Thelusson v. Thelusson, infra, c. 20. construction of legal limitations; and the Courts had said, that the estate should not be unalienable by executory devises, for a longer time than was allowed by the limitations of a common law conveyance. In marriage settlements the estate might be limited to the first and other sons of the marriage in tail; and until the person to whom the first remainder was limited was of age, the estate was unalienable. In conformity to that rule, courts of law have said,-So far we will allow executory devises to be good. To support this decision he could refer to many others; but it was sufficient to mention the Duke of Norfolk's case, in which all the learning on this head was gone into; and from that time every Judge had acquiesced in that decision. It was an established rule that an executory devise was good, if it must necessarily happen within a life or lives in being, and 21 years and the fraction of another year, allowing for the time of gestation. Mr. J. Lawrence said, the devise over in this case must take effect, if at all, after a life which must be in being within nine months after the devisor's death. The Judges certified that the limitation to Philippa Long was good. 23. It is observable that this case began with a devise to a posthumous child for life, with a limitation over, upon failure of issue of his body at his death, which of course would include an heir male then in ventre sa mere: for as the devise began with an allowance for the birth of a posthumous child, and also might conclude with it, the time might be claimed twice over; and so the time allowed for the birth of a posthumous child, after lives in being, and 21 years, might be enlarged to two periods of gestation. But this determination has been confirmed after great deliberation in a subsequent case, which will be stated hereafter. 86 times restrained esse. 24. In the case of executory bequests of terms for The words years, the Court of Chancery has very much inclined issue, some to lay hold of any words in a will to restrain the gene- to the death of rality of the words, dying without issue, and to confine a person in them to a dying without issue living at the time of the Barlow v. person's decease, in order to support the intention of 479. the testator; for by this construction the devise over Penny, becomes valid, being confined to the period of a life in 1 Mer. 20. being. 25. One possessed of a term for years, bequeathed it by his will to his son Henry for life, and no longer; and after his decease, to such of the issue of the said Henry, as Henry by his will should appoint; and in case Henry should die without issue, the testator devised the same to his brother Albinus for the residue of the term, and died. Henry died without issue living at his death; whereupon the question was, whether the term should go to the executors of the first testator, or to the executors of Henry, or to Albinus. It was objected, that the devise over of a term, upon a dying without issue, was void; being too remote an expectancy, and tending to a perpetuity. And Lord Chancellor Parker held, that the expression, dying without issue, had two senses; first, a vulgar sense, and that was, dying without leaving issue at the time of his death; secondly, a legal sense, and that was, whenever there was a failure of issue. if this will was taken in a vulgar sense; viz. if Henry died without leaving issue at the time of his death, then the devise over to Albinus was good. Now this seemed to be the meaning of the testator in this case; for it must be intended, such issue as he should, or at least might, appoint the term to; which must be intended issue then living: and this construction should be the more favoured, in regard it supported the will; whereas the other destroyed it. Therefore the Court held that the devise over of Salter, 17 Ves Donn v. Target v Gaunt, 1 P. Wms. 432. Ante, c. 12. Forth v. Chapman, 1 P. Wms. 663. Ante, § 16. the term to Albinus was good; and observed that there was a great diversity betwixt a devise of a freehold estate to A. for life, and if A. dies without issue then to B., and a devise of a term in the same words. For in the former case this might give A. an'estate tail; because the words, if A. die without issue, in case of an inheritance, are inserted in favour of the issue, and to let in the issue after the death of the father. But in the case of a term, these words could not have such effect, for the father takes the whole, which on his death will not go to his issue, but will belong to his executors. 26. A term for years was devised to William and Walter Gore; and if either of his nephews William or Walter should depart this life, and leave no issue of their respective bodies, then he gave the said leasehold premises to the daughter of his brother. Sir Joseph Jekyll was of opinion that the devise over was void; and said, that had the words been, if A. or B. should die without issue, remainder over, this plainly would have been void, and exactly the case of Love v. Windham. On an appeal to Lord Chancellor Parker the decree was reversed; and his lordship said, if a term was devised to A., and if A. die without leaving issue, remainder over;-in the vulgar and natural sense this must be intended if A. died without leaving issue at his death; and then the devise over was good. That the word die being the last antecedent, the words, without leaving issue, must refer to that. Besides, the testator, who was inops consilii, would, under such circumstances, be supposed to speak in the vulgar, common, and natural, not in the legal sense. He likewise took notice that in a formedon in remainder, where a tenant in tail left issue, which issue afterwards died without issue, whereupon such writ was brought, the formedon would say that the tenant in tail died leaving issue J. S., which J. S. died after wards without issue; and so the first donee in tail died without issue. Thus the pleading says that the donee in tail died leaving issue at his death, consequently the words, leaving issue, refer to the time of the death of the tenant in tail; and if the words of a will could bear two senses, one whereof was more common and natural than the other, it was hard to say the Court should take the will in the most uncommon meaning, to destroy it. He said the reason why a devise of a freehold to one for life, and if he died without issue, then to another, was determined to be an estate tail, was in favour of the issue, that such might have it, and the intent take place. But that there was the plainest difference between a devise of a freehold, and a devise of a term for years. For in a devise of the latter to one, and if he died without issue, then to another, the words, if he died without issue, could not be supposed Taylor v. to have been inserted in favour of such issue, since 2 Eden, 202. they could not by any construction have it. Clarke, Hutchinson, 27. E. Baxter being possessed of a term for forty Atkinson v. years, devised it to trustees, in trust for the testator's 3 P. Wms. wife for life, and after her death to the use of such 258. children as the testator should leave at the time of his death; and in case all his said children should die without leaving any issue, then to the use of J. H. Lord Talbot said, where words were capable of a twofold construction, even in the case of a deed, and much more in that of a will, it was just and reasonable that such construction should be received as tended to make it good. And in this case the devise of the term to the testator's children, and if they should die without issue, then to J. H., might easily and naturally be understood to signify, if they died without leaving any issue at the time of their death; nay, much more naturally than in the other case, viz. if there should be a failure of issue of them a hundred years after. He cited the cases of Target v. Ante, § 25, 26. Gaunt, and Forth v. Chapman, and decreed in favour of the devise over, namely, that the words, "if the first devisee died without leaving any issue," must be understood to mean without leaving issue at his death. Att. Genl. v. Goodtitle v. 2 Term R. 28. A person being possessed of a term for years, bequeathed that his brother William Tristram should have the use thereof, for so many years of the term as should expire in his lifetime; and after his decease, his will was, that his executors should permit all and every the child and children of the said William Tristram, their executors, &c. respectively, to hold and enjoy the same, for his and their proper use, during the remainder of said term, in such manner as the said W. Tristram should by his will or deed in writing, &c. direct: and for want of such appointment, then equally share and share alike, without any benefit of survivorship. But if it should happen that the said W. Tristram should die without issue in the lifetime of John and Tristram Tolcher, or either of them, then his will was, that the said John and Tristram Tolcher, if they both survived the said Wm. Tristram, dying without issue as aforesaid, should equally have the benefit and advantage thereof. It was held by Sir L. Kenyon, M. R. that the bequest over was void; but Lord Thurlow reversed the decree. 29. A person possessed of a term for years, bequeathed it to his grandson T. B. Peake, son of D. and S. Peake, and the heirs lawful of him for ever; but in case he should happen to die, and leave no lawful heir, then and in that case he gave it, after the death of the said T. B. Peake, to the next eldest son or heir of the said D. and S. Peake. T. B. Peake took possession of the term in question, under the will, and died without issue. Lord Kenyon said, that on conference with the rest of the Court, they were clearly of opinion that the limitation over was good. This was a chattel interest, |