executory devise must vest within the compass of a life or lives in being, and twenty-one years, and nine months after. And the Courts have uniformly supported executory devises that are restrained within these limits. 18. Thus in the case of Pells v. Brown, the event on which the estate was devised over, namely, the death of Thomas without issue in the lifetime of William, being confined to the life of William, was held good. Heron, Prec,in 19. A person devised all his lands, after the death Fairfax v. of his executor, to A. and his heirs for ever; but if Cha. 67. he died leaving no son, then to that son or sons of his executor which his executor should think fit to nominate. Lord Keeper Somers decreed that this was a good executory devise; because the contingency was confined to the period of a life in being. Biddall 20. R. Ben having a sister who had been formerly Taylor v married to one Smith, by whom she had issue Au- 2 Mod. 289. gusta Smith; and afterwards married one Wharton, by whom she had issue a son called Benjamin and a daughter called Mary; devised his estate to his sister Elizabeth, for so long time and until her son Benjamin Wharton should attain his full age of 21 years, and after he attained that age then to the said Benjamin and his heirs for ever; and if he died before his age of 21 years, then to the heirs of the body of Robert Wharton, and to their heirs for ever, as they should attain their age of 21 years. The testator died; Benjamin died before he attained the age of 21, living Robert his father; and afterwards Robert died. It was determined that the executory devise to the heirs of the body of Robert Wharton was good. Now the heirs of the body of Robert Wharton could not take until after their father's death; for nemo est hæres viventis: and since that heir of the body of Robert who Stephens v. should attain 21, might not have been born before his father's death, and the estate could not vest in him until he attained 21, it follows that the estate might possibly not have vested under that limitation until twenty-one years after the determination of a life then in being. 21. Sir W. Stephens devised freehold estates to his Forrest. 228. grandson William Stephens, his heirs and assigns for ever; but in case his said grandson W. Stephens should die before he attained his age of 21 years, then he gave the same to his grandson Thomas Stephens, his heirs and assigns for ever; but in case his grandson Thomas Stephens should depart this life before he attained his age of 21 years, then he devised the said lands to such other son of the body of his daughter Mary Stephens as should happen to attain the age of 21 years, his heirs and assigns for ever; the elder of such sons to take before the younger, &c.; and to the several and respective heirs male of the body of such son and sons, and the heirs male of the body of his and their body and bodies. And for default of such issue, he gave the said lands to all and every the daughter and daughters of the said Mary Stephens in tail male; and for want of such issue, he devised the said lands to his brother Sir Richard Stephens, his heirs and assigns for ever. The testator died leaving William and Thomas Stephens, his two grandsons, who both died under age. Soon after the death of the testator, Mary Stephens had another son, who attained the age of 21 years; and the question was, whether this executory devise to such unborn son of Mary Stephens, as should attain the age of 21 years, was good. Lord Talbot directed a case to be sent to the Court of King's Bench, and the Judges of that Court, Lord Hardwicke, and Justices Page, Probyn, and Lee, certified their opinion that they did not find any case wherein an executory devise of a freehold had been held good, which had suspended the vesting of the estate till a son unborn should attain his age of 21 years, except the case of Taylor v. Biddall; and having caused the record to be searched, they found it agree in the material parts with the printed report. And therefore, however unwilling they might be to extend executory devises beyond the rules generally laid down by their predecessors, yet upon the authority of that judgment, and in conformity to several late determinations, in cases of terms for years, and considering that the power of alienation would not be restrained longer than the law would restrain it, viz. during the infancy of the first taker, which could not reasonably be said to extend to a perpetuity, and that this construction would make the testator's whole disposition take effect, which otherwise would be defeated; they were therefore of opinion that the devise before mentioned might be good, by way of executory devise. 22. In a case which will be stated hereafter it was Long v. Blackall, held that a devise to an infant in ventre matris, with a infra, c. 19. limitation over upon failure of issue of his body at the time of his death, was good, which began with an allowance for the birth of a posthumous child, and might also conclude with it. general failure of heirs or issue is too remote. 23. Where an executory devise is limited on an event A devise after a which may not happen within the period above mentioned; as upon a general failure of heirs, or issue, it is void, as too remote, and tending to a perpetuity. Nor is it material, in such cases, how the fact actually turns out; for the possibility, at the creation of such executory limitation, that the event on which its existence depends may exceed, in point of time, the limits allowed, vitiates it ab initio. ed to the period allowed 24. But where the generality of the words heirs or Unless restrainissue is restrained by any other words, to the period allowed, the devise over will be good. Thus a devise over after a devise to a person and his heirs, in case 1 B. & A. 713. the first devisee shall happen to die, leaving no issue behind him, has been held good; these words being construed to mean, having no issue living at the time of the person's death. Porter v. 25. A person devised a real estate in the following Bradley, 3 Term R. 143. Words-" Item, I give and devise unto my son P. D., Doe v. Webber, his heirs and assigns for ever, all that messuage and tenement wherein I now live. But my will is, that in case my son P. D. shall happen to die, leaving no issue behind him, then my said wife shall receive and take the rents and profits thereof." Roe v. Jeffery, 7 Term R. 589. On a case sent from the Court of Chancery to the Court of K. B., one of the questions was, what estate C. D. took under this will. Lord Kenyon and the other Judges were of opinion that this case was not to be distinguished in principle from that of Pells v. Brown; and certified in the following words:-" Having heard counsel in the case above referred to us, we are of opinion that P. D. took an estate in fee simple in the premises above devised to him. But as P. D. died without issue living at the time of his death, we are of opinion that the further disposition made by the testator in that event, is good by way of executory devise." 26. A person devised a dwelling house to his grandson T. Triswell and his heirs for ever. But in case his said grandson should depart this life, and leave no issue, then his will was that the said dwelling house, &c. should be and return to E. M. and S., or the survivors or survivor of them. Lord Kenyon said, nothing could be clearer in point of law, than that if an estate were given to A. in fee; and by way of executory devise, an estate was given over, which might take place within a life or lives in being, and twenty-one years and the fraction of a year after; the latter was good, by way of executory devise. The question therefore in this and similar cases was, whether from the whole context of the will it could be collected that, when an estate was given to A. and his heirs for ever, but if he died without issue, then over; the testator meant dying without issue living at the death of the first taker. That the rule was settled so long ago as in the reign of James I., in the case of Pells v. Brown: that case had never been questioned Ante, § 5. or shaken, but had been adverted to as an authority in every subsequent case respecting executory devises. It was considered as a cardinal point on this head of the law, and could not be departed from without doing as much violence to the established law of the land as (it was supposed by the defendant's counsel) the Court would do, if they decided this case against him. On looking through the whole of the will, the Court had no doubt the testator meant that the dying without issue should be confined to a failure of issue at the death of the first taker; for the persons to whom it was given over were then in existence, and life estates only given to them. Taking all this into consideration together, it was impossible not to see that the failure of issue intended by the testator, was to be, a failure of issue at the death of the first taker; and if so, the rule of law was not to be controverted; it was merely a question of intention, and the Court was clearly of opinion that there was no doubt about the testator's intention. taches on the 27. In the case of a devise in fee simple, with an Curtesy atexecutory devise over, it has been held that a right to first estate. curtesy attaches on the first estate, and is not defeated by its determination. Thirkell, 28. Joseph Sutton devised to trustees and their Buckworth v. heirs, in trust to apply the rents for the maintenance Collect. Jur. and education of his grand-daughter Mary Barrs, till 3 Bos. & Pul, she should arrive at the age of 21 years, or be married; 658. and from and after the said Mary Barrs should have attained her age of 21 years or should be married, he gave the said lands to the said Marry Barrs, her heirs and assigns for ever; but in case the said Mary Barrs |