considered as defective in point of precision. An executory devise is, strictly, such a limitation of a future estate in lands or chattels, (though, in the case of chattels personal, it is more properly an executory bequest,) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law. It is only an indulgence allowed to a man's last will and testament, where otherwise the words of the will would be void; (Driver v. Hoole, 2 Wils. 90;) for, wherever a future interest is so limited by devise as to fall within the rules laid down for the limitation of contingent remainders, or it can take effect as a contingent remainder, it shall never take effect as an executory devise. (See Purefoy v. Rogers, 2 Saund. 388; Doe v. Scudamore, 2 Bos. & Pull. 295; Doe v. Morgan, 3 T. R. 765.) A proper executory devise is, where a testator devises a fee, but, upon the happening of a particular event, limits the inheritance over to another description of heirs: (Luddington v. Kime, 1 Lord Raym. 207; Pells v. Brown, Cro. Jac. 592.) Such a limitation over cannot take effect as a contingent remainder, because it is an established rule of law, that a fee cannot be limited after a fee. (Gardner v. Sheldon, Vaugh. 269; Co. Litt. 18 a; and see ante, p. 113.) But where the contingency, upon which the limita

tion over after a fee is to take place, must happen within such time as that the estate devised would not be unalienable longer than an estate limited by way of remainder in a deed might legally be, such a limitation, by will, of a fee after a fee, is allowed to take effect under the name of an executory devise. (Roe v. Jeffery, 7 T. R. 596 ; Doe v. Webber, 1 Barn. & Ald. 721.)

There is another species of executory devises, where a testator gives a future estate to arise upon a contingency, or at a certain time; and does not in the mean time part with the fee, but retains it; and on his death the fee descends to his heir, until the time comes for the executory devise to take effect. (Scatterwood v. Edge, Salk. 230; Hide v. Lyons, 3 Leon. 70; Gore v. Gore, 2 P. Wms. 64; S. C. 2 Str. 958.)

A third sort of executory devises, or rather bequests, is where a term for years or other personal estate is bequeathed to one for life, remainder over to another: such limitations were very soon permitted to be created by will; the technical objections being obviated by changing the name from remainders to executory bequests; and at a later period such limitations were allowed to be made by deed. (Matthew Manning's case, 8 Rep. 189; Wright v. Cartwright, 1 Burr. 284.)

(15) The law does not allow such a limitation of property as would render it unalienable for a longer period than a life or lives in being, and twentyone years afterwards, with the further allowance of a few months for the gestation of a child en ventre sa mere. It has been doubted whether an executory devise to a person unborn, can be limited to take effect upon a term in gross, of twenty-one years and a few months, after lives in being. Lord Alvanley (in the case of Thelluson v. Woodford, 4 Ves. 337,) said, the period of twenty-one years had never been considered as a term that might, at all events, be added to an executory devise, or trust. Mr. Sugden, (in a very able note to Gilbert on Uses and Trusts, ch. 2, s. 2,) contended that no such rule ought to prevail. But, in Bengough v. Edridge, (1 Simons, 267,) where trusts were to be performed after the expiration of a term in gross of twenty-one years from the decease of the survivor of twenty-eight persons who were living at the testator's decease; and where the contest was, whether the vesting could be suspended for lives in being and twenty-one years, not with reference to minority, but positively fixed time; Sir John Leach, V. C. considered it to be fully settled, that

VOL. II.

limitations by way of devise, or springing use, may be made to depend upon an absolute term of twenty-one years after lives in being. Now, if an executory devise to a person unborn can be limited to take effect after the expiration of such a term in gross, there is a chance that the power of alienation may be restrained longer than it could in the case of a strict settlement. It is true, that, in a strict settlement, several successive infancies may occur, during which the estate would be unalienable; but, in this case the same thing may happen, and twenty-one years are moreover absolutely fixed, during which the estate cannot be aliened, even although the person presumptively entitled be adult.

The decision pronounced in the case of Bengough v. Edridge must, therefore, be taken to qualify the dictum of Lord Kenyon, in Long v. Blackall, (7 T. R. 102,) that an executory devise cannot make an estate unalienable for a longer time than is allowed by the limitations of a common law conveyance. And Sir John Leach's decision has been affirmed by the House of Lords. (See Cadell v. Palmer, 3 Moo. & S. 571; 10 Bingh. 141.)

(16) The 39 & 40 Geo. III. c. 98, enacts, that no person shall by any

U

(17) A limitation over of a term, or other personalty, in case the previous legatee shall die" without issue," is too remote; and the absolute interest in the property vests in the first taker. In some of the early cases, indeed, the judges inclined to hold those words to mean, without issue at the death of the party; but ever since the case of Beauclerk v. Dormer, (2 Atk. 309,) a different rule has prevailed; and it is now settled, that unless there are expressions or circumstances, from which it can be collected that the words were used in a more confined sense, they are to have their ordinary legal signification; viz. death without issue generally. (Barlow v. Salter, 17 Ves. 481; Donn v. Penny, 19 Ves. 547.) If a combined devise and bequest be made to a man and the heirs of his body, with a limitation over "if he has no such heirs," as these words do not point to any time less indefinite than a general failure of issue, the limitation over is void; and the first taker will have an absolute interest in the personal property. (Jeffery v. Sprigge, 1 Cox, 63.) But, where the limitation over of leasehold, or a term in real estate is, in case the first taker in tail dies" and leaves no such heirs," the settled construction is that it means at his death: (Crooke v. De Vandes, 9 Ves. 202, 204 :) and if, after a devise over of freehold estate in those terms, the testator makes a bequest over of his personalty, not combined with the devise over, but showing a plain intention to make the bequest dependent on the same event as the devise, the bequest over may be good, by way of executory bequest. (Foley v. Irwin, 2 Ball & Beat. 443.) Yet, the devise over would be void; for, it must be understood that the con

struction of the words "leaving issue," as meaning at the party's death, is admitted only as to personal estate; the same words, when used with reference to freehold estate, are always held to import a general failure of issue. (Franklyn v. Ley, 6 Mad. 260.)

Words of limitation in a will, which, either directly or constructively, give an estate tail in freehold property, will pass an absolute estate in personalty: (Britton v. Twining, 3 Meriv. 183; Elton v. Eason, 19 Ves. 78:) unless other words can be found in the will, which show that the testator meant to tie up his personalty as long as the rules of law allow. (Chandless v. Price, 3 Ves. 101.) A bequest over of leasehold, or other personal estate, in default of issue of the first taker living at his death, will clearly evince an intention not to give the absolute interest, and the bequest over will be valid, since it must take place (if at all) within the limits prescribed by the policy of the law, and there is no danger of a perpetuity being created. (Donn v. Penny, 19 Ves. 547; Kirkpatrick v. Kirkpatrick, 13 Ves. 484.) In such case, the legatees over may take as purchasers; but it will be vainly attempted to direct the succession to leasehold, or other personalty, so as to go concurrently with freehold. Neither leaseholds, nor any other descriptions of personal property, can be entailed so as to make them transmissible in a course of succession to heirs; they must go to personal representatives. (Countess of Lincoln v. Duke of Newcastle, 12 Ves. 225; Keiley v. Fowler, Wilmot's Notes, 310.) It is, no doubt, a sound general rule, to give the same meaning to the same words throughout a will: (Goodright v. Dunham, 1 Dougl. 267 ;