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appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natu[ *172 ] ral life, will then take effect, and become a *particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented. by Sir Orlando Bridgman, Sir Geoffrey Palmer, and other eminent counsel, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life (d): and when, after the restoration, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use.

Of executory


Thus the student will observe how much nicety is required in creating and securing a remainder; and I trust he will in some measure see the general reasons upon which this nicety is founded. It were endless to attempt to enter upon the particular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament, (which being often drawn. up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice,) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

An executory devise of lands is such a disposition of them

(d) See Moor. 486. 2 Roll. Abr. 797, pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.

by will, that thereby no estate vests at the death of the devisor, but only on some future contingency (13). It differs

ecutory devise is, where a testator de-
vises a fee, but, upon the happening of
a particular event, limits the inherit-
ance 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). But where the con-
tingency, upon which the limitation
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 un-
der the name of an executory devise.
(Roe v. Jeffery, 7 T. R. 596. Doe v.
Webber, 1 Barn. & Ald. 721).

(13) Mr. Fearne, (in the commencement of the 1st chapter of his admirable treatise on Executory Devises), observes, that the common definition of an executory devise, namely, that it is a devise of a future interest in lands, not to take effect at the testator's decease, but limited to arise and vest upon some future contingency, is too general: that it does, indeed, comprehend every species of an executory devise, but is not confined to executory devises only; it includes every kind of contingent interest in lands given by devise now every contingent interest in lands, limited by devise, is not an executory devise; for some contingent interests by devise are contingent remainders; therefore, the common definition must be 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 A third sort of executory devises, or limitation of contingent remainders, or rather bequests, is where a term for it can take effect as a contingent re- years or other personal estate is bemainder, it shall never take effect as queathed to one for life, remainder an executory devise. (See Purefoy v. over to another: such limitations were Rogers, 2 Saund. 388. Doe v. Scuda- very soon permitted to be created by more, 2 Bos. & Pull. 295. Doe v. will; the technical objections being obMorgan, 3 T. R. 765). A proper ex- viated by changing the name from re

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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).

from a remainder in three very material points: 1. That it [173] needs not any particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.

I. An executo

ry devise needs

lar estate to support it.

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1. The first case happens when a man devises a future not any particu- estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir-at-law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder, without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise (e). For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do if it passes at all), therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in præsenti. And since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences (f) (14). 2. By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to

2. By it a fee, or other less es tate, may be limited after a fee.

(e) 1 Sid. 153.

(ƒ) Cro. Jac. 593.

mainders to executory bequests; and at
a later period such limitations were al-
lowed to be made by deed. (Matthew
Manning's case, 8 Rep. 189. Wright v.
Cartwright, 1 Burr. 284).

tion. It was said in Petts v. Brown, (Cro. Jac. 593), that if the person to whom the executory devise is limited comes in as vouchee in a common recovery, his possibility is given up, and

(14) This requires a little qualifica- his heir barred.

commence on a future contingency. As if a man devises land to A. and his heirs; but if he dies before the age of twenty-one, then to B. and his heirs: this remainder though void in a deed, is good by way of executory devise (g). But in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a mode*rate term of years, for courts of justice will not indulge even [ *174 ] wills, so as to create a perpetuity, which the law abhors (h): because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation (i),) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise (k) (15) †.

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3. By this means a remainder may be limited of a

chattel interest, after a particular

3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed;

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), supports the same doctrine. But, in Bengough v. Edridge, (1 Simons, 267), where trusts were to be performed after the expiration of a term in gross of twenty 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 years, not with reference to minority, but positively fixed time; Sir John Leach, V. C. considered it to be fully settled, that limitations by way of devise, or springing use, may be made to

tion shall be void, and the rents and profits, during the time that the property is directed to be accumulated contrary to this act, shall go to such person as would have been entitled thereto, if no such accumulation had been directed; provided that this act shall not extend to any provision for

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 person who shall then become entitled may be an infant, in which event, as Mr. Sugden observes, the power of alienation would 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 taken, 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.

the payment of debts, or for raising portions for children, or to any direction touching the produce of woods or timber.

A direction for accumulation during a life was held to be good for twentyone years after the death of the testator. 9 Ves. jun. 127.—CH.

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