of the will, there was an express devise of all the residue; so that, taking the two clauses together, there was an express devise to the son; and it was given by the word estate, which was sufficient to carry the fee; so that it amounted to a devise to the son and his heirs, and if he died without issue, remainder over; which was an estate tail. But if that were not so clear, yet as to the daughters no objection could be raised; for there was a devise to them, and if they died without issue, &c.; so that their recovery was sufficient to bar the remainder: and the limitation being clearly good as a remainder, could not be con sidered as an executory devise. 13. The rules established for preventing perpetuities are applied to the second sort of executory de vises, as well as to the first; and therefore in all cases where a freehold estate is devised, to commence in futuro, it must vest within the compass of a life or lives in being, and twenty-one years and some months after, otherwise it will be void. 14. It should however be observed here, that by the time of vesting is meant the vesting of the freehold; for although lands should be limited for a long term of years, with remainder to the unborn son of a person then living, this executory devise to an unborn son would be good, because the vesting of the freehold is confined to the period of a life in being; for upon the birth of such son, the freehold would vest in him, or upon the death of such person without leaving a son, either actually born, or in ventre matris, it would vest in some other person, subject only in either case to the preceding term. Must vest riod allowed. within the pe 15. W. Gore devised certain lands to trustees and Gore v. Gore, their heirs, to the use of the said trustees for five hun- 2 P. Wms. 28. dred years, upon several trusts, and from and after the determination of that estate, then to the use of the first and other sons of the testator's eldest son Thomas Gore in tail male, remainder over. Thomas Gore Proctor v. 2 H. Black. had no child when the testator died, but afterwards had a son. The Court of K. B. was of opinion that the devise to the eldest son of Thomas Gore was void: that it could not be good as a remainder, for want of a freehold to support it; and that it could not take effect as an executory devise, because it was too remote, viz. after five hundred years. But the case having been sent to the Court of K. B. some years after, Lord Hardwicke, Ch. J., together with Justices Page, Probyn, and Lee, certified their opinion, against that of their predecessors, "that this was a good executory devise, and not too remote; for it must in all events one way or other happen upon the death of Thomas Gore, whether he should have a son or not; and either upon the birth of the son, or upon his death without issue, the freehold must vest.' 16. Where an estate is devised to a person upon an event which is too remote, a devise over depending on the same event is also void. 17. Mary Proctor devised to the first or other son of her grandson Thomas Proctor that should be bred a clergyman, and be in holy orders, and to his heirs. and assigns, all her right of presentation to the rectory of West Coker: but in case her said grandson Thomas Proctor should have no son, then she gave the said presentation to her grandson Thomas Moore, his heirs. and assigns for ever. Thomas Proctor died without having ever had a son. The question was, whether these devises were good or not. It was contended that the first devise was void, as being too remote; for Thomas Proctor had no son born at the time of the death of the testatrix; and if he ever should have a son, he would not necessarily be in orders within twenty-one years after his birth. By the canons of the church no person could be admitted into deacon's orders, before the age of twentythree, without a faculty; nor could he be ordained priest before twenty-four. And the devise to Thomas Moore was liable to the same objection, on account of the remoteness of the contingency on which it was to take effect; for supposing there had been no previous devise to the son of Thomas Proctor, the devise to Thomas Moore would be to him, if Thomas Proctor had no son in orders; but no time was fixed for his taking orders; and such devise being void in its original creation, could not be made good by the subsequent circumstance of Thomas Proctor's having no son; and the devises could not be considered as alternate. The Court was clearly of opinion that the first devise to the son of Thomas Proctor was void; from the uncertainty as to the time when such son, if he had any, might take orders. And that the devise over to Moore, as it depended on the same event, was also void; for the words of the will would not admit of the 2 Black. R. 704. contingency being divided, as was the case in Longhead v. Phelps. And there was no instance in which a limitation after a prior devise, which was void from the contingency being too remote, had been let in to take effect; but the contrary was expressly decided in the House of Lords, in the case of the Earl of Chat- 6 Bro. Parl. ham v. Tothill, in which the Judges founded their C 451. opinion on Butterfield v. Butterfield. Consequently the heir at law of the testatrix was entitled. 18. In consequence of the rule that an estate devised, to commence in futuro, must vest within the period above mentioned; a devise after failure of the heirs or issue of A., where no estate is already vested or given by the express words of the will, or arises by implication to such heirs or issue, is void in its creation. For if A. should have heirs or issue, they might last for ever, and while they did last, there would be nobody who could bar the estate thus devised; so that a perpetuity would be created. 19. T. C. being tenant for life, with remainder to his wife for life, remainder to his own right heirs, 1 Ves. 134. A devise after a general failure of heirs or issue too remote. is 1 Stra. 427. Lanesborough v. Fox, 3 Bro. Parl. Ca. 130. made his will, in which were these words:-" Item, my land at W. my wife Mary is to enjoy for her life; after her death, it of right goes to my daughter Elizabeth for ever, provided she has heirs. But if my said daughter dies before her mother, or without heirs, and my said wife Mary should marry again, and should have heirs male, I bequeath all my said right in W. to her heirs male by her second husband." Mary the wife died before Elizabeth the daughter, but Mary had married a second husband, and had issue male; and the question was, whether the devise to them was good. It was resolved that no estate was devised to the daughter; what was said in the will respecting her, being only a declaration how she was to enjoy the estate; for the testator could not say, "It of right goes to my daughter," if she claimed under the will. It was therefore a devise after a general failure of heirs of the daughter, which was too remote.. 20. Sir George Lane, upon the marriage of his son James Lane, settled certain lands to the use of himself for life, remainder to his son James Lane for 99 years, if he should so long live, remainder to trustees and their heirs during the life of James, to support contingent remainders; remainder to the first and other sons of the said James by his then intended wife, successively in tail male; remainder to the heirs male of the body of James; remainder to the right heirs of Sir George. The marriage was had, and afterwards Sir George made his will, and devised the lands comprised in the settlement, on failure of issue of the body of James Lane, and for want of heirs male of his own body, to his daughter Frances Lane, and the heirs of her body. And in a subsequent part of his will he devised, that if his son James should die without issue male, and his (the testator's) wife survived him, his wife should have his house and park at R. during her life. After the death of Sir G. Lane (who became Lord Lanesborough) leaving the said James his only son and heir, and two daughters by his first wife, and the said Frances Lane by his second wife; the trustees joined with James Lane in making a tenant to the præcipe; and a common recovery was suffered of the estates comprised in the settlement. James Lane Lord Lanesborough died without issue, and Frances Lane married Henry Fox, and died leaving issue George Fox her eldest son, who brought an ejectment for the recovery of the estate. A special verdict was found, and judgment was given in the courts of Exchequer and Exchequer Chamber in Ireland, for the plaintiff Fox. An appeal was brought to the House of Lords of England, and two questions were put to the Judges, 1. Whether Lord James took any other or greater Cases temp. estate by the will, than by the settlement. To which Talbot, 267. they answered, that Lord James could not take any estate tail, no alteration being made by the will; and that no estate was raised to Lord James by impli cation. II. Whether Frances Lane, took any estate under the will of Lord George. To which they answered, that she took no estate whatever, but that the devise to her was absolutely void in its creation, as being on too remote a contingency. Whereupon Vide infra, the judgment was reversed. § 24. Goodman v. 1 Goodright, Black. R. 507. n. 188. Doug. Vide Fearne's 21. Mrs. Mostyn, on the marriage of her niece Mrs. Wynn, who afterwards became her heir at law, with Doctor Wynn, entered into articles, covenanting to settle an estate for life on Mrs. Wynn, with remainder to the issue of that marriage in tail, with the edit. 456. reversion to herself in fee, whenever Doctor Wynn should have settled his own estate to the same uses. Mrs. Mostyn by her will, reciting the articles, gave her equitable reversion in the premises to the heirs of the body of Mrs. Mostyn by any after-taken husband, and for want of such issue, remainder over to Charles |