3. Leaseholds.]-The general rule is, that "where a man hath lands in fee and lands for years," and deviseth all his lands and tenements, the fee simple lands pass only, and not the lease for years; but, if he hath no fee simple, the lease for years passeth1. On this principle, it has been held, that renewable copyholds for lives, distributable as personal estate by the custom of the manor, do not pass under a devise of freehold and copyhold estates, the devisor having both freeholds and copyholds of inheritance 2. This rule, however, prevails only in the absence of an intention on the part of the testator, that the leaseholds should pass with the freeholds; for, where such intention is clearly manifested, the rule cannot be set up against it. Various circumstances have been held to be sufficiently indicative of this intention. Thus, where the testator devised all his lands to trustees, their heirs, executors, administrators, and assigns, according to their several estates and interests therein, and declared the trusts for the application of the rents to be "subject to the ground-rents and other outgoings,"-it was held by Lord Alvanley, that the leaseholds were sufficiently demonstrated3. If the word "farm" be used, and there be also other concurring circumstances, this it seems would be enough to indicate the intention of the testator to pass leaseholds under a general devise 4. And in another case leaseholds were held by Lord Northington to pass under a devise of "all his manors, messuages, lands, tenements, mines of coal, lead and other mines, rectories, advowsons, tithes, rents, and hereditaments whatsoever, situate, lying, and being in the county of Cumberland:" the words "coal mines" and "levels at rents" being mainly relied on, as the leaseholds were mostly demised under these designations 5. 4. Copyholds.]-Previously to the passing of the 55 Geo. 3, c. 1926, copyholds not surrendered to the use of the will were subject to a similar rule to that just stated in regard to leaseholds; but that statute, by dispensing with surrenders, has placed copyholds on the same footing as freeholds; and, consequently, during the period which elapsed between the passing of that act and Lord Langdale's, they passed under a general devise of real estate, although there were no surrender to the use of the will7. SECT. 13.-EXECUTORY DEVISE. 1. Executory Devises defined and distinguished, 259. 2. Alienation of Executory Devises, 262. 3. An Executory Devise cannot be bar red or defeated, 262. 4. Within what Limits Executory De- 1. Executory Devises defined and distinguished.]-An executory devise is such a limitation of a future estate in lands or chattels, (though, in the case of chattels personal, it is more properly an executory bequest), as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law. It is only an indulgence to a man's last will and testament where otherwise the words of the will would be void. A gift by will, therefore, in order to operate by way of executory devise, must be such as the rules of common law will not carry into effect; for wherever a future interest limited by will can, consistently with the intention, fall within the rules for the limitation of contingent remainders, such future interest is not an executory devise, but a contingent remainder. Executory devises may be distributed under the following classes; four relative to real, and one relative to personal pro Cro. Jac. 590. 1st. Where the devisor parts with his whole fee simple; but upon some contingency qualifies that disposition, and limits an estate on that contingency. As where a testator devised lands to his son B. and his heirs for ever, and if he died without issue living A., then A. to have the lands to him and his heirs1. Or Pells v. Brown, where a testator devised lands to his wife for life, remainder to C., his second son, in fee, provided if D., his third son, should pay £500 within three months after his wife's death to C., then he devised the lands to D. and his heirs 2. In both these cases the devise over was to take effect in derogation and abridgment of Marks, 10 Mod. a fee previously limited; and as no remainder can be grafted on a fee, or be limited so as to defeat a previous estate, it follows that the limitations over to have any effect at all, must operate by way of executory devise. 2nd. Where the devisor, without departing with the immediate 2 Marks v. 420. fee, gives a future estate to arise upon a contingency, or at a period certain, unpreceded by, or not having the requisite connexion with, any immediate freehold to give it effect as a remainder; as a devise to A. to take effect six months after the testator's decease, or a devise to the first son of A. when he shall have one. So, where A. devised lands to S. for five years from next Michaelmas, remainder to C. and his heirs, and died before Michaelmas, the devise both to S. and C. is executory, as the term is limited to commence from a future period; and, till the term vests in S., the limitation of the fee expectant on it must be executory, upon the principle that, wherever a preceding limitation by devise is executory, all subsequent limitations are executory. So, where the testator gives an immediate estate of freehold, but the ulterior limitation is not so connected with it as to be capable of taking effect as a remainder; as a devise to A. for life; and after the decease of A. and one day, to B. in fee. 3rd. Where an estate tail or an estate for life is limited to a person; and, in a certain event, that estate is to cease and be defeated, and another estate is to arise, or a remainder is to be accelerated, and take its place. It is essential to a remainder that it await the regular determination of the preceding estate; therefore, whenever a future interest is limited to take effect in abridgment of a particular estate, or a condition is annexed to that estate, on breach of which there is a limitation over to another, such limitation over is executory. Thus, a devise to A. in tail, and if A. die under the age of twentyfour years, then upon his death to B. in fee; here, without reference to the failure of the issue of A., the estate limited to him in tail is to be abridged on a certain event: it would have been otherwise if the limitation over had been to take effect on the death of A. under the age of twenty-four years, and without issue living at his death; for this limitation over, if it ever took effect, could take effect only on the regular determination of the estate tail, and consequently as a remainder, and not by way of executory devise. So, where the testator devised to A. and the heirs male of her body, provided she intermarried and had issue by one surnamed Searle, and in default of both conditions he devised to G. in the same manner. The court held, that A. took an estate in special tail to her and the heirs male of her body, begotten by a Searle, and that the words upon condition should be taken to be words of limitation; and that upon her death without issue by a Searle, the estate should remain over. In this case, the devise over was only to take effect on the regular determination of the estate in special tail, and it was upon this point the case was decided; but See Gulliver v. Ashby, 4 in Lady Fry's case1 it appears to have been settled, that an 1 Mod. 300. estate tail, and consequently any other particular estate, may be defeated by an executory devise over as well as an estate in fee. In that case A. devised to his wife for life, and after her death to his grandchild, Lady Ann Fry, and the heirs of her body, upon condition that she married with the consent there mentioned; and in case she married without such consent, or died without issue, the testator devised the premises to C. It was adjudged, that Lady Ann Fry took an estate tail subject to two limitations-the one her dying without issue, which was strictly a remainder—the other, her marrying without consent, which was a conditional limitation, and not a condition. Lady Ann married without consent, which determined her estate tail, and the limitation over to C. took effect, which it could only have done under the doctrine of executory devises 2. It was formerly doubted, whether such a condition annexed to an estate was not a condition at the common law, and not a conditional limitation, the breach of which the heir alone could take advantage of: but whatever differences of opinion formerly existed in regard to this matter, they are now settled, for that has long ceased to be a questio vexata; and it seems now agreed, that wherever, in a devise, a condition is annexed to a preceding estate, and upon the breach or non-performance the estate is devised over to another, that condition shall operate as a limitation circumscribing the continuance and measure of the first estate, and that upon the breach or performance of it, (as the case may be), the first estate shall, ipso facto, determine and expire without entry or claim; and the limitation over shall, thereupon, actually commence in possession, and the person claiming under it, whether heir or stranger, shall have the immediate right to the estate. 4th. Where an estate tail, or an estate in fee, is, on some event, reduced to an estate for life. Here one estate is substituted for another, which at the common law cannot be done, and can only take place in wills and conveyances to uses. 5th. The last sort of executory devises, comprising all that relates to chattels, is where a term of years, or any personal estate, is bequeathed to one for life, or otherwise, and after his death, or some other contingency, is given over to another. Burr. 1929. Since a remainder can be limited only in freehold estates, in personal property, (under which both chattels real and chattels personal are included), there cannot be a remainder in the strict sense of the word; and therefore, every future bequest of personal property, whether it be preceded or not by a prior bequest, or limited on a certain or uncertain event, is an executory bequest, and falls under the rules by which that mode of limitation is regulated. Where a term of years, therefore, is bequeathed to A. for life, and after the death of A. to B. for the residue of the term, B. will take by way of executory devise; for B. can have no remainder, the whole term being given to A. during his life. In the case of chattels personal, a like bequest of them to B. will give him an executory interest. Nor is there now any distinction between. the bequest of the use of a personal thing, and of the thing itself for life; in both cases the restricted legatee takes but for life. 2. Alienation of Executory Devises.]-So long as an interest remains executory, the person entitled takes no estate, but merely a right, and his alienation of it by lease and release is consequently inoperative as a conveyance; yet equity will treat such alienation as a contract or agreement, and enforce a performance of it when the party is in a situation to make a conveyance, that is, upon the vesting of the executory interest. The executory devisee is also incapable of receiving a surrender or release of right; but a release by him to a person possessed of an antecedent limited interest, will destroy his contingent interest. Though an executory devise is not the subject of conveyance; yet a fine will operate, even at law, upon it, by way of estoppel to the person levying it, and those claiming under him. A common recovery will have the same effect, such executory devisee coming in as vouchee. This interest also is devisable, and if undisposed of, will go to the real or personal representatives, according to the nature of the property. 3. An Executory Devise cannot be barred or defeated.]—An executory devise cannot, in general, be defeated or destroyed by any person taking a preceding estate. As where there was a limitation to T. in fee simple, and if T. should die without issue living W., then to W. and his heirs, the limitation to W., is executory, to take effect on the contingency of T.'s dying without issue in the lifetime of W. No act done by T., by common recovery or other |