limited to T. B. Peake, and the heirs lawful of him for ever: but in case he should happen to die and leave no lawful heir, then over. Now it was apparent on the will, that the testator, by lawful heirs, meant heirs of the body; and that leaving no lawful heir, must be confined to leaving no issue at the time of his death. 30. The following case was sent by the Master of Wilkinson v. the Rolls for the opinion of the Court of K. B. South, A person bequeathed a leasehold estate to his wife Mary Parker, during the term of her natural life, and after her decease to go to his son S. Parker, and to the heirs of his body lawfully begotten, and their heirs and assigns for ever; but in default of such issue, then, after his decease, to go to his (the testator's) grandson T. Wilkinson, his heirs and assigns for ever. S. Parker entered on the estate upon the death of the testator, Mary Parker being then dead, and died without ever having had any issue. The question was, whether T. Wilkinson took any thing under the will? Lord Kenyon.-"We will send our certificate in this case. But I will now state the short ground on which my opinion is founded. The only question is, whether on the fair construction of the words of this will the testator meant that the limitation over to T. Wilkinson the plaintiff should take effect after an indefinite failure of issue in S. Parker, or on a failure of issue living at the time of the death of S. Parker; for as soon as that intention is discovered, there is an end of the case. If personal property be so limited, that if it were an estate of inheritance, it would give an estate tail, the absolute interest vests in the first taker; but if the limitation be with a double aspect to A. and to the issue of his body, if there be any such issue living at his death, if not then over, it is a good limitation. It was so settled in Sabbarton v. Forrest, 245. Sabbarton, and a variety of other cases, some of which are not in print. Here the words of the will are, No distinction between an express estate implication. Ex. Dev. to S. Parker and the heirs of his body, and to their heirs and assigns for ever.' If those words stood uncontrolled by any thing subsequent in the will, the absolute interest would have vested in him; but other words are added, but in default of such issue, then, after his decease, to go to the testator's grandson.' There is a case in the books to show, that then and when are adverbs of time. Then at what time was the estate to go over to the testator's grandson? at the death of S. Parker, if he left no issue. There is nothing in the will to show that the testator intended that the limitation over should not take effect until future generations; but on the contrary, there is sufficient to show that he intended that the estate should, in one event, vest in the grandson at the time of S. Parker's death, and that is within the time which the law allows in the case of executory devises. The rule respecting executory devises is extremely well settled; and a limitation by way of executory devise is good, if it may take place after a life or lives in being, and within twenty-one years and a fraction of another year afterwards. As I before observed, this is a question of intention; and I am clearly of opinion, that the testator's intention was, that if S. Parker did not leave any issue at his death, the subsequent limitations should take effect." The Court certified that T. Wilkinson was entitled, under the will of E. Parker, to the absolute and entire interest in the leasehold premises. 31. Mr. Fearne says, a diversity has in some cases been contended for between a limitation of a term, by tail, and one by such words as, in the case of a real estate, would give an express estate tail, and a limitation of the same by such words as, in the case of a real estate, would give only an estate tail by implication; upon this principle, that where the words of a will, if used with regard to an inheritance, would give an express estate 1 P. Wms. 433. 3-268. tail, there the same words, applied to a term, would pass the whole interest in the term. But that where the words of the will, if applied to the freehold, would give an estate tail by implication only, there they would not enure to give the whole interest in that term; and consequently, that where a term was limited to one, and if he died without issue, remainder over, this limitation would not vest the whole term in him, as a limitation to the heirs of his body, or to his issue, would do; but were always to be understood restrictively, and to relate only to his dying without issue living at his death; and therefore gave him the term only during his life. 32. The ground of the distinction is this: in respect to an inheritance, the words dying without issue, are taken to mean an indefinite failure of issue in order to create an estate tail in favour of the issue who are capable of taking an inheritance; but with 1P. Wms. 667. respect to a term, such a construction cannot benefit the issue, because a term cannot descend to them. In some instances the Court seems to have countenanced a distinction of this sort; but in all those cases there were some circumstances in the will, which the Court observed, confined the generality of the expression, dying without issue, to dying without issue then living. But it has been frequently determined, that the limitation of a term over, after a dying without issue, even in such cases where the limitation could only have given an estate tail by implication in a real estate, is to be taken in the legal Vide Fearne, extent of the expression, and therefore the limitation Ex. Dev. 233. over being in that sense too remote, is utterly void. devise for life 33. It is the same thing, whether a devise of a term Nor between a be to one for life expressly, and if he die without issue, and an inderemainder over; or to one indefinitely, and if he die finite devise. without issue, remainder over. 34. Thus, in the case of Love v. Windham, the de- Ante,§ 16, vise was to one for life expressly, and if he died with Clare v. Clare, Vide Fearne, An executory devise for life, after a general failure of issue, is good. Oates v. Chalfont, Pollex. 38. out issue, remainder over; and yet the remainder was held void. 35. W. Clare being possessed of a long term, devised it to trustees, in trust for his son Thomas Clare, for so many years of the term as he should live; and after his death, in trust for the issue male of his son Thomas, lawfully begotten, for so many years of the said unexpired term as such issue male should live; and when the issue male of his said son Thomas should happen to be extinct, then in trust for his second son, in the same manner. The question was, whether the limitation over to the second son, after failure of issue male of Thomas, was not void. Lord Talbot held, that the subsequent limitation to the issue of Thomas did not enlarge the express estate for life given to him; but he also held, that the remainder over upon the extinction of issue male of Thomas, which was equivalent to a dying without issue, when taken as an indefinite failure of issue, was void. 36. An executory devise of a term for years for life to a person in esse, to take place upon a dying without issue of another, may be good, because the future limitation being only for the life of a person then existing, must necessarily take place during that life, or not at all; and therefore the failure of issue is, in that case, confined to the compass of a life in being. 37. W. Wilson being possessed of a term for years, assigned the same to trustees, in trust that he should receive the profits during his life; and after his death and after her death, for Mary his wife, during her life; The question was, whether the limitation to Sarah Chalfont was good; and the Lord Keeper Finch declared, that the trust being expressly limited for life, the same did not tend to a perpetuity, and therefore was good. CHAP. XX. Other Matters relating to Executory Devises. 1. Where one Limitation is executory, all the others are so likewise. 5. A preceding executory Limitation may be uncertain when a subsequent one may be cer tain. 11. A preceding executory Limi- 17. Limitations over after an ex- 29. Distinction between Execu- 37. And also the intermediate 40. Which will pass by a Devise 47. And also assignable. ble to Heirs and Executors. SECTION 1. Where one excutory all the limitation is ex others are so 310. Ir is laid down by Mr. Fearne, that where one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken. Thus likewise. Serjeant Pemberton says, the several limitations of a Carth. R. 309, devise of one and the same thing shall never be made to operate several ways, viz. some by way of executory devise, and others by way of remainder. The Court seemed to admit the distinction; but it may be proper to consider upon what reasons it is grounded. 2. With respect to the devise of a term, it is clear Idem. that if there be twenty limitations of it after a devise to one for life, &c., every one of the twenty will be |