CHAP. XVII. Executory Devises.-Devise over after a Devise in 1. Origin of executory Devises. 9. Though the first Estate be not 11. No Devise is executory which 14. An executory Devise cannot 17. Within what time an executory Devise must vest. 23. A Devise over after a general Failure of Heirs or Issue is too remote. 24. Unless restrained to the Period allowed. 27. Curtesy attaches on the first Estate. tory devises. SECTION 1. Origin of execu. It has been stated that, by the rules of the common law, no remainder could be limited over after a limitation in fee simple; nor a freehold created to commence in futuro. But the indulgence shown to testators in effectuating their intentions, however untechnically expressed, induced the judges to dispense with these rules, in cases of wills, as well as in limitations of uses; and also to allow similar dispositions of terms for years, in wills, and in deeds declaring the trusts of such terms. Tit. 16, c. 5. Devise over after a devise in fee. Anon. Dyer, 127.a. in marg. 2. Dispositions of this nature are called executory devises; and are of three sorts. The first is where the devisor disposes of the whole fee, but qualifies that disposition, and declares that in the event of some future contingency, the estate so devised shall go over to some other person. 3. A testator devised to his mother for life, and after her death to his brother in fee; provided that if his wife, who was then ensient, was delivered of a son, then the land should remain to him in fee. A son was born; and it was held that the fee of the brother should cease, and vest in the son, by way of executory devise. Palm. 136. 4. A person devised to A. and his heirs; provided Hoe v. Gerils, that if he died within age, then the land should remain to B. and his heirs. Adjudged good. For when the devisee only takes a limited estate, a contingent fee may depend upon it; but that was not by way of remainder, but executory devise. And this doctrine was fully established in the following case. Cro. Ja. 590. 5. W. Brown devised lands to Thomas Brown his Pells v. Brown, second son, and his heirs for ever; and if Thomas died without issue, living William his brother, that then William his brother should have those lands to him and his heirs and assigns for ever. All the judges agreed that this was a good limitation of the fee to William, upon that contingency; not by way of immediate remainder, for they all agreed that it could not be by remainder. As if one devised land to A. and his heirs, and if he died without heir, that it should remain to another, it was void and repugnant to the estate: for one fee could not be in remainder after another; for the law doth not expect the determination of a fee by the tenant's dying without heirs, and therefore cannot appoint a remainder to begin upon the determination thereof; but by way of contingency or of executory devise to another, to determine the one estate, and limit it to another, upon an act to be performed; or in failure of performance thereof, &c. For the one might be, and had always been allowed. 6. A. having two sons, B. and C., by several venters, and being seised of Blackacre and Whiteacre, devised Blackacre in fee to B., and Whiteacre to C. in fee; with a proviso that if it should please God either of his said sons to die before such time as they should be married, or before they should attain to their age of 21 years, and without issue of their bodies to be begotten, then he gave all the said lands, which he had 1 Hanbury v. Cockerill, Roll. Ab. 835. Right v. Day, 16 East, 67. Goodtitle v. given by his will unto such of his sons as should so Willes R. 211. decease before his marriage, or before his age of 21, and without issue of his body, unto the survivor of his The devise over was held good, as an executory Heath v. Doe v. Witton, 2 Bos. & Pul. 324. Doe v. Rawd. Ald. 441. sons. devise 7. A person devised to his son William Heath, all his estate, till Edward Heath should attain his age of 22 years, and no longer. He afterwards said,—“ Item, I give and bequeath to Edward Heath all my messuages in H. and C. for ever, that is, if he have a son or sons who shall attain 21. But if my kinsman Edward Heath should chance to die without son or sons to inherit, my will is that the son of my son William Heath shall inherit." It was determined by Lord Thurlow, that Edward Heath took an estate in fee, subject to an executory devise over, in the event of his dying without issue, or of his issue dying under the age of 21 years. 8. A person devised a copyhold estate to his daughter Susan Saunders, and her heirs and assigns for ever; but if his said daughter should happen to die, leaving no child or children, or lawful issue of her body, living at the time of her death, then he gave, devised, and bequeathed all the said copyhold premises to T. B. and his heirs. Lord Eldon and the other Judges of the Court of ing, 2 Barn. & Common Pleas held that the whole fee being given to Susan Saunders, her heirs and assigns, no further remainder over could be limited upon that fee; and therefore the estate given to T. B. was a new fee limited upon a contingency, that is, an executory devise. Right v. Day, 546. Though the not vested. 9. Where there is a devise over, after a devise in fee first estate be simple, though such an antecedent devise in fee be not vested, but contingent, yet if the ulterior devise is limited so as to take effect in defeasance of the estate first devised, on an event subsequent to its becoming vested, it will be deemed an executory devise. Wicket, 1 Wils. 10. A person devised lands to his wife for life, and Gulliver v. after her death, to such child as she was then sup- R posed to be ensient with, and to the heirs of such child for ever; provided that if such child as should happen to be born should die before the age of 21 years, leaving no issue of its body, the reversion should go to another. Lord Ch. J. Lee delivered the opinion of the Court, that the true construction of the will was, that there was a good devise to the wife for life, with a contingent remainder to the child in fee; and a devise over, which was good as an executory devise; and if the contingency of a child never happened, then the last devise was to take effect, upon the death of the wife. executory remainder. 11. An executory devise being a disposition con- No devise is trary to the rules established for the construction of which can be conveyances at common law, whenever a future in- supported as a terest in land is so devised as to fall within the rules laid down for the limitation of contingent remainders, such devise will be construed as a contingent remainder, not as an executory devise. § 12. 12. Thus wherever an estate is devised to a person Ante, c. 12. and his heirs, with a limitation over in default of issue, it is construed to be an estate tail; and the limitation over is a remainder, to take effect on the determination of the estate tail. But if the limitation over be directed to take place on an event which may happen during the continuance of the estate tail, it is an executory devise; for it cannot be a remainder, because the event on which a remainder is limited must not operate so as to abridge or determine the parti- Tit. 16. c. 2. cular estate. So that in the case of Pells v. Brown, if the words, living William his brother,' had been omitted, it would clearly have been an estate tail in Thomas, with a remainder over to William, to take 3 Term. R. effect on the expiration of the preceding estate tail. 13. It follows, that where there is a devise over after 145. An executory devise cannot be barred. Tit. 16. c. 6. Fearne Ex. Dev. 4th ed. note. Ante, § 5. Mullinix's case, Within what tory devise must vest. a preceding devise to a person and his heirs; if there are any words in the will, by which the first devise can be restrained to mean heirs of the body only, the first estate will be construed to be an estate tail, and the devise over a remainder. 14. The essential difference between a contingent remainder and an executory devise is, that the first may be barred or destroyed by several means; whereas an executory devise cannot be prevented from taking effect, when the contingency happens, either by fine or recovery; or by any alteration of the estate after which it is limited. 15. Thus in the case of Pells v. Brown, Thomas entered on the estate devised to him, and suffered a common recovery; but all the judges, except Doderidge, held that the recovery did not bar the executory devise; for Thomas, the person who suffered the recovery, had a fee; and William Browne had but a possibility, if he survived Thomas; and Thomas dying without issue in his life, no recovery in value should enure thereto, unless he had been party by way of vouchee. 16. A person granted several annuities, by deed, to his younger children; and afterwards devised all his lands to his elder son and his heirs, upon condition that he paid the annuities; and if he failed of payment, that the younger son should enter and have them. The elder son entered, and made a feoffment; and then the younger son entered for non-payment. It was held that this entry was lawful, the contingent estate not being devested by the feoffment. 17. In consequence of the rule that an executory time an execu devise cannot be barred, or prevented from taking effect, by any mode whatever; it became necessary to prescribe certain bounds and limits to executory devises, lest they should be used as a means of creating perpetuities. It was therefore established, Tit. 32. c. 23. by analogy to the case of strict settlements, that an |