should die before she attained the age of 21 years, and without leaving issue, then from and after the decease of the said Mary Barrs as aforesaid, he gave and devised the said estates to his grandson. Mary Barrs married Solomon Hanford, and had a child who died in her lifetime; she died soon after, being under the age of 21 years, and without leaving any issue. Solomon Hanford the husband received the rents of the estate during the coverture in right of his wife. A question was reserved for the opinion of Court on this case, whether Hanford was entitled to be tenant by the curtesy. Lord Mansfield said, the right of tenant by the curtesy existed at the common law; and the necessary points were, that the wife be seised of an estate of inheritance, which by possibility might descend to her issue, and that issue should be born. Estates at common law were either absolute or conditional; curtesy was incident to both, and existed when the wife died without issue inheritable, which let in the reverter. As to fees conditional, the estate did not become absolute by the birth of a child inheritable, but in odium of perpetuities, it was for a special purpose become absolute, if issue were born; that is, the donee might alien; but the estate was to descend and revert, according to the entail, if not aliened. common law the only modification of estates expressly limited was by condition; the statute of uses introduced more qualifications of estates, expressly limited. About the reign of Elizabeth and James I. many cases in odium of perpetuities were determined, to prevent and defeat such an application of the statute of uses. The courts leaned against contingent limitations over; but having gone a great way on that side, they began to think they went too far. New devices were contrived at the time of the troubles, and practised after the restoration, such as trustees to preserve contingent remainders, and executory devises. It was not long At that the bounds of them had been settled: it was in his time that the courts first held they might wait during a life in being, and twenty-one years after. Now it was contended that this was a conditional limitation: it was no such thing, there was no condition in it; it was a contingent limitation. If it was a limitation it did not defeat the right of the husband to be tenant by the curtesy; the husband might be tenant by the curtesy though the estate was spent. But how was it when she was alive; here the wife was seised in fee simple during her life, and such an one as the issue might inherit, if they had not been disappointed by death. Vide 1 Inst. Judgment was given that Hanford was entitled to 241. a. n. be tenant by the curtesy. CHAP. XVIII. Executory Devises.-Devise of a Freehold Estate to commence in futuro. 1. Devise of a Freehold to commence in futuro. 6. Devises of this sort sometimes supported as Remainders. 13. Must vest within the Period allowed. 18. A Devise after a general Failure of Heirs or Issue is too remote. 22. Exceptions. 1. A Devise of a 26. 11. A Devise in Default of 30. 111. A Devise over for Life 31. IV. Where an Estate Tail is SECTION 1. THE second sort of executory devise is where the devisor, without departing with the immediate fee, gives a future estate of freehold, to arise either upon a contingency, or at a period certain; unpreceded by, or not having the requisite connexion with, any immediate freehold, to give it effect as a remainder. Pay's case, Clarke v. Smith, 1 Lutw. 798. 1 Freem. 244. 1 Wils. R. 206, 2. Thus where a person devised lands to J. S. for five years, to commence at the next Michaelmas after the death of the testator; remainder to C. and his heirs. The testator died before Michaelmas. It was agreed that the devise over was good as an executory devise. 3. So where A. devised lands to B. in fee, to commence and take effect six months after the testator's death; this was adjudged to be a good executory devise. 4. A devise to an infant in ventre matris, is an executory devise of this kind; as it necessarily implies a disposition to take effect at the birth of the child. Such a devise was formerly held void; but it was always Snow v. Cutler, understood that a devise to an infant, when he should be born, was good as an executory devise. 1 Lev. 135. Ex. Dev. 21. Devises of this sort sometimes supported as remainders. 5. Mr. Fearne says, where a particular estate of freehold is first devised, capable in its own nature of supporting a remainder, followed by a limitation not immediately connected with, or commencing from its expiration; as the latter limitation is incapable of taking effect as a remainder, there seems to be no obstacle to its validity as an executory devise. Therefore, although in the case of a lease for life to A., and after the death of A. and one day after, that the land shall remain to B. for life; it seems that the limitation to B. is void as a remainder, because not to take effect immediately upon the determination of the first estate; yet in the case of a similar limitation by will, there appears to be no ground for denying effect to such ulterior limitation as an executory devise. 6. In consequence of the rule already stated, that no devise shall be considered as executory, which may be supported as a remainder, several cases have arisen where there has been a devise of a particular estate, with a devise over, in which the devise over has been held to be a remainder, supported by the preceding particular estate. 7. Thus, in Pay's case, Lord Talbot said, that if Ante, § 2. the testator had lived to Michaelmas, then it had been a good remainder. Rogers, 2 Saund. 380. 8. A testator devised to his wife for life, and to her Purefoy v. son, after the death of his mother, if she should have a son; and if such son should die within age, then to the right heirs of the devisor. The testator died without issue; his wife married again, and had a son. It was adjudged that the estate limited to that son, was not an executory devise, but a contingent remainder; because the mother had an estate of freehold capable of supporting it. 9. George Mussell devised lands to Elizabeth his wife for life, remainder to his son Ebenezer Mussell, for ninety-nine years, if he should so long live; and after the several deceases of his wife and son, to the heirs of the body of Ebenezer. The question was, whether the devise to the heirs of the body of E. should be considered as an executory devise, or as a contingent remainder. Lord Kenyon said, if ever there existed a rule respecting executory devises, which had uniformly prevailed, without any exception to the contrary, it was that which was laid down by Lord Hale in the case of Purefoy v. Rogers.-That where a contingency is limited to depend on an estate of freehold, which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder. And therefore the Court determined that the devise to the heirs of the body of Ebenezer was a contingent remainder, which was originally supported by the estate for life devised to Elizabeth, and was defeated by her death before that of Ebenezer. 10. Whenever the first devise can be construed to pass an estate tail only, the devise over will be deemed a remainder expectant on the determination of such an estate tail; and not an executory devise. Doe v. Morgan, 3 Term Rep. 763. Spalding v. 11. John Spalding having issue three sons, John, palding, Cro. Car. 85. See Doe v. Wealthy v. Rep. temp. Hardwicke, 238. Thomas, and William, devised lands to John the eldest son, and the heirs of his body, after the death of Alice, the devisor's wife; and if John died living Alice, that William should be his heir. John died in the lifetime of Alice, leaving a son. It was determined that the construction of the will should be, that if John died without issue, living Alice, William should have the lands; and that it should not be construed, where he limited first to John and the heirs of his body, that by this limitation he intended, if he died living Alice, that William should be his heir, John having issue, and thereby to disinherit the heirs of John's body. 12. A testator having charged certain legacies on his lands, devised that in case his son T. should happen to die before he married, or being married should have no children, then his lands should remain and descend equally to his daughters and their heirs, paying, &c.; and in case both his daughters should die without being married, or being married should have no children, then he willed that all his estate should descend to I. M.; and at the end of the will he gave and devised all his estate, real and personal, not already disposed of by his will, to his son T. After the testator's death, his son T. entered, suffered a recovery, and died without issue; upon which his sisters entered, suffered a recovery, and died also without issue; and then the heir of I. M. entered. The question was, whether the devise to I. M. was a remainder depending on a particular preceding estate in the son and daughters, or an executory devise. Lord Hardwicke said, there were two rules which went a great way in determining the case. First, that no limitation should be construed to be an executory devise, if it could be made good by way of remainder. Secondly, that it was immaterial in a will which words were first or last, as the construction must be made upon the whole will; and here, in the subsequent part |