mean "issue" and thus effectuate the intention of the testator, is held to create an executory devise in B.22 § 1028. Limitation Over if First Taker Die Under Age or Unmarried. A contingency frequently met is where there is a devise. to one in fee with a gift over in the event of his dying under the age of twenty-one years or dying unmarried. A limitation over in the event of the first taker in fee dying before he attains his majority is a valid executory devise,23 and the rule is the same where the contingency is that the first taker shall die without having been married.24 And, likewise, the contingency can be both dying under age and unmarried, or dying under age and with 22 Raborg's Admr. v. Hammond's Admr., 2 H. & G. (Md.) 42; Granger v. Granger, 147 Ind. 95, 36 L. R. A. 186, 44 N. E. 189, 46 N. E. 80; Fosdick v. Cornell, 1 Johns. (N. Y.) 440, 3 Am. Dec. 340; Barber v. Crawford, 85 S. C. 54, 67 S. E. 7. In Russ v. Russ, 9 Fla. 105, the words "heirs of the body" are construed to mean children, to carry out the testator's intention. "Dying without heirs of body" can only mean dying without leaving such heirs of body as the estate would have vested in, in fee, instantly upon the death of the first devisee-as children."-Summers v. Smith, 127 Ill. 645, 21 N. E. 191. "According to the strictest rule of English interpretation we can not regard the devise in question As to who are included in the term "heirs," see §§ 850, 851. 23 Barnitz's Lessee v. Casey, 7 Cranch (U. S.) 456, 3 L. Ed. 403; Raborg's Admr. V. Hammond's Admr., 2 H. & G. (Md.) 42; Jackson v. Blanshan, 3 Johns. (N. Y.) 292, 3 Am. Dec. 485. 24 Sullivan v. Garesche, 229 Mo. 496, 49 L. R. A. (N. S.) 605, 129 S. W. 949. out children.25 The effect of such a devise with a limitation over upon the contingencies mentioned, unless controlled by other provisions of the will, is to make the absolute gift in favor of the first taker defeasible by the executory gift over in the event of his dying at any time under the conditions mentioned.20 §1029. Executory Interests in Personalty. Remainders and executory interests in chattels were not recognized at common law.27 But this rule has been altered and a gift of personalty may be limited after a life estate,28 and after an absolute disposition of the property,29 by way of an executory bequest. Thus a limitation over of personalty upon the definite failure of issue in the 25 Sayward v. Sayward, 7 Me. (7 Greenl.) 210, 22 Am. Dec. 191. As to construing "and" as "or" and "or" as "and" in such cases, see § 776. 26 Edwards v. Edwards, 15 Beav. 357; Doe v. Webber, 1 Barn. & Ald. 713; O'Mahoney v. Burdett, L. R. 7 H. L. 388; Anderson v. Jackson, 16 Johns. (N. Y.) 382, 8 Am. Dec. 330; Matter of New York, L. & W. Ry. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492; Britton v. Thornton, 112 U. S., 526, 28 L. Ed. 816, 5 Sup. Ct. 291. 27 See § 1001, remainders in personalty. 28 Ingersoll v. Ingersoll, 77 Conn. 408, 59 Atl. 413; State v. Warrington's Exr., 4 Harr. (Del.) 55. While at common law there could be no limitation over of a chattel, "in the course of time equity has established the doctrine that, where there is a gift of per sonal property to one for life with Applying Blackstone's definition of an executory devise, an executory bequest would be such a disposition of personalty or money by I will that thereby no estate vests at the death of the testator, but only on some future contingency. -Crawford v. Clark, 110 Ga. 729, 36 S. E. 404. "Every executory devise is, as far as it goes, a perpetuity; that is, it is an unalienable interest. The devisee has only the use, and first taker, is good as an executory devise.30 This rule applies to money as well as to other personalty.31 § 1030. Executory Devises as Affected by the Rule as to Perpetuities. To constitute a valid executory devise at common law, the contingency upon which it is to take effect must occur within the life or lives of those in being and twenty-one years, there being added thereto the period of gestation, as a child may be en ventre sa mere.32 The common law rule as to perpetuities applies to executory bequests of personalty as well as to executory devises.33 If the executory interest is limited beyond the time allowed, it is void as an entirety and not merely for the excess beyond that period. The invalidity consists in the possibility of the executory interest not vesting within the prescribed time, for it may be void although subsequent circumstances would have caused it to vest within the period. The executory limitation being void, it 35 not an absolute interest in the personal property devised."-Moffat's Exr. v. Strong, 10 Johns. (N. Y.) 12. 30 Glover v. Condell, 163 Ill. 566, 35 L. R. A. 360, 45 N. E. 173; Moffat's Exr. v. Strong, 10 Johns. (N. Y.) 12. 31 Pinbury v. Elkin, 1 P. Wms. 563; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Rowe's Exrs. v. White, 16 N. J. Eq. 411, 84 Am. Dec. 169; Scott v. Price, 2 Serg. & R. (Pa.) 59, 7 Am. Dec. 629. 32 Curry v. Curry, 58 Ind. App. 567, 105 N. E. 951; Nightingale v. Burrell, 15 Pick. (32 Mass.) 104; Thomas v. Thomas, 97 Miss. 697, 53 So. 630; Selman v. Robertson, 46 S. C. 262, 24 S. E. 187; Turner v. Ivie, 5 Heisk. (52 Tenn.) 222. As to children "en ventre sa mere," see § 842. 33 Thomas v. Thomas, 97 Miss. 697, 53 So. 630. 34 Fox v. Porter, 6 Sim. 485; Evers v. Challis, 7 H. L. Cas. 531, 555; St. Amour v. Rivard, 2 Mich. 294; Jackson v. Phillips, 14 Allen (96 Mass.) 539, 572. As to the effect of the rule of perpetuity on contingent remainders, see §§ 1013, 1014. 35 Nottingham v. Jennings, 1 Salk. 233; Mandlebaum v. McDonell, 29 Mich. 78, 18 Am. Rep. 61; Wood v. Griffin, 46 N. H. 230, 234; leaves the prior gift free from any condition and takes effect as if the limitation had not been made.36 If the devise may be construed in two or more ways, one of which will not be contrary to the rule as to perpetuities, such construction will be adopted.37 But the executory interest must vest according to the contingency under the construction adopted, and not under any apparent contingency expressed in the will, as where alternate contingencies are mentioned, one valid and the other remote.38 Anderson v. Jackson, 16 Johns. (N. Y.) 382, 399, 8 Am. Dec. 330; Appleton's Appeal, 136 Pa. St. 354, 364, 20 Am. St. Rep. 925, 11 L. R. A. 85, 20 Atl. 521. 36 Nottingham v. Jennings, 1 Salk. 233; Beard v. Westcott, 5 B. & Ald. 801; Goldtree v. Thompson, 79 Cal. 613, 22 Pac. 50; Hale v. Hale, 125 Ill. 399, 17 N. E. 470; Pennington v. Pennington, 70 Md. 418, 3 L. R. A. 816, 17 Atl. 329; Stout v. Stout, 44 N. J. Eq. 479, 15 Atl. 843; Fowler v. Ingersoll, 50 Hun (N. Y.) 60, 2 N. Y. Supp. 833; Philadelphia v. Girard's Heirs, 45 Pa. St. 27, 84 Am. Dec. 470. 37 Dulany v. Middleton, 72 Md. 67, 19 Atl. 146; Roe v. Vingut, 117 N. Y. 204, 22 N. E. 933; In re Moran's Will, 118 Wis. 177, 96 N. W. 367. As to alternative contingent remainders, see § 1015. 38 Armstrong v. Armstrong, 14 B. Mon. (53 Ky.) 333; Burrill v. Boardman, 43 N. Y. 254, 3 Am. Rep. 694. CHAPTER XXXVII. TESTAMENTARY GIFTS UPON CONDITION. § 1031. Conditions precedent and subsequent defined. § 1032. No particular language required to create a condition. § 1033. Condition is precedent or subsequent according to testator's intention. § 1034. Examples of conditions precedent and subsequent. § 1035. General effect of conditions precedent. § 1036. General effect of conditions subsequent. § 1037. Construction favors conditions subsequent. § 1038. Limitations distinguished from conditions. §1039. The same subject. § 1040. Illegal or void conditions. § 1041. The same subject: Civil law rule. § 1042. Invalid condition coupled with valid one makes result the same as if both were invalid. § 1043. Where conditions precedent are impossible of perform ance. § 1044. The same subject: Statutory regulations. § 1045. Where conditions subsequent are impossible of perform ance. § 1046. Effect of accepting gift burdened with a condition of payment, or the like. § 1047. Time within which conditions must be performed: Where no time specified. § 1048. The same subject: Where will prescribes time of per- ' formance. § 1049. Conditions as to occupation, study and habits. § 1050. Conditions requiring residence at a certain place. § 1051. Conditions as to change of name. § 1052. Conditions affecting religious freedom. § 1053. Conditions against making claims against testator's estate. |