny (Lady), Richards v. r. 230. Bevan, Ommaney v. 341. Beverley v. Beverley, r. 113. Beverly's (Provost of) case, 207. Bevil, Ward v. 295. Biddle v. Perkins, r. 414. Billings v. Sandom, r. 339. Billingsley v. Wells, r. 141. 335. Billington, Goodtitle v. r. 43. 57. 71. Bishop, Bayley v. 166. Blackall, Long v. r. 391. Blackborne v. Edgley, r. 296. Blackburne r. Stables, 245.— r. 230. Blake, Perrin v. r. 225. Blamire v. Geldart, 166. Bland r. Williams, 185. Blandford (Doe d.) v. Applin, 293. Blease v. Burgh, 150.— r. 94. 181. Blissett, Chapman v. r. 429. Blower, Lampley v. r. 271. 311. 443. 448. Boddington, Witts v. r. 194. Boehm v. Clarke, r. 282. Bolger v. Mackell, r. 150. Boodle, Mytton v. 100. Boorman, Gilbert v. 94. Booth v. Booth, 168. Boothby, Bristow ». 412. v. Vernon, r. 447. Boraston's case, r. 164. Bosville, Lord Glenorchy v. r. 251. 263. , Wealthy v. r. 71. Bousfield, Marshall v. 292. Bowes v. Scowcroft, 351. Boyce v. Hanning, r- 414. Boyle, Graves v. r. 92. Brachen, Tunstall v. r. 165. Bradford v. Foley, r. 382. Bradley, Lester v. 160. , Porter v. r. 271. Bradshaw v. Skilbeck, 313. Branstrom v. Wilkinson, 171. Breedon v. Tugman, 160. Brice, M'Donald v. 432.— r. 420. Briddon (Denn d.) v. Page, r. 395. Bridgewater (Duke of) v. Egerton, r.429 Briggs, Roe d. Clemett t-. r. 449. 451. Bright, Att.-Gen. v. 310. Bright v. Rowe, 104. Bristow v. Boothby, 412. v. Warde, 194. Britton v. Twining, 309. Bromhead v. Hunt, 337. Brooke v. Turner, 266. Brooking, Lloyd v. r. 446. Brooks, Aiton v. 381. , Goulbourn v. 166. Broom, Beacbcroft v. 280.^ Broomfield v. Crowder, 175. Broughton v. Langley, r. 224. Brouncker v. Bagot, r. 307. Brown (Doe d.) v. Holme, r. 43. 71. , Pells v. r. 51. Browne v. Lord Kenyon, 335.— r. 141. Brownsword v. Edwards, 356.— r. 102. 170. Bruere, Stuart v. r. 150. Brune (Doe d.) v. Martin, 438. Brydges V. Brydges, r. 229. Brymer, Reeves, v. v. 136. Buchanan, Russell v. 183. Bull v. Pritchard, 189.— r. 403. BiUock, Spencers. 167. v. Stones, r. 427-8. Burchell, King v. r. 251. 255. 292. Burchett v. Durdant, r. 203. Burdett, Powis v. 87. Burford v. Lee, r. 312, 395. Burgh, Blease v. 150.— r. 94. 181. Burley's case, r. 230. Burnell, Foley v. 321.— r. 60. 294. Burnsall, Doe d. Davy v. 259.— r. 44. 97. 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. Cadell v. Palmer, r. 391. Cadogan (Doe d.) v. Ewart, 28S.— r. 450. v. Kennet, r. 60. Caesar, Springs. 174. Cambridge v. Rous, 340. — r. 411. Camelford (Lord), Smith v. r. 193-4. Cameron, Knight v. r. 170. Campbell, Candy v. 397. v. Harding, 397. Candler (Doe d.) v. Smith, 232. Candy v. Campbell, 397. Capel, Turner v. 311. Carew, Lloyd v. r. 51. Carleton v. Leighton, r. 23. Carpenter, Tebbs v. r. 92. Carr v. Lord Erroll, 322.— r. 320. Carter v. Barnadiston, r. 21. v. Bentall, 277. , White v. r. 244. Cartier, Howgrave v. 86. TABLE OF CASES. li Carver, Baldwin v. r. 390. Carwardine v. Carwardine, r. 71. Case v. Drosier, r. 401. Catchmay v. Nicholls, r. 60. Chadock v. Cowley, r. 172. Chalie, Maitland v. 109. Chalmer, Lord Douglas v. 342. Chambers V. Chambers, r. 247. Chandless v. Price, 397. Chandos (Duke of) v. Talbot, r. 155-6. Chapman v. Blissett, r. 429. 443. 448. , Hill v. 91. d. Scoles v. Scoles, 286. Chatham (Earl of) v. Daw To thill, r. 308. Chatteris v. Young, r. 358. Chawney v. Graydon, r. 435. Cheek or Clerk v. Day or Davy, r. 240. Cheek, Watkins v. 163. Cheeke, Luxford v. r. 126. Child?;. Giblett, r. 341. Cholmeley v. Humble, r. 383. Cholmley's case, r. 123. Cholmondeley (Marquis) v. Lord Clin- ton, 76. Christmas (Doe d.) v. Oliver, 438. Chudleigh's case, r. 445. Clark or Cheek v. Day or Davy, r. 240. , Smart v. 346. , Tate v. 257. Clarke, Boehm v. r. 282. v. Clarke, 94. , Dicken v. 378. , Goodwin v. r. 395. v. Gould, 343. v. Ross, r. 165. v. Smith, r. 427. Clemett (Roe d.) v. Briggs, r. 449. 451. Clere's (Sir E.) case, r. 20. Clifden (Lord), Hope v. 84. Clinton (Lord), Marquis Cholmondeley ?'. 76. Clitherow, Allanson v. r. 297. Clutterbuck v. Edwards, 107. Coates, Nash v. 231. Cock (Doe d.) v. Cooper, 293. Cockerell, Hanbury v. r. 51. Cogan v. Cogan, r. 132. Cole (Doe 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 v. 262. Colt, Toldervy v. 358.— r. 50. Colthirst v. Bejushin, r. 132-4. Colyear, Doe d. Earl of Lindsey v. 229. Comberbach (Doe d.) v. Perryn, r. 274. 330.387. 390. Compton, Paul v. r. 92. Condon, Lowther v. r. 165. Congreve, Arnold v. 393. v. Congreve, r. 92. Congreve, Douglas v. 236.— r. 230. 307. Conway (Lord), Walpole v. r. 193. Cook, Linch v. r. 443. Cooke, Doe d. Everett v. 101. Cooper, Doe d. Cock v. 293. (Doe d.) v. Collis, 262. Corbet v. Tichborn, r. 443. Corbet's case, r. 383. Cornish, Goodright v. r. 440. Cosin, Tipping, r. 226. 229. Cotton v. Heath, r. 59.395. Coulsonw. Coulson, r. 225. Cousins v. Schroder, 167. Coventry (Lord), Hay v. 275. — r. 395. , Waring v. r. 414. Cowley, Chadock v. r. 1 72. Cradock, Holmes v. 378. — r. 50. Crawley v. Crawley, 432. — r. 420. Creber, Right v. r. 241. 390. Crigan v. Baines, 341. Cripps v. W T olcott, r. 141. Crispin, Att. Gen. v. r. 92. 164. Critchett v. Taynton, 190. Croker v. Trevithin, r. 384. Cromekt'. Lumb, 406. Crone v. Odell, r. 92. Crooke v. De Vandes, r. 399. Crowder, Broomfield v. 175. Crump v. Norwood, 242. — r. 241. Cruse v. Burley, r. 142. Cunningham v. Moody, r. 193. Curshamw. Newland, 261. Curtis v. Price, 226. Curwen, Stonor v. 312. Curzon (Lord), Perfect v. r. 87. Cusack v. Cusack, r. 246. Cuthbert v , Purrier, 355. Cuttler, Snowe v. r. 54. Dacre (Dowager Lady) v. Doe d. Lady Dacre, 276. Dafforne v. Goodman, r. 309. Daintry v. Daintry, 303. Dallas, Davidson v. 92.— r. 337. Dansey v. Griffiths, 288. Darbison d. Long v. Beaumont, r. 203. Davidson v. Dallas, 92.— r. 337. Davie's (Spittle and) case, r. 384. Davies v. Bush, r. 448. , Doe d. Jones v. 269. , Lowe v. 238. v. Speed, r. 21. 440. Davis, Godfrey v. 93. Davy (Doe d.) v. Burnsall, 259. — r. 44. 97. 294. , Cheek or Clark v. r. 240. , Kemp v. r. 165. Daw Tothill, Earl of Chatham v. r. 308. Dawson v. Killet, r. 165. Day, Cheek or Clark v. 240. , Right d. Day v. 99. Dean and Ch. of Westminster (Doe d.) v. Freeman, r. 14. el TABLE OF CASES. Deane v. Test, r. 181. 337. Deerhurst (Lord) v. Duke of St. At ban's, 401. QA Denn d. Radclyffe v. Bagshaw, r. lib 173. . v. Kemeys, r. 102. , d. Briddon v. Page, r. 395. d. Webb v. Puckey, 291-2. 445. d. Slater v. Slater, 287. Denny, Thrustout d. Small v. r. 278. Derby, Higgins v. r. 43. De Vandes *, Crooke, r. 399. Devisme v. Mello, r. 92. Dicken v. Clarke, 378. Dickenson, Dod v. r. 307. Difflis v. Goldschrnidt, r. 95. Dod v. Dickenson, r. 307. v. Dod, r. 263. v. Wake, 406. Dodson (Roe d.) v. Grew, r. 292. v. Hay, r. 157. Doe d. Allen v. Ironmonger, 203. Atkinson v. Fetherstone, 234. • Barnard v. Reason, r. 273. Barnefield ». Wetton, 302.— r. 71. Bean ». Halley, r. 297. Blandford v. Applin, 293. Brown v. Holme, r. 43. 71. Brune v. Martin, 438. Cadogan v. Ewart. 288.— r. 450. Candler v. Smith, 232. Christmas v. Oliver, 438. Cock v. Cooper. 293. Cole v. Goldsmith, 228. Comberbach v. Perryn, r. 274. 330. 387. 390. Cooper v. Collis, 262. Davy v. Burnsall, 259.— r. 44. 97. 294. Dean and Ch. of Westminster v. Freeman, r. 14. Dolley v. Ward, 159. Ellis v. Ellis, 287. Everett v. Cooke, 101. Fonnereau v. Fonnereau, r. 54. Garrod v. Garrod, 268. Gilman v. Elvey, 259. — r. 44. 294. 330. Hallen v. Ironmonger, 203. — r. 241. Harris v. Howell, 365. Herberts. Selby, 370.— r. 99. 361. Hunt v. Moore, 177. Jearrad v. 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 t>. Prigg, r. 141. Mussel v. Morgan, r. 71. 386. Nevile v. Rivers, 287. Pilkington v. Spratt, 75. Doe d. Planner v. Scudamore, I/O. . Roake v. Nowell, 177. Savile, Earl of Scarborough v. 8. Smith ?'. Webber, 283. Strong v. Goff, 241.— r. 234. Tooley v. Gunnis, r. 395^ Usher v. Jessep, 101 - 357 * Watson v. Shipphard.r. 358. Wheedon v. Lea, r. 164. Willis v. Martin, r. 193-4. 38/. Doe v. Dorrell, r. 390. %t. Laming, r. 241. v. Martin, r. 449. , Randoll d., v. Roake, 177. Dolley (Doe d.) v. Ward, 159. Donelly, Atnhurst v. 127. Donn v. Penny, 310. Dormer, Beauclerk v. r. 395. Dorrell, Doe v. r. 390. Dorril, Routledge v. 364. 413. ' Douglas (Lord) v. Chalmer, 341. , !„. Congreve, 236.— r. 230. 30/ . Dow, Thompson v. r. 165. Powler, Higgins v. r. 43. Drew, Walters, r. 71. 303. Driver d. Edgar v. Edgar, r. 52. 67. 44 o. v. Frank, 78. Drosier, Case v. r. 401. Drurv, Woodliff v. r. 39. Dubber d. Trollope s.Trollope, r. 230. Duffield v. Duffield, 136.— r. 73. 427. 1 Dugard, Manfield v. r. 164. Duke, Wheeler v. r. 249. I Dungannon, Vane v. r. 194. Dunham, Goodright d. Docking v. r. 272. 296. 300. 330. Dunk v. Fenner, 398. Durdant, Burchett v. r. 203. Dyer, Miles v. 108. Eason, Elton v. 308. Eastman v. Baker, 98. Edgar, Driver d. Edgar v. r. 52. 67. 445. Edge, Scatterwood v. r. 14. 129. 358. 440. Edgley, Blackbom v. r. 296. Edridge, Bengough v. r. 391. Edwards, Brownsword v. r. 102. 1 70. 356. , Clutterbuck v. 107. v. Hammond, 174. — r. 175. , Laffer v. 47. — r. 347. v. Symons, 158. Egerton, Duke of Bridgewater v. r. 429. v. Jones, 200. Ekins, Green v. r. 43. 247. Elkin, Pinbury v. r. 281. 434-5. Ellicombe v. Gompertz, 409. | Elliott v. Jekyl, r. 248. i Ellis (Doe d.) v. Ellis, 287. j , Knight v. r. 310. ! v, Selby, 277. Ellison v. Airey, r. 92. Elton v. Eason, 308. v. Elton, r. 144.170. TABLE OF CASES. liii Elvey, Doe d. Gilman v. 259. — r. 44. 294. 330. Enibrey v. Martin, r. 165. Ernes v. Hancock, r. 165. Entwistle v. Markland, r. 150. Erington, Read and Morpeth v. r. 205. Errissey, West v. r. 266-7. Erroll, Carr v. 322.— r. 320. Everest (Doed.) v. Cooke, 101. v. Cell, 397. Ewart, Doe d. Cadogan v. 288. Eyre v. Marsden, 433.— r. 450. Fairfield v. Morgan, 98. Farmer v. Francis, 186. Faulkener v. Hollingsworth, r. 150. Fenuer, Dunk v. 398. Fenwick v. Mitford, r. 205. Ferard, Lepine v. r. 396. Ferrers, Shirley v. r. 60. Fetherston v. Fethevston, 236. Fetherstone, Doe d. Atkinson v. 234. Fitzgerald, Genery v. r. 429. Foley, Bradford v. r. 382. v. Burnell, 321.— r. 60. v. Irwin, 271. Fonereau v. Fonereau, r. 157. 381. Fonnereau (Doe d.) Fonnereau v. r. 54. 206. Foorde, Hayes d. Foorde v. r. 225-6. 231. Ford, Fordyce v. 314. v. Rawlins, 143. Fordyce v. Ford, 314. Foreman, Harrison v. 380. — r. 337. Fortescue v. Abbot, r. 172. Foster v. Lord Romney, 275. — r. 395. Fountain v. Gooch, r. 52. 67. 445. Fowler, Keily v. r. 395. Fox, Lady Lanesborough v. r. 198. 303. , Porter v. 152. 405. Foy, Hutchins v. r. 165. v. J. Hynde, r. 383. Francis, Farmer v. 186. Franco, Torres v. 106. Frank, Driver v. 78. v. Stovin, 291. Franklin v. Lay, 289.— r. 257. Franks v. Price, 298. Frecker, Norton v. r. 451. Freeman, Doe d. Dean and Ch. of West- minster v. r. 14. French v. Caddell, r. 282. Frogmorton v. Wharrey, r. 212. Frost, Doe d. King v. 283.— r. 294. Fry v. Ld. Sherbourne, 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 v. r. 97. Garrod, Doe d. Garrod v. 268. Garth v. Baldwin, r. 229. 308. Gaskell v. Harman, r. 150. Gaunt, Target v. r. 282. 395. Gawler v. Standewicke, r. 155. 157. Geddes, Vawdry v. 191. — r. 403. Gee, Measure v. 231. Geldart, Blamire v. 166. Gell, Everest v. 397. Genery v. Fitzgerald, r. 429. Gerrard, Soule v. r. 97. Gibbsv. Tait, 311.— r. 339. Giblett, Child v. r. 341. Gibson v. Lord Montfort, r. 429. v. Rogers, r. 95. 429. Gilbert v. Boorman, 94. Giles v. Giles, 343. Gill, Att. Gen.r. r. 399. Gilman (Doe d.) v. Elvey, 259.— r. 44. 294. 330. Gilmore v. Severn, r. 94. Ginger d. White v. White, r. 296. Glanvil v. Glanvil, 428. Glasbrook, Woodward v. r. 102. Glenorchy (Lord) I'.Bosville, r. 251. 263. Glover v. Monckton, r. 279. Godfrey v. Davis, 93. Godolphin (Lord), Duke of Marlborough v. r. 195. 393. Godwin v. Munday, r. 165. Goff, Doe d. Strong v. 241.— r. 234. Goldschmidt, Diffles v. r. 95. Goldsmith, Doe d. Cole v. 228. Gompertz, Ellicombe v. 409. Gooch, Fountain v. r. 52. 67. 445. Goodman, DafForne v. r. 309. Goodright v. Cornish, r. 440. d. Docking v. Dunham, r. 272. 296. 300. 330. d. Lloyd v. Jones, 275. d. Revell v. Parker, 166. v. Pullyn,r. 231. v. Searle, r. 435. d. Broking v. White, r. 203. v. Wright, 237. Goodtitle v. Billington, r. 43. 57. d. Sweet v. Herring, 238. d. Peake v. Pegden, r. 271. d. Hayward t\ Whilby, r. 157. Goodwin v. Clarke, r. 395. Gordon v. Adolphus, r. 126. v. Levi, r. 194. v. Rutherford, 143. Gore v. Gore, r. 39. 427. Gossage i\ Taylor, r. 212. Goudge, Lane v. 159. Goulbourn v. Brooks, 166. Gould, Clarke v. 343. Gower v. Grosvenor, 324. — r. 360. Grafton (Duke of) v. Hanmer, r. 396. 451. 452. Graham, Hanson v. 158. — r. 153. Grant v. Grant, 150. liv TABLE OF CASES. Graves v. Boyle, r. 92. Gray, Lisle v. r. 239. Graydon, Chauncey v. r. 435. Green v. Ekins, r. 43. 247. v. Rod, r. 281. Grettonr. Haward, 234. Grew, Roe d. Dodson v. r. 292. Grieve, Griffiths v. 400. Griffiths, Dansey v. 288. v. Grieve, 400. v. Vere, r. 420. Groombridge, Prestwidge v. 381. Grosvenor, Gower v. 324. — r. 360. Gulliver v. Wickett, r. 51. 361. Gunnis, Doe d. Tooley v. r. 395. Gurnel v. Wood, r. 435. Habergham v. Vincent, 449. — r.450.451. Hake, King v. 85. Hale, Webster v. 346. Haley v. Bannister, 421. Hall, Walcot v. r. 157. Hallen (Doe d.) v. Ironmonger, 203. — r. 241. Halley, Doe d. Bean v. r. 297. Hallifax v. Wilson, 103. Hammond, Edwards v. 174. — r. 175. Wright v. r. 399. Hanbury v. Cockerell, r. 51. Hancock, Ernes v. r. 165. Hanmer, Duke of Grafton v. r. 396. 451. 452. Hanning, Boyce v. r. 414. Hanson v. Graham, 158. — r. 153. Hardcastle, Robinson v. r. 415. Harding, Campbell v. 397. Hardwick, Ring v. 415. Harman, Gaskellv. r. 150. Harpool, 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. Middlehurst, r. 263. Hasker v. Sutton, 101. Hastings, Burton v. r. 247. Haughton v. Harrison, r. 92. Haward, Gretton v. 234. ■ i\ Stillingfleet, 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. Foorde,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. r. 165. (Doe d.) v. Selby, 370.— r. 99. 361. Herring, Howes v. 338. , Goodtitle d. Sweet v. r. 238. Hertford (Marquis of), Lord Southamp- ton v. 417. Hervey v. M'Laughlin, 342. Hiccocks, Atkins v. r. 149. Higden v. Williamson, r. 436. Higgins v. Dowler or Derby, r. 43. Highway v. Banner, r. 247. Higman, Roberts v. r. 91. Hill t;. Chapman, 91. , Marshall v. 109. Hinckley v. Simmons, 339. Hiscox, Willis v. r. 240. Hoare v. Parker, r. 60. Hoath v. Hoath, r. 157. Hobson v. Trevor, r. 436. Hockley v. Mawbey, 258.— r. 43-4. 294. 330. Hodgeson v. Bussey, r. 309. Hodgson v. Ambrose, r. 225. v. Rawson, r. 165. , Studholme v. r. 428. Holcroft's case, r. 171, Holder v. Preston, r. 414. Holford, Palmer v. r. 392. Holkman, Jordan v. r. 126. Holland, Rawley v. r. 228. Hollingsworth, Faulkener v. r. 150. Holloway, Marshall v. 418. — r. 165. Holme, Bankes v. 198. Doe d. Brown v. r. 43. 71. Monkhouse v. r. 164. Holmes v. Cradock, 378. — r. 50. , Plunket v. r. 21. 302. 447. Home?'. 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. 366. 427. 443. 448. Horton v. Whittaker, r. 88. 358. Hoste v. Pratt, 94. Hotchkin v. Humfrey, 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, Hotchkin v. 88. Hungerford, Mildmay v. r. 451. Hunt, Bromhead t?. 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. TABLE OF CASES. lv Hutchins v. Foy, r. 164. Hutchinson, Atkinson v. r. 270. Hyde v. Perratt, r. 60. Hynde (J.), Foy v. r. 383. Ibbetson ?>. Ibbetson, 402. Ingram, Shepherd v. r. 95. Ironmonger, Doe d. Hallen v. 203. 241. Irwin, Foley v. 271. Ives v. Legge, r. 330. Jackson v. Jackson, r. 150. Pitt v. r. 229. James, Merest v. 260. — r. 44. v. Richardson, r. 203. 1 Romilly v. 287. Jeal v. Tichener, r. 165. Jearrad (Doe d.) v. Bannister, 330. Jeffery, Roe d. Sheers v. r. 271. Jefferies v. Reynous, r. 103. Jekyl, Elliot v. r. 248. Williams v. r. 248. Jenkinson, Murthwaite v. 290. Jennings v. Looks, r. 154. , Nottingham v. r. 400. Jermyn v. Ascot, r. 383. Jessep, Doe d. Asher v. 101. 357. Jesson v. Wright, 233.— r. 224. Jones (Doe d.) v. Davies, 269. , Egerton v. 200. v. Langhton, r. 246. , Goodright d. Lloyd v. 275. v. Morgan, r. 201. 224-5. 236. , Murray v. 361. , O'Keefe v. 7b. (Doe d.) v. Owens, 288.— r. 282. v. Torin, 45. v. Westcomb, r. 361. Jordan v. Holkman, r. 126. Judd, Hunter v. 182. 403. v. Judd, 182.— r. 142. 403. Kebbell, Batsford v. r. 158. Keene v. Pinnock, r. 276. 330. Keighley, Malim v. r. 194. Keily v. Fowler, r. 395. Kemeys, Denn v. 102. Kemp v. Davy, r. 165. , Whateley v. r. 247. , Wright v. r. 102. Kennet, Cadogan v. r. 60. Kent v. Harpool, r. 447. Kenyon (Lord), Browne v. 335. — r. 141. Kevern 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.— r. 294. v. Hake, 85. v. Rumball, r. 172. (The) v. Marq. of Stafford, 274. King v. Taylor, 341. i\ Withers, r. 164. 435. Kingsley, Roberts v. r. 247. Kirkpatrick v. Kirkpatrick, 278. Knight v. Cameron, r. 170. v. Ellis, r. 310. v. Knight, 144. Laffer v. Edwards, 47. — r. 347. Lamb v. Archer, r. 395. Laming, Doe v. r. 241. Lampet's case, r. 59. Lampley v. Blower, r. 271. 311. Lane v. Goudge, 159. v. Pannel, r. 212. 380. 451. Lanesborough (Ladv) v. Fox, r. 198. 303. Langford, Taylor v. 92. Langley v. Baldwin, r. 296. , Broughton v. r. 224. Langton, Jones v. r. 246. Lay, Franklin v. 289.— r. 257. Lea, Doe d. Wheadon v. r. 164. Leach, Thompson v. r. 446. Leake v. Robinson, 403. — r. 150. Le Despencer, Bankes v. 402. Lee, Burford v. r. 312. 395. v. Lee, r. 452. Lees v. Mosley, 260. Legat v. Sewell, r. 236. Le Gay, Morris v. r. 231. Legge, Ives v. r. 330. Legh, Schenck v. 110. Leigh v. Norbury, r. 250. , Stanley v. r. 43. , Wight v. r. 296. Leighton, Carleton v. r. 23. Le Jeune v. Le Jeune, 343. Lemmon, Vachel v. Vachel and, r. 358. 360. Lennard, Stanley v. r. 297. Leonard, Galland v. 348. v. Earl of Sussex, r. 245. Lepine v. Ferard, r. 396. Lester v. Bradley, 160. L'Estrange, Love v. r. 164. Lethieullier v. Tracy, r. 88. 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 New- castle, 318.— r. 319, &c. , Duke of Newcastle v. 317. — r. 319, &c. Lindo, Mocatto v. r. 104. Lindsey (Doe d. Earl of) v. Collyer, 229. Lisle v. Gray, r. 239. Liversage (Doe d.) v. Vaughan, r. 395. Lloyd v. Brooking, r. 446. v. Carew, r. 51. , Harris v. 429. Loddington v. Kime, r. 43. 262. 272. 330. lvi TABLE OF CASES. Long?-. Blackall, r. 391. , Prescott v. r. 94. (Doe d.) v. Prigg, r. 141. Longdon v. Simpson, r. 420. Looks, Jennings v. r. 154. Love v. V Estrange, r. 164. Lovie's (Leonard) case, r. 193. Lowdall, Pawsey V. r. 450. Lowe, Bennett v. 302.— r. 395. v. Davies, 238. Lower, Weale v. r. 196. 438. Lowther v. Condon, r. 164. Lucas, O'Neile v. 432. Lucraft, Roe d. Rew v. 379. Lumb, Cromek V. 406. Luxford v. Cheeke, r. 126. Lyddon, Gardner v. 39. Lyon v. Michell, 257— r. 310. Lytton v. Lytton, r. 201. Machell». Weeding, 289. Machin v. Reynolds, 185. Mackell, Bolger v. r. 150. Mackinnon v. Peach, r. 281. Sewell, 362. Maddison, Benyon v. r. 164. Main, Walker v. r. 165. Maitland v. Chalie, 109. Malcolm v. Taylor, 372. Malim v. Barker, r. 194. v. Keighley, r. 194. Mandevile's case, r. 212. 215-6. Manfield v. Dugard, r. 164. Manning v. Herbert, r. 165. Manning's case, r. 59. Markland, Entwistle v. r. 150. Marks v. Marks, r. 51. Marlborough (Duke of) v. Lord Godol phin, r. 195. 393. Marsden, Eyre v. 433. Marshall v. Bousfield, 292. v. Hill, 109. v. Holloway, 418. — r. 165. Marten, North v. 239. Martin, Doe d. Brune v. 438. , Doe v. r. 449. , Embrey v. r. 165. , Doe d. Willis v. r. 193-4. 387. Massenburgh v. Ash, r. 360. Massey v. Hudson, 281. — r. 280. Masterman, Sayer v. r. 236. Matthews v. Temple, r. 387. Maule, Stone v. 313. Maundrell v. Maundrell, r. 193. Mawbey, Hockley v. 258. — r. 43-4. 294. 330. M'Donald v. Brice, 432.— r. 420. Meadows v. Parry, 361. Measure v. Gee, 231. Mello, Devisme v. r. 92. Meredith v. Meredith, r. 390. Merest v. James, 260. — r. 44. Messenger, Middleton v. r. 92. Michell, Lyonr. 257.— r. 310. Middlehurst, Hart v. 263. 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. 163. Milner, Slade v. 341. Milward, Rudhall v. r. 383. Mitford, Pibus v. r. 228. Mitforth, Fenwick v. r. 205. M'Laughlin, Hervey v. 342. Mocatto v. Lindo, r. 104. Mogg v. Mogg, 388-9. r. 263. 451. Monckton, Glover v. r. 279. Monkhouse v. Holme, r. 164. v. Monkhouse, 398. Montagu v. Nucella, 45. Monteith v. Nicholson, 350. Montfort (Lord), Gibson v. r. 429. Moody, Cunningham v. r. 193. Moore et ux. v. Hawkins, r. 437. -, Doe d. Hunt v. 177. , Whatford v. 88. Moorhouse v. Wainhouse, r. 435. Morgan, Fairfield v. 98. v. Gardiner, r. 165. , Jones v. r. 201. 224-5. 236. , Doe d. Mussel v. r. 71. 386. Morpeth (Read and) v. Erignton, r. 205. Morris v. Le Gay, r. 231. , Venables v. r. 229. Morse v. Lord Ormonde, 284. — r. 296. Moseley, Lees v. 260. Mortimer v. West, 301. Mount, Wilson v. 364. Munday, Godwin v. r. 165. Mundy, Weddell v. r. 102. Murkin v. Phillipson, 187. Murray v. Addenbrook, 332. — r. 157. v. Jones, 361. v. Tancred, r. 151. Murthwaite v. Barnard, 290. v. Jenkinson, 290. Mussel (Doe d.) v. Morgan, r. 71. 386. Mytton v. Boodle, 100. Nandick v. Wilkes, r. 246. Napper v. Sanders, r. 88. 113. Nash v. Coates, 231. v. Smith, 143. Naylor, Harrison v. r. 155. Nelligan, Nowlan v. r. 339. Nevile (Doe d.) v. Rivers, 287. Newcastle (Duke of) v. Countess of Lincoln, 317. — r. 319, &c. , Countess of Lincoln e. 318. — r. 319, &c. Newland, Beckley v. r. 436. , Cursham v. 261. Newman v. Newman, 406. Nichol v. Nichol, r. 264. TABLE OF CASES. lvii Nicholls, Catchmay v. 60. Nichols v 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. 95. North v. 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. Odell, Crone v. r. 92. O'Keefe v. Jones, 75. Oliver, Doe d. Christmas v. 438. Ommaney v. Bevan, 341. O'Neile v. Lucas, 432. Onslow v. South, r. 142. Ormonde (Lord), Morse J?. 284 — r. 296*. Orrery (Lord), Sheffield v. r. 133. 277. Owens, Doe d. Jones v. r. 282. Page, Denn d. Briddon v. r. 395. v. Hayward, 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. Papillon v. Voice, r. 245. Parker, Hoare v. r. 60. , Goodright d. Revell v, 166. Parkhurst, Smith d. Dormer v. r. 116- 125. Parr v. Swindels, 298. Parrot, Peck v. r. 435. Parry, Meadows v. 366. Parsons v. Parsons, 378. Paul v. Compton, r. 92. Pawlett v. Pawlett, r. 154. Pawsey v. Edgar, r. 165. v. Lowdall, r. 450. Pay's case, r. 39. 427. Peach, Mackinnon v. 363. — r. 280. Peacock v. Spooner, r. 309. v. Win, r. 384. Pearsall v. Simpson, 173. 378. Pearson v. Stephen, 46. , Sturgess v. 334. — r. 141. , Wright «. r. 224. 229. 231. Peck v. Parrot, r. 435. Pegden, Goodtitle d. Peake v. r. 271. Pells v. Brown, r. 51. Penhay v. Hurrell, r. 113. 228. Penny, Donn v. 310. Perfect v. Lord Curzon, r. 87. Perkins, Biddle v. r. 414. Perratt, Hyde ft r. 60. Perrin v. Blake, r. 225. Perry v. Phelips, 78. Perryn, Doe d. Comberbach v. r. 274. 330. 387. 390. Peterson, Walsh v. r. 97. Phelips, Perry v. 78. Phettiplace, Yates v. r. 154. Phillipson, Murkin v. 187. Phipps v. Ackers, 188.— r. 429. , Ackers v. 429. v. Williams, 188. 429. Pibus v. Mitford, r. 228. Pierson v. Vickers, 233. — r. 235. Pigott, Wilson v. r. 194. Pilkington (Doe d.) v. Spratt, 75. Pillans, Home v. 348.— r. 344. Pinbury v. Elkin, r. 281. 434-5. Pinnock, Keene v. r. 276. 330. Pitt v. Jackson, r. 229. Planner (Doe d.) v. Scudamore, 175. Platel, Stert v. 82 Piatt v. Powles, 230. Plesington's case, r. 383. Plunket v. Holmes, r. 21. 302. 447. Polehill, Ware v. 314. Poole v. Poole, 235. v. Terry, 167. Pope v. Whitcombe, r. 436. Popham, Bamfield v. r. 296. Porter v. Bradley, r. 271. v. Fox, 152. 405. Portington's (Mary) case, r. 383. Poulden, Snow v. 154. Powell v. Price, r. 246. Powis v. Burdett, 87. v. Capron, r. 414. Powles. Piatt v. 230. Pratt, Hoste v. 94. Prescott v. Long, r. 94. Preston, Holder v. r. 414. Prestwidge v. Groombridge, 381. Price, Chandless v. 397. , Curtis v. 226. , Franks v. 29S. v. Hunt, r. 97. , Powell v. r. 246. Prigg, Doe d. Long v. r. 141. Pritchard, Bull v. 189.— r. 403. Proctor, Bacon v. 165. v. Bp. of Bath and Wells, r. 401. 411. Prowse v. Abingdon, r. 155-6. Puckey, Denn d. Webb v. 291. 445. Pullyn, Goodright v. r. 231. Pulsford v. Hunter, r 92. Purefoy v. Rogers, r. 71. 446. Purrier, Cuthbert v. 355. Rackstraw v. Vile, 52. Radford e. Radford, 271. Randoll d. Doe v. Roake, 177. Ranelagh v. Ranelagh, r. 280. Rawley v. Holland, r. 228. Rawlins, Ford v. 143. Rawson, Hodgson v. r. 165. Read and Morpeth v, Erington, r. 205. lviii TABLE OF CASES. Read, Sansbury v. r. 151. r. Snell, r. 270. 310. Reason, Doe d. Barnard v. r. 273. Reecc v. Steel, 225. Reeves V. Brymer, r. 136. Rev (Doe d.) v. Lucraft, 379. Reynolds, Machin v. 185. Revnous, JefTeries v. r. 103. Rhodes, Shaw v. 423.— r. 420. Rice, Aislabie v. r. 385. Richards r. Lady Bergavenny, r. 23b. Richardson, James v. r. 203. Right v. Creber, r. 241. 390. d. Day v. Day, 99. v. Hammond, r. 399. Ring l». Hardwicke, 415. Rivers, Doe d. Neville v. 287. Roake (Doe d.) v. Nowell, 177. Roberts?'. Hyman, r. 91. v. Kingsley, r. 247. Robinson v. Hardcastle, r. 415. , Leake v. 403.— r. 151. r. Smith, r. 194. Rod, Green v.r. 281. Roe d. Thong v. Bedford, 225. d. Clemett v. Briggs, r. 449. 451. d. Dodson v. Grew, r. 292. d. Sheers r. Jeffery, r. 271. d. Rew v. Lucraft, 379. v. Scott and Smart, r. 287. Rogers, Gibson v. r. 95. 429. , Purefoy v. r. 71. 446. Rolfe v. Sowerby, 160. Romilly v. James, 287. Romney (Lord), Fosters. 275.— r. 395. Ross, Clarke v. r. 165. v. Ross, 354. ^r'-t Rous, Cambridge v. 340. f? f / Routledge v. Dorril, 364. 413. Rowe, Bright v. 104. Rudhall v. Milward, r. 383. Rugg, Weakley d. Knight v. 90. Rumball, King v. r. 172. Russell v. Buchanan, 183. Rutherford, Gordon v. 143. Salter, Barlow v. r. 282. Saltern v. Saltern, r. 451. Sanders, Napper v. r. 88. 113. Sandom, Billings v. r. 339. Sanford v. Irby, r. 198. Sansbury v. Read, r. 151. Savage, Adams v. r. 228. Sayer, Hughes v. r. 280. v. Masterman, r. 236. Scarborough (Earl of) fl.Doe d. Savile,8. , Scott v. 96. Scarfield v. Howes, r. 164. Scatterwood v. Edge, r. 14. 129. 358, 440. Schenck v. Legh, 110. Scholes, Chapman d. Scholes v. 286. Schroder, Cousins v. 167. Scott v. Earl of Scarborough, 96. Scowcroft, Bowes v. 351. Scudamore, Doe d. Planner v. 175. Seagrave, Miller v. r. 230. Seale V. Seale, r. 307. Seaman, Warman v. r. 310. Searle, Goodright v. r. 435. Seaward v. Willock, 267. Selby, Ellis r. 27 7. ., Doe d. Herbert v. 370. r. 99. 361. Severn,' Gilmore v. r. 94. Sewell, Legat v. r. 236. , Mackinnon v. 362. Seymour, Bennett v. r. 136. , Coleman v. r. 91. Shapland v. Smith, r. 229. Shaw v. Rhodes, 423.— r. 420. v . Weigh, r. 252. Sheers (Roe d.) v. Jeffery, r. 2/1. Sheffield v. Lord Orrery, r. 133. 277. Shelley's case, 206.— r. 231, &c. Shepherd v. Ingram, r. 95. Sherbourne (Lord), Fry v. 103. Sherman v. Collins, r. 165. Shiophard, Doe d. Watson t\ r. 358. Shirley v. Ferrers, r. 60. Sidney v. Vaughan, r. 150. Silvester v. Wilson, r. 229. Simmons, Hinckley V. 339. Simpson, Longdon o. r. 420. , Pearsall v. 173. 378. Sitwell v. Barnard, r. 150. Skey v. Barnes, 181. Skilbeck, Bradshaw v. 313. Skinner, Nichols v. r. 280. Slack, Belku. r. 141. 335. Slade v. Milner, 341. Slater, Denn d. Slater v. 287. Smart v. Clark, 346. Smith v. Lord Camelford, r. 193-4. , Doe d. Candler v. 232. , Clarke v. r. 427. , Nash v. 143. d. Dormer v. Parkhurst, r. 1 16-125. , Robinson v. r. 194. , Shapland v. r. 229. v. Smith, 154. 343. v. Vaughan, r. 141. 335. (Doe d.) v. Webber, 283. Smither v. Willock, 380. Snell, Read r. r. 270. 310. Snow v. Cuttler or Tucker, r. 54. v. Poulden, 154. , Walker v. r. 240. Somerville (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 Hert- ford, 417. Southby v. Stonehouse, r. 356. Southcot v. Stowell, r. 226. Southey v. Lord Somervile, r. 395. Sowell v. Garrett, r. 97. TABLE OF CASES. lix Sowerby, Rolfe v. 160. Spalding v. Spalding, r. 71. Sparrow, Doe d. Lifford v. 348. Speed, Davies v. r. 21. 440. Spencer, Bagshaw v. r. 229. r. Bullock, 167. Spittle and Davie's case, 384. Spooner, Peacock v. r. 309. Spratt, Doe d. Pilkington v. 75. Springs. Caesar, 174. Stables, Blackburne v. 245. — r. 230. Stafford (Marquis of), Tbe King v. 274. Standerwicke, Gawler v. r. 155. 157. Stanley v. Leigh, r. 43. v. Lennard, r. 297. v. Stanley, 82. v. Wise, r. 434. Steel, Reece v. 225. Stephen, Pearson v. 46. Stephens v. Stephens, r. 43. 367. 429. Stert v. Platell, 82. Steward, Fulmerston v. r. 129. Stillingfleet, Hayward v. r. 427. St. John (Lord), Whitbread v. 94. Stone v. Maule, 313. Stonehouse, Southby v. r. 356. Stones, Bullock v. r. 427-8. Stonor v. Curwen, 312. Stovin, Frank v. 291. Stowell, Southcot v. r. 226. Streatfiehl v. Streatfield, r. 246. Strong (Doe d.) v. Goff, 241.— r. 234. Stuart v. Bruere, r. 150. Studholme 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'. , Hasker v. 101. Swindels, Parr v. 298. Sydenham, Tregonwell v. 415. Symons, Edwards v. 158. Talbot, Duke of Chandos v. r. 155-6. Tancred, Murray v. r. 151. Tankervile (Earl of), Bennett v. 232.— r. 224. Target v. Gaunt, r. 282. 395. Tate v. Clarke, 257. , Gibbs v. 311.— r. 339. Taylor, Austen v. r. 244. v. Bacon, r. 158. , Gossage v. r. 212. , King v. 344. v. Langford, 92. , Malcolm v. 2,12. Taynton, Critchett v. 190. Tebbs v. Carpenter, r. 92. Temple, Matthews v. r. 387. Tenny d. Agar v. Agar, 287. Terry, Poole v. 167. Test, Deaner. 181. 337. Theebridge v. Kilburne, r. 308. Thellusson v. Woodford, r. 391. 417. Thompson 8. Dow, r. 165. v. Leach, r. 446. Thong v. Bedford, r. 224. (Roe d.) v. Bedford, 225. Thornburgh, White v. r. 244. Thrustout d. Small v. Denny, r. 278. Tichborn, Corbet v. r. 443. Tichener, Jeal v. r. 165. Tilbury v. Barbut, r. 399. Tippin v. Cosin, r. 226. 229. Toldervy v. Colt, 358.— r. 50. Tollemache v. Coventry, 401. Tomlinson, Wall v. r. 331. Tooley (Doe d.) v. Gunnis, r. 395. Toovey v. Bassett, 279. Torin, Jones v. 45. Torres v. Franco, 106. Tracy, Lethieullier v. r. 88. Trafford v. Trafford, r. 314. Tregonwell v. Sydenham, 415. Trevithin, Croker v. r. 384. Trevor, Hobson v. r. 436. v. Trevor, r. 246. Trickey v. Trickey, 410.— r. 431. Tristram, Barrington v. 94. Trollope, Dubber d. Trollope v. r. 230. Trotter v. Williams, r. 339. Tucker v. Harris, 139. — r. 83. , Snow ?'. r. 54. Tugman, Breedon v. 160. Tunstall v. Brachen, r. 165. Turner, Atkinson v. r. 167. 428. , Brooke v. 266. v. Capel, 311. v. Moor, 345. Twining, Britton v. 309. Tyte v. Willis, r. 400. Usher (Doe d.) v. Jessep, 101. 357. Vachel v. Vachel and Lemmon, r. 358. 360. Vanderzee v. Aclom, r. 194. Vane v. Lord Dungannon, r. 194. Vaughan v. Burslem, 321. r. 317. , Doe d. Liversage v. r. 395. , Sidney v. r. 150. , Smith v. r. 141. 335. Vaux's (Lord) case, r. 66. Vawdry v. Geddes, 191. — r. 403. Venables v. Morris, r. 229. Vere, Griffiths v. r. 420. Vernon, Boothby v. r. 447. Vickers, Pierson v. 233. — r. 235. Vile, Rackstraw v. 52. Vincent, Habergham v. 449. — r. 450. 451. Vivian v. Mills, 163. Voice, Papillon v. r. 245. Wadley v. North, r. 164. Wainhouse, Moorhouse v. r. 435. Wake, Dod v. 406. Walcot v. Hall, r. 157. TABLE OF CASES. Walker v. Main, r. 165- p. Shore, 93. v. Snow, r. 240. Wall V. Tomlinson, r. 331. Wallen v. Andrewes, 265. Walpole v. Lord Conway, r. 11M. Walsh v. Peterson, r. 97. Walter v. Drew, r. 71. 303. Ward, Andree v. 379. ) Avelyn v. r. 358. 361. 'v. Bevil, 295. , Doe d. Dolley v. r. 159. , Kinchv. 231.— r. 307. Warde, Bristow v. r. 194. Ware v. Polhill, 314. Waring v. Coventry, r. 414. Warman v. Seaman, r. 310. Warter v. Warter, 188. Warwick v. Warwick, r. 247. Waters, Lewis d. Ormond v. 276. Watkins v. Cheek, 163. Watson v. Hayes, 160. (Doe d.) v. Shipphard, r. 3o8. Weakley d. Knight v. Rugg, 90. Weale 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, Machel v. 289. Weigh, Shaw v. r. 252. Wellington v. Wellington, r. 282. Wells, Backhouse v. r. 251. 255. 262. West, Mortimer v. 301. v . Errissey, r. 246-7. Westcomb, Jones v. r. 361. Wetton, Doe d. Barnfield v. 302. — r. 71, Wharrey, Frogmorton v. r. 212. Whateley v. Kemp, r. 247. Whatt'ord v. Moore, 88. Wheedon (Doe d.) v. Lee, 164. Wheeler v. Duke, r. 249. Whitbread v. Lord St. John, 94. Whitcombe, Pope v. r. 436. White, Goodright d. Brooking v. r. 203 v. Collins, r. 230. 240. White v. Carter, r. 244. v. Thornburgh, r. 244. , Ginger d. White n. r. 296. Whiting v. Wilkins, r. 230. WTvittaker, Horton v. r. 88. 358. Wickett, Gulliver v. r. 51. 361. Wight v. Leigh, r. 296. Wilkes, Nandick v. r. 246. Wilkins, Whiting v. r. 230._ Wilkinson, Branstrom v. 171. 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, Higden v. r. 436. Willis v. Hiscox, r. 239. (Doe d.) v. Martin, r. 193-4. 387. , Tyte v. r. 400. Willock, Seaward v. 267. ( Smither v. 380. Wills, Billingsley v. r. 1 1. 335. v. Palmer, r. 226. Wiison, Hallifax v. 203. v. Mount, 364. v. Pigott, r. 194. , Silvester v. r. 229. Win, Pearce v. r. 384. Wire, Stanley 0. r. 434. Withers, Allgood v. r. 243. , King v. r. 165. 435. Witts v. Boddington, r. 194. Wolcott, Cripps v. r. 141. Wood's case, r. 435. Wood, Gurnel r. r. 435. Woodford, Thellusson v. r. 391. 417. Woodliff v. Drury, r. 39. Woodward v. Glasbrook, r. 102. Wright, Goodright v. r. 257. v. Hammond, r. 399. , Jesson v. 233.— r. 224. v. Kemp, r. 102. v. Pearson, r. 225. 229. 231. v . Wright, r. 436. Yates v. Phettiplace, r. 154. Young, Chatteris v. r. 358. PART I. THE VARIOUS KINDS OF INTERESTS, AND THE DIF- FERENT SORTS OF CONDITIONS AND LIMITATIONS ON WHICH THEY DEPEND OR BY WHICH THEY ARE CREATED OR AFFECTED, ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED. [ 3 ] 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 DISTINGUISHED. 1 It is impossible to obtain an accurate knowledge of the Knowledge interests which form the subject of the following pages, ? coru "tioris without an accurate acquaintance with the various kinds necessarY of conditions on which they depend, or by which they may be affected. 2 Conditions, in the widest sense of the term, may be Division of divided into conditions, I. Express, which are either in the v I^ St r ' sense ot the 1. Direct, or term. 2. Indirect. II. Implied. 3 Again ; they may be divided into A second di- I. Conditions properly so called. vision of con- n-rv n ditions.inthe . Defeasances. • , ' . . widest sense III. Special or collateral limitations, in the original f the term, sense of limits or bounds. 4 Conditions properly so called may be distributed into Division of i-i- V_. conditions several kinds : , _ _ , , . . properly so I. General conditions. called. 1. Subsequent, or simply destructive, which, 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. b2 [4 -j i,j j AN ORIGINAL VIEW [ 5-9. Interests limited hypothetically ; Springing interests ; Alternative interests ; Contingent interests in the whole or the immediate part of a reversion, and Contingent remainders.) 3. Mixed. (1) Destructive and creative, (on which the following interests de- pend : viz. Interests under augmentative limitations. Interests under diminuent limitations ; and Interests under conditional limitations.) (2) Destructive and accelerative, or clauses of cesser and acceleration. II. Special conditions. Definition of a An express condition, as the term imports, is a 5 an express condition expressed in words : and it is sometimes termed condition. „__ , >. a CONDITION IN DEED, (a) — o an im- ^ b implied condition, which is sometimes termed 6 plied concli- tion. a condition in law, is a condition which is not ex- pressed, but is annexed by construction of law, for the avoidance of an estate in a particular event, (b) — of a direct A direct condition, in its widest sense, is an hypo- 7 thetical or suppositive member of a sentence, upon which the creation, enlargement, diminution, or defeasance of an estate, or the suspension of the beneficial interest —of an in- \ n property, expressly or constructively depends. c An 8 direct con- r r J r i .. / • . i dition indirect condition is one that, in certain cases at 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 d general condition (d) is e a clause providing, or 9 ralcondition. * (a) See Co. Litt. 201 a. Shep. T. 117. (b) SeeShep.T. 117, 118. Co. Litt. 201 a ; 332 b. Litt. 378. (c) See Co. Litt. 204 a. Shep. T. 124, 125, and note 17. (rf) See Co. Litt. 203, Butler's note (3). I. I.] OF EXECUTORY INTERESTS. [§ 10—13. [ 5 ] constructively importing, that an estate shall be created, See § 16. 10 enlarged, diminished, or defeated, in a given event, (e) A Definition of f special condition is a clause which merely suspends an a special con- estate, or the beneficial interest therein, to answer a special purpose. Of this nature are clauses that provide, that in Examples of case the rent reserved on a lease shall be in arrear, the s P e % c ™ con ~ ,,ii •, i r ^ i ditions. lessor may enter, and hold until the arrears ot rent be satisfied ; (f) and clauses s providing, that when any 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 till the rent and arrears should be paid and satisfied, (g) 11 General conditions are usually divided into h conditions Division of precedent and subsequent, (h) But it would seem that general con- they may be more properly distributed, as above, into subsequent, precedent, and mixed. 12 A condition subsequent is a direct condition that is Definition of 1 annexed to an estate or interest created by a previous * 'j^jJ^J clause or instrument, and upon the fulfilment or upon the Sl ' eque breach of which, according to the form of the condition, such estate or interest is to be prematurely (i) defeated or See § 26, 34, determined, and no other estate is to be created in its 36. ^ room: (k) as, l where a lease is made for years, on con- dition that the lessee shall pay 10Z. to the lessor at Michaelmas, or else his lease shall be void. (Z) 13 A condition precedent is a direct condition which is — of a con- not annexed to an estate created by a previous clause or ^°° P 1C instrument, but "upon the fulfilment of which an estate or See ^ 149j interest is to arise or be created : as, where it is agreed 137, 147. (e) See Co. Litt. 204 a. Shep. T. 1 17. (/) Litt. 327. Co. Litt. 203 a, Butler's note (3). (g) See Fearne, 527, 528. (A) Co. Litt. 201 a. Shep. T. 117. (?) See Prest. Shep. T. 117, 1 IS, 127. (k) See Shep. T. 117. (I) Shep. T. 118. [- 6 j i. i.j AN ORIGINAL VIEW [§ 14—18. that if J. S. pay me 10Z. at Michaelmas, he shall have such a ground of mine for 10 years. (II) Definition of A mixed condition is a direct condition, which is 14 a mixed con- annexed to an estate created by a previous clause or chtion. instrument, and is destructive in its operation as regards that estate, and creative or accelerative as regards another estate. Two forms of There are two forms, as we have already seen, of 15 °ub DS t eonditions subsequent, as they affect lands or tene- ments. — of a con- A condition subsequent of the concise or implied 16 ci ion su i se- F0RM i s a proviso subjoined to a grant, lease, or devise, quent of the . . \ . , , i- • concise or an " beginning with the words, on condition &c, pro- impliedform. vided &c, or so that &c, or, in the case of a lease See § 39. for years, with words of a similar import, and not followed 140 ky any remainder over, or by any stipulation or regula- tion for the reverter or transfer of the property, but m ex vi propria, (m) conferring u on the donor, devisor, or lessor, and his representatives, the right of bringing an action to avoid the estate, (n) — of a con- A condition subsequent of the unconcise or explicit 17 quern of the" f ° rm ' is a sentence subjoined to a grant, lease, or devise, unconcise or providing, in terms or in effect, that, in a given event, explicitform. the property comprised in such grant, lease, or devise, shall revert ° to the donor, lessor, or devisor, or his represen- tatives, (0) before the estate created by such grant, lease, or devise, shall have filled up the measure of duration given to it thereby, and p 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 Sns sub-" Wl11 Clearly elucidate ^e foregoing definitions of the two sequent il- dlffer ent forms of conditions subsequent : " Know there- 18 lustrated fore, that, for the most part, conditions have con- (U) Shep. T. 117. (m) See Litt. 328, 329. Shep. T. 121 (n) See Prest. Shep. T. 153. (0) See Shep. T. 120, 127, 149. (p) Prest. Shep. T. 153. I. 1.] OF EXECUTORY INTERESTS. [§ 19—21. [ 7 ] ditional words on their frontispiece, and do begin there- 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 conditional, as proviso, ita quod, and sub conditioner And therefore, if 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. 10Z. at Easter next; this is a good condition ; and the estate is conditional, 19 without any more words. But there are other words, as, Si, si contingat, and the like, that will make an estate conditional 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 then the estate shall be void, or the like. And therefore, if A. 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. \0l. at Easter, without more words, this is no good condition; but if these, or such like words be added, that then it shall be lawful for A. to re-enter ; then it will be a good condition." (q) 20 Mixed conditions in general have already been denned. Definition of A mixed condition of the destructive and creative a mixed con- kind, is a direct condition that is annexed to an estate c j ltl0n °{ tne created by a previous clause or instrument, and upon the anc j creat j v , fulfilment of which, such estate is to be defeated, and kind, another estate is to arise in its room. See § 12, 16, •J rt These last-mentioned conditions, however, which are n*-' j j. »!•••* Mixed con- nere termed mixed, or the limitations of which they form ditionssome- a part, are frequently designated conditions precedent, times termed in contradistinction to those conditions proper which are P rece dent, termed conditions subsequent, and are simply destructive. And, on the other hand, they are sometimes termed con- and some- ditions subsequent, in contradistinction to those clauses times SUDse ~ which are simply creative. * 21 From these mixed conditions, we must be careful to Mixed con- distinguish those conditions subsequent in which the act ditions dis- required in the condition to be performed, is, to create an tl (g) Shep. T. 121, 122. See also Co. Litt. 330, 331 from certain others. r 8 -j Li.] AN ORIGINAL VIEW [§ 22. estate: as, r where one makes a feoffment in fee, on con- dition that the feoffee shall make an estate back again in tail to the feoffor and his wife, before such a day. (r) Definition of A mixed condition of the destructive and accele-22 tn.ixedcon-RATIVE KIND, OF, A CLAUSE OF CESSER AND ACCELERA- dition of the TI0N j s a p rov iso following the limitation of several suc- andaccel*- cessive estates in the same subject of property, and in rative kind, effect directing, that, in a given event, one or more of the first limited of such estates shall cease, and the estate or 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. The Earl of Lands were devised to R. for life, remainder to trus- Scarbormigh teeg to p reserve & c ., remainder to R.'s first and other Isavile 3 Ad. sons m tan * ma ^ e > witn similar remainders in favour of /., a & El. 897. younger brother of R., and his sons, and of F., another younger brother of R., and his sons, and of other younger brothers of R., and their sons, respectively. And the will contained a proviso, that if the title to a certain Earldom should descend to any of them, the said R., I., 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 persons 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 R., while in possession of the lands, whereupon /. took possession; and he and his eldest son joined in suffering a recovery. 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 deter- mination only of the old estates, so as to accelerate and (r) Prest. Shep. T. 134. And see Litt. 352—358. I. I.] OF EXECUTORY INTERESTS. [§23. [9] let in the enjoyment of the remainders over, and not a proviso which created any new estates in remainder ; and consequently, that, by the recovery, the old remainder for life in F., 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 proviso was, that if the title descended upon a tenant for life, the estate of such tenant for life, and the estates tail in re- mainder in all his sons successively, 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, viz. the death of the person to whom the title descended, and the failure of his issue, which provision 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.) 23 s Defeasances are provisoes of the same import and Definition of efficacy as proper conditions* subsequent, but are con . a defeasance, tained in a distinct deed, either delivered at the same time * See § 12, with the deed to which the condition relates, or, except in l"- 19 - the case of things executory or chattels, delivered after the deed to which the condition relates, (s) (s) See Co. Litt. 236 b ; 237 a. Prest. Shep. T. 126. r 10 j J. 2 .] AN ORIGINAL VIEW [§ 24-27. CHAPTER THE SECOND. THE DIFFERENT KINDS OF LIMITATIONS, IN THE ORIGINAL SENSE OF LIMITS, BY WHICH INTERESTS MAY BE REN- DERED DETERMINABLE, ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED. Two senses of Great confusion has frequently arisen from not observing 24 the word "li-^ftat the word limitation is used in two different senses : mitation," ^ ong of whicll mayj for t ^ e sa k e f convenience of dis- the original tinction, be termed the original sense ; namely, that of a sense, member of a sentence, expressing the limits or bounds and the deri- to the quantity of an estate ; and the other, the derivative vative sense, sense; namely, that of an entire sentence, a creating(a) and actually or constructively marking out the quantity of an estate. In the preceding chapter, Conditions, in the widest sense 25 See § 3. of the term, were divided into Conditions properly so called, Defeasances, and Special or Collateral Limitations in the original sense. The first two formed the subject of that chapter. It will now be necessary briefly to treat of the third. Definition of A Limitation, in the original sense of a limit or bound, 26 a limitation, wn j c h as we i} as an iixiplied. condition, is b sometimes in the on- ' . r . o-inal sense. ca ^ e " a condition in law,(o) is a restrictive expression, See ^6. which serves to mark out the limits or c bounds of an See§ 12, 16- estate, (c) 19 Division of ^ uc ^ nimtat i ons ma y De divided into — 27 suchli- I- General. mitations. 1. Expressed. 2. Implied. (a) See Prest. Shep. T. 117. (b) Co. Litt. 234 b; 236 b. Shep. T. 121. (c) Shep. T. 117. I. 2.] OF EXECUTORY INTERESTS. [§28—32. [ 11 ] II. Special or collateral. 1. Regular. (1) Direct. (2) Indirect. 2. Irregular. 28 A general limitation is a restrictive expression, which Definition of determines the general class or denomination, in point a ? en . eral "- . to , . . , , , nutation, of quantity of interest, to which an estate belongs, by confining it to the period during which there shall be a succession of heirs general or special, or of persons filling 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 estates Necessity for should be distributed into certain classes, known by cer- division of pOTOfpC 111 TO tain denominations, and that every estate should be refer- c i asseS) an( j able to one or other of these classes. And hence a gene- consequently ral limitation, which, as we have seen, determines the f? r a general general class and denomination to which an estate belongs, ™* ^^ is incident to every estate. 30 The general limitation, however, may either be ex- General limi- pressed by the words of the instrument creating the estate, tatl0ns eitner or may be implied by construction of law. implied. 31 Thus, where land is granted to A. and his heirs, the Examples of words, " and his heirs," constitute a general limitation : expressgene- they serve to mark out the limits of the estate ; to ascer- at j ons tain the quantity of interest ; and thus to determine to what general class and denomination the estate belongs ; 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 respect- ively estates tail, freeholds not of inheritance, and chattel interests. 32 Where land is granted to A. and his heirs for the life of JB., the words, "for the life of B." form the general limi- tation. d The words, " and his heirs," are not words of limitation, in this case ; but point out the persons, who, according to the common opinion, were to take as special occupants, during the residue of B.'s life, after the death of A. Where the words, " his heirs, 1 ' are words of limit- ation , ? they denote a fee; whereas, it is allowed on all L 2<] AN ORIGINAL VIEW [§ 33-35. hands, that the grant in question does not create a fee of , '"Where^nd is devised to A. for ever, the general limi- 33 £3S£ taZT^and Ins heirs," is implied. So whe ? land was neSal Unfit- ^vised to A. indefinitely, before the year 1838, the general ations ' limitation " for life," was implied by construction of law. And now, by the stat. 1 Vict. c. 26, where land is devised in that manner, by a will made since the beginning of the year 1838, 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 mark 34 a special or ut the bounds of an estate, so as to ^determine it, ipso facto, collateral li- m a given event> without action, entry, or claim, before it Seef 12" 16- would or might otherwise expire by force of or according to 19, 148-9. the general limitation, (e) This is f sometimes denoted by the expression, " a determinable quality." (/) Examples of Thus, where land is limited to A. for 99 years, e if he 35 special limit- s hall so long live, (g) the words, " for 99 years," form the ations. general limitation, denoting that the interest is a chattel interest for 99 years; and the words, " if he shall so long live," constitute a special limitation, which would deter- mine his estate on his death. This estate, therefore, is of precisely the same eventual duration as an estate limited to A. for life, in consequence of the addition of the spe- cial limitation. But the difference in the general limi- tation in the two cases, creates the important distinction between them, that the one is but a chattel interest, whereas the other is a freehold. Again, where land is granted to A. h till &c, or so long &c, or if &c, or whilst &c, or during &c, (li) the estates so limited have two limitations : for, the law gives a life estate to A. im- plying the words " for life," so as to constitute an implied general limitation, while the words till &c, form an addi- tional and special limitation. (d) See Bl. Com. 259, 260. Fearne, 496—500. (e) See Co. Litt. 214 a; 234 b; 235 a. Prest. Shep. T. 139, 146. (/) Fearne, 10, note (h). {g) See Co. Litt. 214 b. Shep. T. 125, 151. {li) See Co. Litt. 214b; 234b; 235 a. Shep. T. 125, 151,140. I. 2.] OF EXECUTORY INTERESTS. [§36—39. [ 13 ] 36 These special limitations are sometimes termed collateral Remarks on limitations. And if the term, "collateral limitation," is the term collateral" used as referring to an event which is collateral to the aDU ][ ec j t0 general limitation, it is not incorrect. But * if the term special limit- is used from a notion that these limitations form no part ations. of, and are independent of, and collateral to, the original measure of the estate, in the same manner as a conditional See § 148-9, limitation, or a condition subsequent properly so called, 12 > *" 19 - such a notion is inaccurate, (i) and the inaccuracy is one of a fundamental and most important character. For it must be observed, that where an estate has a special limi- tation 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 first happen, on the occurrence of the event which constitutes the bound or limit. Thus, in the above-mentioned case of an estate limited to A. for 99 years, if he shall so long live ; there is but one orioinal and eventual measure of A.'s interest, de- pending 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 collateral to the original mea- sure given to the estates to which they are annexed, con- stitutes the fundamental distinction between them and See § 148-9, conditional limitations specifically and properly so called, 262-2 /o. as will appear in subsequent parts of the present Essay. 37 Special limitations, according to the foregoing division, are either regular or irregular. 38 A regular limitation is a restriction which does not Definition of begin with the words, "on condition," "provided," or aregularspe- ■i t • i i r i e 4. cial hmita- " so that, and which, by forming a part of a sentence tion whereby an estate is created, serves to mark out the See ^ 16 original limits of such estate ; as k where an estate is 39 granted to B. and his heirs till he be promoted to a be- nefice, (k) An irregular limitation is a proviso annexed — of an irre- to an estate capable of supporting a remainder, and begin- ^jJ^JJ^ 1 ' ning with the words, " on condition, 11 " provided," or " so gee . lQ ' (i) See Fearne, 10, note (h). (k) Shep. T. 125. See also Shep. T. 151. [■ 14 ] L 2.] AN ORIGINAL VIEW [§ 40-42. that," but followed by a distinct sentence creating a remainder over in favour of another person, and, for that See §159. reason, construed as if forming a part of the sentence whereby the preceding estate is created, so as to mark out the original limits thereof. Thus, » if a devise be to A. for life, on condition that he do not marry C, with re- mainder to B. ; this is construed as if it were to A., until he shall marry C. ; and then, or upon death, to B. (I) The proviso, " on condition " that he do not marry C, is construed as if it formed a part of the sentence devising the estate to A. for life, and constituted an additional limit to the measure originally given to that estate, in- See§12, 16- stead of being deemed to operate as a proper condition 19. subsequent, so as to defeat such estate in favour of the See § 159. heir of the testator, or as a conditional 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 m where 40 of a regular a regular limitation has been qualified by the subsequent limitation. wor( js ; so as to prolong the duration of the estate beyond the period when it would expire simply by force of the regular limitation, (m) Regular limitations are either direct or indirect. Definition of A direct limitation is a restriction couched in words 41 a direct regu- w hich directly express a limit to the quantity of the in- " terest created ; as, to A. during &c, or till &c, or whilst — ofanindi- &c, or so long &c. An indirect limitation is a restric- 42 rect regular t j on p Ut - n a con ditional form, or in words which only limitation. , v . , „ „ ' , J imply a limit to the quantity of the interest created ; (as, where land is given to A. for 99 years, if A. shall so long live, or if A. continue &c.) or, by words of description which attach a certain character or qualification to the (Z) Burton's Compendium, § 829. See also Scattenvood v. Edge, as stated, Fearne, 237 : and Page v. Hayward, 2 Salk. 570, as stated, Fearne, 424. O) See Doe d. Dean and Ch. of Westminster v. Freeman and Wife, 1 D. & E. 389, as stated, Fearne, 240. I. 2.] OF EXECUTORY INTERESTS. [§ 43. [ 15 ] objects of the grant or devise, so as to qualify the gene- rality thereof, and indirectly to limit the duration of the estate to such a time as they shall continue to sustain that character ; as, where land is granted to A. and his heirs, lords of the Manor of Dale. And n 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 A. ; this is an indirect limitation, so that the estate can endure no longer than B. and his heirs comply with the condition." (n) 43 It may here be observed, that the same contingency Same contin- may form both a special limitation, as to a preceding in- g enc y ma y terest, and also a condition precedent, as to a subsequent S13ec £ a x li m i_ interest limited so as to depend entirely upon it, as a tation, and a contingent remainder. condition precedent. («) See Litt. 597,(2) II. 3. [16] 1. 3 .] AN ORIGINAL VIEW [§ 44-47. CHAPTER THE THIRD. THE DIFFERENT KINDS OF INTERESTS ANALYTICALLY AR- RANGED, DEFINED, AND DISTINGUISHED. SECTION THE FIRST. Introductory Definitions and Observations. Definition of I. An interest in any subject of property, in the widest or 44 an interest, in popular generic sense of the word interest, (See § 65, 84.) the widest j g tnat connex i on w hich subsists between a person and sense ot the . term. sucn suD J ect 0I property. Rio-hts or in- H. A right or interest, in this sense of the terra, in real 45 terests either hereditaments, may either be altogether imperfect, or it perfect or ma y De p er f e ct at law, or perfect in equity, or perfect both imper ec ^ j &w &n ^ -^ e q U j^y jt ma y be so perfect, that nothing Interest could render the hereditament which is the subject of the described. right or interest, or at least our part or share thereof, more completely our own, at law, or in equity, or both at law and in equity, as the case may be, for the time such inter- est endures. Definition of III. This perfect interest is the interest denoted by the 46 property or word property or ownership, which may be defined to wneisiip. ^ t ^ at exc i us i ve right, at law, or in equity, 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. Definition of IV. This too is denoted by the word seisin, which 47 seism. specifically signifies that perfect legal interest, ownership, or property, of which real hereditaments are susceptible ; or, that kind of possession which is incident to, and neces- sarily included in, and cannot exist apart from, legal ownership or property, as resulting from that exclusive right which the law creates in favour of a particular per- son, in regard to real hereditaments. I. 3. i.] OF EXECUTORY INTERESTS. [§48—50. [ 17 ] 48 V. And a person who is invested or clothed (vestitus) When a per- with this perfect interest, ownership, or property, or has son is said to this kind of possession, is said to have a vested interest, hay e a vested interest or or a present or actual estate in the land : and if the actua i estate ownership of the land is a legal and not merely an equi- anc i t0 i-, e table ownership, he is said to be seised of the land, seised. Whereas a person who has only an imperfect interest When he is existing collaterally to this perfect interest, is not said to not saicl t0 have a vested interest, or a present or actual estate in the ! iavea vested interest or land, but has only an executory interest ; or an interest to be seised. for a term of years conferring the possession for a limited period, with or without the beneficial interest during that period ; or a quasi interest ; or a mere precarious posses- sion; or a power of appointment, a charge, or a lien ; the nature of which will be explained in the next section. 49 VI. Possession may be either a personal, or by substi- Different tute, as by one's termor for years, whose interest, though m °des of not connected in title with our own, is not inconsistent P ossession - 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 remainder-man or reversioner, during the continuance of the particular estate of freehold, or of the heir (before entry) of a person who died actually seised, (a) 50 VII. Real hereditaments are susceptible of three kinds Three kinds of interests, in the widest sense of the term, which are inte rests commensurate with the duration of such hereditaments : rate w ; t ], first, the legal seisin, property, or ownership ; secondly, duration of the equitable or beneficial interest, property, or ownership; re .^ nere - thirdly, the mere possession, rightful and unlimited. And • i v , ' the same person may have either the legal seisin, or the ownership, equitable interest alone ; or he may have any two of these equitable three kinds of interests; or he may have all the three. ow ? e P' a i ,11 • ii • i , an d nie re And consequently the mere possession ana the equitable possession interest may either be conjoined with, or may exist apart -T/ nese mav — ■ be either (a) With reference to these different kinds of possessions, compare2 Bl. Com. 144,209, with Burton's Compendium, ^ 302 —304. [ 18 ] I. 3. i.] AN ORIGINAL VIEW [§ 51—54. united or from and collaterally to, the legal seisin, property, or disunited. ownership. Other inter- VIII. Besides these three interests, there are others which 51 ests which are not co-extensive with the duration of real heredita- are not com- ments an( j are of an imperfect character, and essentially withThf 6 and not merel Y accidentally and occasionally apart from duration of and collateral to the legal seisin, property, or ownership, real heredi- Qf this nature are executory interests, which only com- taments, and ^^ a p art Q1 . the wrio l e f the property or ownership coHateraTto posterior to the event or period on which they are to vest, the legal And such are the other imperfect interests enumerated ownership. a jj 0ve> anc j defined in the next section. Lelal owner- IX - The le S al seisin ' P ro P ert y> or ownership, being of 52 ship divisible unlimited duration, that duration is capable of being into consti- divided into an indefinite number of constituent periods of tuent pe- ^ measure of freehold, by means of the general and nods, and ... _. , ' , . , distributable special limitations which form the subject of the preceding either among chapter; and there may be an indefinite number of owners, successive answering to the several periods, having interests in re- owners . or among mainder or succession one after another. And the entire contempora- legal seisin, property, or ownership in fee, or the legal neous seisin, property, or ownership for any such constituent period, is also capable of being divided among or given to an indefinite number of persons, as contemporaneous tenants, by way of coparcenary, joint-tenancy, or tenancy each of i n common, or by way of a tenancy by entireties. And, oart'of t\ a wnetuer tne individuals are to enjoy the land successively, 53 seisin, and a as ^ n tne fi rst case, or simultaneously, as in the second, vested inter- the interests of the several persons are integral parts of st or actual one an( j t j ie same ent i re j e g a i se i s i nj property, or owner- ship, and are all equally entitled to the denomination of vested interests or actual estates. But it cannot X. But the legal seisin, property, or ownership, whether 54 reside in two j n f ee or otherwise, cannot reside in two different indi- uinerent per- • , , . . . . sons without Vlduals > without privity of estate : in other words, the privity of same hereditament cannot be the subject of two interests, each relating to the same period, and each comprising the entire legal seisin, property, or ownership for that period. There can be but one legal seisin, property, or ownership, 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 I. 3. i.] OF EXECUTORY INTERESTS. [§55—57. [ 19 ] several contemporaneous shares, or several successive 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 beneficial interest, property, or ownership, with or without the pos- session ; or nothing but a right or interest of an imperfect character and merely collateral to the legal seisin, pro- perty, or ownership ; whether it be an executory inter- est; or an interest for a term of years, conferring the possession for a limited period, with or without the bene- ficial interest for that period ; or a quasi 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 A., for life ; re- Illustration mainder to the use of B., in tail ; remainder to the use of °f the two C, D., and E.. as r tenants in common in fee ; in this case, P, rec m j* ' ' ' . ' ' observations. A. has one part of the legal seisin, property, or owner- ship ; B., another; and C.,D., and JE., the remaining part. And these three successive estates being commen- surate with the duration of the land itself, and filling up the whole measure of the legal seisin, property, or owner- ship which may be had therein ; every other 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 col- lateral to the legal seisin, property, or ownership. 56 XL In a similar way, the mere equitable or beneficial The equi- interest or ownership, and the mere rightful unlimited ta1 ?le owner- possession, being co-extensive with the duration of the po £ ess ; on & hereditaments themselves, and therefore of unlimited du- are of similar ration, may be divided into an indefinite number of consti- duration, tuent periods or portions. 57 XII. But the equitable or beneficial interest, property, Equitable or ownership, like the legal seisin, property, or owner- ownership ship, cannot reside in two different individuals without F an _ n0 * * * privity of estate. When once it has attached in any f eren t per- person, another person who is not privy in estate, as co- sons without parcener, joint-tenant, tenant in common, or tenant by P rivltv of entirety, can have, during the same period which it oc- cupies or to which it relates, the mere legal seisin, pro- perty, or ownership, with or without the possession, or c 2 [ 20 ] I. 3. i.] A N ORIGINAL VIEW [§ 58—61. nothing but an imperfect right or interest merely colla- teral to the legal and equitable ownership or property, such as those enumerated above, and defined in the next section. Into what XIII. The seisin, property, or ownership of or in lands 08 portions or tenements can only be divided into periods or portions of seisin, pro- the meagure of f ree hold ; that is, into estates for life, and Ownership is estates of inheritance. Any periods or portions of in- divisible, terest which are less than these in the eye of the law, do not constitute portions of the seisin, property, or owner- ship, but merely confer a right to the temporary posses- sion or enjoyment, or both. But the property or ownership of or in personal estate may be divided into any kind of periods or portions. Legal owner- XIV. As the legal seisin, property, or ownership, or, 59 ship or free- j n other words, the legal freehold and inheritance, is corn- hold and m ensurate with the duration of real hereditaments, it must inheritance . ,, . ... . .. , cannot be be in existence at all times, either in some particular in abeyance, person or persons, or at least in contemplation of law. But, in fact, it cannot be in existence merely in contem- plation 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 Conse- for the recovery of the land. And therefore, if a person 60 quences of limits a freehold interest in the land, by way of use or tnis aoctnne. devise, which he may do, though he could not do so at See § 117 — J ' ° 127a. tne common law, to commence in futuro, b without making any disposition of the intermediate legal seisin, property, or ownership, (b) or a disposition of it which does not exhaust the whole of such intermediate legal seisin, pro- property, or ownership ; c the legal seisin, property, or ownership, except such part thereof, if any, as is com- prised within a prior disposition of a vested interest, of course remains 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 ap- pointed to reside in the person to whom such interest in futuro is limited, (c) And d if a person limits the inheri- 61 (b) Sir Edward Cleres Case, 6 Co. Rep. 17 b, as stated, Fearne, 351. (c) See Fearne, 1, note (a). I. 3. ii.] OF EXECUTORY INTERESTS. [§ 62—64. [ 21 ] tance, whether at common law or by way of use or devise, to arise on a contingency, by way of remainder imme- diately after the regular expiration of prior estates, of course the inheritance, until the happening of the contin- gency, remains in the grantor and his heirs, or the heir of 62 the testator, (d) And hence, in each of these cases, during the intervening period, no other person but the grantor and his heirs, or the heirs of the testator, can have any See § 54, thing more than a mere right or interest, existing colla- terally 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 dis- tinguish them. SECTION THE SECOND. The different classes of Interests, in the widest sense of the term, defined, and distinguished. 63 We have seen that an interest in any subject of property, Definition of in the widest or popular generic sense of the word, is that an interest, connexion which subsists between a person and such In tne widest „ /0 c a • n- oa \ sense of the subject of property, (bee <§ 44, oo, 64.) term> 64 The various interests in the widest sense of the term, Division of which may be had in lands or tenements, and which are interests, in connected with the science of conveyancing, may be the W1 ~f* J ° ' J sense of the divided into— term, in lands I. Legal interests of the measure of freehold. ortenements. II. Legal interests for a term of years. (d) Davies v. Speed, Carth. 262 ; Plunket v. Holmes, Raym. 28 ; Purefoy v. Rogers, 2 Sand. 380 ; Carter v. Barnadiston, 2 Bro. Cas. Pari. 1 ; and Loddington v. Kime, 1 Salk. 224 ; as cited Fearne, 353—356. And Fearne, 360—364. [ 22 ] I. 3- a."] AN ORIGINAL VIEW [65-69. III. Equitable interests of the measure of freehold. 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 I. A legal interest of the measure of freehold is a right 65 a legal free- constituting the object of a limitation whereby a grant or hold interest. dev ; se [ s ma( j e , and extending to the legal seisin, property, See § 63, 84. 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 consti- 66 a legal inter- tuting the object of a limitation, and extending only to of years ^ tne actua ^ possession, either with or without the beneficial enjoyment, for a certain number of years. Definition of III. An equitable interest is a right constituting the 67 an equitable object of a limitation, and extending merely to the bene- freehold in- terest. ficial enjoyment for a period of the measure of free- hold, in contradistinction as well to the legal seisin, See § 63,65, property, or ownership, as to the actual possession. 84 - Interests of this 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 term of years is a right 68 f^erestfora constitutin S the object of a limitation, and extending term of years. mere ty to tne beneficial enjoyment for a certain number of years. Definition of V. What, for the sake of convenience, is above termed 69 taST m " a qUaSi interest ' is a P ow ei' or possibility 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 — Jpeciefof ent !' Present ri § hts of entl T or action for conditions quasi inte- broken > and present rights of action for the recovery of rests. an es tate. 2. Mere possibilities, in the technical and specific sense, such as — I. 3. ii.] OF EXECUTORY INTERESTS. [§70—71. [ 23 ] (1) A a possibility of reverter on a grant of a quali- fied or determinable fee. (a) (2) A b possibility of reverter on a grant of an estate for life in a term, where there is no limitation over, (b) (3) A c contingent right of entry, in case there should be a breach of a condition subsequent (c) ; or a d future right of a wife to enter after her husband's death, (d) 70 VI. The nature of a mere precarious possession is suffi- Mere preca- ciently obvious from the term itself. Such a possession nous P os " -, sessions. may exist — 1. With the right of possession ; (1) With consent of the proprietor, as in tenancies at will. (2) e Adverse, as in the case of a disseisor, where 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) e 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, un- Definition of founded in any limitation, provision, trust, or legal act an ex P e ct- whatever; such as f the hope which an heir apparent ^' has of succeeding to the ancestor's estate, (f) This is sometimes said to be a share or mere possibility, (g) and, h at other times, less than a possibility, (h) It is a pos- sibility in the popular sense of the term. But it is less than a possibility in the specific sense of the term possibility. (a) See Fearne, 381, note (a), 1. (b) Fearne, 488. (c) See Fearne, 381, note (a), 1. (e0 Fearne, 289. (e) See Fearne, 286, note (e). 2 Bl. Com. c. 13. Burton's Compendium, I. 6. (/) Carleton v. Leighton, 3 Meriv. 671. ig) Fearne, 370-1. (Ji) Fearne, 551. [ 24 ] I- 3. iii.] AN ORIGINAL VIEW [§ 72-75. For it is no right at all, in contemplation of law, even by nobility; because, in the case of a mere expectancy, thing 1- been done to create an obligation in any event -and l where there is no obligation, there can be no right ; for right and obligation are correlative terms, (i) °VIII Powers of appointment of real property are 72 powers of creating an interest in the same by appointing it to certain uses. 7 „ IX. Charges on real estate are sums of money payable ^ out of the same. X. A lien is a hold upon property, for the satisfaction 74 of a claim attaching thereto, under An express charge or contract, or a constructive trust. Thus, '-judgments, statutes, and recognizances do not create any right in the land, but only a lien on the land, which may or may not be enforced upon it. (k) Interests, in In regard to personal property, it will be sufficient 74a the widest oenerally to observe, that subject to the well-known dis- senseofthe ^ inctions between real and personal estate, the various sTnal fo- 6 "" interests which may be had in personal property are sus- perty. ceptible of a similar division, and of similar definitions. Definition of a power of appoint- ment. Definition of a charge. Definition of a lien. I. Division of freehold interests with refer- ence to the existence & c. of the seisin, pro- perty, or ownership. SECTION THE THIRD. The different kinds of Interests of the measure of Free- hold in Lands and Tenements, and Interests in Chattels, analytically arranged, defined, and distinguished. I. Interests of freehold duration in lands and tenements, 75 and interests in chattels, when considered with regard to the existence or non-existence, or acquisition or non- acquisition, and the certainty or uncertainty, of the seisin, property, or ownership, and the presence or expectation of the possession or enjoyment, and the circumstances in which such expectation is founded, maybe a divided (a) into — (i) Paley's Moral and Polit. Phil. B. II. c. x. (k) Story's Eq. Jur. §416. (a) On this point see Fearne, 1 , and note (a). I. 3. iii.] OF EXECUTORY INTERESTS. [ § 75. [ 25 ] 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 chattel interest of uncertain dura- tion. (d) A present vested interest, subject to a suspension 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; (2) Interests under augmentative limitations ; (3) Interests under diminuent limitations ; and (4) Interests under conditional limitations ; — where such interests are to take effect 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 limitations of the whole, or the immediate part, of a reversion. (7) Contingent remainders. (8) Contingent quasi remainders. r 2g ] I. 3. iii.] AN ORIGINAL VIEW [§ 75a-78a. v cf.rl and executory interests may be defined either- 75a Two modes A ested and execuuny j possession of defining 1. With reference to the right of actual possession vested and or enjoyment. executory Without reference to the right of actual possession interests. or enjoyment. 1 Definition 1. A vested interest or an actual * estate properly 76 of vested and s0 called, (ft) if defined with reference to the right of pos- executory in- w ^ n or en j oyme nt, is that kind of present right of present terests, with possess ion or enjoyment, which is actually S % clothed with the seisin, property, or ownership. And a 77 possession or PRESENT vested interest is a right of present possession or enjoyment. ■ nt or both ; or, a present right of having the „7tett VC o possession or enjoyment, or both, at a future time to actual estate, which there is mere postponement of the possession or -of a pre- enjoyment, or both, either in favour of a prior chattel sent vested i nteres t of uncertain duration, or in the absence of a interest - prior chattel interest, and not a postponement of the seisin, property, or ownership ; or, in the case of real estate, a present right of having the possession or enjoyment, or both, whenever there may be a vacancy thereof by the determination of a preceding term for years. Whereas a 78 — of a future future vested interest is a present right of having the vested inter- possession or enjoyment whenever it may become vacant, est ' in the case of real estate, by the determination of a pre- ceding freehold estate, or, in the case of personal estate, by the determination of a preceding chattel interest. Remarks on It must be observed, that a vested interest is present or 78a the distinc- f u t U re, solely with reference to the seisin, property, or a°resentand ownership, and not with reference to the possession or a future vest- enjoyment, or both. If the interest comprises the imme- ed interest, diate portion of the seisin, property, or ownership, it is a present vested interest, even though the possession, or enjoyment, or both, be postponed to a future time. And hence a vested interest, in real estate, which is limited to (b) See Fearne, 1 , notes (a) and (b). 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. I. 3. iii.] OF EXECUTORY INTERESTS. [§ 79—84. [ 27 ] take effect after the regular expiration of a term for years, is a present vested interest ; because, inasmuch as a term for years does not extend to the seisin, property, or owner- See §58. ship, of lands or tenements, there is a mere postponement of the possession, or enjoyment, or both, during the term, and not a postponement of the seisin, property, or owner- ship. But a like interest in personal estate is a future vested interest; because, when an interest for years is cre- ated out of a term or other personal estate, it does carry a part of the property or ownership in such term or other personal estate. 79 When the right is a right of present possession, and the When an party is in possession, whether personally or by substitute, estate is 80 the estate is said to be vested in possession. When it pos S e SS -" n# is a present right of having the possession whenever it See §49. may become vacant by the determination of a preceding chattel interest, or whenever it may become vacant by the determination of a preceding freehold estate, or at some When an es- other future time to which only the possession is post- fate is vested poned ; in each of these cases, the estate is said to be ^"^j or 81 vested in right or interest. And even when it is a present right of present 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. 82 Sometimes the word vested is used, not in the strict Vesting in- and technical sense, but to express a vesting sub modo, an ^^j^ attaching inchoately or inceptively ; as, c where 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 survivor- ship. And d so where an interest is said to be vested in a person so far as tobe transmissible to his representatives. (d) 84 An executory interest, or an interest in the narrowest Definition and technical specific sense of the word interest, is a of an execu- te) Fearne's statement of the case of Hopkins v. Hopkins, 525 (d) See the remarks of Lord Thurlow, C, in Barnes v. Allen 1 B. C. C. 181, cited 1 Rop. Leg. by White. 513. c 28 ] I. 3. iii.] AN ORIGINAL VIEW [ § 85-90. tory interest, present or contingent right of present or future possession See § 63, 65. or enjoyment, or both, constituting the object of a hmita- See § 69. t j on w hereby a grant, devise, or bequest, is made, and not yet clothed with the seisin, property, or ownership, but destined to be clothed therewith in a certain or con- See §76, and tingent event. In this sense, the word interest is fre- note (b). quently used in contradistinction to an estate. Definition of A certain executory interest is a present right of 85 a certain ex- having the possession or enjoyment, or both, at a future ecutory in- p er i d, which is sure to arrive, and irrespective of the in- terest. ^^ ex pj rat j on f an y ther interest. — of a con- A contingent executory interest is a contingent 86 tingent exe- right of having the possession or enjoyment, or both, in cutory inter- soaie unC ertain event. est. 2. Definition 2. A vested interest or an actual estate, if defined 87 of vested and without reference to the right of possession or enjoyment, is executory in- ^ seis i n; property, or ownership, or a portion thereof, ouTreference wmc ^ in ^ e case °f rea ^ estate IS °f ^ ie measure of free- to the right hold, actually acquired by and residing in the person of posses- w ho is said to have an estate or vested interest. And swnorenjoy- a pREgE3ST vested interest is the entire seisin, pro- 88 meat. ' perty, or ownership, of which any subject or property -—ota vested j g suscep tible, or the immediate portion thereof, which, in interest or actual estate. tne case °^ rea ^ est ate is of the measure of freehold, actu- — of a pre- a ^y acquired by and residing in the person who is said sent vested to have such present vested interest. Whereas, a future 89 inteiest. vested interest in lands or tenements, is a portion oa tuture f t n e seisin, property, or ownership, of the measure of est in lands freehold, next after a preceding freehold estate, and actu- ortenements. ally acquired by and residing in the person who is said — of a future to have such future vested interest. A future vested 89 a vested inter- interest in chattels is a portion of the property or est in chit- • te j g ownership, next after a preceding vested interest, and actually acquired by and residing in the person who is said to have such future vested interest, —of an exe- An executory interest is the seisin, property, or 90 cutory inter- ownership, or a portion thereof, of the measure of free- hold, not yet acquired by the person who is said to have —of a cer- sucl1 executory interest, but appointed by the terms of a tain execu- grant or devise to be acquired by and to reside in him in tory interest, a certain or contingent event. And when such event is I. 3. Hi.] OF EXECUTORY INTERESTS. [91—92. [ 29 ] certain, the interest is a certain executory interest Definition when the event is contingent, the interest is a con- °. a con " ° tingent exe- tingent executory interest. cutory in- terest. 91 e Vested and executory interests have been defined by Vested and the great authority upon the subject, with reference to executory m- the right of possession or enjoyment, (e) This is con ~ mos t co venient in some respects. But, it must be observed, that ly defined a vested interest may frequently be unattended with the without re- right of possession or enjoyment; since that right may terencetothe reside in some other person than the individual having session or en- such vested interest. And hence, as the right of posses- joyment. sion or enjoyment is only a separable incident, perhaps it See § 50. is not strictly correct to make it the basis of a definition of a vested interest. Such interests, therefore, may per- haps be more scientifically and accurately defined without reference to the right of possession or enjoyment, as in See § 87-90. the definitions lastly above given. 92 Definitions of the several kinds of certain and contingent The several executory interests, are embodied in, or may be imme- !"? s °, cer " / i • • o i" ■ • tain and con- diately formed from, the definitions of the limitations ere- tingent exe- ating such interests, as given in the next chapter. Thus, a cutory inter- limitation of a springing interest is there defined to be, a ests - limitation which creates an interest, by way of use or See § 117. devise, to take effect &c, from which the reader will perceive, that a springing interest is an interest, by way of use or devise, to take effect &c. : And so with alternative See § 128, interests and interests in remainder. And interests under ^S. augmentative, deminuent, and conditional limitations, and 147 149 ' interests under limitations of the whole or the immediate 169. part of a reversion, may of course be defined by means of the definitions of such limitations. Thus, an interest under an augmentative limitation, is an interest under a limitation See § 137. by deed at common law, under which &c. It was consi- dered 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. (e) Fearne, 2. [ 30 ] I. 3. iii.] AN ORIGINAL VIEW [§ 93-101 . II. Division II. Looking to the nature of the contingency, contin- 93 of contingent g ent interests may be further divided into — interests with to j Thoge whi(jh are con tingent on account of the reference to the nature of person. the contin- 2. Those which are not contingent on account of the g encv ' person. 3. Those which are 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 the per- 94 an interest sori) i s one w hich is contingent by reason of being limited which is con- t person who is unborn or not yet ascertained ; or tingent on r , . ., •' . . , account of limited to a person when he shall sustain a particular the person, character, arrive at a given age, or fulfil a certain condition. III. Division III. Contingent interests are also susceptible of further 95 ?' cont,n £ ent division, in regard to their capacity of transmission. But interests . . . with refer- * ms w ^ ^ orm tne SUD Ject °f a distinct chapter. (See § 742-8.) ence to transmission. IV. Division IV. With reference to the certainty of their duration, 96 or interests interests are divided into — with refer- , --. ,, .. , ence to L Defeasible. certainty of 2. Indefeasible, or absolute. duration. Definition of A defeasible interest is an interest that is subject to 97 a defeasible be defeated by the operation of a subsequent or mixed interest. con dition. (See § 12, 15—19, 14, 20.) — of an in- An indefeasible interest, or an absolute interest as 98 defeasible or opposed to a defeasible interest, is one that is not subject absolute in- to any condition. terest. J V. Division V. With reference to the quantity of interest, they are 99 with refer- divided into — mce £ . 1. Absolute, quantity of . interest. 2 - Limited. Definition of The absolute interest, as opposed to a limited interest, 100 is an interest which comprises the entire ownership of which the entirety, or some portion of the entirety, £teSr late ^ &n inter6St WhiCh com P rises the entire ownership of which the entirety, or some portion of the entirety, - ofalimit- of any hereditament, is susceptible. A limited interest 101 eel interest. I. 3. iii.] OF EXECUTORY INTERESTS. [§102—104. [ 31 ] is one which does not comprise that entire ownership. The distinc- 102 When the term " absolute " is used in this sense, the ^ on between , ,, . ,, n 1 , ., , the absolute definite article " the is usually prefixed to it, as above, j nterest anc { in order to distinguish it from " an absolute interest " in an absolute 103 the sense of an indefeasible interest. But the term " an interest, absolute interest " is sometimes, though not often, used even in opposition to the term "limited interest." ]04 These definitions equally apply whether the interests are Foregoing legal or equitable, in real or in personal estate, according definitions to the nature of the ownership or property which they jj^ [ and respectively constitute: the word property or " owner- equitable in- ship," in the case of a legal interest, referring of course to terests, and the legal ownership; and the same word, in the case of g^*" an equitable interest, referring to the equitable or bene- estate, ficial ownership. [32] I. 4. i.] AN ORIGINAL VIEW [§ 105-110. CHAPTER THE FOURTH. Two senses of the word limitation. Definition of a limitation, in the deriva- tive sense. See$28— 33, REMAINDERS IN GENERAL, AND THE OTHER KINDS OF LIMITATIONS, IN THE DERIVATIVE SENSE, ANALYTICALLY ARRANGED, DEFINED, AND DISTINGUISHED. We have seen in a preceding page, that the word limit- 105 ation is used in two senses, which, for convenience, are there respectively designated "the original sense" and "the derivative sense." Limitations in the derivative sense, that is, entire sen- 106 tences a creating, (a) and actually or constructively mark- ing out the quantity of an estate, are those which form the subject of the present chapter. Division of such limit- ations into simple and qualified. Definition of a simple or absolute li- mitation. Definition of a qualified li- mitation. Distinction between di- rectly quali- fied and indi- rectly quali- fied limit- ations. SECTION THE FIRST. Division of Limitations into Simple and Qualified, with definitions of those terms. In regard to the manner in which the estate created is 107 founded, such limitations may be divided into — I. Simple or b absolute limitations, (b) II. Qualified limitations. 1. Directly qualified. 2. Indirectly qualified. What is here termed a simple or absolute limitation, \q$ is a sentence creating an estate with only a general limit- ation (in the original sense,) or limit. On the other hand, what is here termed a qualified limitation, is a sentence \Qy creating an estate with a special or collateral limitation (in the original sense,) or limit. (See § 26, 28, 34.) Qualified limitations may be subdivided into directly 110 qualified and indirectly qualified, according as the special limitation or limit is direct or indirect. (See § 41 — 2.) (a) See Prest. Shep. T. 117. (£) Fearne, 10, note (h), fifth paragraph. 1.4. ii.] OF EXECUTORY INTERESTS. [§ 1 1 1—1 1 la. [ 33 J SECTION THE SECOND. Division of Limitations into Immediate and Executory, ivith Definitions of those terms, and Observations thereon. Ill Limitations, or the gifts made by them, when considered Division of with reference to their conferring, or not conferring vested | imit ^ tl0ns . , into lmme- mterests, are termed either, diate and I. Immediate grants, devises, bequests, or limitations ; executory. meaning thereby, limitations or gifts of vested inter- See § 75. ests, whether present or future ; or II. c Executory grants, devises, bequests, or limitations ; meaning thereby, limitations, or gifts of executory See § 75. interests, whether certain or contingent, (c) Ilia The term "executory devise" would have been most The generic properly used as above, in the generic sense, in contradis- sen seof the r r J ' ° m term " exe- tinction to an immediate devise, so as to include contin- cutorv ^ e . gent remainders, as well as other d future interests " limited vise." to arise and vest upon some future contingency"; (d) so as to comprise, in fact, all limitations of executory interests See §84,90, by way of devise. But the term is almost invariably The specific used in a narrower sense, in contradistinction as well to ana " usu al • , , j- . i sense of the contingent remainders, as to immediate devises, so as to t denote e " such a limitation of a future estate or interest in lands or chattels, as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law,' 1 (e) or, in other words, to denote limit- ations of springing interests, limitations of interests by See § 117, way of conditional limitation, and quasi remainders after }S[ 9 ' 168 " a life interest in personal estate ; as distinguished from those limitations of future interests which were good limit- ations at common law; namely, limitations by way ofSee§159, remainder, limitations of the whole or the immediate part 169, (c) See Fearne 1, note (a). (d) See the definition quoted, Fearne, 381. (e) Fearne, 386. Rents, offices, and dignities, not previously subsisting, might be limited to commence infuturo, even at com- mon law. Fearne, 528, 529. D [34] L4.H.] AN ORIGINAL VIEW .[§ lllb-lllc See | 137 of a reversion, augmentative limitations, and diminuent 147,' 128.' limitations. An alternative limitation, though always an executory devise in the generic sense of the term, as opposed to an immediate devise, is not always an execu- tory devise in the specific and usual sense, in contradis- tinction to contingent remainders ; for many alternative limitations are contingent remainders in relation to the particular estate. The generic Limitations of springing interests, conditional limita- 111b term execu- tionS5 quas i remainders after a life interest in personal tory devise ^^ &nd alternative limitations, when contained in wills, useTinstld are seldom distingished or designated by these or any of specific other specific terms, but are usually denoted by the gene- terms. ra j term f executory devises. t,, • . a . It has, doubtless, been found convenient to use this ge- 11 1 c 1 ins nub i r. generally neral term, and other general terms, instead ot more spe- arisen from c jfi c terms — convenient, that is, in one respect ; namely, the im P ei t j^t because the learning of executory interests, as a science, science, and may perhaps be truly said to have been hitherto in its in- iias been very fancy. Cases, indeed, in abundance upon this branch of prejudicial. | aw> nave been brought before the Courts and decided, and with few exceptions, rightly decided ; and these de- cisions have equally illustrated the immense value of the practice of hearing counsel on both sides, and the sound judgment 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 decisions upon points which other cases had previously and satisfactorily decided ; not un- frequently evince the want of a correct and perspicuous analytical arrangement of the different kinds of interests, and the various sorts of conditions and limitations on which they depend, or by which they are created or af- fected ; as well as the want of just and precise 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, embodied in rules and propositions, and explained and commended by the expression of the grounds and reasons on which they I. 4. ii.] OF EXECUTORY INTERESTS. [§ 111c. [ 35 ] 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 al- most 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 gene- ralise, and generalisation can be accomplished with accu- racy, the general designation is the most appropriate. But, in the great majority of cases, the maxim, error latet in generalibus, was peculiarly applicable ; and the use of general designations, instead of specific terms, has been the source of passages in the books, which, embracing dis- tinct and dissimilar cases, greatly tend to mislead; of i vague, confused, and erroneous conceptions in the student; of perplexity and mistake in the practitioner, and some- times 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, For this rea- well-defined, and perspicuous view of the various kinds son, specific r , r , , . , ! i terms are of future interests, the author has almost always employed uged in the a specific term, in preference to a general designation ; present es- and in fact, f contrary to the course hitherto pursued, (/) say, rather has exhibited and treated of the various conditions, limi- ~JJ ®^^ tations, and interests, with especial f " regard (to use the specific the language of Feame) to their specific distinctions and distinctions relations." (/) This, the author humbly submits, is the a j?^^° nS only way of endeavouring, with any prospect of success, twe c en the to mould the subject into a more correct, determinate, and various con- scientific form, so as to rescue it from that state of dis- ditions, limi- tressing uncertainty, discrepancy, and confusion, in which ^^^™ re many points in reality, though not apparently to t^e pointed out. superficial observer, were left, even after the publication of the justly celebrated Treatise of Fearne ; and in which state, many more points exist at the present day, after the (/) See Fearne, 415. d 2 r 36 ] I. 4. iii.] AN ORIGINAL VIEW ftllld— Hlg- loner interval that has elapsed since the death of that illus- trious man. SECTION THE THIRD. Of Limitations of Vested Interests, when considered with reference simply to the possession or enjoyment, or both. I. Of limitations of interests vested in possession, or in en- Hid joyment, or in both. These are limitations which confer a right to the im- mediate possession, or enjoyment, or both, as well as the immediate portion of the seisin, property, or ownership of and in real or personal estate. II. Of limitations of vested interests in real estate, subject Hie to a term for years. See § 245 — These are limitations which merely suspend the posses- 257, 124a. s | on or enjoyment, or the possession and enjoyment, of real estate, till the certain regular expiration of a term for years, without suspending the seisin, property, or ownership of and in such real estate. See Part II. HI. Of limitations of vested interests, subject to a chattel HI * c * interest of uncertain duration. 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 chattel interest of uncertain duration, without suspending the seisin, property, or ownership of and in such real or personal estate. See Part II. IV. Of other limitations of vested interests, subject to a lllg c - **"• suspension of the possession or enjoyment, 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 the determination of a prior interest, without suspend- ing the seisin, property, or ownership of and in such real or personal estate : as if real or personal estate be devised 1.4- ivO OF EXECUTORY INTERESTS. [§112. [37] or bequeathed to a person ; with a direction that he shall take a vested interest, but that he shall not be put into possession till he shall attain his majority. SECTION THE FOURTH. A Fourth Division of Limitations into those forming the subject of the following sections. 112 With reference to the existence or non-existence, cer- tainty or uncertainty, of the possession or enjoyment by virtue of the interests which they create, as well as to the various modes in which they are constructed, limitations may also be divided into, I. Limitations constituting grants, devises, or bequests, in See § 75a, prcesenti, or limitations of present vested interests. 77 > 7 §a, 88. 1. Absolute. See § 113. 2. Hypothetical. See §114. 3. In default of appointment. g ee ^ j j 5 II. Limitations constituting grants, devises, or bequests, in futuro. 1. Limitations creating future vested interests. See §78, 89. (1) Limitations by way of vested remainder. § 159, 171. (2) Limitations by way of vested quasi remainder. See § 168. (3) Limitations of vested interests in the whole, See § 169. or the immediate part, of a reversion. 2. Limitations creating certain executory interests. See § 85, 90. (1) Limitations of springing interests ; § 117, 127b. (2) Augmentative limitations ; See §137. (3) Diminuent limitations ; and See § 147. (4) Conditional limitations ; See §148-9. — where such limitations are to take effect on an event or at a time certain. 3. Limitations creating contingent executory in- See § 86, 90. terests. (1) Limitations of springing interests ; § 117, 127b. (2) Augmentative limitations; See § 137. (3) Diminuent limitations ; and See § 147. (4) Conditional limitations; See § 148-9. — where such limitations are to take effect on an event or at a time which is un- certain. - 5 169. [3 8] I. 4. v.] AN ORIGINAL VIEW Q 113-116. , „ , „ (5) Limitations by way of contingent remainder. \ \" s (6) Limitations by way of contingent qua* re- mainder. . (7) Limitations of contingent interests in the whole, or the immediate part, of a rever- sion. See | 12 8 (8) Alternative limitations. lib. (9) Clauses creating powers of appointment. SECTION THE FIFTH. See Sect III Of Limitations of Present Vested Interests, when con- sidered with reference 'to the modes in which they are constructed. I. Of absolute limitations. 11 An absolute limitation is a sentence by which an estate is created so as not to be dependent on any condition whatever. II. Of ^hypothetical limitations. 114 What is here termed an hypothetical limitation, is a sentence which creates an estate in an event or on a con- dition fulfilled or decided at or before the delivery of the deed, or s to be fulfilled or decided at or before the death of the testator, (g) III. Of limitations in default of appointment. 115 A limitation in default of appointment, is a sentence in which an estate is limited to a person, in case of the non- exercise of a power of appointment ; and the effect of which is, to create a vested interest, subject to be de- feated by the exercise of the power. See ^ 111c- * For the sake of convenience, perspicuity, and exactness, the 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 except a generic term. ( 975.' there stated. See also Fearne, 400 . [ 40 ] I. 4.vii.] AN ORIGINAL VIEW [§ 120-123. his right in Moorlinch, if an act should pass for inclosing the said moor within 20 years. And he directed the monies to arise by such sale, to be divided between certain persons whom he named. It was held that this was an executory devise to take effect after an inclosure act. Definition of II. The second is a sentence which creates a freehold 120 the second interest to take effect on the regular certain expiration of kind : , 04 a chattel interest, but such freehold interest is contingent SeG * * a * on account of the person. As where a testator devises to A. for 21 years, and then to the first unborn son of B. in fee. Definition of III. The third is a sentence which creates a freehold 121 the third interest which is to take effect after a preceding chattel kind# interest, but only on a contingent determination of such See § 34- chattel interest by force, of a special or collateral limita- 42, 124a. tion. As if land is devised to A. for 21 years, if B. shall so long remain at Rome ; and if he quit Rome during the term, to C. in fee. Or, where land is devised to A. for 21 years, if he shall so long live ; and on the death of A., then to B. in fee. Danger of There is a danger of k confounding the kind of spring- 122 confounding i n g interest exhibited in the first of these examples, with the second, a con tino;ent remainder of the first class hereafter men- third, and . , ,r v « i ■■• • ■ -i-iii j fourth kinds turned. (/<) Such a limitation might indeed be termed a of limitations remainder, as regards the possession, or the enjoyment, of springing or both. But it is not a remainder, in relation to the interests with . . . ,. , ,, #» . contingent seisin, property, or ownership, and therefore not a re- remainders, mainder properly so called. See § 159 ^nd the same danger exists, in fact, of confounding 162. other instances of the second, third, and fourth kinds of limitations of springing interests with contingent re- mainders. Definition of ly. The fourth is a sentence which creates a freehold ]23 , • i interest after a preceding term for years, to take effect, in See § 253, (k) The learned Editor of the former editions of Fearne appears 254. to have fallen into this error. (See 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. [§ 124—125. [ 41 ] right, on an event or at a time unconnected with the See § 124a. original measure and the regular expiration of the term. As where land is devised to A. for 21 years ; and if A. 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 freehold in- Definition of terest after a preceding term for years, to take effect, in the fifth possession, or enjoyment, or in both, in defeasance of the ^ ln "- term, or of the beneficial interest therein, on an event or at a time which may happen within the term, but is un- connected with the original measure and the regular expi- ration 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 See §148, 9. called, as regards the possession, or enjoyment, or both, is a limitation of a springing interest, as regards the See § 117, seisin, property, or ownership; and therefore most pro- 152. perly classed among those springing interests which do not affect a prior freehold. 124a From the second, third, fourth, and fifth kinds of Limitations springing interests, we must be careful to distinguish of vested in- limitations of vested interests, subject to a term or terests, sub- other chattel interest, or, in other words, limitations of chattel inter- a freehold interest in favour of a person in being and est, must be ascertained, to take effect in possession, or enjoyment, distinguished or both, on the regular and certain expiration of an rom /^ . , actually subsisting term or other chattel interest, and fourth and without requiring the concurrence of any collateral con- fifth kinds of tinffency. And from the first kind, we must distinguish "nutations of sprin^insr other limitations of vested interests, subject to a suspen- interestsT sion of the possession, or enjoyment, or both. See § 1 He- ll lg, 248- 254 ion VI. The sixth is a sentence which creates an interest to _ ' . . x *° , „ . , . , , t ,.,. . , Definition of take effect at a time which could not arrive till a period t ^ e s j xt h subsequent to the expiration of a preceding interest. As kind. 1 where a devise is made to A. for life, remainder, after the death of A. and one day afterwards, to B. for life. (7) (I) Fearne, 398. [ 42 ] I- 4. vii.] AN ORIGINAL VIEW [§ 126-127a. Definition of VII. The seventh is a sentence which creates an in- 126 the seventh terest to take effect on the regular expiration of a kind. qualified fee which must expire, if at all, within the period prescribed by the rule against perpetuities. As m where land is limited by way of use or devise, to A. and his heirs, till B. shall &c. ; and then to B. and his heirs, (m) Observation n« There is no clearer rule inlaw" (says Lord Notting- 127 of Lord Not- liam ^ u t h an t hj Sj tnat there can be no remainder limited upon an estate in fee; yet public reason and the con- venience of common assurances 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 him- self and his heirs until a marriage happen, and then to the son and his heirs, this is a good fee by common expe- rience." (w) Remarks on This is not a vested interest, subject to a chattel in- the case put terest, because the marriage might never happen ; and by him ' it was never intended that the estate of the father and his heirs should cease unless it should happen ; and con- sequently the words of limitation, " and his heirs,"" must carry the entire ownership of which the land See § 1 1 1 f. was susceptible. This case is distinguishable 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 A. 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 chattel interest. These limita- These limitations of springing interests can only be by 127a tions can wa „ f use or devise. They would be void if inserted in only be by * J way of use a ec * at comm ° n l aw - or devise. (m) 2 Bl. Com. 334. See also Fearne, 373. O) Lord Nottingham, in Howard v. Duke of Norfolk, 2 Swanston, 461. ex- I.4.viii.] OF EXECUTORY INTERESTS. [§ 127b— 129. [ 43 ] When they are by way of use, they are sometimes They are termed springing uses. Those which are by devise are terme d usually designated by the generic name of executory *L * i* devises. ecutory de vices. 127b A limitation of a springing interest in personal estate, Definition of is a clause which creates an interest, by way of devise or a limitation of trust, to take effect at a future time, without being pre- • • \ ®" ' , , . . & f . ln g interest ceded by, or without affecting any other interest. Limi- j n personal tations of this kind, by way of bequest, are usually desig- property. nated by the generic name of executory bequests. SECTION THE EIGHTH. Of Alternative Limitations. 128 -An alternative limitation is a sentence which creates Definition of an interest that is only to vest in case the next preceding; an alterna- • • ti a limits interest should never vest in any way, through the failure ! ve lmma ~ . tion. of the contingency on which such preceding interest de- pends. As ° where a testator devises to A. for life ; and if he have 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 bequeaths personal estate to the first son of A.; and if A. should have no son, then to B. (o) to these limi- tations. 129 These limitations, or the gifts made by them, con- Different sidered in conjunction with those for which they are names given substitutionary, are sometimes termed P contingencies with a double aspect ; (p) or ^ gifts upon a double contin- (o) Loddington v. Kime, 1 Salk. 224, as cited, Fearne, 225, 373. And see Doe d. Brown v. Holme, 3 Wils. 237, 241, as stated, Fearne, 374; and Biggins v. Bowler, or Derby, 1 P. W. 98 ; Stanley v. Leigh, 2 P. W. 686 ; Stephens v. Stephens, Cas. temp. Talb. 228; Green v. Ekins, 3 P. W. 306, note (F), 4th ed.,as stated, Fearne, 518 — 522. (p) See Goodtitle v. Billing ton, Dougl. Rep. 725, or 735 ed. 3 ; and Loddington v. Kime, as stated, Fearne, 267, 373 ; and Hockley v. Mawbey, 1 Ves. 149, stated, § 530. [ 44 ] I. 4. viii.] AN ORIGINAL VIEW [§ 130-132. o-ency; ( tnere is a remaining portion of the der,'strictly term ' or tlle beneficial interest therein, or both, to consti- so called, ' tute a remainder at the period of limitation ; yet the term though it may have ceased to exist long before a future interest may be ana- ° logoustoone. — — __ (k) Fearne, 226, note (d) ; and Fearne, 372, note (a). (i) Fearne, 13, note (£*). («) Fearne, 401, note (e); and see lb. 3, note (c) 2. I. 4. xiii.] OF EXECUTORY INTERESTS. [§ 168b. [ 59 ] can take effect. Whereas, in the case of lands or tene- ments, the subject of property remains for ever; and the property or ownership which may be had therein, is com- mensurate with the duration of the lands or tenements themselves. Besides this, terms for years were originally of short duration, created for agricultural purposes, rather than for purposes of complicated family arrangements. And b hence not only could there be no remainder in them, but "it was once considered that they were incapable of any limitation over." (b) But c now an interest after an in- terest 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) 168b And as regards chattels personal, in the very nature The same is of things, in order that there may be room for a remainder, t ^ le case with at least for a vested remainder, there must be some por- i " r " tion of the ownership remaining, which has not been pre- viously 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 incidental 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 owner- ship 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 chat- tels personal chiefly consisted of things of a perishable nature, such as corn and cattle ; it is obvious why it was considered that no remainder could be limited in chattels personal. A distinction, however, was afterwards taken d 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 former was good, (d) And (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. 612, pi. 3 ; as stated, Fearne, 402—3. (d) Fearne, 402. [ 60 ] 1. 4. xiv.] AN ORIGINAL VIEW [§ 169. subsequently it has been held, that an interest even after a life interest in a personal chattel may be limited, e as a legal interest, by way of bequest, (e) or, f as an equitable interest, either by way of bequest (/) or s by way of trust, {g) SECTION THE FOURTEENTH. See § 375- Of Limitations of the Whole, or the Immediate Part of a 382. Reversion. Definition of Limitations of the whole, or the immediate part, of a 169 these limi- reversion, are limitations of an entire previously subsisting tationsof the revers i on> or f a part of it, to take effect in possession, subject only to any term for years or contingent interest that may intervene, immediately after the regular expira- tion of the particular estate or estates of freehold duration created by a previous instrument out of the same subject of property. (e) See Lord Chancellor's observations in Foley v. Burnell, 1 Bio. Chan. Cas. 274, as stated, Feame, 412 ; and Hoarev. Purker, 3 Durn. & East, 376, as stated, Feame, 415. But see also, contra, Fearne, 413, 414. if ) Catchmay v. Nicholls, and Shirley v. Ferrers, 1 P. W. G, in note ; and Hyde v. Perralt, 1 P. W. 1 ; as stated, Fearne, 405—6. (ers scientific and accurate mode,) may be defined to be, a out re f erence portion of the seisin, property, or ownership, of the mea- to the right sure of freehold, next after a preceding freehold estate, °f possession and actually acquired by, and residing in, the person who 01 e ^°^\, J ^ J & ' r ment, or the is said to have such vested remainder. (See § 91.) possession or 172 A contingent remainder, on the other hand, may be enjoyment defined to be, a portion of the seisin, property, or owner- ltse ''- ship, of the measure of freehold, which is next after a preceding freehold estate, and is not yet acquired by the person who is said to have such contingent remainder, but is appointed, by the terms of the grant or devise, to be acquired by, and to reside in him, in a contingent event. 173 II. A vested remainder, if defined with reference to Vested and the right of possession or enjoyment, (which is the mode contin S en [ 62 ] I. 5. ii.] AN ORIGINAL VIEW [§174-177. remainders adopted by Feame,) may be defined to be, one that is so defined with limited to a person in being and ascertained, that (subject reference to tQ &ny guch c ] iatte l r other interest collateral to the Mss^Snor seisin, property, or ownership, as extends to the possession enjoyment, or enjoyment) it is capable of taking effect, in possession See §50, 51. or enjoyment, on the certain determination of the parti- cular estate, without requiring the concurrence of any collateral contingency. A contingent remainder, on the other hand, is one 174 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 concurrence of some collateral contingency. Vested and III. A vested remainder, if defined with reference to 175 contingent t h e possession or enjoyment itself, may be defined to be, remainders rema i n( j er w hich, as regards the possession or enjoy- defined with , _ , . D , l , . . ,, . reference to ment, or both, (subject to any such chattel or other m- the posses- terest collateral to the seisin, property, or ownership, as sion or enjoy- ex t en ds to the possession or enjoyment,) does not strictly men i se . ^^ on an y unce rtainty at all, or any other uncertainty than that of its enduring beyond the preceding interest. A contingent remainder, on the other hand, is one 176 which, as regards the possession or enjoyment, does strictly depend on a contingency irrespective of its own duration. SECTION THE SECOND. The Distinctions betweenVested and Contingent Remainders pointed out, with Observations thereon. Distinction I. The non-existence, in a vested remainder, and the 177 as regards existence, in a contingent remainder, of a contingency the mode of . ,. „ ._, ° ' . , . ° . their ere- irrespective ot its own duration, on which the possession ation, form- or enjoyment strictly depends, is that which constitutes inga true the fundamental distinction between them, as regards the mode of their creation, and that which forms a true, tan- gible, and practical criterion for determining to which of the two species a remainder belongs. Consequen- II. And from this distinction in the mode of their crea- tiansmertS" ^ tW ° others > P ertair "ng to their nature and qualities, ing^toUieT" nec es*arily flow : 1.4. ii.] OF EXECUTORY INTERESTS. [§178— 182. [63] 178 1. In the one kind of remainder, there is, while, in the nature and other, there is not, an actually acquired portion of the tr, e preceding estate : for it has been shown, pend on a that a Remainder may be limited on a contingent deter- contingency mination of the particular estate, and yet be vested, so irrespective \ on „ as it is also capable of taking effect in possession on of their own . to . . r „ . ° . . r , duration. * ne cei 'tain expiration or that estate, without regard to any collateral contingency. (£) In the second and fourth 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 regard to some collateral events constituting a condition precedent which must be fulfilled before the remainder (e) Fearne, 9. (/) Fearne, 9. (g) See Fearne, 557 — 559, and Butler's note (c) to p. 358. (h) See the author's note (1) to Fearne, 226. (i) Fearne, 19; and Lord Vaux's Case, Cro. El. 269, as there stated. 1.5. iii.] OF EXECUTORY INTERESTS. [§189—195. [67] would be capable of taking effect in possession or enjoy- 189 nient. And though, in the third class, the event, 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 before the expiration of the preceding estate, which is 190 strictly a contingency. And hence all the kinds of con- tingent remainders, even where they are limited on the certain expiration of the particular estate, do, according to the foregoing definition, strictly depend on a contingency See § 176. irrespective of their own duration. 191 The k several kinds may all be combined in the same limi- They may all tation, as in the case of " a limitation to A., till B. returns be combined from Rome, and after the return of B. and C. from ,. . . limitation. Rome, and the death of J)., to the sons of A., in tail male, who shall first or alone attain the age of 21 years." (k) 192 A remainder after an estate tail may seem to be a con- Remainders tingent remainder of the first kind. But a failure f^ restates issue, though it may not happen till a very distant period, and though it is entirely uncertain when it will happen, is considered certain to happen some time or other. And 193 hence a remainder limited on an estate tail, without re- ference to a failure of issue at any particular time, and without requiring the concurrence of any collateral con- tingency, does not fall within the definition of, and there- fore is not an exception from, the first kind of contingent remainders, but is strictly and properly a vested re- 194 mainder. But l if an interest is limited to take effect on the regular expiration of an estate tail by reason of a failure of issue at a particular time, as, for instance, at the death of the tenant in tail, such interest is a contingent remainder. (I) 195 Every kind of interest which is a contingent remainder A contingent (k) Fearne, 9, note (g). (1) See Fearne, 7, note (d) ; and Driver d. Edgar v. Edgar, Cowp. Rep. 379 ; and Fountain v. Gooch ; as stated and com- mented on, Fearne, 426 — 428. f2 mainder. [ 68 ] I. 5. iii.] AN ORIGINAL VIEW, &c. ft 195. remainder in relation to the preceding estate, may become a vested may become remainder in relation to that estate, except the first of the a vested re- j. ] c j n( j s f con tingent remainders. For in the three last kinds, the event on which the remainder depended, being unconnected with the preceding estate, may happen 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 pre- ceding estate itself, no sooner does that event happen, than the preceding estate ceases, and the interest which was to take effect on such event, immediately becomes an estate in possession, or in enjoyment, or both in posses- sion and enjoyment. PART II. 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. [71 ] CHAPTER THE FIRST. OF THE CONSTRUING A LIMITATION TO BE A REMAINDER RATHER THAN AN EXECUTORY LIMITATION NOT BY WAY OF REMAINDER. 196 a It is a well-known rule, that a limitation shall, if possible, The general be construed to be a remainder, rather than an executory n " n] Stated" 197 devise. («) Or, to express the rule more precisely, and gee 674 _ 5 in its true extent, a limitation, whether by deed or devise, ^ era j shall, if it possibly can consistently with other rules of ru i e , & as more law, be construed to be a remainder rather than an execu- accurately tory limitation not by way of remainder. stated. 198 b The reason which is usually (b) and justly assigned for Reason this rule is, that an executory interest, not by way of re- usually as- mainder, unless it is engrafted on an estate tail, cannot be t] ° e game barred ; and, consequently, there is a tendency 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 have An addition- been originally adopted, partly at least, for another and & 1 reason, more general reason, which would seem to affect 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 (a) Fearne, 386, 395; and Purefoy v. Rogers, 2 Saund. 380 ; Walter v. Drew, Com. Rep. 372 ; Wealthy v. Bosville, Rep. K. B. temp. Hardw. 258; Carwardine v. Carwardine ; Doe d. Mussel v. Morgan, 3 Durn. & East, 376 ; Doe d. Brown v. Holme, 3 Wils. 237; and Goodtitle v. Billington, Dougl. Rep. 725, or 735 3d. ed. ; as cited, Fearne, 386—394. Spalding v. Spalding, Cro. Car. 185 ; as stated, Fearne, 420. (b) See Lord Eldon's observations in Doe d. Barnfield v. Wetton, 2 Bos. & Pul. 327. [72] II. 1.] AN ORIGINAL VIEW R 199. remainder, or by way of augmentative or diminuent Limi- UlWi' Ion couldonlybelimitedbywayofuseordevi S e;and \%A 5J£ mere trusts, which could only be .enforced m eauitv ' and therefore it is not improbable that the Courts,' for this reason, as well as for the preceding, may have inclined towards construing a limitation to be a remainder, rather than an executory interest not by way ot remainder. II. 2. i.] OF EXECUTORY INTERESTS. [§200-204. [ 73 ] CHAPTER THE SECOND. OF THE CONSTRUING AN INTEREST TO BE VESTED, RATHER THAN CONTINGENT. SECTION THE FIRST. The Rule stated, and the Reasons thereof explained. 200 It is a well-known general rule, that an interest shall be The general 201 construed to be vested, rather than contingent. Or, to ru,e > as com ~ express the rule more precisely, that, in doubtful cases, an ^ interest shall, if it possibly can consistently with other rule ^ more rules of law, be construed to be vested in the first instance, precisely rather than contingent; but, if it cannot be construed as stated, vested in the first instance, that at least it shall be con- strued to become vested as early as possible. 202 The following reasons may be assigned for this rule : — Reasons 203 1 • A contingent interest is generally more liable to be thereof ; destroyed than one that is vested ; and it is to be pre- ^' sumed, that a testator intends that species of limitation t ;' bi i itv of which will be most likely to secure the accomplishment of contingent his plans. interests. 204 2. " Testators that create contingent estates," observes 2. Abuse of Lord Chief Justice Best (a), " often forget to make any ^P^P^y provision for the preservation of their estates, and for the a ^ j aw j n the disposition of the rents and profits in the intermediate interim, 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, (a) In Duffield v. Duffield, 1 Dow & Clark, 311, 312. [ 74 ] II. 2. i.J AN ORIGINAL VIEW [§205-209. during the time that they remain heirs, regardless of any injury that the estates may suffer from their conduct." 3. Unsettled 3. " The rights of the different members of families not 205 state of the being ascertained while estates remain contingent, such family whose f am iij es con tinue in an unsettled state which is often pro- contingent, ductive of inconvenience, and sometimes of injury to them." 4. Want of 4. " If the parents attaining a certain age, be a condi- 206 provision for t j on p rec edent to the vesting estates, by the death of their C arett e sd°inffP arents before they are of that age, children lose estates under aoe of which were intended for them, and which their relation to 21, to which the testators may give them the strongest claim to." TsSned " But >" ( adds the learned Judge (5), as to the last- 207 S° ^04748 mentioned reason for construing a devise contingent,) "is it " ' ' wise to encourage the marriage of infants, by making a pro- this reason vision for the children, however improvident, and however may be much in opposition to the wishes of their guardians, such doubted. marriages may be contracted ? The uncertainty of a pro- vision for a family may occasion a pause, before the most important step in life be taken, which cannot be attended with lasting inconvenience, and may prevent lasting misery. Children will seldom suffer from estates remaining contin- gent 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." 5. Want of 5. I n other cases, where the interest is contingent on 208 chikTe 011 ' ° r account °f the person, and where, as we shall see here- other cases after, the interest is consequently untransmissible to the where the representatives of the person, in the event of his death interest is before the condition is fulfilled ; the same reason applies, contingent , . , rr on account and vvltl1 more torce , because not counterbalanced by the oftheperson. objections urged by the learned Judge against construing See§94,748. an interest to be vested, which is apparently made contin- gent upon the attainment of the age of 21. maintenance 6 *. Where tlle ve sting is apparently suspended till the 209 for the per- attainment of a certain age, and there is no disposition of sons them- the interim income, and no provision for the maintenance taircas^to ° f ^ P6rS ° n interested ' if the interest is held to be con- whom con- ° tingent ' he ma y be entirely left without the means of being tingentinter- ests are ~ given - (5)76.312,313 II.2.ii.] OFEXECUTORY INTERESTS. [§210,211. [75] educated and maintained, or without the means of being educated and maintained in a manner suitable to the for- tune which in all probability he will afterwards possess. SECTION THE SECOND. The Application of the Rule to Limitations in favour of a person of a given Character. 210 I. Where a testator, after devising particular estates, When an ul- makes an ultimate devise to his heir at law, such ultimate timate limi- devise does not create a contingent remainder in favour of/ 10n m r , • . . favour or an a person who shall answer the description of heir at law ] ie j r creates a on the expiration of the particular estates, but creates a vested inter- vested interest in favour of the person who is the heir at est- law of the testator at the time of his death, even though the person to whom the first particular estate is devised, is the testator's eldest son and heir at law, and though the mere form of the devise may seem clearly to indicate a con- trary intent. 211 The reason of this is, not only that the law leans in Reason for favour of vesting, but also because the word " heir," un- ru e * qualified by any adjective, is a technical word, denoting the person on whom the law casts the inheritance on the ancestor s decease. A testator devised to his sons for life, and to their first O'Keefe v. and other sons, in tail ; and, in default of such issue, then J° nes > 13 Ves 412 to his next 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 failure of issue, but that the eldest son took the rever- sion. And where a testator devised to a younger son and others, Doe d. Pil- for their lives ; and, after their decease, to the male heir kington v. at law of him the testator, his heirs and assigns for ever. B^&Aclol It was held, that the fee vested, at the testator's death, in 731, the person who was then his male heir at law, and did not remain contingent until the determination of the life estates, and vest in the person who, upon such determina- tion, sustained 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 testator did not mean, by the words " male heir [76] 11.2.ii.] AN ORIGINAL VIEW [§212. at law," what the law would strictly speaking intend heir male at law at the time of his death — nothing, at least, beyond what was barely sufficient to raise a conjecture to the contrary. When an II. But where a person devises to the heir of a person 212 ultimatelimi- p rev iously deceased (or, it is conceived, to his own heir), favOToTan and h a PP ears that he meant the P erson vvho should an- heir creates a swer that description on the expiratiun of the particular contingent estates; the ultimate limitation to such heir, will create a interest. contingent remainder accordingly. Marquis George, Earl of Orford, in a conveyance to uses, re- Cholmon- citing, that he was desirous that certain estates, derived dele y v - from his mother's family, should remain in the family of ton,2 JacT& Samuel Rolle, (deceased,) his maternal grandfather, in Walk. I. consideration of his natural love and affection for his re- lations, the heirs of 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, as he should appoint ; and, for default of appointment, to the use of the right heirs of Samuel Rolle, with a power of revocation and new appoint- ment. The question was, whether the ultimate limitation designated the right heirs at the date of the deed, or the right heirs at the determination of the preceding estates, or some existing person other than the person who actually sus- tained the character of right heir at the date of the deed. Sir W. Grant, M. R., thought that the words " right heirs" had one settled uniform legal import, according to which the Court was bound to consider them as conferring a vested remainder on the person who was the right heir of Samuel Rolle at the time of the execution of the deed, notwithstanding any manifestation of a contrary intent. (2 Jac. & Walk. 68, 69.) But he directed a case for the opinion of the Judges of the Court of King's Bench. Three of the Judges, namely, Abbott, Holroyd, 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 re- mainder on such person as should be right heir of Samuel Rolle on the expiration of the preceding estates, (lb. 3.) And Sir Thomas Plumer, who had succeeded to the office II. 2. ii.] OF EXECUTORY INTERESTS. [§212. [77] of Master of the Rolls, decided in consonance with the opinion of Mr. Justice Bayley. It was acknowledged on all hands, that the object of the settlor was to carry the estate to his relations on the mother's side, on his death without issue : {lb. 11 :) 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 expiration 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 his issue being already provided for by the preceding limitations, it was, under these circumstances, utterly 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, have passed to his paternal uncle, to the entire exclusion of the Rolle family. {lb. 73, 78.) From these considerations, it was evident, that the settlor did not intend to confer a vested remainder on the person who was right heir when the deed was exe- cuted ; and that he did intend to confer a contingent re- mainder on the person who was right heir on his death and failure of issue. And there was no just reason why this intention should not be carried into effect. " Laying 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 necessarily at any particular time As it stands, it is a generic, not a specific description ; it wants all that can give it particularity and identity .... Without some addition, therefore, to the description, no use can be made of it." (lb. 87, 88.) " In the absence of any secondary proof of intention being afforded to the deed, to supply the mean- [ 78 ] II. 2. ii.] AN ORIGINAL VIEW [§ 214. kg thus left imperfect, the law steps in to supply the meaning, by presumption, in favour of vesting in an ex- istino- character." But this is only when the grantor himself has been totally silent (76. 81); for, "it is con- trary to all principle, that presumption should be allowed to operate in opposition to direct proof." (76. 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.) Devise to a III. Where a testator devises to a person by any other 214 person by description denoting a person sustaining a particular cha- any other acteft ( suc h as youngest or only surviving son, or a child denotes'™ ' other tlian and except the first or eldest or an only son, or person sus- the nearest in blood ;) the devise creates a vested interest taining such m f avour f the person answering that description at the afustato?s death of the testator - Thl ° is in accol ' dance with the death. general rule, that an interest shall, if possible, be con- See § 200— strued to be vested, rather than contingent. 9- A testator gave personal estate, and rents and profits of Philips', 1 real estate, in trust to accumulate until the youngest Ves. 250. 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. Z., 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 executory 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 indefeasibly, but subject to be devested in case of the given description ceasing to belong to the party, and attaching in another person. But this doctrine was Driver v. overruled by subsequent decisions : Thus, a testatrix de- Frank 3 viged all her feal estates to the uge of B p for jjf an( j Mau. & Sel. r . ' ' 25 # from and immediately after his decease, then, to the use of the second, third, fourth, and all and every other the son and sons of B. F. (except the first or eldest son), severally, successively, and in remainder, one after another, and of the several and respective heirs male of the body and bodies of every such 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 W. S., Sec. B. F. and W. S. were II. 2. ii.] OF EXECUTORY INTERESTS. [§214. [79] the husbands of the testatrix's nieces ; and B. F. was tenant in tail in possession of large landed estates ; and W. 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, W. S. had two, if not more. Lord Ellenborough, C. J., was of opinion that the remainder to the sons of B. F. was a contingent 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 remainder in the second or other son of B. F., liable to be devested 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 synony- mous 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. FSs family, or of W. 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 testa- trix, which it would be indirectly but in effect completely doing, if it adopted such a construction as excluded in- conveniences which the testatrix did not contemplate, and sacrificed objects 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 therefore, 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 substance, these : That the prevention of an union of the family estates was only the most probable of several possible motives. That the construction which would prevent such union, would pre- vent any family settlement of the estate during -B.'s life. That if this construction were adopted, and the eldest son had died in B. F.'s lifetime, leaving issue; the second [80] H.2.H.] AN ORIGINAL VIEW [§'214. son would become an eldest son, without obtaining the eldest son's estate, and yet would thereby be excluded from the estate devised to the second son. Or, if the 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. jP.'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 therefore, had given such remainder absolutely to him whom she found a younger son of F. 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 absolutely 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 remainder contingent, would contravene that axiom : and the construing 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 limita- tion. The decision was affirmed by the Court of Ex- chequer 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 Ellenborough. Wood, B., said, that when the testatrix excluded the first, she meant the first born ; when she excluded the eldest, she meant to exclude him who should answer the descrip- tion of first or eldest at the time of B. jF.'s death ; the word eldest being a term which shifts in its application, according to the changes which may take place in a fa- mily. (7Z>.483,482; S. C. 8 Taunt. 468. See § 201, 202.) Observations The primary question in this case, was, To what time on Driver v. c jj c | t h e wor( j s eldest and second refer ; or, at what period 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 ambiguous 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 II. 2. ii.] OF EXECUTORY INTERESTS. [§214. [ 81 ] and second at the time of the death of B. F. How then was the ambiguity to be removed ? Was it by call- ing in the aid of an acknowledged ride of construction, See §200-1. which requires that a remainder should be construed vested, rather than contingent ; and by which the appa- rent 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 ambiguity to be removed, by resorting to an inference, not only that the apparent ob- ject was to a certainty the actual object; 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 showed 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. Again, a testator devised his Stanton Drew estate to Adams v. G.J.., for life; remainder to G. A. A., first son of G. A., for Bush > 6 life ; remainder, in strict settlement, to the issue of p in ^' , e ~\ G. A. A.; remainder to J. P. A., second son of G. A., for life, remainder 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 there 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, the 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. [ 82 ] II. 2. ii.] AN ORIGINAL VIEW [§ 214. The principle of avoiding mere conjecture as to the intention of preventing an union of estates, is also illus- Stanley v. trated by a case where a testator devised to trustees and Stanley, 16 their heirs, in trust to receive the rents until T.M., the Ves. 491. secon( j son f t. S. M., should attain 21 ; and immediately after T. M. should have attained 21, to convey to the use of T. M., for life ; remainder to trustees to preserve con- tingent remainders; remainder to his first and other sons, in tail male. And, in default of such issue, or in case of the death of T. ilf. before 21, upon similar trusts for other younger sons of T. S. M. And there was a proviso, that in case any younger son should become possessed of the estate at P., then in the possession of T. S. 3L, 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 the authority of Borastons See § 111 e., Case and many others, T. 31. took a vested remainder for lilt* 1 ^Q 50 52 58' ^ e > a ^ ter an estate in the trustees for so many years as 759, his minority might last (16 Ves. 506;) and that on the authority of Doe dem.He7ieagev.Heneage,4 T.R.13,!T.ili.'s only son, the first tenant in 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.31. had no son. For the testator had not said he meant to prevent the union of the two estates, as long as the law would permit ; and the estate to trustees was the next ; and they were capable of possession, and under the pro- tection of their estate, the contingent remainders to the first and other sons of T. 31. were to be considered as subsisting remainders, to prevent the second devisee for life answering the description of next in remainder. {lb. 509.) Stert v. In another case, a testator devised to A. H., for life ; Platell, 5 remainder to trustees to preserve &c. ; remainder to B. H. y Bin 0- New c \ tt r fp i Ca es 434 SOn ' ' remainder to trustees to preserve &c. ; remainder to the first and other sons of JR. H., in tail male ; with similar remainders to A. D. H., another son of A. H., and to his first and other sons. The will then proceeded thus : " and, in default of such issue, I devise the same premises unto such person, bearing the II. 2. iii.] OF EXECUTORY INTERESTS. [§ 215-218. [ 83 ] surname of 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 particular time being pointed out, and the general rule requiring that a remainder should be con- See § 200-1. strued 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. 215 The leaning in favour of vesting is of course peculiarly When the strono- where the opposite construction would exclude eamn g m ° rr . „ favour of objects who have a strong claim upon the author or the vest j no - j s instrument, or would exclude persons without any ap- peculiarly parent reason, or for reasons which are apparently strong. absurd. 216 This is the case where the interest in a portion or It is so where legacy is prima facie made to depend upon the person f P 01tl0n or Je^acv seems interested surviving his parents. ufdependon 217 "A gift by will, however," as a learned Judge (a) has surviving pa- justly observed, " differs from the case of a trust declared rents. by a settlement; because, in the former, there is no sup- See §241- 24-4 position [founded in the nature and design of the instru- * ment, or on any valuable consideration,] that any persons Dlst J»ction can be intended to take, except those who are described g ift b wil j as takers." and a trust 218 Still, even in the case of a will, there is a strong ante- by settle- cedent improbability that it should really be intended men ' that the survivorship should be requisite to the vesting, a . nm j> r i • j • • against con- so that though the party may have attained to majority, stru i ng sur _ and may in fact have married and founded a family, yet vivorship a that he should be excluded from the testator's bounty, pie-requisite, merely by the accidental circumstance of his dying in the JJ^jJ^ lifetime of his parents or one of them. This, indeed, case fawill. (a) Sir L. Shadwell, V. C, in Tucker v. Harris, 5 Sim. 543. g2 [ 84 ] II. 2. iii.] AN ORIGINAL VIEW [§219-220. is a circumstance which, so far from constituting any reason for his exclusion, may form a peculiarly cogent reason why his estate should the rather be increased by the testator's bounty; for his premature decease may create a strong necessity for some additional means of support for the family he may have left behind him. But much But in the case of a marriage settlement, there is not 219 stronger in on ]y this strong antecedent improbability, but there is the case of a algQ ft v i i ent presumption against the construing it to Uemenf **" be necessary for the children to survive their parents, arising from the nature and design of the instrument, as one which was prima 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 valuable 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. Where one I. Where, according to the terms of a marriage settle- 220 child sur- m ent, the raising of portions is made to depend on the vives, and ex i s t e nce of children or a child at the death of the parents, the words x . importing or one °f them, as the case may be ; and the words lm- necessity of port a condition precedent, which not only renders it surviving are necessar y t ] ia t there should be children or a child then so as to ad- hving, but apparently manifests an intent to confine the gift mit others of portions to those children who should be in existence who did not at that time ; such words are construed not according survive. tQ trie i r spirit, but accordino- to the letter; so that if there happens to be a child living at that time, the words of contingency, even allowing them to amount to a con- dition 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 post- poned. Hope v. Lord The trusts of a term, limited by a marriage settlement, Vef'498 6 after a life estate t0 E ' B > the husband, and a term for 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, II. 2. iii.] OF EXECUTORY INTERESTS. [§ 220. [ 85 ] the trustees should raise 50001. 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 lifetime of E. B., then, the portions should be paid within 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, should 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 portions, should die before any of their portions should be payable, then, the said sum, or so much thereof as should not be then raised, should not be raised, but should cease. There 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 ob- served, that the Courts, feeling it not to be a probable intention in a parent, that, though his child had at- tained 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 them- selves 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 lan- guage 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 Woodcock v. The Duke of Dorset would have been a direct answer to that objection. (lb. 510.) In another case, there was a trust for raising portions, g. y in case it should happen that the husband and wife Hake, 9 Ves. should, at the death of the survivor of them, leave any 438. child or children. Two sons survived both parents. Two others attained 21, but died in the lifetime of the sur- viving parent. Sir W. Grant, M. R., held, that they took vested interests ; inasmuch as the contingency had happened on which the trust was to arise ; and in that part [ 86 ] II. 2. iii.] AN ORIGINAL VIEW [§221. Howgrave v Cartier,3V & B. 79. of the clause which provided 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. So, where a marriage settlement contained the following- passage : " and from and after the decease of the survivor of them the said P. W. and E., his wife, in case there shall 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. W., or after his decease; then, upon trust, that they the said trustees shall transfer 20,000Z. unto such child or children of the said P. W. and E. his wife, at their respective ages of 21 years, in such proportions," Sec. There were two children ; a son, who survived his father, but died in the lifetime of his mother, after having attained 21 ; and a daughter, who survived 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 effect of it depended entirely upon the word " such," which, in other passages, was (as he considered) so ab- surdly and unmeaningly applied, that it was evident that the parties had no definite notion of the effect of its introduction. (3 V. & B. 88, 89.) And he remarked, that the condition of survivorship w r as confined to a survivor- ship of the wife in a preceding passage, and entirely dropped in another, (lb. 91.) Where no child sur- vives, but words im- porting ne- cessity of sur- viving are construed so as to admit those who did not sur- vive. II. And if, in the case supposed, there does not happen 221 to be children or a child living at the death of the parents, or one of them, as the case may be ; yet, if there is a gift of portions to the children generally, and not merely to such as should be then living ; or if, in the clause of cesser, or in the limitation over, or in any other part of the settlement, there is anything which would in itself render it in the slightest degree doubtful, whether it was really intended to confine the gift of portions to surviving children ; in such cases the words of contingency are not II. 2. iii.] OF EXECUTORY INTERESTS. [§222. [87] construed as a condition precedent, but as merely expres- See§ 13. sive of one state of circumstances in which they are to be raised, without implying that they are not to be raised in any other. Estates were conveyed by marriage settlement to trus- Powis v. tees and their heirs, in trust, after the decease of the ^ urdett ^ 9 ves. 428 husband, in case he should leave one or more daughter or SeealsoPer- daughters, younger son or sons, to raise 12,000Z. for the feet v. Lord portions or fortunes of such daughter &c, to be paid Curzon, 5 according to appointment, and, in default of appoint- 44 ^ ' ment, at 21 or marriage. And it was provided, that in case the husband should think proper that any portion or portions of any such daughter &c, should be raised and paid during his lifetime, it should be lawful so to do. Then followed a proviso, that in case of the death of any of the said daughters &c. before their 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 ; observing, 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 the marriage of the daughters ; (9 Ves. 434 ;) and that if the twelvejparts 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.) 222 III. But if, in the case supposed, there does not Where no happen to be any children or a child then living, and there ^d sur " [88] II. 2. iv.] AN ORIGINAL VIEW [§ 222a. vives, and none are ad- mitted. Hotchkin v. Humfrey, 2 Mad. 65. Whatford v Moore, 7 Sim. 574 ; S. C. 3 M. & C. 270. is no direct gift to the children generally, but merely to such as should be then living, and there 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 parents, or one of them, as the case may be, will be en- titled 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 survived both parents were alone en- titled. And in another case, Sir L. Shadwell, V. C., held, that none were intended to take portions under the marriage settlement, 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 contrary construction. SECTION THE FOURTH. The Application of the Ride to subsequent Interests, limited after Interests depending on a Condition Precedent^ a THOUGH the vesting of a preceding interest is suspended 222a upon a condition precedent, and such condition, according to the grammatical construction, may be fairly regarded as equally extending, but does not necessarily extend, to a subsequent interest in remainder ; it will not be construed to extend thereto, unless there is some sufficient reason, in- dependently of the doubtful grammatical construction, for thinking that it extends to the subsequent interest, (a) (a) See Napper v. Sanders, Hutt. 1 18, as stated, Fearne, 223, 21 ; Lethieidlier v. Tracy, 3 Atk. 774; Amb. Rep. 204, as stated, Fearne, 225 ; Horton v. Whittaker, 1 D. & E. 346, as stated, Fearne, 235. II. 3. i.] OF EXECUTORY INTERESTS. [§ 223-225. [ 89 ] CHAPTER THE THIRD. OF THE CONSTRUING AN INTEREST TO BE ABSOLUTE RATHER THAN DEFEASIBLE. SECTION THE FIRST. A general Mule suggested, with the Reasons thereof. 223 It would appear to be a general rule, deducible from The rule principle, and from actual decisions, though not enunciated suggested. by authority, that, in doubtful cases, an interest, whether vested or contingent, ought, if possible, to be construed as absolute or indefeasible, in the first instance, rather than as See § 97, 98. defeasible : but if it cannot be construed to be an absolute interest in the first instance, that, at all events, such a con- struction 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 considered to be so. For, 224 1. This would seem clearly deducible from the well- Odiousness known rule, that conditions are odious, and shall be con- ot conditions, strued strictly ; a rule which would appear to apply to those conditions which are termed in a preceding page mixed conditions, as well as to conditions which are See § 12-22. simply destructive. For, if it applies to conditions sub- sequent 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 favour of another person, by way of conditional limitation. See§ 148-9. 225 2. The person claiming under a prior limitation, and his Leaning in children, being of course the primary objects of the favour ° P n " 6 ■ , ... , mary ob- grantor's or testator's bounty or consideration, and the: ects> persons claiming under the limitation over being only secondary objects of such bounty or consideration; it is of [ 90 ] JI. 3. ii.] AN ORIGINAL VIEW [§ 226-227. course reasonable to lean in favour of the primary objects, by construing their interest to be absolute in the first instance, or as early as by fair construction it can be con- sidered to be so, rather than to lean in favour of the secondary objects, by construing the interest of the pri- mary objects to be defeasible. Leaning in 3. The law favours the free uncontrolled use and enjoy- 226 favour of free me nt of property, and the power of alienation; whereas enjoyment ^ defeasible quality of an interest tends most materially and aliena- . . . . tionofpro- to abridge both. perty. The following case may perhaps be not unaptly cited as in some degree connected with the general principles above Weakley d. mentioned. A testator, after giving his eldest daughter Knight v. fi ve shillings, and five pounds to his second daughter 31., & U £ 9, J, that tllis rule had & one ' upon an anxiety to provide for as many children as pos- sible with convenience. And therefore he held, that children by another husband, with whom the party inter- married after the date of the will, were entitled, though His Lordship said, his private opinion was, that the tes- tator never thought of her marrying again ; and though, according to that construction, the limitation over was too remote. Whitbread Where a bequest was made in trust to pay to the chil- v. Lord St. drenof^L, born or to be born, as many as there might Ves 152 k e > at 21, or marriage; with a clause of survivorship ; and a limitation over, upon the death of all before 21, or mar- riage; 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 A., and all the Boorman, 1 1 ot h e v children thereafter to be born of B., at 21 ; Sir W. Grant, M. R., made a similar decree. Clarke v. And so where a testator bequeathed a fund in trust for Clarke, 8 a^ f or lif e . anc | 5 a ft er ner death, in trust for all and every bim. 59. (c) Gilmore v. Severn, 1 B. C. C. 582, ed. by Belt ; and Prescott v. Long, 2 Ves. Jun. 690 ; as stated, 1 Rop. Leg. 41, 42, ed. by White. II. 3. u.] OF EXECUTORY INTERESTS. [§231—234. [ 95 ] the children of B. and C. who should attain 21. Sir L. Shadwell, V. C, held, that all the children of B. and C. who were born before the eldest attained 21, though after ASs 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. In another case, the period fixed for distribution of real Hughes v. and personal estate, was, the majority of the youngest S u ^f' 1 ^ grandchild ; and all who were born before that time, and were then living, and the children of those who were dead were included, according to the express terms of the will. 231 II. But d where a specific sum is bequeathed to each of Whereaspe- the children, whether born or to be born, none are exr c \ gntoeach eluded, (d) For, in this case, the reason for excluding some of the class does not arise ; because the sum which each child is to take, being fixed by the testator himself, 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. 232 HI. Again, e if there is a limitation over in default of Where there issue of the parent, then even those who are born after is a limitation ... over in cle- the period for payment will be admitted, because it is in feult of igsue that case positively certain that the testator intended that f the parent, all should take, however inconvenient such a construction or some other might be; since, by the express words of the will, the j^SStai fund is only to go over in default of issue of the parent, (e) all s i 10u i t i 233 The children, however, who are born after that period, will take. 234 not be entitled to bygone interest. And the same will be the case in other instances where the testator plainly shows his intention that all the children should take. A testator gave his residuary personal estate, upon trust Millsv.Nor- for the children of his two daughters, E. M. and M. N., ™^ 5 Ves - (d) See Difflis v. Goldschmidt, 19 Ves. 566. (e) See Shepherd v. Ingram, Ambl. 448 ; and S. C. nom. Gibson v. Rogers, 1 Ves. Sen. 485, as stated, 1 Rop. Leg. 37. [ 96 ] II. 3. ii.] AX ORIGINAL VIEW [§ 234. equally, payable at 21, or marriage; with a limitation over upon failure of issue of E. 31. and M. X. in their lifetime. Lord Loughborough, C, held, that, having re- gard 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. Scott v. Earl \ n another case, a testator gave real and personal estate ofScarbo- tQ tru5tees to accumulate the rents and > after certaiu payments, to stand possessed of the accumulated fund, in trust for all the children of J.., .B. and C, then born, or who should there- after be born, during the lifetime of their respective pa- rents, and who, being sons, should attain 21, or, being daughters, should attain 21 or marrv ; and whether born or unborn, when any other of them should attain the ao-e or time aforesaid, and their respective executors, administrators, or assigns. At the expiration of the twenty years, there were several children of B. who had attained 21, but A. and B. were still living. In this case, both the accumulation and the vesting were within the pre- scribed limits; the accumulation being confined to 20 years from the testator's death, and the vesting to a dis- tinct period of 21 years from the expiration of lives in being;. The difficulty, as Lord Langdale, M. 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 children. And His Lordship observed, that had it not been for the words "during the lifetime of their re- spective parents," he thought it would have followed from the cases cited, that the words " to be born," would, for convenience, be restricted to grandchildren to be born before the period of distribution. That, in the principal case, however, he was of opinion that the children of B., who were living at the end of the twenty years, took vested interests in their shares, subject to partial devest- ment and diminution in the event of other objects coming into existence ; and that until such devestment or diminu- tion, the children who had vested interests, were entitled to the income of the accumulated fund. II. 3. iii.] OF EXECUTORY INTERESTS. [ § 235—236. [ 97 ] SECTION THE THIRD. 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- a Where real estate is devised to a person and his Common heirs, or to a person indefinitely, and in case of his death M „ . under a certain age, or without issue, over ; the word "or s trued is construed "and," so that the devise over may take "and," in li- effect in case the prior taker dies under the given age with- nutations of real estate out issue, and not otherwise, (a) 236 Every one must have observed how often the disjunc- Observations tive " or" is inaccurately used for the copulative conjunc- on tn ' s con " . . „ . ' J . , struction. tion " and." Hence cases might naturally be expected to occur, in which the Courts might reasonably be called upon to construe the one for the other. And as regards 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 be void for remoteness, so that the words " or without See § 706, issue" would be inoperative unless " or" were construed 714 - "and." It maybe 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 limi- tation 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 ori- ginal creation, even if "or" were not construed "and." The principle of the general rule enunciated above, See § 223- r r ° 99fi. (a) Mr. Jarman, in his Treatise on Wills, p. 444, in addition to the cases stated below, refers to Soulle v. Gerrard, Cro. El. 525 ; S. C. nom. Sowell v. Garrett, Moore, 422, pi. 590 ; Price v. Hunt, Pollex. 645; Barker v. Suretees, 2 Str. 1175; Walsh v. Peterson, 3 Atk. 193; Doe d. Burnsall v. Davy, 6 Durn. & East, 35. H [ 98 ] II. 3. iii.] AN ORIGINAL VIEW [§ 236. would appear to be the true principle of this construction ; namely, the favour shown by the law to the free uncontrolled use and enjoyment of property, and the power of alien- ation, and the general leaning in favour of the primary ob- jects of the testator's bounty. For, it has been said that it cannot be supposed that a testator would wish the estate to °-o over, to the exclusion of the issue of the prior taker, if he should die under the given age, leaving issue. See § 206- And though perhaps it may be thought very questionable, 208. whether it was politic and expedient to adopt this con- struction, where the limitation over is in case of the death of the prior taker under 21, or without issue, so as to encourage early and perhaps improvident and unhappy marriages ; and it may therefore be doubted whether the testator really intended to admit the issue of the prior taker, in case of his 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 en- tertained of the justness of this notion, where the given age is only 21 ; where a more mature 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. Fairfield v. A testator devised to his brother all his real and free- Morgan,^ \\o\^ estates, among which was an estate held for lives, N R 38 which was the estate in question ; but in case his brother should die before 21, or without issue living at his death, then to his mother for ever ; the House of Lords, affirming the judgment of the Court of Common Pleas in Ireland, held, that "or" must be read as "and"; because, other- wise, 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 his 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. Eastman v. Again, a testator devised a messuage to his daughter II. 3. iii.] OF EXECUTORY INTERESTS. [§236. [ 99 ] and to her heirs for ever and ever; but if his daughter Baker, 1 should fortune to die and not attain 21, or having no such Tau nt. 174. issue as aforesaid, then over. It was held, that this was a devise of the fee to the daughter, Lord Mansfield, C. J., observing, that an estate tail had 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 inde- finite and general, so as to create an estate tail, but is referred to the concomitant words of dying under ao-e. (1 Taunt. 179.) And it was held that " or" must mean " and," according to Fairfield v. Morgan, 2 New Rep. 38, and the other cases cited ; because if it did not, it followed, that, upon the contingency of the daughter dyino- 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, 183.) And where a testator gave all the residue of his estates, Right d. lands, &c, to his son. But in case his son should die Day v - Day, under 21, or should leave no issue male or female, then l 6 E ^ st ' 67, he gave the same to his daughter, she being surviving, Doeim. the word "payable" in the same manner. But where a married woman, by a testamentary instru- ng v. raen t ma de in execution of a power contained in her Howe, 3 M. r & K. 316. marriage settlement, gave 20001. , subject to the life in- terest of her husband, to trustees, upon trust for the benefit of her children, to be equally divided between II. 3. iv.] OF EXECUTORY INTERESTS. [§ 242. [ 105 ] them ; but in case the 2000/. should become payable before her children, being 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 in- terest for their maintenance and education ; and when they should attain 21, or day of marriage, to pay to them their respective shares of the principal and unapplied in- terest ; 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 representative 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 hand, it was argued that the word "payable" was used in a sense equivalent to " vested" ; and that, to say the least, there was not a clear unambiguous intention to make the right of the children to their portions depend upon their surviving both parents. On the other hand, it was contended that the word " payable " clearly referred to the period at which both parents should have died, and was expressly distinguished from the provision for pay- ment at 21 or marriage, 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 at- tained 21 or have been married. Sir John Leach, M. R., held, that 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 survivor- ship, except the moiety of the one third part or share of the deceased son which accrued to the deceased daughter who survived him but died in the father's lifetime. His Honor observed, that when a testator has unequivocally expressed an intention that a provision to be made for his children should depend upon their surviving both their parents, the Court must give effect to that intention, and could only lean to the presumption in favour of children, where the intention of the testator was ambiguously ex- AN ORIGINAL VIEW [§ 242. Roive. [ 106 ] II. 3. iv.] pressed ; and that he could see no ambiguity in the prin- cipal case, but was clearly of opinion, that, by dying be- fore their 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 sur- vivor of them. Observations It may be observed that the personal representative of on Bright v. t i ]e deceased daughter, in contending that the word " pay- able " was synonymous with "vested," and referred to the period of the children's majority or marriage, construed the word by the next antecedent contained in the next preceding 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 1 ' 1 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 2000Z. 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, clearly did not refer to the period of the chil- dren'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. In a previous case, by articles of agreement made before marriage, stock was vested in trustees, upon trust to pay the dividends to the husband, for the joint lives of husband and wife ; remainder to the wife, for life ; and from and after her death, in case there should be any child or chil- dren 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 per- sons. The wife survived her husband ; and, at her death, no child of the marriage was living, but she had had a son, who after having attained 21 and married, died in her Torres v. Franco, 1 Russ. & M, 649. II. 3. iv.] OF EXECUTORY INTERESTS. [§243. [ 107 ] lifetime, leaving issue. Sir John Leach, M. R., is reported to have said : " This case is to be decided upon the prin- ciple established in Howgrave v. Carder, 3 Ves. & B. 79. The gift over is not to take effect unless all the children die under age and unmarried. This is inconsistent 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 a vested interest." This decision, however, would seem question- Observations able ; for, the learned Judge appears to have been mis- on Torres v. taken in stating that the gift over was not to take effect ranc0m unless all the children died under age and unmarried. The limitation over was to take effect 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. 243 II. Where there is, in terms or in effect, a limitation Words sup- over, in case of the death of any of the children before their phed, or the i i j word "or parents, or one of them, as the case may be ; some words c ] iano . e( j j nt0 have sometimes been supplied, or the disjunctive "or ""and." has been changed into the copulative conjunction " and," so as to confine the event of death to a dying under a cer- tain age which is mentioned in another passage of the will, and at which the testator appears to have intended the children to take vested interests. A testator appointed a fund, after the decease of his Clutterbuck wife, to his son, to be paid to him at her decease, if he v - Edwards, shall then have attained 21 ; and in case his son should die 577 before 21 , 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 son attained 21 ; but the wife survived both the son and the brother, who had daughters living at the wife's decease. Sir John Leach, M. R., and afterwards Lord Brougham, C, on appeal, held, that the representa- tives 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, [ 108 ] II. 3. iv.] AN ORIGINAL VIEW [§243. whether it shall be read in one or other 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 intention, 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 grandchildren 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 — material, 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, the testator's brother, was only to take any interest in case the son died under 21." {lb. 586.) Miles v. In another case, a testator bequeathed his real and Dyer, 5 Sim. personal estate to trustees, in trust to pay an annuity to his wife, for her life ; and to raise and pay to each of his sons, 2000/., on their attaining 21 ; and to stand pos- sessed 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 lifetime of his wife, or under 21, and without leaving issue, then, after his wife's death, to sell the pro- perty 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 that 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 pro- perty to go over if his children attained 21, or if they died under 21 leaving issue ; and that " or" ought to be 8 Sim. 330. read "and." And His Honor, 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 de- pend on their attaining 21, whether they died in the life- Observations time of the wife or not. — Without doubting the sound- 3>wer *' nGSS ° f the decision > that the property was not to go II. 3. iv.J OF EXECUTORY INTERESTS. [§ 243a. [ 109 ] over if the children attained 21, though they might afterwards die in the wife's lifetime, it may appear ques- tionable 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 intention, 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 attained 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, 11 the desired object maybe gained by construing the words thus: and in case the said &c. shall die in the lifetime of A., or [at any other time] under 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 time 11 maybe fairly understood; and, in this way, the dying in the lifetime of A. might be confined to a dying under the age specified, and yet at the same time, the estate would be limited over in the event of death under that age, after A.'s decease. 243a III. And where vested interests in a fund are given to Leaving con- children at a certain age ; but there is a limitation over in strued into the event of their parent dying without leaving any child had a » ! °f or children ; the word " leaving" is construed as " having "having." had," or "having." A testator devised to J. M. and his son or sons, limited Marshall v. as aforesaid [i. e. to J. M. y for life ; remainder to his first J^*. 2 ■J*™' and other sons] ; and, if J. M. should die leaving no son or sons, as aforesaid, then over. It was held, that J. 31. took an estate for life, and W. C. M., his eldest son, a vested indefeasible remainder; Lord Ellenborough, C. J., observing, that " leaving " meant " having had." And where a testator, after giving vested interests in Maitland v. stock to his daughter's children at 21, directed, that, in j^'*. 6 case his said daughter should die without leaving any a ■ ' child or children of her body lawfully begotten, or, leaving [ 110 ] II. 3. it.] AN ORIGINAL VIEW [§ 244. any such child or children, and such only child or all such children should die before 21, then, that the stock should be transferred 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 IV. But where the gift or payment is postponed till a 244 children who certain period, and there is a limitation over in case there do not sur- shou i d ^ e n0 c hild living at the death of the parent ; nothing 6 there, it would seem that the portions either do not vest at that period, in the parent's lifetime, or they vest defeasibly, liable 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. Legh, 9 Ves. 300. And Sir W. Grant, M. R., said, that if there was anything equivocal; if the event was the death of all the children before the portions were payable, he could so construe that by reference to the two periods as to make it consistent with vesting at 21 or marriage. But there the contingency was so plain, that notwithstanding the authority of Woodcock v. The Duke of Dorset, he doubted whether he should be justified in new- moulding that proviso so as to qualify it in that manner. (9 Ves. 312.) But it was unnecessary for the Court to decide the point, {lb. 313.) II. 4. ] OF EXECUTORY INTERESTS. [§ 245—247. [ 111 ] CHAPTER THE FOURTH. PRESENT VESTED INTERESTS, SUBJECT TO A TERM FOR YEARS, DISTINGUISHED FROM VESTED AND CONTINGENT REMAINDERS, AND FROM SPRINGING INTERESTS. 245 An interest of freehold duration, which is limited after, A freehold and only preceded by, a term for years, may be designated a ^ ter a term a remainder in relation to the prior term for years, so far cg J e( ] _ as regards the possession or beneficial interest. For, as mainder, so the termor has the possession, with or without the ex- far as regards elusive beneficial interest, for the period of his term, the . P os ? es - .-,,-,. ,. .. i ,ii . , sion, with or person to whom the freehold is limited, may truly be said w i t h utthe to have the remainder or remaining part of that posses- beneficial sion or beneficial interest which was parted with or de- interest. vised by 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, limited after, But it is not and onlv preceded bv, a term for years, is not a remainder a remainder, . properlv so at all in the ordinary sense of the word remainder, when Called ■ used with reference to a freehold interest. For, it is not g ee , 159 ^ a remainder as regards the seisin, property, or ownership. 46-7,50, 52, As, in the case supposed, there is no other preceding in- 58, 66. terest than a term for years ; and, as a term for years is a mere right extending to the possession, with or without the exclusive beneficial interest, and not a portion of the seisin, property, or ownership ; it follows that the free- hold interest cannot be said to be a remainder, remnant, residue, or remaining portion of the seisin, property, or ownership. 247 The truth is, that (setting aside cases of augmenta- but is either tive limitations) an interest of the measure of freehold, JjJJS^ter- limited after, and only preceded by, a term for years, is, est? SUD j e ct in regard to the seisin, property, or ownership, either a to a term ; or present vested interest, subject to a chattel interest, ope- elseaspnng- rating by way of exception out of the freehold, or seisin, gee ^ m< / [U2} IL 4.] AN ORIGINAL VIEW [§ 248-252. See §45-48, property, or ownership, and by way of suspension of one 50. or more of its ordinary concomitants or incidents, namely, the possession, with or without the exclusive beneficial See § 1 17- interest, for the period of the term ; or else it is a springing 124a, 127a. interest, which is good, if limited by way of use or devise, though void, if limited by deed at common law. And, Whereafree- I. If a freehold interest is limited to a person in being ^« hold after a an d ascertained, to take effect on the certain regular ex- term is a pre- iration of a term f or years, in possession, without being LTeJstsub- preceded by any other freehold interest, such freehold in- ject toaterm; terest is a present vested interest, subjec to the term, as See § 1 1 le. regards the possession, with or without the exclusive bene- ficial interest. For, in such case, the freehold interest is only postponed 249 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 with- out the beneficial interest, was intended to be postponed. See § 75a, That such a freehold is a vested interest, either present 250 77-78a, 88, or future, no one will dispute. If it is a future vested 89 ' interest, it must be either a remainder or a reversion. But o 66 ^ 15 'r fi we have seen that it is not a remainder, as regards the :? , fiQ ' seisin, property, or ownership ; and it is obvious that it is s . ' not a reversion. And, therefore, it must be a present 87-8. ' vested interest, though subject to the preceding term. whereitis The most simple illustration of this occurs in cases 251 limited on where the freehold interest is limited to take effect on the the effluxion e ffl ux i on of the given number of years of which the term ^ r& ' consists : as, where land is limited to A. for 21 years, and then to B. for life. — where it is But, the same rule applies, where the term is rendered 252 limited on the determinable by means of a special or collateral limitation, ,./. \} v ° on the dropping of a life or lives ; and it is for so great a lite or lives. rr ° c c 34 40 numoer of years that there is not a common possibility of the life or lives enduring beyond it; and the freehold in- terest is limited to take effect 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 B., to C. for life. For, in such case, the freehold interest is as much limited to take effect on the certain expiration of the term, as if it II. 4.] OF EXECUTORY INTERESTS. [§ 253. [ 113 ] had been limited to take effect on the effluxion of the given number of years; because, the dropping of the life or lives is an event which must happen within the given number of years constituting the term, and is an event on which the term must cease. 253 a It must be admitted that freehold interests limited Freeholds after, and only preceded by, terms for years, subject to a after a term special or collateral limitation, are called remainders by rema j n( j ers the great authority upon the learning of contingencies ; by Fearne in and that there are decisions stated by him, (a) in which some sense ; freehold interests so limited were regarded as remainders. an d assumed t> , , ,. i r xi to be such in But, the real question, in each of these cases, was, severa j cases whether the interest was a vested interest, and not whether j n some sense it was a vested remainder ; and, therefore, though it was at least, assumed in these cases, as it is assumed by Fearne, that But this as- the interest was a remainder, in some sense ; yet, all that sumption was these cases can fairly be regarded as establishing, is, that the freehold interest in question is a vested interest, and not that it is a vested remainder, in regard to the seisin, property, or ownership. Even admitting it to be the fact, which, however, does not appear in the 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 perceiving, or from forgetting for the moment at least, the distinction above stated be- See § 245-6. tween a remainder in relation to the possession, with or without the exclusive beneficial interest, and a remainder in regard to the seisin, property, or ownership. And admitting that the illustrious author by whom And if these cases are referred to, assumes that a freehold limited Fearne as- ' . sumes them after, and only preceded by, a term for years, is a re- tQ be re _ mainder, in the ordinary sense in which the word is used mainders, with reference to freehold interests ; such an assump- properly so tion would only present us with an instance of a similar ^ a oul( j' pear oversight to that pointed out by the eminent editor of the au oversight. former editions, in the introduction to the work, and an (a) See Fearne, 20— 27, and Napper v. Sanders, Hutt. 118 ; Beverley v. Beverley, 2 Vein. 131 ; and Penhay v. Hurrell, 2 Vern. 370 ; as there stated. i [ 114 ] II. 4. ] AN ORIGINAL VIEW [§ 254-257. additional, and a painful, though perhaps a salutary proof, O/f the fallibility even of the most learned, accurate, and A similar re- profound. And a similar remark applies to a passage in 254 mark applies one of the notes of that eminent editor himself, b who to Butler. ment i ns, as an example of the first kind of contingent remainder, the case of land " given to A. for 21 years, if B. shall so long continue at Rome, and if he quit Rome during the term, to C. in fee :" (b) though, independently of the reasoning at the commencement of this chapter, that learned individual might have known, that, according to the propositions advanced by Fearne and assented to by himself, the freehold interest so limited, was not a con- tingent remainder, seeing that, according to those propo- sitions, c " wherever an estate in contingent remainder, amounts to a freehold, some vested estate of freehold must precede it." (c) Whereafree- H. But, where a freehold interest is limited after, and 255 hold after a i s only preceded by, a term for years ; and it is contingent term is a Qn accoun t f the person ; or it is limited to take effect springing in- ' , _ , , terest- on *y on a contingent determination ot the term, by means See 5)34-42. °^ a special or collateral limitation, or on some event un- connected with the original measure, and the regular ex- piration thereof; in such cases, the freehold interest is a See § 117- springing interest of the second, third, fourth, or fifth kind, 127 a. j n re g ar d to the seisin, property, or ownership, and is good, 256 if limited by way of use or devise, though void if limited — where it is by deed at common law. As, if land is devised to A. for limited on the 21 years, and then to an unborn son of B., in fee ; or to effluxion ot . c nr . ._ ^ . .. , . _ vears and in tor 99 years, if C. shall so long continue at Rome; other cases, and, on the return of C. from Rome, then to B., in fee; or to A. for 99 years ; and, on the death of A, then to J5., in fee. d And so, where the term is rendered determinable, by 257 means of a special or collateral limitation, 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 take effect on the (b) Fearne, 5, note (cZ), fifth paragraph. (c) Fearne, 281. II. 4.] OF EXECUTORY INTERESTS. [§257. [115] dropping of the life or lives, (d) For, in such case, the freehold interest is in fact limited on the contingent ex- piration 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. (d) See Fearne, 21 — 24, in connexion with the observations made on the opposite case, § 248 — 254. i z H.5.] AN ORIGINAL VIEW [[§258. CHAPTER THE FIFTH. FIRST EXCEPTION FROM THE FIRST CLASS OF CONTINGENT REMAINDERS, FORMED BY THE USUAL LIMITATION TO TRUSTEES FOR PRESERVING CONTINGENT REMAINDERS. « At first view," says Butler, " it may appear that the 258 usual limitation to trustees for preserving contingent re- mainders, is a contingent remainder of the sort first men- tioned "by Mr. Fearne. In cases of this description, the estate is conveyed to the use of A. 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 A., in trust for A., and to preserve the contingent remain- ders ; and after the decease of A., to the use of the first, and other sons of A. successively, in tail male. Here, the preceding estate may determine by one of two modes ; A. s forfeiture of his life estate, or A.'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 appear to be of that sort which is contingent. This point was fully considered in the case of Smith d. Dormer v. Parkhurst, 18 Viner, 413 ; 4 Bro. Cas. Par. p. 353. In that case, the judges determined, that the remainder was not a contingent, but a vested remain- der. 1 ' (a) Butler does not seem to have been satisfied with the decision : at any rate he does not offer to evince its sound- ness ; but merely states the fact that, ita lex scripta est. Fearne, however, has gone so far as to attempt to show that the limitation in question is strictly and properly a vested remainder. It is with the most unfeigned deference that the writer of these pages ventures to question the justness of the (a) Fearne, 5, note (d). II. 5.] OF EXECUTORY INTERESTS. [§ 258. [ 117 ] decision, when founded in any other principle than that of necessity, most especially as it has received the sanction of one who was as remarkable for subtlety of discrimination and soundness of judgment, as for the lucid, eloquent, and masterly style in which all his ideas are expressed. But the author has less hesitation in differing from the opinion of the judges, than he otherwise should, from the consider- ation that a contrary decision would, in the language of the Lord Chief Justice, have b " overturned all the settlements for two hundred years last past :" (b) and therefore, ad- mitting 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 circumstance which is quite sufficient to remove that violent presumption which must have otherwise existed in favour of the conclusion to which they arrived. But it is far from clear, that all, or most of them, or any of them, except Lord Chief Justice Willes, who endeavoured to rest the decision upon principle, were of opinion that the decision was anything more than a matter of mere imperative necessity. For the Lord Chief Justice, after alluding, as above mentioned, to the dreadful conse- quences of a contrary decision, unequivocally declares, c " 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 founded m the best reason, Communis error facit jus, and Ut res magis valeat quam pereat." (c) And with respect to the support which 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 settlements 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 also the necessary concomitant of profound and exten- sive learning. Our author, immediately after instancing the remainder (6) Willes Rep. 339. (c) lb. 188 [ 118 ] II. 5.] AN ORIGINAL VIEW [§ 258. in question, admits, that, as to its taking effect in posses- sion, it depends entirely on a contingent determination of the preceding 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 contingent remainder, such a principle would scarcely fail to mislead us in every case of the least doubt." (d) See § 170- Now, though it is very true that a vested remainder may be uncertain of taking effect in possession, as well as a contingent 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 remain- der, as we have already seen, does not strictly depend on any other uncertainty than that of its enduring beyond the preceding 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 con- tingency collateral to itself, as well as uncertain in regard to its own duration. Were it not so, indeed, the distinc- tion between them would be merely verbal. It is humbly submitted, then, that the uncertainty of taking effect in possession, except that kind of uncertainty which is con- nected 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. The existence, in the former, of a present, absolute, and legally transferable right to the possession, whenever the preceding estate may determine, and the non-existence and uncertainty of that right, in the latter, does indeed constitute the difference between them, from which, according to the principle of definition adopted by Fearne, they receive their denominations of vested and contingent. But that, as we have already seen in another place, is itself founded in another and more tangible dis- tinction ; namely, the non-existence, in the one, and the existence, in the other, of a contingency irrespective of its (d) Fearne, 217. II. 5.] OF EXECUTORY INTERESTS. [§258. [ 119 ] own duration, on which the enjoyment strictly depends. And from this fundamental distinction, the further differ- ence necessarily 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 possession,) and the uncertainty of it in the other, apart from the consideration of the certainty of their en- during beyond the 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 pos- session 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 pos- session, in one case, though it is uncertain, both as to the right of possession, 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 : e " Wherever the preceding estate is limited so as to de- termine on an event which certainly must happen, and the remainder 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) If every remainder which falls under this definition is a vested remainder, then all the three first classes of re- mainders, 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 (e) Fearne, 217. [ 120 ] II. 5.] AN ORIGINAL VIEW [§ 258. 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 j" as in the identical case, where A. makes a feoffment to the use of J5., till C. re- turn 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 A., remainder to C. for life ; or where a lease is made to J. S. for life, and after the death of J. B., 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 dis- tinctive 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 construc- tion of that description, without falling into its loose and dangerous 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 hap- pen ; and the remainder " is capable of vesting in posses- sion on such event, without requiring the concurrence of any contingency to perfect its capacity of taking effect at that particular 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 remainder ; such remainder is vested." For, to render the remainder vested, if it is legal, it must be capable of II. 5.] OF EXECUTORY INTERESTS. [§ 258. [ 121 ] taking effect in possession (subject as aforesaid) on the certain expiration of the preceding estate, though it may also be capable of taking effect on a contingent deter- mination. For, what conceivable difference can it make in the nature of the remainder, that the preceding estate is to determine on an event certain, if that remainder is to- tally incapable of taking effect on such certain determina- tion 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 capacity of determination. Nor must the concurrence of any contingency be requisite, that a remainder may be completely capable of taking effect 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 remainder, our Author adds, that " as this conclusion corresponds with the authorities in point, it may fairly be considered as an instance of the justness of that distinc- tion from which we can thus immediately derive it. w (/) Here, we may plainly discover in what way he was be- trayed into the inconsistency at which the foregoing ob- servations are pointed. Influenced by a laudable reverence for authority, he evidently framed such 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 accord " 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 the following observations. In delivering the unanimous opinion of the Judges, be- fore 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 remain- ders, which do not vest; 1st, where the person to whom the remainder is limited is not in esse at the time of the limitation ; 2dly, where the commencement of the remain- (/) Fearne, 218. [ 122 ] II. 5.] AN ORIGINAL VIEW [§ 258. der depends on some matter collateral to the determination of the particular estate." {g) The first of these of course answers to the fourth class of contingent remainders, ac- cording to Fearne's distribution, and the second obviously includes the second and third of his classes. But, where are those that, in the words of our author himself, depend entirely on a contingent determination of the preceding estate itself? The very kind of contingent remainders to which the limitation in question appears to belong, are entirely omitted. The learned Judge (A) has no idea of the existence of such contingent remainders. How then can we wonder at his denying that the remainder in question was a contingent remainder ? And what worth can we attach to his argument? Debile fundamentum fallit opus. But the learned Judge, in order " to enforce " what he had said, makes an observation which only serves as an additional evidence of the imperfect state of his acquaint- ance with the subject under discussion. "Will any one," lie 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 non- sensical. And yet this word ' heirs ' has been put in every such limitation for 200 years last past."(i) The answer to this is to be found in the pages of Fearne himself, from which we learn, that k a contingent remainder, executory devise, or other executory interest of inheritance, does descend to the heirs of the person to whom it is limited, if he dies before the contingency happens, unless his at- taining a certain age, or existing at some particular time, subsequent to the period when he died, constitutes or by implication enters into, and makes a part of, the contin- gency itself, on which such interest is intended to take effect, (k) In conclusion, the learned Judge puts this case : " A., tenant in fee, grants an estate to J3., for 99 years, deter- (g) Willes Rep. 337. (h) In the ninth page, Fearne observes, that " contingent re- mainders appear to have been generally distributed into three kinds only, namely, the three last specified in the above division of them." (i) Willes Rep. 338. (k) Fearne, 364—5, 552—65. II. 5.] OF EXECUTORY INTERESTS. [§ 258. [ 123 ] minable on his life; supposing .B. outlive the term, or surrender, or forfeit, no one, I believe, will say but that A. may enjoy the estate again. If so, a contingent free- hold was in him 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 A., it must be a vested interest, for it was never out of him ; and if A. had a contingent freehold during the life of B., 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 A., and consequently a vested freehold. And this case I have put, is expressly held to be law in Co. Lit. 42 a ; in Cholmley's Case, 2 Co. 51 a ; and in the Year Book of Edw. III., which is there cited." (I) 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 actual enjoyment, the fact that A. had a vested interest, cannot be disputed ; but nothing can be inferred from this, to prove that the limitation to trustees to preserve &c. is strictly and properly a vested remainder. As A. granted only a chattel interest to B., without making any further disposition of the land, the freehold and inheritance of course remained in ; him in its original state ; and was therefore a vested interest ; and if A. after- wards granted over the freehold and inheritance to C, it would still be 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 B., or the expiration of the 99 years, at which it must ultimately take effect in possession, though it might possibly take effect at a previous time, in conse- quence of the forfeiture or surrender of jB.'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, m 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 (0 Willes Rep. 339. [ 124 ] II. 5.] AN ORIGINAL VIEW [§ 258. anterior contingent determination of B.'s estate, the interest granted to C, would be vested, (m) because it would be sure ultimately to take effect in possession, if it lasted till the certain expiration of the preceding interest, or in other words, if C. survived B., and did not previously surrender or forfeit his estate. But if A. had merely granted over an estate during the life of B., to commence upon, and only upon, a contingent determination of B.'s estate, in JB.'s lifetime, which is the only one of the three hypotheses that is in any way analogous to the limitation to trustees to preserve con- tingent remainders, this subsequent interest, though de- rived out of the vested interest of A., 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 interest would have no other con- nexion with such a period than this ; that if such in- terest 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 com- mencement of possession, and the existence of the right of possession, this subsequent interest must entirely depend on the chance of some anterior contingent determination of the preceding estate ; and consequently it must be a contingent, instead of a vested interest. The possibility, it must be observed, which A. had, of having the land before the death of B., was not a distinct See §46-7, preceding interest or portion of the seisin, property, or 50, 52, 58. ownership, whether vested or contingent, but a mere possibility of an earlier possession, annexed to what, 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 ownership, and more strictly speaking, was a See § llle. present vested interest subject to a term. And hence, though the subsequent grant of A. could not operate as a transfer of a mere possibility to strangers, contrary to the rule of the common law, yet it was not a transfer of an ancient vested interest, but a creation of a new interest (m) See § 259. II. 5.] OF EXECUTORY INTERESTS. [§ 258. [ 125 ] out of a vested interest, that is, out of the freehold and in- heritance remaining in him subject to the term first created. And if an interest were necessarily vested, because derived out of a vested interest, we should never have heard of such a thing as a contingent remainder. 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, Communis error facitjus, and Ut res magis valeat quampereat. When the question lies between the validity of thousands of settlements, on the one hand, and the in- violability of an abstract principle, on the other ; we may well be warranted in making an exception, when we can do so without derogating 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 deci- sion itself, then, no objection can justly be urged, so far as it concerns the principal case. The point that is here contended for, is this — and it is one of the utmost 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 disaffirming, 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 consequently, apart from the relative uncertainty of its duration, and subject to any chattel or other interest collateral to the seisin, property, or ownership, a vested remainder is certain, whereas a contingent remainder is not certain, of taking effect in possession or enjoyment. [126] II. 6.] AN ORIGINAL VIEW [§ 259—260. CHAPTER THE SIXTH. SECOND EXCEPTION FROM THE FIRST CLASS OF CONTINGENT REMAINDERS. Where a re- mainder li- mited on a contingent determina- tion of the preceding estate, may take effect on the certain expiration thereof. I. Although a remainder, so far as regards the express 259 words of its limitation, may depend entirely a and simply (a) on a contingent determination of the preceding estate ; yet, in the case of a will, if it is morally certain that it was intended to take effect either on the certain expiration, or on a contingent determination, of such estate, whichever shall first happen ; it will be allowed to do so, and, there- fore, will be construed a vested remainder. Thus, b where a testator has devised to his wife, for her 260 life, if she shall so long continue his widow ; and, in case she marry, to A. in fee ; the courts have held that the re- mainder-man is to take either on the death of the tenant for life, or on her marriage ; and have therefore construed the limitation to be a vested remainder, (b) And this in- terpretation 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 A. should take in either event ; because, it is impossible to discover any reason why A. should be the object of the testator's bounty, in case the particular estate should de- termine 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 tes- tator's disliking and disinheriting the heir at law, nor for his desiring to benefit A. ; and, therefore, no reason can (a) See Jordan v. Holkman, Amb. 209 ; as stated, Fearne, 240. (b) Luxford v. Cheeke, 3 Lev. 125; Raym. 427 ; referred to, Fearne, 5, note(d), and stated, Fearne, 239; Gordon v. Adol- phus, 3P.C. Toml. ed. 306, as stated, 1 Jarman on Wills, 731. II. 6.] OF EXECUTORY INTERESTS. [§ 261. [ 127 ] be drawn from the difference in the events themselves, why A. should take in one event more than in another. 261 II. But a remainder, which is expressly to take effect Where a re- on a contingent determination of the preceding estate, will m ainder can not be allowed to take effect on the certain expiration of rc^ . ., the preceding estate, unless it is morally certain that such contingent was the intention of the testator. expiration of And, therefore, c where the devise was to A. for life the preceding . . . . . estate, remainder to his first and other sons in tail ; on condition that he and his issue male should assume a particular name ; and in case he or they refused, then, that devise to be void; and, in such case, the testator devised the lands over. A. survived the testator, complied with the con- dition, and then died without issue ; and it was held in B. R., on a case from Chancery, and ultimately in the House of Lords, that the limitation over did not arise, (c) In this case, the contingent determination of the estate, namely, by the non-assumption of the name, was so im- probable, that the existence of an express limitation over in that event, could afford but a slight ground for sup- posing that the person to whom it was made, was also intended to take on the certain expiration of the estate by failure of issue. (c) Amhurst v. Donelly, 8 Vin. Ab. 221, pi. 21, affirmed in Dom. Proc. 5 B. P. C. Toml. ed. 254 ; as stated, 1 Jarm. on Wills, 730. [ 128 ] II. 7.] AN ORIGINAL VIEW [§ 262-263. CHAPTER THE SEVENTH. SECTION THE FIRST. 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- cial or colla- teral limita- tion, and such subse- quent inter- est is a re- mainder. 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 Limitations. We have already seen that the grand distinction between 202 remainders and conditional limitations, is, that a contingent remainder is limited to take effect in possession, or enjoy- ment, or in both, after the regular expiration of the pre- ceding estate; whereas a conditional limitation is limited to take effect in that manner before the particular estate has filled up the original measure of its duration, so as to operate in defeasance thereof, instead of by way of re- mainder after it. To exemplify this distinction the more clearly, and to enable the student to apply it with cer- tainty to the more difficult cases, the following rules and examples may here be given. I. a Where the subsequent interest depends on.a_co.n- 263 dition 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 interest does not carry the fee ; or, such subsequent in- terest is a springing interest of the seventh kind, if the preceding interest does carry the fee. For, instead of curtailing the preceding estate, it is not to take effect in possession, till an event upon which the preceding estate (a) See Fearne, 10, note (h). II. 7. i.] OF EXECUTORY INTERESTS. [§264— 266. [ 129 ] would have expired, even if it had been followed by no oraspringing other interest. And, in case the event upon which the mterest of tll6 SGVCntll subsequent interest is limited, is a contingent one, and j^ ^ such subsequent interest depends entirely on that event, g ee , 04. g it is a contingent remainder of the first class. As, where 159, 117, an estate is limited to the use of A. and the heirs of his 126, 184. body, till C. returns from Rome, or if A. and the heirs of his body shall continue to be Lords of the Manor of Dale ; and after C.'s return, or on A. and his issue ceasing to be Lords of the Manor of Dale, (within the period pre- scribed by the rule against perpetuities,) then, to the use g ee ^ 795, of B. in fee. 264 II. And where the subsequent interest depends on all. Where a condition or contingency, which is not inserted, as a re- subsequent gular special or collateral limitation, in the clause by ds on tlie which the prior interest is created ; (§ 34 — 8) still, if it is determina- subjoined to such clause, so as to be capable of being tion of the connected with and construed a part of it, as an irregular P n ° r interest c oov • i -c by force 01 an special or collateral limitation; (§39) in such case, it j r * reo . u ] ar spe _ the preceding interest does not amount to the fee, the cial or colla- subsequent interest is a remainder. (§ 159) And if it en- teral limita- . , *, , . . r • 1 l- •* tion.anusuch tirely depends on the contingency forming such limita- subsequent tion, it is a contingent remainder of the first class. (§ 184) interest is a But if it is also capable of taking effect on the certain remainder, expiration of the preceding estate, it is a vested remain- jJJ^JP™! JJjJ der. (§ 183) a If the preceding interest, however, does se venthkind. amount to the fee, the subsequent interest is a springing interest of the seventh kind, (a) See § 117, 126, 165. 265 Thus, if, as it has been previously observed, b a devise is Illustrations, 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 A., until he shall marry C. ; and then, or upon death, to See § 34, 38, B.;(b) and the subsequent limitation is a vested remain- 41 * 266 der. This proviso, when viewed apart from the limitation over, is strictly a condition subsequent. But it is not construed as such; because if the heir of the devisor had See § 12, 15-19. (a) See Fulmerston v. Steward, cited Cro. Jac. 592 ; as stated, Fearne, 395. (b) Burton's Compendium, § 829. See also Scatterwood v. Edge, as stated, Fearne, 237. K [ 130 ] II. 7. i.] AN ORIGINAL VIEW [§ 267-269. entered in case of a breach thereof, c his entry would have defeated the remainder, as well as the particular estate, though the condition was never intended to defeat the remainder; because, by entry or claim, the livery made upon the creation of the estates was defeated, (c) See § 14. Nor is the proviso a mixed condition, with a conditional 267 See § 148-9. limitation limited thereon. It may perhaps be urged, See § 149a. that as conditional limitations are admissible in devises, it should rather be construed as if it were to A. for life, but if he marry C, then the land shall immediately go to B. ; in which case, B. would take by way of conditional limi- tation, instead of by way of remainder. But this construc- See§ 196-7. tion would be at variance with the general rule, whereby 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 A.'a death, as he would accord- ing 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 con- See § 200-9. strued to be vested, rather than contingent. d If such a sentence were contained in a deed, it has 268 been thought that it would be construed as a condition subsequent, but as merely ineffectual and void, (d) But the better opinion would seem to be that such a sentence would be construed as an irregular special limitation, even See § 14-19. in a deed. "Though strict words of condition, 11 says 269 Blackstone, " be used in the creation 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 A. to B., on condition, that, within two years, B. inter- marry 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 reason 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, (c) Butler's note, Co. Litt. 203 b (1). Burton's Compen- dium, § 828 ; Fearne, 261, 270, 381, note (a). (d) Burton's Compendium, § 828. (e) 3 Bl. Com. 155. See also Shep. T. 124, note (16). II. 7. i.] OF EXECUTORY INTERESTS. [§ 270. [ 131 ] only A. and his representatives could avoid the estate by entry, and jD.'s remainder might be defeated by their neglecting to enter ;" whereas D.'s interest, as we have seen, would equally be defeated by the very entry itself, See § 266. as much as by the neglecting to enter. Yet, the doctrine itself, that the words in question constitute a limitation, seems to be perfectly correct. And it would also seem clear, that, by such a limitation, the learned Judge meant a limitation in the original sense of a limit or bound, and See § 24, 26, not a conditional limitation. For, the words would be 34. void as a conditional limitation ; because a conditional See § 148-9. limitation could only be by way of use or executory devise. See § 149a. And, even if the grant mentioned by Blackstone had been by way of use, yet the construing the words to be a con- ditional limitation, would have been at variance with the rule for construing a disposition to be a remainder, rather See § 196-9. than an executory interest not by way of remainder. There are two differences, indeed, between the case put by See § 269. Blackstone, and the preceding case. In the first place, See § 265. the proviso mentioned by Burton, is an irregular special See § 39. limitation, amounting in effect to a direct regular limita- See § 41. tion ; namely to a gift to A. for life, until he marry C. ; and upon the death of J.., or upon A.'s marriage with C, then to B. ; while the proviso mentioned by Blackstone is an irregular special limitation, capable, without doing See § 39. violence to the words, of being resolved into an indirect See § 42. limitation ; namely to a grant to B. for life, B. inter- marrying 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 differences do not seem to constitute any mate- rial distinction between them, so far as the present ques- tion is concerned. Nor, upon principle, does it appear at all necessary or consonant to a sound and enlightened interpretation, 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 HI. Bjit^f where the subsequent interest depends on HI. Where a a condition or contingency that is not inserted, as a regular ^J^"^. special or collateral limitation, in the clause by which pends on t j ie k2 [ 132 ] II. 7. i.] AN ORIGINAL VIEW [§271-272. determina- the preceding estate in possession or in remainder, is tionofthe cre ated, (/) nor so subjoined to such clause, as to be ? r 7 r c n e te o r f e a capable' of being- 'connected with it, as an irregular special mixed'condi- or collateral limitation, so as, in either case, to form one of tion, and the original bounds to the quantity of interest (§ 34-43); such subse- &n( j the wor( j s re q U ire an immediate transfer of the seisin, iTfcnotT property, or ownership, to the person entitled to the sub- remainder'; sequent interest, as soon as such condition or contingency § 159, 160. shall happen or be fulfilled; there the subsequent limi- norisitgoodtation is not a remainder.^) h Nor is it good, at the at the com- CO mmon law, in any other way. (h) For, if the condition mon law in were a u owe( j to operate as a condition subsequent, so as ^ v "y to defeat the preceding interest, it would defeat the sub- See $ 12 15- sequent interest at the same time; and therefore, if the 19, 266. instrument takes effect at common law, the condition, and the subsequent limitation dependent thereon, must be but it may be construed as void. But, if the limitations are by devise good, if by or Dv way of use, the condition will then be good as a way of use m i xe d condition, and the » subsequent limitation will be or devise, as , . . . . _^ . .,-. „ an interest good as a conditional limitation, (i) ^ 14, 20, I4o — ya. under a con- To illustrate these points, we may observe, that if, in the 271 ditional hmi- cage p Ut D y Blackstone, the grant were to B., on con- dition, that if within two years he do not intermarry with Illustrations. ^ ,, -r. , , . , . ,, • ., • j „ n C, then to D. and his hens ; this, it is conceived, would be construed as a void condition. For, the words which specify the event on which the estate is to go over, form, with the words carrying the estate over, but one undivided 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 construed to 42. mark out the original limits of that estate. And this view 272 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 not done, that the land shall (/) See Fearne, 10, note (h). See also Cogan v. Coyan, Cro. Eliz. 360 ; as stated, Fearne, 263. kg) lb. (h) See resolution in Colthirst v. Bejushin, Plowd. 23; as stated, Fearne, 263. (i) See Fearne, 10, note (A). II. 7. i.] OF EXECUTORY INTERESTS. [§273—275. [ 133 ] remain to J.D., or that J. D. shall enter; in this case J. D. shall never take advantage of this condition." (A) 273 But if the limitation, instead of being at the common law, were *by devise, (Z) or if it were a grant to A., to the use of B., on condition, that if, within two years, B. do not intermarry with C, then to the use of D. and his heirs ; this would be good as a conditional limitation. See & 148-9. 273a And, if the contingency were not introduced by the technical words of a condition subsequent, namely, "on See § 18, 19. condition," or " provided," or " so that," but by the words 111 " and if," then the subsequent interest to D. and his heirs might have been good as a remainder, (m) For, 274 IV. Where the subsequent interest depends on an event IV. Where a which, instead of being inserted in, or capable of being subsequent connected with, the clause by which the prior interest is , ' J r pends on a created, is independent of the measure of that estate ; condition (§ 34 — 43) but the words merely import an intention that precedent on the occurrence of the event a present right of future ""connected with the de- possession or enjoyment, or both, should accrue to the termination party entitled to the subsequent interest; or, in other of the prior words, that such interest should then vest in right; in interest, and such case, the subsequent interest is a contingent remain- lb ' » _ ° gent remain- der of the second or third class. (§79 — 81, 159, 185 — 6.) c i eij capable 275 Thus, n where land is limited to the use of A.; and if €. of afterwards should die in A.'s lifetime, then, after A.'s decease to B. becoming and his heirs ; the limitation to B. is a remainder, and not mtQ veste j a conditional limitation ; because, the interest limited to remainder. B. is not to take effect in possession or enjoyment, but Illustrations, merely to vest in right, on the death of C. in A.'s lifetime. See § 148-9. During the joint lives of A. and C, it is a contingent re- mainder; and on the death of C. in A.'s lifetime, it does not vest in possession, but merely becomes changed into a vested remainder, which continues, as before, to be ex- (k) Shep. T. 153. (/) 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, which, however, must be regarded as inaccurate. (m) See Colthirst v. Bejushin, Plowd. 23; as stated, Fearne, 263. [ 134 ] II. 7. ii.] AN ORIGINAL VIEW [§277-278. pectant on the regular expiration of the particular estate by the decease of A. (w) 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. There are When the practitioner is desirous of making a prior 277 cases where interest defeasible on a particular contingency, and of it may seem caus j n2; a subsequent interest to arise on the same contin- doubtful in & ^ . -Tiii what way a gency; it may seem to him immaterial, whether he accom- prior interest plishes this general end by making that contingency the should bede- SUD jectof a special or collateral limitation to the prior in- anTa subs'e- terest > (§ 34 — 42) anc * causing the subsequent interest to quent inter- arise on the same contingency, as a condition precedent, est be ere- (^ 43 ? 13) by way of contingent remainder, or of a spring- ing executory interest ; or whether he makes that contin- ue § 159, gency the subject of a mixed condition, and causes the „ ' prior interest to be defeated, and the subsequent interest ~ to arise, on such contingency, by way of conditional limi- " tation. Or, it may appear doubtful to him, which of these two modes is the best. Now, apart from any other grounds of preference which other legal consequences may suggest for the one mode rather than the other, it may be observed, I. Where the I. That if he is desirous of annexing a determinable 278 prior interest quality to the prior interest, for the sake of determining; should be de- , J . . r A . ' . n , . & terminable sucn pnor interest on the contingency specified, nrespec- by force of a tively of the design of creating another interest in its room, special limi- and he is desirous that such prior interest should cease on th ^V) 1 ™ ^ iat contm g enc y> whether the subsequent interest should quent inter- De ca P a ble of taking effect or not ; then, the contingency est be limit- should be made the subject of a special or collateral limi- ed by way tation to the prior interest, and the subsequent interest or remainder. * See §34-42. — (n) See Fearne 10, note (/i). (o) Fearne, 263. And Colthirst v. Bejushin, Plowd. 23 ; as stated, Fearne, 263. II. 7. Hi] OF EXECUTORY INTERESTS. [§ 279—280. [ 135 ] should be limited to arise on such contingency, as a con- See § 13,43. dition precedent, by way of contingent remainder, in case See § 159. the prior interest does not carry the fee, or of a springing See § 117, executory interest of the seventh kind, in case the prior 126 > !65. interest does carry the fee. 279 II. But if he is desirous of annexing a determinable II. Where quality to the prior interest, for the sake of creating ano- the prior in- ther interest in its room on the contingency specified, and !f r ^ st snou .'" he would not wish the prior interest to cease, if the sub- naD l e and a sequent interest intended to be created in its room should subsequent be incapable of taking effect; then, he should make that interestbe li- contingency the subject of a mixed condition, and cause 1 ™ ^ f^cf 6 the prior interest to be defeated, and the subsequent in- me nt of a terest to arise, on such contingency, by way of conditional mixed condi- limitation. (See § 14, 148—9.) tion - 280 These suggestions may be illustrated by the following Illustrations, 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 A. becomes possessed of the other estate, the first estate will cease by force of the direct 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 con- tingent remainder to him. Whereas, if an estate be de- vised to A. and the heirs of his body ; but, if he become possessed of a certain other estate, then to C. for life ; there, notwithstanding it should happen that A. had be- come 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 over by virtue of the conditional limitation. For, in this case, there is nothing to cause it to cease, as to A., 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 A. [ 136 ] II. 8. i.] AN ORIGINAL VIEW [§ 281. CHAPTER THE EIGHTH. CERTAIN CASES OF ABSOLUTE AND DEFEASIBLE VESTED INTERESTS, DISTINGUISHED FROM SPRINGING INTERESTS, AND FROM THE SECOND, THIRD, AND FOURTn CLASSES OF CONTINGENT REMAINDERS. SECTION THE FIRST. Cases where an Uncertain Event is made a part of the Description of the Devisee or Legatee. I. Where an I. Where real or personal estate is devised or be- 281 uncertain queathed to such of the children, or to such child or indi- event forms ^ual as shall attain a given age, or the children, &c. original de- wno sna11 sustain a certain character, or do a particular scription. act, or a be living at a particular time, (a) -without any distinct gift to the whole class, immediately preceding such restrictive description ; so that the uncertain event See § 282- forms part of the original description of the devisee or 309. legatee ; in such case, the interest so devised or be- queathed, is necessarily contingent, on account of the person. For, until the age is attained, the character sus- tained, or the act performed, the person is unascertained; there is no person in rerum natura, answering the descrip- tion of the person who is to take as devisee or legatee. Duffield v. A testator devised his estates at >S. and H. to trustees, Duffield, 1 in trust, in case there should be but one son of his daughter PI fe 2fiR W ^° snou ld attain the age of 21 years, for such son, his heirs and assigns for ever ; and in case there should be two or more sons who should attain the age of 21, then, (a) Reeves v. Brymer, 4 Ves. 692 ; as stated, 1 Rop. Leg. 509, ed. by White. See also Bennett v. Seymour, Ambl. 521 ; as stated, 1 Rop. Leg. 509. And see Demi d. Radclyffe v. Bagshaw, 6 Durn. & East, 512 ; as stated, Fearne, 246, note (h) ; and § 350. II. 8. i.] OF EXECUTORY INTERESTS. [§ 281. [ 137 in trust for the second of such sons, his heirs and assigns for ever ; 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 into 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, 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 mean- time, 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 directed the sale of his residuary freehold property, the testator di- rected, that the son of his daughter who should first attain the age of 21 years, should, on attaining such age, change his name for that of Elwes; and he devised to such son, on his attaining the age of 21 years, and changing his name to Elwes, all his freehold property &c. [meaning that directed by the will to be sold, and what he had sub- sequently 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 after- wards a second son was born. The decree of the Vice- Chancellor declared, that, under and by virtue of the will, G. T. W. H. Duffield, 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 Henry Duffield, the second son, the said equitable estate of the said G. T. W. H. Duffield, was devested, and the said Henry Duffield took a vested equitable estate in fee in the said estates, subject to be devested in the event of his dying, or becoming neither the second nor only son, before he attained the [ 138 ] II. 8. l] AN ORIGINAL VIEW [§ 281. ao-e of 21 years ; and that, under and by virtue of the codicil, the said G. T. W. H. Dvffield, 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 H.) subject to be devested, in case of his death under age ; but without prejudice to the question, how far such estate might be affected by 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 re- spectively attaining that age, or marrying with consent of the trustees, and not before. 2. That the testator's other freehold estate vested in the son 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, 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 should execute the power, by applying part of the rents and profits of the premises first devised, for the maintenance of the second of such sons, during his 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 part 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 tes- tator'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 the maintenance of the first son, would cease, and they should apply part of the rents and profits for the maintenance of such third son ; and that, supposing there was an only son, and a daughter of the testator's daughter, unmarried, and an infant, the trus- tees would not have the power of applying any part of the rents and profits for the maintenance of such daughter during her minority. Lord Chief Justice Best, who de- livered the answers of the Judges, observed, that it was II. 8. i.] OF EXECUTORY INTERESTS. [§ 281 . [ 139 ] impossible to say that the words of that will did not im- port conditions precedent; that the estates were not given See § 13. 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 de- scription which the testator had given of those who were to be devisees under his will ; and, therefore, there was no person on whom the estates could vest. (1 Dow & Clark, 314.) It had been argued from the words " pre- sumptively 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 interest ; for, as the former remarked, a pre- sumptive title was only a possibility; a presumptive 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 per- son to whom the presumptive heir stands in that relation. (lb. 315.) With regard to any general motives that might induce a leaning towards one construction rather than another, the Lord Chief Justice observed, that the Judges were always inclined to decide that estates were vested, be- cause, among other reasons, " the rights of the different members of families not being ascertained whilst estates remain contingent, such families continue in an unsettled state, which is often productive of inconvenience, and some- times of injury to them. 1 ' (lb. 311.) But " the state of the affairs of this family," he added, " will not be sooner settled by the artificial contrivance of vesting and devesting the estates, than by keeping them contingent until a final vesting of them can take place, agreeably to the dispo- sition made by the testator. How can it be said that the affairs 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. And so where a testator gave 5000Z. to trustees, in trust Tucker v. for his daughter E., for life, for her separate use ; and j^"™^ after her death, in trust to apply the interest for the main- [ 140 ] II. 8. i.J AN ORIGINAL VIEW [§ 282. tenance of 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. But if E. should die without leaving any such child; or leaving such, if such child, or all such children, should happen to depart this life before attaining 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 E.'s lifetime. Sir L. Shadwell, V. C, held, that the deceased daughter of E. took no interest. It was argued for her adminis- trator, 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 that 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 except those who are described as takers. That the words " without issue" referred to the event before de- scribed 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 described 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. II. Where an II. But b where a testator devises or bequeaths real or 282 uncertain personal estate to a class of persons, " or such of them as an inde°pend- shal * be nvin g" &c -> " or the survivors," so that the cir- ent super- cumstance of being alive at a particular time, forms an added de- independent, superadded, restrictive description, (instead scnption. of forming part of one and the same original description, and therefore of necessity rendering the interests contin- gent, as in cases falling under the last rule, where a devise or bequest is made to such of a class of persons as shall be living &c. ;) in such case, if at least there is no limita- II. 8. i.] OF EXECUTORY INTERESTS. [§ 283. [ 141 ] tion over in the event of none of them surviving, the whole class will take vested interests, notwithstanding the super- added description, where they would take vested interests in the absence of such superadded description, and where 283 they are all alive at the death of the testator. And if the See § 97-8, survivorship refers to the death of the testator, they will ^°^' take absolute vested interests, the superadded description being construed to be an alternative limitation of an irre- See § 128, 284 gular form. But if the survivorship refers to a subsequent 134-5. period, they will take vested interests, subject only to be devested in favour of the survivors, in case of the death of some one or more of them, before the period to which the survivorship refers, the superadded description being then construed to be an irregularly formed conditional See § 148-9. limitation. So that, in 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, (b) (b) 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 Billingsley 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 survivor- ship 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 be divided between them, or [or, and] to the survivors or sur- vivor 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 faGfe****-^ <£ personal estate, though, as he shows, it is opposed to many autho-fe -* . ~z£J 77. rities. See his review of the cases, 2 Jarm. Powell on Dev. 730, &c. See also 2 Rop. Leg. by White, 334—355 ; and Doe d. Long v. Prigg, 8 B. & C. 231, where a testator devised to A. 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 " sur- viving" referred to the death of the testator. [ 142 ] II. 8. ii.] " AN ORIGINAL VIEW [ § 285-287. SECTION THE SECOND. Cases where the Devise or Bequest has reference to a future Aye or an Uncertain Event which does not form part of the Description of the Devisee or Legatee, and there is no Indication of Vesting. I. Where the I- Where real or personal estate is devised or bequeathed 285 conditional to a person, when or as soon as he shall attain a given words are, a g e> or w h en an event shall happen which may never occur J^^at all, or "at, (a) or * upon, (6) or from and after his from and P ° n ' attaining such age, or the happening of such event ; and after. there are no other words indicative of an intent to confer a See * 290- vested interest ; and nothing, in the form of the limitation 309.' itself, to indicate an intent merely to delay the vesting in possession or enjoyment, and no disposition of the interme- diate 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. For, although in 286 See § 281. this case the person is ascertained, 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 bequest till such period had actually arrived. We find this doctrine in the Civil Law : Si dies 287 The doctrine adposita legato non est, praesens debetur aut confes- of the Civil tmi a( j eum p ertme t 5 cu i datum est; adjecta, quamvis longa sit, si certa est, veluti calendis Januariis cen- tesimis, dies quidem legati statim cedit: sed ante diem peti non potest. At si incerta, (quasi cum pubes erit, cum in familiam nupserit, cum magistratum inierit, cum aliquid demum fecerit) nisi tempus, conditione obtigit, neque res pertinere, neque dies legati cedere potest. D. 36.2.21. (a) Onslow v. South, 1 Eq. Ca. Ab. 295, pi. 6 ; and Cruse v. Barley, 3 P. W. 20 ; as stated, 1 Rop. Leg. 489. (b) Judd v. Judd, 3 Sim. 525; and Hunter v. Judd, 4 Sim. 455 ; as stated, § 362. II. 8. ii.] OF EXECUTORY INTERESTS. [§288-289a. [ 143 ] 288 Dies incertus conditionem in testamento facit. D. 35. 1.75. 289 Dies incertus appellatur conditio. D. 30. 1. 30, § 4. 289a And it is supported by various decisions. Thus, Nash v. where a testator, after empowering his trustees to sell U q part of his real estate, if they should think fit, for payment 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 pur- poses of his will, to his son T. JV., 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 attain the age of 30. Sir W. Grant, M. R. held, that as there was no mention of the beneficial inter- est in the real estate, previous to the disposition of it from and after T. N. should have attained the age of 30 years ; and as T. N. never attained 30 ; he never took the real estate under the will, but as the heir at law, notwith- standing 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 thereof for D.G., until S^ er £°^' he should attain 25. He then directed them to transfer 373> * the same to D. G. when and so soon as they should think proper; and in case D. G. should die without issue before receiving 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 sus- pended ; and, consequently, that the dividends must await the final disposition of the capital. So where a testator bequeathed to his wife the use of Ford v. his furniture, &c, which he desired might be distributed g/^^J, amongst his children on the youngest attaining 21, at her 32g * and his executor's discretion ; such part being neverthe- [ 144 ] II. 8. ii.] AN ORIGINAL VIEW [§290-294. less reserved for her use as might be thought convenient, and, at her death, to be distributed as above directed, Sir John Leach, V. 0., held, that three children who died under 21, did not take, inasmuch as there was only a power to the widow and executors to distribute at their discretion certain specific articles when the youngest at- tained 21. Knight v. And where a testator gave to A., as soon as he attained Knight, 2 21, the sum of 3000Z. with interest ; Sir John Leach, V. C, |' m - * held, that the expressed intention must prevail; and that g there was no gift either of principal or interest until A. attained 21. II. Where IL But a distinction would seem to exist, between de- 290 the condi- vises of real estate and legacies, where, instead of the tional words wordg tt wnen> » " at," "upon," "from and after," the are if, incase, . ,,.„,, ,, . ,, ., -j i ■>, i -n provided. words " if, " in case, " provided, are used, .bor, 1. In the case I- c Where a legacy is bequeathed to a person, if, or in 291 of legacies, case, or provided he shall attain a given age, &c. ; the vesting of the legacy is suspended, just in the same way as if it had been bequeathed to him, when he should attain a given age &c, or at, or upon, or from and after his at- (1) Payable taining such age &c. (c) (1) As regards legacies payable 292 out of real out of real estate, it is conceived that they would be estate. equally contingent, whether the words "if," "in case," "provided," are used, or the words " when," &c, for the See § 324-6. reasons given in a subsequent page, in relation to other (2) Payable cases where they are held contingent. (2) And, as regards 293 out of per- legacies payable out of personal estate, the subtle distinc- ' tions between 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, 11 and "in case," and "provided," were un- known to the Civil Law, by which legacies payable out of personal estate are governed ; and that Law therefore treats the words in question as tantamount to each other, if not as entirely synonymous expressions. The doctrine Si Titio, cum is annorum quatuordecim esset factus le- 294 of the Civil Law (c) See 1 Rop. Leg. 490 ; and Elton v. Elton, 3 Atk. 504, as there stated. II. 8. ii.] OF EXECUTORY INTERESTS. [§295-208. [ 145 ] gatum fuerit, et is ante quartum decimum annum deces- serit, verum est ad haeredem ejus non transire: quoniam non solum diem, sed et conditionem hoc legatum in se continet, si effectus esset annorum quatuordecim Nee interest utrum scribatur, Si annorum quatuordecim factus erit: an ita. cum priore scriptura per conditionem tempus demonstratur, sequenti per tempus conditio : utro- bique tamen eadem conditio est. D. 36. 2. 22. 295 Non solum ita stipulari possumus, Cum morieris : sed etiam, Si morieris. Nam sicuti inter lraec 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, 2. In the 296 (1) Where a devise is made to a person, provided he c Jff ofreal lives to attain a given age, &c, so that the conditional ex- ^\ where pressions do not precede, but follow the devise ; and there the word is no limitation over in the event of his not attaining " provided" such age, this is a condition subsequent, giving the heir , . b , of the testator a right of entry in case of the event of his there is no not attaining the age specified, instead of being a condi- limitation tion precedent, suspending the vesting; of the estate : for over » the word " provided " is one of the three technical words , r e ,- r > i-i • • t • 15 ly. which proprio vigore import a condition subsequent. 297 (2) But if there is a limitation over in the event of the (2) Where devisee not attaining the age specified, the words " pro- ™ e W0 F~,„ vided^&c. are a condition, in the widest sense of the f ]i ows t ] ie term, of that kind which is termed, in a preceding page, an devise, and irregular special or collateral limitation, the effect of which there is a li- is to put a termination to the estate, in the event of the mitatl0n . . over, devisee not attaining the age specified, instead of being a g . ,- ^ condition precedent, suspending the vesting of the estate. 24-43. 298 (3) And where real estate is devised to a person " if," (3) Where or " in case" he shall attain a given age, &c, so that the theword"if" conditional expressions follow the devise, and there is no ? r . ie \, r . . . . - , in case, limitation over in the opposite event ; it is conceived that f u ou - t he this would be a condition, in the widest sense of the term, devise. of that sort which is termed in a preceding page a regular See § 7, 34, special or collateral limitation of the indirect kind, causing 38 ' 42 - the cesser of the estate, in the event of the devisee not attaining the age specified, instead of a condition prece- See § 13. dent suspending the vesting of the estate. L [ 146 ] II. 8. ii.] AN ORIGINAL VIEW [§ 299-300. See § 351. It is certain from Spring v. Casar, Edwards v. Ham- 299 mond, and Bromfield v. Crowder, that this is the case where there is a devise over in the opposite event. And, even where there is no such 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 See § 200-9. interest, shall, if possible, be considered as vested, rather than contingent. Distinction True it is, that the word " if," and the words " in case," 300 between the are directly conditional, and consequently might at first import of the g - ] ^ |fc a pp ear even more directly and necessarily to import and " in a condition precedent, than the words " when," " at," " as case," and soon as," " upon," " from and after," which only imply a the import of con dition, and yet often denote a condition precedent. " hen " (^ ee § 285.) But, conditions, we must remember, may be "as soon as," either precedent or subsequent, either suspensive or de- "at," ' structive. (See § 12, 13.) And although the words " if" upon, an( j „ j n cage ii are mc | ee( j nl0re directly and necessarily " from and . . J . J after." conditional ; because they properly import contingency, whereas the words " when," " at," " upon," "as soon as," " from and after," abstractedly regarded, do not import contingency 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, 11 " from and after," which are necessarily suspensive, See §46, 50. either of the ownership, or of the possession or enjoy- ment. It may be shown, independently of the leaning towards vesting, and of any such decisions as those to which allu- See § 299. sion has just been made, that the word " if," and the words " in 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. Hammond, and Bromfield v. Crowder,) without doing any violence to language, to mean an im- mediate devise to him, provided, or upon the supposition 11. 8. ii.] OF EXECUTORY INTERESTS. [§300. [ 147 ] or condition, that he shall thereafter live to attain the required age. And the same construction may be fairly adopted, where the subject matter of the condition is the sustaining a certain character, or the performance of a particular act; though, in these cases, such a construction is not quite so easy of application, as in the former case. The words in the former case amount to the same thing, as if the words had been, if he shall continue to live till he shall attain such an age ; and these words are as ob- viously non-suspensive as the words to A., and the heirs of his body, Lords of the Manor of Dale, which (A. being See § 13 24 Lord of the Manor at the time) of course are not a condition 26, 34, 42. precedent, but words constituting a limitation, amounting, in effect, as they do, to the same as a devise to A. and the heirs of his body, so long as they shall continue to See § 41. 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 con- jectural translation of the words " when," " at," "upon," " as soon as," " from and after," into others of a dif- ferent meaning ; unless there were some expressions, inde- pendent of these words, indicating an intention to confer a vested interest on the devisee, and depriving such words of their proper suspensive sense. L 'I r 148 ] II. 8. iii. iv.] AN ORIGINAL VIEW [§ 301-309. 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 future 301- period, and yet not by way of remainder, it matters not, 8 as regards the vesting, whether that period is sure to arrive or not. If the vesting would be suspended, accord- ing to the rule in the preceding section, in case the event were contingent, the vesting will be equally suspended, though the event may be one that is sure to arrive. The only difference is, that, in the former case, the interest is See§75,75a, a certain executory interest, whereas, in the latter, it is a 84-6, 90-1. con ti n g en t executory interest. SECTION THE FOURTH. Cases where a Devise or Bequest has reference to a future Age, Time, or Event, not forming part of the Original Description of the Devisee or Legatee ; and there are Indications of , or Grounds for svpposing, an Immediate Vesting. GENERAL PROPOSITION. See § 79-81. Where real or personal estate is devised or bequeathed 309 to a person, and though 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 See | 341-3. time which is sure to happen or arrive, or, in the case of residuary bequests without any limitation over, upon marriage ; yet, if the attainment of such age, or the ar- rival or occurrence of such event or time does not form part See §281, of the original description of the devisee or legatee, and the suspensive expressions are of such a nature, that See § 344. they may be construed to refer, not to the vesting in right or interest, but to the vesting in possession or enjoyment ; See § 310. and it appears, from the form of the limitation, when more closely considered, or from the intermediate disposition 11.8. it.] 'OF EXECUTORY INTERESTS. [§310— 311a. [ 149 ] of the property, or from other passages, to be probable, See § 328-9, that it was only intended to delay the vesting in possession ?40, 340a, or enjoyment; in such case, the suspensive expressions will be referred to the vesting in possession or enjoyment, and the interest 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 dis- tinct 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 b when he shall attain, or at, a given age, or when some future period shall arrive, which must See § 342-3. arrive, (b) or on his attaining or from and after such age, or the arrival of such period ; the devise or bequest confers an 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 prcesenti, solvendum in futuro. 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. 311 1. This distinction, as to the effect of disannexing the l. Theappli- future period from the gift itself, is firmly established as cation of the regards legacies payable out of personal estate. distinction to s a r J r legacies pay- able out of 311a c " Antiently legatory matters arising on personal estate, personal were solely under the jurisdiction of the Ecclesiastical estate » Courts; and the decisions of those Courts were regulated wnicn ai ' e , ^- •, -r ,, , , i i /-. , ..governed by by the Civil Law : and when by degrees Courts of ° iie qj v jj „ _ — . — _ — . — — -T- Law. (b) 1 Rop. Leg. 485,486, ed. by White ; and Atkins v. Hic- cocks, 1 Atk. 500, as there stated. [160] H.S.iv.] AN ORIGINAL VIEW [§ 312-313. Equity took cognizance of them, they adopted the same VII 16 ( C) Doctrine of ' The distinction in question appears in the following 312 the Civil passage of the Civil Law : — Law# Ex & his verbis, Do, lego iElise Severinse filise meee, et Secundie decern: quae legata accipere debebit, cum ad legitimum statum pervenerit : non conditio fideicommisso, vel legato inserta, sed petitio in tempus legitime setatis dilata = videtur. Et ideo, si iElia Severina filia testatons, cui legatum relictum est, die legati cedente, vita functa est, ad hseredem suum actionem transmisit ; scilicet ut eo tem- pore solutio fiat, quo Severina, si rebus humanis subtracta non fuisset, vigesimum quintum annum setatis implesset. C. 6. 53. 5. d This distinction has also been supported by numerous 313 decisions :(d) Grant v. Thus where a testatrix bequeathed her residuary estate Grant, 3Y. tQ her adopted daughter, and, in a subsequent passage, & C ' 1?L 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 children. It was held, that the daughter, having attained 21, was entitled to the income of the property. Blease v. And so where a testatrix gave her residuary estate to Burgh, 2 trustees, to accumulate, and to stand possessed thereof eaV ' 2 " ' and of the accumulations, in trust for all the children of J. B., other than T. S. B., and to be paid on attaining 23 ; with a gift over, in the event of the death of all the (c) Butler's note, Fearne, 552 (g), II. (d) See Cases stated, 1 Rop. Leg. 479 — 480 ; namely, Bol- ger v. Mackell, 5 Ves. 509, where the period was the attainment of 21 ; Jackson v. Jackson, 1 Ves. Sen. 217, where it was at another's death ; Sidney v. Vaughan, 2 Bro. Pari. Ca. 254, where it was at the end of an apprenticeship ; Gaskell v. Harman, 6 Ves. 159; 11 Ves. 489, where it was after the realization of the assets; Stuart v. Bruere, 6 Ves. 558, in note; and Faulkener v. Hollingsworth, 8 Ves. 558, where it was after a sale of lands ; Entwistle v. Markland, 6 Ves. 558, in note ; and Sitwell v. Barnard, lb. 522, where it was after a purchase of lands. ll.S.iv.] OF EXECUTORY INTERESTS. [§314—315. [ 151 ] said children under 23. J. B. had three „nildren; two born in the lifetime of the testatrix, and a third, A. W. B., who was born afterwards, and attained 23. Lord Lang- dale, 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 accumulate till the time of payment arrives; and that there being a general description of a class, and vested interests given, and another child bom 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 there is no Observations gift but in a direction to payor transfer (e) or f divide onthe fore ' n ■ g om g ru le. among several persons, (f) at a future period ; though the /^ With re _ future period is annexed to the payment, possession, or ference to enjoyment, yet it is also annexed to the devise or bequest cases where itself. For, in this case, the direction to Day or transfer *r re , ls n ? v • i • i i « i ' . .„ , gut, but in a or divide, constitutes the devise or bequest itself; and, direction to therefore, the vesting in interest is postponed, and not pay, &c. merely the vesting in possession or enjoyment. 315 (2) From cases where the future period is annexed (2) With re- simply to the payment, possession, or enjoyment, we must ference to be careful to distinguish those in which there is both a c . ase 1 ! wnere . Cl , ■. .. ,. . , . . , the future girt, and also a distinct direction as to the payment, pos- per i j j s session, or enjoyment, and the future period is really, annexed, though perhaps not apparently, annexed not only to the both t0 tne direction as to the payment or possession, but also to the " ^ 1 1 J . . . possession, or gift itself, and consequently the vesting in interest is post- enjoyment, poned. and to the In the case of Kevern v. Williams, the future period was g^t itself. annexed simply to the payment or possession. In that w -ii- ' r case, a testator bequeathed his residuary estate to trustees, g ml# 17 1 # in 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 (e) Leakey. Robinson, § 722 ; Murray v.Tancred, 10 Sim. 465. (f) Sansbury v. Read, 1 1 Ves. 75. [152] 11.8. iv.] AN ORIGINAL VIEW [§ 315. Porter v. Fox, 6 Sim. 4S5. Distinction between Porter v. Fox, and Kevern v. Williams. benefit of the grandchildren of his brother, to be by them and each of them 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 post- poned till they should attain 25. But, where a testator gave annuities to his widow and son, and directed that the surplus income of his real and personal estate should be invested in stock, and the di- vidends accumulated, and to be and remain assets for improvement, 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 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 distri- buted 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. O. ; 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. At first sight, it may appear impossible to distinguish this case satisfactorily from the preceding ; but on a more attentive consideration, it will be observed, that the words "in manner and form" &c, are capable of being con- nected, not only with the words immediately preceding them, i. e. the words "and to be distributed," but also with the other antecedent words, "to be and remain assets for improvement for the benefit of my grandchildren and my nephew T. O." If the words of distribution had not been connected with the previous words, by the word "and," the subsequent words, " in manner and form " &c, would have belonged exclusively to the next preceding words "to be distributed;" just as the subsequent words in Kevern v. Williams, denoting the time of payment, belonged exclusively to the next preceding words " to be by them and each 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 surviving children after-mentioned II. 8. iv.] OF EXECUTORY INTERESTS. [§316—318. [ 153 ] were, in a subsequent passage to those above recited, ex- plained 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 intended to be disposed of in the same manner. And accordingly, we find, not only that the words denoting the time of distribution are connected with and form part of the antecedent gift, as already shown, but that the testator so disposed of such produce, in subsequent clauses, as to exclude, from a parti- cipation 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 distinguish this case from that of Kevern v. Williams, as the learned Reporter states that it was carried by appeal before Lord Lyndhurst, C, and His Lordship directed a case to be made for the opinion of the Court of Common Pleas, though, before the case was argued, the suit was compromised. 316 (3) The distinction above-mentioned as to the disan- (3) With rc- nexing the time from the gift, ?has been held, by some ference to the equity Judges, altogether without foundation, and bv c ia ™ c ei ° t • i r • ■ ™ e distinc- others it has been treated as too refined. (^) And it is t ; on . which expressly stated by, or may be collected from, all, or is commonly almost all the authorities, that it is a rule exclusively ap- disapproved plicable to legacies payable out of personal estate. 317 But, when carefully considered, it is conceived, that but is in the rule will be seen to be not " a mere positive rule" of reality tound- the Civil Law, or a subtle "refinement," but a distinction amonff manv founded in the intention of the testator — in one among indications of several kinds of indications of an intent merely to post- the testator's pone the actual possession. intention. 318 This is well put by the learned Voet : — Dies incertus Quotation conditionis loco habetur, et ad hunc diem incertum plane fr° m Voet. reduci debet setas certa, qua testator legatario legatum prsestari voluerit, nisi dies incertus morandae tan- tum solutionis gratia adjectus sit: quippe quo casu statim a morte testatoris legati dies cedit, ac legatario ante diem moriente, legati expectatio ad haeredes transit (g) Sir W. Grant, M. R., in Hanson v. Graham, 6 Ves. 245. [ 154 ] II. 8. iv.] AN ORIGINAL VIEW [§ 319-321. Quando autem dies talis incertus conditionem faciat, aut e contrario tantum morandse solutionis gratia adjectus intelli°atur, voluntatis qusestio est ; et si quidem ab initio dies incertus pubertatis majorennitatis &c. adjiciatur leoato uno verborum complexu, veluti Titio, cum ad legi- timam eetatem pervenerit, centum do lego, credendum in dubio magis est, diem incertum conditionis vice a tes- tatore appositum esse, ac ob id impedire legati trans- missionem; sin diversis orationibus, veluti Titio centum lego, quse ei prsestari volo, cum ad puberem aetatem pervenerit, diem pubertatis potius morandae solutionis gratia addidisse testatorem, quam legato, quod ab initio pure datum erat, conditionem inseruisse, prsesumendum es t._Voet. Com. ad Pand. lib. 36, tit. 2, sec. 2. 2. Applica- 2. Regarding, then, the distinction as founded in the in- 319 tionofthedis- tention of the testator, it is conceived that a similar dis- in( j 1011 tinction is equally applicable to real estate. It would seem that there can be no doubt whatever, 320 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. Indeed, so See § 200-9. great is the leaning in favour of vesting, that it would appear that words far less strong, would have the effect of vesting the interest. Snow v. In a case where a testator directed the residue of his Poulden 1 p r0 p er t v to be invested in land, and given to his grandson, who, by a subsequent clause, was " not to be of age to re- ceive this" until he attained 25, and to be entitled to him and his male heirs ; Lord Langdale, M. R., held, that the devisee 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 minority. 3. Non-ap- 3. But h the distinction in question does not exist in 321 the dXic- regard t0 ° hargeS on real estate 'W tion to charges on (h) Pawlett v. Pawlett, 1 Vera. 321, affirmed by the House real estate. of Lords . Smith v< Smith ^ 2 Vern> 92 . -^^ y p hettiplace} 2 Vera. 416; Prec. Ch. 140 ; Jennings v. Looks, 2 P. W. 276 ; II. 8. it.] OF EXECUTORY INTERESTS. [§322—325. [ 155 ] 322 Mr. Cox, in his note to The Duke of Chandos v. Talbot, 2 P. Wms. 612, says, that " with respect 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 pay- ment." And in support of this proposition, he refers to a multitude of cases. 323 The refusal to apply the distinction of the Civil Law to The non-ap- cases not directly governed by it, as to charges on real ph cat ' on of estate, would seem, at first sight, to be a reflection against t - . its soundness, when applied to real estate itself, or to charges on legacies payable out of personal estate. But in reality real estate, is this is not the case. Several reasons may be assigned for no ierlectI0n n ■ i i i r i rv i t i against its refusing to adopt the rule or the Civil Law, in regard to soun dness. charges, by deed or will, on real estate. Reasons for 324 (1) Where a legacy or portion charged on real estate, is the non-ap- to be paid at a certain age, the money given is not in ex- plication istence at any time prior to the period appointed for its name ]' payment: the arrival of such period is, as it were, that ,j, N on _ ex _ which is to call it into being : and therefore, there can be j s tence of the no sift except at the time for payment; for, that which is money before not in esse, cannot be given as an immediate gift. And . miuTe . period, hence, although there may seem to be, and there is, in r terms, a prior immediate gift distinct from the time of payment, yet, in reality, in this case, there is no gift but at a future time. And consequently, the principle of the Civil Law rule has no application whatever to legacies or portions payable out of real estate. This, it is submitted, constitutes at once a sufficient reason for the non-adoption of that rule as to charges of this kind. But, 325 (2) The charging real estate with legacies, may amount (2) Favour to a partial disinherison of the heir at law ; and he is shown to the never to be disinherited, except by express words or necessary implication. And hence, as between the heir Duke of Chandos v. Talbot, 2 P. W. 602, 612; Prowse v. Abingdon, Gawler v. Standerwicke, 1 B. C. C. 106, in note; Harrison v. Nay lor, 3 B. C. C. 108 ; 2 Cox, 247 ; as stated, I Rop. Leg. 553—559. [ 156 ] II. 8. iv.] AN ORIGINAL VIEW [§ 326-327. and the representative of a deceased legatee, the mere an- nexing of the future period to the time of payment may not be regarded as a sufficiently clear indication of inten- tion, 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 inheritance." And Uhe same reason is assigned by Butler, (i) It is right, however, to add, that, (3) The com- (3) Lord Hardwicke, after observing that the Court 326 mon law is ] ia d never gone upon the ground that the heir was a adhered torn favour ; te with a Court of Equity, or that the Court would the case or lands. g° as f ar as ^ can m keeping an estate free from incum- brances, said, that the true reason was this — " in 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." (k) 4. The ap- 4. J "It sometimes happens that legacies are charged 327 plication of on a mixed fund, that is, both on real and personal estate ; the distinc- j n t j iat ca t j le p ersona i es t a te is considered to be the tion to lega- ./.,•,, cies charged P nmar y fund, and the real estate to be the auxiliary fund, on a mixed for the payment of the legacies. So far as the personal fund. estate will extend to pay them, the case is governed by the same rules as if the legacies were payable out of per- sonal estate only ; and so far as the real estate must be resorted to for the payment of the legacies, the case is governed by the same rules as if they were charged on real estate only. Duke of Chandos v. Talbot, 2 P. W. G01 ; Prowse v. Abingdon, 1 Atk. 482." (/) (£) Butler's Notes, Co. Litt. 237 a, (1); and Fearne, 552, (a), II. (k) 1 Atk. 486, as quoted, 1 Rop. Leg. 556. (I) Butler's note, Fearne, 552, (#), III. Il.S.iv.] OF EXECUTORY INTERESTS. [§ 323—331. [ 157 ] Rule II. Where there is a Gift of the Whole Intermediate Income. C 328 m Where the testator gives the whole of the interme- See § 367-9. diate income of real estate, or of personal estate not arising from a charge on real estate, to the person to whom he devises or bequeaths such estate, on the attainment of a certain age, but the attainment of that age does not form part of the original description of the devisee or See § 28 L. legatee ; the interest of the devisee or legatee is vested in right before that age, even though there is no prior dis- See § 79-81. tinct gift — no express gift except at that age ; (m) it being- considered 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 329 more likely to take due care of the property. But, as we have already seen, the gift of interim interest will not be sufficient to vest charges on real estate, (n) 330 This gift of the intermediate income would seem to have Doctrine of been considered as an indication of vesting by the Civil l ' ie Civil T ° J Law. Law : Cum ab heeredibus alumno centum dari voluisset tes- tator, eamque pecuniam ad alium transferri, ut in annum vicesimum quintum trientes usuras ejus summse perciperet alumnus, ac post earn setatem sortem ipsam : intra vicesi- mumquintum annum eo defuncto, transmissum ad hasre- dem pueri fideicommissum respondi : nam certain eetatem sorti solvendse prsestitutam videri, non pure fideicommisso relicto conditionem insertam. D. 36. 2. 26. § 1. 331 That the gift of the interim income is an indication of immediate vesting, is also established by numerous de- cisions. (m) Goodtitle d. Hayward v. Whitby, 1 Burr. 228 ; as stated, Fearne, 245. See also Fonereau v. Fonereau, 3 Atk. 645 ; Hoath v. Hoath, 2 B. C. C. 4 ; Walcott v. Hall, 2 B. C. C. 305 ; and 2 Meriv. 386 ; and Dodson v. Hay, 3 B. C. C. 404, 409 ; as stated in Roper on Legacies. See also Murray v. Addeiibrook, 4 Russ. 407 ; stated § 654. (n) Gawler v. Standerivicke, 1 B. C. C. 106, in note; as stated, 1 Rop. Leg. 558. V.»uA^ ~A~ witn interest in the meantime, is vested, because, 1. (jivina; or i . . ,. . , ' interest when a testator directs interest to be paid out of that II. 8. iv.] OF EXECUTORY INTERESTS. [§ 333—336. ' [ 161 ] legacy in the meantime, he means to separate that legacy shows inten- from the bulk of his estate immediately." (o) This may tl0n t0 se ~ perhaps be true with respect to a pecuniary legacy : but j eo . acv f on this reason for construing a gift of the interim income as a the residue, feature of vesting is obviously inapplicable to residuary bequests, and to devises of real estate, and legacies charged thereon. 333 2. Another reason, however, has been assigned, for con- 2. Interme- struing a gift of interest as a mark of immediate vesting, . . income . . .... . is given in which is applicable, in its spirit, though not in terms, both re sp e ct of a to residuary bequests, and to devises of real estate, where vested inter- the interim income is given to the person to whom the est m tne postponed devise or bequest is made. P 1 R. ei ' 334 Lord Hardwicke, in Hubert v. Parsons, 2 Ves. Sen. 264, as a reason why interest is an evidence of vesting, remarks, that " interest follows the property of the prin- cipal, 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 _> O presumed to have been, to give the capital in all events to the legatee, and to have allowed him intermediate interest, as a recompense for the forbearance of the capi- tal."(p) 335 The reason furnished by these observations applies, in terms, 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 estate itself; and the reason they so suggest, is, that such in- come is considered 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 interest 3. But this insufficient to vest charges on real estate? Does not this construction reason equally apply to such charges, as well as to devises j ntern \ e diate of real estates, and legacies payable out of personal estate . income not In answer to this, it is to be observed, that the con- being one struction or intendment, that the income is considered as l at a ^ s , given in respect of a vested interest in the property itself, sar „ ; m pji_ cation, such (o) Arg. of Counsel, in Hanson v. Graham, 6 Ves. Jun. 241. & lf l ,s n0 ' v ' ° ' sufficient to (p) 1 Rop. Leg. 494. vest an in _ M [ 162 ] II. 8. iv.] AN ORIGINAL VIEW [§ 337—338. terest, apart from the leaning in favour of vesting. 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. 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 may have been given in respect 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 from supposing, that he meant to defer the vesting in right, as well as in possession or enjoyment; or, he may have o-iven it in ignorance of the fact, that an interest vested in rio-ht, but not in possession, would confer a right to the intermediate income, without the necessity of any express gift of such income. But, on the other hand, not desiring to accumulate the income, but yet intending to keep the estate itself in contingency, he may have given the inter- mediate 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 expe- diency that he should receive a suitable education and support. The gift, therefore, of the whole intermediate income, 337 would seem insufficient, in itself, to vest real or personal estate, the possession of which is deferred till the attain- ment of a given age ; insufficient, that is, apart from the strong leaning which exists in favour of vesting. Now, assuming that this is the case, we are furnished 338 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 sinking 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 interest arising out of personal estate, there is a strong leaning in favour of vesting, and one which is not counterpoised by any other considerations. It is true, in regard to devises of real estate, that the heir may be dis- inherited 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, II. 8. iv.] OF EXECUTORY INTERESTS. [§339—340. [ 163 ] 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 intermediate income is given to the devisee, the favour which is in general shown to the heir at law, is counterbalanced by the manifest intention of the testator that he should take nothing. So that the lean- ing in favour of the heir has a direct effect in counter- See § 325. balancing 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 have seen See § 324, that there are other reasons for holding such charges not 326. to be vested, which do not apply to devises of real estate itself, or interests arising out of personal estate. 339 It may be mentioned in this place, however, though, But if a indeed, it would seem sufficiently clear without any judi-' e & acv cial determination upon the point, that ^ where a legacy ° ^ eC ° n 1 , t rea l estate is charged on real estate was expressly directed to vest im- expressly di- mediately on the testator's death, but to be paid to the rected to vest legatee on attaining 21, and the interest in the meantime before ™e was directed to be applied for maintenance, and the legatee m I nt ;* w m died before 21, the representative of the legatee was held so vest. to be entitled, by force of the express direction that the legacy should vest on the testator's death, (q) Rule III. Where Executors are empowered to make Advances out of Portions. 340 And where the executors are empowered to make ad- vances out of the respective portions of children, to whom a residuary bequest is made on their attaining a certain age, without any limitation over; the children take imme- diate vested interests. A testator directed his residuary personal estate to be Vivian v. equally divided amongst his children on their attaining Mills, 1 21; and that his executors should make any moderate ^ av * , - • advances, for the purpose of placing his children out in a- ■'■'' (q) Watkins v. Cheek, 2 Sim. & Stu. 199. M 2 [ 164 ] II. 8. it.] AN ORIGINAL VIEW [§ 340a. profession, 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 Accomplishment of some Special Purpose in the meantime, unconnected with a Suspensio?i of the Pro- perty or Ownership. Where there is, in terms, no devise or bequest except g_j 0a Sec § 341-3. on the attainment of a certain age, or at a future period which is sure to arrive, but such age or period does not See* 281. form P art oi tne original description of the devisee or legatee; and the postponement seems merely to arise from the circumstances of the estate ; or appears to be for the accomplishment of some special purpose, uncon- nected with a suspension of the property or ownership ; — as, for the purpose of r paying the debts of the testator, out of the intermediate income, (r) or out of a part of the estate, or s merely for the improvement of the estate, in point of value (s) or otherwise ; or t merely for the benefit or convenience of some other person to whom the income, or a particular interest, is given in the meantime ; (t) — in (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, Bio. Pari. Ca. 59, 8vo ed. ; as stated, 1 Rop. Leg-. 499. See also Doe d. Wheedon v. Lea, 3 D. & E. 41 ; as stated, Fearne, 246. (t) 1. As regards real estate, see Mavfield v. Dugard, 1 Eq. Ab. 195; as stated, Fearne, 245 ; and noticed by Sir W. Grant, in Hanson v. Graham, 6 Ves. 239; as stated, § 331. 2. As REGARDS LEGACIES PAYABLE OUT OF PERSONAL ESTATE, see Monkhouse v. Holme, 1 Bro. C. C. 298; Att. Gen. v. Crispin, lb. 386 ; Benyon v. Maddison, 2 Bro. C. C. 75, ed. by Belt; and Scarfeld 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, see King v. Withers, Forrest. 117; 3 Bro. Pari. Ca. 135, 8vo ed.; Hutchins v. Foy, Com. Rep. 716, 723; Lnwther v. II. 8. iv.] OF EXECUTORY INTERESTS. [§340a. [165] such case, it is held that there is a suspension of the pos- session 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 remainder in real estate, even though there is no prior distinct gift, no express gift but at the future age or period. Sir Edmund Lacon, Bart., upon the marriage of his Bacon v. daughters, demised an estate to trustees, upon trust for Proctor, raisins: certain sums to be settled upon the daughters and ., , o i ' & . r s 31. bee also their children : and, by his will, (after charging the estate Marshall v. with other sums to be settled upon the same trusts ; with Holloway, 2 portions for sons; and with a further sum in discharge ^ wanston > . 451 . of a mortgage of another estate ;) devisedthe first men- tioned 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 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 that 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 accumulation should be determined. Graham, Baron, sitting for the Master of the Rolls, observed, that there was no accumulation for the purpose of suspension ; that the Act of the 39th & 40th 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. Bracken, Ambl. 167; 1 B. C. C. 124, in note; Embrey v. Martin, Ambl. 230 ; Manning v. Herbert, Ambl. 575; Jeal v. Tichener, 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, in note ; Thompson v. Dow, 1 Bro. C. C. 193, in note; Mor- gan v. Gardiner, 1 Bro. C. C. 194, in note; Dawson v. Killet, 1 Bro. C. C. 119 ; Godwin v. Munduy, 1 Bro. C. C. 191 ; and Walker v. Main, 1 Jac. & Walk. 1, 7; as stated, 1 Rop. Leg-. 560—571. [ 166 ] II. 8. iv.] AN ORIGINAL VIEW [§ 340a. of Geo. III. did not apply; and if it did, there was an exception, in the case of debts and portions; and that it was quite clear that the enjoyment, and not the property, was tied up. Goodrightd. In another case, a testator devised leasehold houses, Revell v. j ie ] d f or a term renewable, to J. T. S. for his own use and Mauf& Sel benefit on his attaining 21 ; upon trust that his (testator's) 692 U ' ' trustees should renew ; and for that purpose make such surrender as should be requisite ; and, out of the rents, to raise money for the fines ; and also to permit the trus- tees to receive the rents during the minority of J. T. S. ; and the maintenance of J. 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 vested remainder to J. T. S. Bayley v. A»-ain; a testator devised land to his wife, for life; Bishop, 9 anc |^ after her decease, to trustees, upon trust to sell, and, out of the proceeds, to lay out 500/., part thereof, in the purchase of an annuity for the life of his son. The 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, M. R., though he said it was impossible to re- concile 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 testator'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 500Z. to his son : for, on a bill filed, he might have received the money, and the Court would not have compelled the trustees to lay it out in an an- nuity. Blamire v. So where a testator gave to G. P. a sum of stock at Geldart, 16 ^ testator ' s w if e \, death, and all the residue of his estate he gave to his wife. Sir W. Grant, M. R., held that, in effect, he took a vested remainder ; the order in which the clauses are arranged in a will, not being material. Goulbourn And where a testator devised in trust for his wife for v. Brooks, 2 lif e if she should so lonff continue his widow ; and, after "V Si f* 1 11 °g ' ° * her death or marriage, for the maintenance of his son T. B., and his daughter E. B. } until 21 ; and then, at the II. 8.iv.] OF EXECUTORY INTERESTS. [§ 340a. [167] death or marriage of his wife, he devised to his son, T.B., and the heirs of his body, only yielding and paying to his daughters, M. and E., 100/. each. M. attained 21, and died after the marriage of the widow, but before T. and E. attained 21. Alderson, 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. Again; where a testator gave all his real and personal Cousins v. estate, after payment of debts and legacies, to his wife, Schroder, 4 for 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 Cruse 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. And so where a testator devised real estates to A., for Poole v, life ; remainder to B., in fee ; and he gave a legacy to C, Terry, 4 to be paid to her by B., within 12 months after A.'& death ; Sim - 294, and he charged all his estates with the legacy. C. died in A.'% lifetime. Sir L. Shadwell, V. C, held, that the payment was postponed on account of the circumstances of the estate, and that the legacy vested on the death of the testator. His Honor added, that this case fell within the principle of Lowther v. Condon, 2 Atk. 127, and the cases of that class. In one case, a testator, after giving legacies to three Spencer v, other children at a future time, gave his residuary personal Bullock, 2 estate to his executors, to be equally divided among his * es - °° /- four children, 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 [ 168 ] II. 8. iv.] AN ORIGINAL VIEW [§ 341. parent, such child or 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. J. E. had three children at the date of the will, and six others afterwards, three of whom died in her lifetime. Sir R. P. Arden, M. R., held, that the bequest vested in those children only who were living at their 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 chiefly 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; but 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. Observations So far, however, as this decision rests upon the latter on Spencer g r0lUK ] } jt would appear questionable : for, apart from the proviso, the cases would seem to show, that all the chil- dren 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. In the case of a residuary bequest, where there is no 341 limitation over on the non-happening of the event on which the gift is apparently contingent, the gift of the whole 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 residue of his property." Booth v. A testator gave the residue of his personal estate, upon Ves'399 tlUSt ' t0 pay tlle dividends equally between his grand- nieces, P. B. and A. B., until their respective marriages ; II. 8. iv.] OF EXECUTORY INTERESTS. [§ 342-343. [ 169 ] and from and immediately after their respective marriages, to transfer their respective moieties thereof, unto them respectively. P. B. died without ever having been mar- ried. Sir R. P. Arden, M. R., directed one moiety to be paid to her executors, His Honor being of opinion, that only the payment or actual possession was postponed until the marriages of the grand-nieces, i. e., until the time when the testator thought they would want it. His Honor 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 Gar- but v. Hilton, and Atkins v. Hiccocks, 1 Atk. 381, 5G0, and Elton v. Elton, 3 Atk. 504, were cases of a mere legacy, and not of a residue, and then the legacy was given on a marriage with a given consent, and it was impossible, in that sort of case, to say the legatee could be entitled without that ; and that Batsford v. Kebbell, was also a mere case of a legacy ; whereas, this was in fact an abso- lute 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 Uncertain Period other than that of the Attainment of a given Age. 342 But, in general, neither the disannexing of the period See § 310. from the gift itself, nor the disposition of the property, See § 328, or the beneficial interest therein for any special purpose 340a. in the meantime, will be a sufficient indication of imme- diate 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 different light from other uncertain periods or events, See i 351a. 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. 343 Where the event may never arrive, there is a strong improbability in supposing that the testator intended the devisee to take a vested interest, and yet to exclude him [ 170 ] II. 8. iv.] AN ORIGINAL VIEW [§344. from the possession till the arrival of the uncertain 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 bequest is a residuary bequest, and the event is that of marriage, 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 Con- dition Precedent. And as the interest is in general deemed contingent, 344 where the period or event to which the devise or bequest See §342-3. has reference, is entirely contingent, so u where a devise has reference to the attainment of a given age, and it is preceded by the conditional expressions, "if," or "in See § 290, case" he shall attain, &c, instead of being followed by 298-300. these or any other conditional expressions, or of being- preceded by the expressions, " when," " at," " upon," See §290-5. "as soon as," "from and after;" or where a bequest is either preceded or is followed by either of the condi- tional expressions, " if," " provided," or " in case he shall attain," &c. ; there, inasmuch as the words, " if," " provided," " in case," properly import contingency, the use of these words indicates that the testator considered the attainment of the given age as an event that might never arrive; and hence, notwithstanding thedisannexing of the period from the gift, or the existence of a prior de- vise or bequest, it will be presumed that the testator intended the interest of the devisee to be contingent until the attainment of the age specified, (u) for the reasons given under the next preceding rule, for holding an in- terest to be contingent, where the devise or bequest has (m) See Atkinson v. Turner, 2 Atk. 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 see Fearne, 246, and Brownsword v. Edwards, 2 Ves. Sen. 243 ; as cited Fearne, 506, 548, in regard to devises. II. 8. v.] OF EXECUTORY INTERESTS. [§ 346-347. [ 171 ] reference to other events of an entirely contingent cha- 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 trustee for them during the intermediate time, it is a suf- ficient 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 - ^^»»- them ; and she appointed their father in trust for them s ?nA eS ' during their minority. Sir W. Grant, M. R., said, that only the payment was postponed, since the testator would not have appointed a trustee for them of nothing. SECTION THE FIFTH. Cases where a Devise has Reference to an Event which would be implied by the Words introducing a Vested Remainder. 346 Such words as when, then, after, as soon as, and a even the word if, (a) or the words in case, though ap- parently amounting to a condition precedent, which must See § 13. be performed before a remainder or quasi remainder can See § 159, become a vested interest, have no other force than to '"a -1 bob. point 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 necessarily implied without them by the words which usually introduce a vested remainder. Thus, 347 b Where a testator devised to S. his son, after the death Cases from of his wife ; and if his three daughters, or either of them, Fearne, with should overlive their mother and S. their brother and °, serv his heirs, they to enjoy the same houses for the term of their lives, remainder to J. and W.; the word heirs meant heirs of the body, and the limitation to J. W. was a vested (a) Holcroft"s Case, Moor, 487. [ 172 ] II. 8. v.] AX ORIGIiNAL VIEW [§ 348—350. remainder :(b) 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 c where a testator devised three houses to his 348 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 implied in the words commonly used in intro- ducing a vested remainder after a life estate, as the re- mainders were only for life. See § 170- I" both these cases, the remainders depended on no 349 182. other uncertainty, as to the possession itself, than that of their enduring beyond the preceding estate. Thus, in the first case, the remainder to J. and W. depended on no other uncertainty than that of their inter- ests continuing, without being annihilated by death, sur- render, 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 case, 350 were remainders to the survivors, and therefore contingent, inasmuch as it was uncertain which of the persons would survive. But this case is distinguishable from a grant to (4) Webb v. Hearing, Cro. Jac. 415; as stated, Fearne, 243. See also King v. Rumball, Cro. Jac. 448, and Chadock v. Cow- ley, Cro. Jac. 695 ; as stated, Fearne, 243. And Anon. Case, 2 Ventr. 363 ; as stated, Fearne, 244. (c) Fortescue v. Abbot, Pollex. 479; Sir T.Jones, 79; as stated, Fearne, 243. II. 8. v.] OF EXECUTORY INTERESTS. [§350. [173] two for their joint lives, remainder to the survivor for life, or in tail; for, here, so long as their joint lives continue, neither can say that he has a remainder : there is but one remainder ; and that is contingent on account of the per- See § 94, son, apart from the consideration of its duration. In the 187. former case, however, there are as many remainders as there are persons, and each has a remainder, though it cannot take effect in possession unless it endures beyond the others' life interest, that is, unless the person entitled to it survives the other, in whose house the remainder sub- sists. And the cases above mentioned are also clearly distinguishable from d a devise to M., during her natural life ; and, from and immediately after her death, to the first 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 s-econd 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, remainder over, (d) For, here, the words " if living at her death," imported a condition precedent, instead of merely expressing that See §113. kind of condition which would have been implied without them by the words which usually introduce a vested re- mainder: 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 clearly passed a contingent remainder of the fourth kind, See § 187. as in that case, the person who would eventually be en- titled, could not be ascertained till her decease. And where a testatrix gave a legacy, in trust, to pay Pearsall v. the interest to M. £., for life, for her separate use ; and, Simpson, 15 after her decease, to divide the capital among her children es then 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 interest to her husband, R. 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, (d) Denn d. Radclyffe v. Bagshaive, 6 D. & E. 512 ; as stated, Fearne, 246, note (h). [ 174 ] II. 8. vi.] AN ORIGINAL VIEW [§ 351. and though the husband died in her lifetime, and therefore never became entitled to the interest, the limitation over was established ; Sir W. Grant, M. R., observing, that there was no sense in making the right of the first cousins depend on the husband's taking the interest ; and that it was not a condition precedent, but fixing the period at which the legatees over should take, if he ever took. SECTION THE SIXTH. Effect of a Limitation over. I. Where the I. Where a testator devises to a person " if," or '•' to 351 condition of case," or " provided " he lives till a certain age, so that the attaining- a ressions « if » or « in cose » or « pr0 vided," do not certain a°"e r . is introduced precede, but follow the devise, and constitute part of the by the words same sentence in which it is made ; (See §297 — 300, 344) " if, J' in anc j there is a devise over, simply in the event of his not " provided " attam ' n g sucn a g e > tne conditional expressions are not and follows construed as a condition precedent, but as forming a regu- the devise, } a r special limitation of the indirect kind, or an irregular and there is j ullltat i on /g ee * yj 34_43) amounting to the same as the a devise over ' v \ • ■ -n ti simply in the words, if he should continue to live till, or if he should event of the not die before, he attains 21 ; and the interest, instead of non-attam- De j n or a springing interest, or a contingent remainder, (See ment of that . . . ao . e § 117, 159, 170 — 176) is held to be a vested interest, either See $ 97-8. immediate, or in remainder, as the case may be, subject to be devested, as well by the operation of the special limi- tation, as by the operation of the devise over. Springy. A fine was levied to the use of A., and his heirs, if B. p^m^ai! ^ not P a y ^ m 20 shillings on the 10th day of September ; 415 nl 12 an( ^ ^ ^' P a ^ ^' ^° tne use ^^v f° r l^ e > remainder to B. and his heirs ; and it was held not to be a condition precedent, but that the estate in fee vested in A. imme- diately, to be devested on the subsequent payment. Edwards v. A. surrendered lands to the use of himself, for life ; Hammond, remainder to the use of J. H. and his heirs, if it shall 314Ts rta-' ha PP en that the aforesaid J. H. shall live to attain the ted/Fearne, a g e °f 21 years; provided always, and under the condition 245,note($r). nevertheless, that if it shall happen that the aforesaid II. 8. vi.] OF EXECUTORY INTERESTS. [§ 351a. [ 175 ] J. H. shall die before he attain the age of 21 years, then to remain to the use of J., and his heirs. It was held that J. H. took a vested interest before 21. And where a testator devised all his real estate to two, Broomfield for their lives successively ; and, after the decease of the v - Croivder, longest liver of them, to B., if he lived to attain the age J^ew Rep. of 21 years, but not otherwise ; and in case he died before stated he attained that age, then in the manner therein mentioned. Fearne, 247, The two particular tenants died before B. attained 21 ; note W- and it was held that B. took a vested interest, determin- able on his dying under 21. But where a testator devised lands to G. Z., his brother Doed.Plan- and heir at law, for life; and from and immediately after ner v - Scud- his death, then, he devised the same to C. B., her heirs a J n( £ e f oc ,?, s * . ~, _ & "ul. 289. and assigns, m case she should survive G. Z., but not otherwise ; and in case C. B. should die in the lifetime of G. Z., then, he devised the same to G. Z., his heirs and assigns. It was argued that either the devise to C. B. was a vested remainder, subject to be devested upon a condition subsequent, like the case of Edwards v. Hammond ; or that the devise to the heir at law for life was to be considered void, and the devise to C. B. con- sidered as an executory devise, to take effect if the heir at law should die before C. B. But it was held, that the devise to C. B. was a contingent remainder, and was barred by a recovery suffered by G. Z., on the ground that it was clear that the event was to happen before 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- wards v. Hammond. 351a The event, in that case, namely, the attainment of Observations 21, is one which is often considered as a quasi certain o n the prece- • • i ,i ,i c ding cases, event, so that it is not required that the vesting of an sho * vi U]e estate should be suspended till the happening of such principle of event ; it is sufficient if the estate be devested in case it the distinc- should not happen, especially as that event is not of such JJJJJ 1 ^^ 611 a character as to constitute the indispensable pre-requisite where tbe to the attaching of any sort of interest in the party ; on condition is the contrary, it is rather to be supposed, that the testator, the attain- . .,,ii i i *.*. •„ mentotacer- considering it most probable that the party would attain [ 176 ] II. 8. vi.] AN ORIGINAL VIEW [§ 352-353. tain age, and 21, should be maintained in a suitable manner, out of the those where rentg anc j p ro fits, as he would be if he should take a vested feof another interest, instead of allowing; those rents and profits to go kind.' f o his heir at law, whom he has shown no intention to benefit. But, in the principal case, there was evidently an estate for life, with a contingent remainder to C. B. depending on her surviving the tenant for life; with an See § 128. alternative limitation over, in the event of her dying before the tenant for life. For, C. B. was not a relative of the" testator, but an unmarried female friend, who re- sided with him, and superintended his family, and con- sequently there was more reason for considering her sur- See § 13. vivorship as a condition precedent, than there would have been if her children or heirs were relatives of the testator. And the reason which existed in the case of Edwards v. Hammond fox holding the remainder vested, did not apply to this case, as C. B. would have been entitled to the rents and profits as soon as G. L. died, and no sooner, whether the remainder were vested or contingent. The effect of The effect of the devise over upon the prior interest, 352 the devise m suc \ 1 ca ses as these, is to aid in rendering the prior abo -e cases interest defeasible ; and in some cases, also, if the condi- See 5) 7. tion referring to the attainment of the specified ages begins See & 12 16. w ' tn the word " provided," to change that condition from See 5> 34 39. a condition subsequent, properly so called, into an irre- gular special limitation. The reason The true reason, it is conceived, why the interest of the 353 why the in- prior devisee, in such cases, is a vested interest, is this : prior devisee ^ ne condition, as already observed with regard to cases incases fall- where there is no devise over, is of such a form, that it ing within the may fairly be regarded as a condition, in the widest sense a ove rule, is p t j le te of that kind which in a preceding page is called a vested in- . . . ' = r & terest. an nidnect special or collateral limitation, amounting to the S 5, 34 43 Same aS tne worc ^ s > if ne should continue to live till, or if ' he should not die before, he attains the age of 21 years, and similar, in legal character, to the indirect special or collateral limitation, "to A., if she shall continue a widow; 1 And as it is, in its own nature, capable of this See § 200-1. construction, the rule which requires an interest to be construed as vested, if possible, rather than contingent, at once steps in, and imposes upon the Court the duty of II. 8. vi.]OF EXECUTORY INTERESTS. [§354—356. [ 177 ] holding that the devisee takes an immediate vested in- terest, subject to devestment. 354 The devise over is not in the slightest degree instru- mental in aiding the Court in construing the prior interest as vested ; much less does it constitute the sole reason of this construction. 355 There are, however, two cases in which it has been Cases where decided, that a vested interest was taken by the prior . e P rior j i, *u a \ <.<. c » VISee was devisee, where the expressions used were not it, or j ie jj t ta ^ e "incase," or " provided," but, "when" he shall attain a vested in- 21, or "at" 21; which were expressions that are not terest on ac- capable of being construed as limitations : (See §> 34 — 42, j OU r o .ill- devise over. 298 — 300), and where there was nothing but the devise over which could justify the Court in construing the interest of the prior devisee to be immediately vested. A testator devised to J. M., when he attained 21, to Doe d. Hunt hold to him his heirs and assigns ; but in case he should y ' ! 00 Z^ die before 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 Broomfield v. Crowder, and other cases, that J. M. took an immediate vested interest, subject to be devested upon his dying under 21. And where a testator devised his estates to J.R., for life ; Doe d. and, on his decease, to and among his children, equally, Roake v. at the age of 21, and their heirs, as tenants in common; Mau^&Sel but if only one child should live to attain such age, to him 327 ; Hon- or her, and his or her heirs, at his or her age of 21. And doll d. Doe in case J. R. should die without lawful issue* or such y- Roa }*' 5 issue should die before 21, then over. Lord Ellenborough, C. J., said, he could see nothing in this devise to distin- guish it from Broomfield v. 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 chil- dren of J. R. took an immediate vested remainder, sub- ject to be devested in the event of their dying under 21. 356 It is with the most unfeigned diffidence, and with the But these greatest reluctance, that the author ventures to question cases are not the soundness of these decisions. But still he cannot Qn refrain from humbly suggesting, that in deciding these ' cases, upon the supposed authority of Edwards v. Ham- mond, and Broomfield v. Crowder, the learned Judges N [ 178 ] II. 8. vi.] AN ORIGINAL VIEW [§ 356. were deciding them upon the authority of cases from which they most materially, though perhaps only technically, differed ; and that these decisions ought, at the farthest, to be regarded as authorities, in the determination of future cases, where the terms of the will are precisely the same. And, in fact, it may be questioned, whether they ought not to be altogether disregarded, as founded in a mistaken view of previous cases : for, debile fundamentum fallit opus. Indeed, there is little doubt, but that sooner or later they will be disregarded, if not expressly overruled: for, expe- rience has shown, a as a learned author observes, with re- spect to another point, "that no rule of construction, however sanctioned by repeated adoption, is secure of per- manence, unless founded in principle." (a) When we consider the perplexing state of uncertainty and confusion, in which the preliminary part of the learn- ing 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 p re- See §7, 3. preceding page of this Essay, termed an indirect special See §34, 37 limitation, should escape the notice of those on whom 42. the interpretation of a devise devolved. The case of Han- doll v. Doed. Roahe was decided 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 Rroomfield v. Crowder, or that it was, independently of the authority of prior de- cisions, a case of a vested interest ; but rather, as a deci- sion that it was governed by the next preceding case of Doe d. Hunt v. Moore, 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 have been a far greater weight of presumption in its favour ; but, as it is, the author humbly submits that it is (a) 2 Jarm. Powell on Devises, 738. II. 8. vi.] OF EXECUTORY INTERESTS. [§357—359. [ 179 ] to be regarded as but little more than a following of a bad precedent. 357 It is perfectly clear, upon principle, and firmly estab- The interest lished by authority, that the expressions used in these , . P n01 UCV1SG6 nfiust cases of Doe d. Hunt v. Moore, and Randoll v. Doe d. j iave ^ een Roahe, would have amounted to conditions precedent, sus- held contin- pending the vesting, if there had been no devise over. g ent ' " there Was, then, a devise simply in the event of the prior de- ( ] ev ; se over . visee dying before 21, and not in the complex event of his , ^ r j e _ dying, without issue, before 21, sufficient entirely to alter vise over the effect of the preceding words ? Quite the reverse, could not F or render it ' vested. 358 II. A devise or bequest over simply in case of the non- II. Effect of happening of the event on which the prior devise is appa- a . devise over Vi - / • .i * simply on rently made contingent, (except in the case ot a sur- tne non _ vivorship clause hereafter mentioned,) affords some degree happening of of presumption, that the prior devise was only to vest on the event on the happening; of that event : so that, though, on the one w, ? icn tie ir ° ° ' . prior devise hand, it is not sufficient, of itself, to show that the prior j s a pp aren tly devise is contingent ; yet it may be called in aid of other made contin- circumstances in evidence thereof. gent. 359 1. In support of this proposition, we may observe, on 1. Such a the one hand, that where a testator devises to a person ^ af _ when he shall attain a given age, with a devise over in f orc j a neces . case of his death before that age ; and the testator either sary pre- gives the whole of the intermediate rents and profits to sumption fe . , . . ., •jj/? that such the prior devisee, or leaves him entirely unprovided tor - r Revise in the meantime; there, the devise over will not indeed i s contingent, afford any necessary presumption that the testator intended to suspend the vesting of the prior interest till the given age. For, the testator, considering it most probable that the prior devisee would attain the given age, may have in- tended 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 under the given age. And if the testator has expressly given him the whole of the intermediate 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 an excess of caution. And if, on the n2 [ 180 ] II. 8. vi.] AN ORIGINAL VIEW [§ 360-361. contrary, he has entirely omitted to provide for the devisee in the meantime, he may have omitted to do so, because intending the devisee 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 devise over 360 it affords does not furnish a necessary presumption, it does so far some pre- f urms ] 1 some degree of presumption, that the testator in- thereof? n tended to suspend the vesting till the given age, that there is a greater probability that such was his intention, where there is such a devise over, than there is where no such devise over exists. Where there is no such de- vise over, it may with great reason be 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 de- pendent on the happening of that event ; and therefore, that the absence of any such provision furnishes a presumption See §79— 81. that he intended such interest to be immediately vested in right, though not to be vested in possession or enjoy- ment till the happening of the event specified, or, if vested in possession or enjoyment, to be subject to de- See §97 — 8. vestment on its not happening. Whereas, if there is a See§364 — 5. devise over simply on the non-happening 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-happening 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 con- sidering 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. Or, at all But, even admitting that such a devise over affords no 361 events, it af- rea son whatever to suppose that the prior interest is con- lords no -■ ., , • , ~ , r ground for tin g ent > lt; certainly affords no reason whatever to sup- supposing pose the prior interest to be vested ; for, if the testator such prior were desirous of preventing an intestacy, or of excluding II. 8. vi.] OF EXECUTORY INTERESTS. [§ 362. [ 181 ] the residuary devisee from the property comprised in the devise to be prior devise, in case of the non-happening of the event vested, specified, he must, in order to accomplish that object, make a devise over, to take effect in case of the event not happening, whether the prior interest were unquestion- ably vested, or unquestionably contingent ; and con- sequently 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 tending to explain the nature of the prior interest, as regards vesting, unless, as we have already observed, it be to afford some presumption that such prior interest was intended to be contingent. 362 The proposition in support of which these observations are made, is borne out by authority. A testator gave his personal estate to trustees, upon Skey v. trust to pay the interest to his daughter E. S., for her Barnes, 3 life; and, after her decease, to divide the principal among env " the children of his daughter, and the issue of a deceased child, as she should appoint; and, in default of appoint- ment, to be equally divided between them ; the portions of the sons to be paid at 21, and the portions of daugh- ters at 21 or marriage ; 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 pay- able, then over. E. S. left several children surviving her, one of whom afterwards died unmarried, under 21. Sir W. Grant, M. R., held, that the shares vested im- mediately, subject to be 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 Honor 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 b it was not alone sufficient for that pur- pose, (b) and that though Scott v. Bargeman, 2 P. W. 69, would seem to prove the contrary, yet he doubted whether the Reporter had correctly stated the reason on which the decision was grounded. (b) See Dearie v. Test, and Blease v. Burgh, supra. [ J 82 ] II. 8. vi.] AN ORIGINAL VIEW [§362. Juddv. On the other hand, where residuary real and perso- Judd, 3 na ] estate was given by will to trustees, upon trust to Sim. 5-25. ^ {he income f one third part to the testator's daugh- ?"?i e !i c- ter S. J., for life ; and, upon her decease, to stand seised t/««a,4o!m. ± . . , , ... 4.55. or possessed of the said one third in trust tor the child or children of S. J., if more than one, share and share alike, and to be paid, 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 transmissible to his or her heirs, executors, or administrators ; and in case S. J. should leave no child her surviving, or such child should not at- tain 25, then, to his two other daughters, or the survivor, and their or her children as therein mentioned. 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 in- serted in the limitations in favour of the children of the other two daughters; and thew r ords, "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 dauhg- ter. And, in default of issue of his three children who should attain 25, then his trustees should stand seised or possessed in trust for his real and personal representa- tives. 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. Shad well, V. C, held, that the gift to the children of S. J. was void for remoteness. His Honor observed, that the gift, in case /S. J. should leave one child only her 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 bequests in favour of the children of the other two daughters were considered, the question was placed beyond all doubt. This decision not being deemed satisfactory, because cer- tain cases, and particularly, Farmer v. Francis, 2 Sim. & Stu. 505, had not been cited, the point was again argued, and additional cases were cited. But His Honor observed, that they did not bear any resemblance to the present II. 8. vi.] OF EXECUTORY INTERESTS. [§ 362a. [ 183 ] case ; 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 whole 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 surviving daughters and their children, and the gift over of the entirety, as well as other parts of the will, completely controlled the first clause, and made it evident, that the children did not take vested interests before they attained 25. 362a HI. Where, indeed, real or personal estate is given to III. Devise a class of persons on their attaining a certain age, with a over t0 sul '- clause of survivorship, providing, that in case of the death vlV0rs °f a of any of them under that age, the share of him, her, or some pre _ them so dying, shall go to the survivors or survivor ; the sumption of existence of such clause of survivorship affords some vestm g- presumption in favour of holding the interests of the class to be vested before the given age, inasmuch as if they were contingent, that clause would be superfluous. But still this presumption 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 there- by afforded is insufficient to overcome the force, or to change the sense, of express words of a known legal im- port. 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 ^ rom P- & Mees 561 * in common. And, by a codicil of even date with the g C^Sim will, he directed, that neither his nephew nor any issue 628. of his nephew should, by virtue of his will, take a vested interest 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 respectively attaining 21. The nephew, who became the heir at law, attained 21, married, and died, leaving five infant children, having made his will, whereby he devised the premises to certain other persons. The Barons of the Exchequer certified that he took a fee, as heir at law, and that the infant children took nothing. The children being dissatisfied with this certificate, ap- plied to the Vice-Chancellor, Sir L. Shadwell, that the [ 184 ] II. 8. vi.] AN ORIGINAL VIEW [§ 363-365. 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 survivorship clause would be superfluous ; for if the shares did not vest in the chil- dren 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 Honor 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 at- taining 21, especially as the survivorship clause, though superfluous according to that construction, ended with the words " upon their respectively attaining 21." IV. Where IV. Where the event on which the prior devise is ap- 363 a prior de- p aren tly made contingent, is the attainment of a certain vise is appa- r ■'- . . .. . . c Al rentlv made a S e ' anc * there is a limitation to the issue ot the prior contingenton devisee, in case of his death, under that age, leaving issue; the attain- with another limitation over, in case of his death, under . ■ i that age, without issue ; similar observations may be made tain age, and . & ... there isade- w^ 1 regard to the effect of these limitations over, to those vise over on which have already been made with respect to the case of death under a limitation over simply on the non-happening of the thatagewith- ,. . , . *\ . rr . , out issue event on which the prior devise is apparently made con- after an inter- tingent. mediate de- j ssue V. But where a testator devises or bequeaths real or 364 V Where a P ersona ^ estate to a person " when," or " as soon as " he similar prior sna ^ attain, or " at," or " upon," or " from and after " devise is his attaining a given age, with no limitation to his issue, in made, with a case of his death under that l eav i n or i ssue , but with similar devise ,, ., ,. . „ , G , over, but a limitatlon over, in case of his death under that age, and there is no without issue, or (which amounts to the same thing) with intermediate a limitation over in case of his death under that age, which issue! t0 l G is onlv to take effect if he has no heir, or for default of his issue; in such case, his interest is vested in right, See §79-81. though not in possession or enjoyment before the age specified. In some of these cases, the interim income was 365 given to the devisee, or there were other words rendering it probable that only the actual possession was postponed. But it is conceived that such a limitation over is amply sufficient, of itself, to show that the devisee was to take a II. 8. vi.] OF EXECUTORY INTERESTS. [§365. [ 185 ] vested interest immediately ; because the estate is not to go over if he dies under the age specified, leaving issue ; and therefore it must have been intended that he should take a vested 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 Bland v. to trustees, upon trust to apply so much of the interest Williams, 3 and dividends as might be necessary, for the maintenance and 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 children, when and as they should respec- tively 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 them 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 subject, except that of Bull v. Pritchard, 1 Russ. 213, before See § 366. Lord Gifford, 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 Machin v. in lands demised to him and two others their heirs and Reynolds, 3 [ 186 ] II. 8. vi.] AN ORIGINAL VIEW [§365. Brod. & assigns during the lives of certain other persons, devised Bing. 122. t he same to his sister and nephew, for their joint lives, and to the survivor during his or her life, in case there should happen to 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 mino- rities ; and, when and as such 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 under 21, and without issue, then over. The Court of Common Pleas certified, that E. S. M., 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. Af., or under age, without leaving issue. Farmer v. In another case, a testator gave his residuary real and Francis, 2 personal estate, in trust for his wife, for life ; remainder 'j^ o- ' for his daughter for life ; and, from and after their decease, and 2 Sim. & ' ' & Stu. 505. m trust for, and he thereby devised unto and amongst, all and every the lawful issue, child, or children, of his daughters, as should be living at the decease of the sur- vivor 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 surviving 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 with- out lawful issue, under the age of 24 years, then in trust for, and he thereby gave the property to E. and T. F. in fee, II.8.vi.] OF EXECUTORY INTERESTS. [§365. [ 187 ] as tenants in common. The Judges certified, as to the real estate, that the children of the testator's daughter, who were living at the death of the survivor of the wife and daughter, took estates in fee, as tenants in common. And See § 76. Sir John Leach, V. C, held that they took absolute vested interests in the personal estate. So where a testator gave to each of his six grandchildren, Murkinv. a legacy of 50/., when the youngest should come of age ; Phillipson, and the said grandchildren to receive the interest of the 25 _ ' said 501. until 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 501. to be equally divided among the surviving children. One of the grandchildren 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, " In this case, there is no direct gift until the youngest grandchild 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 interest, and will be so considered in the present case, if, upon the whole will, it should appear that the 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 that the legacy lapses for the benefit of the land. There is moreover great weight in the argument, that the legacy would not sink into the land, 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 in- tended, according to the principle of Lord Hardwicke, 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. 1 ' [ 188 ] II. 8. vi.] AN ORIGINAL VIEW [§ 365. Phippsv. And where a testator devised his real and personal Williams, 5 es t a te to trustees, upon trust, as to a certain estate, to Sim ' 44, convey and assure the same to G. H. A. when and so Act™ 3 soon as he Sh ° uld attain 21, and alS ° t0 Pay t0 °' H ' A ' Clark" & Fin. 7000Z. upon his attaining 21. But, in case G. H. A. 702. should die without issue before attaining 21, then, the said estate, together with the said sum of 7000Z., was to sink into, and become part of, the residue. And he gave the residue to another, in a different form of words, which were held to create a contingent interest, depending on the attainment of the age of 24 years. Sir L. Shad- well, V. C, on the authority of Broomfield v. Crowder, Doe v. Moore, and Doe v. Noicell, held, that G. H. A. took an immediate vested interest, liable only to be de- vested ; and consequently that he was entitled to the rents and profits of the estate, though he had not yet attained 21 . The case was carried by appeal to the House of Lords; but judgment has never been given, the parties, it is understood, having entered into an ar- rangement. 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 mani- fest 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 under 21, to transmit the property to his issue. Warterv. And so where a testator devised lands to trustees and Warter, 2 their heirs and assigns, until J. W., the son of his sister, Bro.&B.ng. M ^ #) should attain 21, and, if he should die in the meantime, until H. «/., second son of M. W., should attain 21, and, if H. J. should die in the meantime, until the daughter of M. W. 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. W. should attain that age, to pay him the residue of the rents, if any ; and, if J. W. should die before 21, then for the maintenance and education of H. J., till he should arrive at 21 ; and, when H. W. should arrive at that age, II. 8. vi.] OF EXECUTORY INTERESTS. [§366. [ 189 ] to pay him the residue of the rents, if any ; and, when and as soon as J. W. 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 daughter of M. W. 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 de- fault 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. W., 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 be- came so entitled immediately upon the death of J. W. ; and that the personal representative of J. W. was entitled to the savings of the rents and profits accrued in the life- time of J. W. 366 VI. But where the attainment of a certain age forms VI. Where part of the original description of a devisee or legatee, (See the attain- § 281 — 4) the vesting is suspended till the attainment of certa j n ao . e that age, even though the limitation over is only to take forms part of effect in case of his death under that age, without issue, the descrip- Leaseholds and residuary personal estate were devised J I0n ° the and bequeathed, in trust, after a life interest to the testa- devisee, tor's daughter, for the children of his daughter who ^ull v. should attain the age of 23, share and share alike, with Pritchard, benefit of survivorship, in case of the death of any or l Russ - 213 - either of them under that age ; and, in case there should be but one child, then, in trust 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 attainment of 23 years was made a condition precedent to the vesting of any interest in the children ; so that the vesting of the [ 190 ] II. 8. vii.] AN ORIGINAL VIEW [§ 366a. interests of any unborn children might not take place till more than 21 years after a life 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 afterwards ; nor could it qualify the words, " in case there should be no such child," by adding the words, " livino- 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, be- cause 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 condi- tions ; and the first of those conditions could never take place, since there had 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. An interest which, according to the form of its limita- 366a tion, is most undoubtedly a vested interest, may be ren- dered contingent by subsequent explanatory words, so long as they afford a necessary, though not perhaps an obvious, inference, that such interest was not intended to be a vested interest. Critchett v. A testator devised real estate, after the decease of his Jaynton, 1 daughter, t her second, third, fourth, and every younger Russ. &M. ,.,° ',.,, .' . . J J ° . 541 child or children, as tenants in common; but, in case his daughter should die leaving no issue, or if his daughter's 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 de- See § 97-8. vise to them as tenants in common would have given them See§ 148-9. a vested interest immediately, subject to be devested by the operation of the conditional limitation, in the event Il.S.viii.] OF EXECUTORY INTERESTS. [§367— 368. [ 191 ] of their dying under 21 without having been married with consent. But the subsequent words prevented them from taking a vested interest immediately ; because, from such interest they would be entitled to maintenance, and would consequently take a benefit under the will, even though they might marry before 21 without consent, or die before that age unmarried. The subsequent words served to render the limitation to the children dependent, for its vest- ing, upon the event, as a condition precedent, of their at- See 4 13. taining 21, or marrying with consent before 21. SECTION THE EIGHTH. Of the Effect of an Allowance for Maintenance. 367 I. We have seen, that, in general, a gift of the whole I. Where the intermediate income, for the maintenance or benefit of the w hole mter- person to whom real estate, or personal estate not arising come j S2 .i ven from charges on land, is devised or bequeathed, on the and there is attainment of a certain age, is, in consequence of the no limitation strong leaning in favour of vesting, construed a sufficient over * indication of immediate vesting, where there is no limita- See § 328- 338 tion over in case of the death of the party under that age. 368 II. But, where there is such a limitation over, the indi- II. Where cation of vesting furnished by the gift of the whole there is a li- intermediate income, is so far countervailed by the limita- mi a 10n over. tion over, as not to be sufficient evidence of vesting. A testatrix gave the interest of her residuary estate to Vawdry v. her four sisters, during their lives; and directed, that, on Geddes, 1 their deaths, the interest of their respective shares, should, 2Q3 at the discretion of her executor, be applied to the main- tenance and education, or accumulated for the benefit, of * the children 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 prin- cipal ; with limitations 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 Leake v. Robinson. ... In that case, Sir William Grant proceeds upon this principle — that the [ 192 ] II. 8. viii.] AN ORIGINAL VIEW [§ 369, prescribed time cannot be considered as marking only a time of postponed payment ; because, there is no ante- cedent oift — 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 children would therefore have vested, subject to be devested. The case of Batsfordv. Kebbell, which is referred to by Sir William Grant in Leake v. Robinson, is an authority directly in point against that proposition. Where interim interest is given, it is presumed the testator meant an immediate gift ; because, for the purpose of interest the particular legacy is to be immediately separated from the bulk of the property ; but that presumption fails entirely, when the testator has expressly declared that 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 accu- mulation might be good for 21 years,) was passed subse- quently to the death of the testatrix, and can have no effect 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 effect until the age of 22, are too remote and void." III. Where III. If a part only of the intermediate income is given 369 par on y o f Qr t | le ma i n t enance or benefit of the person to whom such the interme- . . f diate income a devise or bequest is made, this furnishes no presumption is given. in favour of vesting : on the contrary, as the testator ex- pressly provides a less sum for his support, than 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. II. 8. x.]OF EXECUTORY INTERESTS. [§369a— 370. [ 193 ] SECTION THE NINTH. Of the Effect of a Power of Appointment over Real Estate. 369a a Where real estate is subjected to a power of appoint- ment in the first taker, with remainders over in default of such appointment ; the power does not suspend the vest- ing of the remainders over, but such remainders vest subject to be devested by the exercise of the power, whe- ther the power is a power of appointing any estate or interest generally, or whether it is expressly and restric- tively a power of appointing in fee. (a) SECTION THE TENTH. Of the Effect of a Power of Appointment over Persoyial Estate. 370 I- a Where, by will or settlement, legacies or portions \, Gifts to a are directly given to a class of individuals, subject to a class subject power of appointing the property among them generally, to a P°Y eT °* the persons answering the description, as they come in amm!" them esse, during the life of the donee of the power, take vested generally. 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 instru- (a) SeeFearne, 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. 85 ; and of Lord Hardwicke in Wal- pole v. Lord Conway, Barn. Ch. Rep. 153. See also Smith v. Lord Came If brd, 2 Ves. Jun. 698; and Maundrell v. Maun- drell, 7 Ves. 567, 10 Ves. 246. o [ 194 ] II. 8. x.] AN ORIGINAL VIEW [§ 371—374. ment in exercise of the power, appointing the whole fund among the survivors. So that, 1. Where no 1. If n0 valid appointment, or merely an appointment 371 valid ap- of a part of the property, is made, the fund, or so much pointment Q f j t as j s no t effectually appointed, belongs, in equal 'T oar- proportions, to the legatees or donees living at the death tial appoint- of the donee of the power, and to the personal represen- ment. tatives of those who happen to be then dead. 2. Where a 2. But, on the other hand, if the power is properly 372 valid ap- exercised, the share or shares of one or more of them may pointment is ^ Q p ar tially devested and diminished, in favour of the the whole others or other of them, by the exercise of the power ; and in case of the death of any one or more of 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) II. Where the II. And, where the power is not a mere power of 373 power autho- appointing to the class generally, but authorizes the mesase ec- ( j onee thereof either to appoint to all or to select some of tion, and rr . there is a them in exclusion of others ; (as where it is a power of limitation appointing to such of them as he shall think proper ;) in default of an( j ti lere j s a limitation to the whole class in default of ' appointment; they take vested interests, in equal shares, but the share of each is subject to a partial or total devestment in favour of the others. III. Where III. But, b where legacies or portions are given to such 374 tne girt is to f a cer t a in class of individuals as a particular person such of a class , ,. . . .... *. , as a person sha11 a PP oint '■> an d there is no limitation to any of them (a) See 1 Rop. Leg. by White, 537—541, and cases there stated ; viz., Malim v. Keighleij , and Malim v. Barker, 2 Ves. Jun. 333, 506, and 3 Ves. 150 ; Bristow v. Warde,2 Ves. Jun. 336 ; Wilson v. Pigott, 2 Ves. Jun. 351. The same learned au- thor also refers to Witts v. Boddington, 3 Bro. C. C. 95, ed. by Belt; Robinson v. Smith, 6 Mad. 194; Gordon v. Levi, Ambl. 364; 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; Vane v. Lord Dunqannon, 2 Scho. & Lefroy, 118. ^ ^ II. 8. x.] OF EXECUTORY INTERESTS. [§ 374. [ 195 ] in default of appointment; the legacies or portions will shall appoint, necessarily be contingent until the donee of the power a } . re . 1S shall have exercised it, so as to designate and ascertain j n t i e f au i t t- the individuals who are to take, (b) appoint- ment. (b) See 1 Rop. Leg. by White, 541—543; and Duke of Marlborough v. Lord Godolphin, 2 Ves. Sen. 61, 74, 81, as there stated. The same learned author also refers to 2 Ves. Sen. 208 ; Ambl. 365 ; and 1 Ves. Sen. 210. o2 r- 196 ] II. 9.] AN ORIGINAL VIEW [§ 375—376. CHAPTER THE NINTH. CERTAIN CASES OF INTERESTS UNDER LIMITATIONS OF THE WHOLE OR OF THE IMMEDIATE PART OF A RE- VERSION, DISTINGUISHED FROM CONTINGENT REMAIN- DERS OF THE THIRD CLASS, AND FROM SPRINGING IN- TERESTS. I. Where a I • Wher e a person takes a life estate under one instrument, 375 limitation is and, by a subsequent instrument, a life estate is created to take after m f avour f another person, with a remainder over after the death 01 ,,,«.,,,.,, • 1 .i_ a person who tne t ' eat ' 1 * both ot these persons ; in such case, the re- has a life mainder over is a grant or devise of the reversion or of estate under t ne immediate part of the reversion, being limited to take • t ' eV U effect in possession immediately after the regular expira- and such li- tion of the life estate created by the previous instrument, nutation is a and of the other life estate created by the subsequent in- limitation of strument# Although, if the existence of the first of these the whole or the immedi- n ^ e estates had not been known, the remainder over would ate part of have justly been considered to be a contingent remainder thereversion, f t he third class. continue a Thus, where A. made a feoffment to the use of him- remainderof self for life, and, after the death of A. and M. his wife, to the third the use of B., eldest son of A., for his life ; this was held ass ' a contingent remainder in B. But as it afterwards ap- 186 V"Q 9 ' P eare( *> tnat » Dv a former deed, M. had an estate for life; Lord C. J. Hale held, that it was not a remainder, but a conveyance of the then subsisting reversion expectant on the death of M. (a) or instead II. Where an estate is limited to a person after the 376 ota limita- death of another who takes a life estate under a previous springing in- lnstrument "> this > of course, is a grant or devise of the terest. — (a) Wealv. Lower, Pollexf. 63 ; as stated, Fearne, 303. II. 9.] OF EXECUTORY INTERESTS. [§377—379. [197] reversion, or of the immediate part of the reversion : but, See & 169. yet, if the existence of such life estate were not known, it would be properly considered to be a springing interest. See $ 117-9. 377 It will be obvious from these distinctions, that wherever Observations an interest is postponed till after the death of a person grounded on who takes no life interest under the same instrument ; in y ie . tore .g° in g . , . - ., .. . . , • i • i • distinctions, judging ot the limitations contained in such instrument, it is necessary to inquire whether or not such person takes a life interest under any previous instrument. 378 III. b Where an estate tail general is limited to a person III. Where by one instrument, and then, by a subsequent instrument, ? ' lm 'tation an estate is limited to take effect on an indefinite failure f ect of his issue generally ; or, where an estate tail restricted indefinite fai- to a certain description of descendants, is limited to al ur eofissue person by one instrument, and then, by a different instru- ) N , 10 ^ ire . , r J . ,. . , i «• • i n • inheritable ment, an estate is limited to take effect on an indefinite un( ] er estates failure of his issue of the same description ; in either case tail created the limitation in the subsequent instrument is an imme- P v a previous diate grant or devise of the reversion, or of the immediate an( j ^ ..* part of the reversion, (b) though, if the existence of the mitation is a previous estate tail were not known, it would be rightly limitation of considered as an executory grant or devise of a springing * ie whole or interest, and therefore as void for remoteness. (§ 706, 714.) ate p art r thereversion. 379 IV. But, where an estate is created out of a reversion IV. Where a expectant on the expiration of an estate tail limited by a limitation is previous instrument ; and such estate so created out of the Qn an Indefi _ reversion, is, in reality and not merely apparently, limited nite failure to take effect on an indefinite failure of issue generally, of issue, some or issue of a given description, and that failure could or of "horn are & •,, • i i ,, not mherit- might not take place till a period subsequent to the re- able under gular expiration of the estates tail, in consequence of all such estates such issue not being inheritable under such estates tail ; tail ; and such limitation on an indefinite failure of issue is a limi- *?° jgljnjj. tation of a springing interest out of the reversion, and tationo f a therefore void for remoteness. As c where estates tail male springing in- are limited, by marriage settlement, to the first and other terest. (6) See Fearne, 449. [ 198 ] II. 9.] AN ORIGINAL VIEW [§ 380. See U 17 sons of a P erson b ? that marria £ e ' and then ' by a Subse " 125, 706,' quent will, a devise is made of the property so entailed, 714 ' which is not to take effect except on an indefinite failure of his issue generally (c) or his issue male; and d not merely on failure of their issue male, or on failure of his issue male, in the alternative, (d) Exception, An exception occurs, however, where the possible in- 380 where the in- terval between such an indefinite failure of issue and the tervalmaybe reo . u i ar expiration of such estates tail, may be filled up • ille ? ation b y implyhig an estate tail, so as to support the subse- quent limitation on such an indefinite failure of issue, as a See § 159. remainder created out of the reversion. Where such But there cannot be such an implication where the limi- implication tation on failure of issue is by devise, and the person does not w hose failure of issue is spoken of, neither takes any See § 585-9. estate under the will, nor is the heir apparent or heir pre- sumptive of the testator. Nor can it exist where the person whose failure of issue is spoken of, is the devisor himself; because he is dead when the will takes effect. Bankesv. A testator having a reversion expectant upon a life Holme, 1 estate, in his wife, under his marriage settlement, and USS ' ' upon interests, under limitations, which, being only to his sons in tail 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-Chancellor 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-Chan- (c) Lady Lanesborough v. Fox, Cas. temp. Talb. 262 ; as stated and commented on, Fearne, 448—9. id) Sanfordv. Irby, 3 Bar. & Aid. 654. II. 9.] OF EXECUTORY INTERESTS. [§381. [199] cellor were the following: "Because, if the 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 effect; since they are not limited to take effect 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 descendants, could take no estates under the testator's marriage settlement. The devises, there- fore, are not so limited as to take effect at all events immediately upon the expiration of the particular estates limited by the settlement : nor 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 of 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 probable that he could have intended to devise his estates in the county of York to his collateral kinsmen, in exclusion of any of his own issue; and there- fore it must be understood, according to the literal lan- guage of the will, that the devisees were not to take until failure of all the testator's issue by his then wife or any future wife (or at least all his issue by his then wife), as well those provided for, as those unprovided for by the settlement. ri 381 V. From cases of this kind, however, we must be V. Where a careful to distinguish those where estates tail are created limitation is 9 , ! i made of the by a previous instrument, and the ancestor, to whose revers j orl) e0 children such estates tail are given, devises the reversion, nom i ue , on eo nomine, on an indefinite failure of issue generally, or of an indefinite [200] II. 9.] AN ORIGINAL VIEW [§381. failure of issue of a certain description, some of whom are not in- issue, some heritable under the entail previously created; and there of whom are . . manifested, in any other part of the will, to not inherit- . ,.,„-, c ■-, r- r able under postpone the devise to such indefinite failure ot issue. In such estates such case, the devise will be held to be an immediate devise tai, , : , an( J of or out of the reversion ; because, as the testator first such lunita- , , . , . , • ra • l j • *• : tion isalimi- devises the reversion, which is a sufficient description in tation of the itself, and that devise would, of course, in itself, pass an whole or the interest which would take effect in possession immediately ^rtofthe after the re g ular expiration of the previously created reversion. estates; the effect of that devise is not destroyed by See § 169. words which may be regarded as merely superadded to the principal description, for the purpose of explaining what was the nature, as he erroneously supposed, of the reversion to which he was entitled, and which he intended to devise. Egertonv. An estate at C. was settled on A., for life ; remainder Jones, 3Sim. to his first and other sons, in tail male ; remainder to A., in fee. A. devised as follows: "As to the reversion and inheritance 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 following ; that is to say, I devise the same to my brother, &c." The estate in tail male in the first and other sons of A. being determined, the heir at law of A., apprehending that the devise was void for remote- ness, 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 that 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 question, whe- ther 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 testator 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." II. 9.] OF EXECUTORY INTERESTS. [§382. [201] 382 VT. Where estates tail are created, by a deed or will, VI. Where a in favour of the children of a particular marriage, and ,imitatl0r » is then the ancestor to whose children such estates tail are on an j n d e fi- given, makes a devise of the hereditaments so entailed, to nite failure of take effect on an indefinite failure of his issue, generally, issue, with- out rpst rif*— or without restriction to his issue by such marriage, or on ,■ , • J ° ' tion to issue an indefinite failure of the issue of his sons, daughters, or by a particu- children, generally, in such case, if his wife is still living, lar marriage, by whom he had the children who take the previous wnoarealone -iii- i • i p r i ii inheritable estates tail, and there is anything, on the face ot the will, un( j er p rev i- to show that he contemplated her surviving him, ( e such as ously created the appointing her executrix, or making any disposition estates tail, in her favour,) (e) it will be considered that he had no other nt i,2. ».- " v ' otner mar- marriage in contemplation, and that, consequently, the riage was devise is a devise of the whole or the immediate part of contem- the reversion, instead of a limitation of a springing in- P late ^> and terest. (See § 169, 117, 125.) such limita _ , tion is a li- mitation of (e) Jones v. Morgan, as stated, Fearne, 451. Lytton v. Lyt- the whole or ton, 4 Bro. C. C. 441 ; as stated, Fearne, 454, note (c). the immedi- ate part of the reversion. r*»] II. 10J AN ORIGINAL VIEW [§ 383-386. CHAPTER THE TENTH. OF LIMITATIONS TO THE HEIR OR HEIRS OF A LIVING PER- SON, CONSIDERED IN RELATION TO THE FOURTH CLASS OF CONTINGENT REMAINDERS: 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 MEANING HEIR APPARENT OR PRESUMPTIVE, AND THE WORD HEIRS MEANING SONS, DAUGHTERS, OR CHILDREN. Strict sense The word "heir," in its strict legal sense, denotes the 383 of the word p erS0 n upon whom the law casts the inheritance, on the heir ' decease of the ancestor. Hence the maxim is, that nemo A remainder tk rs v i vent i s . a nd consequently, a remainder which to the heirs ' . ?. . • j of a living is limited to the heirs of a living person, is a remainder person is a limited to one who is not yet in existence ; since no one limitation to susta i n j n g tne legal character of heir of a certain person, h/beTi?", " ' can De m existence till that person's death, or, if in be- And admitting that though there can be no heir till the 384 ing, not ancestor's decease, yet the person who will eventually be ascertained, heir, is in being ; still, it is uncertain whether the person who would be heir, if the ancestor were to die at a parti- cular 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 therefore, 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 the 385 Bucrj remain- ] ie - or h e j rs f a li v i n g person, falls within the description 'It T IS a COn- r , ii • •• -i r i r ,i tin 'rut re- ' a reall y 1S > a contingent remainder ot the fourth mainderof class. But, the fourth class. But, T _,, I Sometimes Ihere are cases in which such remainders do not, in 386 II. 10.] OF EXECUTORY INTERESTS. [§ 387—389. [ 203 ] reality, fall within the description of the fourth or any it does not other class of contingent remainders, though, prima facie, *?" within as being limited to the heir or heirs of a living person, t j on f t hat they seem clearly to fall within it. class. 387 1. This happens where the same persons who are desig- 1. Where the nated " heirs," are, in another sentence, referred to by the wor d heirs is description of sons, daughters, or children, the testator ^ . ons ' • i • daughters, or having sons or children at the time ; or other expressions children. are added, which show that the testator used the term . " heirs," not in its technical sense, but as a synonyme for the first and other sons, to take successive remainders in tail, or for the children, to take as joint tenants or tenants in common. Thus, where a testator devised in trust for the main- Doe d. Hal- tenance of S. a feme covert, and the issue of her body '■ en v * * r i ... c ,, r ,, , i . . , the remain- description ot the fourth class of contingent remainders, ( | er ^ Q f jj but yet, in consequence of the application of certain rules within the description (a) Burchettx. Durdant, 2 Vent. 311; James v. Richard- son, I Bio. Pari. Ca. 493 ; Darbison d. Long v. Beaumont, 1 P W. 229 ; 1 Bro. Pari. Ca. 489 ; and Goodright d. Broking v White, 2 Blac. Rep. 1010; as stated, Fearne, 210—212. of, but yet [ 204 ] 11. 10.] AN ORIGINAL VIEW [§ 389. constitutes of law, they constitute exceptions from that class of con- an exception ^inoent remainders. The cases of this kind are those from, the . . ^ ^ affecte( j by the rule which rendered a limitation fourth class „ , . ,• j iL i • i of contingent to the heirs of the grantor inoperative, and those which remainders. are governed by the rule in Shelley s Case ; which form the respective subjects of the two following chapters. II. 11.] OF EXECUTORY INTERESTS. [§390—391. [ 205 ] CHAPTER THE ELEVENTH. FIRST EXCEPTION FROM THE FOURTH CLASS OF CONTIN- GENT 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 limited to the heirs of a living person, falls within the description of, and really is, a contingent remainder of the fourth class. 390 But, prior to a modern statute, a if an ultimate limita- Limitations tion was made to the right heirs of the grantor, it did to the right not give a contingent remainder to the heir at law as a heirsof [ ne 6 & . . . • i ix- • grantor be- purchaser, but was entirely inoperative ; the ultimate in- fore stat 3 & terest remaining in the grantor, as his ancient reversion, 4Will.IV.c. and passing to his right heirs in the ordinary course of 106 - descent, (a) This exception is founded on reasons similar to those assigned in the next chapter for the exception gee Sect. III. therein discussed. 391 By the stat. 3 & 4 Will. IV. c. 106, s. 3, it is, however, Enactment enacted, that "when any land shall have been limited by of stat. 3&4 W*ll T"\7 any assurance executed after the 31st day of December, • • c 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a pur- chaser by virtue of such assurance, and shall not be con- sidered to be entitled thereto as his former estate or part thereof." (a) Fenwick v. Mitforth, Moor, 284 ; Earl of Bedford's Case, Moor, 718; and Read and Morpeth v. Erincjton, Cro. Eliz. 321 ; as stated, Fearne, 51. [ 206 ] II. 12. i-1 AN ORIGINAL VIEW [§ 392-395. CHAPTER THE TWELFTH. SECOND EXCEPTION FROM THE FOURTH CLASS OF CON- TINGENT REMAINDERS, CREATED BY THE RULE IN SHEL- LEY'S CASE, WHERE REAL PROPERTY IS LIMITED TO A PERSON, WITH REMAINDER TO HIS HEIRS. A remainder We have seen, in the tenth chapter, that, as a general 392 to the heirs of rule, a remainder limited to the heirs of a living person, a living per- fal j g w i t i nn t i ie description of, and really is, a contingent son is a con- . . „ , „ ,, , lingent rc _ remainder ol the fourth class. mainder. There is, however, a well known exception to this, But an ex- created by the rule in Shelley's Case. ception is created by the rule in SECTION THE FIRST. Shelley's Case. 77, e Rule in Shelley s Case stated. Shelley's In Shelley's Case, a fine was levied by a man to the 393 Case. use f 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, is a 394 Ride ^h / G rU ^ e °^ S reat antiquity, by which the word heirs, in re- ley's Case, mainders to the heirs of a tenant for life or in tail, is construed as a word of limitation, and which was referred to by the defendant's counsel in that case, to show that the heirs males of the body of Edward Shelley did not take by purchase, but by descent. The Rule as The Rule is expressed by him in the following terms : — 395 Shelley's " ^ ^ s a ru ' e °f law, that when the ancestor by any gift Case. or conveyance takes an estate of freehold, and, a in the same gift or conveyance (a) an estate is limited, either (a) See Fearne, 71; and Doe d. Fonnereau v. Fonnereau, Doug. Rep. 486, as stated, Fearne, 73. II. 12. i. j OF EXECUTORY INTERESTS. [§ 396—397. [ 207 ] mediately or immediately, to his heirs, in fee, or in tail, that always, in such cases, the heirs are words of limita- tion of the estate, and not words of purchase." 396 b Several earlier cases in the Year Books in the time of The same Edward III., are referred to in Lord Coke's Report; but rul e appears Mr. Preston observes, the only one among them which is ln ®, ™~ ... _, & . vost of Be- intelligible, is, that of the Provost of Beverly, which arose ver iy' s upon a fine sur grant et render, by which lands were Case, settled upon John Sutton, the granting party in the fine, for his life ; remainder, after his death, to John his son, and to Eline 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 father was dead, and John the son and Eline were also dead, without issue. Richard, another son of John the father, entered, claim- ing as a purchaser under the limitation to the right heirs of his father. Thorpe, in answer to the plaintiff's counsel, observed, " 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 by your proper name, but as heir.'''' And, for these reasons, it was decided that Richard took by descent, (b) 397 Such is the rule of law indirectly pointed out in this Observations case, and formally stated in Shelley's Case, from which it on l ^p virtual has received its name. And it is indispensably necessary f , here to observe, that it would have been well if the pro- ru ] e , jession, when they have considered the nature and extent of the Rule in Shelley's Case, had always really considered the nature and extent of that Rule, as pointed out and ex- pressed in the two cases above mentioned, instead of laying down, or presupposing the existence of a Rule, which, though termed the Rule ir^ Shelley's Case, is in reality a translation of that Rule into terms of a far dif- ferent and more extensive character ; embracing cases, where the words "issue," "children," "sons," and " daughters," have been used instead of the word " heirs." These words may indeed have been used in (b) Pies. View of Rule, 50, 52. [ 208 ] II. 12. i.] AN ORIGINAL VIEW [§ 398-400. 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 different 398 may be dif- a nd in more or less precise terms, without destroying its ferently identity. And we find Lord Coke himself wording it in outhSts different ways, in different parts of his commentary. OUl losing il» •> _ . , i ,i identity; as Thus, in one place, he says, " Where the ancestor taketh it is by Lord an es t a te of freehold, and after a remainder is limited to Coke ' his right heirs, the fee simple vested in himself, as well as if it had been limited to him and his heirs : for, his right heirs are in this case words of limitation of estate, and not of purchase." (c) W r hile, in another passage, he gives the same Rule as follows : — " Whensoever the an- cestor taketh any estate of freehold, a limitation after, in the same conveyance, to any of his heirs, are words of limitation, and not of purchase, albeit in words it be limited by way of remainder." (d) Lord Coke But amidst this variety in other respects, the two 399 retains the essential requisites pointed out by the counsel in the two essential Q ase f tj le p r0 vost of Beverly and in Shelley s Case, thereof are reta ' ne( l by Lord Coke; namely, a prior limitation of the 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 out 400 statement of the nature, application, and reasons of the Rule referred the Rule. to m Shelleys Case, and not of some other Rule, desig- nated by that name, indeed, but being in fact of far greater extent; and in pursuance of this, the author ventures to lay down that Rule in terms, which, re- taining all the essential ingredients, may perhaps serve to express substantially the same Rule, in a somewhat more plain and definite manner, and in such a way as to exclude certain 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 the Provost of (c) Co. Litt. 319 b. (d) Co. Litt. 376 b. II.l2.ii.] OF EXECUTORY INTERESTS. [§401—404. [ 209 ] Beverly s Case, do not, in reality, come within the scope or meaning thereof. 401 The Rule, when expressed according to this design, may be thus stated : When a person, by any deed or will, takes a freehold interest, and, by the same deed or will, a re- mainder of the same quality, as legal or equitable, is after- wards limited, whether mediately or immediately, to his heirs or the heirs of his body, e by that description, and in that character, (e) or to his heir or the heir of his body, in the singular number, but as a nomen collectivum in the sense of heirs or heirs of the body ; the inheritance, 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 special. 401a It will be observed, that f limitations of subsequent Limitations interests which are not by way of remainder, such as con- by wayot remainder ditional limitations, are not within the Rule. (/) The are not Rule arose before such limitations were allowed ; and within the when they were introduced by way of use and devise, the ru ' e - Rule was not held to apply to them, either directly or See § 148-9, by analogy, because they were not within the reasons of 149 a, 117, the Rule J" "• 419 " 450. SECTION THE SECOND. The Terms and the Operation of the Rule explained. 402 Apart from the operation of the Rule, the word heir Word heir or or heirs may be either a word of purchase or a word of . ; ,rs > a w0ld . . J * either or pnr- limitation. chase or of 403 Words of purchase are those which designate the first limitation. purchaser or person who is to take, and which cause an Definition of 404 interest to attach in him originally. Words of limitation words of pur- are words which serve to mark out the limits or quantity of c iase ' an estate, and its course of devolution, and under which, in e nitI °"° ...',., \ words or li- the case of an estate in fee or in tail, the heirs do not take mi t a tion. — See §26-42. (e) See Fearne, 188, 194, 195, 197—199. (/) Fearne, 276. p [ 210 ] II- 12. ii-] AN ORIGINAL VIEW [§ 405-410. originally, but derivatively by descent from their an- cestor, (a) The inva The invariable, proximate, and proper operation of the 40o riable, ' Rule, is, merely to execute the subsequent interest in the proximate, ancesto r himself, just as if, in addition to a prior limita- and proper ^^ freehold to him, there were a subsequent limitation SEE" to him and his heirs general or special. But, besides this 406 The occa- operation, it has also an occasional, mediate, and indirect sional, me- effect upon the prior estate limited to the ancestor, by diate, and creat ing, in certain cases, such a connexion between the feet'Xreof. two interests, as to let in the application of the doctrine of merger, and thereby occasion the annihilation of the prior estate of freehold. Different Under the Rule in Shelley's Case, and the doctrine of 407 modes in merger, the subsequent interest is executed in the ances- which the tor j n fiye wa y S . i. I n possession, absolutely. IL In fnteresUs" interest. III. In possession, subject to the liability of executed in afterwards becoming only executed or vested in interest, the ancestor. jy j n possession, to some purposes only. V. As a con- tingent remainder. I. In posses- I. b If the subsequent limitation of the inheritance fol- 408 sion,abso- lows immediately after the limitation of the freehold to lutely. j. ne ances tor, (J) the freehold merges in the inheritance, and b the ancestor becomes seised of an estate of inherit- ance in possession, (b) The inheritance is then absolutely executed in possession in the ancestor. II. In inter- H. c jf there is any interest intervening between the 409 est. ancestor's freehold and the inheritance limited to his heirs general or special, (c) and such interest is vested, the free- hold cannot merge, but c the ancestor is seised of an estate of freehold in possession, and of an estate of in- heritance in remainder, (c) The inheritance is then executed in interest only, in the ancestor. III. In pos- HI. The inheritance may be executed or vested in pos- 410 (a) See Fearne, 79. (£) lb. 28, 33. (c) lb. 28, 32, 33. 11.12. ii.] OF EXECUTORY INTERESTS. [§411— 414. [ 211 ] session, subject to the liability of afterwards becoming session, sub- only executed in interest. For, e if there are interests-]. ..,.. ie c J . ' liability or intervening, but they are only contingent, the freehold afterwards and the inheritance are united and executed in possession becoming in the ancestor, only until such intervening interests y. e * e ". i iii i • i cuted in in- become vested ; and then open and separate, in order to t erest admit such intervening interests as they arise, (e) 411 IV. If land is limited to two persons for their lives, IV. In pos- and, after their decease, to the heirs of one of them ; or to session to husband and wife, and the heirs of the body of the bus- " ," ... . poses only, band ; the estates in tail or in fee are executed in posses- sion to some purposes only. For, they are not grantable away from or without the freehold, by way of remainder; 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 limitation to husband and wife and the heirs of the body of the husband, f recovery against him, with single voucher, will not bar the issue or remainder ; though his estate has been held to be so executed in possession, that his feoffment was a discontinuance. (/) 412 And e so where land is limited to two persons of the same sex, or to two of different sexes who may not law- fully intermarry, and the heirs of their two bodies ; the inheritance is executed in possession sub modo : (g) and h where the limitation is to the heirs of their two bodies, they take several inheritances ; because they cannot have issue between them, (h) 413 There are certain other cases of joint-tenancy, which Cases to be must be distinguished from these ; namely, * where there e „ jl_ p J ' from these. is a joint limitation 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 remainder is limited to the heirs of their bodies ; the inheritance is then executed jointly in 414 possession, (i) And k so where the freehold is limited to (e) Fearne, 37. (/) lb. 36. (g) lb. 36. (h) lb. (i) lb. 36—7. p2 [ 212 ] IT. 12. Hi] AN ORIGINAL VIEW [§415-418. ■ two persons jointly, who may by common possibility law- fully intermarry, and who may therefore have a common heir between them, and a remainder is limited to the heirs of their bodies, (k) But, l where the limitation of the freehold is not joint, 415 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 posses- sion, but they take a joint remainder in tail. (2) And m if land is limited to one parent for life, remainder 416 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) And n a limitation to a woman and the heirs of her late 417 husband, on her body begotten, was adjudged to give her no more than an estate for life, (n) V. As a con- V. ° If the subsequent limitation, instead of being 418 tingent re- unconditional, as supposed in the preceding cases, is ex- mainder. p reS sly limited upon a contingency ; still, it will not be 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 firsl two rules, (o) SECTION THE THIRD. The Grounds of the Rule explained. The reasons of the rule would appear to be these : — (k) Fearne, 35. (0 lb. 36. (to) Fearne, 38, 65 ; and Gossage v. Taylor, Stiles Rep. 325 ; Lane v. Pannel, 1 Roll. Rep. 230, 317, 438 ; and Frogmorton v. Wharrey, 3 Wils. 125, 144; as there stated. (n) Mayidevlles Case, Co. Litt. 26 b ; as stated, Fearne, 40. (o) Fearne, 30, 32, 34. II. 12. iii.] OF EXECUTORY INTERESTS.[§419— 422. [ 213 J 419 I. The prevention of fraud upon feudal tenure. For, I. Prevention a when the heir came in by descent, and was under age, the ° f fr , upon J . _ ... feudal lord was entitled to the grand fruits of military tenure, tenure> wardship and marriage ; but if the heir took by purchase, then the lord could only claim the trifling acknowledg- ment of a relief, (a) 420 II. b The prevention of fraud upon the specialty creditors H- Preven- of the ancestor, who, as Mr. Justice Blackstone and Mr. J!^^^ Hargrave have observed, would have been defrauded, if specialty cre- the heirs had been allowed to take by purchase ; as the ditors of the land would not have been assets in their hands, {b) It is ancestor, true that c this reason fails as to limitations to heirs spe- cial ; since estates tail were not subject to debt, (c) But it might nevertheless be a sufficient reason for the rule as regards limitations to heirs general. 49] III. But, whatever have been the grounds of the rule in III. Desire of its origin, another reason subsequently existed, as an in- facilitating ducement to the preservation of the rule from legislative abolition and judicial discouragement, after the feudal rea- son had ceased with the feudal system itself; and that sub- sequent reason, is, d the desire to facilitate alienation, by vesting the inheritance in the ancestor, instead of allowing it to remain in abeyance until his decease, (d) 422 IV. But these reasons, which would serve by them- IV. These selves, to stamp the Rule with the character of a mere reasons in- prohibitory Rule, founded in policy, do, in fact, when , # closely considered, involve other reasons, which impart 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 gain- ing 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 («) Harg. Tracts, 566. {b) Harg. Tracts, 501, 566. (c) Fearne, 87. id) See Harg. Tracts, 498, 50Q. [ 214 ] II. 12. iii.] AN ORIGINAL VIEW [§ 423. in question would, generally and in the main, have vir- tually and essentially 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 defrauded 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 was no rule, in such a case as this, to vest the inheritance in the ancestor himself, so as to preserve the rights of the lord, or the rights of the creditors of the ancestor. Why then should the heirs have been prevented from taking by purchase, 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 inter- position of a Rule of Policy, prohibiting the heirs from taking as purchasers, in one case, while no such Rule was interposed in other cases equally falling within the same policy; we are driven to the necessity of seeking some reason from the nature of the limitations themselves, namely, that And one such reason has been intimated above ; namely, 423 thetwolimi- that in the cases falling within the Rule, the two limita- tations would .• . ,, , , . , . , . generally and ns to the ancestor and to his hens or the heirs of his in the main D °o!y, would, generally and in the main, have virtually have virtually accomplished the same purposes as a gift of the inherit- plished the anCe ' in fee 0r in tai1 ' to the ancestor himself; and there- same purpose fore > tne Iaw construed those limitations to amount to as a gift of such a gift, in order to prevent the injury which the lord tance to'the ^ ^ s P ecialt y "editors would have sustained, if par- ancestor. ' tles had been avowed, generally and in the main, virtually to create an estate, of the same quantity, and the same alienable and transmissible quality, as one limited to the ancestor himself, and yet, by a particular mode of limi- tation, fraudulently to evade the claims of the lord and the specialty creditors of the ancestor. II. 12. iil] OF EXECUTORY INTERESTS. [§424—426. [ 215 ] 424 " If such a limitation," observes Fearne, (e) "had been Illustration construed a contingent remainder, the ancestor might, °f tn ' s - in many cases, have destroyed it for his own 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, where Certain the freehold is so limited that it may determine in the 0D J ectl0 " s answered, ancestor's lifetime ; as where an estate is limited to the ancestor for another's life. It is true, also, that where the inheritance was limited to his heirs general, different persons might sometimes have inherited as heirs to the person first taking as heir, from those who would inherit as heirs to the ancestor himself. But surely it would be a sufficient reason for one uniform Rule, that limitations to the ancestor and his heirs general or special, would, as already observed, generally and in the main, have virtually accomplished 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. 426 f Where, indeed, there is a limitation to the heirs special, Answer to but the ancestor himself takes no estate of freehold, as anotner in Mandeviles Case, 1 Inst. 26 b, the heirs special take drawn' from in the same manner as if they had been in under a limita- the case of a tion to the ancestor himself. But this is a fictitious fictitious de- " descent per formam doni under the statute of entails." ( f) l cent ' per *^ fornit And if the ancestor were living, and such a gift had doni. been 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 impeaching the reasons above given for the adoption of the Rule, as it applies to other cases. (e) pp. 83, 84. (/) Prest. View of Rule, 25. Upon this point see also Fearne, 80—82. rorniam [ 216 ] II. 12. Hi.] AN ORIGINAL VIEW [§ 427-430, It may, at first sight indeed, be thought that the latter 427 reason just assigned for the non-application of the Rule to such cases as Mandeviles, 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 See § 770, tenant for life, independent of the Rule, he might have 776-8. destroyed 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 observes, 428 answer to the ^^ j^g usua i acum en, cogency, and felicity of expression,) thaUheRule would be as substantially violated, by investing the first frustrates the fortuitous heir with the power of defeating the succession testator's to the whole sequel train, as: by investing the ancestor intention. himself with such power; except that the first heir him- self would, in the latter case, be equally subjected to it with all the rest. And why not, if the testator has not distinguished that first from the rest, nor of consequence preferred 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 tes- tator's intention in the matter induce the preference of an unknown derivative 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 ap- pendages ?" (g) V. Thcob- V. Another reason, also founded in the nature of the 429 ject of the limitations themselves, remains to be adduced. huleistogive t ,, , - „ . . .. , . _ , effect lo the cases that fal1 Wlthln this Rule, and in certain other primary or cases noticed in the following Chapters, there are two co- paramount existing yet inconsistent intents ; the one of which may expensefoV 6 b ° termed the P«mary or paramount intent, and the other, the second- the secon dary or minor intent. And, as these, by reason ary or minor of their inconsistency, cannot be both effectuated, the secondary or minor intent is sacrificed, in order to give effect to the primary or paramount intent. Definition of The primary or paramount intent, in cases falling within 430 {(/) Fearne, 201. 11.12.iii.] OF EXECUTORY INTERESTS. [§431—433. [ 217 ] the Rule, is, that the ancestor should have the enjoyment the primary of the estate for his life; and subject thereto, that the or paramount till- -i n in tent in estate should descend to all the heirs general or special ot tnese ca ses. the ancestor, and to none but those who are heirs of the ancestor. 431 The secondary or minor intent is, to accomplish the Definition of primary or paramount intent in a particular mode ; in tne second- . J , . '. . ary or minor such a mode, as the grantor or devisor imagines, as to m j ent 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 the heirs should take by purchase. 432 The primary or paramount intent above mentioned is The primary imported, ex vi termini, by the word " heirs," taken in ? r paramount connexion with the limitation of a preceding freehold to ted b tn " e the ancestor. For, it is evident that h the ancestor was worc i heirs, the sole ascertained and original attracting object, the in connexion groundwork of the grantor's or testator's bounty; and Wlth the precetlin cr the heirs general or special being all, as such, equally freehold* unascertained, have all, prima facie, an equal claim on the grantor's or testator's regard, grounded entirely on their common relationship to the ancestor. Unless, there- fore, we have some apparent ground for presuming a dis- tinction and a preference between the person first hap- pening 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 indiscriminately 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 succes- sion should not be confined 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 an- cestor, and vest in them in that character only. (Ji) 433 Now, admitting it to be clearly, and, in fact, necessarily Necessary to (h) See Fearne, 200. [218] II. 12. iii.] AN ORIGINAL VIEW [§434-435. ,,,,,,,,,0 inferrible in this way, that it was the intent, that the secondary or anC estor should be succeeded by any person claiming mim,r intent simply in the character of heir general or special; and "V"" 1 ", 10 Jiat all other persons to whom the same character of heir iKly general or special of the ancestor should belong, shoud, oi paramount simp i y by virtue of their sustaining that character, equally intent ' 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 or special to the ancestor, and every such person is to take simply in that character ; then, in order to effectuate this intent, and secure the succession to its intended objects, it is necessary to reject, as inconsistent and incompatible, any other intent that the ancestor should take an estate for life only, and the heirs should take by purchase, both in the This is perfectly clear as regards limitations of an estate 434 case of limi- to the heirs general. For, " if it vests in the first heir tations to genera i Dy purchase, it cannot go in succession to suc- heirsgenera , ceeding neirg of the game ances tor, not being heirs general of such first heir, but may eventually go to strano-ers, 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 paternd ; the succession will be to his heirs ex parte materna. And if such an- cestor should be the mother, or ex parte materna, of the heir so taking by purchase ; the succession will be to his heirs ex parte paternd, in preference of his heirs ex parte his said ancestor." (i) 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 in the And the same is the case with limitations to heirs special. 435 case of limi- p or> m order to secure the succession to all the heirs heirs snecial s P ec ' a ^ °^ tne ancestor, and not merely to those who shall likewise be heirs special of the first heir special, an intent . (i) Fearne, 192. II.12.iii.] OF EXECUTORY INTERESTS. [§ 435a— 436. [ 219 J that the ancestor should take a life estate only, and that the heirs special should take by purchase, must be re- jected, as inconsistent and incompatible. 435a Where, indeed, the ancestor takes no preceding estate Answer to of freehold, a limitation to the heirs special, though vest- 0D J ectl0n ing in the first heir special by purchase, will nevertheless t ^ aW ° ^ secure the succession to all the heirs special of the an- fictitious cestor, in the same manner as if the inheritance had vested descent per in the ancestor himself. But this, as we have seen, is ^f orn } am fictitious descent, per formam doni, under the statute of entails ; in a case in which, from the non-existence of any e ^ estate in the ancestor under the terms of the grant or devise, so far from there being any pretext for construing the estate limited to the heirs special to vest in the ancestor, such a construction would be admitting the ancestor to an estate in and a power over the land, 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. Hence 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 regarded It is accurate as subordinate to the succession itself, and the prescribing a "d definite a certain mode of succession, a secondary or minor consi- \° sa ^ \ i ,. . • i t , • • , the second- deration in comparison with the admission to such sue- ary or minor cession of all who have a common claim upon the same ; intent is it is strictly accurate and definite to say, in regard to the sacrificed to operation and the reason of the Rule, that the secondary f ffectu . ate * -J tne primary r 220 ] II. 12. iii-] AN ORIGINAL VIEW [§437-443. or para- or minor intent is sacrificed for the purpose of effectuating mount tn e primary or paramount intent. intent - It is true, indeed, that in the great case of Jesson v. 437 Observations ]y .. u Lor ' d Re d e sdale said, " that the general intent r I,;';;!,!,, should 'overrule the particular, is not the most accurate expression of the principle of decision. The rule is, that technical words shall have their effect, unless, from sub- sequent inconsistent words, it is very clear that the testator meant otherwise.'" (k) and Lord Andin Doed.Galliniv. Gallinl, Lord Denman,C. J., said, 438 Denman. M The doctrine that the gene ral intent must overrule the particular intent, is incorrect and vague. The more cor- rect mode of stating the rule of construction, is, that tech- nical words of known legal import, must have their legal effect, even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use them in their technical sense." (I) They are These observations of Lord Redesdale and Lord Den- 439 just, but are man are p er f e ctly just ; and they accurately point out the tor^o? the*" construction involved in the Rule. But they do not furnish, grounds of and probably were not intended to furnish, a satisfactory the Rule. explanation of the grounds of the Rule. Why the Why have the technical words the effect of overruling 440 technical other words, which, though not technical, have a known rule the other ' e £ a * import as much as the technical words themselves? words. m The intention, expressed or necessarily implied, so far as 441 the same is consistent with the rules of law, is the con- trolling rule of construction in wills, and, with scarcely any exception, in deeds also, {m) The fact seems to be, that 442 "Wherein the technical word "heirs" has this effect, because (in consists the addition to the other grounds of the Rule above-men- incorrectness • • and vasue- tlonec ') l * expresses the primary or paramount intent ; nessofthe whereas the other words only express a secondary or common minor intent ; and that the incorrectness and vagueness 443 SeRule! ° f ° f the common statement of the principle of the Rule does not lie in the ascription of two different intents, the (k) 2 Bligh, 56. (J) 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. II.12.iii.]0F EXECUTORY INTERESTS. [§444-447. [ 221 ] one of 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 preceding pages : and it is fully borne out by the words of Lord Eldon, C, who, in moving judgment in the House of Lords in the very case 444 of Jesson v. Wright, said, " It is definitively settled Observation as a rule of law, that where there is a particular and 2,, , or . i a •?»/ . -^'don on the a general or paramount intent , the latter shall prevail, {n) general and 445 And the same principle is distinctly expressed by particular Butler, free from all doubt, with regard to certain cases lnt ent. in which it is intended that all the issue should take, and Observation yet that unborn sons of an unborn son should take by the eral purchase. " Another rule in the construction of wills," he and particu- says, " which is admitted in a much greater latitude than lar intent, it is in the construction of deeds, is, that when a testator's general intent appears, the Court, in order to give it effect, will sacrifice to it a particular intention inconsistent with it. (o) 446 Hargrave has j ustly observed, P that the Rule cannot be The Rule is treated as a medium for discovering the testator's intention, not amedium tor discover- but that the ordinary rules for the interpretation of deeds j n g tne inten- should be first resorted to; and that when it is once tion. settled that the donor or testator has used words of in- heritance, according to their legal import; has applied them intentionally to comprise the whole line of heirs to the tenant for life ; has made him the terminus, by re- ference to whom the succession is to be regulated ; then 447 the Rule applies, (p) But, the Rule is a means for But it is a effectuating the testator's primary and paramount inten- means for tion, when previously discovered by the ordinary rules the jmar y of interpretation ; a means of accomplishing that intention orparamount to comprise by the use of the word heirs, the whole line intention, of heirs to the tenant for life, and to make him the ter- when d , ls " . covered, minus, by reference to whom the succession is to be O) 2 Bligh, 51. (o) Co. Litt. 271 b, note(l), VII. 2. (p) Co. Litt. 376 b, note (1), II. r 222 ] II. 1-2. iii.] AN ORIGINAL VIEW [§ 448-450. reflated. And the way in which the Rule operates, as a means of doing this, is, by construing the word heirs as a word of limitation ; or, in other words, by construing the limitation to the heirs general or special, as if it were a limitation to the ancestor himself and his heirs general or special. ,, , ., '..« The Rule is The same learned author, however, has described the 448 indeed level- R u l e as q paramount to and independent of private inten- w ; '~ ainst tion (?) And it has been said, indeed, by a very eminent the intent, laW y erj that « instea d of seeking the intention of the par- ties, 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 parties." (r) The same position has also been advanced and elaborately and ably maintained by other writers, who have subse- quently treated of the subject, (s) 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." but only But, at the same time, from a careful examination of 449 against the the judgments delivered upon those cases; from a consi- secondary or derat j n f the views of the profound Fearne, by whom, minor intent. asBuUer remarks> the Rule has been "discussed with infinite learning and ability;" and also, it is humbly submitted, from the attempt which has just been made in the preceding pages to give a more definite, guarded, and accurate statement of the grounds of the Rule; it is perfectly clear that the intention against which the Rule is so levelled, is a mere secondary intent. Summary of In fine, to sum up the principles or grounds of the 450 the grounds Rule, in a few words, it would seem clear that it was de- of the Rule. s jg ne( ] ± effectuate the primary or paramount (or, as it is See % 429- commonly but vaguely termed, the general) intent, at the 449. expense, and in defeasance of a secondary or minor (or, as it is commonly but vaguely termed, particular) intent, (q) Co. Litt. 376b, note (1), II. (r) Prest. View of Rule, 12. (s) See Hayes's Inquiry, and Hayes's Principles, passim; Jarman's Powell on Devises, 301 , note (5); Phillips's Inquiry, 18. II. 12. iv.] OF EXECUTORY INTERESTS. [§ 451 . [ 223 ] amounting, in its nature, to an intent to accomplish a mere fraudulent evasion of the incidents to a descent, and, as See § 419, such, prejudicial, in its object or tendency, to the lord 420. and the specialty creditors of the ancestor; an intent, too, which was opposed to the policy of the commercial See § 421. times which quickly followed, and was also incompatible with that primary or paramount intent, of which a defi- See § 430, nition and explanation has already been given. 4<32# SECTION THE FOURTH. The Application and Non-application of the Rule, in Cases of Legal Estates and Trusts Executed. If we do but carefully bear in mind the terms of the Preliminary Rule, as expressed by the counsel in Shelley 's Case, and as caution, indicated in the Provost of Beverly's Case, and keep See § 395-6. steadily in view the principles or grounds thereof above mentioned, we shall perceive that the numerous decisions upon the Rule, with scarcely a single exception, 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 principle, as stated and explained above, that in the cases under the rule, there is a primary or paramount intent, and a secondary See § 429- or minor and incompatible intent, the latter of which is 449. to give way to the former ; or if we mistake the true im- See § 430-1. port 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 nume- rous decisions, which never have, and never ought to be, overruled, and even to deny that a " the controlling rule of construction in wills, is, the intention expressed or clearly implied ;" to contradict which, Fearne observes, " would be a mockery, a denial of the import of the word will.'' 1 (a) Or, as the only alternative, we shall be plunged into inconsistency and uncertainty, and shall then, but then only, have abundant cause to say, with a learned author, " it is much and seriously to be lamented, that a line (a) Fearne, 186. [ 224 ] II. 12. iv.] AN ORIGINAL VIEW [§ 452—457. cannot be drawn so nicely, as to enable a distinction to be clearly taken, discriminating those cases that are, and those that are not, the objects of the Rule." Hueegene- On attending carefully to the principles above men- 452 ral proposi- tioned three general rules or propositions may be laid "Ti" Kl> h0 down for the guidance of the practitioner in deciding as to laid down. & r»T tt *~\ the application of the Rule in Shelley s Case. PROPOSITION I. I. First gene- No circumstances, however strongly and conclusively 453 ral proposi- j nt |j ca ti ve merely of an intent that the ancestor should tion, showing , ,.„ , ,,. ,,. , . , . , where the ta ^ e a n ^ e estate only, and that his heirs general or special Rule applies, should take by purchase, will be sufficient to prevent the notwith- operation of the Rule; nor, indeed, will the most positive p ,r" direction to that effect be sufficient for the accomplishment parent indi- . l cations to OI> such a purpose : because, such circumstances or the contrary, directions only serve to make the secondary intent more See § 429- clear, without negativing the existence of, or in any way affecting, the primary intent. Hence the Rule applies, 1. Limitation 1. a Though the property is limited to the ancestor for 454 ' life only, or for life, and no longer, (a) 2. Or with- 2. Though limited to him without impeachment of 455 out impeach- waste# (i) ment of waste. 3. Power to 3 * Though there is a power given him, to do that, 456 make a which, as tenant in tail, he might do without any such jointure power; as c to make a jointure, or leases, (c) or leases. 4. Obligation 4. Though his estate is subjected to the obligation of 457 to repair. keeping the buildings in repair, t (d) (a) Thong v.Bedford, 1 Bro. C. C. 313; as stated, Fearne, 177. (b) Jones v. Morgan, 1 Bro. C. C. 276 ; as stated Fearne, 134. Bennett v. Earl of Tankervile, stated § 475. (c) Bale v. Coleman, 2 Vern. 670 ; 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. (d) f Jesson v. Wright, stated § 475. II.12.iv.]OF EXECUTORY INTERESTS. [§458— 4G1. [ 225 ] 458 5. d Though there is a direction that he shall not sell, 5. Restraint or dispose of the estate, for any longer time than his of al;enat 'on- life, id) 459 6. e Though there is a limitation to trustees to preserve 6. Limitation contingent remainders ; and there is no contingent re- t0 trustees to mainder, unless the limitation to the heirs is one. (e) ' v ' contingent. remainders. 460 7. f Though the heirs are to take for their lives. (/) 7. Limita- (See § 486.) tion to heirs for their lives. 461 8. And the Rule will be applied even where several of' ' ..... , rr 8. Concur- tnese indications occur in the same case. rence of A testator devised to his wife, for life ; remainder to several of trustees, &c, remainder to his daughter, for life ; remain- tne f e »ndi- der to trustees, &c. ; and, from and immediately after the decease of his daughter, he devised to the heirs of her rp, to ' 1 hong v. body; and, for want of such issue, then, to W. T. and Bedford, his heirs : it being his will and meaning, that after the 4 Mau 6c 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 daughter; and that for want or in default of such issue, the same should vest in W. T. and his heirs ; and that his daughter should not have any power to defeat his intent and meaning in this respect. It was held, that the daughter took an estate tail. And where a testator devised to C. H. all his real estate, Reece v. during the term of her natural life, and to her heirs, the fl ; m * issue of her body, for ever, during the term of their g eea ] so natural lives. If his niece had no son, then, to her eldest Jones v. daughter. Each heir was only to be tenant for their Morgan, 1 p* f 1 f 1 QTr* respective natural lives, during the term of 99 years from n * '. * r > o j Perrin v. Blake, 1 Bl. R. 672; and (d) Perrin v. Blake, 1 Black. Rep. 672; and Hayes d. Foorde v. Foorde, 2 Blac. Rep. 698 ; as stated, Fearne, 156, 173. (e) Wright v. Pearson, as stated, Fearne, 126, &c. Caul- son v. Coulson, 2 Stra. 1125; as stated, Fearne, 161. Hodgson v. Ambrose, Doug. Rep. 337 ; as stated, Fearne, 174. (/) Hayes v. Foorde, 2 Bl. R. 698 ; as stated, Fearne, 173. Q I 226 ] II. 12- iv-] AN ORIGINAL VIEW [§ 462 -465a. Haye s v. the testator's decease ; devesting all from power to sell. Foorde,1 No timber was to be cut down, except for repairs. A BL R " (i9S : proviso was added, that if his niece left no issue, or should SjSflM they become extinct, all his real estate should go over. I -,-;, 173. ' The Vice-Chancellor held that C. H. took an estate tail. 9. Freehold 9. It applies in the case of a freehold determinable in 462 determinable t j, e ancestor's lifetime. '" the m ' Lands were limited to E. B., for life, if she continued t°ime sole and unmarried, with an ultimate limitation to the Curtis v heirs of her body. And Sir W. Grant, M. R., held, that Price, 12 there was a vested estate tail, instead of a contingent Ves. 89. remainder, notwithstanding the possibility that the first % ee al %n estate might terminate in the life of the widow, and before rearne ov, » , , 31-33. there could be an heir of her body. 10. Free- 10. f It applies where the freehold is by implication^/) 463 hold by im- plication, ji It alg0 applies where the ancestor takes e no ex- 1 1 . Free- gg estate> nor a ny estate by implication, but an interest 464 sultin^uTe", is limited t0 his heirs s P ecial > in cases where he is the where a grantor, and that interest is preceded by estates for life remainder is or m tail, which of course may regularly expire in the t'helieirl lifetime of the grantor, by their original limitation,^) special of and h not merely by surrender or forfeiture, (h) the grantor, J n this case, inasmuch as the interest limited to the See §59, heirs s p ec i a i f the grantor, cannot vest till his death, 465 and the preceding interest may regularly expire before his death, nay the very instant after the delivery of the deed creating them ; there is a freehold use remaining undisposed of in the grantor, sufficient to attract the operation of the Rule, even where And this is the case even where there is an ulterior there is an vested interest. For, it is evidently the intention that such ulterior vested inter- ■ — — — est - (/) Fearne, 41. (fj) Wills v. Palmer, 5 Burr. 2615; 2 Black. Rep. 687; as stated, Fearne, 45; overruling Southcot v. Stowell, 1 Mod. 226, 237 ; 2 Mod. 207, 211 ; as stated, Fearne, 44. (h) See Tippinv. Cosin, Carth. 272 ; 4 Mod. 380; as stated, Fearne, 43—4. II. 12.iv.] OF EXECUTORY INTERESTS. [§406—467. [ 227 ] ulterior vested remainder should only occupy, or absorb, as it were, that portion of the seisin, property, or ownership, See § 46-7, subsequent to the death of the grantor: and even then, °0* that it should so occupy or absorb it, subject to open and let in the preceding estate, in favour of the heirs special of the grantor, 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 effectuated, 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 grantor. 466 Where indeed the limitation is to the heirs special, not Cases where of the grantor, but of a third person, then the exclusion the limitation . • • is to the of the heirs special, in the event of the expiration of the , • cri ■„ i preceding estates, cannot be prevented ; and the ulterior f a third vested remainder must occupy and absorb the seisin, pro- person, perty, or ownership, subsequent to the preceding estates ; as well that part which is anterior 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 implica- tion in a deed, there is no implication that the ancestor was intended 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. 467 12. The Rule also applies where the ancestor takes no 12. Free- express estate, nor any estate by implication, but a limita- ' ^ re ~ . sultin°" use tion is made to his heirs special, in cases where he is the w i iere ° a q2 I 228 | Bpi inging interest is limited to the heira special of lie grantor. 117- 124 a. 75. 13. Where there are apparently two concur- rent contin- gent re- mainders. Doe d. Cole v. Gold- smith, 7 Taunt. 209. II. 12. iv.] AN ORIGINAL VIEW [§468-470. grantor, "unpreceded by any other limitations,^) or * by none but limitations of chattel interests, (i) In these cases, the entire fee simple remains in the grantor, whe- ther 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 particular estate of freehold, the rule executes the inter- est limited to his heirs special in himself. 13. The Rule applies even where it might appear that 468 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 alter- native 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 appoint ; 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 implication. 14. Where 14. k Where it is limited to the ancestor intrust for 469 another, or to answer some particular purpose, and not for estate is not . r , for his own ms own benefit, Fearne considers that the case does not benelit. fall within the Rule. Butler, however, remarks that Courts of Law must treat the case as falling within the Rule ; because they cannot take notice of any trust charged on legal estate. (Jt) 15. Where 15. It may here be added, that, Hhe Rule is applied 470 {h) Pibus v. Mifford, 1 Ventr. 372 ; as stated, Fearne, 41 , 42. (1) Penhay v. Hurrell, 2 Vern. 370 ; as stated, Fearne, 25. See also Butler's note, Fearne, 41, (y), in opposition to Adams v. Savage, 2 Salk. 679, and to Raivley v. Holland, Vin. V. 22, p. 189, pi. 11 ; as stated, Fearne, 42, 43. (k) Fearne, 35, and note (p). I1.12.iv.]0F EXECUTORY INTERESTS.^ 471— 471b. [ 229 ] in equity where both estates are .equitable, (/) even both estates though the first be m for the separate use of a femej^* covert. O) But n it does not apply where the first estate j s f or sepa . is legal, and the other equitable ; (n) or ° vice versa, (o) rate use of feme covert. 471 16. The P Rule is equally applicable, whether the heredi- 16. Copy- tainents are of freehold or of copyhold tenure, (p) 471a 17. The Rule applies where the limitation to the heirs 17. Where of the ancestor, is an ulterior limitation to his right heirs a limitation male, after an intermediate limitation to his first ^^^al? follows other sons. one to first A testator devised to P., for life; remainder to trustees and other to preserve &c; remainder to the first and other sons of sons * P., Duke of A., with remainder to the right heirs male f Doe d. Earl P. It was held that P. took an estate in tail male in °fi o i™™\i' remainder; Bayley, J., observing, that such remainder was East, 548. not necessarily inoperative : for, cases might be put, where persons 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 an eldest son, who died in the life- time of the testator, leaving a son. 471b 18. Even where a testator devises to his wife, for life; 18. Tenant remainder to the heirs of her body by him; and she never in t{ "J* fter has any issue by him ; the Rule will be applied by con- ^2^^ (Z) Fearne, 59. Garth v. Baldwin, 2 Ves. Sen. 646 ; as stated, Fearne, 125, 126. Wright v. Pearson, as stated, Fearne, 126, &c. Brydges v. Brydges, 3 Ves. Jun. 120; as stated, Butl. note(g), Fearne, 201; overruling Bagshawv. Spencer, Ves. Sen. 142; as stated, Fearne, 121, &c. (m) Fearne, 56 ; and Pitt v. Jackson, 2 Brown's Rep. Chanc. 51 ; as stated, Fearne, 57. (n) Tippin v. Cosin, Carth. 272; 4 Mod. 380 ; as stated, Fearne, 43, 52. Shapland v. Smith, 1 Brown's Rep. Chanc. 75 ; and Silvester v. Wilson, 2 D. & E. 444 ; as stated, Fearne, 57, 58. (o) Fearne, 58, 59 ; and Venables v. Morris, 7 D. & E. 342, 438 ; as stated, Fearne, 59, note (cZ). (p) Fearne, 60— 71. [ 230 J II. 12. iv.] AN ORIGINAL VIEW [§472-474. sitlering her to be tenant in tail after possibility of issue extinct, in respect of the possibility she had of issue during nine months from the testator's decease. piatt v A testator devised a reversionary estate to his wife (who Ponies', 2 never had issue by him), for the term of her life ; and from Man. & Sel. and a f ter ] iel . decease, to the heirs of her body by him ; and, for want of such issue, to his brother-in-law. It was held, that the wife was tenant in tail after possibi- lity of issue extinct, the words, and the possibility she had of issue during nine months from the testator's death, being sufficient to constitute her such. PROPOSITION II. II. Second Nor will the application of the Rule be excluded by 472 general pro- any words which do not unequivocally indicate, but are position, on | caparj ] e f being regarded as indicating, the objects showing „ r . , • t - 1 i ,i ,t i where the of succession to be individuals other than persons who are Piule applies, to take simply as heirs general or special. Hence, See § 429- 4o °* 1. The Rule applies, 9 though the word " heir " is used 473 1. Word heir, j n the singular, (q) even r with the restrictive word I •.! § " next, first, or eldest, prefixed to it, (r) unless there are lar, with the ' ' l . . . „ . word next superadded words of limitation ; because " heir is first, or nomen collectivum, and equivalent to "heirs;" and the eldest, but w 0rc i first, next, or eldest heir, may mean the heir who without su- „ . . ... . J . . . peradded m time to ™ me sn all answer that description, and not words of'li- that person alone who shall first answer such description. nutation. See § 485. 2. It also applies, though in addition to the first words 474 2. Words of f i n i ier it a nce, namely, heirs or heirs of the body, in the limitation , , , A , J ,,, , J . , . superadded P lural number, there are superadded words, provided ■<) the word they are s similar to the first words, (s) or provided they liens. t m ay fairly be assimilated to the first words, merely by See $487. (q) Blackburn v. Stables, stated § 493 ; Burley's Case, 1 Vent. 230; Whiting v. Wilkins, 1 Bulstr. 219; Richards v. Lady Bergavenny, 2 Vera. 324 ; and White v. Collins, Com. Rep. 289; as stated, Fearne, 179. (?) Miller v. Seagrave, Robinson's Gavelk. 96 ; and Dubber d. Trollopev. Trollope, Amb. 453 ; as stated, Fearne, 179. (5) See Douglas v. Congreve, 1 Beav. 59; as stated, §477. II. 12. iv.] OF EXECUTORY INTERESTS. [§ 474. [ 231 ] supplying, as an ellipsis, the words which are necessary for that purpose, or by understanding the one to be used in the same sense as the other; (t) and by rejecting the word assigns, if used, as mere surplusage. A testator gave freehold and leasehold estates to trustees Kinch v. and their heirs, upon trust to permit his son T. to take the Ward, 2 rents and profits, for life; and from and after the decease £™' of his son T., the testator gave such freehold and lease- hold estates unto the heirs of the body of his son, lawfully begotten, their heirs, executors, administrators, and assigns, for ever ; but in case his son T. should die without issue, then, he gave the said estates upon trust for the benefit of his son W., 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 Hodgeson v. Bussey, 2 Atk. 89, 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 limitation annexed to the gift to the heirs of the body must be rejected, as well with respect to the freehold, as the leasehold estate; and that T. took an absolute interest in the leasehold property. Again; a testator devised to A., for life; and after Measure v. her decease, to her son, J. T., for life ; and after the de- ^^ g^* termination &c, to trustees, to preserve &c. ; and, from and after 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. W., Nash v. till he should arrive at the age of 21, upon his legally ™ %\a g \ taking and using the testator's surname ; and then, upon g 3 g t (t) Shelley's Case, 1 Co. Rep. 93, as stated, Fearne, 181. Wright v. Pearson, as stated, Fearne, 126, &c. Goodright v. Pullyn, 2 Ld. Raym. 1437, as stated, Fearne, 160. Morris v. Le Gay, cited 2 Burr. 1102, as stated, Fearne, 161. Hayes d. Foorde v. Foorde, 2 Blac. Rep. 698, as stated, Fearne, 173. [ 332 ] II- 12 >v] A N ORIGINAL VIEW [§475. his attaining such age, and taking that name, habendum to him, for life; and, from and after his decease, to hold to the trustees, and the survivor of them, and the heirs of such survivor, to preserve contingent remainders in trust (or the heirs male of the body of F. W., taking the tes- tator'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 F. W.'s brother and his issue. It was held that F. W. would take an estate tail on his coining of age, and taking the testator's sur- name. .. Superadd 3. The Rule also applies, though words of distributive 475 ded words of modification are superadded, provided there are no super- d'stributiye .^Jed worc j s f limitation, and no other unequivocal without 3 ' ' indications that the word heirs is not used in the technical superadded sense; because the grantor or testator might have erro- words of neously supposed that the heirs might take in that cha- See^Ss' racter > and Y et in a distributive mode ; and therefore these 488a. words of modification are rejected as repugnant. D oe d. A testator devised to his daughter and the heirs of her Candler v. body lawfully to be begotten, for ever, as tenants in s, "' // ';. 1/ D - common; and in case his daughter should happen to die before 21, or without leaving issue on her body lawfully begotten, then over. It was held an estate tail in the daughter. Lord Kenyon, C. J., after adverting to Roe d. Dodson v. Grew, 2 Wils. 323, said, he admitted that in this case the testator intended his daughter to take an estate for life only, and her children as purchasers ; but then he also intended that all the progeny of those chil- dren should take before any interest should vest in his more remote relations ; and the latter intention could not be carried into effect unless the daughter took an estate tail. Hi nm ii v. Again ; a testator devised to his younger son, to hold to •/•"/ ;, bim and his assigns during; the term of his natural life, I iiul.t rmlle, • I • , 19 V( . 170. wlthou * impeachment of waste ; and, from and after his decease, to the heirs 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 hens and assigns for ever; and in case both sons should die before 21, over. The Master of the Rolls held that II. 12. iv.] OF EXECUTORY INTERESTS. [§ 475. [ 233 ] the younger son took an estate tail. And referring to Strong v. Goff, 11 East, 668, he said, that it was evidently distinguishable from the other cases, and from the pre- sent. 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 Pierson v. to the heirs of her body lawfully to be begotten, whether Y, lcker r s '^ 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.' 1 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 de- fendant, 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, Lawrence, J., intimated, that there was nothing in the will to confine the words to issue living at the death of the daughter; 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 j esS on v. his sister, for life, he keeping the buildings in repair; and, Wright, 2 after his decease, to the heirs of the body of W., in such l & ' ° ' shares and proportions as he should appoint ; and, for want of such appointment, then, to the heirs of the body of W., 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, respec- tively, as tenants in common. But the House of Lords reversed this judgment, and decided that W. took an estate tail. The Lord Chancellor, in moving 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 shall prevail ; (2 Bligh, 51 ;) [ 234 ] II. 12. iv.] AN ORIGINAL VIEW [§ 475. and that, upon the whole, he thought it was clear that the testator intended that all the issue of W. should fail, before the estate should go over according to the final limitation. (2Bligh,55.) Lord Redesdale expressed himself thus .__« That the general intent should overrule the par- ticular, is not the most accurate expression of the prin- ciple of decision. The rule is, that technical words shall have their legal effect, unless, from subsequent incon- sistent words, it is very clear that the testator meant otherwise. In many cases, in all, I believe, except Doe v. Goff, 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 different ways which he desired, and the words of modification are to be rejected." (lb. 56,57.) His Lord- See § 488a. ship added, that it was impossible to decide the case, without holding that Doe v. Goff is not law. (lb. 58.) Doe d. At- And so where a testator devised lands to his son-in-law, kinson v. John, and Elizabeth his wife, for their lives, and for the Fether- jjf e f tne surv ivor; and, from and immediately after the & Ad'ol 944* decease of the survivor, then unto the heirs of the body of Elizabeth, by John, to be equally divided among them, share and share alike. And he devised to John, all the residue of his real and personal estate. It was held, upon the authority of the case of 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, notwithstanding the words "to be equally di- vided 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. Wright. Grctton v. In another case, a testator devised to his wife, all his H award ,6 rea i an( j p erS0 nal estate, she first paying his just debts and funeral expenses; and, after her decease, to the heirs of her body, share and share alike, if more than one ; and, in default of issue, to be lawfully begotten by him, 1 1. 12. iv.] OF EXECUTORY INTERESTS. [§ 476—477. [ 235 ] to be at her own disposal. The testator left his wife and six children him surviving. The Court certified that the wife took only an estate for life, with remainder to all the children as tenants in common in fee. This case is distinguishable from all the preceding Observations cases, except the last, in this circumstance ; that there is ,, , no primary or paramount intent, manifested by the limi- tation 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. Atkinson v. Fetherstone, where there were words of distributive modification, and no limitation over on an indefinite failure of issue, and yet the Rule was ap- plied. 476 4. A reference to the heirs by the name of sons or 4. Word daughters, will not be construed to control the word heirs, sons or u if it may fairly be held to refer to all the heirs in the re f"^.- n \ Q sense only of " males " or " females ;" (u) or if the con- the heirs, if struing that word so as to control the word heirs, would only used in seem inconsistent with other parts of the will. the sense ot , . , i • r. P ■•/. .i males or A testator devised to his first son, lor life; remainder f ema i es & c# to trustees to preserve &c. ; and, from and after his de- See § 481-3. cease, to the several heirs male of such first son, so as Poole v. the elder of such sons, and the heirs male of his body, Poole, 3 should always be preferred to the younger and the heirs _i?" u * male of his body ; with limitations to the other sons and the daughters of the testator, and the heirs male of their bodies, the elder of such sons and daughters to be pre- ferred &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. 477 5. Nor will the operation of the Rule be excluded, in 5. Intention («) See Pierson v. Vickers, 5 East, 548, as stated § 475 [,3G] II.12.iv.] AN ORIGINAL VIEW [§478. U, a , ,„e li. the case of legal estates or trust executed, by the expres- siou of an intention that the limitations should be in stnct notations should be in gett i ement stnct settle- a ^^^^ dev . sed real and persona i estate to a feme s';, n s,ction covert, for life, for her independent use and benefit; re- < l mainder to her husband, for life ; remainder to the heirs Doughs v. of her bo d y , m tail ; with remainders over ; and he de- ( '°"9 reve > dared that all the aforesaid limitations were intended to 1 be in 'strict settlement. The Court of Common Pleas certified, that she took an estate tail in the real estate. And Lord Langdale, M. R., after quoting the words of Lord Thurlow in Jones v. Morgan, as to the words, " for life," that the testator, "in all cases, does mean so," said, that the words, "in tail," were merely superfluous ; and that, as to the words in strict settlement, there was no Sec § 489. executory trust in this case ; and that therefore the feme covert took an estate tail in the real estate, and the abso- lute interest in the personalty. G. Super- 6. x The Rule will be applied even in the case of a 478 added words devise to or for the settling of lands on a person for life, usually oc- an( ^ after nis decease, to the heirs male of his body, and limitations to tne neirs male of tne bo( ty of ever Y such heir male > seve " firstand rally and successively, or severally, respectively, and in other sons in remainder, as they should be in priority of birth, and se- tail. . . „ ' nionty ot age. (x) Fethcrston In one case, a testator devised to W. F. and his heirs v. Fether- male, according to their seniority in age, and their respect- &Fin 67 • ivel y attainin S the a S e of 21 years, all his estates real S.C.9 Bligh, and personal in lands, houses, and tenements, the elder 237. son surviving of the said W. F., and the heirs male of his body lawfully begotten, always to be preferred to the second or younger son; and, in case of failure of issue male of the said W. F. surviving him, or their dying unmarried, and without 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 (ar) Legal v. Sewcll, 1 Eq. Ab. 395, as stated, Fearne, 113. Jones v. Morgan, 1 Bio. C. C. 276, as stated, Fearne, 134. See also Sayer v. Masterman, Amb. 344, as stated, Fearne, 162. II. 12. iv.] OF EXECUTORY INTERESTS. [§ 478. [ 237 ] in affirmance of the decrees of the Courts of King's Bench and Exchequer Chamber in Ireland, that W. F. took an estate tail. Lord Chief Justice Tindal, in delivering the opinion of the Judges, said, that they thought the rule of construction, laid down by Lord Alvanley in Poole v. Poole, 3 Bos. & Pul. 627, was the safe and correct rule in such cases ; namely, " That the first taker shall be held to take an estate tail, where the devise to him is fol- lowed 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 W. 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 W. F. being an estate tail; first, because these words would create the same difficulty against the holding the estate given to the sons of W. F. to be an estate tail, which, on all hands, was allowed to be the case, if W. 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 con- dition) create a new estate, or a new course of descent not known to the law. That if the words " heirs male," were to be construed " sons," the construction would be to abandon a direct devise in tail to W. 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 W. F. took estates tail, as purchasers, it was far from clear that they could take more 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 sons issue to that of the second. [ 238 ] II. 12. iv.] AN ORIGINAL VIEW [ § 479-483. PROPOSITION III. Ill Third But, if there are any words referring, not merely to 479 general pro- tbe mode of succession, but to the objects of succession, P osition > and clearly and unequivocally y explaining or indicating s, ; 0Wm fu them to be individuals other than persons who are to take RdeVoes simply as heirs general or special of the ancestor ; (y) the not apply. R u i e w iH not apply. For, these words thereby negative See* 429- the existence of the primary intent, which would other- 450. wise be furnished by the technical word heirs, in con- nexion with the estate of the ancestor; and thus leave but one intention to be accomplished ; namely, the inten- tion that the heirs should take by purchase. Indication of Though this explanation or indication must be clear 480 non-applica- an( j unequivocal; yet it maybe either, 1. Direct; or, 2. tion of Rule j ndirect Thus cither direct or indirect. , 1 Direct l ' The Rule wil1 not be a PP lied lf there are an y WOrds 4S1 explanation directly and immediately referring to the persons who are or indication to SUC ceed, and clearly and unequivocally explaining that the per- h be persons w h are to ta ke, not simply as heirs sons who are . , « , i i • to succeed, general or special of the ancestor, but as his sons, are not per- daughters, or children; or as his heir apparent, or heir sons who are presum ptive ; or as the person first answering the descrip- simply as tion °^ n * s heir g enera I or special, and the heirs general heirs general or special of such heir. or special. Thus, where an estate was devised to A. and his heirs 482 Lowe v. lawfully to be begotten; that is to say, to the first, second, P i^ri. third, and any other son and sons, successively, as they as stated should be in seniority of age, and priority of birth, the Fearne, 153. eldest, always, and the heirs of his body, to be preferred before the youngest, and the heirs of his body ; it was See ^476. held that A. was tenant for life, with remainder to his first and other sons, successively, in tail. oo i e ^ n( j w j iere a testator devised estates to M. D. for her 483 sweet v. Herring, 1 ^ e > without impeachment of waste, remainder to trustees East, 164, to preserve contingent remainders, and from and after her affirmed by decease, then to the heirs male of the body of the said Lords ^' ■£*' to be begotten, severally, successively, and in re- (y) See Fearne, 188, 194—199. II.12.iv.] OF EXECUTORY INTERESTS. [§ 484—485. [ 239 ] mainder, one after another, as they and every of them printed should be in seniority of age, and priority of birth, the g^'^ 801, elder of such sons, and the heirs male of his body, being Lisle y always preferred before the younger of such son and sons, Gray, 2 Lev. and the heirs male of his and their body and bodies ; and 223 ; Raym. for want of such issue, then to the daughters, &c. ; and in gtated default of such issue, over. Fearne, 151. Again, by a marriage settlement, lands were limited See § 476. to the husband, for life ; remainder to the wife, for life ; North v. remainder to the heirs of the body of the husband-, on the ^ arte c ! 1 ' 6 body of the wife to be begotten, and their heirs ; and if more children than one, equally to be divided among them, to take as tenants in common ; and, for default of such issue, to the wife and her heirs. Sir L. Shad well, 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, notwithstanding 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 consequently the children took, by purchase, estates in common] in fee in the freeholds and copyholds, and the absolute interest in the leaseholds. 484 2. The Rule will not be applied if there are any words 2. Indirect mediately or indirectly, yet unequivocally, denoting, that explanation the persons who are to succeed are individuals 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) z By superadding words of limitation, in fee or in (1) Word tail, to the word heir, when used in the singular num- lieir > Wlt ] 1 ' superadded ber. 0) words f limitation. (z) Archers Case, 1 Co. 66 ; as stated, Fearne, 150. Willis See § 473-4. [M >] II. 12., v.] AN ORIGINAL VIEW [%486-488. It is true, that the word heir, as we have seen, may be used as a nomcn colkctivum ; but sinee the heir may also properly be deemed to be per*ma designata and such ,s f„ act the natural meaning of the word when there are superadded words of limitation to the heirs general or special of such heir ; it is to be presumed that the testator iutended the distinction between the singular and plural number, and did not use the word heir as noma,, collec- tivurn. (2.) Limita- (2) a By expressly limiting to the heir in the singular 486 lion to the number for life, (a) . luil lbr Hfc - In this case, the inheritance is not limited; and there- See § 460. fore the heir could not ta ke simply as heir ; for, an hen- is one upon whom the law casts the inheritance upon the decease of the ancestor. (3) Super- (3) By superadding to the first words of inheritance, 487 a. Id. ,1 words ther words of limitation, which limit an estate in such a of limitation manner as to be descendible exclusively to persons of a theestate'fo different sex ; as, where land is limited to the heirs male, persons of a and their heirs female. different sex. These superadded words clearly show, that the heirs See % 474. ma i e , t he heirs first named, were not intended to take simply as heirs special ; since, if they were to take simply in that character, they, and they alone, would 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 inheri- tance, by the express words, is to go to the heirs male, and their heirs female. (4) Words (4) By prescribing for the heirs general or special, a 488 of distribu- distributive mode of taking, and also superadding words of live modifi- ii m i ta tion : as b to A. for life, remainder to the heirs of cation, with ' superadded his body, as well females as males, as tenants in common, words of li- mitation. g t Anr v. Hiscox, 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. (a) White v. Collins, Com. R. 289 ; as stated, Fearne, 153. II. 12. iv.] OF EXECUTORY INTERESTS. [§ 488a. [ 24 1 ] (or share and share alike, or, without any respect to be had in regard to seniority of age or priority of birth,) and their heirs and assigns for ever, (b) The mere addition of words of distributive modification would be equivocal : for, the grantor or testator mip-ht have erroneously supposed that the heirs might take in that character, and yet in a partitive mode ; but the en- grafting of superadded words of limitation, besides the addition of words of distributive modification, shows clearly that he meant by the first named heirs, the chil- dren of the ancestor, who are sometimes so termed, as having the capacity of becoming heirs of the ancestor, either in succession, if males, or contemporaneously, if females. 488a (5) By prescribing a distributive mode for the heirs (5) Words general or special to take, and also limiting over the pro- ofdistribu- perty in case the heirs, under the referential designation tlve . modl ™~ r ,. luj-ir- , • cation, with or such issue, should die before a certain age. a limitation A testator devised to his daughter 31., and the heirs of over in case her body begotten or to be begotten, as tenants in com- °f the death mon ; but if such issue should die before he, she, or thev ° S i U ° 1SSUC ' ' J under a cer- attained 21, then to his son «/., in fee. And then he tain age. devised another estate to his son, J., and to the heirs of Seek 475. his body begotten or to be begotten ; but, if he died j) oe d. without issue, or such issue all died before he or they Strong v. attained 21, then to 31., and the heirs of her body be- G°ff>H gotten or to be begotten ; such issue, if more than one, ' to take as tenants in common. It was held, that. 31. took for life only, in the first estate, with remainder 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 equi- valent to children of her body ; and there being a parti- cular intent that the issue should take as tenants in (b) Doe v. Laming, 2 Burr. 1100, as stated, Fearne, 154. Crump v. Norwood, stated § 488a. The same point was esta- blished by Doe v. Ironmonger, stated § 387; and Right v. Crcber, 5 Bar. & Cres. 866. R [ 242 ] II. 12. iv.] AN ORIGINAL VIEW R 48Ra. common, which was inconsistent with an estate tail, and no other paramount general intent. Observations This decision was impeached by Lord Redesdale in on /><>« d. c./- mow v . Wright; (c) but His Lordship appears to have S7r ""' / v> been labouring under some confusion of ideas upon the ( " >jl ' subject He remarked, that the provision, in case such issue should 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 Ellen- borough, C. J., observed, that the words, "heirs of the body," to which they referred, meant children ; and con- sequently 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. Crump v. Again ; a testator devised gavelkind land to his nephews, Norwood, 7 w. C, J. C, and R. C, equally between them, during | a ' int ; 3G2 > their respective lives, as tenants in common; and, after 7 * ; i their several and respective decease, he devised the part and share of him or them so dying, unto the heirs lawfully issuing of his and 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 with- out such 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 ne- phews &c. Lord Chief Justice Gibbs, who delivered the judgment of the Court, said, that it was agreed on all hands, that this was a devise to W. C, for life ; and if he (c) 2 Bligh, 51 ; stated § 475. See remarks on this case in Bennett v. Earl of Tankervile, 19 Ves. 170; stated § 475. 11.12. v.] OF EXECUTORY INTERESTS. [§488b,c. [243] had children, then, to them in fee ; if he had no children, then, the estate was to go to J. C. and R. C. (7 Taunt. 370.) That this, therefore, like the case of Doe d. Davy See §128- v. Burnsall, was a contingent remainder with a double 13 °a. aspect (lb. 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 particular estate supporting the remainder was destroyed by the union of the particular See § 766, estate and the reversion. (lb. 371, 373.) 777 > 779 ' 488b (6) d By blending into one, a limitation to the heirs of (6)Byblend- the body of the tenant for life, and a limitation to the in £ a liimta - heirs of the body of another person, where the heirs of h '°£ s of ^ the body of such other person could not take otherwise body of ano- than by purchase; and by superadding words of limitation ther person, to the heirs and assigns of all such heirs of the body ^togwOTds alike, (d) of limitation. SECTION THE FIFTH. General Observation on the Aid afforded, in the Applica- tion of the Ride, by Implication from a Limitation over on Failure of Issue. 488c In the majority of the cases above stated where it was most difficult to apply the Rule, the Courts were aided, in their application of the Rule, by the existence 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 gladly laid hold of the implication of a primary or paramount See § 564a; intention to admit all the descendants generally or of the 564c. 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 the ancestor, upon the single ope- ration of the Rule. But still, it is conceived, that even if, in these cases, there had been no such limitation over, (d) Allgood v. Withers, as stated, Fearne, 120. r2 [ J44 ] II. 12. vi.] AN ORIGINAL VIEW [§ 489-491. , the decision would have been the same. For, though it would then have been less clear that an estate tail should be oiven to the ancestor, yet upon a due consideration of the principles contained in the third section, it might have been seen that the cases above referred to were cases for the application of the Rule. SECTION THE SIXTH. The Application and Non-application of the Rule, in Cases of Trusts Executory. Definition of a An executory trust, as opposed to a trust executed, 489 an executory j s a trust raised by a stipulation or direction, in marriage lrilst - articles, or in a deed or will, to make a conveyance, set- tlement, or assurance, to uses, or upon trusts, which do not appear to be formally and finally declared by the in- strument containing such stipulation or direction. («) I. Rule as to I- bThe Rule is not apP lied in the case of executory 490 executory trusts created by will, if there is a clear indication of an trustscreated intent that i t should not be applied, (b) But, in the absence of any such indication, it will be applied. Ground of c In the case of trusts executed, the limitations may be 491 distinction deemed to receive their intended shape from the words of between j d d ^ . ^ B . the cage of trugts exe- trusts exe- _ ' cutcd and cutory, the party may fairly be understood to leave the trusts exe- limitations to be perfected by the conveyance, settlement, or assurance, stipulated or directed by him, and to have intended that the conveyance, settlement, or assurance, should avoid or correct any relative inconsistencies, or technical obstacles, arising from impropriety of expression, to the apparent general scope of the conveyance, settle- ment, or assurance, so directed by him. (c) (a) See White v. Thornburgh, 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. (c) Fearne, 141, 144. II. 12. vi.] OF EXECUTORY INTERESTS. [§ 492—494. [ 245 ] 492 Hence, in cases of trusts executory, the Court has not Illustrations applied the Rule where the testator d expressed his desire, °' tlie , e ~ . ffoniEr rule. that it should never be in the power of the ancestor to & dock the entail ; (d) or e where his estate for life was without impeachment of waste, and there was a limita- tion to trustees during his life to preserve contingent re- mainders, (e) 493 But the Courts will apply the Rule to trusts executory created by will, even where the word heir is used in the singular, if there are no particular indications of a contrary intent. Thus, where real estate was devised in trust for a son of Blackburne the testator's nephew, at the age of 24; with limitations v - Stables ,1 over, if he had no son ; and with a direction that the exe- cutors 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. 494 II. In the case of executory trusts created by marriage II. Rule as articles, the Court of Chancery will refuse to apply the to trusts exe- Rule, even in the absence of particular indications of an ™l°\h °m"r intent that it should not be applied, except, r j a g e sett i e . 1. In those cases where it is not in the power of either ment, parent, without the other, to bar the issue. with the ex- 2. Where the issue are otherwise effectually provided ceptions for by the articles ; or it appears, from other limitations, thereto - 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 executory, created by a formal settle- ment not expressed or not clearly appearing to be made in pursuance of the articles, is substituted for the articles. (d) Leonard v. Earl of Sussex, 2 Vein. 526, as stated, Fearne, 115. (e) Papillon v. Voice, 2 P. W. 471, as stated, Fearne, 115. [ 24(3 ] II. 12. vi.] AN ORIGINAL VIEW [§495-499. Distinction The reason for not extending the Rule to trusts exe- 495 between cutory, applies with peculiar force to those created by ^utedand marriage articles ; f because marriage articles are consi- ti usts exccu- dered as mere heads of agreement; and a principal inten- tory is more tion j s> to secure an effectual provision for the issue, who strongly arg ^ purc hasers for valuable consideration, and not marked in » , the case of mere volunteers, like devisees. (/) those created Hence, & where it is agreed to limit lands to the hus- 49(3 by marriage y jan( j f or jjf^ rema j nc | er to the heirs of his body, by his _„ . A intended wife, (a) or, h to the wife for life, remainder to the illustrations 'v ' of the second heirs of her body, by her intended husband, (h) or l to the foregoing husband and wife for life, remainder to the heirs of their ru ' e ' bodies; (i) these words are construed to mean first and other sons of the marriage, and the heirs of their bodies. And k where it is agreed to limit lands to the husband 497 for life, remainder to the heirs male of his body, remain- der to the heirs female of his body, the expression heirs female will be taken to denote daughters ; (k) though a 498 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 pecuniary provision is made for the daughters; for, it may extend to the daughters of sons, as well as the daughters of the marriage. (/) And m post-nuptial settlements, and even pre-nuptial 499 settlements, if purporting or appearing to be made in pur- suance of such articles, but conferring an estate tail on the ancestor, will be rectified accordingly, (m) » except (/) Fearne, 112. (g) Trevor v. Trevor, 1 Eq. Ab. 387 ; and 2 Brown's Cases Pari. 122 ; as stated, Fearne, 90—92. (A) Jones v. Langhton, 1 Eq. Ca. Ab. 392, as stated, Fearne, 93. (0 Cusack v. Cusack, 1 Brown's Cases Pari. 470 ; and Nan- dickv Wilkes, 1 Eq. Ab. 393, c. 5 ; 1 Gilb. Eq. Rep. 1 14 ; as stated, Fearne, 93. iq (A) West v. Errissey, 2 P. W. 349, as stated, Fcarne,;i00, W Streatj\eld v. Streatjield, Cas. Temp. Talb. 176, as stated, Fearne, 92. Honor v. Honor, 2 Vein 658 ; 1 P. W. II. 12. vi.] OF EXECUTORY INTERESTS. [§ 500—502. [ 247 ] against a purchaser for valuable consideration without notice, (w) But, as already intimated, 500 1. The Rule takes place in marriage articles, ° where Cases consti- the parent may take an estate tail, without leaving it in tuting the the power of either parent singly, to bar the issue, either ^ ^° t ^" during or after the coverture : as, where the wife alone seC oncl of takes an estate tail ex provisione viri ; in which case, as the foregoing the husband takes no estate tail, he cannot bar the issue, rules - either during the coverture, or afterwards; and the wife, of course, cannot bar it during the coverture without his 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, P where, in the ar- 2. Casescon- ticles, the issue are provided for by another fund or estate, stituting the second 6X- limited in strict settlement, (p) or q in such a way, that cept ; 0IU neither parent could bar it alone ; (q) or, by an express pecuniary provision ; because these circumstances show that the parties themselves knew and intended the dis- tinction. 502 3. And where both articles and settlement are pre- 3. The third vious to marriage, the settlement, unless expressed to be exception, made in pursuance of the articles, will control the articles, and the words will be left to their legal operation ; be- cause it will be considered to be a new agreement respect- ing the terms of the marriage, which the parties are at liberty to make before marriage, though not afterwards. 123 ; as stated, Fearne, 98. West v. Errissey, 2 P. \V. 349, as stated, Fearne, 100. Roberts v. Kingsley, I Ves. Sen. 238, as stated, Fearne, 104, 105; overruling Burton v. Hastings, Gilb. Eq. Rep. 1 13, as stated, Fearne, 99. (n) Fearne, 108, 109; and Warwick v. Warwick, 3 Atk. 291, as there stated. (o) Fearne, 94. And Honor v. Honor, 1 P. W. 123 ; Whate- ley v. Kemp, 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 v. Chambers, Bitz-Gibb. Rep. 127 ; 2 Eq. Ab. 35, c. 4 ; as stated, Fearne, 96. (q) Howell v. Howell, 2 Ves. Sen. 358, as stated, Fearne, 97. F 248 ] II. 13-] AN ORIGINAL VIEW [§ 503-504. CHAPTER THE THIRTEENTH. THIRD EXCEPTION FROM THE FOURTH CLASS OF CONTIN- GENT REMAINDERS, WHERE REAL ESTATE IS DEVISED TO A PERSON AND TO HIS ISSUE, AND THE WORD ISSUE IS CONSTRUED TO BE A WORD OF LIMITATION, BY ANA- LOGY TO THE RULE IN SHELLEY'S CASE, AND UNDER THE CY PRES DOCTRINE. Difficulty of Perhaps there is no one singie point, in the whole range 503 construing f legal learning, involved in more uncertainty and di Hi- devises to or cul than lhat of the construc tion of the word issue in tor a person •'' .,.,,. n i i ■ and Ins issue, express or implied devises to or tor a person and his issue. express or But yet, after a patient comparison of the cases, and a implied. f u n consideration of the distinctions which principle would seem to suggest, the construction of devises to a person and to his issue, may, it is conceived, be reduced to a system harmonising almost all the cases, and commending itself to reason and the analogy of law. Where the !• Where real estate is devised, either directly to, or by 504 word issue is way of executed trust for, a person and his issue, whether a word oi li- j n one ull broken limitation, or in two distinct limitations, nutation, in , . . . the case of the wor d a issue will be construed a word of limitation, (a) direct devises so as to confer on the ancestor an estate tail, if there are and trusts no expressions clearly showing;, that, bv issue, the testator executed • meant children, or particular individuals among the de- 531-2. ' scendants of the ancestor, and no expressions indicative of See & 403 an intent tllat tne issue should take by purchase, or none but what are capable of being resolved into the mere redundant expression of that which would be included in an estate tail in the ancestor. (a) But see Williams v. Jekyl, and Elliott v. Jekyl, 2 Ves. Sen. G81 ; as slated, Fearne, 499 ; which was a case of a lease for lives. II. 13.] OF EXECUTORY INTERESTS. [§505—510. [ 249 ] 505 II. But if there are any expressions clearly showing, Where the that, by issue, the testator meant children, or particular word lssue IS ' . J . . ' , .a word of individuals among his descendants, or any expressions purcnasej indicative of an intent absolutely inconsistent with, or not i n the case included in, an estate tail in the ancestor ; then, the word of direct de- issue will be construed a word of purchase, if the issue . , , . trusts exe- may take as purchasers consistently with the rule against Cl ,t ry. perpetuities ; and the ancestor will take an estate for life, g ee ^493.4, with a contingent or a vested remainder to his issue, as 533a. the case may be. 506 Or, to embrace both rules in one short proposition : — Rule em- Where real estate is devised, either directly to, or by bracing both way of executed trust for, a person and his issue, the word . Pj^ issue will be construed a word of limitation, so as to con- fer an estate tail on the ancestor, unless there are expres- sions unequivocally indicative of a contrary lawful intent. 507 " The word issue," as Mr. Baron Alderson justly re- Different marked, "is used in different senses, either as including senses of the all descendants, or as confined to immediate descendants, or some particular class of descendants living 508 at a given time." And, as Lord Chief Justice Wilmot " Issue" is a observed, in Roe v. Grew, 2 Wils. 322, and Lord Kenyon, word either C. J., in Doe d. Cooper v. Collis, 4 Dura. & E. 294, « in ^ of wT^a- a will, issue is either a word of purchase or of limitation, tioninawill; as will best answer the intention of the devisor, though, but always a in the case of a deed, it is universally a word of pur- word of pur- , ,, chase in a chase. deed 509 b The word issue is a word of purchase in a deed ; (ft) w] jt ig a because, in a deed, no word, except the word heirs, will WO rd of pur- pass an estate of inheritance ; and hence the word issue chase in a cannot there be a word of limitation. It is therefore a ee ' 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 of It is illadapt- meanino-, it has been considered by some, as extremely ec ! ' ora , w 01 nurcnn.sc* unfit for a word of purchase, unless assisted by other expressions. A word of purchase should be determinate ; (b) Wheeler v. Duke, 1 Cromp. & Mees. 210. r 250 ] II. 13-] AN ORIGINAL VIEW [§511-513. whereas the word issue is so far indeterminate in 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 difficult to determine whether all the descendants who are living are to take by purchase, or only the immediate descendants or children : and if all the descendants are so to take ; whether they are to take per stirpes or in capita, (c) But admitting, * according to the opinion of 511 Sir W. Grant, M. R., that issue, imconfmed by any in- dication of intention, includes all descendants, and that a necessary consequence is, that the division must be per capita, among those who are living ; (d) 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 grand- children to take their parent's share only, in the second case? Whether, then, we regard the word issue, unas-512 sisted by other expressions, as indeterminate, or as de- terminate, 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 pointing out all the descendants who are living as pur- chasers per capita ; it mtr*st 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 the 513 adapted for technical word of limitation, yet as soon as it is used in a word of li- a ^\\\ as a wor( j f limitation, and consequently becomes subject to the operation of the rules of descent, it pos- sesses the same aptitude for this purpose, as the technical expression heirs of the body, which it most nearly re- sembles, and for which, in fact, it is used as a synonyme in the Statute De Donis. It is as well adapted, there- (c) See Sir Thomas Plumer's observations in Lyon v. Michell, infra. (d) Leigh v. Norbury , 13 Ves. Jun. 344. 11.13.] OF EXECUTORY INTERESTS. [§514— 516. [251] fore, for a word of limitation, as it is ill adapted for a 514 word of purchase. And for this reason, as well as for And this is the purpose of giving effect, as will presently appear, to onc °* ^ ie the paramount intent of the testator, it is construed a ^ f ore £ ; no . word of limitation, including all the descendants in inf.- lu i e s. nitum, unless there are expressions which indicate, that, by issue, the testator meant children, or particular indi- viduals only among the descendants of the ancestor, or words which unequivocally show that he intended the issue to take by purchase. 515 The testator may manifest this intention by e directing How the tes- that the ancestor shall take for life only ; (e) or that the tator may issue shall take distributively, as tenants in common, or m a ni 'est an otherwise ; or that such issue only should take as should that t}ie wor( j attain a given age ; or by any other unequivocal manifesta- issue should tion of an intent which would be inconsistent with, or not be a word would not be accomplished by giving the ancestor, an ° imitatl0n - estate tail, and admitting the issue by descent from him, See § 530. instead of by purchase. It must be observed, however, that f such manifestation of intent may be counterba- lanced by any other clauses or expressions indicative of an opposite intent, (f) 516 And this brings us to the question, whether he does not It is not ma- show that such was his meaning or intention, when, to nifested by the word -issue, he superadds the words of limitation, to w0 ^ s f ii_ & their heirs, or to the heirs of their bodies. At first sight, mitation, or it would certainly appear that this clearly indicates, that giving the he uses the word issue in the sense of children ; and that ancestor an GSlcttG CX- he intended that they should take by purchase : for, other- p ress i v f or wise, the superadded words would be inoperative. And life, or with- this might appear still clearer, sif the ancestor's estate out impeach- were expressly for life, or without impeachment of waste. But these expressions are not sufficient to convert the word issue into a word of purchase ; (g) or, in other words, (e) Backhouse v. Wells, 1 Eq. Abr. 184, pi. 27, as stated, Fearne, 152. (f) See King v. Burchell, Amb. 379, as stated and com- mented on, Fearne, 163 — 4. (g) See Lord Talbot's observations in Lord Glenorchy v. Bosville, Cas. Temp. Talb. 3. M. 1733, as stated, Fearne, 117, [ 252 ] II- 13.] AN ORIGINAL VIEW [§ 517-520. to prevent it from operating as a word of limitation, and thereby giving the ancestor an estate tail. They do not Unequivocally and,with certainty denote that the testator intended that the ancestor should take a life estate only, and that his issue should take by purchase. All these expressions, though, at first sight, they seem clearly and positively to do this, may, after all, be resolved into the mere redundancies 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. Nor by in- For the same reason, where the devise to the issue is 517 traducing introduced by words of contingency, prima facie miport- words of incr a condition precedent, (See § 13,) but the condition Should would have been necessarily implied, (as, *if he should have been l ea ve any issue); this, of itself, will not create a contin- implied. gent iriterest i n favour of the issue, by purchase, and pre- vent the ancestor from taking an estate tail. (A) Nor by pro- Again; h where the devise to the ancestor is for life, 518 hibiting the a nd he is expressly forbidden to commit waste, (h) even ancestor ^ doeg nofc show with certainty, that the testator in- nS£ng m " tended the ancestor to take for a life estate only, and the waste. issue to take by purchase. For this may only amount to the attempt to create an estate possessing the distinctive essential qualities of an estate tail, as regards the acqui- sition and transmission of the property by and to certain designated objects, and yet deprived of some of the inse- parable incidents of an ordinary estate tail. These indi- It may indeed be highly probable, in these cases, that 519 cations are the intention was, that the ancestor should take a life equivocal. estate on iy 5 an( j 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, because, 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 chapter, 520 groundof the where the devise is to the issue, and not the heirs foregoing generally, or heirs of the bodv, eo nomine, as in the cases in rules; name- ° (h) Shaw v. Weigh, 2 Stra. 798 ; S. C. 1 Eq. Ca. Ab. 184, pi 28. II. 13.] OF EXECUTORY INTERESTS. [§ 521-524. [ 253 ] the preceding chapter, and where there is no devise over ly, two co- to take effect on an indefinite failure of issue, as in the existing yet . . inconsistent cases in the seventeenth chapter, there are two co-existing j lltents t h e yet inconsistent intents; the one of which may be termed one of which the primary or paramount intent, and the other, the must be sa- i • • , a j ii i „ „ c enticed to the secondary or minor intent. And as these, by reason ot h their inconsistency, cannot be both effectuated, the secon- c dary or minor intent is sacrificed, in order to give effect ^ ^9, 564b. to the primary or paramount intent. 521 The primary or paramount intent, in the cases treated Definition of of in this chapter, is, that the ancestor should have the the primary enjoyment of the estate for his life ; and, subject thereto, j nt g nt that the estate should descend to all his descendants, so Compare far as the rules of descent will permit. § 430, 564b. 522 The secondary or minor intent is, to accomplish the Definition of primary or paramount intent in a particular mode ; in the second- such a mode, at least as the devisor supposes, as to secure ^ J 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. 523 This primary or paramount intent, in the cases treated By what the of in the present chapter, is not indeed expressed by any primary or positive declaration, or, as in the cases in the preceding PJJ^jJ 1 ^ chapter, by the use of the technical word heirs ; but yet p 0rtec i or there is " a vehement presumption" of its existence, not evidenced, excluded by any unequivocal expressions to the contrary, Compare nor resting in mere conjecture, but, on the contrary, $432, 564c. Spp 8i oil supported by the prima facie sense of the word issue. 524 For, even in the cases treated of in the present chapter, where the devise is not to the heirs, generally, or heirs of the body, and where there is no devise over to take effect on an indefinite failure of issue, if there is no unequivocal and certain indication of an intent that the ancestor should take a life estate only, and that the issue should take by purchase ; there then exists a vehement presump- tion of an intention, that all the descendants of the an- cestor 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 r 254 ] II. 13-] AN ORIGINAL VIEW [§ 525-526. S m. was in the case of a devise to a person and the heirs of his body. But yet he was evidently the original attract- ing object, " the groundwork of the testator's bounty :" and, in the absence of some apparent grounds of distinc- tion' and preference, all persons answering the description of issue of the ancestor, in 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 de- vised 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 particular indivi- duals only among the descendants of the ancestor, or unequivocally showing that he intended the issue to take by purchase; the word issue includes all the descendants. 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. Observations If, in the cases to which the present chapter relates, 505 showing the the children were to take by purchase, according to the expediency SU pp 0Se( j secondary intent, then, if any child died in the priety of con- lifetime of the testator, leaving issue, that issue would strning the take nothing; for, the issue of the deceased child would, word issue as according; to the hypothesis, only take by descent from a word of h- ... & , / F ' J A . , 3 ... . nutation in r P arent 5 an d> as the parent took nothing, they order to ef- could take nothing by descent from him : whereas, if the fectuate the word issue were a word of limitation, and the ancestor, the >aramount ^ atner or mother of such deceased child, were to take the intent, in estate tail, instead of the children, then the issue of the cases falling deceased child would be capable of taking by descent tir'!!" 11 1 1 ' 16 from the ancestor, the first purchaser of the estate tail, so that the primary intent of the testator would be accom- plished ; for, all the descendants of the ancestor would be admitted, before the estate would revert or £0 over. TT Hence, the law will not restrict the estate of the an- 526 cestor 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 II. 13.] OF EXECUTORY INTERESTS. [§ 527-528. [ 255 ] intent, founded in the most vehement presumption; and, on the other hand, an apparently, and only an appa- rently, certain secondary or minor intent; and hence there is nothing sufficiently express and unequivocal to exclude 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. 527 But, where the testator has expressly and unequivo- Observations cally manifested his intention that the issue should take showing the by purchase, by expressly l restricting the ancestor to an P 10 P ne Y ° J ' . . . . . construing estate for life only ; (i) or by desiring that the issue t h e wor( j should take in a way in which they could not take, issue a word if they came in by descent; then, indeed, k unless these ?' purchase, • v ,- r xi xi i u a i in cases fa 11- mdications of an intent that the issue should take as • w j t ^- purchasers, are counterbalanced by other indications the second of an opposite intent, (k) the word issue is construed rule. a word of purchase ; and the ancestor takes an estate for life, with a contingent remainder to his issue, if unborn, or a vested remainder, if born and ascertained, with a remainder over to the ancestor in tail, in case there is a devise over on an indefinite failure of his issue, as we shall see in the seventeenth chapter. For, in this case, there is no question between a primary and a secondary intent ; for, as the intent that the issue should take by purchase, is not a matter of conjecture, presumption, or construction, however probable, but an intent unequivo- cally expressed, it excludes or negatives the supposition of the existence of any incompatible intent, arising merely s e e §521, from a presumption, however vehement, supported by 523-4. the prima facie meaning of the word issue. 528 There is a less degree of presumption against construing There is less the word issue, a word of purchase, than against constru- P re!5 . u ™P lon ' ' * o against con- ing the words heirs of the body to be words of purchase ; struino- issue and a still less degree of presumption against that con- a word of purchase . than against construing (i) Backhouse v. Wells, 1 Eq. Abr. 184, pi. 27, as stated, Fearne, 152. (£) See King v. Burchell, Amb. 379, as stated and com- mented on, Fearne, 163 — 4. [ 256 ] II. 13.] AN ORIGINAL VIEW [§ 529. heirs a word struction of the word issue, than against the same con- of purchase, strU ction of the word heirs generally : so that, prima facie, especially t]]e word issue is more likely to be a word of purchase than JX geUC " the words heirs of the body ; and still more likely than the word heirs generally. For, we have seen that the heirs o-eneral of the first heir general of the ancestor, may not be the heirs of the ancestor himself: whereas, the issue of the more immediate issue, or, in other words, of the children and 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 also heirs of the body of the ancestor See § 383-4. himself; yet the heirs of the body are not ascertained ; for, nemo est hares viventis ; 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 See ^ 432. devise to a person and the heirs of his body, the ancestor is the sole ascertained object of the testator's bounty ; and all who may answer the description of heirs of his body, have an equal claim, founded entirely on their com- mon 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 person 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 respect 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 improba- bility that the word issue, than that the word heirs, should be used as synonymous with children of the ancestor or his descendants living at a certain time ; and this is especially the case with the word heirs generally, as contradistinguished from heirs of the body. The first of the foregoing rules, which shows in what 529 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 illustra- II. 13.] OF EXECUTORY INTERESTS. [§ 529. [ 257 ] tion of the rule above laid down. In that case, a residue of Lyon v. personal estate was directed by will to be divided equally Michell, 1 among the testator's'sons, share and share alike, as tenants a ' in common, and to the issue of their several and respective bodies ; 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 survivors and survivor, equally, share and share alike, and to the issue of their 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;) See § 593- but, that on the death of one of the sons without issue, 6°°- his share survived to his brothers, by way of executory devise, which was not too remote, because it was to take See § 706, effect, not on an indefinite failure of issue, but on the 714 . failure of issue living at the death of the party. (lb. 470.) His Honor 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 parents, or to enable them to take in remainder. That 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 would be difficult to fix upon the persons who were to take as issue ; that word including grand-children as well as children, and to deter- mine the proportions in which they were to take ; and that if they were to take in remainder, the same difficulty would occur. And where A. devised real estate to his widow, for Tate v. life; with remainder to trustees, to pay costs &c, and to 5 lark \\ Q divide the residue of the rents amongst all his brothers gee £ j g0 and sisters who should be living at the time of the de- Goodright v. cease of his wife, and to their issue male and female, after Wright, 1 the respective deceases of his said brothers and sisters, ^ t | J| ' for ever, to be equally divided between and amongst p earne> je5. them. Lord Langdale, M. R., said, that the word issue Franklin v. is a word of limitation, if the context of the will does not Lay, 6 s [ 258 ] II. 13.] AN ORIGINAL VIEW [§ 530. Mad. 258, afford sufficient reasons to construe it otherwise. That stated, infra. the wor ds 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 indi- cations of intention that the technical words should not have their ordinary effect, he must hold, that the children 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. Observations The words of distribution not only may be applied to on Tatev. the brothers and sisters, but they seem in fact exclusively Clark. tQ belong to them ; for, the word " them," whether ex- plained 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 current 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 ordinarily 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 Compare force of other expressions, unless translated, as it were, | 383 ' 4 ^ 3 ' into a popular word, by such other expressions. The following cases, where the word issue was con- 530 strued a word of purchase, will illustrate the second of the foregoing rules. Hockley v. A testator devised his freehold and leasehold estates VeTul' ' t0 hiS Wife ' f ° r life ' remainder t0 lier son > and his issue lawfully begotten or to be begotten, to be divided among them as he should think fit; and, in case he should die without issue, he directed that the estate should be sold, and the produce divided among certain other persons. The Lord Chancellor held, that there was a contingency See § 128- with a double aspect ; in the one case, to the children of the son ; in the other, to the other persons pointed out. 136. II. 13.] OF EXECUTORY INTERESTS. [§530. [259 ] That it was clear that he did not intend the estate to go to the issue, as heirs in tail : for, he meant that they should take it distributively, and according to propor- tions to be fixed by the son. That it had been often decided, that where there is a gift in that way, the parties must take as purchasers ; for, there is no other way for them to take. That if the gift was not divided 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 in- dependently 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 were objects capable of taking under the second. Again ; a testator devised to his niece, and the issue of Doe d.Davy her body, as tenants in common, if more than one ; but, in ^™ ?/ ' default of such issue, or, being such, if they should all 30> ' die under the age of 21, and without leaving lawful issue, then 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 superadded words, and because the testator con- sidered that the issue of the niece might all die, and yet leave issue. And it was held accordingly ; and that the limitations subsequent to that to the niece, were all con- tingent ; and the particular estate of freehold by which See § 766. 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 contin- gency with a double aspect, like Loddington v. Kime ; See § 128- if the niece had any children, the estate was limited to them in fee ; if she had no children, or if she 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 d. Gil- body, his, her, or their heirs, equally to be divided, if more man J-^j. than one; and if A. should have no issue of his body living at 3l £ s2 [2 60] 11.13.] AN ORIGINAL VIEW [§530. the time of his decease, then over. It was considered, that A took an estate for life; remainder to his unborn 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 decide this point: for, it was held, that quacunque vid data, a recovery suffered by A., before he had any issue, barred the limitations. Merest v. And where a testator devised to the use of his daughter, James, 4 f or ijf e ; and, after her decease, then, to the use of the issue Moore, 327 ; f her body, lawfully begotten; and in default of issue, or & Binl B 127* in case none of such issue lived to attain the age of 21 ' years, 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" on Merest v. Sec, describing a failure of issue by death under 21, as a James. distinct 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 included the failure of issue afterwards described 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. g^ s | iares an( j proportions, and subject to such charges as H. 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, that 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 including all descendants, in which case See ^403-4. it is of course a word of limitation; or, as confined to immediate descendants, or some particular class of de- scendants living at a given time. Probably it will be found most frequently used in the former sense ; and it therefore most frequently has 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 authorities II. 13.] OF EXECUTORY INTERESTS. [§530. [ 261 ] clearly show, that whatever be the prima facie meaning of the word " issue," it will yield to the intention of the testator, to be collected from the will ; and that it requires a much less demonstrative context to show such intention, 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 appa- rent intention of the testator to give H. J. an estate for life, and afterwards to distribute his property in shares amongst the issue, would be frustrated." (lb. 610.) In another case, A. devised residuary freehold, copyhold, Cursham v. and leasehold estate, to his son and four daughters, and Newland, 2 their lawful issue respectively, in tail general, with benefit of survivorship to and amongst their issue respectively, as tenants 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 married ; 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 presumptive share of each child, for his, her, or their maintenance, education, and advancement, and in case his son or daughters, 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 manner 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 common, 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 re- [ 262 ] II. 13.] AN ORIGINAL VIEW K 531. mainders over in the whole of each of such shares respec- tively on failure of all the children of any son or daugh- ter and their issue, to the survivors or survivor of them the testator'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 testators son and daughters took corresponding interests in the leaseholds. Lord Langdale, M. R., confirmed the certifi- cate of the Court of Exchequer, adding, that the word " survivor" was to be construed " other." And where a testator devised to his wife, for life only ; re- Cooper v. mainder to his daughters E. and £., to be equally divided ColUs,A D. between them; viz. the one moiety to E. and her heirs & E. 294. for ever> and the otner m oiety to S. during the term of ^Bacthouse her natural life ; and, after W decease, to the issue of her v. Wells, 1 body lawfully begotten, and their heirs for ever. . ,, tations are limitation to the issue a legal estate ; or, vice versa ; the not ^^ issue will, take by purchase, in the same manner as the legal, or both heirs of the body, under similar circumstances, (n) equitable. 533a VI. ° And if the issue cannot take by purchase, on ac- VI. Where count of the rule against perpetuities, the word issue will ean ^5 1 Jj Ee be construed a word of limitation, in cases where, but for by purchase that rule, it would be construed a word of purchase, ac- on account cording; to the second of the foregoing rules in the present of the rule 6 ° ° against per- chapter. (o) petuities. — . — See § 706. (Z) Hart v. Middlehurst, 3 Atk. 371 ; and Dod v. Dod, Amb. Rep. 274 ; as stated, Fearne, 105 — 6. (m) Lord Glenorchy v. Bosvile, Cas. temp. Talb. 3 M. 1733 ; as stated, Fearne, 116 — 7. (n) See Mogg v. Mogg, 1 Meriv. 654 (as regards the devise of the lower Mark estate), stated § 705. See also § 401, 470. (o) See Mogg v. Mogg, 1 Meriv. 654, stated § 705. [ 264 ] II. 14.] AN ORIGINAL VIEW [§ 534—535. 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. a Where a testator devises an estate tail to a grandchild, 534 by a child not yet born at the testator's death, to take by purchase ; and he appears to have intended that all the issue of such unborn child should take, so far at least as the rules of descent will permit ; the Courts, though ob- liged to sacrifice his minor intent that the grandchild, by such unborn child, should take by ■purchase, because it is See § 706, contrary to the rule against perpetuities, will nevertheless, 710* under the doctrine of approximation, or, as it is commonly See § 436. called, the cy pres doctrine, give effect to his 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 take in the particular mode pointed out by the testator, (a) And, b in 535 the case of Pitt v. Jackson, this construction was adopted, though, in that case, the grandchildren by the daughter were intended to take concurrently, (b) 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 approximation. (a) See Butler's note, Co. Litt. 271 b, (1) VII. 2. See also his note to Fearne, 201, (g) ; and Nichol v. Nichol, 2 W. Blac. 1159, as there cited. (£) 2B. C. C.51. II. 15.] OF EXECUTORY INTERESTS. [§536— 536a. [ 265 ] CHAPTER THE FIFTEENTH. FIFTH EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS, UNDER THE CY PRES DOCTRINE, IN THE CASE OF AN INTENDED PERPETUAL SUCCESSION OF LIFE ESTATES. 536 I. a Where a testator attempts to create a perpetual I. Perpetual succession of life estates, by way of executory trust, in succession of favour of unborn children, and more remote descendants, , w Q ^' the children, when born, will take estates tail, (a) under executory the cypres doctrine or doctrine of approximation, in order trust, in f'a- that the descendants of such unborn children, may take y ou , un ~ i ii-ii i i Dom de- denvatively through such children, as they cannot take scenc j an t s . independently by purchase, on account of the rule against g ee c 70 g perpetuities. 710. 536a II. And where a testator attempts to create a perpetual II. Perpetual succession of life estates in favour of children in esse and succession of more remote descendants, the children will take estates f avour of tail under the cy pres doctrine, in order to effectuate the children in apparent primary or paramount intent of admitting all the esse and more remote descendants to take derivatively through niore r j m ° t te the children, as those among them who were unborn ' ii A i • j j ^ee § 4oo. children of persons not in esse, could not take independ- ently, by purchase, on account of the rule against per- See § 706, petuities. 71 °* A testator devised an estate to trustees, in trust to Wollen v. permit the devisor's six children to receive one sixth part Andrewes, each of the rents, during the terms of their natural lives; ln £' 26, and, after their respective deceases, then, to permit all the children of such of his sons or daughter so dying to (a) See Humberslon v. Humberston, 1 P. W. 332, as stated, Feame, 503. [ 266 ] II. 15-] AN ORIGINAL VIEW [§ 536a. 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 belong- ing to such of his sons or daughter 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 grandchildren ; he is noUillowed so to advance towards the creation of a per- petuity : but the Court must do that which which would approach nearest to his intentions. But there were other words (he added) which placed the matter out of doubt ; namely, the gift over on failure of issue. Observations This decision, in order to be satisfactory, must be re- on Wollen ferred simply to the principle above laid down. For, v. Andrewes. an es t a t e for life may be given to an unborn grandchild by See § 711- a child m esse a t the time; and the gift over on failure 713- of issue was not a gift over on an indefinite failure of See §553-4. . issue. Brooke v. In another case, a testator devised lands for the use of Turner, 2 his three children, for their lives, in equal shares, and to Bing. New ^ j sgue Q f ^ e [ r respective bodies, for their respective life only, in equal shares for ever ; and, in case of the death of any or either of his said children, without issue, then, in trust for the survivors or survivor, in equal 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 trus- tees to preserve contingent remainders ; and the uses ex- II. 15.] OF EXECUTORY INTERESTS. [§ 536b. [ 267 ] pressed in the will, as far as the rules of law would per- 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 a HI. Limited limited number only of life estates in succession, not num °er of warranted by the rule against perpetuities, an estate tail l e es a es ' 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 Seaward v. natural life; and, after him, he gave it to his eldest or any Willock, 5 other son after him, during his natural life ; and, after them, ' to as 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 life only, Lord Ellenborough, C. J., observing, that in Robinson v. Robinson, 1 Burr. 38; Doe v. Applin, 4 T. R. 82 ; Doe d. Dean v. Halley, 8 T. R. 5, expressions were used denoting an intention that the lands should con- tinue in the descendants of the first taker as long as there were any, without specifying or marking what estates such descendants should take. That this case, however, was not a case of a particular and a general intent, but a case of a single intent to create a succession of estates not warranted by law. The restrictive words " down to the tenth generation," Observation plainly distinguish this case from the preceding, and ne- on Seaward gative the existence of any primary or paramount intent V * Wlllock - to admit all the descendants. [ 268 ] II. 16.] AN ORIGINAL VIEW [§ 537. CHAPTER THE SIXTEENTH. SIXTII 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 OF LIMITATION. Where a testator devises in remainder to the unborn 537 child of a prior taker, even though it be by the designation of eldest son, but he appears to have intended that all the issue of the prior taker should inherit, so far as the rules of descent will permit; in such case, to give effect See § 436. 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 persona, as pointing out a particular individual who is to take by way of contingent remainder, but 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 rod v. Gar- of copyhold intermixed with it, and descendible to the avai i R7* y oun S est son J devised the same in the following manner: As to my worldly estate I dispose thereof as follows : I give to my nephew J. 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 G. family, as long as there should be one in being. It was held that J. G.'s son, II. 16.] OF EXECUTORY INTERESTS. [§ 537. [ 269 ] John, took an estate tail ; Lord Tenterden, 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 effectuating the general intent was to hold that John took an estate tail. The 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 Doed. Jones their heirs upon the following trusts: "to permit my daugh- v - Davtes, ter not only to receive the rents and profits to her own use, ^^ j. 4g> or to sell or mortgage any part, if occasion requires ; but 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 maintenance 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 persona, but comprehended a class ; and that the daughter took an estate tail ; because the testator had prefaced the gift by words showing that he contem- plated 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. [ 270 ] II. 17. i»] AN ORIGINAL VIEW [§ 538-539. CHAPTER THE SEVENTEENTH. CASES OF AN ESTATE TAIL, BY IMPLICATION SIMPLY, OR BOTH BY IMPLICATION AND BY ANALOGY TO THE nl VTT RULE IN SHELLEY'S CASE, WITH A VESTED REMAINDER SeeCh.Xll. ^^ ^ real pROpERTY> DIST INGUISHED FROM CASES 6l rq OF a' LIFE ESTATE, AND A CONTINGENT REMAINDER 195 OVER, EITHER WITH OR WITHOUT AN ALTERNATIVE See §128- limitation; or of a life estate, with a limita- 136." TI0 N OVER OF A SPRINGING INTEREST; OR OF A FEE, See §117- WITH A CONDITIONAL LIMITATION OVER. 127a, 148- 158. SECTION THE FIRST. Rules 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. I. In devises I. It will be perceived, from the cases stated in the 538 of real estate, f n wing sections, that, as regards real estate, no dis- the°words ' tmction exists between the words "die without issue," "die without and " die without leaving issue," and "in default," or issue," " die « on failure," and " for want of issue ;" but that all those without leav- io • devises made before the year 1838, are mg issue, r ' • i p • r -i " in default " construed to import of themselves, an indefinite lailure or "on fai- of issue. lure," or "for want of is- jj But in the cage of persona i estate, bequeathed 539 sue, were r . „ all held to before the year 1838, while the words "die without issue, import an in- of themselves, are construed to import an indefinite failure definite f i ssu6j a^g wor( l s " die without leaving issue" are con- issue strued, in their natural and obvious sense, of dying without See $ 563. leaving issue living at the death of the person the failure of II. But in whose issue is spoken of,(a) because, the construing them bequests of personal es- tate, before ( a ) Atkinson v. Hutchinson, 3 P. W. 258 ; Read v. Snell, 2 1838, the II. 17. i.] OF EXECUTORY INTERESTS. [§ 540. [ 271 ] to refer to an indefinite failure of issue, would not benefit words " die the issue, in the case of personal estate, by implication in wlt hout leav- favour of the parent, in the same manner as that con- !"f * SSU< ! r , ' were not so struction would, in the case of real estate. And this dis- construed, tinction between real and personal estate, as to the words though the die without leaving issue, is observed even where both °. P res " kinds of property are limited over in the same words. construed in A testator devised real estate to his eldest son S., and that manner, the heirs of his body ; and, in case of his death, without See § 563. leaving issue of his body, then over. The testator then Foley v. bequeathed the residue of his personal estate to S. ; and Irwin, 2 B. he directed, that in case S. should die without issue of his 435# body, the residue should also go over. Lord Manners, C, held, that the bequest over of the residue was not too remote: for, by the word "also" the testator had made the bequest over of the residue to depend on the same event on which he had before limited his real estates, that is, on the death of the first taker without leaving issue. And hence, on the authority of Forth v. Chapman, the bequest was good. In another case, a testator devised freehold and lease- Radford v. hold estates to A. and B., as tenants in common, and the Radford, 1 heirs of the body and bodies of the said A. and B., as Keen > 486 - tenants in common ; and if either of them should die without leaving issue, then, his share to the use of the survivor, and the heirs of his 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 Lang- dale, M. R., held, that the limitation to the survivor was good, on the authority of Forth v. Chapman; and that, by the word " issue," in the succeeding limitation, the testator intended such issue as were to take under the prior limitation ; and that consequently the limitation over was not too remote. 540 HI. Where property is devised to a person for life, and IN. Where the devise ~~ to the issue Atk. 642 ; and Lampley v. Blower, 3 Atk. 396 ; as stated, Fearne, 473. Goodtitle d. Peake v. Pec/den, 2 D. and E. 720; Porter v. Bradley, 3 D. andE. 143 ; and Roe d. Sheers v. Jef- fery, 7 D. and E. 589 ; as stated, Fearne, 474, note (s). [ 272 ] II. 17. l] AN ORIGINAL VIEW [§ 541-542. male is intro- then to his - issue male and his heirs," and it is introduced duced by by words of contingency referring to the event of there wordsofcon- ^ lt igsue male? » and pr imd facie importing a con- ™f the** dition precedent ; and there is a devise over in fee, in the limitation exactly opposite event of the prior taker dying " without over is an iggue ma]e .» it is evident, from the form and language of tokeXt* the limitations, that the words referring to a failure of intheoppo- issue male, refer to the non-existence of sons or a son; site event of and tnat tne devise to the issue male is a contingent re- there being mainder tQ the eldest or on i y S on in fee; and the devise over is a concurrent contingent remainder, as regards the See § 128- estate of the prior taker, and an alternative limitation, in 136/678- regard to the limitation to the issue, to take effect merely 68 L as°a substitute for that limitation, in the event of no son being born. This rule is deduced from b 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 without issue male, then, to B. and his heirs for ever, (b) IV. Where IV. And c where property is devised to a person for life, 541 the devise is an( j j a f ter his death, to his children, equally, and their dren of the ne ' rs '■> w ^ tn a limitation over in case he should die with- prior taker, out issue ; the words referring to a failure of his issue refer equally, and to the event of his having; no children, so as to introduce * 1 * V* * with a an a l ternative limitation, instead of denoting an indefinite limitation failure of issue, so as to show that, by heirs of the chil- over in case dren, the testator meant heirs of the body, and thus in- he should die troduce a remainder over after an estate tail in the without is- sue, which is children, (c) an alterna- tlve ' V. But d where property is devised to a person for life, 542 V. \\here an d then to his issue and their heirs, and the issue would to the issue ta ^ e ^ v purchase under the second rule in the thirteenth of the prior chapter, if there were no devise over ; and there is a taker, and devise over in case the prior taker should die without their heirs ; (b) 1 Salk. 224 ; 1 Ld. Raym. 203 ; as stated, Fearne, 225. (c) Goodright d. Docking v. Dunham, Dougl. Rep. 251, or 3rd ed. 264, as stated, Fearne, 375. II. 17. i.] OF EXECUTORY INTERESTS. [§543. [273] issue, or all such issue should die without issue; it is with a limi- evident that the words referring to the prior taker's - n cage ^ e dying without issue refer to his dying without children ; should die but that the words providing for the event of all such without is- 11 issue dying without issue, clearly show, that, by heirs of sue ' °. r au jo > j •/ sucii issue the issue, the testator meant heirs of the body; and should die consequently, that the children of the prior taker were without is- intended to take an estate tail, instead of an estate in sue; which fee. (d) So that, in this case, there is a life estate, ^j te ° nat ^ with a contingent remainder over in tail, followed by a ana ; a re _ limitation which is to take effect either as an alterna- mainder tive, if there should be no children, or as a remainder afteran 1 es_ after an estate tail in the children, if there should be ' . . . „ ., r See 6 128, children, and there should afterwards be a failure ot 159 ggg.g^ issue. 543 VI. Words referring to a failure of "such issue," may VI. Words either refer to an indefinite failure of issue in general or * e £ n / n J JJ . a tailure or of issue male or female, or not to an indefinite failure, 5WC ^ j ssue according to the degree of comprehensiveness of the ante- import an cedent expressions, to which the restrictive words " such UK } ennit *;. ,, „ r _ failure or is- issue refer. For, sue, or not, according to 1. If the antecedent expressions, to which the words the degree of " such issue" refer, are sufficiently comprehensive to com P renen - J * siveness or comprise all the issue in general, or all the issue male t jj e ante . or female; then, the words " such issue" refer to an inde- cedent ex- finite failure as much as the word issue when standing pressions. . ■ . A 1 . They do unrestricted. , J , where such expressions 2. But if the antecedent expressions, to which the comprise all words "such issue" refer, comprise some only of the the issue ge- issue in general or of the issue male or female ; then, j^* ^^ the words " such issue" refer only to a failure of the par- ma j e# ticular issue before spoken of. See § 570. So that if land is devised to the sons, daughters, or 2 - The Y do , . , . ■!•'«. i • i • j not » where children, in remainder, after a devise to their parent, and suc j 1 expres . there is a limitation over, in default, or on failure, or for sions com- prise some „,., only of the (d) Doe d. Barnard v. Reason, cited 3 Wils. 244; and { ssue g ene - Fearne, 379. rally or male T or female. [ 274 ] II. 17. i.] AN ORIGINAL VIEW [§ 544. As where the want of such issue, the words " in default of such issue" devise is to &c#j $ not re f er to the issue generally of the prior taker, the *?**> so as to raise an estate tail in him, by implication, but children, solely, of course, to the issue before described, that is, of the prior either solely to the sons, daughters, or children, or to taker " them and their issue before described. Thus, (1) Where (1) f Where the sons, daughters, or children, would 544 they would take the fee, irrespectively of the limitation over in de- take the fee, f au it of such issue, or a limitation of the same import; the limitation h dg do QQt cufc down the fee to an estate ^ but over in ue- . . fault of such refer solely to the sons &c, and the limitation over is an issue, &c, alternative, to take effect in the event of no son, &c, is^an alterna- beJng h&m ( y } (gee ^ 128-136.) ' A testator having a daughter and grand-daughter, both Tfo M a jlquis named i?., devised to his grand-daughter R., for life; of Stafford, remainder to trustees to preserve contingent remainders ; 7 East, 521. remainder to the use of the issue of the body of R., in such parts, shares, and proportions, manner and form, as R. should appoint; and, in default of appointment, to the use of all the children of R. 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 R. to be begotten, and their heirs, as tenants in common ; and, in default of such issue, to the use of his own right heirs. R., the grand-daughter made no appointment. It was held that her only child took an estate in fee ; Lord Ellenbo- rough, C. J., observing, that the words " in default of such issue," referred to the " children" of R., 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 appointment ; and that, in the case of Ives v. Legge, the words were " in default thereof," which might well be referred to the word " heirs ;" and that the case of Lewis d. Ormond v. Warters was not determined on the ground of the words " for want of such issue," (/) Doe d. Comberbachv. Perryn, 3 Durn. & East, 484; as stated, Fearne, 376. II. 17. L] OF EXECUTORY INTERESTS. [§545. [275] being, in their ordinary and proper sense, referable to the word " heirs," but on this, that it was clear the testator meant the first and other sons of his eldest son to take in succession. 545 (2) "Where the sons, daughters, or children, would take (2) Where estates for life, irrespectively of the limitation over " in J he _y would default of such issue," or a limitation of the same import; tateg gucll these words do not raise an estate tail, by implication in limitation favour either of the parent, or of the sons, daughters, or over is a re- children, but refer solely to the sons &c, themselves ; and jjjjjjkj Ca ~ the limitation over is a remainder, capable of taking effect taking effect either as an alternative, in case there should be no son either as an born, or as a remainder, on the decease of the sons &c, as alternative the case may be. (See § 128, 159, 668 — 9.) mainder. A testator devised to his daughter E., for life ; remain- Qoodright d. der to her first and other sons ; and for want of such sons, Lloyd v. to her daughters, equally, &c. ; and, in default of such J° nes > 4 issue of E., then, to his daughter M., for life ; remainder g e ^ U ' 8 g ¥ to her first and other sons ; and, for want of such, to the daughters of M., equally, &c. ; and for want of all such issues, to his own right heirs. E. had a daughter. It was held, that it appeared from the ultimate limitation, that the words " in default of such issue," meant, if there should be no issue, or, being issue, if such issue should fail. In another case, a testator devised to his nephew, T., Foster v. for life ; remainder to trustees &c. ; remainder to all and ^ rd ^ ^ every the son and sons of the body of T., severally and 594 ' successively ; 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. And so where a testator devised to A., for life ; remain- Hay v. Lord der to trustees &c. ; remainder to her first and other sons Coventry, in tail male ; and, in default of such issue, to the use g3 ' of the daughters of A., 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 A. took an estate for life only ; Lord Kenyon, C. J., observing, that t 2 [ 276 ] II. 17. i.] AN ORIGINAL VIEW [§ 546-547. if the word "such" had not been introduced, the Court might perhaps have said, that as issue is " genus generalise simum," it should include all the progeny. But that there the word " such " was relative, and restrained the words which accompanied it. (3) Where (3) e Where the sons, daughters, or children, would take 546 they would estates tail, irrespectively of the limitation over "indefault" take estates ^ ^^ .^^ Qr of a limitation of the same import ; these mitation over words refer to the sons, daughters, or children, and their is a remain- issue before described and inheritable under the entail ; der, capable and the limitation over is a remainder, capable of taking effecf either eff ect either as an alternative, in case there should be no son as an alter- &c. born, or as a remainder, on the death of the sons &c, native or as a an( j t ] ie extinction of issue inheritable under the entail, (g) remainder. A tegtator devised to seven of his sisters, for life, share ^rtoe^n™ and share alike ; and ' afteV the decease of an y ° f them » Error, 8 D. her share to go to her first and other sons in tail ; and, in & E. 112. default of such sons, to and amongst her daughters &c. It was held, upon the whole will, that the daughters took an estate tail, notwithstanding the mere birth of a son. Lewis d. In another case, a testator devised to D. O., his eldest Ormond v. son) f or life ; remainder to trustees to preserve &c. ; re- Waters,6 ma j nc | er to the first and other sons of D. O., and their hast, 336. . , . , heirs; and, for want or such issue, to his second son, J. O., &c, with like 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 succession; the words " such issue," referring to the word " heirs. 11 VII. Where VII. Where the limitation over is on failure of issue 547 refcrrTcTtoT S enerall y> but tne testator, in another passage, refers to the name of tne same persons by the name of children, and thereby children, and explains, that by the word issue, he means children; of Gained to" COurse ifc is the same as if tlie limitation over were ex- mean chil- P ressl Y on fai l ure of children. dren. (g) But see Keene v. Pinnock, cited 3 Durn. & East, 495 ; and 3 Fearne, 379, contra. II. 17. i.] OF EXECUTORY INTERESTS. [§548. [277] A testator gave his bank stock to trustees, in trust for Ellis v. Sel- F. B. for life ; and his funded property to the same trus- h V^ Sl ™ & tees, in trust for W. R. E., for life; and, from and after q\ s0 shef- his decease, then, upon trust (should W. R. E. have Jie Id v. Lord issue of his body lawfully begotten, whether male or fe- Orrery, 3 i i '• „ * e 4,u -4. a i Atk.282;as male) to apply the interest for the maintenance and edu- st te( j cation of such issue, till 21, and then, to transfer the Fearne, 471. capital to them. And he directed the trustees, after the decease of F. B., to pay the dividends of his bank stock to W. R. E., for life; and, from and after his decease, to apply the dividends and capital for the benefit of the children or child of W. R. E., in such manner as he had directed respecting the funded property. And should W. 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 remote, as the testator had himself interpreted issue to mean " child or children." 543 VIII. Where the whole of a fund is given to the same VIII. Where persons, and the limitation over of one moiety is explained, the 'f ue are ■ ■ i so referred to in the manner mentioned in the last proposition, to be in the lim ; ta _ intended to take effect on failure of children, instead of t i nofone an indefinite failure of issue, but the limitation over of moiety, but the other moiety, on failure of issue of the prior taker, jj°| ™ ™ e J l ~ or on his decease without issue, is not so explained ; the anot i, er limitation over of the latter, it seems, will (except in cases moiety. governed by the stat. 1 Vict. c. 26, s. 29) be construed to See § 563. 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 per- Carter v. sonal estate, and the rents of his real and leasehold ^ ental ^ 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 [ 278 ] II- 17- i-] AN ORIGINAL VIEW R 549. issue he oave 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 construction 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 " chil- dren," without an explanatory context, or any reference to a prior limitation. Kirkpatrick In a case, however, where a testator gave to each of his v. Kirk- ^ tw0 illegitimate sons, a sum of money ; but, in the event of V afr *476 1 3 the death of either ° f them ' bef ° re 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 autho- See § 549, rity of Sheppard v. Lessingham, Amb. 122, and other cases, 553. 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 are differently expressed for the sake of brevity. IX. Where IX. Where property is h devised (h) or * bequeathed (i) 549 property (h) Thrustout d. Small v. Denny, 1 Wils. 270; as stated, Fearne, 401, 470. (i) See Kirkpatrick v. Kirkpatrick, 13 Ves. 476; stated § 548. II. 17. k] OF EXECUTORY INTERESTS. [§ 550—552. [ 279 ] to a person indefinitely or otherwise, with a limitation is limited over, if he dies under a certain age without issue; tne j^tifunder words importing a dying without issue, evidently refer a certa j n a g e> to a failure of issue at his death, instead of denoting an without indefinite failure of issue. issue. A testatrix devised to her grandchildren, as tenants in Toovey v. common ; but, in case of the death of either of them, ^^"qq 10 under age, and without leaving issue, then over. It was held that the testatrix could not have contemplated an indefinite failure of issue at any remote period ; because, she only looked to a period while her grandchildren were under age. And that, on the authority of Frog mor ton v. Holyday, 3 Burr. 1618, and Doe v. Cundall, 9 East, 400, the grandchildren took the fee, with executory devises over, if any of them died under 21, and without leav- ing lawful issue living at the time of their respective deaths. 550 X. We have already seen that where a testator devises X. Where a over an estate in case the prior taker should die under a J^^tli certain age, or without issue, or in case he should die w i t } 1 j n a i|_ within any other limited period; or without issue; the mited period, word or is construed and, so that the failure of issue is held or without to be a failure of issue living at his death. (§ 235 — 240.) ig construe( j and. 551 XI. And k the words importing a failure of issue, are xi. Where construed to refer to a failure of issue at death, where a devise over the devise over is in case the prior taker should not live 1S ? n l ie , . . pnoi taker s to attain a certain age, or should live to attain such age, death under and should afterwards die without issue, (k) These words acertainage, do not denote an indefinite failure of issue so as to raise or on his an estate tail by implication ; because, there is no ap- ^h^itii- parent intention that the issue should take in the event out i ssue# of his having issue, but dying under 21. 552 XII. And where property is devised to a person and XII. Where his heirs, with a devise over, if he should die without a devise over leaving issue, or having such issue, such issue should die "™ ® — death with- er) Glover v. Monckton, 3 Bing. 15, as cited, 2 Jarman's Powell on Dev. 573. [ 280 ] H. 17- i-J A N ORIGINAL VIEW [§ 553-555. out leaving under 21, without issue ; it will appear, from the ninth of issue, or hav- the forego i„g rules, that the failure of issue which is in £ such , meant is a failure of issue of the children of the prior L^ue'cWino taker/at the death of such children, underage; so that under a eel- the limitation over, instead of being a remainder after an tain age with- egtate tail> or an executory limitation void for remoteness, out issue. ig oood as a conditiona i limitation, by way of executory f Q e 6 h 148 " 9 ' devise, to take effect, at the furthest, within a life in being and 21 years from the death of the testator. Beachcroft A testator devised an estate to A. and his heirs, &c, for v. Broome, 4 ever; an d, if he should die without having settled or dis- D - &K441 ' posed of it, or without leaving issue of his body, or having such issue, such issue should die under 21 with- out is°sue, and his son W. 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. Where XIII. If personal estate is given to two or more 553 a bequest persons for life, with a limitation over to the survivor or over is to the surv j vorSj (simply, without adding the words, executors, without' administrators, and assigns,) in case of the death of any words of li- or either of such persons without issue ; the presumption, nutation. prima facie, is, that the word survivors is used in the plain and obvious sense, as meaning such of those per- sons as should be living when any of them happened to die, and not as simply equivalent to the word " others ;V and that the testator did 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. (7) XIV. Where XIV. But m where the words executors or administra- 555 ) a bequest t are ac | c | e d to t ] ie wor( j surv i vov that word furnishes over is to . , ».,'«. 11 the survivor no suca presumption that a failure of issue at death was with words contemplated, (m) oflimitation. (/) Ranelagh v. Ranelagh, 2 M. & K. 441. See also Massey v. Hudson, 2 Meriv. 130, stated § 555. Hughes v. Sayer, 1 P. W. 534 ; as stated, Fearne, 472. (m) But see Nichols v. Skinner, Chanc. Prec.528; as stated, Fearne, 472. II. 17. i.] OF EXECUTORY INTERESTS. [§ 556—557. [ 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. ^vT^O, should die without issue, then, the whole of the two lega- cies was to be paid to the survivor, his or her executors, administrators, or assigns. E. P. died without issue, in the testator's lifetime. Sir W. Grant, M. R., held, that the bequest over was too remote; and therefore, that the legacy had lapsed. His Honor observed, that a be- quest to A., after the death of B., did not import that A. must himself live to receive the legacy, but that the interest vested at the death of the testator, and was trans- missible to A. y s representatives, who would take when- ever B. died ; and that, for a similar reason, a bequest to A., in case B. should die without issue, was void for remoteness. That it was otherwise, however, with a be- quest over to the survivor of two persons : for, there, prima 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 presumption. 556 XV. n Where a testator bequeathed personal estate to XV. Where his two daughters, and directed,. that upon the demise of P ropert I 1 j either of them, without issue, the share of her so dying Jt^isters, should go to her sister, without adding the words, and to w ith a limi- her executors, &c. ; the limitation over was construed as tation over, if it were a limitation to the " survivor;" (n) because the JJ^^jJj 1 dying of one without issue, seemed to mean a dying with- out issue) t0 out issue in the lifetime of the other. her sister. 557 XVI. °Where the words introducing a limitation over XVI. Where of personal estate, put the case of the prior taker's dying * IS directed r • ' r . , , l . .. .,. .. that pro- without issue indefinitely, but the testator, in limiting it pertv r s i ia ]i over, adds that then after his (the prior taker's) decease, g0 over after the property shall go over; in such case the failure of the prior • i • takpr's rip- the issue is construed to be a failure of issue at the prior ™£ taker's decease, (o) («) Mackinnon v. Peach, 2 Keen, 555. But see Green v. Bod, Fitzgibb. 68; as stated, Fearne, 481. And see Fearne, 483. (o) Pinbury v. Elkin, 1 P. W. 563 ; as stated, Fearne, 473. [ 282 ] XVII.Where a limitation over is pre- ceded by a bequest to such of the prior taker's issue as he shall appoint to. win. Where all the ulterior limitations are for life only. Barlow v. Salter, 17 Ves. 483. See also Doe d. Jones v. Owens, 1 B. & Ad. 318; stated § 568. And see Fearne, 488- 9. Boehm v. Clarke, 9 Ves. 580. II. 17. L] AN ORIGINAL VIEW [§ 559-560. XVII PAnd it has been held, that where a testator devises to a person for life, and no longer, and after Ins decease to such of that persons issue as he should by will appoint; and in case he should die without issue, then over the failure of issue which is meant, is a failure of issue at his death ; because, it is to be intended such issue as he should or might appoint to. (p) XVIII. Where land is devised to a person and his 559 heirs, with a limitation over on failure of issue, and all the ulterior limitations dependent upon the failure of issue, are for life only ; the failure of issue is construed to mean a failure of issue at the death of the prior taker, the person whose issue is spoken of; because it is not likely, in such case, that the testator was contemplating an inde- finite failure of issue, as that might, and most probably would not happen until very many years after the death of the objects of the ulterior limitations. But it is other- wise where some only of the ulterior limitations are for life. In Barlow v. Salter, Sir W. Grant, M. R., said, " Where nothing but a life interest is given over, the failure of issue must necessarily be intended a failure within the compass of that life. But where the entire interest is given over, the mere circumstance that one taker is confined to a life interest, furnishes no indication of an intention to make the whole bequest depend on the existence of that person at the time when the event happens on which the limitation over is to take effect." And this latter point was decided by the same learned Judge in the case of Boehm v. Clarke. XIX. W. F. 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 W. F. might leave by will to any of the younger branches of the family. It was held, that W. F. took a fee, with an executory devise over, in the event of his dying without leaving any children living at his decease ; because, the testator spoke of the estate going over " on the decease of W. F.;" and it would have been necessary to have given him the 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 Jaw. "2T>*£ . J */»> / &h V / XXI. Where limitations in tail do not extend to all the XXI. Where descendants of a devisee, and a term created for the sole ^™f^ Q i- t * i p i o i reusing icUd- purpose of raising legacies, is limited in default ot such ciesis i imited issue as are included in those limitations, but the legacies on the expi- are not given till a failure of issue generally ; it will be pre- ration of an 562 [284] estate tail, and the lega- cies are held to be given on the same event. Morse v. Lord Or- monde, 1 Russ. 382. II. 17. i.] AN ORIGINAL VIEW [§ 563. sumed, that the legacies were intended to be given on the same event on which the term is to arise ; and that the failure of issue on which the legacies are given, refers to the failure of such issue as are inheritable under the prior limitations. A testatrix, having an absolute power of appointment over the reversion in fee simple of certain lands, devised the reversion to A. for life; remainder to ^..'s first and other sons, in tail male; remainder to ASs daughter, in tail o-eneral ; with cross remainders between them in tail ; with remainder, in default of all such issue, to trustees, for the term of 1000 years, to raise and pay such legacies as she should thereafter give. And, in a subsequent part of the will, she bequeathed, from and after the decease and failure of issue of A., certain legacies, the better to secure the payment of which, she charged them on the reversion she had before devised. 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 legacies were not given till after " the failure of issue of A." generally ; and, as there might be female issue of the sons, the bequest might not be capable of taking effect 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 A., unsupported by any express limitations co-extensive with the existence of the issue of A., and consequently seemed to be void, as being too remote. But Sir John Leach, V. C, held, that the legacies were well charged. And this decision w r as af- firmed by Lord Eldon. XXII. Enactment of stat. 1 Vict. c. 26, s. 29. XXII. Certain words which, in a will made before 563 1838, imported, or were construed to import, an indefinite failure of issue, will now, when they occur in a will made since the beginning of that year, be construed to mean a failure of issue at or before the death of the person whose issue is referred 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 II. 17.ii.] OF EXECUTORY INTERESTS. [§ 564— 564b. [ 285 ] without leaving issue,' or ' have no issue,' or any other 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 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 afore- said 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 Issue. 564 Where a testator, after devising real estate to one Rule of con- person, without any express devise to the issue of such stluctl0n * person, makes a devise over to another on an indefinite 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. 564a This construction is adopted in order to effectuate the The principle indirectly declared intent that the estate should not go °tthis con- over till an indefinite failure of issue male or female, or issue in general, of the prior taker. 564b For, as in the cases comprised in the thirteenth chapter, Two co-ex- so also in those falling within the scope of the present 'sting yet in- chapter, where there is a limitation over on an indefinite ? onsl f en r ' ; intents ; failure of the issue of a prior taker, there are generally two namely the co-existing yet inconsistent intents, of the same kind as primary or those which exist in the cases treated of in the thirteenth paramount chapter ; the one of which, namely, the secondary or minor thesec'ondarv [ 286 ] II. 17. ii.] AN ORIGINAL VIEW [§ 564c-568. or minor in- intent, is sacrificed, in order to give effect to the other, tent, which namely, the primary or paramount intent. (See § 520 — 2.) is sacrificed Thjs r j mar y or paramount intent, in the cases treated 564c toUlolormer ' f in the present chapter, is expressed or necessarily maryor e pa-~ implied in the limitation over on an indefinite failure of remount in- issue of the prior taker, which amounts to a declaration tent is mani- f an m t en t that the estate should not go over from the S stCtl ' m-ior taker or takers, till an indefinite failure of issue of Compare r" ul *" . . . , § 5-23-4. the person whose failure of issue is spoken .ot. This con- This construction is adopted, as well where the prior 564d struction is limitation is in words which would pass a fee, as where adopted -^ Jg mc j emi j te or expressly for life. For, where the prior 565 where the , . . . , r L j i • i ■ •; • i prior limita- limitation is to the ancestor and his heirs, it is only neces- tion is in fee, sary to interpret heirs to mean heirs of the body, disre- or indefinite, p ait h n o- the word assigns a~ mere surplusage, where it is added. Where the prior limitation is indefinite, the 566 raising an estate tail by implication, virtually supplies the See 5) 404. want of words of limitation, in the devise to the ancestor. And where the prior limitation is expressly for life, the 567 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 paramount intent of the testator. And, in all these cases, it gives effect to 568 See § 196-9. the general rule, that a limitation shall, if possible, be construed as a remainder, rather than as an executory devise. And it prevents the intention of the testator from See§ 117- being entirely frustrated: for, if the limitation over were ,i a !,i construed an executory devise, whether it were a limita- 158, 706, ; . J ' 714> tion ot a springing interest, or a conditional limitation, it would be void for remoteness: and the maxim is, Ut magis valeat quam pereat. ChapmaniL A testator devised the rents and profits of his freehold Sdwte V 9 &nd leasehold estate t0 nis executors, until his daughters Chitty, 643. snoulcl attain 21, in trust to improve the same, for the advantage and education of his daughters ; and, as to the freehold 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: pro- vided that if both his daughters should die without lawful issue, then, over. It was held that the daughters took an estate tail. 11.17. ii.] OF EXECUTORY INTERESTS. [§ 568. [ 287 ] And where a testator devised to his nephew ; but, if he Denn d. should die without male heir, then, over; it was held an Slater v. .... . .... klater, 5 D. estate tail in the nephew by implication. & E> ^5. Again ; a testator, after confirming his wife's settlement Doe ^ Ng _ of part of his estate, devised the rest to his daughter and v m e v> ffi_ only child, and her heirs; and he devised that part vers, 7 settled on his wife, to his daughter, after the death of his D - &E - 276 - wife ; and, in case his daughter should die without issue, he gave 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, /., Doe d. Ellis his heirs and assigns for ever; but, in case /. should die ^ * s ' without issue, then, he devised the same to the child with which his wife was enceinte, his or her heirs and assigns See also Roe for ever. It was argued that 2". took a fee, determinable V g m J! t *" in the event of his dying without leaving issue, and the stated,' word " assigns,'''' and the word " then," were relied upon Fearne, 473, in support of that construction. But the Court held, that note <»• 1. took an estate tail, according to Brice v. Smith, 1 Willes, and the cases there cited. So where a testator devised to his son and his right Tenmj d. d t t • 1 Agar v. heirs for ever, a certain house &c, and also nine closes ; ^ garj 12 which closes, he thereby gave to his son and his heirs for East, 252. ever, upon this condition only, that he should pay to his daughter 12Z. 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 effect as a remainder, it shall not be taken to be an executory devise. And where a testator devised to his brother H. S., all Romilly v. his real estates, subject to the several devises in his will Taunt' 263. afterwards mentioned. The testator then devised to his brother's son, H. S., the younger, a certain estate ; add- ing, at the conclusion of his will, that in case H. S. and [ 288 ] II. 1- ii.] AN ORIGINAL VIEW [§ 568. H. S the younger should happen to die, having no issue of' either of their bodies, then, he devised all his real estate to 7. C. and his heirs. It was held, that the last clause cut down the estates of H. S. and H. S. the younger to estates tail ; and that H. S. the younger took an estate tail, with remainder in tail to H. S., remainder in fee to I. C. Dansey v. So where a testator devised to his eldest son, R. £>., Griffiths, 4 an a his heirs for ever, all his manors &c, and personal Mau. & Sel. estate butj jf R j) s h ou ld die, and leave no issue, then, 61 ' he gave all his aforesaid manors and estates unto his son, W. 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, I. D.; and, in failure of issue from him, &c. The Court of King's Bench certified, that R. D. took an estate tail. Doe d. Jones And where a testator gave his real estate to his wife, v. Owens, 1 f or ner Jif e ; an d then, to be relinquished to his son B. 3- & Ad ' at her decease. And he directed, that if B. should die without issue, that his real estate should go equally be- tween his daughters, M. and S., for the life of 31., 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. within twelve months after his mother's decease. It was held, that B. took an estate tail, with a See § 559. remainder over. Bailey, J., observing, that if life estates only had been devised over, Roe v. Jeffery might have applied, and the terms "die without issue," might have been confined to a failure of issue at B.'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 inheritance was given to *S., and would have passed, though M. had died in the lifetime of B. Doe d. Ca- And so where a testator devised lands to trustees and p an J'n ^ ieu ' h eirs > m trust to a pply the rents to the maintenance Ad. & El. °^ I> unt ^ sne should attain the age of 25, and afterwards 636. in trust for I. and her heirs ; but, in case it should happen that I. should depart this life without leaving issue, then, he devised the lands to W. and D. in fee. There were divers trusts which rendered it necessary that the trus- tees should take the legal estate in fee. And the Court II. 17. Hi.] OF EXECUTORY INTERESTS. [§ 569. [ 289 ] held, that /., who died under 25, after suffering a recovery, in which the trustees did not join, took a vested equitable estate tail ; and that W. and D. took equitable remain- ders ; and that such equitable remainders were barred by the equitable recovery suffered by I. And again, where a testator devised lands to his son, J., Machell v. for life; but if J", should die without issue, not leaving ™^ d ™9> 8 any children, then, he directed that the lands should be sold, and the proceeds divided amongst his three other sons; and if any of them should die before J., then, that their shares should be divided among their children. Sir L. Shadwell, V. C, held, that J. took an estate tail, ob- serving, that it is a settled point, that whether an estate be given in fee, or for life, or generally without any par- ticular limit as to its duration, 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, where there is an Express Devise to his Issue, eo nomine. 569 I. Where there is an express devise to the issue I. Where in general, or issue male or female, eo nomine, inter- J h £ ancestor i i j. J j.1 tclK6S 3.11 GS" posed between the prior devise to the ancestor and the tate ta jj j n subsequent devise over on an indefinite failure of his possession, issue in general or issue of the given description ; and the word issue, in the intermediate devise, would, ac- cording 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 con- struction ; 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 Slielleijs Case, and under the cy pres doctrine, as by implication arising from the devise over on an indefinite failure of his issue. A testatrix devised an estate to her grandson and the Franklin v. issue of his body, and to the heirs of such issue for ever; ff2f' " Mac1, J 258. u [290] II. 17. Hi.] AN ORIGINAL VIEW [§ 570. but if her said grandson should die without leaving any issue of his body, then, she devised the estate to her nephew and his heirs for ever. The grandson insisted that he took an estate tail; but the defendant contended, that the words " leaving issue," were to be construed as leaving issue living at his death. Sir John Leach, V. C, See * 538- held, that " leaving issue," as applied to real estate, im- ported a general failure of issue, and brought the case within the authorities cited by the plaintiff, and that the whole will might be reconciled by construing the words " heirs of such issue," as heirs of the body. Murthwaite In another case, a testator devised to his three nieces, v. Barnard, e q Ua ily to be divided between them, share and share Bin rOC 623 alike ' for the term ° f thelr res P ective UveS ' and ' after S.'ctnom'. their decease, he desired, that the lawful issue of them Murthwaite an d each of them should have his or her mother's share v. Jenkin- fm , life? - m like manner ; and that, if either of his nieces &Cres B 359. snould die in the lifetime of the others or other of them ' ' without issue, that her share should be shared by the sur- vivors, for their lives, and afterwards by their issue. And, if all his 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 assigns. 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. JB., son of one of the nieces, 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- In the case supposed in the preceding rule, it is imma- 570 tenal, in the terial whether the expression, in the devise over, is " is- II. 17. iii.] OF EXECUTORY INTERESTS. [§ 570. [ 291 ] sue," indefinitely, or " such issue ;" because the word supposed issue in the intermediate devise, in the supposed case, case, whe- being construed a word of limitation, and therefore em- p ress i on m bracing all the descendants generally, or of the given die devise description, in infinitum, a failure of " such issue," is tan- over is " is- tamount to a failure of " issue " indefinitely. (See § 543.) f( ^ . A testator devised to JY. W., for life, without impeach- sue> » ment of waste ; and, after his decease, to the issue male j) eyin d. of his body lawfully begotten, and to the heirs and as- Webb v. signs of such issue male for ever ; and, for default of such ^ ucke ^' 5 issue male, then over. N. W. suffered a recovery before Eagt '299 he had any issue. It was held, thatiV. W. took an estate tail. Lord Kenyon, C. J., observed, that nothing could be clearer than that the first intention of the devisor, was, to give only a life estate to N. W., but that his general intention was, that the male descendants of JV. W. 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. W. were extinct ; and that general intention would be best answered by deciding, that N. W. took an estate tail. For, if he took an estate for life, it would be difficult to extend the estate to the issue, to more that 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 ; because, if it descended to that one son, and he had died without making any disposition of it, it would have gone to the other grandsons of the devisor, the persons inter- ested 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 de- visor's intention ; because there were no words to create cross remainders between them. The Court, however, held, that even if N. W. were tenant for life, with a con- tingent 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 reco- very which destroyed the particular estate. Where a testator devised to A. for life, without im- Frank v. peachment of waste, and with a power of jointuring ; ®[ ovin > 3 , - , a- ,• a .1 .1 r a East, 548. and, from and after his decease, then, to the use ot the gee ^ g0 Roe u2 [ 292 ] II. 17. iii.] AN ORIGINAL VIEW [§ 571-572. d. Dodson issue male of his body and their heirs; and in default of v. Grew, 2 guch issuG) over . It was held, that A. took an estate tail, ^stated 2 ' according to Roe v. Grew, 2 WUs. 322. Fearne! 182; Another case may be noticed in this place, in which a and King v.' testator devised to his wife, for life ; and after her decease, Burchell, that the estate snou id be settled by able counsel, and go agitated 9 '' to and amongst his grandchildren of the male kind, and and com- their issue in tail male ; and, for want of such issue, merited on, U p n his female grandchildren. Sir Thomas Plumer, Fearne, 363- y q ^ h ^ QQ the aut hority of Blackburn v. Stables, 4 M and Dodson v. Grew, 2 Wils. 322, that a grandchild of Bousfield^' the testator took an estate tail male ; though His Honor 2 Mad. 166. admitted, that this was an executory trust; and that the Court, in executing such a trust, does not adhere to the formal words used by the testator, but will modify them so as to effectuate the real intent. II. Where II. Where there is an express devise to the issue in 571 (upon prin- genera^ or i ssue male or female, eo nomine, indefinitely, castor would" or for life > or in tail > intel P osed between the prior devise take an es- to the ancestor and the subsequent devise over on an inde- tate tail in finite failure of his issue in general or issue of the given remainder. descr j pt i on . an d the word issue, in the intermediate devise, would, according to the second rule in the thir- teenth chapter, be construed a word of purchase, if there were no such devise over ; the better opinion upon prin- ciple, 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 the object of the interme- See ^ 583. diate devise is to create a perpetual succession of life estates ; but yet, that it raises an estate tail, by implica- tion, in favour of the ancestor, to take effect in remainder after the intermediate estate conferred upon the issue. Absurdity of Such would seem to be the better opinion upon prin- 572 contrary ciple ; because it would appear perfectly absurd to hold doctrine. t ^ at ^ action of the devise over, by the mere force of implication, has the effect of annihilating an express in- termediate devise, which, but for such devise over, would confer a distinct estate on the issue, and to maintain that II.17.iii.] OF EXECUTORY INTERESTS. [§573. [293] the devise over has such an effect, although, by a dif- ferent construction adopted in analogous cases, full effect could be given to it in another way, which would com- pletely accomplish the primary or paramount intent, See § 564a- denoted by it, of admitting all the issue, and yet without 564c. sacrificing the secondary or minor intent, of giving the immediate issue an estate by purchase. 573 There are indeed decisions which support this doctrine Observations to some extent ; but probably these cases would have on tlie f" act been differently decided, if the construction above men- jj d ^ s tioned, and the decisions bearing by analogy upon the j n SU pp 0r t point, had been suggested and sufficiently urged upon of the con- the Court. And experience has shown, as a learned tr ? r y doc " trine author observes with respect to another question, a " that no rule of construction, however sanctioned by repeated adoption, is secure of permanence, unless founded in prin- ciple." («) In one of these cases, a testator devised to W. D., to Doe d. hold to him during his natural life; and, after his de- Blanc/ford cease, to and amongst his issue ; and in default of issue, ^ & jj. 82 over. It was held, in order to effectuate the general intent, that W. D. took an estate tail. This case has and observa- been sometimes considered as showing that words of dis- tions there- on tributive modification do not prevent the parent from taking an estate tail in possession, but may be rejected as repugnant. And in support of this view, it may indeed be urged, that Buller, J., remarked, that that construc- tion rendered it necessary to reject the words, " and amongst." But, setting aside the probability that these words were merely added by mistake, currente calamo, 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 Doe d. Cock R. d for the term only of his natural life; and, after his v. Cooper, 1 • East ^'29 decease, to the lawful issue of R. C, as tenants in com- mon ; but, in case R. C. should die without leaving lawful issue, then and in such case, after his decease, he gave the (a) 2 Jarman's Powell on Devises, 738. [ 294 ] II. 17. in.] AN ORIGINAL VIEW [§ 573. same to E. H. It was held, on the authority of Robinson v Robinson,! Burr.38; Roed.Dodsonv. Greiv, 2 Wite. 323; and Doe d. Candler v. Smith,7T.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 Observations went over. In the argument, no notice seems to have on Doe d. been taken of Hhe words, "then and in such case, after Cock v. | lig decease;' (£>) taken in connexion with the distinction Cooper. whic] ^ jn < ; ages of persom i es tate ; is drawn between the 538-t 557 ' words ' " without issue '" and the words " without leavin 9 issue," which are the words used in this case. These several expressions seem clearly to show, that the limitation over to E. H. was to take effect, not on an indefinite failure of issue of R. 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 descend- ants 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, followed by a devise to his issue, as purchasers, which, as being indefinite, only gave them a life estate ; what is the nature of the See § 148- limitation to E. H. ? It is not a conditional limitation ; 158. because, it was not to cut short the preceding interest of the issue of R. C, before it would expire according to the terms of its original limitation. c It would clearly seem to See § 128- be an alternative limitation : for, it would appear to be a de- 136. vise of an estate for life to R. C, followed by two concur- rent contingent remainders ; namely, if R. C. should leave any issue, then, to such issue as tenants in common; but if he should die without leaving any issue, then, to E. H.(c) But whatever may have been the nature of the limitation to E. H., 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 R. C. took an estate tail by implication : for surely it must appear that the alleged ground for such (6) See Doe d. King v. Frost, as stated, § 561. (c) See Hockley v. Mawhey, 1 Ves. 142 ; Doe d. Davy v. Bumsall, 6 D. & E. 30 ; and Doe d. Gilman v. Elvey, 4 East, 313; statecK 530. II. 17.iv.] OF EXECUTORY INTERESTS. [§574—576. [ 295 ] implication did not exist ; or, even admitting that the words did denote an indefinite failure of issue, and con- sequently that there was ground for the implication of an estate tail, yet, that a distinct effect should have been given to the devise to the issue as tenants in common, and an estate tail raised by implication in B. C, in remainder. However, the same construction was adopted, even Ward v. where a testator devised a messuage to his son, during the ^ eml ' 1 _ i i iii You. & Jer. term of his natural life ; and, in case he should have issue, 512 it was his will that they should jointly inherit the same after his decease. And all the residue of his property, real and personal, 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 them- selves, 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 ab- solute interest in the personalty. This is a strong deci- Observation sion, as the devise to the issue was introduced by words °* Ward v. of contingency prima facie importing a condition prece- dent, though indeed it was a condition which would have See § 13. been necessarily implied. 574- III. Of course, if the issue were held to take in fee by HI. Where 5 purchase, no estate tail could be raised by implication in j^ 6 ^ 1 ^ remainder. (See § 159, 165.) raised in re- mainder. 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. 576 I. Where there is an express devise interposed between j # where the prior devise to the ancestor and the limitation over on (upon prm- an indefinite failure of his issue, and that intermediate J^Jj^JJ" devise is not to his issue, eo nomine, but to his sons, daugh- ta ^ e an es _ ters, or children, indefinitely, or for life, or in tail ; the tate tail in sounder construction, upon principle, if not upon autho- remainder, rity, would seem to be, that the words, introducing the [ 296 ] II. 17. iv.] AN ORIGINAL VIEW [§ 577. 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 See § 583. object of the intermediate devise is to create a perpetual succession of life estates. Rules de- A learned and talented writer on the construction of 577 ducedby Mr. devises , (d) has submitted the following propositions, as Jarman from tt , . , deducible" from the cases :— the cases. ' ^ " 1st. That the words, in default of issue, or words of a similar import, following a devise to children, in tail or in fee, mean in default of children, (e) This is free from all /JToubt. U?y " 2dly. That these words, following a devise to all the sons successively in tail male, and daughters concurrently ,„ 7. cr in tail general, are also to be construed as importing suck '. - issue, even in the case of an executory trust, (f) -' ; n y - "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 objects ; (g) but not, it seems, where such sons take for life only; in which case, they will raise an implied estate tail in the parent, (h) " 4thly. 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, (i) " 5thly. That in the case of executory trusts, words (d) Mr. Jarman, in his Treatise subjoined to Powell on De- vises, 551. (e) Goodright v. Dunham, Doug. 764. See also Ginger d. White v. White, Willes, 348. (/) Blackborn v. Edgleij, 1 P. W. 600 ; Morse v. Marquess of Ormonde, 5 Mad. 99. (g) Bamfield v. Popham, 1 P. W. 54, 760 ; 1 Eq. Ca. Ab. 183; 2 Vera. 427,449. (A) Wight v. Leigh, 15 Ves. 464. 0) Langley v. Baldwin, 1 P. W. 759 ; 1 Eq. Ca. Ab. 185, pi. 29; 1 Ves. Sen. 26, S.C. ; Attorney-General v. Sutton, 1 P. W. 754 ; S. C. in Dom. Proc. 3 B. P. C. Toml. Ed. 75. II. 17. iv.] OF EXECUTORY INTERESTS. [§ 578. [ 297 ] importing a dying without issue, following a devise to the first 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, (k) 11 6thly. 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 ; (Z) 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 Now admitting this to be the result of the then existing Observations authorities, it is conceived that it would be very unsatis- on these factory for the law to remain in such a state. In those cases where the words "in default of issue," &c, are, according to the first and second of these rules, and the first part of the third rule, not held to raise an estate tail by implication in the ancestor, but are considered as refe- rential 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 foundation is there for this distinction ? What is it that authorises the Court to sup- ply 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 before described, in the cases falling under the first 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 degrees of (k) Allanson v. Clitherow, 1 Ves. Sen. 24. (/) Stanley v. Lennard, 1 Ed. 87 ; Doe d. Bean v. Halley, 8 T. R. 5. [ 298 ] II. 17. iv.] AN ORIGINAL VIEW [§ 579. Parr v. Sivindels, 4 Russ. 283. Franks v. Price, 5 Bing. New Cases, 87. probability, the highest of which comes far short of moral certainty, necessary implication, or violent presumption. Nor is it the most probable of two or more conjectures, founded in some measure upon the words of the instru- ment, and made in a case where some conjecture must be resorted to, in order to give effect at all to the limitations, ut res magis valeat quam pereat. On the contrary, it is a conjecture which controls and restricts the words them- selves, though the limitations would be capable of taking effect without any such restriction. The learned author above referred to, whose work 579 was published in the year 1827, before he proceeds to submit the foregoing rules, observes, that "in the pre- sent 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. But the fact is, that subsequent decisions have either overruled those cases which construe the words " in default of issue, 11 &c, as merely referential ; or have completely unsettled the point. A testator devised real estate to A., for life ; and, after her decease, unto and equally between and among the children of A., and, in case she should die without leaving any lawful issue, then, over. Sir John Leach, M. R., held that A. took an estate for life; with remainder to her children, as tenants in common, for life ; remainder, by implication, to A. in tail. And where a testator devised to M. H. and N. H., in re- mainder, during the term of their natural lives, share and share alike ; and, in case either should die without leaving issue male of his body, then, to the survivor, during the term of his natural life ; and if M. H. should (after the deaths of the prior takers) die before N. H., leaving issue male of his body; then one moiety of the estate to the first and other sons of M. H., successively, in tail male ; and, in default of such issue, to JV. H. for the term of his natural life, and, after his decease, to his first and other sons, successively, in tail male ; with similar limi- II.17.iv.] OF EXECUTORY INTERESTS. [§580. [299] tations of N. H.'s moiety, in case he should die before M. H. ; and, in case M. H. and N. H. 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 M. H. and N. H., be the testator's right heir or heirs. It was argued, that, in the ultimate limitation, an indefinite failure of issue was meaut ; and, that therefore N. H., in whose lifetime M. H. died without issue, took an estate tail in the 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 on Franks j "11 V PviCG failure of issue ; but then, it appears to be postponed till an indefinite failure of issue of the sons, and not of M. H. and N. H. themselves ; and consequently, the limitation over merely corresponds with, and is referential to, the estate tail expressly given to the sons. For, when it provides for the case of M. H. and N. H. 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 limitation over, providing for the case of such issue male dying without leaving any issue male. The Court, however, appears to have considered the limitation over as amounting to a limitation over on an indefinite failure of issue male of M. H. and N. H. them- selves ; and, as such, sufficient to raise an estate tail in N. H. by implication, and not merely as referential to the estates tail given to the sons. And hence, whatever may be its authority, it is opposed to the third of the See § 557. foregoing propositions deduced from the cases by the learned author above referred to. 580 Looking, then, to these two decisions, and to the Suggested preceding°remarks upon the previous cases, it would seem ^^^ B that the authorities upon the point must now be regarded cases and re _ as conflicting; and that, in future, the Courts ought to marks, adopt that construction which principle alone would appear to suggest. And that construction, it is humbly sub- [ 300 ] II. 17. iv.] AN ORIGINAL VIEW [§ 581-583. mitted, is the one which, in accordance with the re- commendation of Lord Redesdale, does " not rely on petty distinctions which only mislead parties, but looks to the words used in the will ;" (m) that construction, which, instead of allowing the estate to go over before a failure of issue, contrary 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 his sons, daughters, or children, an estate by purchase, but raises an estate tail by impli- cation 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) of Lord Chief b een extremely fearful of adopting, as a system, a theory Baron Rich- of wnat n be ^ SU p pose d intention of the testator, ards on the •; \ r . . - intention of I arn perfectly persuaded, that that is not the just mode testators. of collecting the intention of the testator. We must collect it from the paper itself." (n) II. Where H« Of course ° if the sons, daughters, or children were 581 there can be held to take estates in fee simple, no such estate tail could no estate tail j-, e ra i se d by implication in remainder. (See § 159, 165.) in remainder. A , . r ~, . , . ,, , rri _ And n, alter a prior devise to the ancestor, the property 582 is devised to his unborn sons, daughters, or children, and their heirs, the w r ords " in default of issue" &c. of the ancestor will 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, (o) as they would where the property is devised to the ancestor and his heirs, with a devise over in default of issue, without any intermediate devise to the sons, daughters, or children ; in which case, See § 564, as we have already seen, it is established that the word 565. heirs means heirs of the body. III. Where III. If, as already intimated, the object of the inter- 583 the ancestor (m) In Jessun v. Wright, 2 Bligh, 51. (ft) Richards, C. B., in Driver v. Frank, 8 Taunt. 484. (o) Goodright d. Docking v. Dunham, Dougl. Rep. 251, or 3d ed. 264; as stated, Fearne, 375. II. 17. v.] OF EXECUTORY INTERESTS. [§584. [ 301 ] mediate devise is to create a perpetual succession of life will take an estates, it will be disregarded, and the ancestor will take estate tai1 m & . possession. an estate tail in possession. A testator directed his trustees to pay and divide the Mortimer IT/" / rents, and profits, and interest of his real and personal^* es ' r 2 Sim. 2/4. estate to and amongst A., B., C, &c, [who were the ille- gitimate children of M. D.,] for their lives ; and, after their decease, to their respective children, for life; and so to be continued, per stirpes, from issue to issue, for life. But, if any of the said children of M. D., or their respec- tive 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 brothers or sisters, ac- cording to the share their parent would have had ; and, for default of any such issue descending from the said children of M. D., then over. The Vice-Chancellor ob- served, that besides the intention to give life estates, there was an intention that the estates should not go over until there was a general failure of issue ; and that that cir- cumstance, according to Seaward v. Willoch, and Jessonv. Wright, compelled him to hold that the children took estates tail in the real estates. The decree also declared that they had cross remainders in tail in the real estate ; See § 593, and that they took the leaseholds and personal estate o93a - absolutely. SECTION THE FIFTH. Cases of a Limitation over on a Failure of Children only of the Prior Taker, or on a Failure of Issue within a certain Time. 584 Where the limitation over is to take effect, not on an indefinite failure of issue of the prior taker, but on a fail- ure 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 have a life estate, with a contingent remainder over; or a life estate, See § 117- with a limitation over of a springing interest; or a fee, j27a, 148- with a conditional limitation over, as the case may be. [302 ] II. 17. vi.] AN ORIGINAL VIEW [§ 585—586. Doed.Barn- A testator devised to S. S., her heirs and assigns for field v. Wet- ever . b u t ? if S. S. should die leaving no child or chil- &"pul B 3^4 dren ' lawful isSUe ° f her b ° dy ' living at the time ° f heF See also " " death, then, over. It was held, that S. S. took a fee, Plunketv. with an executory devise over, and not an estate tail, Holmes, 1 w \t\\ a remainder over. t t ' i ' ' Lands were devised to a trustee and his heirs, in trust Fearne, 341. to pay annuities to several persons; and, from and after Bennett v. their decease, in trust for D., L., V., and S., (females) ; Lowe, 7 anc J i n case any of them should die leaving; a daughter Din g- ° • or daughters, then, the share of her or them so dying should go to such daughters as they should be in seniority of age. Provided always, that in case any of them the said D., L., V., and S., should happen to depart this life without issue in the lifetime of the said annuitants, then, that the share of her or them so dying should go to certain other persons in succession. And the testatrix devised all the residue of her estates to the said D. The Judges certified, thatD., Z., V., and ., L., and F., took life estates in remainder in their parents' 1 shares ; and that D. took the remainder in fee in the whole of the premises. SECTION THE SIXTH. Cases of a Limitation over on an Indefinite Failure of Issue of a Person to whom no Express Devise is made. I. Where the I. Where a testator devises to one person, after an 585 person whose indefinite failure of issue of another to whom no express failure ot ■, -, , , . , , . ' issue is devise is made, but who is the heir apparent or heir pre- spoken of, is sumptive of the testator, the better opinion seems to be, the testator's that an estate tail will arise by implication to such person, ot presump^ Wh ° Se faUure ° f isSUe is referred t0 > and consequently tive, and he that the interest to take effect on that failure of issue, takes an es- will not be a springing interest, but a remainder after an SSifvi'* 6State tail by im P licati on in the heir apparent or heir 127a presumptive. Reasons for For > m the first place, the rule is, that a limitation 586 this con- shall, if possible, be construed as a remainder, rather than See U H°9 n 6-9. aS &n ^^ devise ' II. 17. vi.] OF EXECUTORY INTERESTS. [§587—588. [ 303 ] Secondly, the construction ought, if possible, to be, ut res magis valeat quam pereat. And if the devise on an indefinite failure of issue, is an executory devise, it is void for remoteness : whereas, if an estate tail is raised, See § 706, by implication, in favour of the heir apparent or heir?14. presumptive, the express devise is then good as a re- mainder. 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 intended and created one by postponing the devise till an indefinite failure of issue of the heir? 587 It is true, that, p in the case of Lanesborough v. Fox, This con- the House of Lords refused to admit such an implica- struction not tion.(») But it was admitted in the case of Walter v. a]Iowe d m t\ , x ii-i r -w^ • t^. Lanesoo- JJrew, (q) and also in the case or JJaintry v. Uamtry. rouqh v. There, a testator gave his only son an annuity, in- Fox, but ad- creasing at different ages till 30, to be paid to him till nutted in he should marry ; and, in case he should marry before 30, ° ^ r cases * then he devised to him and the heirs of his body, all his J ± ai J lt J'y v - • 7 ' Uamtry, 6 real and personal estates ; and if his son should die Dura. & without leaving issue of his body, then, over. The son East, 307. 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 contrary supposition, if the son had lived to 30 without marrying, 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 happened, of his not marrying before 30. 588 II. Where, however, a testator devises to one person, II. Where on an indefinite failure of issue of some other person to tne person whom no express devise is made, and such other person w „ . ose a . llure or issue is is not the heir apparent or heir presumptive of the tes- S p ken of is not the (p) See Fearne, 447. (j) See Fearne, 477. [304] testator's heir apparent or presump- tive, and he does not take an estate tail. Reasons for this con- struction. II. 17. vi.] AN ORIGINAL VIEW R 589. tator- r there, an estate will not accrue to him by impli- cation,^) s nor to his issue, (s) and consequently the devise' on an indefinite failure of his issue, is a springing interest, and void for remoteness. (See § 117— 127a, 714.) An estate tail does not arise in this case, because, an OW heir at law can only be disinherited by express devise or necessary implication ; and nothing more than a probable, and not a necessary, implication arises in favour of a stranger, from the postponement of a devise till a failure of his issue, since the testator may have postponed the devise for the purpose of allowing the heir at law to in- herit in the meantime, and not with the view of benefiting the person 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 en- tailed 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 property 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 mentioned 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 impli- cation. (r) 1 Jarman on Wills, 491. (s) See Fearne, 449, 450. II. 18.] OF EXECUTORY INTERESTS. [§590—592. [ 305 J CHAPTER THE EIGHTEENTH. CASES OF A VESTED REMAINDER AFTER A LIFE ESTATE BY IMPLICATION, DISTINGUISHED FROM CASES OF A SPRINGING INTEREST. 5J0 i a\y HERE a testator devises to his heir apparent or heir I- Devise^ presumptive, after the death of another to whom no ex- , • r < ' heir appa- press devise is made, such other person will take an estate re nt or pre- fer life by implication, (a) b unless the will contains a sumptive, residuary devise ; (b) and consequently the interest of the ^ . ^ person who was heir apparent or heir presumptive, is not ano ther to a springing interest, but a remainder after a life estate, whom no (See § 117— 127a, 159.) c The inference that the testator devise is . intends to give an estate for life to the other person, is , « '° irresistible; as he cannot, without the grossest absurdity, remainder. 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 devise nugatory, (c) 591 II. d And, for the same reason, where there is a resi- U- A similar duary devise, and the testator devises particular lands to ev . l ^ e * i ie ... i rr> ■ • residuary de- the residuary devisee, to take effect, in possession, on v j see has the the decease of another person to whom no express de- same effect. vise is made, such other person will take an estate for life by implication ; (d) and consequently the interest of the other person will not be a sprinoin 12 7 a? i59 # remainder. 592 HI. e But where a testator devises to a person who is "■*- ^ uta . ..ii- , i .• -i similar devise neither heir apparent, nor heir presumptive, nor residuary . w j 10 (a) 1 Jarman on Wills, 465, 466. (b) lb. 474. (c) lb. 466. (rf) lb. 474. x [ 306 ] II. 18.] AN ORIGINAL VIEW ft 592. is neither devisee, after the death of A., no estate will arise to A .by heir appa- implica tion ; (e) because 'it is possible to suppose, that, rent or pre- int g nding the i an d to go to the heir during the life of A., rSary he left it for that period undisposed of. (/) And conse- devisee, gives qU e n tly, in this case, the express devisee takes a spnng- him a spring- • mterestj and not a remainder, ing interest. & ^ (e) 1 Jarman on Wills, 465. As to the doctrine of impli- cation in certain other cases ofunfrequent occurrence, see Mr. Jarman's able observations, p. 467, &c. (/) lb. 466. II. 19.] OF EXECUTORY INTERESTS. [§593—594. [ 307 ] CHAPTER THE NINETEENTH. LIMITATIONS OF PERSONAL ESTATE, SIMILAR TO LIMI- TATIONS WHICH WOULD CREATE AN ESTATE TAIL IN REAL ESTATE, ACCORDING TO THE TWELFTH, THIR- TEENTH, AND SEVENTEENTH, OF THE FOREGOING CHAPTERS. 593 Chattels, whether real or personal, cannot be entailed, Chattelscan- not being transmissible to the real representatives, as no .\ \ e en ~ • tailed such, and not being within the statute De donis, even if they were so transmissible. 593a Such being the case, a " it is a general rule, that where General rule the words would raise an estate tail in real estate, they resulting will give the absolute property in personalty." (a) And therefore, 593b I. b Where personal estate is limited directly to, or by I. Bequests way of executed trust for, a person and the heirs of his t0 or for a body, in one unbroken limitation, the whole vests in such {j^jJen^of person himself, (b) his body. 594 II. c Where personal estate is limited directly to, or by II. Limita- way of executed trust for, a person for life, remainder to tlons to or for or for the heirs of his body ; and such limitations would, jjj f P e ^°" ai °. r according to the rules laid down in the twelfth chapter, c i er to the on the Rule in Shelley's Case, create an estate tail in the heirs of his first taker or ancestor, if the subject were real property; body, which the entire interest in the whole vests in him,(c) d even an estate tajl — in real pro- (a) Lord Eldon, in Chandless v. Price, 3 Ves. 99, as cited, per y " Fearne, 466, (h). (b) Seale v. Seale, 1 P. W. 290, as stated, Fearne, 463. (c) Broivncker v. Bagot, 19 Ves. 574. Kinch v. Ward, 2 Sim. & Stu. 409, stated § 474. Douglas v. Congreve, 1 Beav. 59, stated § 477. Dod v. Dickenson, 8 Vin. 451, pi. 25; x2 [308] 11.19.] AN ORIGINAL VIEW [§595. thouo-h only the use, interest, dividends, or profits are devised to him, and the chattels themselves to the heirs of his body, (d) Grounds of For, as the estate cannot be entailed, the heirs of the ««> the rule. body cannot take by descent. And it was not intended that they should take by purchase : for, the word heirs, unexplained, must be taken in its technical sense, as a word of limitation; and, if the property were allowed to go to the first person answering the description of heir, the whole interest must vest in him ; and since it must vest either in such person or in the ancestor himself, it is See § 429- more likely, that the primary or paramount intention of 448. the testator, imported by the word heirs, would be effec- tuated, by allowing the whole interest to vest in the ancestor; inasmuch as there would then be a greater pro- bability, that all who should from time to time answer the description of heirs of his body, would enjoy the pro- perty, than if the whole interest vested in the child or See §428. grandchild first answering such 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 at- tracting object and the groundwork of his bounty, than in the person first answering the description of heir, who must be unascertained by and unknown 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 Eason, 19 estate, upon trust to apply the rents and profits for her es ' 73 ' son, during 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, the son being a lunatic. But the Master of the Rolls held, that, even considering this as a mere disposition of personalty, the and Butterjield v. Butterjield, 1 Ves. 133, as stated, Fearne, 464. Webb v. Webb, 1 P. W. 132, as stated, Fearne, 493. (d) Earl of Chatham v. Daw Totkill, 6 Bro. Pari. Ca. 450, as stated, Fearne, 464—5. Theebridge v. Kilburne, 2 Ves. Sen. 233 ; and Garth v. Baldtvin.2 Ves. Sen. 646; as stated, Fearne, 491—2. II. 19.] OF EXECUTORY INTERESTS. [§ 596. [ 309 ] son took an absolute interest in the personalty, notwith- standing the words " if any," which must always be im- plied. And where A. directed 20,000Z., which he had in the Britton v. funds, to be firmly fixed, and there to remain, during the life Twining, 3 of his wife, for her to receive the interest; and, after her death, to be in the same manner firmly fixed upon W. C.,/^-,//^ //^/^ to be so secured that he may only receive the interest /y /^^ ^ 6 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 support 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 W. C. took the absolute in- terest. 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 dif- ference ; 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 perpetual entail of the property, so as to make it pass from heir to heir in succession, with a restriction on the power of disposition. 59g III. But, e where the word heirs would be construed a III. Limita- word of purchase, if the subject of the limitations were nous to or for real estate, according to the rules laid down in the twelfth jflj^JjJJ ° r _ chapter, on the Rule in Shelley's Case ; (e) or f where there ma 'nder to are superadded words of limitation to the executors of the or for the heirs ;(/) or where there are superadded words of limi- ^ eiTS of h' s tation which would carry the fee in real property, followed wou id not by a limitation over in default of such issue, apparently in- create an (e) See Peacock v. Spooner, 2 Vera. 43, 195; and Dafforne v. Goodman, 2 Vera. 362; as stated, Fearne, 493; in which cases the term was not limited to the prior takers for life, but for so many years as they should live. (/) Hodgeson v. Bussey, 2 Atk. 89, as stated, Fearne, 494. [310] 11.19.] AN ORIGINAL VIEW [§597. estate tail in tended as an alternative ; or s any other words showing that real pro- t h e wor d heirs was not used in its technical sense ; (g) the perty ' ancestor only takes a life interest ; and the whole remaining interest vests in the issue, if there are any ; and if there are no issue, the property reverts to the personal repre- sentatives of the testator, or passes to the objects of the alternative limitation. Wilkinson v. A testator gave a leasehold messuage to L. P., and South, 7 D. to t h e ^irs f fog body lawfully begotten, and to their & E. 555. IV. Dispo- sition in favour of a person and his issue, which would create an estate tail in real property. Donn v. Penny, 1 Meriv. 20. Attorney - General v. Bright, 2 Keen, 57. See also Lyon v. Michell, 1 Mad. 473, as stated § 529. heirs and assigns for ever ; but, in default of such issue, then, after his decease, to go to T. W., his heirs and assigns for ever. It was held, that the limitation over was not too remote, Lord Kenyon, C. J., intimating that it was a limitation with a double aspect. IV. Where personal estate is devised or bequeathed 597 either directly to or by way of executed trust (See § 489) for a person and his issue, whether in one unbroken limitation, or in two limitations ; and such limitation or limitations would, according to the first rule in the thirteenth chapter, create an estate tail in the ancestor, if the subject were real property; h the entire interest in the whole vests in him. (h) A testator gave all his real and personal estate to A. and his male issue. For want of male issue after him, to B. and his male issue. Sir W. Grant, M. R., held that A. took the absolute interest in the personal estate. So where a testator gave 500Z. stock to S. T., to receive the interest, during life, and then, to her issue ; but, in case of her death without issue, the said 500Z. to be divided between &c. T. S. died without issue. Lord Langdale, M. R., held, that she took the absolute interest under the first words; and that the limitation over was void for remoteness. Again ; a testator gave what should be remaining of the (g) See Read v. Snell, 2 Atk. 642, as stated, Fearne, 473, 494. (h) But see Knight v. Ellis, 2 Bro. C. C. 570 ; and Warman v. Seaman, Fin. Chan. Rep. 279 ; as stated, Fearne, 490, (a), and 495. II. 19.] OF EXECUTORY INTERESTS. [§ 597a. [ 311 ] residuary monies, the interest of which he had given to his Gibbs v. wife T. Z)., during widowhood, unto and equally among {?! ' all the daughters of T. D., and their issue, with benefit of survivorship 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 resi- due, 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 dis- tributed. [See Howes v. Herring, M'Cleland & You. 295, stated § 655.] Secondly, that the two surviving daughters took absolutely; for, it would be very inconvenient that they and their issue should take simultaneously. And where a testator gave his residuary estate in trust for Turner v. his wife, for life ; and after her death, he gave the same ~. a ^ e y ^ to his son and daughters, share and share alike, and their respective issue ; with benefit of survivorship unto and between his said children, or their issue respectively. Sir L. Shadwell, V. C, held, on the authority of Pearson v. Stephen, that the son and daughter took absolutely ; and not for life only, with 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. 597a V. But where personal estate is devised or bequeathed V. Disposi- either directly to, or by way of executed trust for, (See ^ tionin favour 489.) a person and his issue, whether in one unbroken limi- an( j £j g igg ^ e tation, or in two distinct limitations, and such limitation or which would second of such limitations would, according to the second not create an rule in the thirteenth chapter, give the issue an estate tail est ^ te ta " in , -i ii r i • r ii reE " P r0 " by purchase ; 1 the ancestor only takes tor hie ; (*) and the per ty whole remaining interest vests in the issue, if there are any ; and if there are no issue, the property reverts to the personal representatives of the testator, or if there is an alternative interest, passes to the objects of the alternative See § 128- limitation. 136. (i) See Lampley v. Blower, 3 Atk. 398, as] stated, Fearne, 473, 495. [312] 11.19.] AN ORIGINAL VIEW [§598—599. VI. Execu- tory trust in favour of a person and his issue. See §531, 532. Stoner v. Cur wen, 5 Sim. 264. VI. Where personal estate is limited in favour of a per- 598 son and his issue, by way of executory trust, (See § 489, 491) the same construction will be adopted as that which is adopted in the corresponding case of real estate, even though there may be a limitation over on an indefinite failure of issue. A testator gave one third of his residuary personal estate to his niece, which he desired might be settled by his executors on his said niece, for her separate use, during her life, but to devolve to her issue at her death ; and, failing issue, then, to revert to his nephew. 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 chil- dren as should be living at her death, and for such issue of children dying in her lifetime as might be living at her death ; the issue of any deceased child to take such share only as the deceased child would have taken, if living ; 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. VII. Limita- VII. k Where personal estate is limited, either directly 599 anbckfinite 1 t0 ' ° r by Way of executed trust for > (See § 489, 491) a" failure of person indefinitely, or for life, with a limitation over on an issue. indefinite failure of his issue ; the whole interest vests in the ancestor, (k) Grounds of I„ this case, it is not intended that the property the rule. i 1 i „ . r sr j should go over, except on failure of his issue, but that his issue should 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 effectuating the intention, is, to give the entire interest to the ancestor, that they may have the benefit of the property, derivatively, through him ; espe- cially 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 (A) See Fearne, 466, note (h), and 490, note (a) ; and Bur- ford v. Lee, 2 Freem. 210, as stated, Fearne, 480. II. 19.] OF EXECUTORY INTERESTS. [§ 600. [ 313 ] issue, except by way of remainder after an estate tail, is, as See § 706, we shall see in a subsequent chapter, void for remoteness. 7I4 . 600 VIII. But, where the limitation over is on failure of VIII. Limi- children only, or on failure of issue within a given time, tatI ° ns ower the ancestor will have a life estate, with a limitation over children in the nature of a contingent remainder, or with a limita- only, or of tion over of a springing interest ; or the entire interest, ' ssu . e within with a conditional limitation over. (See § 159, 117-127a, *= n Im 148-158.) A testator bequeathed the residue of his personal estate Stone v. to H. D., for his own use and benefit j and, incase H.D. Jf a "^? should die in the testator's lifetime, or afterwards, without having any child or children, then over. H. 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, H. D. would have taken the personal estate absolutely, and the Crown would have been entitled to it, as he died without issue. But the Vice-Chancellor, after observing that the words were not synonymous with the expression " without issue," held that the gift over took effect. And where a testator devised leaseholds in trust for his Bradshaw v. daughter, for life ; remainder to her two eldest sons, for and ^ li oeck, 2 to ' ' . . Bing. New during the terms of their natural lives, as tenants in common. Q as> 182> 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 limita- tions over, and not a quasi estate tail ; Tindal, C. J., ob- serving, 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. [ 314 ] II. 20.] AN ORIGINAL VIEW [§ 601, CHAPTER THE TWENTIETH. LIMITATIONS OF PERSONAL ESTATE TO OR IN TRUST FOR THE PERSONS WHO SHALL FROM TIME TO TIME BE EN- TITLED TO REAL ESTATES ENTAILED. I. Where I- Where chattels real or personal are either directly 601 such limita- given to, or directed to be held or enjoyed by, the person tions are not an( j p ersons w ho shall from time to time be entitled to by way of ^ estates which are entailed ; and there is no direction trust. for, or reference to the making ot a future settlement or See § 489, conveyance, for the purpose of securing the use of such 491. chattels to such person or persons ; the chattels, subject 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 a at 21, (a) or at some other time. Fordyce v. A testator devised freehold estate to his brother and Ford, 2 Ves. his wife, for their lives ; remainder to A. and the heirs 536 . . male of his body; with remainders over; and he directed that certain 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 A. took the leasehold absolutely ; it being clear that the testator meant an estate tail in A. 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. Ware v. And where a testator gave leasehold estates, in trust vl^o/v? 11 t0 pay the rents and P rofits to the persons for the time being entitled to real estate under limitations thereof in Ves. 257. (a) Traffordv. Tr afford, 3 Atk. 347. 11.20.] OF EXECUTORY INTERESTS. [§602—605. [315] strict settlement, with power to the trustees, at any time, with consent 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 chattels, H. Where by way of trust executory, that is, where there is a di- . ie . 1S P 0S1 " rection for, or reference to the making of, some future wav f exe _ settlement or conveyance, for the purpose of finally and cutory trust, formally declaring the trusts, which do not appear to See § 489, have been so declared by the instrument containing such 491 - direction 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 distinc- Distinction tion which has been made, in other cases, between trusts exhibited m executed and trusts executory. ru l es ; s j n 604 In the case of a trust executed, the trust being finally accordance declared by the instrument creating it, a Court of Equity with the dis- can give the words no other force than that which they jj^ein other literally possess, in themselves, consistently with the rules ca ses. of law ; for, in such case, the Court is not called upon Grounds of to frame new limitations, in order to carry out the inten- the distinc- tion ; but to act upon limitations or directions already tl0rK 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 settle- ment 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 605 directions. In the case of a trust executory, there is not that degree of presumption 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 effect to the supposed intention of the party, in the case of a [ 316 ] II. 20.] AN ORIGINAL VIEW [§ 606-612. trust executed, or not ; there can, at all events, be no doubt, that it is justified in carrying out his intentions, in the case of a trust executory. And by not giving an absolute interest in the chattels to the tenant in tail, be- fore 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 person 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 executory 60G trusts in this way, it would be an anomaly of the most arbitrary kind ; it would be refusing to make a distinc- tion between trusts executed and trusts executory, in this respect, while, in others, a distinction is uniformly made. Executory For this reason, executory trusts ought to be con- 607 trusts should s t rue d j n th e manner above mentioned, whether they are be construed . . . . , , according to create d by marriage settlement or articles, or merely by the second will. But such a construction should be adopted more 608 ru ' e ; especially in the case of marriage settlements or articles: especially f 01 ^ there, the issue in remainder are all purchasers, in- when created , „ . . , by marriage stead of bein S volunteers. settlement or articles. It has sometimes been thought that where the dispo- C09 A gilt sition is made, not by a direct gift, but through the roug i ie me{ jj um f a direction that the chattels shall «;o to per- medium of a . . . or direction is sons sustaining a certain character with reference to the not necessa- realty, the trust is a trust executory. It is true that 610 nly a trust Fearne uses the word directory, as synonymous with exe- executory cutory, but, in b his definition of a trust executory, he only includes those which refer to the execution of a future settlement or conveyance, (b) And though an exe- 611 cutory trust is necessarily directory, yet, a trust may be directory, and, at the same time, executed, where it is finally declared in the instrument creating it. And, it 612 may be asked, what substantial difference is there, upon principle, between 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 (b) Fearne, 143. II. 20.] OF EXECUTORY INTERESTS. [§ 613—616. [ 317 ] money to those persons, 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 individuals? Even where chattels are bequeathed without the medium of a trust, the legal right to them vests in the executors, as much as it does if the V1 ° executors are directed to dispose of them. So that, upon principle, as well as upon 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. In some cases the words " so far as the rules of law The words will permit," have been inserted. And, in one sense, " so ^ ar as c " these," as Lord Hardwicke says, "are very material f he ru -n S of . „' J \ J law will per- words ; namely, as precluding any intendment contrary m it" pre- to the rules of law : "for," His Lordship adds, "it is elude any impossible to object that the testator had any intention mten « ment contrary to the rules of law ; for he hath by these words j a w ^ delivered himself from any imputation of the kind." (c) olo But they have no force in enabling the Court to tie up But they do the chattels for a longer time than that for which they not enable could be tied up, if these words were omitted : for they . e Court to imply no more, in this view, than would be implied with- tel^to ~ out them ; and their meaning is capable of being satisfied longer time. by supposing them merely indicative that the testator was aware of the different natures of real and personal estate. (d) 616 Having stated what appears to the author to be the Cases. true doctrine upon the subject of this distinction 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 mar- The Duke of riage of the Earl of Lincoln, to settle leasehold estates, Neivcastlev. (c) Gowerv. Grosvenor, 5 Mad. 347. (d) See Vaughan v. Burslem, 3 Bro. C. C. by Belt, 106 ; and Lord Redesdale's note, S. C. 104. [ 318 ] II. 20.] AN ORIGINAL VIEW [§ 616. TheCountess in trust for such persons, and such or the like estates, &c, of Lincoln, as f ar as the law would allow, as declared concerning real 3Ves. 387. estate tnerem b e f ore limited to the Earl of Lincoln, for life ; remainder to his first and other sons in tail male ; remainder to Lord Thomas Pelham Clinton, second son of the Duke, 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 leaseholds ; and that, upon his death, the Countess Dowager of Lincoln became en- titled thereto, as his personal representative. But Lord Loughborough, C, held, that, in cases of marriage arti- cles, where leasehold property is to be the subject 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) [i. e. analogous, not in terms, but in effect ;] and that no person should be entitled to the absolute property, unless he shall attain 21, or die under that age, leaving issue male. (lb. 398.) 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 impossible that he should be tenant in tail, but he must be reduced to an estate for life; in parity of reasoning, it was impossible, 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 executors, 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 Pelham Clinton, in like manner; The Countess with similar limitations over. The case was carried by of Lincoln v. appeal to the House of Lords, who affirmed the decree, 1 he Duke of ..■• .■, ,. ? * • , ,. . . J with the exception ot leaving out the limitations subse- II. 20.] OF EXECUTORY INTERESTS. [§617—621. [ 319 ] quent to the word " assigns," in consequence of the Duke Newcastle, having attained his majority, whereby such limitations ** * es - ^^* became unnecessary. 617 Great difference of opinion existed, in terms at least, Difference of in regard to this case, between Lord Loughborough, who °P inion made the above decree, and Lord Ellenborough, C. J., j u( ]p. e ^ m Lord Eldon, and Lord Erskine, C, who presided when that case. it came before the House of Lords. 618 When the cause was heard, and previously to deliver- Observations ing judgment, Lord Loughborough is reported to have °f Lord expressed himself as follows : " I lay no great stress upon u,£ ? the words, ' as far as the law will admit ;' but I put it to you, whether, in the nature of things, there is not a radical and essential difference between marriage settle- ments 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.) 619 On the other hand, Lord Eldon said, that there was no Observations difference in the execution of an executory trust created °f Lord by a will, and of a covenant in marriage articles ; and on m i ..... ,, i , , • n • same case, that such a distinction would shake to their foundation the rules of equity. (12 Ves. Jun. 227.) He admitted, 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.) 620 And in Jervoise v. The Duke of Northumberland, 1 Jac. and in Jer- & Walk. 574, Lord Eldon said, if it was supposed, that wise v. The he said there was no difference between marriage articles , T 7 °* JS ovtfiu ?)z " and trusts executed, he never meant to say so. And he berland. further observed, that, in marriage articles, all the con- siderations that belong peculiarly to them afford prima facie evidence of intent which does not belong to execu- tory trusts under wills. But 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, real or Meaning of apparent, it may be observed that Lord Loughborough's the expres- meaning might be, and probably was, not that a different ^ 10ns u ^ construction, if the thing were res Integra, ought, on prin- Lou»hbo- ciple, to be adopted in a covenant to settle in a marriage rough, settlement, from that which would be proper in an execu- [ 320 ] II. 20.] AN ORIGINAL VIEW [§ 622-623. tory trust in a will ; but that, even admitting that similar words to those in the principal case, had been construed, in the case of a will, to confer an indefeasible vested in- terest on the first tenant in tail, on his birth ; yet that a Judge, who did 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 construction, in the case of a will ; or that such a con- struction had ever been made, in the case of an executory trust; but merely showed, that, whether such a construc- tion had been made, or not, in Foley v. Burnell, 1 Bro. C. C. 274, and Vaughan v. Burslem, 3 Bro. C. C. 101, which were pressed upon him; still, a different construc- tion might fairly be adopted in the principal case, it being a case of a marriage settlement, and not of a will. Whatever was Lord Loughborough's meaning, however, 622 surely it would only be right that a different construction should be made in the case of marriage articles, if* i it were true that such a construction as that above-mentioned had been adopted in the case of wills. An execu- But, supposing for a moment, (as will appear hereafter,) 623 tory trust by that no such construction has in fact been made, in the will ought cage Q f an execu i or y trust created by will ; and that the construed so ma tter is res Integra; it is humbly submitted that such as to confer a construction ought never to be adopted, even in the an indefea- case of a will. For, it is allowed, on all hands, that a interest on ^ ourt of Equity has the liberty to mould the limitations, the first te- so as to execute the intention as far as the law will permit, nant in tail in the case of an executory trust, where a conveyance is at his birth. c li rec ted— that the Court is not restricted to the technical operation of the very words themselves, as they stand, in the case of a trust executory, as it is in the case of a trust executed. And yet the construction which gives the abso- lute property to the first tenant in tail at his birth, only ties up the property to the extent to which a trust exe- cuted, couched in similar terms, would tie it up. (See Carr v. Lord Erroll, 14 Ves. 478.) And in fact But, when the cases are closely examined, the fact seems 624 11.20.] OF EXECUTORY INTERESTS. [§624. [321] to be that no such construction of an executory trust has no such con- ever been made, even in the case of a will. Lord Eldon section of an executory thought it had in Foley v. Burnell, and Vaughanv. Burslem ; trust ^ as but he appears to have fallen into a misapprehension, in been adopt- regarding those as cases of executory trusts specifically e d. and properly so called, that is, of executory 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 Foley v. other personal chattels, to be held and enjoyed by the ? w rn l ' c several persons who from time to time should be entitled 274' 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 affirmed by the Lords Commissioners, Lord Lough- borough, Mr. Justice Ashurst, and Baron Hotham ; and afterwards by the House of Lords. But, in this case, was not an there was no direction that any conveyance of the chattels execu or 7 should be made ; and accordingly, Mr. Justice Ashurst 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." K So, in Vaughan v. Burslem, the testator directed that Nor was chattels should £0, as heir-looms, with his real estate, and ^ u 9^ an *• . Jjiirslem o be held and enjoyed by the person or persons for the time £ r0> c q being entitled to his real estate, as far as the rules of law 101. 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 en- titled to the chattels. But here again, there was no allusion to any convey- ance ; and hence e Lord Ellenborough, though he said he could not reconcile this decision with the decree in the prin- cipal case, yet treated the trust as executed, observing, that it was the case of a testator executing his own purpose, (e) (e) 12 Ves. 225. Y [322] Nor was Carr v. Lord Erroll, 14 Ves. 478. Lord Eldon supposed that direct- ory trusts were synony- mous with executory trusts. Objection urged by Lord Eldon. II. 20.] AN ORIGINAL VIEW [ § 625-626. 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 di- rected that all his plate &c, at his mansion house, should remain there, as heir-looms ; and devised the same to trustees, upon trust, to permit the same to go together with the mansion, to such persons as should from time to time be entitled to it, for so long a time as the rules of law and equity would permit. Sir W. Grant held that the absolute interest vested in the first tenant in tail, and, upon his death under age, passed to his personal repre- sentative. And His Honor said, that the only difference between that case, and Vaughan v. Burslem, was, that trustees were interposed in the former ; and that there was nothing executory in the trust interposed ; and there- fore the question, whether there was any difference be- tween an executory trust by a will and a covenant in mar- riage articles, did not arise. The fact is, that Lord Eldon considered executory 625 trusts, as opposed to trusts executed, to comprehend trusts in which the gift was made by way of direction that the property should be enjoyed by persons sustaining a certain character. His Lordship says, of Foley v. Bur- nett, that the clause being clearly directory, it was one which a Court of Equity would mould to the purposes of the testator, upon its general principles. But it will have 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 ope- ration of the words themselves. Lord Eldon objected, that the decree in the principal 626 case, did not accomplish that which it was designed to accomplish; that, in fact, it did not tie them up 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,) be- queath 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 II. 20.] OF EXECUTORY INTERESTS. [§ 628—630. [ 323 ] estate, which might go to his next of kin, and equally to the wife with them. And in Burrellv. Crutchley, 15 Ves. 553, Lord Eldon, C, said, the difficulty that always oc- curred to him, was, what was to become of it if the party 628 died under age, leaving issue. But, Lord Loughborough gave an answer to these objections, when f 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 improbable event should happen, the intention to keep the real personal estate together would still be in a great measure effectuated, (f) 629 Lord Eldon remarked, that by omitting the limitations Observations subsequent to the word " assigns," as above mentioned, a on , some • other re- great deal of difficulty was removed : for the decree [of mar k s f the House of Lords] could not serve as a guide to con- Lord Eldon. veyancers, as to what is to be done under any other cir- cumstances than a tenant in tail in possession attaining 21. And in Burrell v. Crutchley, 15 Ves. 553, His Lord- ship said, he did not take the case to have decided any- thing with regard to any case that might possibly arise, except that precise case, when the Duke had attained 21. 630 Upon this, it is to be observed, that the decree sufficiently establishes this point — that, in the case of a covenant in a marriage settlement, of the kind in question, the chattels do not vest in the tenant in tail absolutely on his birth. For, Henry, Duke of Newcastle, who had attained 21, was not the first tenant in tail under the settlement. 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 unneces- sary 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 devested, or whether the vesting was sus- pended until 21 ; and if they vested at his birth, whether they were subject to be devested simply in the event of (/) 3 Ves. 295. y2 [ 324 ] N. 20.] AN ORIGINAL VIEW [§631-632. skine. Remarks thereon. 1 dying under 21, or in the double event of his dying under 21, without issue generally, or issue male. Observations ^ e L or( j Chancellor, Lord Erskine, coincided in the 631 ' views of Lord Ellenborough, in regard to the propriety of the decree made by Lord Loughborough. Lord Erskine, aRer 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, agree- ably to what would have been the direction of a convey- ancer 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 autho- rity of Gower v. Grosvenor ; and it was reasonable that the intention should be executed when the Court could see It is to be lamented that Lord Erskine should have 632 rested his decision on the opinion of Lord Hardwicke, in Gower v. Grosvenor ; a case in which the terms of the will cannot be substantially distinguished from those in Foley v. Burnell, and Vaughan v. JBurslem ; a case, there- fore, of a trust executed, and not of a trust executory ; a case in which nothing was decided ; and a case in which the question was altogether different from the point at issue in The Countess of Lincoln v. The Duke of New- castle. In Gower v. Grosvenor, Sir Richard Grosvenor devised real estate to Thomas Grosvenor, for life; remainder to his first and other sons in tail male ; remainder to Robert Grosvenor, 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 heir male of his family successively, as his real estate was thereby settled. Sir Thomas Gros- venor died, without ever having any issue. Lord Hard- wicke came to no decision ; but he was of opinion, that the chattels were given to Sir Thomas Grosvenor ; and afterwards to his son, if he should have any, but as he had none, to Sir Robert. Gower v. Grosvenor, 5 Mad. 347. ig) 12 Ves. 238. II. 20.] OF EXECUTORY INTERESTS. [§ 633—635. [ 325 ] 633 Now, it must be observed, that, here the question was Observations between one tenant for life and another ; and consequently thereon. Lord Hardwicke's opinion has in reality no bearing upon the question in The Duke of Newcastle v. The Countess of Lincoln, where the question was a question between one tenant in tail and the representative of a deceased tenant in tail, relating to the time when the chattels vested abso- lutely in the tenant in tail. True it is, that Lord Hard- wicke 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. But 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 express limitations of the same legal import. In other words, the learned Judge seems to have meant that which he had just before observed, namely, that there were no express words of devise ; and that it would be a very hard construction to call this an express gift or legacy to the party, on purpose to defeat the intention of the testa- tor, and though Sir Thomas enjoyed them for his life, yet the intention of the testator was, to have them go in succession. (lb. 349.) 634 Observations might be made upon other parts, of Concluding Lord Eldon's speech ; but it does not seem necessary to observations do so for the present purpose. From what has been said on th e cases ' * . . ,i , , -.i above no- it will probably be sufficiently apparent, that, notwntli- ^^ standing the objections of Lord Eldon, and the impossi- bility, in the opinion of Lord Ellenborough and Lord Erskine, of reconciling all the cases ; yet it is clear, upon the authority of Mr. Justice Ashurst, Lord Ellenborough, and Sir William Grant, that the cases of Foley v. Burnell, and Vaughan v. Burslem, are cases of trusts executed ; and 635 that, upon the authority of Lord Loughborough, Lord Ellenborough, and Lord Erskine, as well as upon principle, an executory trust of the kind in question, especially when [326] 11.20.] AN ORIGINAL VIEW [§636—637. 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 absolute and in- defeasible manner, at his birth. And assuming, upon the 636 authority of Mr. Justice Ashurst, Lord Ellenborough, and Sir W. Grant, and upon principle, that Foley v. Burnell, Vaughan v. JBurslem, 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. If the former cases are considered as 637 trusts executed, according to the opinion of Mr. Justice Ashurst, Lord Ellenborough, and Sir W. Grant, all the cases are in harmony, 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 irreconcileable, and the subject of the present chapter, and in fact the whole subject of executory trusts, is involved in the greatest uncertainty and confusion. / / A-fa. trv-t^uU^i t, ^fe ^-/4^~<" - <*« " > - yu " ^1 II. 21. L] OF EXECUTORY INTERESTS. [§ 638—641. [ 327 ] CHAPTER THE TWENTY-FIRST. WORDS APPARENTLY AMOUNTING TO A MERE ALTERNA- TIVE LIMITATION, BUT IN REALITY CONSTITUTING A REMAINDER: AND VICE VERSA. SECTION THE FIRST. A General Mule suggested. 638 A subsequent limitation, in doubtful cases, ought to be construed as a remainder or quasi remainder, rather than See § 159, as an alternative limitation. ior"\«i 639 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-vesting of the See § 669. prior interest : whereas an alternative limitation can never operate as a remainder or quasi remainder; and yet, it See § 130. may be clear that the testator did not intend that the sub- sequent limitation, which is capable of taking effect as a remainder or quasi remainder, should entirely fail, merely because the prior limitation had once vested, though merely for a moment. 640 On the contrary, in all cases where the words do not clearly constitute a mere alternative limitation ; and there is no indication, in any other part, that they were in- tended to create a mere alternative limitation ; and where the prior limitation does not carry the fee in real property, See § 159, or absolute interest in personal property, and conse- • quently the subsequent limitation can operate as a re- mainder or quasi 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 sucli subsequent limitation is followed by [ 328 ] II. 21- i.] AN ORIGINAL VIEW R 642-645. a still more remote limitation, it can hardly 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 expiration of the less remote limitation: those who were the prior ob- jects of the testator's bounty, in the one event, would surely be the prior objects in the other event, when that event could have no connexion with or influence upon the testator's preference of the objects of the less remote limi- tation to the objects of the more remote limitation. And, secondly, where such subsequent limitation is not 642 followed by any other ulterior limitation, and consequently it is then a question between the person claiming under it and the heir at law, or the person or persons entitled to the undisposed of personal estate, the better opinion would seem to be, that, even in this case the subsequent limitation should be allowed to operate as a remainder or quasi remainder. It is true that the heir can only be dis- 643 inherited by express words or necessary implication. But, 1 You. & it was said by the Lord Chief Baron in Toldervy v. Colt, Coll. 621. and, with the above qualification, truly 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 Alderson) is a clear prima facie title, which you may show to have been taken See § 638. away." In the case supposed, there are express words : 644 but then those words are ambiguous, and the Court 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 evidently was by the other learned Judge, would seem clearly to nega- tive this; and numerous cases in which wills have been so construed, as to disinherit, prove the truth of that observation. No rule such as that above suggested, seems to have 645 been laid down by authority ; but there have been cases See § 665. in which the principle has been virtually acted on. II. 21. ii.] OF EXECUTORY INTERESTS. [§646— 647. [ 329 ] SECTION THE SECOND. Certain Rules of a more Specific Character. 646 Where real estate is devised to a person, and to his Devise to a issue, or his sons, daughters, or children, with a limita- person, and tion over on his death without issue, or without leaving: t0 , . s lssue ' or Jus sons issue, or for want, or in default, or on failure of issue, or daughters 'or of such issue, or of sons, daughters or children ; and it is children, desired to ascertain whether such limitation over is a re- w ' l .h a '' m '~ mainder, or an alternative limitation ; it is necessary, in , • , ,, ' . ' J ' on his death the first place, to determine what estate the ancestor or without his issue take. And, issue, &c. 647 I. If, under the rules in the thirteenth and seven- j # Where the teenth chapters, or otherwise, the ancestor or his issue ancestor or take an estate tail, or the issue take a life estate in re- , lssue . , , . . , . it!,! take an es- mainder; and such estate is a vested and absolutely tate ta jj or limited estate; the limitation over, as regards such estate, the issue is a remainder, and not an alternative limitation : because ta ^e a life an alternative limitation is inoperative and bad in its very J*. ,™ ^ creation, unless the interest which it is intended to confer, such estate is a substitute for a contingent or an hypothetical ly limited is vested and interest; (159, 128, 130) and the construction ought to be j^ s °^ te,y such, ut res magis valeat, quam pereat. A testator devised an estate to A., for life; remainder Ashley v. to trustees to preserve, &c. ; remainder to all the children Ashley, 6 of A., as tenants in common, and not as joint tenants; im * and, for want of such issue, to B., for life; remainder to trustees to preserve, &c. ; remainder to all the children of B., as tenants in common, and not as joint tenants ; and, for want of such issue, to C. in fee. A. had chil- dren living at the date of the will. The Master reported, that all the limitations in the will, subsequent to the devise to the children of A., failed, as being only to take effect in case there never was any such child. But, Sir L. Shadwell, V. C, held, that the children of A. took estates for life, as tenants in common, with cross remain- ders between them, for life [notwithstanding the words "and not as joint tenants"]; remainder to B., for life; re- [ 330 ] II. 21. 11.] AN ORIGINAL VIEW R 648-649. mainder to the children of B., as tenants in common, for life; with cross remainders between them, for life; re- mainder to C. in fee. Doe d. Jear- The following case also may perhaps be fairly regarded rad v. Ban- as an illustration of the same principle. A testator de- nister, 7 yiged thus .__« to & ^f. and her heirs, if she has any child ; Mees. & W. . f ^ ^^ ^ 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 after- wards, 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. II. Where H- And even if tne estate for life or m tail is C0D " 648 such estate tingent, as where the devisees are unborn ; or if it is is contingent hypothetically limited; unless there is some particular cany hmited" indication of a contrary intent, the limitation over, it is conceived, is a remainder, and not an alternative limita- tion, upon the principles involved in the first general rule above suggested, and also upon the principle, that "an estate tail," as Lord Hardwicke observed in Brown- sword v. Edwards, " is capable of a remainder, and it is natural to expect a remainder after it." (a) III. Where HI- But, b '^ an estate U1 fee, simple or qualified, is 649 such estate taken by the ancestor or the issue, the limitation over, as is m fee. regards such estate, is an alternative limitation ; because there cannot be a remainder after a fee simple (b), or See § 165. qualified. (a) 2 Ves. Sen. 249. And see Ives v. Legge, 3 Durn. & East, 488, in note, as stated, Fearne, 276, 277. But see contra, Keene v. Pinnock, cited 3 Durn. & East, 495, and by Fearne, 379. (b) See Loddington v. Kime, 1 Salk. 224, as stated, Fearne, 225, 373. Goodright d. Docking v. Dunham, Doug. 264, as stated, Fearne, 375. Doe d. Comberbach v. Perryn, 3 Durn. & East, 484, as stated, Fearne, 376. And also Hockley v. Mawbey, 1 Ves. 142 ; and Doe d. Gilman v. Elvey, 4 East, 313; stated § 530. II.22.i.] OF EXECUTORY INTERESTS. [§650—651. [ 331 CHAPTER THE TWENTY-SECOND. CERTAIN CASES OF CONDITIONAL LIMITATIONS, DISTIN- GUISHED FROM CASES OF MERE ALTERNATIVE LIMI- TATIONS ; AND VICE VERSA. SECTION THE FIRST. Certain General Rules suggested. We have seen in the first chapter, that, in doubtful cases, Introductory a limitation shall, if possible, be construed a remainder, observations. rather than an executory devise, whether of that kind See § 196-9. which is termed a conditional limitation, or of any other. And, in the chapter next preceding the present, a rule has been suggested, that a subsequent limitation, in doubtful See § 638- cases, ought to be construed as a remainder, if possible, ° 45- rather than as an alternative limitation. It now remains to give some rules applicable to cases where a limitation is not construed as a conditional limitation, and yet it cannot be construed as a remainder, because the prior See § 649. limitation carries the fee in real property, or the absolute See 99-103. interest in personal property. I. Where the prior limitation carries the fee in real I. Where property, or a the absolute interest in personal property, a tne P r \ or in- subsequent limitation, in doubtful cases, ought to be . m ^ e , construed as an alternative limitation, if possible, rather an( j a bso- than as a conditional limitation, provided the prior limi- lutely limit- tation cannot fairly be construed to confer an interest ed ' anf * tne vested prior to the event on which the subsequent limi- jj m i ta ti on ; s tation is to take effect, and an absolutely limited interest, an alterna- either by reason of the form of its original limitation, (a) tive. or of some subsequent explanatory expressions. (a) See Wall v. Tomlinson, 16 Ves. 413. [ 332 ] II. 22. ..] AN ORIGINAL VIEW [§ 652-654. See % 111 For, suppose the prior limitation to be executory in its 652 75-91. original creation, but afterwards to confer a vested interest, it would seem that the subsequent limitation ought, in a See * 128- doubtful case, to be construed, if possible, as an alterna- 136, 148- tive, and not as a conditional limitation, in order that the 158.' es tate 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 subsequent limitation, the secondary object of his regard. On the other hand, if the prior limitation never takes effect at all, it is clear that the subsequent limitation, even without the necessity of being construed as simply an alternative in its original creation, would be allowed to See § 669, operate as an alternative, according to the doctrine stated 671. i n a subsequent chapter. No rule to the effect of that above suggested has been 653 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, Monteith v. Nicholson, and other cases cited in the present chapter, in support of other more specific rules. The construction which leans towards holding a limi- 654 tation to be an alternative rather than a conditional limi- tation, is sometimes aided by the doctrine of remoteness. See § 706. For, where a limitation would be too remote, if it were held to be a conditional limitation, but not too remote, if held to be an alternative, it should, if possible, be con- strued an alternative, according to the maxim, Ut res magis valeat, quam pereat. Murray v. A testator, after giving several life annuities, amounting Addenbrook, to 270Z. a year, proceeded as follows : " Which 2701. per 4 Russ - 407 - annum, as the several life annuities fall in, I give and bequeath to my aforesaid trustees, for the use and benefit of the eldest surviving son of the aforesaid Sir J. M. ; and, failing the male issue of the said Sir J. M., to the daughters of the said Sir J. M. living at the demise of such male issue, in equal proportions. 11 And the testator disposed of the residue of his property in the following manner: " The remaining produce is to be enjoyed by my wife, M. M., during her natural life; and then, I give and II. 22. i.] OF EXECUTORY INTERESTS. [§654. [333] bequeath the aforesaid sums, at her demise, to the eldest surviving son 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. M., who died under 25, before any of the other annuitants, and did not leave any son. Lord Lyndhurst, on a petition of appeal as to the annuities, and on an original petition as to the residue, affirmed 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 the testator; and that such son would have taken a vested interest in the 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 effect if there should be no son surviving the annuitants, in the case of the an- nuities, 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 effect after the enjoyment of another particular estate by the eldest son, either on his decease after the death of the widow, r or on a general failure of his issue ; in either of which cases it would have been too remote. It was not to take effect See § 706, after a general failure of male issue. For, the testator 7 * 4 - 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 [ 334 ] II. 22. i.J AN ORIGINAL VIEW [§ 655. daughters 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 the extinction of a whole line of issue. Nor was it to take effect on the death of the eldest son after the decease of the annuitants or the widow. For, had there been a son who survived the 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 II. But, where the prior limitation may fairly be con- (555 the prior in- s t rue( j t confer a vested interest before the event on tcrcst is vest - ed and abso- wmcn * ne subsequent limitation is to take effect, according lutely limit- to the form of its original limitation, or by reason of ed, and the some other expressions ; and it is limited absolutely, (and j. . *. n . not hypothetically, in the event of such person's sur- a conditional viving the testator,) there, the prior limitation shall be limitation. construed to be vested, because the law leans in favour ot See § 200-9. giving a vested interest, especially to those who are the prior objects of the testator's bounty ; and consequently, the subsequent limitation, unless dependent upon an event to occur at or before the testator's death, shall be con- See § 128, strued a conditional, rather than an alternative limitation, 148-9. because the construing it to be an alternative limitation, involves the necessity of construing the prior limitation to See § 130. be either a contingent or an hypothetical limitation. Illustrations. Thus, where land is devised to a person when he attains 21, with a limitation over in case of his death under that age ; there, if, upon the whole will, the prior limitation is capable of being construed to create a vested interest, it shall be so construed ; and the limitation over shall consequently be construed a conditional, and not an alternative limitation. Sturgess v. And where a testator gave the interest of personalty to MaT^lb ' ^"' f ° r life; anc1, after ^ er decease, he g ave tne sam e to And 'see also be e q ua % divided amongst her three children, or such of Belk v. them as should be living at her decease, the same to be II. 22. i.] OF EXECUTORY INTERESTS. [§ 655. [ 335 ] paid to them at their age of 21 years. The three children Stack, 1 all died in the lifetime of the tenant for life. Sir John Keen > 238 ; Leach, V. C, held, that they took vested interests. He f^Z ? iZ " observed, that the vested interests first given by the will, Wills, 3 were, by the form of the expression, only defeated in case Atk. 219 ; there should be some or one, and not all, of the children an< ? Smt * h v • , ji ,, , , , , ,. , v. Vauqhan, living at the mother s death : but that event did not vin. Ah. happen ; for, there was not one child living, at the tit. " De- mother's death. And he said that the case of Harrison vise >" 381, v. Foreman, 5 Ves. 207, was in point. P 1 ^ ; j as From these observations, it appears that he thought R p. Leg. the words "or such," &c. constituted a conditional limi- 507, 511. tation. It is true, indeed, that he speaks of them imrae- Observations diately afterwards as " the alternative branch of the 0n ^ tur 9 ess . v. Pearson. sentence ; but it must not be supposed from this, that he regarded that branch of the sentence as an alter- native limitation. If the first words gave vested inter- ests, as His Honor expressly declared they did, there could be no room for an alternative limitation: for, it would be contrary to the nature of an alternative limita- tion to operate so as to defeat the vested interests of the See § 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 contingent limitation to the three children, if all three should be living at the mother's death ; with an alterna- tive 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 all died in the lifetime of the mother, neither they nor their representatives would have taken any thing. And such a construction would have violated the rule, See § 200-9. that an interest shall, if possible, 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 ??»' Mad - and the survivor; and, after the death of the survivor, to pay the principal to B.; but, if he should be then dead, then, to his two brothers, in equal shares, or the whole to the survivor of them. B. and his two brothers all died in the lifetime of A., the surviving tenant for life. Sir [ 336 ] II. 22. i.] AN ORIGINAL VIEW [§ 655. Observations on Browne v. Lord Kenyon. See* 136a. See § 99- 103. See 5) 96-8. John Leach, V. C., held, that the word " then" was to be applied not to the vesting, but to the possession. That the only question arose in the bequest to the tvyo 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. It would appear, at first sight, that, in this case, there were a succession of alternative limitations ; that B. was to take, if he were living at the death of the tenant for life; or the two brothers of B., if he were not living at the death of the 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 tenant for life, he would have taken the absolute interest ; for, the principal was to be abso- lutely 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 lifetime of the tenant for life, it may be thought that the brothers 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 representa- tives 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 inten- tion 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 whole between them ; if one II. 22. i.] OF EXECUTORY INTERESTS. [§ 655. [ 337 ] alone survived, that 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 the law favours vesting; See § 200-9. that the first words, " to his two brothers in equal shares," would, of themselves, confer a vested interest on the death of JB. ; 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 had been said, "but in case of the death of either of them in the life of the prior taker, then, to the survivor;" b which would have been a conditional limitation, and not an alternative ; (b) and which would have been a species of limitation very common in such cases. And as to the above argument 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 pre- ference in his mind, lay between the representative of a deceased brother, and a surviving brother, and not be- tween the representatives of the deceased brothers, and any other individuals. The same point was established in another case where Bromhead a testator gave personal property to trustees, to be v * Hunt, 2 settled on the marriages of his daughters, for their se- ,^ a parate use ; and, on their deaths, upon trust for their children ; with a limitation over in the event of either of his daughters dying without having been married, or with- out leaving any children her surviving. M. JE., one of the daughters, had three children, of whom only one sur- vived her; and he claimed the whole of M. E.'s share, insisting, that the vesting of the gift was suspended till the daughter's death, inasmuch as the representatives of none of the children of M. E. would have taken, if all the children had died before her; and it could not have been intended that the right of the representatives of those who died, should depend on the circumstance of one (b) See Harrison v. Foreman, 5 Ves. 207; Deane v. Test, 9 Ves. 147 ; Davidson v. Dallas, 14 Ves. 576. [ 338 ] II 22. i.] AN ORIGINAL VIEW [§ 655. surviving M. E. But the Lord Chief Baron, assisted by two of the Masters, sitting for the Master 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 other children who died before her, was entitled to their shares. The Lord Chief Baron remarked, that there was no limitation over in the event of some of the children dying in the lifetime of their mother ; and if it were to be supplied, it could only be by inference. And he re- ferred to Skey v. Barnes, 3 Mer. 335, and Sturgess v. Pearson, 4 Mad. 411, as direct authorities for the principle on which the Court proceeded in the above decision. Howes v. But where a testator gave all the residue of his real and Herring, personal estate, in trust to sell, and invest the produce, M'Clel. & and app ]y SQ muc h f tne interest to dividends as might ° U * ' be necessary, for the maintenance of his five children, during their minorities, and to accumulate the surplus for their benefit ; and, upon their severally attaining 21, to pay them 2500Z. 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 time when the youngest of them should attain 21, share and share alike. But, nevertheless, that in case any of his five children should die under 21, without issue, then, the share or shares 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 young- est 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 the testator. Observations In this case, a different construction was adopted, on Howes v. because the gift of the surplus was clearly contingent : tiemng. £ or ^ nQ ^ Qn jy ^ ^ wor( j s y r { m ^ -facie import that the surplus was intended for those alone who should be living when the youngest child should attain 21 ; but it was II. 22. ii.] OF EXECUTORY INTERESTS. [§ 656-657 [ 339 ] ncertain till that period whether there would be any sur- plus, 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 which the Event of Death, when mentioned as if it were a Contingent Event, is to be referred. 65o I. Where personal estate is given to a person indefi- I. Where nitely or absolutely, " and in case of his death," or, "in personal es- the event of his death," to another ; this disposition, l ^ te IS "tpit- though apparently constituting a gift of a life interest, caseorinthe with a quasi remainder, or, more strictly, a gift of the ab- event of solute interest, with a conditional limitation over to take death, and effect on the death of the prior taker whenever it may j i i/f^ lS happen, (see 163, 99 — 103, 148—158,) is, c in the absence of death in the all indications of a contrary intent, (c) construed to amount testator's to an hypothetical limitation of the absolute interest, to n f et i me - take effect in the event of the person named as first taker See § 114. surviving the testator, with an alternative limitation over, See c i2g- to take effect d in case of the death of the first taker in the 136. lifetime of the testator, (d) unless there is a gift of a par- ticular interest in the same property, antecedent to the See $658. gift to the person whose death is spoken of, or a mention of some period to which his death can be referred. See § 659. 657 Amongst other reasons mentioned in a subsequent page, this construction is adopted in order to satisfy the import of the words "in case," or "in the event of," which denote a contingency, whereas death at some time 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 Hinckley v. to leave [which included leasehold premises and other per- Simmons, 4 Ves. 160. (c) Billings v. Sandom, 1 B. C. C. 393 ; and Nowlan v. Nelligan, 1 B. C. C. 489 ; as stated, 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. z2 [ 340 ] II. 22. ii.] AN ORIGINAL VIEW [§ 657. sonal estate], and, in case of her death, she then gave all she had to her mother. Lord Loughborough, C, held, on the authority of Zowfield v. Stonefiam, 2 Str. 1261, that the words imported contingency, and that the sister was entitled absolutely. Observations The Lord Chancellor must therefore have considered the on Hinckley disposition as amounting to an hypothetical limitation to v. Simmons. ^ sigter absolutely, if she should be living at the death of the testatrix, with an alternative limitation to the mother, in case of the sister's death in the lifetime of the testatrix. It may be observed, that the opposite construc- tion, that of the words referring to death at any time, was, in this case, extremely 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 lono - as it might be supposed she would. Cambridge Again ; a testator bequeathed to his eldest sister, M., v. Rous, 8 4000/.. an d j in case of her death, to devolve upon her sister C. And he bequeathed to C, 4000Z. ; and, in case of her death, to devolve upon her sister M. Sir W. Grant, M. R., held, that the words referred to a death in the tes- tator's lifetime. His Honor observed, that the words had not in themselves, nor had they by construction received, a precise and definite meaning, in which they must be uniformly understood. That the expression was incorrect, either in not specifying the period to which the death was to be referred, if a contingency was meant, or else in applying words of contingency to an event certain, if they refer to death generally, whenever it may happen. (8 Ves. 21.) That the construction therefore must depend upon the intention. (lb. 23.) That it was absurd to suppose that when M. died, her 4000Z. was to go from her family * to C, and when C. died, her 4000Z. was to go to Jf.'s family : and, to prevent that construction, the words " in the lifetime " of the other must be supplied, which would be departing from the construction of dying generally, and so far giving way to the argument of the other side. (lb. 24.) And then [even if these words were to be supplied, still] during their joint lives, neither could touch a shil- ling ; and if one died leaving children, her share could not have been used for her family, but would have gone II. 22. ii.] OF EXECUTORY INTERESTS. [§ 657. [ 341 ] to her sister, for no other reason but that she happened to survive. (lb. 23.) And where a testatrix made the following bequest: " to Sladev.Mll- M. S., 2000/. stock ; and, in case of her death," the said ner , 4 Mad. 20007. 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 direc- tion : "in case these my residuary legatees shall have departed this life before me, and consequently before this will takes place, it is then my will that the aforesaid resi- duum .... 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 testatrix intended to make a bequest over in the event of the legatee 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 tes- tatrix ; and that as M. S. survived the testatrix, she took absolutely. He observed, 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 in her contemplation the possibility that the legatees might die before her. So where a testator gave his residuary real and personal Ommaneyv. estate in trust for A. P.; and, in case of her death, to be Bevan, 18 equally divided between the children of W. W., A. P. Ves - 29L survived the testator, and then died ; and Sir W. Grant, M. R., decreed payment to her executor, as having taken the absolute interest. So also where a testatrix bequeathed 4000/. to A. ; and, Crigan v. in case of his decease, she o;ave the same to his wife ; Baltics, 7 and, at her decease, to their eldest daughter. Sir L. ? ™* j Shadwell, V. C, held, that A., having survived the testa- child v. tor, was absolutely entitled to the legacy. Giblett, 3 In another case, however, it was considered that the M - &K - 71 - testator intended the gift over to take effect 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, Lord Dou [ 342 ] II. 22. u.] AN ORIGINAL VIEW [§658. Jun. 500. glasv.Chal- in trust for, and to the use and behoof of, her daughter, vier, 2 Ves. j^ty D. ; and, in case of her decease, to the use and be- hoof of her children, share and share alike, to whom her trustees and executors should account for and assign the said resid ue. 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 whoever is in her place, and the testatrix's chambermaid. Lord Loughborough, C, held, that Lady _D. took only a life interest, and, at her decease, the children were to take the capital. His Lordship ob- served, that, taking the words by themselves, such a gift naturally implies that kind of disposition, 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 contingency upon which the limitation to the children was supposed by the plaintiffs to depend. And His Lordship concluded by saying, that if he were to adopt the other construction, 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 representatives 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. II. Where personal es- tate is so li- mited over, and the death is held to be a death in the lifetime of a prior taker. Hervey v. M'Laug fi- lm, 1 Pri. 264. II. Where there is a gift of a particular interest in the 658 same property, antecedent to the gift to the person whose death is spoken of, the death, in the absence of all indi- cations of a contrary intent, is construed to be a death in the lifetime of the first taker, whether subsequent or prior to the death of the testator. A testatrix gave personal estate, in trust for E. T., for life; and, after the death of E. T., she gave the same to the three children of E. T., to be divided among them, in equal shares ; and, in case of the death of either of them, the share of such of them as may die to go to the children of the persons so dying. It was held, that one of the children, who died in the lifetime of E. T., took a II. 22. ii.] OF EXECUTORY INTERESTS. [§658. [ 343 ] vested interest, subject to be devested by his death in the lifetime of E. T., the tenant for life, leaving issue ; and consequently his share belonged to his children, and not to his personal representatives. Again; a testator bequeathed his leasehold and other Clarke v. personal estate to his wife, for life; and, after her death, ?.-y Q ? to a trustee, in trust to pay the rents and profits for and towards 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 survived both the testator and the tenant for life, had become absolute >y entitled to one sixth of the property. And where a testator gave all his copyhold and lease- Le Jeune v. hold property, and all other his property, to his wife, for Le Jeune, 2 life ; and, at her decease, he directed it to be sold, and to be divided into five equal shares, one of which he directed to be paid to each of his four sons that should be living at the time of her decease. And, in case of either of their deaths, then, the share of such so dying to be paid to his issue. Lord Langdale, M. 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. This construction is supported by another case, where Smith v. the death was expressly a death in the lifetime of the wife, ™ B *"» 8 who was tenant for life of the residue. The words were : " provided 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. Shadwell, 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 life- time, prior to the testator's decease, was entitled to a share. In the case of Giles v. Giles, the testator, at the date Giles v. of his will, had but one daughter; but he had had another Giles, S Sim. • 360. daughter, and she left issue, who survived him : and Sir [ 344 ] II. 22. ii.J AN ORIGINAL VIEW [§ 659-661. L. Shadvvell, 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 " daughters," 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. Ill Where III. Where, indeed, the will furnishes any other period 659 personal es- besides the death of the testator, to which the death of tate is so h- j i e g a tee can be referred, it will be held, in the absence niit6d over e and the of indications of a contrary intent, to mean a death before death is held such other period, e rather than a death generally at some to be a death t j me or t nerj an d indeed rather than simply a death before other period. tne testator : ( e ) because, it is more natural for a testator to provide against the death of a legatee before some event which may and probably will happen subsequent to his, the testator's, own decease, than for him simply to provide against the legatee dying before himself. And if the 660 death is construed to mean a death at a period prior to the vesting of the interest in the party whose death is See § 128- spoken of, the gift over is an alternative limitation ; but if ■J Of! . it means a death at a period subsequent to the vesting of See§ 148- sucn interest, it is a conditional limitation. 158. IV. Where IV. Where the gift over is introduced by the words 661 the gift over « if he should di » or b the wordg » QT m ' „ Qr , is introduced ,, 3 .. , , . ,, . , „ , ' , / by other e words Dut m case, instead of the words " and in wordsofcon- case of his death," the intention to refer to a death in the tmgency. testator's lifetime, or at some other particular period, in- stead of death generally whenever it may happen, is still more clear. King v. A testatrix gave to her son, when he had attained 23, Ves/soe! CGrtain SUmS ° f St0ck ' and also hous ehold goods &c, and to her daughter, certain other sums of stock, and the tes- tatrix's wearing apparel. And she willed, that if either of (e) See Home v. Pillans, 2 M. & K. 15, stated, § 663. 11.22. ii.] OF EXECUTORY INTERESTS. [§66l. [345] her children should die, the surviving child should have what she 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 im- possible that the linen, wearing apparel, and china, were intended to be used only, without any absolute interest in them, till the death 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 death 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. Sandom, and Nowlan v. Nelligan, 1 Bro. C. C. 393, 398. That the reasons for decision in Lord Douglas v. Chalmer did not apply to this case. And that in Billings v. Sandom, there was nothing, upon the face of the will, to restrain the construction to dying in the life of the tes- tator, which would not be supposed to be the intention, unless there could be no other. But, the present case, His Honor added, was exactly like Trotter v. Williams, Pre. Ch. 78 ; 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 death of the testatrix, and in the son, at 23. So where a testator bequeathed a sum of stock to his Turner v. nephew, R. I)., then or then lately residing in India, or, Moor, 6 . . . . ... Ves 556. in case of his death, to his lawful issue ; but, if his nephew 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 manner, he bequeathed another part to M. R., then or then lately residing in the town of Leith, or, in case of his death, to his lawful issue. The Master stated his opinion to be, that R. D. died in the testator's lifetime, unmarried. Sir W. Grant, M. R., (after adverting to the circumstance, that the will was made [ 346 ] II. 22. ii.] AN ORIGINAL VIEW T§ 661. eleven years after R. D. had sailed on a voyage in which in all probability he perished,) as a reason why the testator expressed himself with more particularity as to M JJ., 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 present 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. Sandom, 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 Hale, 8 Ves. t j ie use> exclusive right, and property of his sister G; but, 41 °* should G happen to die, then the stock was to be divided among G'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 sum 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 dispo- sitions, the word " but 11 being used in the first bequest, and that word being disjunctive and adversative, opposing one case to another; 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 difference between H. and her sister. In another case, however, it clearly appeared to be the testator's intention that the gift over should take effect on the legatee's death, whenever it might happen; and therefore it was construed accordingly. In that case Smart v. a testator bequeathed as follows: — "I give to my son Clark, 3 E. G, who is now at sea, the interest of 500/. stock, Russ. 365. during his life, if he comes to claim the same within five years after my decease ; but, if he should die, or not come to claim the same within the time limited, then, I give the said stock to the children of my daughter Ann Smart, with all the interest that may be due thereon." The II. 22. ii.] OF EXECUTORY INTERESTS. [§ 662—663. [ 347 ] residue of his estate he bequeathed to his 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 Chancellor, on the authority of Billings v. Sandom, 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," as prima facie importing a contingency, would, at first sight, seem to show that the children of the daughter were only to take if E. C. should die within 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 he was pro- viding, namely, that of Edward not claiming the legacy within five years, was contingent." 662 V. Even where the gift over is not merely dependent V. Where on the simple event of death, but is to take effect " in the gift over case of the death leaving children," or f in case of the 1S n ° l s,m P lv tt j • • i i vi , • ,» , /.v i °n the event person " dying unmarried and without issue, (/) the event f 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 pri- mary objects of the testator's bounty, and also favours (/) Laffer v. Edwards, 3 Mad. 210, stated \ 136a. [348] II.22.ii.] See § 223-6. AN ORIGINAL VIEW [§ 663. Doe d. Lif- fordv. Spar- row, 13 East, 359. Gal land v. Leonard, 1 Swans. 161 ; S. C. 1 Wils! 129. Home v. Pil< the absolute enjoyment and the transfer of property, which would be prevented by the opposite construction. In a case of a residuary devise of real and personal estate, the words, " in case of the death," were held to refer to death in the lifetime of the testator; the testator having expressly confined some of the limitations to the event of a death in his lifetime ; from which, and for other reasons, it might be inferred, that he was contem- plating 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 the interest to his wife, for life; and, upon her death, to pay and divide the trust monies unto and equally between his daughters, H. and A., for their own use and benefit absolutely; and, in case of the death of them, or either of them, 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 being, that the child or children should be re- spectively entitled to the same share his her or their mother would be entitled to if then living ; and upon this ultimate trust, that, in case of the death of his said daughters, without leaving issue living at their respective 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, M. R., after observing that the fund itself, 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 ab- solute 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 expres- sion of the testator's intention, that the children should take the same share to which their mother would have been entitled "if then living." Again ; where a testator gave to his two nieces, 2000/. II. 22. ii.] OF EXECUTORY INTERESTS. [§ 663. [ 349 ] each, when and if they should attain 21, for their sole and lans, 2 M. separate use; and, in case of the death of his said nieces, & ** * 5, or 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 be- come absolute on their respectively attaining 21, but con- tinued to be subject to an executory bequest over, in the event of their leaving children living at their death. But Lord Brougham, C, on appeal, reversed that deci- sion, and held, 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 ano- ther can be found, that will be preferred, ['inasmuch as the maker of a will does not naturally provide for the 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, affords just as easy and as natural a reference as a preceding life interest. Thus, a bequest to A. ; and, in case of his death, to B. ; is a gift absolute to A., unless he dies in the testator's lifetime. A bequest to C. for life; and then to A.; and, in case of his death, to B. ; is a gift absolute to A., unless he dies during C.'s life. A bequest to A., when and if he attain the age of 21 ; and, in case of his death, toB.; is a gift absolute to A., unless he dies under age." (lb. 23, 24.) " In the present case, no period can be derived from any prior life estate, at the determination of which the gift over is to take effect. But the whole clause taken together furnishes a period for the restric- tion, at once natural, and obvious, and consistent with the 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 majority, therefore, the legacies vest; and, as far as this branch of [ 350 ] II. 22. ii.] AN ORIGINAL VIEW [§ 663. the clause goes, vest absolutely If we read the latter part as contemplating a dying at any time, and as converting the legatee's interest, from an absolute interest in the capital sum, into a life annuity, in the event of her leaving 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 2000Z., 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. See § 223-6. It appears quite clear to me that the other construction is the sound one. Having first provided 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." {lb. 25,"26.) Monteithx. And so where a testator bequeathed his personal estate Nicholson, to his brothers and sisters absolutely, and declared, that 2 Keen, ^ a Q f ^ ern should di e in his lifetime, or afterwards, 7 1 9 without 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 sur- viving, 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, M. R., held, that each legatee took an absolute vested interest on attaining 21, and the limitation to the issue was to take effect only in the event Observation of the legatee dying under 21. — There was in effect a on Montieth limitation to the brothers and sisters, if and when they y ' Ntcholson - attained 21 ; followed by two alternative limitations; 136a " namel y» a limitation to the survivors, if one or more of the brothers and sisters should die under 21 , without leaving II. 22.ii.] OF EXECUTORY INTERESTS. [§ 664—666. [ 351 ] issue, or, to the issue of him her or them so dying, if he, she, or they should leave issue. 664 VI. It would seem that this qualifying construction is VI. The equally applicable to real estate. same con- 665 There is however an exception to this : for, s" it seems structl0n ,i , i , ., seems apph- that where a testator devises an estate tail to a person ; ca b] e to real and ; if he died, over; the words ' without issue ' are sup- estate. plied, to render it correspondent with that estate ;" (g) a Exception, construction which does not militate against the applica- tion 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. 666 It has been decided, indeed, that the rules above stated Decision to do not apply to real estate, where the words, " in case of tne contrary, the death," follow an indefinite devise. But perhaps that decision may be thought to have been But perhaps based upon reasons which do not constitute any solid dis- that decision tinction in this respect between real and personal estate ; ls , Ji uest,on " and at any rate they do not apply to wills which have been A , ii made since the beginning of the year 1838, and which it has no ap- are governed by the stat. 1 Vict. c. 26, s. 28. plication to In that case, a testator gave one third of his real estate, devises made to his sisters, share and share alike; and, in case of their R demise, he devised their respective shares or proportions Scowcro'ft 2 to be equally divided amongst their children, or their law- You. & Coll. ful heirs. Alderson, B., held, that the sisters took estates 640. for life only, with 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 two : a bequest of personal estate to A. gives him the whole interest. A devise of land to A. gives him only a life interest. That, in the former (g) 2 Jarm. Pow. on Dev. 764 ; and Anon., 1 And. 33, there cited. [ 352 ] II. 22. il] AN ORIGINAL VIEW [§ 666 case, therefore, the words jn case of their demise pre- ceding a bequest over, cannot 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 mav perhaps be fairly questioned, whether the distinction v. Scow- taken by the ] earne d J u dge is altogether satisfactory. croft. There is no doubt but that the Court is only desirous of giving 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, that the intention was, to guard against lapse, that intention would be effectuated, as much in regard to real estate, as to personal. The only ques- tion, then, seems to be, whether there is any distinction between real and personal estate in point of intention? But the distinction adverted to by the learned Judge is one which arises, as was urged at the bar, from construc- tion 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 A. 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 intention, but in relation to the effect 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 contingency 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 A., then, to the children of A. absolutely," those words would have their proper effect, by restricting A. to a life interest. And so, if the subsequent limitation had been introduced by the words " and in case" &c, instead of " and after," II. 22. ii.] OF EXECUTORY INTERESTS. [§ 666. [ 353 ] &c, the effect would have been the same, if it had been considered that those words did not properly import a contingency. So that the quantity 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 personal estate, even as regards wills made before the year 1838. A A 354] 11.23.] AN ORIGINAL VIEW [§667. CHAPTER THE TWENTY-THIRD. CERTAIN CASES OF VOID CONDITIONAL LIMITATIONS, DE- PENDING ON THE NON-DISPOSAL OF PROPERTY, DIS- TINGUISHED FROM LIMITATIONS IN DEFAULT OF THE EXERCISE OF A POWER. If property is limited to such uses as a person shall 667 appoint, arc], 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 which he is clothed by the law itself, as an incident to property. Ross v.Ross, A testator bequeathed a sum of money to A., to be paid 1 Jac. & a t 25, or between 21 and 25, if the executors should See also ' ^ mn ^ proper; and directed maintenance thereout in the other cases meantime ; and that in case A. should not receive, or dis- cited in the pose of, by will or otherwise in his lifetime, the aforesaid Reporters gun ^ ^en, the said sum should return, and be paid and payable to another person. A. 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 remainder over in default of its exercise : the right of disposing of the legacy was given him not in terminis, 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 absolute property be given to a person, it cannot be subjected, for his life, to a proviso, that if he does not spend it, his interest shall cease. One 11.23.] OF EXECUTORY INTERESTS. $667. [355] 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 Cuthbert natural son, to be paid to him at 21, with a bequest over v * Pumer, in the event of his dying under that age, or afterwards, without lawful heirs, and intestate ; it was held, that the limitation over was not good, on the ground that a person, after investing another with the absolute property, cannot give it over in the event of the legatee's not exercising that power which is incident to and a consequence of property. The case of Ross v. Ross was referred to by the Master of the Rolls, as decisive of the point. A a2 [356] 11.24.] AN ORIGINAL VIEW [§ 668— 668a. CHAPTER THE TWENTY-FOURTH. LIMITATIONS OPERATING DIFFERENTLY, IN REGARD TO ANOTHER LIMITATION, IN DIFFERENT EVENTS. I. An inter- I. An interest maybe specially limited to take effect either 668 est limited ag an alternative, in case a prior interest should never vest, native or as or as a remainder or quasi remainder after it. (See § 128, a remainder 159 — 168b.) II. And even where an interest might appear, at first 668a or quasi re- mainder. I Lif^" sight, to be a mere alternative, it shall be construed as a est shall, if to \ ..'... possible, be remainder or quasi remainder, if possible, as well as an construed as alternative. (See § 128— 136a, 159— 168b.) a remainder Thus, where a testator devised to two trustees and their or quasire- , . , .. _ . . , . _ n , .„ mainder as heirs, to receive the rents until B. should attain 21 ; and if well as an B. should attain 21 or have issue, then to B. and the heirs alternative, of his body, but if B. should happen to die before 21 and Brownsword without issue, remainder over ; B. attained his age of 21, 2Ves 243 S ' anc * a fterwards died without issue. Lord Hardwicke decreed See also triat tne limitation over ^should take effect. The great Southbyw. authority upon this subject observes, a tliat Lord Hard- o Ves^PK)' Wicke construed the word "and," in the limitation over, as as stated, ' " or " ( a ) But > m reality it would clearly appear that His Fearne, 507. Lordship regarded the limitation over as both a remainder and an alternative ; and he does not appear to have con- strued "and" as "or," but to have supplied an ellipsis, so as to 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 B:& 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 (a) Fearne, 506. 11.24.] OF EXECUTORY INTERESTS. [§669. [357] have an estate tail : consequently, 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 him. He did attain 21 ; and therefore had an entail as he would if he died before 21, but had issue. Then the construction 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 construction upon these words : viz. if the said John [B.] 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 reference to a dying under 21 ; and if B. had died under 21, leaving issue, the estate must have gone over, to the exclusion of such issue, contrary to the express words, and the clear intent, as Lord Hardwicke thought, of the testator. The case of Doe d. Usher v. Jessep may at first sight Doe ^ appear to clash with Brownsword v. Edwards. In Doe d. Usher v. Usher v. Jessep, A. devised to trustees and their heirs in Jessep, 12 trust for his natural son J. and the heirs of his body; and ,.■?» . ' , , -ii- r rti distinguished if J. should die before he attained his age of 21 years, f rom Brown- and without issue, then over. J. attained his majority, sivord v. Ed- hut died without issue. The case of Brownsword v. wards. Edwards was cited : 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 contingent upon attaining 21, or having issue. And hence the limitation g ee c 143.9, over in Doe v. Jessep was a conditional limitation. 157. 669 III. b Every remainder or quasi remainder, without jjj Every being specially limited for that purpose, has the effect of remainder or an alternative limitation, in case the preceding interest ^^re- mainder has [ 358 ] II. 24.] AN ORIGINAL VIEW [§ 669. the effect of never vests at all, whether the failure of such preceding an alterna- interest arises from the death of the prior taker in the tive limita- lifetime of tne testator, or from the failure of the contin- thTpreced- 6 gency on which it depended ; unless such contingency, ing interest either according to the grammatical construction or the never vests. a p parent intention, extends to the remainder or quasi See § 159, rema inder also ; (b) and unless there is some other condi- 136a. 128 " tion wllicl1 constitutes a prerequisite to the vesting of the remainder or quasi remainder, and such condition is not fulfilled. In the following case the condition extended to the remainder. Toldervy v. A testator devised real estates, upon trust that his Colt, I You. daughter M. should, until 21, if sole and unmarried, ' receive thereout, an annuity of 60/., and that she should thereafter, and until 31, if sole and unmarried, receive a further annuity of 40Z. ; but, in case his daughter should marry without the consent of his trustees, then, she should receive only an annuity of 50Z., and the said estates should, immediately 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 31. should marry with the consent of the trustees, it should be lawful for them to settle the estates upon M. and her husband, for their joint lives, and the life of the survivor, with remainder to the issue of M. &c. M. married with consent, and died without issue. The Court, on a rehearing, reversing its former decision, held, that as M. married with consent, the re- mainder 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 S., as a remainder depending on an (b) See Chatteris v. Young, 6 Mad. 30. See also Horton v. Whittaker, 1 Durn. & East, 346; Davis v. Norton, 2 P. W. 390; and Doe d. Watson v. Shipphard, Dougl. Rep. 75; Scatterwood v. Edge, 1 Salk. 229 ; and Lord Hardwicke's re- marks in Avelyn v. Ward, 1 Ves. 420 ; as stated, Fearne, 235 —237; and the limitation to V. in Vachel v. Vachel and Lemmon, 1 Chan. Cas. 129, as stated, Fearne, 404. II. 24.] OF EXECUTORY INTERESTS. [§ 669. [ 359 3 estate tail (1 Y. & C. 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 probable conjecture, which it had no right to act upon, insert the proviso immediately before the limitation over of the remainder to the sisters (lb. 642). There was one case in which the testator had clearly omitted to make any provision for his sisters, namely, in the event of the daughter never marry- ing 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 S., His Lordship on Toldervy added another reason for the failure of that limitation, V * ° ' apparently 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 ambi- guous, and probably were either inaccurately reported, or not intended to convey the meaning they apparently convey. Admitting that the limitation to S. is not simply an alternative, amounting to a limitation to »S. for default of such children, but a remainder, to take effect on the expiration of the preceding estate tail ; yet we have seen that every remainder has the effect of an alternative See § 669. limitation, in case the preceding interest never takes effect at all, unless, as in this case, the contingency on which the preceding interest depends, affects the remainder. — In this case, there was, first, in the event of the daughter marrying without consent, the limitation of a springing See § 117- interest to the daughter's children in tail, with a remainder 127a, 159. to $., that is, a remainder in relation to the preceding limitation, 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 mar- rying with consent, there was an alternative limitation to See 128- her and her husband for their joint lives &c. As soon as 136a. the daughter married with consent, the first two limita- tions became incapable of taking effect ; and the third limitation a once took effect, as an alternative for them, [ 360 ] II. 24.J AN ORIGINAL VIEW [§ 669a— 670a. Conse- quence of the above rule, as re- gards chat- tels which are to go to the persons entitled to real estates entailed. See §719. Instance of remainder taking effect as such, though taking effect as an alter- native as re- gards the possession. IV. An in- terest may be limited to take effect either as an alternative or as an inter- est under a conditional limitation. in consequence of the happening of the second-named event, instead of its opposite, the first-named event. As a consequence of the rule last stated, it follows, 669a that c where a testator, after creating contingent estates tail in real property, with a remainder over, directs, that personal estate shall go to the persons entitled to the real estate, as far as the rules of law or equity will permit ; in such case, as the limitation in remainder is capable of operating as an alternative, as regards the real estate, in case the contingent estates tail never vest ; so the limi- tation over shall also enure, in that event, as an alter- native limitation of the personal estate in favour of the individual entitled to the real property under the same;(c) though it could not pass the personal estate to him, if the contingent estates tail had become vested, and the re- mainder were consequently to take effect, in regard to the real estate, as a remainder; because personal estate, as we shall see hereafter, cannot be limited in remainder after an indefinite failure of issue. Where a prior interest vests in the first instance, or after- 670 wards becomes vested in right, a subsequent limitation in re- mainder takes effect even though such prior interest never becomes vested in possession. But then, such subsequent limitation takes effect, as a remainder, after the prior interest has vested, in interest, but has regularly expired before it could become vested in possession : it does not take effect, as an alternative limitation, simply as a sub- stitute for a prior interest which has never taken effect at all ; for, the prior interest, according to the hypothesis, has vested in right or interest, though not in possession. IV. d An interest may be specially limited to take 670a effect either as an alternative, in case a preceding interest should never vest at all, or as an interest under a condi- tional limitation, in defeasance thereof in a particular event, (d) (See § 128—136, 148—158.) (c) See Gower v. Grosvenor, stated, Fearne, .521-2. (d) See limitation to T. in Vachel v. Vachel and Lemmon, 1 Chanc. Cas. 129, as stated, Fearne, 404 ; and Massenburgh 'v. Ash, 1 Vern. 304, as stated, Fearne, 518. 11.24.] OF EXECUTORY INTERESTS. [§671—672. [361] 671 V. But e a mere conditional limitation will have the V. A mere effect of an alternative disposition, if the prior interest conditional entirely fails, (e) unless the condition annexed to the condi- w jjj j ^ tional limitation is not fulfilled, and it does not appear to effect of an have been intended that the subsequent limitation should alternative, take effect except upon the fulfilment of the condition. ! ; P lior fi71o r * i i- • • /• ... „ , , interest never o/ia i And a limitation of a springing interest of the seventh ves t s . kind may have a similar effect, (f) (See § 117 — 127a.) g a j so w ju 672 The reason why remainders, conditional limitations, and a limitation limitations of springing interests of this kind, are usually of a^spring- capable of operating as alternative limitations, seems to A t l be this : that where an interest is postponed so as to take kind, effect by way of remainder, conditional limitation, or spring- Principle of ing interest, this seldom arises from any other motive than the third and a desire of benefiting the person to whom the prior mies. interest is limited ; and therefore, where he cannot take at all, through the failure of the contingency on which his interest depends, and the reason for postponing the ulte- rior 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, proceeded thus : but in case all the said children Parry, 1 V. shall die before 21, then, I give all such residue to my wife. Sir W. Grant, M. R., held that the bequest over took effect, though the testator never had any child. So where a testatrix directed, that in case she should Murray v have but one child living at the time of her decease, or Jones, 2 V. o^ p O 1 o all but one should die under 21 and unmarried, then, her trustees should stand possessed of the residue in trust for another family. The testatrix never had a child. Sir W. Grant, M. R., held, that the bequest over took effect ; ob- serving, that if the subject admitted of gradation, it might (e) Jones v. Westcomb, 1 Eq. Abr. 245; Andrewsv. Fulham, 1 Wils. 107 ; Gulliver v. Wickett, 1 Wils. 105 ; and Lord Hard- wicke's observations in Avelyn v. Ward, 1 Ves. 420 ; as stated, Fearne, 510—513. Doe d. Herbert v. Selby, 2 Bar. & Cres. 926. (/) Avelyn v. Ward, 1 Ves. 420, as stated, Fearne, 513. [ 362 ] II. 24.] AN ORIGINAL VIEW [§ 672. be said that the condition was more than fulfilled ; the circumstance which was to exclude the residuary legatee beino- 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. Westcomb : the limitation over depended on the failure of that which preceded it, but that the testatrix had not taken in all the modes by which it might fail. (lb. 322.) Mackinnon And where a testatrix gave the residue of her personal v. Swell,* estate to her daughter C. D., for life; and, after the M.&K.202. decease f C. D., to her grand-daughter, C. L. D., if she should survive 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. e., such other children as should be living at C. D.'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 his 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. ZJ.died in the lifetime of the testatrix's daughter C. D. ; and the only other child, J. D., also died in the lifetime of C. D., after having attained 21. Sir L. Shad well, V. C, and after- wards Lord Brougham, C, on appeal, held, that the be- quest over to L. M. took effect. His Lordship observed, that the Respondent did not read the words as if they were " all the other children of Caroline," but took them literally as they stand, "all such other children of Caro- line" 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 way of the preceding interests, in II. 24.] OF EXECUTORY INTERESTS. [§ 672. [ 363 ] whatever manner that removal was effected ; whether by persons coming into existence, so as to make the interests vest, and their dying under 21, so as again to devest their estates ; or by their never coming into existence, and thus never taking the interests at all. (lb. 213.) That if in- deed anything had turned on the circumstance of there being surviving children of Carolme, the reasoning would have failed (lb. 219) ; for, wherever the words plainly import a condition as in the testator's contemplation, and where that condition cannot be understood to have been substantially complied with by the event which has actu- ally happened, the gift over fails. (lb. 217.) The limitation to " such other children of C. D. as Observations should be living at her decease," would have given the on Mackm- children, if any, who survived C. D., a vested interest at g ewe 'u her death ; for, the payment alone, as Lord Brougham in- timated, and not the vesting, was postponed till their majority. And hence the ultimate limitation to L. M. was a conditional limitation, to take effect in defeasance See § 148-9. of the estate of the children of C. D. who survived her, in case of their dying before 21. But as there were no such children, that is, no children who survived C. D., and consequently the limitation " to such other children as should be living at her decease," entirely failed, the ultimate limitation to L. M. took effect, not as a condi- tional 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 effect at all : so that, in the events * 36 - which happened, the disposition made by the will was construed as if it amounted to a bequest " to all such other children of C. D. as should be living at her de- cease," 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 Mackinnon be divided equally between his two daughters; and, upon £ Pea ^^ the demise of either of them without lawful issue, then, the share of her so dying should go to her sister. One of the dauohters died unmarried in the testator's lifetime. Lord Langdale, M. R., said, that, in the event of either daughter dying without lawful issue, her share was given to her sister, i. e. to the survivor of the two daughters; [ 364 ] II. 24.] AN ORIGINAL VIEW [§ 672-672a. and that the circumstance 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 Northey v. Burbage, Prec. in Chan. 471, pi. 4 ; Willing v. Baine, 3 P. W. 1 13 ; Humphreys v. Howes, 1 Russ. & M. 639. Wilson v. And so, where a testator gave a sum of money in Mount, 2 trust to pay the interest to A., for life ; remainder to B., Beav. 397. f()r j^ e . rema i n der to such of the children of A. as should be living at the decease of the survivors of J., and B., to 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 de- cease of A. and B., to pay over the capital to certain other persons. A. had only two children, and they at- tained 21, and died, leaving issue, in A.'s lifetime. Lord Langdale, M. R., held, on the authority of Mackinnon v. Sewell, (though that, as His Lordship observed, was the case of a residuary gift) that the words were not to be taken according to their strict meaning, but that the gift over took effect. Exception. But where the prior limitation is void for remoteness, 072a a subsequent conditional limitation fails. Routledgev. A person made a testamentary appointment of a sum Dorril, 2 of money to M. D., for her life, for her separate use ; and Y5!* Jun# after her decease, to her children ; and, in case she should leave no children, or they should die before 21 or mar- riage, 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 H. D. 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 JR. D. in failure of the existence of persons incapable of taking, yet, notwith- standing they exist, he should take as if it was well ap- pointed 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. Audley, that the 11.24.] OF EXECUTORY INTERESTS. [§673. [365] Court would not wait to see what contingency would happen, when, at the time it was given, it was at a period more distant than the law would permit. (2 Ves. Jun. 363.) 673 VI. Where a remainder in fee, and not in tail or for VI. Condi- life, is subject to a conditional limitation, to take effect*! lta ~ , r c , ,j , . , , tion becom- m defeasance ot such remainder, in an event which must \ n „ armna \ n "1JJ, a ItUlalll- happen, if at all, before the regular expiration of the par- derin the ticular estate ; in such case, although the conditional room of a limitation has no connexion with the particular estate, in P rece .°- in g . , ... . * i . , i remainder m the first instance; yet, it the event happens, on which the f ee# conditional limitation is to take effect, the conditional See § 148-9, 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 Doe d. Har- W. JET., for life ; remainder to W. H., for life ; remainder ris v \^n°" to John, his daughter's son, and his heirs and assigns for & q vqs ^gj ever ; but, in case he should die before the testator's 202. daughter, E. H., and she should have no other child living at her death, his will was, that his said daughter should give and devise the premises to such person as she should think proper. The testator died in February 1763, and John, the daughter's son, in April following. In January 1766, the daughter had another son, W. H., the younger. In November 1770, W.H. the elder died; and in Hilary Term 1773, E. H. levied a fine with pro- clamations. Bayley, J., in delivering the judgment of the Court, said, that until the death of the testator's grandson, John, the limitation by implication to any other child or children whom E. H. should leave at her death, " could avail only as an executory devise, by reason of the previous gift of the whole fee to the testator's grand- son, John. Upon the death of John, we think the cha- racter and quality of this limitation changed, and it be- came"^ contingent remainder For, 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 other interest was a contingent remainder in [ 366 ] II. 24.] AN ORIGINAL VIEW [§ 674-677. favour of any child or children she should leave at her death, and that remainder the fine has destroyed." VII.Afuture VII. A future interest (as the reader may have per- 674 interest is ce | ve( j f rom g a preceding passage (g)) is never construed struedan in- as an interest under a conditional limitation or as a terest under springing interest, whether by way of use, or devise, a conditional vvriere a preceding freehold has once vested, and the aTrin' " 01 future interest is so limit ed, that, at t,ie time of the limi " interest, tation, there was a possibility of its taking effect as a re- when it can mainder ; though other circumstances may seem to indi- be construed cate tnat j t wag not intended to take effect as a remainder; See $ 148-9 and though eventually, in fact, it may be incapable of 117, 159. operating in that way. But, h where a preceding freehold, 675 But when which was capable of suppoiting a future interest as a thepreceding remainder, is, by a subsequent accident, (as by the death what would ' 0I> * ne ^ rs ^ devisee in the testator's lifetime) precluded otherwise from taking any effect at all ; the future interest may take have been a effect as a springing interest by way of use or devise. construed a And, m sucn case 5 an ulterior interest in remainder after 676 springing in- sucn less remote future interest as above mentioned, until terest. the less remote future interest vests, also becomes a rJ n • an e " springing interest, when regarded abstractedly instead of in remainder' 11 Nation to the less remote future interest; but, as soon also becomes as such less remote future interest vests, then such ulte- a springing r j or interest is not only a remainder in relation to such stracted'ly ' ess rem °t e future interest, but it is simply a remainder, regarded, even when abstractedly considered ; having altogether though it is ceased to be a springing interest, and having resumed aVregards 6 " that charact er which it would all along have borne, had the less re- tne preceding freehold taken effect as intended, (h) mote spring- And, in like manner, in other cases, * an ulterior interest 677 rog interest. j n remainder after a less remote future interest, until such And so, in less remote future interest vests, is a springing interest, other cases, when regar ded abstractedly instead of in relation to such (g) See § 196 — 199, and cases there referred to. And see Fearne, 526. (A) See Hopkins v. Hopkins, Cas. temp. Talb. 44, as stated, Fearne, 525—6. II. 24.] OF EXECUTORY INTERESTS. [§ 677. [ 367 ] less remote future interest ; but as soon as such less re- until a less mote future interest vests, such ulterior interest becomes rem °te future simply a remainder, even when abstractedly considered, (i) an u j ter -Q S S ' A testatrix devised lands to J. TV., his heirs and assigns interest in for ever; provided that if J. N. should die without any remainder is issue on the body of his then wife begotten, that the ? JP r,n g™g interest ab- lands, after the death of J. N. and his wife, should go to stracted'lv all the children of the testator's grand-daughter, M. D.-> considered, as tenants in common. J. N. died without issue, in the though it is lifetime of the testatrix, leaving his wife him surviving. as , er It was held, that J. N. would have taken an estate tail if such less re- he had survived the testatrix ; and the limitation to M. mote future D.'s children would have operated by way of contingent ,nterest « remainder; but that, as the estate tail had lapsed, and L>0( i& • Scott the law would not raise an estate for life by implication in ]yj au &c'j J. N.'s widow, there was no estate of freehold to support 482. the interest of M. D.'s children, as in remainder; and therefore, on the authority of Hopkins v. Hopkins, Cas. Temp. Talb. 44, the limitation to them operated 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 contingent 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. D.'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 intention of the testator. (i) Stephens v. Stephens, Cas. temp. Talb. 228, as stated, Fearne, 519, 526. [368] H.25.] AN ORIGINAL VIEW [§ 678-681. CHAPTER THE TWENTY-FIFTH. LIMITATIONS OPERATING DIFFERENTLY IN REGARD TO DIFFERENT LIMITATIONS. I. The same limitation may be a remainder, an alterna- tive, and a conditional limitation. See§ 159, 128,148-9. See § 669. I. The same limitation may be a at once an alternative 678 limitation in regard to the next preceding limitation, and a conditional limitation with respect to another preceding limitation ; (a) or a remainder, in relation to the next pre- ceding limitation ; an alternative limitation, in regard to another limitation; and a conditional limitation, with respect to a still earlier limitation. For, since a remainder usually has the effect of an al- 679 temative limitation, if the preceding interest never takes effect at all ; where the preceding interest is an alternative limitation, which does not carry a fee simple or qualified, and which is a substitute for a prior limitation in fee, and neither the prior limitation in fee, nor the intervening alternative limitation so substituted for it, take any effect at all, the remainder, operating in this case as a substitute for a substitute, that is, for the intervening alternative limitation, must be a substitute for the prior limitation in fee: and hence, the remainder, at the time of its creation, is capable of operating either as a remainder, or as an alter- native limitation, as regards the intervening alternative limitation, and also as a simply alternative limitation in respect to the prior limitation in fee. And where a clause 680 takes effect, by way of alternative limitation, as a substi- tute for a conditional limitation, it must be itself a con- ditional limitation, with respect to the interest to be defeated by the conditional limitation for which it is a substitute. To illustrate the truth of these positions, let us suppose 681 that lands are devised to the use of A. and his heirs ; and (a) See Fearne, 514, note (7). II. 25.] OF EXECUTORY INTERESTS. ft 682. [ 369 ] if he shall leave no child of his body living at his decease, to the first son of B. 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 A. 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 A. 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 effect as a substitute for the intervening alternative limi- tation to the daughters of B., which is a substitute for the prior limitation 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 J5., or, in other words, an alter- native 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 A.; inasmuch as the gift to the son of B., for which it is mediately and virtually an alter- native or substitute, is a conditional limitation, as regards the limitation to A. If A. has no child of his body living at his decease, the fee is to pass from him, and whatever limitation may happen to be the one which attracts and transfers the fee from him to another person on that event, is a conditional limitation, as regards the limitation to A. : so that, if A. leaves no child living as aforesaid, and B. has no child who becomes capable of taking, the limitation to C. will take effect on the death of A. ; and by trans- ferring the fee from A. to C, will operate as an alternative limitation, as regards the conditional limitations to the sons and daughters of B., and thus, standing in their place, will also operate as a conditional limitation, as respects the limitation to A., in the same manner as the limitation to the sons of B. would have operated, had it taken any effect. 682 II. And it would seem, that, in a similar manner, the II. The same B B [ 370 ] II. 25.] AN ORIGINAL VIEW [§ 682a. limitation same limitation may be an alternative limitation in regard may be an to the next preceding contingent limitation, and, at the alternative game time ^ ag respects another preceding limitation, or the mentadvT" absence of any preceding vested limitation, an augment- limitation, or a tive limitation, or a limitation of a springing interest, a limitation of a spring- jjj E verv m0 re remote limitation may be a remainder, 682a T TUT as re s ards a p rior iimitati ° n ' thou § h it is not limited next 137, 117.' after such prior limitation, so long as it is to take effect, III. Every if at all, on the regular expiration of the interest created more remote by such prior limitation. limitation j, jj devised to his son G. for life ; and, from and remainder as after his decease, unto all and every the children and regards a ' child of G., lawfully to be begotten, and their heirs for prior limita- ever> to hold as tenants in common ; but, if his son G. nTlimited h should die without issue > or leavin g issue ' and such child nextTfter it. or children should die before attaining the age of 21 years, See § 159. or, without lawful issue, then, he devised the same estates Doe d. Her- unto his son T., his daughter A. S., and his son-in-law bertv.Selby, jp j) ^ am j to t \ leir heirs for ever, as tenants in common. 0^926 After the testator ' s death, G. suffered a recovery, and died unmarried, and without issue. Bayley, J., remarked that the devise must be read " if the children should die before 21 and without issue," as otherwise the remainder See § 159. [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 devise, [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 have operated as an See § 148- executory devise, [i. e. as a conditional limitation by way 158. of executory devise]. But, George having died without having a child, the first fee never vested, and the remain- der over continued a contingent remainder" [in relation to the particular estate]. And the Court held accordingly, that it was a contingent remainder, and was therefore defeated by the destruction of the particular estate by the recovery. II. 26.] OF EXECUTORY INTERESTS. [§ 683—687. [ 371 ] CHAPTER THE TWENTY-SIXTH. LIMITATIONS INTENDED TO OPERATE IN DIFFERENT WAYS, IN REGARD TO DIFFERENT PORTIONS OF PROPERTY. 683 It would seem that a limitation may operate in different Limitations ways in regard to different portions of property. Thus, m ay operate 684 I. There would appear to be no reason why a limita- I. A limita- tion should not, by express words, be made to operate as ^ on ma y be a conditional limitation in regard to property previously P enned so as a : j 4. ±-u j i r .. J £ to operate as devised to some other person, and also as a limitation ot a conditional a springing interest in regard to property not before de- limitation, vised, in such a way, that, in one and the same event, an . d as a H~ both portions of property may go to the same person. sDrine-" terest, in re- 685 II. In a similar manner, it is conceived, that a limita- gard to dif- tion may be penned so as to operate as an alternative * erent P or " limitation, in regard to one portion of property, and as per t y another kind of limitation, in regard to another portion of g ee e 143.9 property. 117, 127b. ' 686 It may indeed be objected, that as the person who is II. A limita- the object of an alternative limitation, is only a substitute ^ on ma y be for the primary object of the testator's bounty, there is an !° P enned aS 1 ! •!• v . . ! 1 ■ t • to operate as improbability, a priori, that the alternative limitation an a lterna- should be intended to vest in him a larger amount of tive and as property than the prior limitation would have vested in an otner kind the primary object, in whose stead he is to take. But, • re p. ar( j to ' yet, it is conceived, that an alternative limitation, may, by different por- express words, have this operation, unless the event on tions of pro- which the alternative limitation is to take effect, is too P ert y- remote as regards the additional property. ^ e ^ Vnfi 687 In the case of Malcolm v. Taylor, the contrary might ~, .' . , . , , , , , , . ? , 11 Objection, seem to be decided ; but probably it is not to be regarded as going the length of establishing a general rule, to the effect, that an alternative limitation cannot be made to bb 2 [ 372 ] II. 26.] AN ORIGINAL VIEW [§ 687. pass more than would have passed in the opposite event, under the prior limitation, for which it is a substitute. Malcolm v. In that case a testatrix devised and bequeathed a West Taylor, 2 India plantation, and all the residue of her money in the Russ. & M. fundSj anc j a i so ner pi a te } books, and certain portraits, to 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 appointment, then, the plantation and the residue of the stock to be equally divided among the said children and their heirs ; the stock to be an interest vested in them, being sons, at 21, and, being daughters, at 21 or marriage; but in case 31. T. should die without issue of her body, the testatrix devised the plantation equally among the children of A. 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 /. M. and his assigns, for his life, and, after his decease, she be- queathed 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 mar- ried. It was held by the Master of the Rolls, and afterwards by Lord Brougham, C, on appeal, that /. M. took a life interest in the stock, but no interest in the plate, books, and portraits. 1. I. 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 chil- dren, so as to amount to an alternative limitation in the event of M. T. having no children at all ; the testatrix clearly intending to bequeath the stock to the children of M. T., if she had any children, and to I. 3L, 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 clause, to construe " son- See § 403-4. a word of limitation, when, in almost every case, it is a 11.26.] OF EXECUTORY INTERESTS. [§687. [373] word of purchase, and the interest of /. M. was expressly restricted to a life interest ; and the meaning of the sub- sequent words, " in case the said /. M. shall die under age, and without issue,'''' might fairly be taken to refer to the contingency of his dying without having had any children. 3. It was held that /. M. took no interest in the books, plate, and portraits. The reason of this de- cision is thus stated by Lord Brougham. " It \i. 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 Marians children, as she may appoint. Here the plate [together with the books and portraits] is dropped, and no provision with regard to it is made, in the event of Maria Taylor failing 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 construing the subsequent gift over, the words ' without issue as aforesaid 1 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 mentioned when deal- ing 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 men- tioned 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 the See § 706, gift to her being what in the case of realty would be an 714, 719. estate tail — it is indifferent which — Maria Taylor takes |ee § 593, absolutely ; and consequently, the interest in this part of the property now vests in her personal representatives." (2 Russ. & M. 444.) With the utmost deference for so great an authority, Observations it may perhaps be questioned, whether this part of the on Malcolm decision is altogether satisfactory — whether there was v * Taylor. any necessity for the conclusion to which the noble and learned Judge thought himself, by parity of reason, obliged to come. The reasoning at the bar would seem to be perfectly incontrovertible, when it was urged, that [ 374 ] II. 26.] AN ORIGINAL VIEW, &c. [§ 687. there was " but one set of words introducing the gift over, both of the funded 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 construc- tion, with reference to one and the same subject matter ? for, though the descriptions of property are two, they form the subject of but one gift;" (ift. 428) and (it might have been added) they are of the same legal nature, being both personal estate. It is true, indeed, there was some degree of improbability, a priori, in the supposition, that the alternative limitation should have been intended to confer on J. M. and his son, a larger amount of property, in the event of there being no chil- dren of M. T., than those children, the prior objects of the testator's bounty, would have taken, if any such had existed. But this difference, as was urged at the bar, probably arose from a mere accidental slip. But ad- mitting that it did not, the simple question would seem to be, not what was the probability or improbability, a priori; but, what were the express words ? and, whether there is any rule of law, preventing an alternative limita- tion, however it may be framed, from conferring on the person who is the object of it, a larger amount of pro- perty than the other party would have received for whom he is substituted ? PART III. RULES AND PRINCIPLES RELATING TO MISCELLA- NEOUS POINTS IN THE LEARNING OF EXECUTORY INTERESTS. III. 1 .] OF EXECUTORY INTERESTS. [§ 688—690. [ 377 ] CHAPTER THE FIRST. OF THE EFFECT OF THE NON-FULFILMENT OF CONDI- TIONS (a) PRECEDENT AND MIXED. 6881. When the vesting of an interest, whether in real or I. Effect of personal estate, is made to depend upon a condition pre- j^ e non-ful- cedent or mixed, and such condition is not exactly ful- ^j rec * con( ji_ filled, the interest which is to arise thereon, if it is not a t ions pre- mere alternative interest, fails altogether, however plain cedent and the apparent intention to the contrary may be, unless such ?J X v ^ 13 ' intention is sufficiently expressed by, or necessarily im- thelimitation plied in, other words in the instrument. is not a mere 689 And b if such interest was to arise by way of condi- alternative, tional limitation, in defeasance of a prior interest, such v* /• prior interest then becomes absolute and indefeasible : (b) because, the condition, as regards such prior interest, is a condition subsequent; and an interest subject to be de- See § 11, 12. feated by a condition subsequent, of course becomes abso- lute, when the fulfilment of such condition can no longer take place. The exact fulfilment, then, of a condition precedent or mixed, being requisite, it follows, that 690 1. Where an event may take place under different cir- 1. Where the cumstances, and the testator has only provided for its event nap- happening under one state of circumstances ; in such P^ cir _ r case, if it happens under other circumstances, the interest cumstances limited will fail, unless it is a mere alternative interest, than those although the difference in the circumstances may appear S P j CI< J ed j'. ~ -— mitation is (a) As to the question, what amounts to a fulfilment of a con- dition, the reader is referred to the learning of conditions in the text books and abridgments, such as Coke upon Littleton, Shep- pard's Touchstone, and Viner's Abridgment. (6) See Jackson v. Noble, 2 Keen, 590. [378] III. 1.] AN ORIGINAL VIEW [§691. not a mere alternative. Holmes v. Cradock, 3 Ves. 317. to be perfectly immaterial, and although it is almost cer- tain, conjecturally, that the testator, in providing for one case forgot to provide for others that might arise, instead of intending the interest to depend on the event happening in the mode specified. A testator, if his son should die, leaving his, the testa- tor's, wife, without leaving a widow or any child, after his death and his wife's, gave to F. H. a legacy charged on his real estate. The son survived the testator's wife, and then died, without leaving a widow or child. Sir R. P. Arden, M. R., (on the authority of Boo v. Brabant, and Cal- thorp v. Gough, 3 Bro. C. C. 393, 395 ; and Benn v. Bag- shaw, 6 T. R. B. R. 512,) held, that 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. So where a testator directed, that in case J. H. should die before 21, leaving issue, then, that his executors should divide a sum of money among the children of J. H. ; and J. B. died, leaving issue, before the time at which the money was given to herself, but after she had attained 21. Sir R. P. Arden, M. R., on the authority of the same cases, held, that the legacy failed ; though he observed, that Benn v. Bagshaw revolts the feelings of any man sitting in judgment, provided he is at liberty to indulge them in anything beyond necessary implication. And where a testator, after making other limitations, proceeded thus: " But, in case of such, my son's, demise in the widowhood of his mother, without leaving lawful issue, then, I direct the whole of the proceeds of my pro- perty to be paid to her during her widowhood, subject to an annuity of 40Z. per annum to be paid to T. B. ; and, in case of the marriage or death of my wife, my son being dead, and leaving no lawful issue, then, I give the whole of the proceeds of my estate to J. B" The son survived the widow, and died without issue. Alderson, B., held that the estate belonged to the heir-at-law. 2. Where 2. And where a testator confines his bounty to certain 691 a limitation descendants only of himself or another person, and then the not 1 limits the property over, in case of his or of such other ing issue, ge- persons dying without leaving issue; in this case, if he or Parsons v. Parsons, 5 Ves. 578. See also Pearsall v. Simpson, 15 Ves. 29. Dicken v. Clarke, 2 You. & Coll 572. HI. 1.] OF EXECUTORY INTERESTS. [§691. [379] such other person does leave issue at all, though none nerally, and of the description to whom the property was expressly not ^ ere ly t • i . ^ i, i .i t « ,„ on the not limited, the Court will not supply the word "such or leaving issue "said," so as to make the limitation over capable of who can take taking effect on the failure of the issue who were the ob- under the jects of the prior limitations, but will hold the limitation P. * imi a " over to have failed. A testator devised one moiety of and in a house, as Doe d. Rew follows : " In trust for such son of mine, by my present v. Lncraft, wife, as shall first attain the age of 21, as and when such 8 D,n £' ,3b0 * son 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. t 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 depart this life without leaving issue, then, in trust for N. L. (his wife's brother), his heirs and assigns, for ever." J. JY., the testator's daughter and only child died at the age of 4 years. It was held that JY. L. took nothing." And where a testator bequeathed a sum of stock, in Andree v. trust for G. G., for life ; and, in case he should marry Ward, 1 any woman with 10002. fortune, then, his will was, that Russ ' 26 °* the said sum of stock be settled upon his wife and the issue of such marriage ; but, in case of his son's decease, leaving no issue, then, he gave the stock to certain other persons, and bequeathed the residue of his estate to W. W. Two suits were instituted respecting this pro- perty. And Lord GifTord, M. R., held, that the words of the will were not sufficient 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 [380] III. 1.] AN ORIGINAL VIEW [§ 692-693. II. Effect of the non-ex- istence of the objects of a conditional limitation. Smither v. Willock, 9 Ves. 233. Harrison v. Foreman, 5 Ves. 206. son took a quasi estate tail. Neither were these words sufficient to imply a gift to the issue of G. G. And His 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. II. Where a conditional limitation is limited in favour 692 of unborn persons, or persons who shall answer a given description, and no such persons come in esse or answer such description, the preceding estate becomes absolute: because, although the express condition may have been fulfilled, on which such estate is to go over, yet, as there is no one to whom it can go over, according to the terms of the conditional limitation, it must of necessity remain undevested by the fulfilment of the express condition. Or, 693 to view the point in another light ; if the existence, at some period, of the objects of the conditional limitation, is regarded as indirectly forming 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, from and after her death, the capital to be divided between the testator's brothers and sisters, in equal shares; but, in case of the death of any of them in the lifetime of the wife, the shares of him, her, or them so dying, to be divided between his children. One of the brothers died in the lifetime of the testator's widow, without having ever had a child. Sir W. Grant, M. R., held, that he took a vested interest, subject to be devested only, [in effect,] in the event of his death in the life of the widow, leaving children ; and consequently that event not having happened, his representative was entitled. And where a testator gave 40Z. 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 40Z. per annum, 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 III. 1.] OF EXECUTORY INTERESTS. [§694—695. [ 381 ] 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. 694 HI. But, a limitation which is simply an alternative III. Where limitation, will be allowed to lake effect, if, in any way, the limita- the next preceding limitation fails to take any effect, even ,. though the precise event on which such alternative limi- limitation, tation is to take effect never happens. 695 It is considered that the testator intended that so long Principle of as the preceding limitation fails of taking effect, whether . e dlstmc " r . . ° tion. in the event specified, or in any other, the alternative limi- tation shall operate in lieu of it : for, as the condition on which a mere alternative limitation is made 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 negation of the contingency on which the preceding limi- tation depends ; it is more consonant to sound construc- tion, not to regard it in the light of an ordinary condition precedent, constituting a literal pre-requisite to the vesting See § 13. of the interest, but to view it as amounting to a general expression of an intention, that in the event of the failure of such preceding interest, another should take effect in its stead. A testatrix directed the interest of her residuary estate Prestwidge to be applied in defraying the expenses of the education v - Groom- of her nephews George and Charles; and the principal J} %] to be applied, either in binding them apprentices at the g ee a j so age of 14, or to be reserved till they attained 21, to com- Fonnereau mence business. And, in the event of George and v - F° nne - Charles (both or either of them) being settled before the rjjc ' will should come in force, she provided, that the next boy stated, {James or Henry) should "have the benefit, and so on." Fearne, 512. George and Charles survived the testatrix, but died under 21, before the principal was applied in binding them ap- prentices. Sir L. Shadwell, V. C, said, that the intention of the testatrix was, to make a provision, out of the fund, [ 382 ] III. 1 •] AN ORIGINAL VIEW [§ 695. for two of her brother's sons; and if the provision failed as to either George or Charles, that James should be sup- ported out of it; and if it failed as to both of them, then, that Henry should be supported out of it. Aitonv. And where a testator bequeathed the interest of a Brooks, 7 gum of stoc k to A. and B., for their lives; and, after See'afso 4 ' their deaths > he directed his tmstees to transfer the Bradford v. capital to their children then living who should attain 21 ; Foley, Doug. w ith a proviso, that in case either of them, A. and B., Rep. 63, as s j 10U jj have any child or children living at the time of Fearne 234, their respective deceases, but which should all die before which was a' 21, then, his trustees should assign the share of the case of real w a tee so dying without issue, to enjoy as aforesaid, unto estate. ^ surv i vor f them the said A. and B. A. died, leaving a child, who attained 21. B. afterwards died, without having had any issue. Sir L. Shadwell, V. C, held, ac- cording to Mackinnon v. Sewell, that the limitation over took effect, and A.'s personal representative was entitled to B.'s moiety of the stock. His Honor observed, that he could not but think that the testator intended the limita- tion over to take effect in the event of either of the first takers not having a child to take, as well as in the event of either of them not having a child who should take so as to enjoy; and that the word "survivor" must of ne- cessity be taken to mean " other;" for, the testator con- templated [i. 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. Observation Without differing from the learned Judge, in his opinion on Alton v. that Mackinnon v. Sewell governed this case, it may be useful to observe, that Mackinnon v. Sewell was the case See § 671-2. of a conditional limitation allowed to operate as an alter- native, 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. III. 2.] OF EXECUTORY INTERESTS. [§696. [383] CHAPTER THE SECOND. OF THE EFFECT OF THE ORIGINAL INVALIDITY OR THE EVENTUAL IMPOSSIBILITY OF CONDITIONS. 696 Without entering minutely into the question, what con- What condi- tions void. ditions are void, which is a subject fully discussed under the head of conditions in the text books and abridgments, it may here be observed, that conditions are void, 1. a If they require the performance of an act which is 1. Morally morally wrong or civilly unlawful, (a) ^ r ? n £ or 2. b If they are repugnant to a rule of law : as where the ] aw f^ condition is a condition at common law, to defeat a part % Remie-- only of an estate tail, (b) nant to a 3. c If they are contrariant in themselves : as in the case ru l e of law. of a proviso for determining an estate tail as if tenant in *■ Contra- tail were dead, (c) without adding any such words as se i ves n 6m ~ d " and there were a general failure of issue inheritable under the entail.'" (d) 4. e If they are uncertain or ambiguous : as in the case 4. Uncertain of a proviso against advisedly and effectually attempting or ambigu- &c. to alien, (e) 5. f If they restrain tenant in tail from suffering a re- 5. Restrain- covery, or levying; a fine within the statutes of 4 Hen. VII. * n £ rom su '~ c. 24, and 32 Hen. VIII. c. 36 ; (/) and not from levying cove r V or (a) See Fearne, 249, 276. (b) lb. 252. (c) Corbet's Case, 1 Rep. 83b ; Jermyn v. Ascot, 1 Rep. 85 a ; and Cholmeley v. Humble, 1 Rep. 86 a; as stated, Fearne, 253. See also Plesingtons Case, as stated, Fearne, 256. (d) Fearne, 254, note (e). (e) Mildmay's Case, 6 Rep. 40 ; and Foy v. J. Hynde, Cro. Jac. 696 — 7 ; as stated, Fearne, 255, 256. (/) Mary Partington's Case, 10 Rep. 36 ; and Sonday's Case, 9 Rep. 128 ; as stated, Fearne, 258. See also remarks on Rudhall v. Milward, Savile, 76 ; Fearne, 259. [ 384 ] III. 2.] AN ORIGINAL VIEW [§ 697-700a. levying a or making sa mere fine at common law, feoffment or fine within ofcher tortious discontinuance or alienation, (#) or h a sale vif' i™\\ to state the mle nation tf, "the somewhat more precisely; a contingent remainder cannot particular vest at all, unless it vests during the existence of a pre- estate. vious estate f freehold, or at least at the very instant of the determination of the sole or last subsisting previous estate of freehold. a " This rule," observes the learned authority upon this 703 subject, "was originally founded on feodal principles, and was intended to avoid the inconveniences 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." (a) Some further observations upon the point will be found in a subsequent chapter. II. Aremain- II. b "It follows, that an estate limited on a contin- 703a der may fail g e ncy, may fail as to one part, and take effect as to as to one & ,/ / xl ,. , part onlv another, wherever the preceding estate is in several persons in common or in severalty ; for the particular tenant of one part may die before the contingency, and the particular tenant of another part may survive it.' 11 (b) (a) Fearne, 307, 308. And see Doe d. Mussel v. Morgan, 3 Durn. & East, 763, as stated, Fearne, 309. (b) Fearne, 310; and Lane v. Pannel, 1 Roll. Rep. 238,317, 438, as there stated. III. 3.] OF EXECUTORY INTERESTS. [§ 703b— 705. [ 387 ] 703b III. c " So likewise a contingent remainder may take III.Aremain- effect in some, and not in all the persons to whom it was " er ma y ™ ,. ., , ,. , r ,, as to some limited ; according as some may come in esse before the Dersons on i v determination of the preceding estate, and others not." (c) 704 For, an estate by way of remainder, when it has once A remainder, vested in possession in some person or persons, cannot wnen Jt has once vested afterwards open, so as to let in others who were not in ; n posses _ esse till after the determination of the particular estate ; sion, and not though d where it has only vested in interest, it will open, merely in in- so as to let in others who become capable of taking r . . ° some per- before the remainder has actually vested in possession, sons cannot that is, before the determination of the particular open and let estate, (d) in others - In other words, where real property is limited, by way of remainder, to a class of persons, some or all of whom are unborn ; if any of them come in esse before the de- termination of the particular estate, the property will vest in such person or persons, subject to open and let in the other members 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 ap- plies 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. 705 The application, however, of such a rule to the vesting Grounds of of the individual shares, after the aggregate property has the third vested in some one of the class, must depend on different reasons from those above mentioned in relation to an See § 703. entire property limited in remainder to one person : since there is a tenant of the freehold, and there is an unin- terrupted connexion between the particular estate and the remainder. The application of the rule to the vesting of the individual shares, in the given case, appears rather to be grounded upon a principle of convenience, and to (c) Fearne, 312. (d) Doe d. Comberbach v. Perry n, 3 Durn. & East, 484 ; Doe d. Willis v. Martin, 4 Durn. & East, 39, as stated, Fearne, 314; Matthews v. Temple, Comb. 467, as stated, Fearne, 313. cc2 [ 388 ] III. 3.] AN ORIGINAL VIEW ft 705. be analogous to those cases of personal estate bequeathed to a class" of persons, in which those alone are admitted, who come in 'esse before the period of distribution. Moaa v A testator devised the residue of freehold estates Mogg, 1 called the Littleton estates, to trustees, during the life of Meriv. 654. hig g0 ^ j jj upon certain trusts ; remainder to his son's children, 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 com- mon, 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. H. 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 S. M., namely, five who were born in the lifetime of J. H., and one who was in ventre matris at the death of J. H., took estates in tail general, with cross remainders ; but that the other children took nothing. Observation As to the reason for excluding the three other children, on this part - t j g a ru j ^^ a limitation shall not be construed as an of the case. . . . . . , • , executory devise, which maybe supported as a remainder; and hence the limitation to the children of S. M. was doubtless considered to be a remainder expectant on the decease of J. H. ; and, being a remainder, it was neces- sary 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,/. H. S. C. 1 The testator devised other parts of the Littleton estates Menv * to his wife, for life ; and, after her decease, to the same uses as in the devise last stated. The Court certified, that all the nine children of S. M. took under this devise, in manner aforesaid, all being born in the widow's lifetime, and therefore capable of taking on the determination of the particular estate, that is, of her life estate. s - C. 1 The testator (according to a fictitious clause inserted 1,env - in the case stated to the Court) devised another fee simple estate, called the Upper Mark Estate (without any previous limitation) to the children of 5. M., and their issue, in the same words as before. The Court certified, that all the nine children took in manner aforesaid. III. 3.] OF EXECUTORY INTERESTS. [§ 705. [ 389 j It would seem that this must have been regarded, not Observation as a purely immediate devise, though S. M. had two on tnis P art children born before the date of the will, but as a sort of mixed devise, immediate in regard to the children See § HI, born at the date of the will, and executory in regard to H la- the children born afterwards. (See Fearne, 533 — 7.) The testator devised another lee simple estate, called S. C. 1 the Mark Estate (or Lower Mark Estate, to distinguish Meriv. it from the fictitious estate above mentioned) to trustees, for the maintenance of the children of S. 31., 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. M.'s children as were born prior to the testator's de- cease [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 the trustees. Here, the word issue was construed a word of purchase, Observations because, the interest given to the children of S. 31., being on tn ' s P art 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 who are themselves yet unborn, cannot take by purchase, that being; contrary to the rule against perpe- See§ 706, f v 709, 710. tuities. ' The testator (according to the case stated to the Court) S. C. 1 also devised leaseholds for lives and years, so that the Menv - issues and profits might belong to the children of S. 31., and so on as before. The Court certified, that all the nine children took the absolute interest in the leaseholds g ee c iqo-3. 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. And in Doe d. Long v. Prigg, Bayley, J., said, " There Observations is no doubt but that upon an ordinary limitation by of Bayley, J., way of remainder to a class, as children, grand-children, l " noe a - &c, all who come in esse before the particular estates p r - iq( . g end, and the limitation takes effect in possession, are Bar. & Cres. to be let in, and take a vested interest as soon as they 235. [ 390 ] III. 3.] AN ORIGINAL VIEW [§ 705. come in esse; and that they and their representatives will take as if they had been in esse at the testator's death. This is settled by Baldwin v. Carver, 1 Cowp. 309 ; Roe v. Perryn, 3 T. R. 484 ; Doe v. Dorrell, 5 T. R. 518 ; Meredith v. Meredith, 10 East, 303; and Right v. Cre- ber, 5 Bar. & Cres. 866." III. 4. k] OF EXECUTORY INTERESTS. [§706—707. [ 391 ] CHAPTER THE FOURTH. OF THE TIME FOR THE VESTING OF EXECUTORY INTERESTS NOT LIMITED BY WAY OF REMAINDER. SECTION THE FIRST. The General Rule against Perpetuities stated and explained. 706 a Executory interests, other than those in remainder The rule after or engrafted on an estate tail, (a) must be so limited, stated - that, from the first moment of their limitation, it may be said that they will necessarily vest in right, if at all, within the period occupied by the life of a person in being, that is, already born, b or in ventre matris, (b) or the lives of any number of persons described and in being, c " not exceed- ing 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 per- son or persons, or b the gestation and infancy of any child in ventre matris at that time ; (b) or, d within the period occupied by the life or lives of such person or persons in being, and an absolute term of 21 years afterwards, and no more, without reference to the infancy of any per- son ; (d) or, within the period of an absolute term of 21 years, without reference to any life. 7 07 f The reason why some kind of limit is prescribed for Reason for fixing a limit. (a) See Fearne, 565, note, and 567, note. And see Fearne, 429—443. (6) Long v. Blackall, 7 Durn.& East, 100, as stated, Fearne, 434, note (I). (c) Lord Eldon in Thellusson v. Woodford, 11 Ves. 146. (d) Bengough v. Edridge, 1 Sim. 273 ; S. C. nom. Cadell v. Palmer, 1 Clark & Fin. 372, and 10 Bing. 140 . [ 392 ] III. 4. ii.] AN ORIGINAL VIEW ft 708-710. the vesting of such executory interests, is, that executory interests (other than those which are in remainder after or engrafted upon an estate tail, and which were capable of being destroyed by the tenant in tail by means of a reco- very,) cannotbe destroyed by the prior devisees or legatees; and they therefore tend to a perpetuity, by being unalien- able until the contingency happens on which they are to vest in right, which is inconsistent with the welfare of the state, and therefore contrary to the policy of the law. (/) Reason for Nor have the particular limits so prescribed been arbi- 708 adopting the trarily adopted. sThe Court, in setting the bounds they h' m th fi rule liave t0 the sus P ension of tne vesting, have 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 attain- ment of 21 by the first issue in tail, (g) SECTION THE SECOND. Rules of a more Specific Character for determining whether or not a Limitation is too Remote. I. Limitation I. It will appear from the above statement of the rule, 709 must be such that h to render a gift valid, it is not enough that it may effect within ta ^ e e ^ ect ^itim* a life or lives in being and 21 years the prescrib- afterwards; or, that, in the events which have happened, ed period. it would take effect within that period, though, under 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, (h) Hence limi- And hence, it follows, that real or personal estate can- 710 tations to not be limited to the children of a person who is not in children of esse at the date of the in gQ enable such children persons not . , ' in esse at the ° take as purchasers, even though their parent may hap- date of will, pen to be born before the death of the testator, unless the are not good. _^___ (/) See Fearne, 418—428, and 565—567, note. (g) Fearne, 444, note (a), and 566, note. {h) See Palmer v. Holford, 4 Russ. 403. I11.4.ii.] OF EXECUTORY INTERESTS. [§710a— 711. [ 393 J testator expressly limits the property to the children of a person who shall be born in his, the testator's, lifetime. Thus, where a testatrix gave one moiety of a certain Arnold v. amount of stock to her son's eldest male child living at Congreve, 1 her demise, for life ; with remainder to the issue of that ?„ U q S ' & M * male child ; and the other moiety to the other unborn children of her son, for life ; with remainder 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 happened to be born in the lifetime of the testatrix, because, the birth and death of such other unborn children of the testatrix's son, and the birth of their issue, might not have happened within the period of a life or lives in being, and 21 years afterwards. 710a And " as the law does not permit to be done indirectly, Nor are what cannot be effected in a direct manner, the rule which clauses de- forbids the giving of an estate to the issue of an unborn S1 » n i e d m di- T . reedy vet person, equally invalidates a clause in a settlement or virtually to will containing limitations to existing persons for life, limit estates with remainder to their issue in tail, empowering trustees, t0 me ' ssue on the birth of each tenant in tail, to revoke the uses, and ° an unborn ,• • r • r person as limit an estate for life to such infant, with remainder to his purchasers. issue." (i) 711 II. But, it will appear, from the above statement of the II. But limi- rule, that limitations to the unborn children of persons in tations to esse, at the date of the deed or will, whatever may be the ^ n orn , „ , i-ii CU ' en °' P er " quantity or the interest limited to them, are not too re- sons j n esse mote, inasmuch as such unborn children must come into are good, existence, if at all, within the compass of a life in being, namely, the life of their parent. (i) 1 Jannan on Wills, 247 ; and Duke of Marlborough v. Earl Godolphin, 1 Eden, 404, there cited. [ 394 ] III. 4. ii.] AN ORIGINAL VIEW [§ 712. It has been There are, indeed, certain dicta, and, in fact, an actual 712 thought that but anoma l OU s decision, which might seem to prove that a life interest interest cannot be limited to an unborn person, cannot be . . limited to an unless at least the remainder vests at the same time. unborn Thus, where a testatrix, after expressing her desire, person. th&t & certa i n sum should remain in the 3 per cents, for Hayes v. ever ^ De q Uea thed the dividends to her seven children, for ayes, ^ e j r j| yeg . ftn( j d^ted, that in case of the decease of any of them, their annuity should devolve among the rest of the surviving children; but, after the decease of the whole of them, then should their children succeed seve- rally to the annuity of 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 lives ; with a contingent remainder over to persons who shall answer a particular description, at the death of the surviving grandchild. This is plainly too remote. 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 undis- posed of." Observations This decision, as regards the grandchildren, appears to on Hayes v. be clearly erroneous. The gift over to the lawful heirs of the testatrix was obviously too remote. But, in what way the invalidity of that limitation could affect the preceding gift to the grandchildren, it is difficult to understand. " The only effect," (as was contended at the bar) " of the remoteness of that limitation, was, that immediately on the death of the testatrix, the ultimate interest devolved to the next of kin, subject to vested life interests in her children, and contingent life estates to unborn grandchil- dren." Had there been no limitation after the gift to the grandchildren, that gift would have been clearly valid. And if the only limitation after such gift was void, that gift must have been as valid as if no such subsequent limitation III. 4. ii.] OF EXECUTORY INTERESTS. [§ 713—714. [ 395 ] had ever existed. This decision, then, must be regarded as contrariant to principle, and it is also opposed to the cur- 713 rent of authorities. A learned author (k) has remarked, An estate for that the validity of a devise to an unborn person for life, life may be seems to have been settled so long as the early case of , l Cotton v. Heath ; (7) and he refers to several cases where person. it was 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 (n) " as a point rather to be taken for granted, than discussed." 714 III. It is obvious that if a limitation is to take effect III. Limita- on an indefinite failure of issue in general, or of issue ^ 10ns °P an male or female, or by a particular marriage, and not f a j mre f merely on a failure of issue within a life or lives in issue. being and 21 years and a few months afterwards ; (o) Pit is within the foregoing rule against perpetuities, and therefore void for remoteness ; (p) unless it is a remainder after, or a limitation engrafted on an estate tail ; or 9 a See § 706-7. limitation of a sum of money to be raised by means of a term in remainder after an estate tail ; (q) or r a limitation (A) Jarman on Wills, 340. (I) 1 Roll. Ab. 612, pi. 3. (m) Namely, Doe d. Tooley v. Gunnis, 4 Taunt. 313 ; Doe d. Liversage v. Vaughan, 1 Dowl. & R. 52 ; S. C. 5 B. & Aid. 464 ; Ashley v. Ashley, 6 Sim. 358 ; Denn d. Briddon v. Page, 3 D. & E. 87 n. ; 11 East, 603 ; Hay v. Earl of Coventry, 3 D. & E. 83; Foster v. Lord Romney, 11 East, 594; Bennett v. Lowe, 5 Moo. & Pay. 485. (n) Fearne, 503. (o) Duke of Norfolk's Case, 3 Chan. Cas. 1 ; Pollex. 223 ; and Lamb v. Archer, 1 Salk. 225, as stated, Fearne, 469, 470 ; and Southey v. Lord Somervile, 13 Ves. 486. See also Nichols v. Hooper, 1 P. W. 198 ; Target v. Gaunt, 1 P. W. 432 ; Keily v. Fowler, 6 Bro. Pari. Ca. 309 ; and other cases, stated, Fearne, 471—473, and supra, Part II. c. XVII. sect. I. (p) Burfordv. 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. [ 396 ] HI. 4. ii.J AN ORIGINAL VIEW [§ 715-719. over of a term which is determinable on the dropping of a life or lives in being, (r) where a tenant right of renewal does not exist, (s) Here two preliminary questions may present them- 715 selves : First, Whether the words really, and not merely apparently, import such an indefinite failure of issue? Secondly, Whether (if they do) an estate tail is created ? Because, if the words do not import such indefinite failure 7 jg of issue, or if an estate tail is created ; in either of these cases, the limitation may be good. The reader will find an answer to these questions in the 717 first section of the seventeenth chapter of the Second Part, so far as regards real estate. Answer to And, as regards the application of the first question to 718 the first personal estate, the answer to it will be found in the rules question as . , regards per- m the same sectlon ' sonal estate. As regards the application of the second question to 719 Personal es- personal estate, (namely, whether an estate tail is created ?) tate cannot W e have seen in the eighteenth chapter of the Second be entailed, p^ that p ersona i es t a te cannot be entailed, and that, with the exception of the words " die 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 and a limita- him the absolute interest in personal estate; and conse- tion over on quently, that the limitation over of personal estate on an an indefinite • 1 c • , c •, c , . , c , , failure of i^- m( *ennite tenure 01 his issue, instead or being good as a sue, is void remainder after an estate tail, as we have seen it would for remote- be in the case of real estate, is a conditional limitation, ness. (g ee ^ 148 — 158,) which is void for remoteness. The con- ^ ut > tas regards the construction of a limitation over struction of of personal estate in the event of death without issue, it such a hmi- ma kes no difference whether the first taker has a life tation over , . , , , , , . . , , is the same estate onlv > or whether he is held to take a quasi estate where the tail, (*) which amounts to the same as a limitation of the (r) See Fearne, 489. (5) See Fearne, 500, note (e), and Reporter's Observations on Duke of Grafton v. Hanmer, 3 P. W. 266, in the note, as cited, Fearne, 497. (0 Lepine v. Ferard, 2 Russ. & M. 378. III. 4. ii.] OF EXECUTORY INTERESTS. [§719. [397] absolute interest. In either case, the limitation over is first taker void for remoteness, unless it can be collected from the ,las a llfe , words of the will, that the testator meant a death without issue at the time of the death of the first taker. A testator gave the interest of his residuary personal Everest v. estate to A., for life ; and then, the residue to her nieces; follow, because he was named wi th persons ^whosejegacies a*L -^ "y- "*4 were vnidJ^rmTiotenRsS j that he was not to take. Bu jfif' * J ' a * < ^ Sin. Shadwell, V. C, said, that the distribution was* ' ^>^r^ part of the gift. That the testator used the word children^ oUx< *. iVV as comprehending the children of his son, and also the ^ child 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 subsequent words]. That the first members of that class should take a share, the amount of which should be determined by the number of [ 406 ] III. 4. ii.] AN ORIGINAL VIEW [§ 722. individuals then constituting the class. And that if the whole intention could not prevail, effect could not be given to any part of it. His Honor added, that there were several passages in the judgment in Leach v. Robinson, which exactly applied in spirit to this will. Dodd v. So where a testator gave 30,000/. to the children of his Wake, 8 daughter who should be living at the time the eldest should be 24, and the issue of such of them as might be then dead, to be paid to them when and as they should attain 24, but without interest in the meantime. Sir L. Shadwell, V. C, held, that the bequest was void for remoteness. Newman v. So where a testator, after devising lands to his son for Newman, 10 life, directed his trustees to stand possessed of the pro- ceeds of the sale thereof, in trust for all his grandchildren, the children of his son and three daughters, who should attain 24. The son and daughters had children living at the testator's death, and no other children were born after- wards. Sir L. Shadwell, V. C, held, that the trust was void for remoteness. Cromekv. And where a testator devised his real and personal Lumb 3 estate, upon trust to sell, and invest so much of the pro- 565. ' duce as snou l d be sufficient to raise three annuities of 100/., and to apply one of such annuities towards the maintenance of his grandchildren, the children of his daughter H. 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 his last mentioned grand- children. And, upon further trust, to pay to each of his daughters, C. and W., 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 raising the last mentioned annuities, he directed his trustees to divide them, from and immediately after the death of C. and W. equally among all the children of C. and W. then living or thereafter to be born. And he directed that the shares (subject and without prejudice to the life interests 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 III. 4.ii.] OF EXECUTORY INTERESTS. [§ 723. [ 407 ] issue at bis decease, and in each grandchild, being a daughter, on her attaining that age or marrying. Then followed a clause of survivorship, and a clause of mainte- nance. There were five children, and three of them at- tained 23 ; of whom J. H. died, after surviving M. H., who died under 23, and predeceasing D. H., who died under that age. It was held, that J. H. took an original one fifth share of the annuity fund provided for the chil- dren of H., and one third of M. H.'s share, but no part of -D.'s share; the words " survivors and survivor" being used in their natural sense. It was also held, that the limitations of the annuity fund from which C. and W. derived their life annuities, were void for remoteness, even as to the children of C. and W. living at the date of the will. 723 At first sight, it would seem, that, as a general rule, Distinction the Court should give effect to the disposition of the will, suggested, in favour of as many of the class as could lawfully take ; , ia f^\ and that, though the testator did not intend to draw any un( j er the distinction between persons who were equally the objects will, where of his bounty, yet, if it became a question whether all none could should take under the will, or none, he would prefer, of an j ntes _ that, at all events, some should be admitted, if all could tacy ; but not. And this, in fact, would surely be the intention of that none the testator, if the objects of his bounty would be deprived *^™ ld j^ e of his property altogether, unless they could take under w j]] w h ere the will ; as, where they are all strangers, or such rela- they could fives as are not the persons to whom the statute of dis- a '' ta ^ e m tributions would give it in the event of his intestacy. j ntestacv> 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 distri- butions. 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 [ 403 ] III. 4. ii.] AN ORIGINAL VIEW [§ 724—725. his debts, would be effectuated, 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 they 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 diffi- dence, as apparently founded in common sense, and in furtherance of the real intention, which is the governing principle in the construction of wills. Objection It maybe objected, that the validity or invalidity of 724 answered. the dispositions of a will oupht not to depend on the cha- racter of the objects, when they are not, in themselves, incapable of the testator's bounty. But, why should not a testamentary disposition be dependant on the character of the objects, just as much as upon the nature of the subjects, as in cases where the words " leaving issue," are interpreted in regard to personal estate, in a different See § 538-9. manner from that in which they are interpreted in regard to real estate. No evil of uncertainty arises, it would seem, in either case ; because, the character of the objects and the nature of the subject is known at once, and re- mains unchangeable. And therefore, it is not like de- termining the validity or invalidity of a limitation, accord- ing to the events that happen after the testator's death ; for, in that case, the limitation might be regarded as in- valid one hour and valid the next, which would be pro- ductive of the greatest mischief. Again, why should not the Court admit some of a class, and exclude others on the ground of remoteness, when, See § 227- in numerous instances, it has admitted some of a class, 230c. an( j exc i U( ied others, on the ground of inconvenience? VIII. Where VIII. Where a testator expressly confines his bounty 725 a testator to a certa in description of persons among a given class, 2.1V6S to some • only of a evidently for the purpose of avoiding a transgression of class to keep the limits prescribed by the rule against perpetuities, and within the ye t makes the limitation over depend in terms upon the III. 4. ii.] OF EXECUTORY INTERESTS. [§ 725. [ 409 ] failure of the whole class, without restriction ; the limita- rule against tion over will be so construed as to be capable of taking perpetuities, effect simply on failure of those of the class who are to •. ^ 1 J ... . . nuts over on take under the express limitations, especially if the tes- failure of the tator excludes some of the class, irrespectively of the rule whole class, against perpetuities. And, for the purpose of this con- See § 706. struction, the word "such," or " said," will, if necessary, be supplied. A testator bequeathed all the residue of his personal Ellicombe v. estate, upon trust, for his grandson B., the son of his son Gompertz, Isaac, at 25, for life; and, after the death of B., in case ,-_ ' he should have a son who should attain 21, then, for such son of B., who should first attain 21, absolutely; and, in 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 in 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 Isaac born in the testator's lifetime, nor any son of Isaac born 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. Lord Cottenham, 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 such 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 limi- tations over in favour of G. and his son, that the author of the will knew well to what extent the law would permit the vesting of the residue to be postponed ; and that he had framed those provisions accordingly; and [ 410 ] III. 4. ii.] AN ORIGINAL VIEW [§ 726. hence, it would be unreasonable to suppose that he in- tended to transgress those bounds by the limitations over to G. and his son. (3 M. k C. 147.) Besides, it was evi- dent 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 become 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 to take : (lb. 151 :) for, there could be no motive for post- poning it for any longer period than was necessary to let in those who were the pior objects of the testator's bounty. (lb. 138, 148.) IX. Where a IX. Where the prior limitations are confined to a 726 testator gives certain description of persons among a given class; and to some only t ^ e persons f a lli n o; within such description mav take, without ' without transgressing the rule against perpetuities ; and transgressing there is a limitation over, which was apparently intended the rule to ta k e effect as an alternative limitation, in the event of petuities the non-existence of the persons so described, though, in but, in terms, terms, it is only to take effect in case of a failure of the limits over whole class ; it will be treated as an alternative limitation, n ai ure ^ ^-^ e e ff ec ^ j n ^he above-mentioned event, and there- of the whole . ' class and f° re as n °t v01 d for remoteness. (See § 128, 706.) yet appa- A testator bequeathed the residue of his personal estate rently in- to trustees, in trust for his daughter, for life; remainder create a mere to ^ er children, at 21 ; and, in case any or either of the alternative said children should die under the said age, and have one interest. r more child or children who should survive his said Trickey v. daughter, and live to attain the said ao-e, such last men- M^&k' tioned cni ld or children should be entitled to his or their 560. parent's share ; with an ultimate limitation over, if there should be no child of his said daughter, or, there being any such, no one of them should live to attain the age of 21 years, nor leave any issue who should attain thereto. Sir John Leach, M. R., held, that as the first provision in favour of the children of the child of the daughter who III. 4. ii.] OF EXECUTORY INTERESTS. [§ 727—729. [ 411 ] should die under 21, was confined to such grandchildren, [of the daughter] as should survive the daughter; so, in the subsequent passages, the testator was to be under- stood to speak of such grandchildren only ; and therefore the limitation over being to take effect upon failure 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. b Where a prior limitation depends on too remote an X. When an event ; and there is an alternative limitation which depends a'ternative , ,, v r. A i , j -,. • limitation is simply on the non-happening ot that event ; and it is pos- VQ ^ f Qr re _ sible, at the date of the instrument, that it may not be moteness. decided, within the period prescribed by the rule against See § 706. perpetuities, whether or not such event will or will not happen; in such case, the alternative limitation is void, as See § 128- well as the prior limitation ; because, each is in fact limited 13 6. on too remote a contingency, (b) 728 XI. c In the case of a particular or qualified power XI. Interests of appointing real or personal estate, that is, a power of under parti- appointing it to or among particular objects only; no^^ estate or interest created by the exercise of the power, powers must will be good, unless it might have been created by the be such as deed or will itself conferring the power. So that, limita- ^ vou n ld .^ e if tions which would have been void for remoteness, if in- create( i by serted in an instrument conferring a particular power, the deed or will also be void for remoteness, if inserted in the instru- will contain- ment by which the power is exercised. And hence, estates JJ^J 6 or interests cannot be appointed under a particular or qualified power, to any persons, as purchasers, who are the children of persons not in being at the time of the See § 706- execution of the deed or at the date of the will. 710# 729 XII. But, in the case of a general power, that is, a XII. But in- power of appointing the fee to any one whom the donee te ^ al under of the power thinks proper ; it is not necessary that the powers nee( j (b) See ProctorVv. The [Bishop of Bath and Wells, 2 H. Black. 358 ; and Cambridge v. Rous, 8 Ves. 12—24 ; as stated, Fearne, 508, note {k). [ 412 ] III. 4. ii.] AN ORIGINAL VIEW R 730—732. not be of estates created by the exercise of the power, should be such a cha- such as would be good if created by the deed or will racter. conferring the power. Reason of The reason of this difference is, that in the case of a 730 the above particular power, the specification of the object takes the distinction. j an( j out of commer ce or locks up the capital, and tends to a perpetuity. Whereas, there is no tendency to a perpetuity in a general power, as it enables the party to vest the whole fee in himself, or in any other person, and to liberate the estate entirely from every species of restric- tion, through the medium of a seisin previously created and vested in other persons, to the 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 usej as he should appoint, (c) XIII. Powers XIII. If a power is not to arise till an event (such as 731 to arise on an indefinite failure of issue) that probably may not occur foil e f ' within the period prescribed by the rule ; the power and sue. the appointment are both void for remoteness, even though See § 706. *' ma y happen that the event occurs within the prescribed period. Reason for It would be inconvenient and unreasonable, if the 732 the foregoing power were held to be good, so far as to enable the donee ru e * to make a good appointment in case the event should occur within the prescribed period : for, according to this con- See § 79-81. struction, the vesting in interest of the property, or the See § 369a- absolute and indefeasible vesting thereof, as the case may 7 • be, might remain for many years suspended upon an event which probably would not happen in time for any appoint- ment to be made. Bristow v. A settlement was made on husband and wife, for their Boothby 2 y iyes . rema i n der to the sons, in tail male : remainder to Sim. & Stu. ., , , 1 . ., ' . „ , 465. the daughters, in tail ; remainder to the survivor of the husband and wife, in fee. And it was provided, that in case there should not be any child or children of the mar- riage, or, being such, all of them should die without issue, (c) See Butler's note, Co. Litt. 271 b. (1) VII. 2, as regards real estate. III. 4.H.] OF EXECUTORY INTERESTS. [§ 733—734. [ 413 ] and the husband should survive the wife, then, it should be lawful for E., the wife, by deed or will, to charge the premises with 5000Z., 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 remote. 733 XIV. But, where a power authorises an appointment XIV. Powers among a class of persons, the power is good, provided a PP oint - . ... rnent amon°* some of the class will probably come into existence within a c j ass f * the period prescribed by the rule, though others may not ; persons, for, in such case, it is sufficient if the actual appointment some of made in exercise of the power, is confined to objects who v 1 ? m , 1 V1 . . . . J probably have come or may come into existence within such pre- CO me in esse scribed period. within the 734 In this instance, as there will probably be occasion for period pre- that suspension of the vesting in interest, or of the abso- ^ o-eneral lute and indefeasible vesting, which is caused by the rule, creation of the power ; in other words, as there will pro- Reason for bably be objects to whom a valid appointment may be the foregoing made, without transgressing the rule against perpetuities, ru there is no more inconvenience and unreasonableness in allowing such suspension, than there is in the ordinary See § 117- cases of contingent sprino-ino; or shifting interests, limited 127b, 148- without the medium of a power. A power was given, by a marriage settlement, to the Routledge husband and wife, or the survivor, to appoint personal v - Dorril, estate among all the children and grandchildren or issue nca of the marriage. jE7. Z)., the wife, survived ; and, having (besides other children) a daughter E., who had three children living at her, E. Z).'s, decease, she appointed part of the money, by will, to E. for life, for her separate use ; and, after E.'s decease, to all her children (and not to the three only who were living at E. 7).'s death). Sir [ 414 ] III. 4. ill] AN ORIGINAL VIEW [§ 735-736. R. P. Arden, M. R., held, that the power was good ; (2 Ves. Jun. 362;) but that the appointment which was actually made, was too remote ; and that, on the autho- rity of Gee v. Audley, it was therefore 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.; be- cause E. D. did not mean those only, but all. (lb. 362 — 6.) E. D. made a similar appointment in favour of a son, R. D., and his children. R. D. had no children at the death of E. D. It was argued that the intention should be executed cy pres. The Master of the Rolls said, that where, indeed, real estate is limited to a person unborn, for life ; remainder to his first and other sons, in tail ; as they 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. But that this mode of executing the intention cy 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. (lb. 365.) XV. Powers XV. A learned author (d) refers to several cases, (e) in 735 of sale. proo f t ] lat a p 0wer f sa i e is va ijd 5 though not restricted See § 706. to the period allowed by the rule against perpetuities. SECTION THE THIRD. Certain Points connected with the Doctrine of Re- moteness. I. Where the I. Where a testator first makes a gift in terms which 736 taBrtbif! W ° Uld Carry the absolute "Merest in chattels, and then (d) 1 Jarman on Wills, 250. (e) Biddle v. Perkins, 4 Sim. 135; Powis v. Capron, Id. 138 n.; Waring v. Coventry, 1 Myl. & K. 249; JBoyce v. Hanning, 2 Cromp. & Jer. 334; Holder v. Preston, 2 Wils. 400. III.4.iii.]0F EXECUTORY INTERESTS. [§737— 738. [ 415 ] proceeds to restrict it to an estate for life ; adding a limi- terwards re- tation over which is void for remoteness ; the entire inter- stricte d to a est as conferred by the original gift, remains unaffected w j t ] 1 i- j by the subsequent attempt at restriction. (See § 706.) tation over A testator bequeathed his residuary personal estate which is void upon trust, for his wife, for life, or during widowhood ; or remote " ness. and, after her decease or second marriao-e, upon trust to e>. . . . . Ring v. divide the same between his four children, his two sons, Hardwick, A. and B., his two daughters, C. and D. ; the shares of 2 Beav. 352. the sons to be paid immediately. And he directed that the shares of his two daughters C. and D. should be invested for them, for life, and after their respective deaths, di- vided 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, notwithstanding the testator had used the word " share," in reference to their interest before 25 ; and that consequently it was too remote, and the absolute interest See § 100-3. remained to the daughters, according to the original gift. 737 II. f Where a limitation is void for remoteness, a limi- II. Remain- tation in remainder after it, is not accelerated, but is also der after too • 1 , rs. remote an ' ^J ' interest. 738 III. Where a term limited in remainder in trust to raise III. Money sums of money, is well created ; but the uses for which raised by a the money is to be raised, are void for remoteness ; and , , the devisees in remainder after the term, are only to take uses whereof after the money shall have been raised, or the term deter- are void for mined, the money will belong to the heir at law, as a remoteness - resulting trust. A testator, after limiting certain estates for life and in Tregonwell tail, devised the lands to trustees for a term, in trust to v. Syden- ham, 3 Dow. 194. (/) Robinson v. Hardcastle, 2 Bro. C. C. 22; and S. C. 2 Durn. & East, 241,380, 781 ; as stated, 1 Jarman on Wills, 243. [ 416 ] III. 4. iii.] AN ORIGINAL VIEW [ §738. raise sums of money for uses which were void on account of their remoteness, and then proceeded to limit other estates " after the said sums should be raised for the said uses, or determination of the said term." The Court of Exchequer made a decree, whereby they virtually put the term of 60 years entirely out of the will, and gave up the lands to the next tenant for life, as if he had been the im- mediate devisee. But this decree was reversed by the House of Lords, who held that as the term was well cre- ated, and the devisees in remainder after the term, were, by express words, only to take after the money should be raised, or the term determined ; the money belonged to the heir at law, as a resulting trust. III.5. i.] OF EXECUTORY INTERESTS. [§ 738a. [417] CHAPTER THE FIFTH. OF THE RESTRAINTS IMPOSED ON THE ACCUMULATION OF THE INCOME OF REAL AND PERSONAL ESTATE ; AND OF THE DESTINATION OF INCOME RELEASED FROM ACCU- MULATION OR ACCRUING BEFORE THE VESTING OF AN EXECUTORY DEVISE OR BEQUEST. SECTION THE FIRST. The Accumulation allowed before the Statute. 738a a Before the passing of the statute 39 & 40 Geo. III. 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 that 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 a ™pton v. .... . • i i ,i r i , Marquis of in tail, in possession, or entitled to the rents ot real estate, u er tf or d 2 to receive and lay out the rents in stock, to accumulate V. & B. 54. for such person or persons as should, upon the expiration of 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 payment of debts; because it might extend beyond the period allowed for executory devises or trusts for accumulation, in consequence of a succession of minor- ities. It was argued at the bar, that a series of minor- ities might prevent alienation in the case of any limitations (a) See Fearne, 538, note(x); and Thelusson v. Woodford, 11 Ves. 112, 146, as stated, Fearne, 436, note {I). E E [ 418 ] III. 5. L] AN ORIGINAL VIEW [§ 738a. in tail. But, to this it was justly replied, that the inca- pacity of alienation in the latter case, is not produced by the parties themselves. Marshall v. And where a testator devised and bequeathed his real Holloivay, and personal estate, upon trust, to invest the rents and 2 Swanston, p ro fi ts an( j annual proceeds as and when and so often and 45 L during all such times as any person or persons bene- ficially interested 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 accumulate 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, th«?t 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 respec- tively 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 directed, 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 attaining 21 and so becoming entitled, assume the surname and arms of Holloway. It was argued for the heir-at-law and next of kin, that the proviso gave a direc- tion and operation to every clause, and was to be consi- dered 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 immediate assumption of his name and arms. (2 Swans. 441.) That the words " subject to the trusts," meant " after performance of the trust ;" and that all the limitations of the real estate to unborn per- sons after the first estate for life, being designed not to take effect 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 to accumulate III. 5.ii.] OF EXECUTORY INTERESTS. [§738b c. [419] 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, interest, and annual proceeds of the personal estate, and that the remainders over were valid. SECTION THE SECOND. The Periods to which, except in certain cases. Accumu- lation is restricted by the Stat. 39 & 40 Geo. III. c. 98. 738b The mischievous extent to which Mr. Thelusson availed Origin of the himself of the power of creating an accumulation which statute 39 formerly existed, gave rise to the statute 39 & 40 Geo. III. ^j 40 ^ e0 - c. 98, for preventing the recurrence of a disposition which was alike impolitic and unnatural; as tending to with- draw capital from general circulation, and to keep the nearer relations of a settlor or testator in a state of indi- gence, for the sake of augmenting the fortunes of some remote and unascertained descendants. 738c By the first section of that statute, it is enacted, " that Enactments no person or persons shall .... settle or dispose of any thereof. real or personal property, so and in such manner 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 ventre 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 interest, dividends, or annual produce so directed to be accumulated. 11 e e 2 420 ] III. 5. iii.] AN ORIGINAL VIEW [§ 738d-738g. I. The sta- tute applies even to ac- cumulations in favour of persons tak- ing vested in- terests. SECTION THE THIRD. Observations and Decisions respecting the Restrictions imposed by the Statute. I. b THE prohibition of the statute is not confined to 738d an accumulation for the benefit of persons who are not in being or not yet ascertained, though the principle upon which such prohibition is founded certainly applies with more than ordinary force to such cases ; but it even affects accumulations in favour of persons who take vested interests, in the funds accumulated, from the very commencement of the accumulation, (b) II. It applies II. c The statute applies to such dispositions as have 738e even where t ] ie effect of causing an accumulation, though there may be no direction to accumulate, (c) This is clear from the introductory words of prohibition above quoted ; though it is observable, that the clause relating to the destina- tion of the income released from accumulation, only speaks of cases where an accumulation shall be " di- rected." accumula tion is not directed. See§ 741a. III. Accu- mulations III. d It is not required that the whole or even any 738f part of the period of accumulation, should, by force of as to the ^ ne P rovls i° ns °f the instrument, necessarily fall within eventual ex- the time allowed by the statute; but the accumulation cess « for any part which, in the events that happen, chances actually to fall within that time, is good, (d) That this is the true construction of the statute, clearlv appears from See § 741a. the clause respecting the destination of the income re- leased from accumulation. IV. Accu- mulation IV. As the statute does not allow 21 years' accumula- 738g (b) See Shaw v. Rhodes, 1 M. & C. 135, stated § 738k. (c) See M'Donald v. Brice, 2 Keen, 276, stated § 741e. (d) See Shaw v. Rhodes, 1 M. & C. 1 35, stated § 738k. See also Griffiths v. Vere, 9 Ves. 127; and Longdon v. Simpson, 12 Ves. 295 ; and Crawley v. Crawley, 7 Sim. 527, stated \ 74ld. £. ?^A ,./ >YtV ^. t ,.— .r rLf III. 5. iii.] OF EXECUTORY INTERESTS. [§ 738h. [ 421 tion, unless the 21 years fall within 21 years from the void after death of the testator; e where a testator directs the accu- 21 years mulation of a fund to commence on an event or at a time tor's decease subsequent to the death of the testator ; the accumulation though it has becomes void at the expiration of 21 years from his de- not lasted „ „ t v that time. cease, (e) 738h V. If there were no decision to the contrary, it would y. Whether seem clear that the statute allows an accumulation during accuraula- the minority of any person who, if of full age, would be tion may be ,-,i i . ,i • i,i i .i i made during entitled to the income accumulated, whether such person m ; nor j tv f was in esse or not at the time of the death of the grantor person not or testator. For, otherwise, the fourth period mentioned in in esse at the statute, instead of constituting a distinct period, is in p an or , s fact included, and specifically, and not merely in effect, d^th. included, in the preceding period. So that, according 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 minorities 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 " only " was added, to prevent an accumu- lation during a life or lives in being, in addition to the period of the minority of an unborn person, for which time it was allowable to accumulate before the statute, and to restrict it to the minority or minorities only of an unborn person or persons. There is however a decision to the contrary ; but it is conceived that it cannot be supported. In that case, Haley v. the dividends on a sum of stock were directed to be Bannister, 4 accumulated till one of the children of A., born, or to Mad - 278 - 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. 98) prevents an 0) Webb v. Webb, 2 Beav. 493. [ 422 ] III. 5. iv-] AN ORIGINAL VIEW [§738i-738j. accumulation of interest during the minority of an unborn child ; 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. W^ordsofthe By the second section it is enacted, " that nothing in 738i Act. this Act shall extend to any provision for Payment 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 pro- visions and directions shall and may be made and given as if this Act had not passed." ^ et Meaning of It is conceived that the word interest, as used in the 738j e word in- second of the above exceptions, refers to a freehold in- 2st ; m the terest, or a t j eas t to a long term for years, in the pro- Ill. Accu perty, the income of which is directed to be accumu- mulations lated, or to an interest in the funds accumulated, are void only . . as to the l considered as a certain corpus, analogous to a corpo- eventual ex- th> real hereditament ; and that it does not refer to a cess. f or AQYe right t something issuing out of or collateral ac f to such property or accumulated funds. Indeed, if it were otherwise, the exception would open so wide a See & door to provisions for accumulation, as virtually to repeal the Act, the second exception of which, as Mr. Preston has observed, f 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 providing," (/) in the ordinary cases (may it not be added?) (/) Fearne, 541, note (x). III. 5. iv.] OF EXECUTORY INTERESTS. [§738k. [423] where the parents themselves took interests in the land itself, as tenants for life, or in tail, or at least as termors for years determinable upon their deaths — cases to which the above devise bears no analogy whatever. 738k It has been decided that an annuity payable out of the An annuity rents and profits to be accumulated, is not an interest ^^ "Ljjjj" within the meaning of the second exception in the Act. t ^ e secon( j A testator, after charging his estates with an annuity to exception. his son J. S., of 400/.; an annuity to his son T. S., of Shaw v. 100J. ; and an annuity to his daughter, of 100Z. ; and di- ^ ho £ es > X recting that the legatees who should become entitled to 13 * 5 any annual payments, or to the accumulations therein- after mentioned, should not be paid by anticipation; devised the same estates, upon trust to invest and accu- mulate 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 grand- children 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 sur- vivor 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, leaving ten grand- children, 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 survived the testator attained their majority; the eldest having come III. 5. iv.] AN ORIGINAL VIEW [§ 738k. of age before the execution of the will, and the youngest in the year 1830. The daughter survived the two sons, and died in the year 1831. The Vice-Chancellor 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 death of the daughter, out of the two thirds of the rents and profits, by annual pay- ments of 1500/., to be deducted out of the rents and profits. The cause was brought by appeal before Lord Brougham, C, who was inclined to think, with the Vice- Chancellor, that it was not an accumulation prohibited by the Thelusson Act, but deemed it advisable 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 Commissioners; and judgment was afterwards given by Lord Cottenham, C, reversing the decree of the Vice- Chancellor, in accordance with the opinion of Mr. Justice Bosanquet, 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 annual profits of an estate or on a fixed proportion of those profits, was not an accumulation, merely because the time of payment is postponed ; each successive portion, as it from year to year accrued, instantly became a vested interest, capable of being dealt with and disposed of, although not actually receivable till the whole burden had been discharged ; and that, in fact, therefore, 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 implies, that the growing profits of the subject charged should be laid up and appropriated to satisfy the burden ; but that that was not the species of accumulation struck at in the Thelusson Act. That that act had reference solely to an accumulation such as that directed in the two preceding clauses of the present will, the effect of which is imperatively to lock up the rents of an estate, while III. 5. iv.] OF EXECUTORY INTERESTS. [§ 738k. [ 425 ] these go on accumulating at compound interest for a long 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 divi- sible, {lb. 149, 150.) That, at all events, the case fell within the second exception in the Act, respecting pro- visions for raising portions 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 bear- ing 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 accumu- lation was to commence, and be continued until the death of all the testator's own children, if any of them should outlive the period at which the youngest grand- child should attain 21, when a further division among the grandchildren then living, was to be made. That both these clauses had taken effect ; and the question then was, whether the third clause, which came into operation in the year 1831, on the death of his last surviving child, 19 years from the death of the testator, could be carried into effect 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 affected 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 necessarily 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 con- sequently any accumulation 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 testator having occurred on the 10th of July 1812. That the preamble of the statute [ 426 ] III. 5. iv.] AN ORIGINAL VIEW [§ 738k. 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 expiration 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 apprehended) of paying interest 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 inter- ests, yet the testator had expressed a strong disappro- bation 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. (lb. 153 — 157.) That he was therefore of opinion, that, according to the true con- struction of the third clause, an accumulation of a portion of the rents and profits was required to be made; that such portion, whatever it might be, was withdrawn from beneficial enjoyment during the period of accumulation, and was a partial accumulation within the meaning of the statute, and consequently void, so far as that period exceeded 21 years from the death of the testator. (lb. 158, 159.) That he did not think 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 during 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 persons, 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 III. 5.v.] OF EXECUTORY INTERESTS. [§739— 739a. [ 427 ] be considered within the meaning of the statute, in the nature of a portion to the children of persons taking an interest under the devise. {lb. 159.) SECTION THE FIFTH. Of the Intermediate Income accruing before the Vesting of an Executory Devise or Bequest, where such Income is not affected by the Statute of Accumulations. 739 I. s Where there is an executory devise of real estate, I. Where and the freehold, between the death of the testator or the there is no determination of a preceding estate, and tlie vesting of an disposition . . of the executory devise, is not disposed of, the freehold and in- j mmec }j a t e heritance descend to the heir at law. (g) freehold. The position in which the heir at law stands, and the Observations circumstances under which alone he is excluded, are of Lord lucidly explained by Lord Brougham, in the case f Br °ugham Ackers v. Phipps, 3 Clark & Finelly, 689, before the t j on f t] ie House of Lords: "The heir at law," says His Lordship, heir at law. " takes through no intention of the testator, but para- mount the will, and independent of it, or, as it has been sometimes 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 occasion 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 expressed, defeat his claim ; nor can he be so displaced and defeated except by direct words or plain intention — an expression which I prefer to necessary intention. There must appear to be such an intention to exclude him as to leave no reasonable doubt in the Court that it existed in the mind of the tes- (g) Duffield v. Duffield, 1 Dow & Clark, 268, stated § 281 ; Pay 's Case, Cro. Eliz. 878 ; Clarke v. Snath, 1 Lutw. 798; Gore v. Gore, 2 P. W. 28 ; Hayward v. Stilling 'fleet , 1 Atk. 422 ; Hopkins v. Hopkins, Cas. temp. Talb. 44 ; and Bullock v. Stones, 2 Ves. 521 ; as stated, Fearne, 537 — 543. [ 428 ] HI- 5- v.] AN ORIGINAL VIEW R 740-740a. tatov 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 meanin- ; 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 of law, to indicate the intention." II Where H. h Where the intermediate income of personal estate 740 there is no is entirely undisposed of, or there is only a partial dispo- dispositionof s j t j 011 t h ereo f which is not for the maintenance or edu- dkteSme cation of the P erS0U t0 Wh ° m the executor >' bec l uest is of^rsonaT made ; the whole of the intermediate income, in the first estate, or case) and the surplus of it, in the second, will accumulate only a par- for the benefit f t h e person who may happen to acquire tion which'is the first vested interest after the accrual of such in- not for the come, (h) benefit of the A testator, after making a provision for the maintenance 5-hoT the of his son T ' W - G > and ° f his dau S hter K G > S ave a11 executory the residue of his real and personal estate to T. W. G., to bequest is be a vested interest upon his attaining 21 ; provided, that made " in case he should die before 21, then, all the residue Glanvil v gh()uld gQ tQ E q . with other limitations over. Sir W. Meriv 38. Grant, M. R., held, that the interest of T. W. G. was contingent till 21 ; and therefore, that by virtue of the will, the rents and interest of the real and personal estate w r ere to accumulate till he attained that age. III. Where HI. But where the intermediate income of personal 740a the intenne- estate is partially disposed of for the benefit of the person diate income tQ w ] 10m t j le executory bequest is made, the rest of the or personal . . -? \ . c estate is par- intermediate income will tall into the residue: tor, it is a tially dis- maxim, that expressum facit cessare taciturn. posed of for his benefit. ' (h) Atkinson v. Turner, Barnardist. Rep. Chan. 74; Stud- holme v. Hodgson, 3 P. W. 300 ; and Bullock v. Stones, 2 Ves. Sen. 52; as stated, Fearne, 546 — 7. III. 5. v.] OF EXECUTORY INTERESTS. [§741. [429] Thus, where a testator gave a sum of money, in trust Harris v. for unborn children, and directed that until their shares „ ^ ' !™ ra ' & it. o 10. should become payable, the interest should be applied in their maintenance ; Lord Eldon, C, held, that the interest before the birth of a child, fell into the residue. 741 IV. *And, where there is a devise or bequest of all IV. Where the real or personal estate, or both, the intermediate in- .j ie lb * ie " come accruing- between the death of the testator or the v ; se or b e _ determination of a preceding estate, and the vesting of an quest. executory devise or bequest, belongs to the residuary devisee or legatee, whether he is the same person who is entitled to the executory devise or bequest, or not. (i) Thus, in a case where a testator devised all his real Phipps v. and personal estate to trustees, (with power to sell all Williams, 5 r . N l . . . _ Sim. 44 ; except a certain part, and add the monies arising ' rom s. C. nom. such sale to his personal estate) upon a certain trust, as Ackers v. to a part, and as to a certain sum of money, for G. H. A. Phipps, 3 And as to the rest, residue, and remainder, of his personal p.^ 1 ' Qr] m g estate, he directed it to accumulate at compound interest Bligli, 430. until J. C. A. should attain 24 years ; then, upon trust to convey, assign &c. unto the said,/. C. A. (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 testator's real and per- sonal estate whatsoever and wheresoever not before de- vised and bequeathed. And the testator directed the trustees to pay a large sum annually for the mainte- nance and education of the said J. C. A. The heir at law See Phipps (besides claiming the rents of the estate devised to G. H.A. ?\ Ac i e ™> 5 ° . Sim. 704. which accrued before he attained 21, and which were (i) Stephens v. Stephens, Cas. temp. Talb. 228 ; Gibson v. Lord Mont fort, and Rogers v. Gibson, 1 Ves. 485 ; Chapman v. Blissett, Cas. temp. Talb. 145 ; and Duke of Bridgeioater v. Egerton, 2 Ves. 121 — 2; as stated, Fearne, 544—5. Genery v. Fitzgerald, Jac. 468. [ 430 ] HI. 5. vi.] AN ORIGINAL VIEW [§ 741—7411* not claimed by J. C. A.) claimed the rents of the estate devised to J. C. A. until he attained 24. The Vice-Chan- cellor held, that the words respecting the giving security and the execution of deeds and assurances by J. C. A. were clearly a condition precedent, and, till that was performed, his interest was contingent ; 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, decided, that the residuary gift of real and personal estate to J. C. A. dis- placed 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 Income released from Accumulation by the Statute. Words of By the first section of the statute, it is enacted, that 741a the Act. « i n every case where any accumulation shall be directed otherwise than 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 long as the same shall be directed to be accumulated contrary to the provisions of this Act, go to and be re- ceived 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 subject, 741b clause 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 pro- perty which is not disposed of by a will, or the operation of the statute of distributions, in case the other parts of III.5.vi.] OF EXECUTORY INTERESTS. [^741cd. [431] the will, the trust for accumulation being removed, cannot pass such income so released from the trust for accumu- lation. And hence the excess of accumulation may be- long, in some cases, to a person entitled to a vested par- ticular interest; in other cases, to a residuary devisee or legatee ; in other cases, to the heir at law, or the next of kin. Thus, 741c I. k Where a trust for accumulation is engrafted on a I. Where the vested interest, so as to operate by way of exception out of trust [ or . ac " ' r e i • 11 u cumulation such vested interest, the excess ot accumulation will be- j g enoTa fted lono- to the person entitled to such vested interest, (k) on a vested For, the income being released from the trust for accumu- interest, and lation, constitutes an incident to such vested interest, as ff0es tot ^ it would if no accumulation had been directed. person hav- ing such 741d II. But where the income of a particular legacy or por- interest - tion of property, is to be accumulated prior to the vesting "■ Where it • sfoes to the of such legacy or portion of property, the income accruing residuary de- beyond the period allowed by the statute for accumula- v isee or le- tion, upon or from such legacy or portion of property, and gatee. upon or from the accumulation made within the period allowed by the statute, goes to the residuary devisee or 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. For, it cannot be considered that the persons to whom Grounds of the contingent devise or bequest is made, would have been the rule - entitled to the income if an accumulation had not been expressly or impliedly directed or authorised : for, as their interest is only contingent, they could have no right to the intermediate income, prior to the vesting of such in- terest ; and, as it is uncertain whether that interest will ever vest, it cannot be said, with any degree of truth, that they would even eventually have been entitled to the in- termediate income, if an accumulation had not been expressly or impliedly directed or authorised. And hence (k) See Trickey v. Trickey, 3 M. & K. 560. [ 432 ] HI- 5- vi.] AN ORIGINAL VIEW [§ 741e. the income accruing beyond the period allowed, is held to belong to the residuary devisee or legatee. A Testatrix gave 8000/. in trust to accumulate until A. CraJey^' should attain 25 ; and when he should have attained that Sim. 427. m trust to transfer the 8000Z. and the accumulations ^ a, -5? thereof, to him. Sir L. Shadwell, V. C, held, that the LifcasJ' trust was good for 21 years after the testatrix's death, Keen, 313. but was void for the excess beyond that period, and that the accumulation beyond that period would fall into the residue, and form part of the capital thereof. III. Where III. Where the income of residuary property is to be 741 it goes to the accum ulated prior to the vesting indefeasibly of such re- heir or next s i ( j uai .y property ; the income accruing beyond the period allowed by the statute for accumulation, upon or from such residuary property, and upon or from the accumu- lations 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. Grounds of In this case, the income to be accumulated could not the rule. go to the residuary devisees or legatees. It could not be allowed to form part of the capital of the residue; because that would be contrary to the statute, the income to be accumulated, in the supposed case, being that of residuary property. Nor could it form part of the income of the residuary property ; because that would have been con- trary to the other parts of the will : for, that would have been giving the residuary devisees or legatees an imme- diate enjoyment, though the will had given them only a contingent right, or, at most, only a present but defeasible right of future enjoyment. M' Donald A testator gave the residue of his property to R. S., v. " rxce i 2 e lJest son of P. S., on his coming of age : failing him, to Keen 276 ' ' the next male child of P. S. who should attain 21 ; fail- ing the male children of P. S., to certain other legatees. P. 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 accumu- lation which resulted from the suspension of the vesting of the limitation to the first son who should attain 21, or of the alternative limitation to the other legatees. And Lord III. 5. vi.] OF EXECUTORY INTERESTS. [§ 741e. [ 433 ] Lang-dale, M. R., held, that the dividends to accrue, till the determination of the contingency upon which the residue was given, on the residue and its lawful accumu- lations, belonged to the next of kin, and not to the resi- duary legatees. In another case, a testator gave certain annuities out Eyre v. of his residuary estate, to his three children; and re- Marsden, 2 quested that the surplus of the annual income might be een ' applied in accumulation of the capital of his property, for the benefit of his grandchildren, and which was to be divided among them after the death of the survivor of his three children. And the will contained clauses substi- tuting the issue of grandchildren dying leaving children for such grandchildren ; and carrying over to the sur- vivors the shares of such as should die without children. Thirty years elapsed between the death of the testator and the death of the survivor of his children. Lord Lano-dale, 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 aggre- gate fund, the case was not within the exception of the Act. And His Lordship also held, that the accumula- tions 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 his meaning and intention." F F [ 434 ] III. 6.] AN ORIGINAL VIEW [§ 742—745. CHAPTER THE SIXTH. OF THE TRANSMISSION OF EXECUTORY INTERESTS. I. Division of executory interests with refer- ence to the capacity of transmission existing at ♦he time of their limita- tion. 1 . Transmis- sible in all events. 2. Untrans- missible. 3. Trans- missible in some events only. I. Looking to the capacity of transmission, in case of 742 death before the contingency happens, as such capacity exists at the time of their limitation, 1. Some executory interests are transmissible in all events. 2. Others are untransmissible. 3. Others are transmissible in some events only. 1. Executory interests in real property, which are not con- 743 tingent on account of the person (§ 94), descend to the heir of the persons to whom they are limited, and such a exe- cutory interests in personal property, pass to the executor or administrator (a) of the persons to whom they are limited, where they die before the contingency happens on which such interests are to vest. 2. Those executory interests which are contingent 744 simply on account of the person, are of necessity untrans- missible 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. 3. Those executory interests which are executory both 745 on account of the person and also by reason of being made to depend on some other contingency which does not concern the person, are transmissible in some events only. For, if there should be any person answering the given description, and yet the other contingency does not (a) Pinbury v. Elkin, 1 P. Wms. 563; Barnes v. Allen, 1 Bro. C. C. by Belt; and Stanley v. Wise, 1 Cox, 432; as stated, 1 Rop. Leg. 513, 514. III. 6.] OF EXECUTORY INTERESTS. [§ 746—748. [ 435 ] happen during their lifetime ; the interests having at- tached 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 it ex- II. Division ists at the death of the persons to whom executory in- ? f executory terests are limited, such interests must of course at that re f erence t0 moment be either, 1. Transmissible. 2. Untransmissibie. the capacity Thus, oftransmis- 747 1. b Where the executory interest was not in the first S10n , existin S _ , ,_. . at the death instance contingent on account ot the person, (o) or where f the per- it ceases to be contingent on account of the person ; the sons entitled interest is transmissible, though of course, in the latter thereto, case, unless it continues executory on account of some v Transmis- other contingency on which it depends, it is then trans- missible as a vested and not as an executory interest. 748 2. Of course, if there never happens to be a person 2. Untrans- answering the given description, c whether he is directly m issible. or indirectly required to be living at a certain time, (c) or whatever else the qualification directly or indirectly may be, the executory interest never attaches in any one, and therefore it can never be transmitted, but fails alto- gether. (b) Wood's Case, 1 Rep. 99a, as stated, Fearne, 364. Pin- bury v. Elkin, 1 P. W. 563 ; King v. Withers, Cas. temp.Talb. 117; Gurnel v. Wood, 8 Vin. p. 112, ca. 38; Chauncy v. Graydon,2 Atk. 616; Peck v. Parrot, 1 Ves. Sen. 236; and Goodright v. Searle, 2 Wils. 29 ; as stated, Fearne, 556 — 561. (c) Moorhouse v. Wainhouse, 1 Black. Rep. 638, as stated, Fearne, 365. f f l [436] III. 7.] AN ORIGINAL VIEW [§ 749—752. CHAPTER THE SEVENTH. OF THE ALIENATION OF EXECUTORY INTEREST? I. By assign- J. a^xECUTORY interests, in persons in being and ascer- 749 ment in tained, are assignable in equity, for valuable consideration ; and they are assignable, even for good consideration, except as against bona fide creditors, (a) b And it would 750 also seem that executory interests in favour of persons who do not yet answer a given description, can be assigned in equity, before such persons answer such description, (b) See § 71. For, c£] iere are cases where even a mere hope or ex- pectancy has been assigned in equity, (c) When it is said that executory interests are assignable in equity, d 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, (d) II. Byre- lease. II. e Executory interests in real estate are releasible 751 to the terre-tenant or owner of the land, but not to a stranger, (e) III. Bycle- III. f Executory interests, even before the statute 752 tJufstat 01 ? * Vict ' C ' 26 ' m 'o nt be disposed of by the will of any Vict. c. 26. person to whose representative the property would have (a) See Fearne, 549; and Wright v. Wright, 1 Ves. 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) BecMey v. Newland, 2 P. W. 182, 187 ; and Hobson v. Trevor, 2 P. W. 191 ; as cited, Fearne, 550—1. (d) See Fearne, 551. (e) 2 Pres. Abstr. 284. III. 7.] OF EXECUTORY INTERESTS. [§ 753—755. [ 437 ] passed, had he died immediately before the making of the will. (/) 753 And, by that statute, (s. 3) it is enacted, that " it shall By devise be lawful for every person to devise, bequeath, or dispose under stat. of, by his will executed &c, all real and personal estate lct * c ' ' which he shall be entitled to, either at law or in equity, at the time of his death, and which if not so devised, bequeathed, or disposed of, would devolve upon the heir at law, or customary heir of him, or, if he became en- titled by descent, of his ancestor, or upon his executor or administrator ; and that the power hereby given shall extend to .... all contingent, executory, or other future interests in any real or personal estate, whether the tes- tator may or may not be ascertained as the person or one of the persons in whom the same may respectively be- come vested, and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will." 754 IV. s Executory interests may be bound by estoppel, j V> Byes- even though merely created by an indenture ; (#) buttoppeland h they cannot be transferred by deed. Nor, indeed, can conveyance, an executory interest, whilst it continues such, be directly, though it may be indirectly, transferred by a fine or re- covery, (h) 755 If a fine was levied of an executory interest, or of a mere expectancy of an heir apparent, it operated at first See § 71. 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 expectancy, so as to preserve it for the cognizee by estopping or pre- venting the cognizor and those claiming under him from contradicting what he had done, by any attempt to dispose of or affect it in any other way. But, as soon as (/) Moor et Ux. v. Hawkins, cited 1 H. Blac. Rep. Com. PI. 33, 34, as stated, Fearne, 369. And see Fearne, 37 1 . (g) 4 Jarm. Conv. 124. (h) 2 Pres. Abstr. 118 ; 2 Pres. Shep. T. 238; Fearne, 365—6, 551—2. 438 ] III. 7.] AN ORIGINAL VIEW R 756-756* the interest or expectancy became a vested interest in the cognizor, 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 in- terest, and therefore capable of being transferred. And thus the estoppel virtually and finally amounted to, though it was not, in the first instance, an actual transfer of the executory interest or expectancy. 1 And so an executory interest might be indirectly 756 transferred by a common recovery wherein the person entitled to such executory interest came in as vouchee, (i) Doe d. A testator devised an estate to his wife, for life ; re- 756 Brune v. mainder to all and every the children of R. E. and M. P. Martyn, 8 wnQ should be living at the time of his wife's death. Bar. & res. ^^ ^ ^ ese children levied a fine sur con. de droit come ceo &c. of their shares, during the life of the wife. 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 the name of such remainder-man; that it operates by estoppel, and by es- toppel only; and that parties or privies may avail them- selves of that estoppel, but parties and privies only." A stranger cannot, because he is not estopped himself, and estoppel must be reciprocal. (8 B. & C. 524 — 527.) Doe d. In another case, testator devised lands to his wife, for Christmas v. life ; remainder to all the children of his brother that iver, U) ghoQjd b e living a t her decease. His brother left one Bar. & Cres. . ,. . , „ • , , , , 187 190. daughter, who married, and afterwards, with her husband, See also levied a fine come ceo in the lifetime of the testator's Weale v. widow. Bayley, J., delivered the judgment of the Court ; lex. 54' as " anc ^ a ^ ter Averting to the case of Doe d. Brune v. stated, Martyn, said, that, in that case, " the operation of the Fearne, 365. fine by estoppel was sufficient for the purpose of that decision : whether it operated by estoppel only, or whe- ther it had a further operation, was quite immaterial in that case :" but that, in the principal case, it was neces- sary to investigate that point ; and that the Court was of * (i) Fearne, 366. III. 7.] OF EXECUTORY INTERESTS. [§ 756* [ 439 ] opinion, that the fine, in that case, " had a double opera- tion ; that it bound the conusors by estoppel or conclu- sion, 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 ] III. 8.] AN ORIGINAL VIEW [§ 756a— 759. CHAPTER THE EIGHTH. OF THE SUPPORT OF CONTINGENT REMAINDERS. Contingent remainder for years needs no pre- ceding free- hold. But a con- tingent free- hold remain- der must be supported by a preceding freehold. a A contingent remainder for years does not require a 756a preceding freehold to support it; (a) for, though it is a remainder, in a lax sense, as regards the possession, it is not a remainder, strictly so called, as regards the seisin, property, or ownership. (See § 46—7, 50, 58, 159.) b A contingent remainder of the measure of freehold, 757 unless the legal estate is in trustees, must be supported by a previous vested freehold estate ; (5) that is, it must be originally preceded by a vested interest, of the measure of freehold, which is capable, in its original limitation, of enduring till the vesting of the remainder; otherwise it is void ab initio : and one such previous estate of freehold must actually endure until that period ; otherwise the remainder will subsequently fail. In elucidation of this proposition, let us consider sepa- rately each of the rules embodied therein. I. A contin- gent remain- der of the measure of freehold must be originally preceded by a vested free- hold. A freehold interest not so preceded cannot be a remainder. I. A contingent remainder of the measure of freehold 758 must be originally preceded by a vested interest, of the measure of freehold ; otherwise it will be void ab i?iitio. A freehold interest, whether vested or contingent, un- 759 preceded by any other interest, or by any other than a contingent or a chattel interest, cannot be termed a free- hold remainder, as regards the seisin, property, or owner- ship, any more than the portion first severed or taken from any corpus, can be termed a remainder or remnant thereof. (a) Fearne, 285. (b) Fearne, 281,284. Goodrightv. Cornish, 1 Salk. 226 ; imdScatleruoodv. Edge, 1 Salk. 229; as stated, Fearne, 282. Davies v. Speed, as stated, Fearne, 284. III. 8.] OF EXECUTORY INTERESTS. [§ 760— 762a. [ 441 ] 760 Thus, 1. Where a vested interest of the measure of free- 1. A vested hold is limited after a term for years; although thelimita- freehold in- tion is good, yet the interest so limited is not an interest |^ t f after a in remainder, but a present interest, so far as regards the years, is not seisin, property, or ownership, subject only, as regards the a remainder, possession, to a previous chattel interest. (See § 159, See §59. llle, 46—7, 50, 58, 245—257.) 761 2. And where a contingent interest of the measure of 2. A contin- freehold is limited by deed at common law, to take effect gent freehold as a remainder after a chattel interest ; as, c where lands H1 J- erest limi " are granted to A. for 21 years, with remainder to a person chattel inter- unborn ; the limitation is void : (c) because, of course, it est at corn- is no more a remainder, as regards the seisin, than a vested mon * aw > is interest after a term for years, is a remainder ; and the not - a / e " i , . . i m mamder, and interest, being contingent, cannot take effect as a present i s V oid. interest; so that it necessarily fails. 762 For, it is a rule, that the freehold shall never be in abeyance ; and as the contingent freehold remainder cannot take effect 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 pre- sent 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 suspended, it could only take effect in defeasance or suspension of the present interest so residing as afore- said in the other person, instead of taking effect after a term, unpreceded by, and not affecting, any other freehold interest. It could not take effect, therefore, in the way intended ; and the other mode of taking effect, in defea- sance or suspension of another interest, was a mode which See § 148-9, was foreign to the simplicity of the common law. 149a. 762a 3. And though a contingent interest of freehold dura- 3. A contin- tion limited after a chattel interest may be good, if limited $ e ? 'f^. 10 ." J ° interest Jimi- ted after a . „ , n ,. , chattel inter- (c) Burton s Compendium, pi. 33. e ^ by ,442] III. 8.] AN ORIGINAL VIEW [§763—765. of use or de- by way of use or devise ; yet it is not good as a remain- vise, is good, def} but as a springing interest. (See § 159, 117 — 127a.) but not as a remainder. . A f <4i Id 4- Again ; where a freehold interest, limited by way of 763 interest li- use or devise, is only preceded by a contingent interest of mited by freehold duration, though it may be good, and though it way of use n ^ e t erme d a remainder in relation to such preceding or devise . . after a con- contingent interest, and it has the capacity of becoming a tingent in- remainder, in every respect ; yet, so long as it is only terest only, is preceded by a contingent interest, it cannot be a remain- !L* Jo A a der, in the strict sense of the term ; it cannot be a re- II 1 clS a. rC" mainder. maining portion of the seisin, property, or ownership, any more than if it were not preceded by any freehold interest at all. (See § 46—7, 50, 1 59, 677.) 5. A freehold 5. Where a freehold interest, at common law, is only pre- 763a interest li- ceded by a contingent interest of the measure of freehold, contingent a ifc is void ' For > as alread Y observed, it is a rule that the interest only, freehold shall never be in abeyance ; and as the ulterior at common freehold interest was intended to be a future interest, the Jaw, is not a present freehold must reside in some person other than the and is void. P erson entitled to the ulterior freehold interest, and of course it must reside in some other individual than the person entitled to the preceding contingent interest ; and hence it must reside in the grantor or his heir at law ; and con- sequently the ulterior freehold interest fails, for the same See § 762. reasons as those above assigned for the failure of a con- tingent freehold interest limited by deed at common law after a term. ienfrem t - n " H " A contin S ent remainder is void ah initio, not only 764 der m r ust am " UnleSS h is P receded by a vested freehold interest of some continue to kind > but also unless it is preceded by a freehold interest be preceded which may, by its original limitation, endure until the freehoTd ca- VeSt ' ng ° f the remainder : and it will subsequently become pable of en- v0ld ' unless one such freehold interest eventually endures during till until that period. oahe're^ " ther6 " * ny intervenin g undisposed of portion of 765 mainder. S< : 1Sin ' P ro P er ty, or ownership, between the determination of a prior interest, and the commencement, that is, the III. 8.] OF EXECUTORY INTERESTS. [§ 765a— 765c. [ 443 ] vesting in right, of a subsequent contingent interest, such subsequent interest cannot take effect as a remainder; because, when the period of the determination of the prior interest arrives, the subsequent contingent interest fails, for the same reasons as those already given for the See § 7 62. failure of a contingent interest which is limited to take effect as a remainder after a chattel, and is unpreceded, in its original limitation, by any freehold. 765a d If the remainder is all along preceded by such a pre- But not ne- ceding estate, it is sufficient, though the first preceding cessanly by estate may have become forfeited or determined before l ® . ^ st P r ^~ the vesting of the remainder, (d) 765b III. e It is not necessary that there should be a pre- III. Not ne- ceding; estate which is vested in possession : it is sufficient cessary that . the prececl- if there is such a preceding estate of freehold duration as • g State is vested in interest, so that it would under the old law should be confer, at the time when the remainder should vest, a vested mpos- . i p , s. session. present right of entry, (e) See § 79-8 1 . 765c rV. f "Where the legal estate is devised to and vested in IV. A pre- trustees in trust, there is no need of any preceding par- ceding estate -is not ncccs- ticular estate of freehold to support contingent limita- ^^^ where tions : for, the legal estate in the general trustees will be tne legal sufficient for that purpose." (/) estate is in trustees. (d) Corbet v. Tichborn, 2 Salk. 576, and Linch v. Cook, 2 Salk. 469, as stated, Fearne,283. But see Sir Thomas Palmers Case, Moor, 815, as stated, Fearne, 282. (e) See Fearne, 286—301, and Butler's Notes thereto. (/) Fearne, 303 ; and Chapman v. Blisset, and Hopkins v. Hopkins, Cas. temp. Talb. 145, 44, as stated Fearne, 304—5. See § 783. [ 444 ] HI. 9. i.J AN ORIGINAL VIEW [§ 766—768. CHAPTER THE NINTH. OF THE 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 contingent I T will appear, from the foregoing chapter, that whenever jqq remainder is the legal estate is not in trustees, and there is, in the first AedeteN ^ instance > or there happens to be, eventually, but one pre- mination of ce(lin g estate of freehold duration, and that estate is the sole sub- determined, so as not even to exist as a right of entry, sisting pre- before the event happens on which a contingent remainder cedin°'estate • before such ' ls to vesfc ' such remainder is necessarily destroyed, remainder a And it will never afterwards arise, even though the par- vests, ticular estate be subsequently restored, (a) This deter- Now, the preceding estate may be determined, so as 767 ma^hT t0 CaUSG the destruction of a contingent remainder limited iTvariouT n thereon > whether at common law or otherwise, in various ways. wa ys. Thus, I. By regular I. Where the sole subsisting preceding estate happens ygg expiration, to expire, according to its original limitation, before the contingency occurs, upon which the remainder is to take effect: as, where an estate is given to A. for life, re- mainder to the right heirs of J. S., and A. dies in the lifetime of J. S., and consequently before there can be See § 383. any heir of J. S. (a) Fearne, 315, 349. An alteration merely in the quality, and not in the quantity, of the particular estate, will not destroy a contingent remainder. Fearne, 338, and cases there cited. III. 9. i.] OF EXECUTORY INTERESTS. [§ 769-775. [ 445 ] 769 II. b Where the tenant of the preceding estate was II. By dis- disseised, and his right of entry tolled. (Z») se i sin au(i tolling of the 770 HI. Where the preceding legal estate is destroyed, entry. and a new estate created, by the tenant of such preceding HI. By the estate, by the operation of a tortious assurance, as a destructive c feoffment, fine, (c) or d recovery, (d) operation of 771 And, as regards the operation of the assurance, it isl n l° ^tT' - Til HUty \Jl It" the same whether the tenant of such preceding estate is covery, by 772 beneficially entitled, or is only a trustee. Before the ^ ie te nant of statute of uses, indeed, e " if feoffees in trust had aliened 5? e prece ' • • clinsf estate without consideration or with notice, the lands would i , '. have been subject to the old uses; but that was because beneficially 1S the feoffees themselves, before that statute, stood seised entitled, or of the legal fee simple ; and of course their alienee came not * in, either of the same estate, or of an estate derived out 773 of that. But since the statute it is otherwise ; for now the feoffees are seised of no greater estate than what is actually limited in 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) 774 The student must be careful to observe, that it is the It is the de- destruction of the particular estate by a tortious assu- struct i° n > n ot ranee which destroys contingent remainders, and not the f ^^par-^ 775 mere transfer thereof by an innocent assurance. For, f if a ticular es- tenant for life separately bargains and sells, or if he leased tate » w ^ich and released, to a stranger in fee ; these are innocent con- " esti ;°y s a t • i iii contingent veyances, which pass no more than what lawfully may remainder (b) See Fearne, 286, note (e). (c) Archer's Case, 1 Rep. 66 ; and Co. Litt. 290 b. (1) IV. & V. 4. (d) Denn d. Webb v. Puckey, 5 D. & E. 299, stated § 570. Driver d. Edgar v. Edgar, Cowp. Rep. 379 ; and Fountain v. Gooch ; as stated and commented on, Fearne, 426 — 428. (e) Fearne, 325. And C 'hud Heigh' s Case, 1 Co. Rep. 120, as stated, Fearne, 324. [ 446 ] HI. 9- i.] AN ORIGINAL VIEW [§ 776-779. pass, and cannot affect the estate for life in any other way,' than by transferring it to another person. (/) IV. By for- IV. s Where the tenant for life does some act which 776 feiture. amounts to a forfeiture ; such as the acceptance of a fine come 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, (g) V. Bymer- V. Where the particular estate merges in the inhe- 777 ger. " ritance in fee or in tail, either by the act of the particular tenant, or by the descent of the inheritance on the par- ticular tenant subsequently to the taking effect of the particular estate. 1. By act of 1. This merger may be occasioned by the act of the 778 tenant for life particular tenant, in various ways — or in tail. ^ h If the tenant for life accepts the reversion in fee before the vesting of the contingent remainders. (A) (2) If the tenant for life * surrenders, (i) k bargains and sells, or leased and released, (k) to the immediate vested remainder-man in tail or in fee, or to the re- versioner. (3) *If the tenant for life and the immediate re- mainder-man or reversioner join in a conveyance. (I) (4) m If a tenant for life, having also the immediate vested remainder or reversion, bargains and sells, or leased and released, (m) 2. By de- 2. n The merger of the particular estate, and the de- 779 scent ot the struction of contingent remainders thereby, may be occa- lnhentance • . on thenar- S10ne d by the descent of the inheritance on the particular (/) Compare Fearne, 322, with Butler's note (/), 322. (g) See Fearne, 323, and Lloyd v. Brooking, 1 Vent. 188, as there stated. (h) Purefoy v. Rogers, 2 Saund. 380, as stated, Fearne, 317. (i) Thompson v. Leach, 2 Vent. 198, as stated, Fearne, 318. (k) Fearne, 321, note (/). (0 Fearne, 321, note (/), and 340. (to) Fearne, 321, note (/). III. 9. i.] OF EXECUTORY INTERESTS. [§ 780— 780a. [ 447 ] tenant subsequently to the taking effect of the particular ticulartenant estate. subsequently In this case, the descent of the inheritance may be al- ~ ® taking lowed its full operation of merger, without rendering the particular limitations originally and totally abortive ; for, the parti- estate. cular estate having once taken effect before the descent of the inheritance happened, there is no more reason that it should be exempt from the accidental operation of merger in this case, than in any other case where the in- heritance becomes united with the particular estate, (n) 780 3. But, ° where a testator limits a particular estate to 3. But not by the heir, with a contingent remainder over, without any the descent ulterior vested remainder carrying the fee, so that the in- of themh ent- . , , . .,, , . , ance on the heritance descends to the heir till the contingency happens, particular at the very time when his particular estate first takes tenant at the effect ; the inheritance is not executed in him perfectly, so moment of as to merge the particular estate, but only sub modo, so effec( . of ^ as to leave an opening for the interposition of the re- particular mainder, when the contingency happens. estate. For, 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 particular estate would arise, and be destroyed, in one and the same instant, and would be destroyed by a de- scent permitted by the very same will by which it was created, (o) 780a 4. p And, in like manner, where, by the same convey- 4. Nor by ance a particular estate is first limited to a person, with the union of a contingent remainder over to another, with such a re- f^g^^d version or remainder to the first person, as would, in its t]ie i n h er j t _ own nature, drown the particular estate first given him ; ance under - the last limitation is construed as executed sub modo tne convey- , c xi xi.i a nce by only, in order that the arrangement of the settlor may whicll>and at (») See Fearne, 343—345 ; and Kent v. Harpool, T. Jones, 76; and Hooker v. Hooker, Rep. temp. Hard. 13; as stated, Fearne, 342. (0) See Fearne's observations, 343—345; and Plunket v. Holmes, 1 Lev. 11 ; Boothby v. Vernon, 9 Mod. 147; and Ar- chers Case, 1 Rep. 66; as cited, Fearne, 341, 342. [ 448 ] III. 9. ii.] AN ORIGINAL VIEW R 781-783. the time be carried into effect, instead of being defeated in its when, both h \ ri ]^ ( p ) were created. Trust estates The liability of contingent remainders to destruction in 781 to preserve t j iese wayS} occasioned the introduction of trust estates to contingent ve tW {q) remainaers. ^ ^^ decided, that if a fine determines the '82 lYTpro n^*ht * of entry in particular estate, the right of entry in the trustees to pre- the trustees serve contingent remainders, supports them, without an is sufficient. actu&] miry .\ r ) SECTION THE SECOND. The Destruction of Contingent Remainders created ovt of an Equitable Fee Simple Estate in Freehold Heredita- ments, or an Equitable Subordinate Fee Simple in Copy- holds. No necessity s There is no necessity for the continuance of a pre- ' °3 for the con- ceding particular estate of freehold to preserve contingent tmuance ofa rema ; n( }ers, where the legal estate in fee is vested in trus- e^tate where tees : f° r > tne ^ e g al estate °f tne trustees, will be sufficient the legal es- to preserve the contingent remainders, notwithstanding tate is in ^ e re2 - u lar expiration of the particular estate, before the trustees contingent remainder can vest, (s) Observations In Roe d> Qlemett v. Brings, the Lord Chief Justice of Lord El- , . JJ . • i • . j lenborouo-h observed, that where a contingent, remainder is created as to this point. (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 per- spicuous manner. And as to the nature of trust estates to pre- serve 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 Bush, M'Clel. & You. 88. (s) See Chapman v. Blissett, Cas. temp. Talbot, 145; and Hopkins v. Hopkins, lb., as stated, Fearne, 304, as to freehold. III. 9. HJ OF EXECUTORY INTERESTS. [§783. [449] out of a common fee simple estate, it must have a previous estate of freehold to support it; and the destruction of every such previous estate before the remainder vests, destroys the remainder: but where the remainder is created out of what maybe called a subordinate fee simple estate, as out of a 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 previous estate will not affect the re- mainder, but it shall be supported by the ordinary fee simple estate, (t) And where a testator devised freehold and copyhold Habergham surrendered to the use of his will, to trustees and the sur- I*„ nc f"*' 2 Vgs ^U4r vivor and his heirs, in trust to pay debts and legacies &c: then, on the. marriage of B. N. H., 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 attested by two witnesses, appoint. The next day, by deed poll attested by two witnesses, and reciting the will, he directed his trustees, immediately after the death of B. N. H., and failure of her issue, to convey all his real estate to the children of his son in tail, as therein men- tioned ; then, to the right heirs of the survivor of his trustees, his heirs and assigns, for ever. No conveyance was made. B. N. H. and the son died without issue, leaving one trustee surviving. Lord Loughborough, C, and Wilson, J. and Buller, J. held, that the deed was to be considered as a codicil sufficient to pass the copy- holds ; and that the last limitation was a contingent equitable remainder to the heir of the surviving trustee, and was supported by the legal estate which the trustees took under the will. The Court, however, were agreed that if the remainder had been of the legal estate, it would have 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 (/) Lord Ellenborough, C. J., in Roe d. Clemett v. Briggs, 16 East, 413, in accordance with Lord Kenyon's observations in Doe v. Martin, 4 D. & E. 64. G G [ 450 ] HI- 9. Hi.] AN ORIGINAL VIEW [§ 784-787. freehold and copyhold, was, that the estate of the lord will preserve contingent remainders against a forfeiture. {lb. 209.) « A cestui que trust for life cannot, by feoffment or other 784 conveyance, destroy a contingent remainder; for, since he has not the legal estate in him, whatever conveyance he may make, passes only what he can lawfully grant, that is, his trust estate for life, and there is a right of entry residing in the trustees : (w) though, a "recovery by a 785 tenant in tail of a trust estate, is allowed to bar the re- mainder, because he is master of the estate, and may call in the legal estate whenever he pleases, (x) Cestui que trust for life cannot de- stroy a con- tingent re- mainder ; But cestui que trust in tail may. I. Where the preceding estate ex- pires by ori- ginal limita- tion, the re- mainder is destroyed. SECTION THE THIRD. The Destruction of Contingent Remainders created out of a Legal Fee Simple in Copyholds. I. y It would seem, that in the case of copyholds, where 786 the preceding estate expires, by original limitation, or would have expired, by original limitation, before the vesting of a contingent remainder ; such remainders are destroyed : (y) because, although the ordinary freehold is in the lord, and that is capable, in itself, of supporting a contingent remainder, yet, if such estate were construed to support the remainders, they would be enabled to take effect in a different way from that provided by their ori- ginal limitation; whereas, the settlor or devisor may pos- sibly have intended that they should fail, if they could not take effect in the way contemplated by the limitation. II. But II. But, where the preceding estate is determined by 787 where the the act of the tenant, as z by surrender to the lord (z) preceding (a) Feame, 321. (x) Fearne, 321; and Doe d. Cadogan v. Ewart, 7 Ad. & El. 636 ; stated § 568. (y) See Fearne, 320. And see Habergham v. Vincent, 2 Ves. 233, stated § 783. (z) Pawsey v. Lowdall, 2 Roll. Abr. 794, pi. 6, as stated, Fearne, 319. III.9.iv.] OF EXECUTORY INTERESTS. [§788— 788a. [ 451 ] or a to another person, (a) or b acceptance of the rever- estate is (le- sion, (b) or c forfeiture, (c) and would not have expired, by termine d by original limitation, before the vesting of the contingent tenant t h e remainder, such remainder is supported by the ordinary remainder is freehold in the lord : because, the settlor or devisor cannot not de- be supposed to have contemplated their destruction by s ro ^ e * the act of the tenant of the preceding estate, or, at all events, must have intended that they should be supported and take effect notwithstanding any such act. 788 III. d If, however, the freehold of inheritance in the HI. Remain- lord of a manor, becomes united with a particular estate derdestroyed of copyhold, by a deed of enfranchisement, the contin- c ^; sernent gent remainders expectant upon such particular estate, are thereby destroyed, (d) SECTION THE FOURTH. The Destruction of Contingent Remainders created out of Estates pur auter vie. 788a " Where estates pur auter vie are limited 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 remainders over, and make a complete disposition of the whole estate." (e) " For though the original lease be only for three lives, yet it being the interest of both landlord and tenant that the (a) Lane v. Pannel, i Roll. Rep. 238, 317, 433, as cited, Fearne, 319. (b) Mildmay v. Hungerford, 2 Vern. 243, as stated, Fearne, 320. (c) Fearne, 320. See also Habergham v. Vincent, 2 Ves. 209 ; stated § 783. (d) Roed. Clemettv. Briggs, 16 East, 406. (e) Fearne, 499. See also, lb. 496; and Mogg v. Mogg, 1 Meriv. 654, stated § 705. Duke of Grafton v. Hanmer, 1 P. W. 266, in the note ; Baker v. Bayley, 2 Vern. 225 ; Norton v. Frecker, 1 Atk. 524 ; and Saltern v. Saltern, 2 Atk. 376 ; as stated, Fearne, 497—499. G G 2 [ 452 ] III. 9. v.] AN ORIGINAL VIEW [§ 789-790. leases should be renewed, and it being the 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 auter vie may be limited to one for life, so as to confine his interest and power of disposition to his own life estate only." (g) SECTION THE FIFTH. The Destruction of Executory Interests not limited by way of Remainder. By recovery. These h executory interests, if engrafted on an estate 789 tail, might be destroyed by the tenant in tail, by means of a common recovery, (//) Not by mere B ut * sucn interests cannot be prevented or destroyed 790 alteration in by any alteration whatsoever in the estate out of which estate. or a r ter w hj c h they are limited, (i) (f) Reporter's observations on Duke of Grafton v. Hanmer, 3 P. W. 226, in note, as cited, Fearne, 497. (g) Fearne, 499. (h) Fearne, 424 ; and Page v. Hay ward, 2 Salk. 570, as there stated. (i) Fearne, 418, 421 ; and Lee v. Lee, Moor, 268, as stated, Fearne, 422. INDEX. ABEYANCE. The legal ownership or freehold and inheritance cannot be in abeyance . . . . § 59 Consequences of this ... § 60—62 ABSOLUTE INTEREST, Definition of a defeasible interest . . § 97 an absolute or indefeasible interest . § 98 the absolute interest . . § 100 a limited interest . . • § 101 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 property . . • § 226 Application of the Rule. See Legacy, § 227— 234.— Or, § 235— 240.— Portions, § 241—4. ACCUMULATION, Before the statute ... § 73Sa Origin of the statute . . § 738b Restrictions of the statute. Enactments thereof ... § 738c The statute applies even to accumulations in favour of per- sons talcing vested interests . . § 73Sd It applies even where accumulation is not directed § 738e Accumulations are void only as to the eventual excess § 73Sf Accumulation void after 21 years from testator's death, though it has not lasted that time . . § 738g 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. Words of the act . . § 738i Meaning of the word interest in the second exception § 738j An annuity is not an interest within the second exception § 738k Destination of the income released from accumulation. Words of the act . . • § 741a Effect thereof . . ■ § 74lb Where the trust for accumulation is engrafted on a vested interest, and the income goes to the person having such vested interest . • • §7 4 1 c Where it goes to the residuary devisee or legatee § 74 id Where it goes to the heir or next of kin . § 741e 4 5 4 INDEX. ADVANCES, Vesting 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— Or ALIENATION in general, 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 Different names given to them . . § 129 Requisites to . . . § 1 30 Omission of the condition on which the prior limitation is to take effect .... Two kinds, as regards their form Definition of an alternative limitation of the proper or explicit form of the improper or elliptical form Contingency sometimes implied by the word " or " in the context Any number of them may be limited in succession Distinguished from remainders generally conditional limitations generally Words apparently amounting to a mere alternative 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 an 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 hypothetically limited ... § 64S Where such estate is in fee . . § 649 May take effect notwithstanding non-fulfilment of the condition § 694—5 See Death. Conditional Limitations . . § 650—5 Limitations . § 668— 672a, 678 — 682, 685—6 Remoteness .... § 727 Issue. AND. See Or. ANNUITY, Is not an interest within the second exception in the statute of accumulations $ 7£Sk § 131 § 132 §133 §134 § 135, 283 §136 § 136a § 161 §157 INDEX. 455 APPOINTMENT, Definition of a power of appointment . . § 72 Effect of a power of appointment, over real estate ... § 369a over personal estate . . . §370 — 4 Limitations in default of, defined . . . . § 115 distinguished from certain cases of void conditional limita- tions .... § 667 See Remoteness . . § 728—735 AS SOON AS, Denoting a condition precedent . . § 285 — 6 Not denoting a condition precedent, but referring only to the possession or enjoyment . . § 346 ASPECT, Contingency with a double aspect . . §129 See Alternative Limitations. ASSIGNMENT. See Alienation. AT, Denoting a condition precedent . . § 285 — 6 AUGMENTATIVE LIMITATIONS, Definition . . . . § 137 Illustrations . . . § 138—146 Distinguished from Conditional Limitations . § 158 Remainders . . § 163 See Livery of Seisin. BARGAIN AND SALE, When a contingent remainder is destroyed by it . § 778 BEQUESTS. See Legacy— Personal Estate— Vested. CESSER, Clauses of cesser and acceleration defined . § 22 See Condition. Limitation. Conditional Limitations. Augmentative Limitations. Diminuent Limitations. CESTUI QUE TRUST, for life cannot destroy a contingent remainder . § 784 but cestui que trust in tail may . . § 785 CHARACTER, See Vested . . . § 210— 214, &c. Remoteness ... § 721 CHARGES ON REAL ESTATE, Definition of . . • § 73 Bequests thereof to A., if, or in case, or provided, &c. do not vest immediately ... § 292 Do not vest immediately, when there is a reference to a future 456 INDEX. CHARGES ON REAL ESTATE— continued. age, time, or event, though such age, &c. is disannexed from the 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 IjEGacy — Remoteness. COLLATERAL Limitations. See Limitations. COMMON LAW, Freehold could not be limited, at common law, to commence in futuro, except by way of remainder . § 60 CONDITION, Division in the widest sense of the term of conditions properly so called of general conditions of conditions subsequent of mixed conditions Properly so called Express . Implied Direct Indirect General .... Special Subsequent. Definition . . . . § 12 Two forms of . . § 15 Definition of a condition subsequent of the concise or implied form . . . §16 of a condition subsequent of the unconcise or explicit form . . . § 17 Illustrated . . . . § 18, 19 Precedent. Definition . . . . § 13 Same contingency may be both a special limitation and a con- dition precedent . . . §43 Where a condition precedent annexed to a preceding in- terest extends also to a subsequent interest . § 222a Where a condition which under ordinary circumstances would clearly be held to be a condition precedent, is con- strued a condition subsequent . . § 140 §2,3 §4 §11 § 15 §20 §4 §5 §6 §7 §8 §9,11 § 10 INDEX. 457 CONDITION— continued. Where construed according to the letter, not the spirit § 220 Mixed. Definition of . . . § 14 Two kinds of . . . . § 20 Definition of a mixed condition of the destructive and creative kind . . . §20 of the destructive and accelerative kind § 22 Sometimes termed conditions precedent, and sometimes con- ditions subsequent . . . § 20 Distinguished from certain others . . § 21 Where a prior interest should be determinable, and the sub- sequent interest be limited to arise, on the fulfilment of a mixed condition ... § 279, 280 In deed . . . . . § 5 In law . . . . . § 6, 26 " On Condition." One of the three technical expressions introducing a condition subsequent . § 16, 18 Introducing a special or collateral limitation of the irregular kind . . § 39 Odiousness of . . . . § 225 Effect 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 . § 688 — and as regards the interest to be defeated § 689 — 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 limita- tion is to take effect . . § 692 — 3 where the limitation is a mere alternative limitation, § 694 — 5 Invalidity of conditions, What conditions are void . . § 696 Morally wrong or civilly unlawful. 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 . § 697 — 8 Effect of the Invalidity of Conditions precedent ... § 699 subsequent . . . § 700 mixed .... § 700a special or collateral limitations . . § 701 See Hypothetical Limitations. Conditional Limitations. Springing Interests. Augmentative Limitations. Diminuent Limitations. Alternative Limitations. 458 ™ DEX - CONDITION— continued. See Contingent Remainders. Reversion. Vested. Portions. CONDITIONAL LIMITATIONS, Generic sense of the term . . § 143 Use of the term in this sense is not incorrect, but yet is pro- ductive of mischief . . . §148 Specific sense of the term . . . § 149 Of an irregular form . . § 284 Must be really limited in defeasance of a prior interest § 149* Can only be by way of use or devise . . § 149a Termed shifting and springing uses, and executory devises § 150 Reason of the term " conditional limitation " . § 151 Not expedient to extend the term " springing interests" to inter- ests under conditional limitations . § 152 Conditional limitations in general distinguished — from conditions subsequent . . § 153 — from clauses of cesser and acceleration . § 153 — from special or collateral limitations in one respect § 153 — from special or collateral limitations, in another re- spect .... § 154 — from remainders and limitations of springing inter- ests .... § 155 — 6 — from alternative limitations . . § 157 — and from augmentative and diminuent limitations § 15S Certain cases of conditional limitations distinguished — from certain cases of vested remainders, and the first, second, and third sorts of contingent remainders, and the seventh kind of springing interests ; and vice versa. Where a subsequent interest depends on the determina- tion of the prior interest — by force of a regular, or irregular, special or colla- teral limitation, and such subsequent interest is & remainder, or a limitation of a springing, inter- est of the seventh kind . § 263 — 9 — 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 way of use or devise, as an interest under a conditional limitation . § 270 — 3 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 re- mainder . . • § 374 — 5 — from certain cases of mere alternative limitations; 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 li- mited, and the subsequent limitation is a conditional limitation . . . § 655 — from limitations in default of appointment § 667 Effect of the non-existence of the objects of . § 692 See Condition — Death— Implication— Limitations. INDEX. 459 CONTINGENCY, With a double aspect . . . § 129 Gifts with a double contingency, or two alternative contingen- cies . . . . . § 129 See Condition — Alternative Limitations. CONTINGENT INTERESTS, generally, Definition of an interest which is contingent on account of the person . . . . § 94 See Executory Interests. CONTINGENT REMAINDERS, Three modes of defining vested and contingent remainders § 170 Vested and contingent remainders defined. — without reference to the right of possession or enjoyment, or the possession or enjoyment itself . § 171 — 2 — with reference to the right of possession or enjoyment § 173—4 — with reference to the 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 absolute certainty of the pos- session 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, §181 — 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 . . . § 187a All the kinds of contingent remainders strictly depend on a con- tingency, irrespective of their own duration § 188 — 190 They may be all combined in the same limitation § 191 Remainders after estates tail . . § 192 — 4 May become a vested 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 determina- tion of the preceding estate, may take effect on the cer- tain 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 A. in fee . § 260 Where a remainder can only take effect on a contingent determination of the preceding estate § 261 Exceptions from the 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, with remainder to his heirs general or special. Part II. Chap. 12. See Rule in Shelley's Case. 460 INDEX ' CONTINGENT REMAINDERS— continued. 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 limitation, by analogy to the Rule in Shelley's case, and under the cy pres doctrine. Part II. Chap. 13. See Issue. Fourth exception, under the cy pres doctrine, where real estate is devised to the children of an unborn person. Part II. Chap. 14. Fifth exception, under the cy pres doctrine, in the case of an intended perpetual succession of life estates. Part II. Chap. 15. Sixth exception, under the cy pres doctrine, where the word son, daughter, or child, in a devise of an estate in re- mainder, is construed to be a word of limitation. Part II. Chap. 16. Distinguished from other limitations not by way 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 ... § 375 — 382 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 were a contingent event, is to be referred. 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 . § 656 — 7 — in a prior taker's lifetime . . § 658 — at some other period . . § 659 — 660 "Where the gift over is introduced by other words of contin- gency .... § 661 Where the gift over is not simply in the event of death § 662—3 Same construction seems applicable to real estate as to per- sonal .... § 664 Exception . . . § 665 Decision against the application of this construction to real estate. But perhaps that decision is question- able . § 666 DEFEASANCE, Defined . . . . . § 23 INDEX. 461 DEFEASIBLE interest defined . . § 97 DESCENT. See Transmission. DESCRIPTION. See 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 (o). A remainder may fail as to one part only . § 703a A remainder may fail as to some persons only . § 703b The preceding estate may determine, so as to cause the destruc- tion 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 of a 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 particu- lar estate, which destroys a contingent remainder § 774—5 By forfeiture .... § 776 By merger . . . . § 777 By act of the tenant for life or in tail . § 77S — 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 re- mainder 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 parti- cular tenant at the moment of the taking effect of the particular estate . . • § 780 Nor by the union of the particular estate and the inhe- ritance 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 §7S4 But cestui que trust in tail may . . § 7S5 Legal 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 Remainder destroyed by enfranchisement . . § 788 Estates pur auter vie ... § 788a Trust estates to preserve contingent remainders . § 781 Mere right of entry in the trustees is sufficient . § 782 462 INDEX. DESTRUCTION of other executory interests, By recovery ■ > ■ tion Not by mere alteration in estate . • . 9 / yu DETERMINABLE quality, what is meant by a . § 34 DEVISE, Division into immediate and executory . . §111 Executory devise, Generic sense of the term . . • § Ilia Specific and usual sense • • §llla The general term " executory devise " is commonly used in- stead of specific terms . • • § 1 1 lb This has generally arisen from the imperfect state of the science, and has been very prejudicial . § 111c See Alienation. DIGNITIES, Not previously subsisting, might be limited infuturo, even at common law . . • § 1 1 1 a, note (e) DIMINUENT LIMITATIONS, Defined . . • . . . • ■ § U7 Distinguished from conditional limitations . . § 158 remainders . . § 164 DIRECTORY TRUST. See 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 construction . § 564a Two co-existing, yet inconsistent intents ; namely, the primary or paramount intent, and the se- condary or minor intent, which is sacrificed to the former . . § 564b How the primary or paramount intent is mani- fested .. . . . § 564c This construction is adopted, whether the prior limitation is expressly in fee, or indefinite, or for life . . • § 564d— 8 — where there is an express devise to his issue, eo nomine — 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 " INDEX. 463 ENT A IL — continued. — and (upon principle) the ancestor would take an estate tail in remainder . §571 Absurdity of contrary doctrine . § 572 Observations on the fact that there are deci- sions in support of the contrary doc- trine . . § 573 — and an estate tail cannot be raised in remain- der . . § 574—5 — where there is an express devise to his sons, daugh- ters, or children, eo nomine — and (upon principle) the ancestor would take an estate tail in remainder . § 576 Rules deduced by Mr. Jarman, from the cases . . . § 577 Observations on these rules . § 578 — 9 Suggested result 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 remain- der . . § 581 — 2 — and the ancestor will take an estate tail in pos- session . . . § 583 — on a failure of children only of the prior taker, or on a failure of issue within a certain time . § 584 — on an indefinite failure of issue of a person to whom no ex- press 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 Lanesborough v. Fox, but admitted in other cases . § 587 — where the person whose failure of issue is spoken of is not the testator's heir apiparent 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 convey- ance . . . § 754—756* EVENT. See Condition— Vest. EXECUTED. See Rule in Shelley's Case, § 407 — 417 ; § 491, 495. Executory Trust. EXECUTORY DEVISE. See Conditional Limitations. Springing Interests. Quasi Remainders. Devise. INDEX. 464 EXECUTORY INTERESTS, Two modes of defining vested and executory interests § 75a Definition of executory interests wfA reference to the right of possession or enjoyment Of an executory interest . • • |°* Of a certain executory interest . | §5 Of a contingent executory interest . ' , • i? V- Definition of executory interests without reference to the right ot possession or enjoyment Of an executory interest— certain and contingent § 9U Are most correctly defined totMoui reference to the right of possession or enjoyment • • ' I no Several kinds of • • • 5 9 2 See Springing Interests. Augmentative Limitations. Diminuent Limitations. Conditional Limitations. Alternative Limitations. Remainders. Contingent Reminders. Contingent Interests. Quasi Remainders. Reversion, &c. EXECUTORY TRUSTS, Definition . • • • • § 489 Ground of the distinction between trusts executed and trusts executory . . • § 4 91, 604—6 A gift through the medium of a direction, is not necessarily a trust executory § 609 — 613 See Rule in Shelley's Case . . § 489—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. FORFEITURE, Contingent remainder destroyed by forfeiture of the particular estate .... § 776 FREEHOLD, Definition of a legal interest of freehold . § 65 an equitable interest of freehold . § 67 Cannot be in abeyance . . . § 59 Could not be limited, in futuro, 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 INDEX. 465 GENERAL TERMS . . . § Ulc HEIR, Strict sense of the word . . . § 383 Where used for sons, daughters, or children . . § 387 Where used for heir apparent or presumptive . § 3S8 A remainder to the heirs of a living person is a limitation to a person not in being (§ 383), or not yet ascertained § 384 Favour shown to ... § 325, 643 Position 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 apparent 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 . . . .§31 Not a word of limitation, but denoting a special occupant § 32 See Rule in Shelley's Case. HYPOTHETICAL LIMITATIONS defined . § 114 IF, 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 Introducing a condition precedent . . § 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 from a limitation over on failure of issue .... § 488c Of an estate tail. Where the possible interval between a failure of issue in- heritable under an estate tail, and an indefinite failure of issue, may be filled up by implication . . § 3S0 See Entail. Of an estate for life . . . . §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- hold . . ■ . § 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 . . . § 740 H H 466 INDEX - INCOME — continued. — where the intermediate income of personal estate is par- tially disposed of for his benefit . . § 740a — where there is a residuary devise or bequest . § 741 INDEFEASIBLE INTEREST, § 98 ; and see Addenda . § 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 nomine, where 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 perpetual succession of life estates . . • § 536— 536b — in devises in remainder to a son, daughter, or child, eo no- mine, and as a nomen collectivum . . § 537 — in devises to a person and to his issue where there is a limitation over on an indefinite failure of issue § 564a — c Observations of L. C. B. Richards on the intention of tes- tators . . • • . § 580 INTEREST, In the widest sense of the term, Definition of an interest, in this sense . . § 44 The different classes of such interests defined and distinguished. Introductory divisions, definitions, and distinctions. Rights or interests either perfect or imperfect. A perfect interest described . . § 45 Three kinds of interests commensurate with the duration of real hereditaments; viz. legal owner- ship, equitable ownership, and mere possession. These may be either united or disunited § 50 Other interests which are not commensurate with the duration of real hereditaments, and are always collateral . . . § 51 Another division of interests, in the widest 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 of freehold . § 67 an equitable interest for a term of years, § 68 a quasi interest . § 69 The different species of quasi interests . § 69 Mere precarious possessions ' . § 70 Definition of an expectancy . . §71 a power 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 of freehold in lands and tenements, and interests in chattels, — with reference to the existence, &c. of the seisin, property, or ownership . § 75 — with reference to the nature of the contingency § 93 — with reference to the capacity of transmission § 742 — with reference to the certainty of duration . § 96 INDEX. 46 7 INTEREST— continued. — with reference to the quantity of interest § 99 In the technical generic sense of the term . § 65, 67 In the technical specific sense . • . $ 84 See Executory Interests, &c. ISSUE, . , e ., 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 ^InleraeTof real estate before 1838, the words "die without issue," " die without leaving issue," " m default, or on failure," or "for want of issue," were all held to import an indefinite failure of issue . • § 5 38 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 pr • § 5«*9 Wher'Tthe devise to the issue male is introduced 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 children 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 issue, or all such issue should die without issue, and the first contingency is that of the prior taker's dying without chil- dren, and the second is that of his children dying without § 542 issue • • • . -ac Words referring to a failure of such issue, import an indefi- nite failure of issue, or not, according to the degree ot comprehensiveness 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 . • -.*.„* 54 j Where the issue are referred to by the name 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 • .',.., 7 ' • / „„ Where a devise over is on death within a limited 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 . • 9 551 Where a devise over is in the event of death without leaving issue, or, having such issue, of such issue dying under a cer- tain age without issue . ' ■ , ' a r Where a bequest over is to the survivor, without wordsot limitation . • • ; , * . Where a bequest over is to the survivor, with words ot limi- tation . • ' . , ,• •. Where property is bequeathed to two sisters, with a limita- tion over, on the death of one without issue, to her sister^ H H 2 468 INDEX. ISSUE — continued. 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 taker's issue as he shall appoint to . § 558 Where all the ulterior limitations are for life only . § 559 Where the devise over is for payment of debts . § 560 Where the estate is subject to the payment of a sum to be dis- posed of by the will of the prior taker . - § 56l 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 Vict. c. 26, s. 29 . § 563 Whether the word issue is a word of p>urchase or a word of limi- tation, (1) where there is no devise over on an indefinite failure of issue. Where the word issue is a word of limitation, in the case of direct devises and trusts executed . § 504 Where it is a word of purchase, in the case of direct devises and trusts executed . . § 505 Rule embracing both the preceding rules . § 506 Different 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 § 503 Why it is a word of purchase in a deed . § 509 It is ill adapted for a word of purchase, § 510 — 512 But it is well adapted for a word of limitation, § 513 And this is one of the grounds of the foregoing rules § 514 How the testator may 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, or giving the ancestor an estate expressly/or life, or without impeach- ment of waste . . § 516 Nor by introducing words of contingency, which would have been implied . § 517 Nor by prohibiting the ancestor from commit- ting waste . . . § 518 These indications are equivocal . § 519 Another ground of the foregoing rules ; namely, two coexisting yet inconsistent 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 minor 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 word of limitation, in order to effectuate the primary or paramount intent in cases falling within the 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 presumption against construing issue a word of purchase, than there is against construing INDEX. 469 ISSUE — continued. heirs a word of purchase, especially heirs gene- rally . . . § 528 Illustrations of the first rule . § 529 second rule . § 530 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 fact that there are decisions in support of the contrary doctrine . § 573 Where no 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 . . . § 378, 3S1 — 2 — a limitation of a springing interest . § 379 — 380 — an alternative limitation . § 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 an alternative . § 542 And see Addenda . . § 545-6 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 specific sum is given to each . § 231 Where 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, denned . . . . . § 74 LIFE ESTATES, Intended perpetual succession of, — by way of executory trust, in favour of unborn descend- ants . . . • § 536 4 7 o INDEX. LIFE ESTATES— continued. — in favour of children in esse, and more remote descend- ants . • • • § 536a Limited number of • • ■ § 5 ^b See Remoteness . • S ' ll ' li LIMITATION, Two senses of the word . • • §24 Definition of a limitation in the original sense . § 26 in the derivative sense § 106 In the original sense of a restrictive expression forming 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 express general limitations § 31 — 2 Instances of implied general limitations . § 33 Special or collateral limitations, Defined . • • • § 34 Examples . • • . § 35 Remarks on the terra " collateral " applied to special limitations . • • § 36 Distinguished from conditional limitations, § 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 limitation and a condition precedent . . § 43 Where a subsequent interest depends on the determi- nation 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 in- terest be limited by way of remainder § 278, 280 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 of a simple limitation . . §108 qualified limitation . . § 109 Distinction between directly qualified and indirectly quali- fied limitations . . . § 110 Definition of immediate and executory limitations § 111 absolute limitations . . §113 %/)o^eft'canimitations . . §114 limitations in default of appointment § 115 limitations creating powers of appointment, § 1 16 Limitations operating differently in regard to another limita- tion in different events. An interest may be limited to take effect either as an alternative, or as a remainder or quasi remainder § 668, 542 An interest shall, if possible, be construed as a re- mainder or quasi remainder, as well as an alternative § 666a ; and cases stated, § 545 — 6 INDEX. LIMITATION— continued. Every remainder or quasi remainder has the effect ol an alternative limitation, in case the preceding inte J e fi s * ne JfI ^ 009, 0/ 2 VP GTS • ■ J , Consequence" of the ahove rule, as regards chattels ^ichare to qo to the persons entitled to real estates entailed § bo9a Instance of a ronainrfer taking effect as such, though taking effect as an alternative as regards the possession $ o/u An interest may be limited to take effect either as an alter- native or as an interest under a conditional limitation, $ b70a An interest may be limited to take effect either as a remainder, or as an interest under a conditional limitation § 670* among the Addenda A mere conditional limitation will have the effect of an alter- native, if the prior interest never vests . * 7 \'^A Exception . • • .-•:, {ja. So also will a limitation of a springing interest of the seventh h-' a • • * 0/ia Conditional limitation becoming a remainder in the room of a preceding remainder in fee . • v °' A future interest is not construed an interest under a ^condi- tional limitation or a springing interest, when it can be .con- strued a remainder . ■ . • V-ii, But when the preceding freehold fails, a future interest which would otherwise have been a remainder, is construed a snrinqinq interest . • * / And an ulterior interest in remainder also becomes a springing interest, abstractedly regarded, though it is a remainder -as regards the less remote springing interest . $ °'° 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 . $ 077 Limitations operating differently in regard to different limitations The same limitation may be a remainder, an alternative and a conditional limitation . • * ° 78 °. bl The same limitation may be an alternative and an augmentative limitation, or a limitation of a springing interest $082 Every more remote limitation may be a remainder as regards a prior limitation, though not limited next after it § 08 2a Limitations intended to operate in different ways m regard to different portions of property. Limitations may operate in this way . ,.?. , A limitation may be penned so as to operate as a conditional limitation and as a limitation of a springing interest in regard to different portions of property . § ^84 A limitation may be so penned as to operate as an alternative and as another kind of limitation in regard to different portions of property . . • | Objection • • | Words of limitation defined • •'*": See Issue ... § 506-528 See Remainders, generally. Contingent Remainders. Quasi Remainders. Reversion. Springing Interests. Augmentative Limitations. Diminuent Limitations. 471 472 INDEX. LIM ITATION— continued. See Absolute Limitations. Hypothetical Limitations. Conditional Limitations. Appointment, limitations creating powers of, and limita- tions in default of. Alternative Limitations. LIVERY of seisin, Where it is, and where it cannot be, dispensed with, in the case of an enlargement of an estate on condition . § 138 — 144 Must pass a present freehold, and cannot give a freehold in futuro . • • • . § 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 in futuro, even at common law ■ . . § Ilia, note (e) ON, Devise or bequest to A. on &c. . . § 2S5 — 6 OR, Where " or " is construed " and," in limitations over — of real estate on death under a certain age or without issue .... § 235 — 6 — of personal estate in the same event . § 237 — of real estate on death under a certain age, or without children . . . . § 23S — of real or personal estate on death within some other time, or without leaving some other object who might derive a benefit through the devisee or legatee § 239, 243, 550 Where "or" is not construed " and" . . § 240 " And " is not construed " 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 In 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 . . § CO — 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 INDEX. 473 PAYMENT. See Vested . • • § 310— 327 PERPETUITIES, General rule against § 706—8 See Life Estates — Remoteness. PERSONAL ESTATE, Limitations of personal estate, similar to limitations 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 remainder 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 pro- perty . • • . §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 pro- perty . . • § 597a Executory trust in favour of a person and his issue § 593 Limitations over on an indefinite failure of issue . § 599 Limitations over on failure of children only, or of issue within a given time . . • § 600 Limitations of personal estate to or in trust for the persons en- titled to real estates entailed, Rule I. Where such limitations are not by way of executory trust • • • f 601 Rule II. Where they are by way of executory trust § 602 The distinction exhibited in these two rules is in accord- ance with the distinction made in other cases § 603 Grounds of the distinction . . § 604 — 6 Executory trusts should be construed according to the second rule . • • § 607 especially when created by marriage settlement or articles . . • § 60S A gift through the medium of a direction, is not neces- sarily a trust executory . § 609 — 613 The words " so far as the rules of law will permit ," pre- clude 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 Newcastle 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 ought 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 no such construction of an executory trust has been adopted . . § 624 474 INDEX. PERSONAL ESTATE— continued. Lord Eldon supposed that directory trusts were synonymous with executory trusts . § 625 Objection urged by Lord Eldon . § 626 — 8 Observations on some other other remarks of Lord Eldon . . § 629—630 Observations of Lord Erskine . § 631 Remarks thereon . . § 632 Concluding observations . . § 634 — 7 ■See Quasi Remainder. 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 Principles. When the leaning in favour of vesting is peculiarly strong , § 215 It is so where a portion or legacy seems to depend on sur- viving parents . . . § 216 Distinction between agiftbyw«77andatrustbysettZe»ie?i£, § 217 Leaning against construing survivorship a pre-requisite, is strong even in the case of a will . § 218 But much stronger in the case of a marriage settlement, § 219 Specific Rules. Where one child survives, and the words importing neces- sity 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 who did not survive . . . § 221 Where wo 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 . §241 Word payable in a clause of survivorship or cesser, or a limitation 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 Mere possession rightful and unlimited . § 50 Mere precarious possessions . . . § 70 POSSIBILITY, In the technical and specific sense of the term . § 69 In the popular sense . . . § 71 Of reverter . . . , . § 69 Less than a . . . . & 71 See Expectancy — Interest — Quasi Interest. INDEX. 475 POWER of Appointment, Defined . . . • § 72 See Appointment. Vested ... § 369—374 Remoteness . . § 728 — 735 PRACTICAL Suggestions connected with Special Limitations § 377—380 PRESUMPTION, where admitted . . P- 78 PROPERTY. See Ownership. PROFITS. See Income. PROVIDED, Is one of the three technical words introducing a condition sub- sequent . • •..,.." § 16, 18 Introducing an irregular special or collateral limitation § 39 See Vested .... § 290—7 PURCHASE, Words of purchase defined . • § 403 Word heir a word either of purchase or of limitation § 402 See Issue . . • § 504— 533a QUALIFIED 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 personal property § 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 Destruction of contingent remainders thereby . § 770 other executory interests . . § 789 REMAINDER, Lax sense of the term . ■ • §159 Definition of a limitation of a remainder, properly so called, § 159 Distinguished from future bequests . . § 159a conditional limitations . § 160 alternative limitations . . § 161 the first six kinds of limitations of springing interests . . . § 162 augment ative limitations . § 163 diminuent limitations . . § 164 the seventh kind of limitations of springing interests . • § 165 .— index. REMAINDER— continued. limitations of the whole or the immediate part of the reversion . • § 167 Of the construing a limitation to be a remainder rather than an executory limitation not by way of remainder, The general rule as commonly stated . § 196 as more accurately stated . § 197 Reasons for the same . • § 198—9 After an estate tail . • • § 192 T 4 After a life 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 . . • § 590 A similar devise to the residuary devisee has the same effect § 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 interest not preceded by a vested freehold can- not be a remainder ... § 759 A vested freehold interest after a term for years is not a remainder . • § 760 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 interest by way of use or devise, is good, but not as a remainder ... § 762a A freehold interest limited, by way of use or devise, after a contingent interest only, is good, but not as a remainder ... § 763 A freehold interest limited after a contingent interest only, at common law, is not a remainder, and is void § 763a Time for vesting of ... § 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 . § 708 Specific Rules. Limitations in favour of unborn persons, whether forming a class or not. A limitation must be such as must take effect within the pre- scribed period, if at all . . § 709 Hence limitations to children of persons not in esse at the date of the will, are not good . . §710 Nor are clauses designed indirectly yet virtually to limit estates to the issue of an unborn person as purchasers § 710a INDEX. 477 REMOTENESS— continued. But limitations to unborn children of persons in esse are good §711 It has been thought that a life interest cannot be limited to an unborn person . . § 712 But this notion is erroneous . § 713 Limitations on a failure of issue . . . §714 Two preliminary questions . . §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 limitation over on an indefinite failure of issue is void for remoteness . . . § 719 The construction of such a limitation is the same, where the prior taker has 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 Limitations on a failure of heirs . . § 7 19a Interests to vest on the sustaining a certain character § 721 Interests limited to unborn jjersons forming a class, whether at a given age or otherwise Where the vesting of a devise or bequest to a class is sus- pended till a certain age, and some of them may not be in esse till too late a period . . § 722 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 . . § 724 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 intended 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 containing the power ... § 728 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 sale . . . • § 735 Certain points connected with Remoteness. Where the absolute interest is afterwards restricted to a life interest, with a limitation over, which is void for remoteness § 736 Remainder after too remote an interest . . §737 478 INDEX - REMOTENESS— continued. Money raised by a term well created, the uses whereof are void for remoteness § 738 RENTS, Conditions relating to • • § 1° Not previously subsisting, might be limited mfuturo even at com- mon law . • • § Ilia, note (e) RESULTING TRUST, Where money raised by a term, the uses whereof are void for remoteness, is a resulting trust . . § 738 REVERSION, Definition of a limitation of the whole or the immediate part of the reversion . • • • § 1 69 Certain cases of interests under limitations of the whole or the immediate 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 such 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 § 376 Observationgroundedontheforegoingdistinctions, § 377 Where a limitation is to take effect on 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, some of whom are not inheritable under such estates tail, and such limitation is a limitation of a springing in- terest, § 379 ; and see Addenda . . §125 Exception, where the interval may be filled up by impli- cation .... § 380 Where such implication does not arise . § 380 Where a limitation is made of the reversion, eo nomine, on an indefinite failure of issue, some of whom are not inherit- able under such estates tail; and such limitation is a li- mitation of the whole or the immediate part of the rever- sion . . . . . § 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 therefore such limitation is a limitation 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 Beverly'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 essential requisites thereof § 399 INDEX. RULE IN SHELLEY'S CASE— continued. Another statement of the rule . • \^°°T 1 Limitations not by way 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 • ' * • * IfrZ Definition of words of purchase . • \ 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 ... § 40 ' 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 ancestor . . • • ' f 42 ? III. Desire of 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 this . . ■ § 4 24 Certain objections answered . • § 4 25 Answer to another objection drawn from the case of ficti- tious descents per formam doni . §426 — 7 Fearne's answer to the objection that the rule frustrates the testator's intention . . § 4 28 V. The object of the rule is to give effect to the primary or paramount intent at the expense of the secondary or minor intent . . • .• f 42 9 Definition of the primary or paramount intent § 430 Definition of the secondary or minor intent . § 431 The primary or paramount intent is imported by 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 limitations 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 definite to say that the secondary or minor intent is sacrificed to effectuate the primary or paramount intent § 43o< Observations of Lord Redesdale . . § 437 Denman . § 438 479 480 INDEX. RULE IN SHELLEY'S CASE— continued. They are just, but are not explanatory of the grounds of the rule . . § 439 Why the technical words overrule the other words,§ 440 — 2 Wherein consists the incorrectness a7id vagueness of the common statement of the principle of the rule § 443 Observation of Lord Eldon on the general and particular 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 § 44S 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 applies, notwithstanding apparent indications to the con- trary .... § 453 1. Limitation for life only . . § 454 2. Or without impeachment of waste . . § 455 3. Power to jointure or make leases . §456 4. Obligation to repair . . § 457 5. Restraint of alienation . . § 45S 6. Limitation to trustees topreserve contingent remainders,^ 459 7. Limitation to heirs for their lives . . § 460 8. Concurrence of several of these indications § 461 9. Freehold determinable in ancestor's lifetime § 462 10. Freehold by implication . . § 463 11. Freehold by resulting use, where a remainder is limited to the 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 iise, where a springing interest is limited to the heirs special of the grantor . § 467 13. Where there are apparently two concurrent contingent re- mainders ... § 46S 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 18. Tenant in tail after possibility of issue extinct § 471b II. Second general proposition, showing where the rule applies, notwithstanding apparent indications to the con- trary .... § 472 1. Word heir'm 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 INDEX. 481 RULE IN SHELLEY'S CASE— continued. 4 Word sons or daughters, referring to the heirs, if only used in the sense of males or females &c. .J 4, b 5 Intention that the limitations should be in strict settlement § 477 6. Superadded words usually occurring in limitations to first and other sons in tail • • . • ' III. Third general proposition, showing where the rule does not apply •. • • J. , ' 9 Indication of the non-application of the rule may be either direct or indirect . • • ,» 1 Direc* explanation or indication that the persons who are to succeed are not persons who are to take simply as heirs general or special • • | 2. Indirect explanation or indication . | *»* (1) Word /*eir, with superadded words of limitation, $ 485 (2) Limitation to the Aeir/or life ■ • § f 86 (3) Superadded words of limitation which limit the estate to persons of a different sex . • § 48 7 (4) Words of distributive modification, with superadded words of limitation . • . • ./.I 88 (5) Words of distributive modification, with a limitation over in the case of the death of sacA issue wrarfer a cer- . . & 488a tain age • , .• . . * „ (6) By blending a limitation to the heirs special of ano- ther person,an& superadding words of limitation, § 488 b Aid afforded, in the Application of the Rule, by Im- plication from a Limitation over on Failure of Issue . * Application and Non-application of the Rule in Cases of Trusts Executory. Definition of an executory trust . • § 489 1 Rule as to executory trusts created by will . § 490 Ground of distinction between trusts executed and trasts 4 e *j ecutory . • , ..*„ „ Illustrations of the foregoing rule . . • \*»* f II. Rule as to trusts executory created by marriage settlement, with the exceptions thereto • $ 49 . 4 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 • • • | 2. Cases constituting the second exception . | aui 3. The third exception . ■ • 5 M SAID ' a § 725 Supplied • • . 6Q1 Not supplied SEISIN defined . ^ 47 See Livery-— Ownership. i i 482 INDEX. SO LONG AS, denoting a special or collateral limitation § 35, 41 SO THAT, Is one of the three technical expressions introducing a condition subsequent . • • . § 16, 18 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 real property . . . §117 — of the first kind . . § 119 — of the second kind . . §120 — of the third kind . . § 121 — of the fourth kind . . § 123 — of the fifth kind . . § 124 — of the sixth kind, § 125; and see Addenda, § 125 — of the seventh kind . . • § 126 — in personal property . . § 127b Limitations of these interests in real property can only be by way of use or devise, and are termed springing uses and executory devises .... § 127a Not expedient to extend the term to conditional limitations § 152 Distinguished 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, with a vested remainder over, distinguished from cases of a life estate, with a limitation over of a springing interest. See Part II. Ch. 17, passim. See Conditional Limitation . . § 263—275 Reversion. SUCH, Supplied . . . _ . § 725 Not supplied . . , § 691 See Issue. SUPPORT of contingent remainders, Contingent remainder for years needs no preceding freehold p § 765a Contingent freehold remainder must be supported bv a preceding freehold . . FF ' / ^ 75 | 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 >ot necessary that the preceding estate should be vested in pos- semon ■ § 768b INDEX. 483 SUPPORT of contingent remainders — continued. 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 § 187a Bequest over, in case of death without issue, to the survivor — without words of limitation . . § 553 — with words of limitation . . § 555 To what period it refers . . § 284, note (b) Where survivorship would have been implied in the words in- troducing a vested remainder . . §348 — 350 TERM 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 a term of years . . §119 — 124a See Vested § 245—257 Personal Estate. Quasi Remainders. THEN, Not denoting a condition precedent, but referring only to the possession or enjoyment . . § 346 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 . . § 706 — 8 TRANSMISSION of executory interests, Division of executory interests with reference to the capacity of transmission existing at the time of their limitation § 742 Transmissible in all events . . § 743 Untransmissible § 744 Transmissible in some events only . . § 745 Division of executory interests with reference to the capacity of transmission existing at the death of the persons entitled thereto § 746 Transmissible § 747 Untransmissible . . • § 748 TRUSTEES, Trust estate to preserve con tingent remainders . §781 Forms an exception from the first class of contingent re- mainders . . • § 258 Mere right of entry is sufficient to preserve contingent re- mainders . . • § 782 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, 41 484 INDEX. UPON, Devise or bequest to A. upon &c. § 285—6, 346 USES, Shifting • • • r „ • § 15 ° 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 right of pos- session or enjoyment, — of a vested interest or actual estate, § 76. See also § 48 — of a present vested interest . . § 77 — of a future vested interest . . § 78 When an estate is vested in possession . § 79 in right or interest . § 80, 8 1 Definition of vested interests without reference to the right of possession or enjoyment, — of a vested interest or actHal estate . . § 87 — of a present vested interest . . . § 88 — of a 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 a present vested interest and a future vested interest . . . § 78a Vesting inchoately or inceptively . . § 82 Of Limitations of Present Vested Interests, when considered with reference simply to the Possession or Enjoyment, or both. Limitations of interests vested in possession, or in enjoyment, or in both . . . . . § Hid Limitations of vested interests — in real estate, subject to a term for years . § 1 He — in real or personal estate, subject to a chattel interest of uncertain duration . . . § 11 If — in real or personal estate, subject in any other way to a suspension of the possession or enjoyment, or both § 1 1 1 g Of the construing an Interest to be Vested ra- ther than Contingent, according to the ge- neral Rule. The Rule stated, and the reasons thereof explained. The general rule as commonly stated . § 200 as more precisely stated § 201 Reasons thereof; namely, — 1. Destructibility of contingent interests . §203 2. Abuse of property by the heir at law in the in- terim . . . . § 204 3. Unsettled state of the family whose interest is con- tingent . . . § 205 INDEX. 485 VESTED INTERESTS generally— continued. 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 per- son . . . § 208 6. 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, among the Addenda. Application 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 Application of the rule to legacies and portions apparently de- pending on surviving parents, as a condition precedent. See Portions. Application of the rule to subsequent interests limited after in- terests depending on a condition precedent . . § 222a Present Vested Interests subject to a Term of Years, distinguished from Vested and Con- tingent Remainders, and from Springing In- terests. A freehold after a term may be termed a remainder, so far as re- gards the possession, with or without the beneficial interest § 245 But it is not a remainder, properly so called . § 246 But is either a present vested interest subject to a term ; or else a springing interest . . § 247 Where a freehold after a term is a present vested interest, sub- ject 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, in 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, and in other cases . . § 256 — 7 Certain other Cases of Vested Interests, dis- tinguished from Executory Interests. 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 . . . § 281 II. Where an uncertain event forms an independent super- added description . . § 282 — 4 Cases where a devise or bequest has reference to a future age or 486 INDEX - VESTED INTERESTS generally— continued. an uncertain event which does not form 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 . ■ § 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 legacies . . §291 (1) payable out of real estate . . §292 (2) payable out of personal estate . § 293 The doctrine of the Civil Law . § 294 — 5 2. In the case of real estate, (1) Where the word " provided " follows the devise, and there is no limitation over . § 296 (2) Where the word " provided "follows the devise, and there is a limitation over . § 297 (3) Where the word "if" or the words "in case " follow the devise . § 298—9 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" . §300 Cases where the devise has reference to a time or event certain, and there are no indications of, or grounds for supposing, an immediate vesting . . . § 301 Cases where the devise or bequest has reference to a future age, time, or event, mot 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 . . . § 309 I. Where the time is not annexed to the gift itself § 310 1. Application of the distinction to legacies payable out of personal estate . . § 3 1 1 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 en- joyment, 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 future 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 INDEX. 487 VESTED INTERESTS generally— continued. 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 2. Intermediate income is given in respect of a vested interest in the property itself § 333 — 5 3. But this construction of a gift of intermediate income not being one that arises from necessary implication, such gift is not sufficient to vest an interest, apart from the leaning in favour of vesting . . . 336.7 And as the leaning in favour of vesting is counter- poised by other considerations in the case of charges on real estate, the gift of the interme- diate income is insufficient to vest such charges § 338 But if a legacy charged on real estate is expressly di- rected 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 necessity, or for the accomplishment of some special purpose uncon- nected with a suspension of the property or ownership § 34 0a V. Cases of residuary bequests on marriage , § 341 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. Where the event of attaining a given age, is introduced by words importing a contingency, and constituting a condi- tion precedent . . . • § 344 VIII. Where a trustee is appointed for the intermediate time § 345 Cases where the devise has reference to an event which would be implied by the words introducing a vested remainder § 347 — 350 Effect of a 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 . . §351 Observations on the preceding cases, showing the prin- ciple 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 falling 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 , 88 INDEX. VESTED INTERESTS generally— continued. over ; and the devise over could not render it vested . • § 35 7 II. Effect of a devise over simply on the non-happening of the event on which the prior devise is apparently made contingent §358 1. Such a devise over does not afford a necessary pre- sumption that the prior devise is contingent § 359 2. But still it affords some presumption thereof § 360 Or, at all events, it affords no ground for supposing such prior devise to be vested . § 361 III. Devise over to survivors of a class affords some pre- sumption 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 inter- mediate 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 the attainment of a certain age forms part of the description of the legatee or devisee . . § 366 Effect of subsequent explanatory words . . § 366a Effect of an allowance for maintenance. I. Where the whole intermediate income is given, and there is no limitation over . . . § 367 II. Where there is a limitation over, § 36S ; and see Ad- denda . . . § 368 III. Where part only of the intermediate income is given . . . • . § 369 Effect of 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 par- tial 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 appointment . § 373 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 . . . . . § 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 . . . . § 691 489 ADDENDA. § 97, line 3. After " condition," add « or by the exercise of a power." § 98 line 3. After " condition," add « nor liable to be defeated by § l 2 h n T3 Ci8 Aft f er V££m interest," add - created by the same § ns'ument, or which might not arrive till a period J = to the expiration of an interest created by a prior instrument. § 2 09 Se A § fter?hil passage, add •<§ 20 9 a. 7. The law favours the alien 5 ation of property; whereas the contingent quality of an interest renders such interest incapable of being directly transferred by deed, or even by a fine or recovery. (See § 754.) § 36 (A a note to the rule, add " But see Doe d. Dolly v. Ward $ stated § 331 ; which, however, was decided on the authority of Randoll v. Doe d. Roake, a case that cannot be relied on. (bee & q & i . q f\ o y ' § 545, line 7. After " limitation over," add « is both an alternative and a remainder, or, at least, it." & 546, line 6. Add the same words. & 668a margin. Add " and cases stated § 545— b. | 670 After this passage, add " 670* An interest may be limited to * take effect either as a remainder after a preceding interest^ or as a conditional limitation, in defeasance thereof. (See § 240.) ERRATA. comma after " die," instead of after " them. Page 117, line 33. For " settlements," read » sentiments. ^ oo7 Fnr " rnnditiozte " read " condition. | 344', line 10. Dele Z > before « followed." And for « either," read " any one." , . „ § 338, line 12. For " interest," read " interests. Page 173, margin. For " 113," read 13. & 4Q4 line 12. Dele " executory." , | 503! line 7. For « devises to a person and to his issue," read such devises & 550 line 4 For a semicolon after " period," put a comma kge 285 hiding of Section the Second. After "devise to," add " his " Page 299,' margin. For " 557," read " 577." §665, line 3. Dele semicolon after and. Page 423, lines 3 and 4. Dele the words after « deaths. Page 441 line 6, margin. Remove " See § 59 to line 17. AnSysis,§528 Fo « of the body," read "generally." Vol. II. KK LONDON : WILLIAM STEVENS, PRINTER, BELL YARD, TEMPLE BAR. J jun University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. 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