effective. The will may dispose of a certain estate in property with remainder over. The particular estate may be void or may lapse during the testator's lifetime, and the remainder therefore have no preceding estate to support it; but the devise will be construed as if the remainder had been given directly without the intervention of a preceding estate, and the remainder in such a case will be given effect as an executory devise if it can vest at the date of the death of the testator. But if the will provides that the remainder may vest only in the event of some contingency which has not occurred during the testator's lifetime, and the preceding estate has failed prior to that time, the remainder must fail since it has no preceding estate to support it, and it can not be given effect as an executory devise." This rule, however, has been altered by statute in many jurisdictions."

§ 1025. Executory Devise Converted Into Remainder by Change of Circumstances.

A will becomes effective only at the death of the testator. A remainder, either vested or contingent, of an executory devise, is valid at that date or not at all, subsequent events having no effect as to the question of validity. An interest executory at the time it was given may by reason of a change of circumstances prior to the death of the testator, take effect as an ordinary remainder.

estate, so that no remnant exists for the subject of a remainder; and both benignantly need the aid of courts in the interpretation of wills, in giving effect to executory devises."

4 Fearne Cont. Rem. 625, 626; Bullock v. Bennett, 31 Eng. L. &

Eq. 463; Crozier v. Bray, 39 Hun (N. Y.) 121.

See § 769.

5 Humberstone v. Stanton, 1 Ves. & B. 385; Williams v. Jones, 1 Russ. 517; Doe v. Brabant, 3 Bro. C. C. 393; Gibson v. Seymour, 102 Ind. 485, 52 Am. Rep. 688. 6 See § 1006.

Thus a devise to A for life with remainder in fee to the child she was supposed to be bearing, with a limitation over to C should such child die under age and without issue, is an executory devise to C, but at the death of the testator, the contingency of the child never occurring, C's interest would take effect as an ordinary remainder." And events subsequent to the death of the testator may convert an executory devise into a remainder, as where the immediately preceding estate vests in possession. For instance, the testator makes a devise to A for life with remainder to A's son B in fee, but in case of B's death before A and A having no other child living at his death, then A to have the power to dispose of the property to whom he should desire. Should B die after the testator but before A, the power given to A would operate only as an executory devise between the date of the death of the testator and that of B; but after the death of B the estate in A would in effect be an estate for life enlarging to a fee upon the contingency of death without other children.

§ 1026. Limitation Over if First Devisee "Die Without Issue." The difficulty in determining whether a contingent gift is an executory devise or a remainder usually arises where

7 Gulliver v. Wickett, 1 Wils. 105.

Under a devise to A, but if he dies before a certain age then to B, and A dies under that age during the testator's lifetime, the gift over takes effect at the testator's death.-Darrel v. Molesworth, 2 Vern. 378; Haughton v. Harrison, 2 Atk. 329.

Under a devise to A, but if he "die without issue," then to B, and

A dies without issue during the testator's lifetime, the gift over takes effect at the testator's death. -Downing v. Marshall, 23 N. Y. 366, 80 Am. Dec. 290; Matter of Miller, 161 N. Y. 71, 55 N. E. 385. 8 Fearne Cont. Rem. 503; Lion v. Burtiss, 20 Johns. (N. Y.) 483; Wilkes v. Lion, 2 Cow. (N. Y.) 333.

9 Doe v. Howell, 10 Barn. & C. 191.

there is a devise in fee in one clause, and afterwards a gift
over upon the contingency of the first devisee "dying
without issue." Unless a contrary intent is expressed,
this according to the common law rule referred to an
indefinite failure of issue and created an estate tail in the
first devisee.10 The common law rule was that a limita-
tion over upon the indefinite failure of issue created an
estate tail, and a gift over after the indefinite failure of
issue was a contingent remainder limited after an estate
tail, and not an executory devise.11 The foregoing refers
to the first taker "dying without issue." But should the
devise be to A with the limitation over upon B "dying
without issue," the devise in fee to A would not be reduced
to an estate tail, and the gift over being limited after a
fee could take effect only as an executory devise, and not
as a remainder.12 But an executory devise to take effect
only upon an indefinite failure of issue is void under the
rule as to perpetuities, for an executory interest, in order
to be valid, must take effect within the life or lives of those
in being and within twenty-one years thereafter, with the
usual period of gestation added.18

§ 1027. The Same Subject.

A testator may clearly express in his will that an
indefinite failure of issue was not intended, and that under
a devise to A in fee and upon his death "without issue"
10 See § 948; also §§ 950, 951.
As to statutory changes regard-
ing "dying without issue," see
§ 949.

As to English and American decisions regarding "dying without issue," see §§ 866, 867.

11 Hawley v. Northampton, 8 Mass. 3, 5 Am. Dec. 66; Wolfe v.

Van Nostrand, 2 N. Y. 436; Wall
v. Maguire, 24 Pa. St. 248; Man-
derson v. Lukens, 23 Pa. St. 31,
62 Am. Dec. 312.

12 Grumble v. Jones, 11 Mod.
207; Attorney General v. Gill, 2
P. Wms. 369; Terry v. Briggs, 12
Metc. (53 Mass.) 17, 22.
13 See § 1030.

B.

re

By

Yates

e as

to B, the quoted words may be shown to have been used merely as words of contingency and without the intent that the issue should take any interest in the property. The courts favor this construction.14 In such a case the devise to the first taker would not be reduced to an estate tail, and the gift over, being limited after a fee, could not take effect as a remainder, but only as an executory devise.15

By statute in many jurisdictions estates tail have been abolished and converted into fees simple, or into life. estates with remainders over in fee to the issue or heirs of the first taker. 16 In such jurisdictions the common law rule as to a remainder limited after a fee tail has no application. And if the gift over is limited to take effect at the death of the first taker "without issue," and by the words quoted the testator had reference to an indefinite failure of issue, an executory devise is not created even though the common law estate tail in the first taker is converted by statute into a fee simple.17

By statute in other jurisdictions the words "die without issue" have been declared to refer to failure of issue

14 Pells v. Brown, Cro. Jac. 590; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Manice v. Manice, 43 N. Y. 303; Hill v. Hill, 74 Pa. St. 173, 15 Am. Rep. 545.

See English rule, § 866.

See American decisions, § 867. See, also, §§ 950, 951, 969, 970, 971.

15 4 Kent Com. *273, *274; Nightingale v. Burrell, 15 Pick. (32 Mass.) 104.

16 See § 941.

"Issue" as a word of limitation or of purchase, see §§ 946, 947.

17 King v. Burchell, 1 Eden 424; Den v. Bagshaw, 6 Term Rep. 512; Doe v. Elvy, 4 East 313.

"It would be a most unreasonable construction which would say that the distinction between executory devises and contingent remainders is broken down, and that they have the same properties and effect, and yet the same words shall have an altogether different import when the ques

at the death of the first devisee;18 and, generally, it may be stated that death "without issue" does not refer to an indefinite failure of issue.19 It is, therefore, generally held that a devise to A in fee with the proviso that if he "die without issue," the property shall pass to B, creates an executory interest in B.20 The rule is the same if the contingency is that the first taker shall die without leaving any child or children.21 Such a limitation over to B in the event that A shall die without "heirs of his body" likewise, by construing the words "heirs of his body" to

tion of remoteness is to be deter

mined."

Means, 34 Ala. 349.

18 See §§ 949, 950.

Admrs. V.

19 As to English and American decisions with reference to "dying without issue," see §§ 866, 867; also, §§ 969-971.

20 Barnitz's Lessee v. Casey, 7 Cranch (U. S.) 456, 3 L. Ed. 403; Russ v. Russ, 9 Fla. 105; Smith v. Kimbell, 153 Ill. 368, 38 N. E. 1029; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Fenby v. Johnson, 21 Md. 106; Rucker v. Lambdin, 12 Sm. & M. (Miss.) 230; Schnitter v. McManaman, 85 Neb. 337, 27 L. R. A. (N. S.) 1047, 123 N. W. 299; Jackson v. Staats, 11 Johns. (N. Y.) 337, 6 Am. Dec. 376; Southerland v. Cox, 14 N. C. 394; May v. Lewis, 132 N. C. 115, 43 S. E. 550; Ryan v. Monaghan, 99 Tenn. 338, 42 S. W. 144; St. Paul's Sanitarium v. Freeman, 102 Tex. 376, 117 S. W. 425; Norris v. Johnston, 17 Gratt. (Va.) 8.

"Issue" as a word of limitation or of purchase, see §§ 946, 947.

An estate limited over after a death without issue, upon a contingency, is not an estate tail, but an executory devise.-Downing v. Wherrin, 19 N. H. 9, 49 Am. Dec. 139.

Where the testator declares "the issue, however, of such of my said cousins as may be alive on such contingency, to represent his, her, or their parent, and take the share which his, her, or their parent would have taken if alive," the issue takes as executory devisees by purchase directly under the terms of the will.-Buist v. Walton, 104 S. C. 95, 88 S. E. 357. 21 Doe v. Webber, 1 B. & Ald. 713; Bristol v. Atwater, 50 Conn. 402; Maurice v. Graham, 8 Paige (N. Y.) 483; Lapham v. Martin, 33 Ohio St. 99.

Where the estate given to the first devisee in fee with a gift over "if he die childless," the gift over may be sustained. - Smith v. Hunter, 23 Ind. 580.