Habergham v. 5 Term R. 92. Exceptions: 1. A devise of a reversion. Badger v. 1 Salk. 232. Lloyd in tail. Mrs. Wynn died without issue, living her husband. It was determined that this was a future executory devise of the reversion to the heirs of the body of Mrs. Mostyn, by her second husband, during the first marriage, on failure of heirs of her body by her first husband; which was too remote, and therefore void. 22. There are, however, some cases in which a devise, after a general failure of heirs or issue, is good. First, where a person entitled to a reversion, expectant on the determination of an estate tail, devises the lands to another, after failure of issue of the tenant in tail; this is held to be an immediate devise of the reversion, and therefore good. For the estate devised commences on the death of the testator; and the words which have a future prospect are used to denote, not the commencement of the estate devised, but the event on which the estate shall take effect in possession; and there can be no danger of a perpetuity, because the reversion thus devised may be barred at any time by a recovery, suffered by the person having the preceding estate tail. 23. Thus where a person conveyed his estate to the 1 Ld. Ray.523. use of himself for 99 years, if he should so long live, remainder to his wife in the same manner; remainder to his son in the same manner; remainder to trustees and their heirs, during the lives of the father and son, to preserve contingent remainders; remainder to the first and other sons of the son in tail male; remainder to the father in fee. The father made his will, and after reciting the settlement, devised the lands, after the death of his son without issue male, to another son It was objected that the devise was executory; and as it could only take effect on the death of the son without issue, it was void, as being too remote. But to this it was answered, that here a man entitled to a reversion, expectant on an estate tail, devised it, after the death of the tenant in tail without issue, to another: this was not an executory, but an immediate devise; and the words, from and after," were only a declaration when it should take effect in possession. If the son had not an estate tail in the land, but the devises had been after the death of a stranger without issue, they would have been executory devises, and void by reason of the remoteness of the possibility; but here they were limited after the determination of the particular estate. Fearne's Ex. 24. In the case of Lanesborough v. Fox, Mr. Fearne Ante, $ 20. observes that the limitation to the daughter was Dev. 326. future, to arise after failure of issue of the body of James Lane, and the heirs male of the body of the testator. Now there was no subsisting estate extending to the issue of the body of James Lane generally, the settlement being confined to his first and other sons in tail male, and the heirs male of his body: nor indeed was there any estate tail in the testator himself to extend to the heirs male of his own body: therefore the estate devised by the testator to his daughter could not be considered as a reversion expectant on such preceding estates. And though it should be granted that as the testator had but one son, and there was a limitation by the settlement to the first and other sons of such son in tail male, the devise, for want of heirs male of the testator's own body, might have been construed as a devise of the reversion, expectant on failure of the sons of his son, and the heirs male of their bodies; yet, as there was no preexisting estate extending to issue female of the body of James Lane, it was impossible to consider the devise on failure of issue generally of the body of James Lane, as the devise of a reversion expectant on failure of such issue; there being no preceding estate extending to that period; consequently, unless such a preceding estate was raised by implication, which was not admitted, the devise to the daughter was no the devise of a reversion, but was an executory limi Jones v. 3 Bro. Parl. Fearne's Cont. Rem. 6th edit. App. No. 3. tation, unsupported by any preceding estate; and being not to take effect till after a general failure of issue, was therefore too remote. 25. Sir William Morgan, upon his marriage with Lady Rachel Cavendish, settled certain estates in the counties of Monmouth and Glamorgan, upon himself for life, remainder to trustees to support contingent remainders; remainder, subject to a jointure rentcharge to his wife, to his first and other sons by Lady R. C. successively in tail male; reversion to himself in fee. Afterwards Sir W. Morgan, having two sons by that marriage, William and Edward, made his will; and after giving certain specific things to his wife and his sons, and making a disposition of other lands in the said counties, which he had purchased after his marriage, he proceeded in these words:" And forasmuch as it is my will, intent, and meaning, that in case my said two sons now living, or any other son or sons of mine lawfully begotten, hereafter to be born, should die without issue male of their bodies, or of the body of some or one of them, lawfully to be begotten; after their respective decease, without issue male as aforesaid, that then all and singular my messuages, &c. within the several counties of Monmouth and Glamorgan, and not herein-before devised, shall be devised and settled to and for the several uses, intents, and purposes herein-after mentioned, limited, expressed, and declared: it is therefore my will, intent, and meaning, that in case my said sons William and Edward, or any other son or sons of mine hereafter to be born as aforesaid, shall happen to die respectively without any issue male of their bodies, or of the body of some or one of them as aforesaid; and in such case, if it shall so happen, then I give and devise the remainder of all and singular my messuages, &c. within the several counties of Monmouth and Glamorgan, and not herein and hereby before devised, and the reversion and reversions, remainder and re mainders of the same premises, to my said brother Thomas Morgan, for and during the term of his natural life, but subject nevertheless to the several provisoes and payments mentioned and contained in my said marriage settlement." The testator then limits the same lands to trustees, during the life of Thomas Morgan, to preserve contingent remainders; remainder to Thomas Morgan the son of the said Thomas Morgan, during his life; remainder to his first and other sons in tail male, with divers remainders over. The testator died leaving his said wife, and his said two sons, and also two daughters by her. And one of the questions upon this will was, Whether the residuary devise over to Thomas Morgan and his son was not void, as being a future limitation, not to take effect till after the failure of issue of persons who took no preceding estate; namely, of all the other sons of Sir William Morgan by any future wife. For the limitation to Thomas Morgan was not expressed to take effect upon failure of issue male of the testator's sons by his then wife, in which case it would have been good as an immediate devise of the reversion, expectant on the estates in tail male limited to such sons by the settlement; but the words were general and comprehensive, extending in point of expression as well to the future sons of the testator by any after-taken wife, as by his then wife; and if so, this limitation could not be a devise of the reversion immediately expectant on the estates subsisting, or created by the settlement, but was a future devise, without any preceding estate to support it; and then, as it could not take effect as a remainder, it could be considered only as an executory devise; in which light it must be void, for it was too remote, as being limited to vest on a general failure of issue. In support of the devise it was contended, that the testator had not a future marriage in view, or any children not provided for by the settlement. That 66 this appeared from his giving some specific legacies to his wife, naming her one of his executors, and one of the guardians of his children. Therefore the words, or any other son or sons," &c. should be understood as confined to sons by his then wife; and under that construction the limitation in question would be as good as an immediate devise of the reversion, subject to the estates created by the settlement; or that if those words did extend to children by a future marriage, still the limitation in question might be supported, by raising implied estates tail to such children. Upon a case stated for the opinion of the Court of K. B., the Judges of that court certified-" They were of opinion that the event of a second marriage was not in the testator's contemplation: but supposing that, from the generality of the description, the words" any after-born son" should be extended to the son of any future marriage; they were of opinion that from the manifest intent of the testator, expressly declared in his will, such son must take an estate tail. Consequently they were of opinion that, either way, a remainder after estates tail was devised to Thomas Morgan, who by virtue of the said limitation, upon failure of the sons of the testator without issue male, was entitled to all the lands in the counties of Monmouth and Glamorgan, devised by the residuary clause in the said will, for life; with remainder according to the limitations in the said will." 66 Lord Bathurst decreed accordingly. He concurred entirely with the opinion certified by the Judges, in regard to the event of a future marriage not being in the testator's contemplation; and consequently that the words, or any other son or sons, were to be restrained to sons of the first marriage. But as to the raising an estate tail to any sons of a future marriage, he expressed himself inclined to the opinion, that he was bound by the decision of the House of Lords in |