wise, will bar W.'s executory interest; for he has no estate depending upon the estate of T., but a mere collateral possibility which cannot be touched by recovery1. In this case, the limitation over was good as an executory devise; because the whole fee, being first limited to a person in esse, there was no considering the second limitation as a remainder. Executory bequests of chattels, whether real or personal, are equally secure against the disposition of the first legatees, as those of real estate2. Executory interests being thus exempted from the power of the first devisee or legatee, it follows, that where there is an interest devised to one for life, and then an executory devise or bequest over any subsequent union of the freehold and inheritance with the interest so given to the first devisee or legatee, or a feoffment, or other act of forfeiture by him, will not extinguish or affect the interest of the executory devisee. For if it did, the executory devise might be easily annihilated, without any preju dice to the first devisee, by collusion between him and the reversioner3. Though in general an executory devise, even of lands of inheritance, cannot be barred by the first taker; yet where in lands of inheritance an estate tail is first limited, and an executory devise or conditional limitation is made upon that estate, a common recovery suffered by the tenant in tail before the event or condition happens on which the ulterior limitation arises, will bar this executory interest; for the effect of a recovery suffered by tenant in tail, is to bar not only the estate tail, but all executory and conditional or collateral limitations. So, where a reversion in fee, expectant on an estate tail, is limited by way of executory devise, such executory interest will not be protected; for the tenant in tail must have the same power over the interests derived out of the reversion, as he had over the reversion itself. 4. Within what Limits of Time Executory Devises are permitted -when they are void for being too remote.]-The privilege of executory devises, which exempts them from being barred or destroyed, is the foundation of an invariable rule with respect to the contingency upon which an estate of this sort is permitted to take effect. Executory devises were not regularly admitted till about two centuries ago, the rules for circumscribing them are consequently not of an earlier date; there are no statutes for this purpose, and consequently these rules have been derived from the Pells v. Brown, Cro. Jac. 590. * Manning's Case, 8 Rep. 96 a. 3 Hammington v. Rudyard, 10 Rep. 52 a. discretion of the judges; these interests were permitted for public convenience; but to prevent the abuses which would have sprung from them, it was very soon found necessary to impose certain restrictions. At a very early period, when executory devises were first permitted, it was seen that entails made in that form could 'Pells v. Brown, not be barred by fine or recovery1. If they were of real estate, Cro. Jac. 590. the executory devise, except when preceded by an estate tail, would not be barred by fine: because the title of the executory devisee, is not through, or privy to, the immediate taker; but quite independent of him: nor could it be affected by a recovery, it being soon settled, that the recompense which, in the supposition of law, is the ground of barring the issue in tail and those in remainder and reversion, does not extend to an executory devise. If they were of personal estate, whether chattels real or personal, from the nature of the property they could not be the subject either of fine or recovery. Executory devises being thus exempt from any legal mode of barring them, it became necessary to prescribe bounds and limits to this new species of settlement, lest entails should obtain a longer duration, through the irregular and barely permitted medium of an executory devise, than the law endures when the entail is created in the usual way. Hence originated the rule, that the contingency on which executory devises depend, should be confined to a stated period; and by analogy to the case of strict entails, which could not be protected from fines and recoveries longer than the life of the tenant for life in possession and the attainment of twenty-one by the first issue in tail, it was at length settled, that the longest period for the vesting of an executory devise should be any life or lives in being, and twenty-one years after, to which might be added a few months more for the case of a posthumous child. The courts of equity adopted the same rules, and put a similar restraint on trusts in the nature of executory devise. Hence every contingency, if it was not such that it must, if at all, happen within this period, was too remote. As a consequence of this rule, an executory devise limited to take effect on a general and indefinite failure of issue, is void. A similar rule prevails as to personal estate, and a disposition of it after a general failure of issue is too remote. Whether the term of twenty-one years beyond a life or lives in being might be a term in gross, or whether it had reference merely to the infancy of the devisee to whom the estate was limited over, was a point which was long unsettled. But it has been at length determined, on authority rather than principle, that the term of years may be a term in gross1. 1 Cadell v. Palmer, 7 Bli. 233; and see Vol. 1 p. 48. SECT. 14.-INDEFINITE DEVISE. 1. An Estate for Life only passes under an Indefinite Devise, 265. 2. Indefinite Devise subject to a Charge, 265. 3. Effect of a Devise over, 266. "property," 1. An Estate for Life only passes under an Indefinite Devise.]— Subject to the operation of the 1 Vict. c. 26, s. 28, which enacts that words of limitation shall not be necessary to pass the devisor's whole estate or interest, a devise to A. of freehold or copyhold lands in general terms, or by a local or other particular description, not including the word "estate," "property," or anything else equivalent, passes only an estate for life, even though it should appear from the introductory words that the testator intended to dispose of his whole estate2; or may have given a nominal legacy to his heir3; or intimated an intention wholly to disinherit him; or the devise be to a class of persons which includes the heir as one of the testator's children5; or though there be in another part of the will a devise expressly for life, affording, therefore, the inference that the testator meant something different by an indefinite devise6; or though the testator, after describing the land, adds, "which I purchased for 600 guineas," this being the sum paid for the inheritance 7. 1 C. & M. 39. 3 M. & S. Heaseman, Maddern, 4 2. Indefinite Devise subject to a Charge.]-It is well settled that a mere charge on the land, there being no mention of the person by whom it is to be borne, does not enlarge the estate for life given by an indefinite devise 8; but where there is a devise of 10 Goodtitle v. lands subject to a charge in the hands of the devisee, then the fee passes9. The improbability of loss from the disparity between the sum charged and the value of the estate, makes no difference 10; nor, though the contrary has been sometimes advanced 11, that the charge is future or contingent 12,-nor that the direction to the devisee is simply to pay, or to pay out of the land 13. The same principles apply where the charge, instead of being a gross sum, is an annuity 14. Lastly, it may be observed, that the rule under 8 T. R. 497. 1 Doe v. Phillips, 3 B. & Ad. 753. 13 Doe v. Snelling, 5 East, 87. 14 Jenkins v. Jenkins, Willes, 650. consideration as to enlarging an estate for life, applies only to a person taking under an indefinite devise, and does not apply to a 1 Goodtitle v. person taking an express estate for life1, or an estate tail, whether Edmonds, 7 T. R. 635; Willis express2 or by implication 3. v. Lucas, 1 P. W. 474. * Denn v. Sla ter, 5 T. R. 335. *Doe v. Owens, 1 B. & Ad. 318. 4 Doe v. Cundall, 9 East, 400; Spry v. Bromfield, 9 Sim. 537. Frogmorton v. Holliday, 3 Burr. 1618. "Doe v. Cole- Ib. Roe v. Black ett, Cowp. 235. 3. Effect of Devise over.]-Where there is an indefinite devise to A., with a gift over, in the event, say, of his dying under twenty-one, the devise over is held to imply that A., in the event of his attaining twenty-one, is to take the fee1. The same rule applies, although the limitation over be only for life5, or the death of the prior devisee is to be under any other age than majority 6; the rule is not confined, as has been sometimes laid down, to devises to children7; nor, lastly, to cases when death under the prescribed age is the only event on which the estate is given overs; but it does not extend to cases in which the devise over in fee arises on a collateral event, wholly unconnected with the decease of the prior devisee 9. SECT. 14 a.-OF THE CONSTRUCTION OF THE STATUTE OF 4. Gift of Money to be laid out in 10. Disposition of Charitable Gifts, 272. 11. Assets not marshalled in Favour of Building for Charity, 269. 5. Legacy deriving its Purpose from Charity, 272. 12. Devise of Lands to Charity, the legal Estate void, when, 273. 1. Meaning of Charity under this Statute.]-By virtue of the provisions of the Statute of Mortmain, all gifts of real estate or of personalty to be laid out in the purchase of real estate are void, 10 Ante, p. 107. unless made by deed in the manner therein mentioned 10. Hence, a devise of lands or of money to be laid out in the purchase of lands to a charity is void,-charity in the statute being understood to mean such charities as are within the meaning of the 43 Eliz. c. 2, such as relieving and maintaining the aged, impotent, and poor; maintenance of sick, maimed soldiers, and mariners; erecting and maintaining free schools and other schools of learning, -1 Phillips v. Aldridge, 4 T. R. 467. Durour v. Motteaux, 1 Ves. sen. 320. 3 Jones v. Williams, Amb. Howse v. Chapman, 4 651. Ves. 542. 194. 6 Johnson v. Swann, 3 Madd. 457. "Att.-Gen. v. s. 93. Stepney, 10 maintenance and help of scholars in the universities; relief or maintenance of houses of correction; repair of bridges, ports, havens, causeways, churches, sea-banks and highways; education and preferment of orphans; the marriage of poor wards; support and aid of young tradesmen, handicraftsmen, and persons decayed; relief and redemption of prisoners and captives; maintaining preachers, founding hospitals, &c., &c. Thus it has been determined, that a devise of land upon trust, for the support of preaching the Word of God at the meeting-house at L.1; a bequest to be laid out in lands, to be charged with the payment of an annuity to a minister to preach annually a sermon to the testator's memory, to keep his tombstone in repair, and to pay certain sums to the clerk and sexton2; a disposition of property to be laid out in bringing water for the use of the inhabitants of a town3; a disposition of land to be appropriated to the improvement of a town4; or for the purpose of establishing a botanical garden5; to establish a life-boat 6; a gift to the widows and orphans of the parish of L.7; a bequest to a society for propagating the Gospel either at home8 or abroad 9, for the purpose of establishing a bishop in his Majesty's dominions in America 10; bequest for the advancement of Christianity among infidels 11; bequest of an annuity till the testator's son come of age, to be applied "in the service of my Lord and Master, and, I trust, Redeemer12; a bequest to "pious uses 13;" bequests for the purpose of promoting the religious opinions of all classes of Protestant dissenters 14; bequest for the maintenance and support of poor Jews 15, but not for the promotion of their doctrines, that being illegal 16; for the personal benefit of Roman Catholics 17, or even Francis, 1 since the stat. of 2 & 3 Will. 4, c. 115, "to promote the knowledge of the Catholic religion 18; for the purpose of putting out Herrick, Amb. poor children apprentices 19,-are gifts to charitable uses. A bequest for the erection of a monument to perpetuate the memory of the donor is not a charitable use 20; but so far as such a vault is to be used for the donor's family, it appears that it is charitable 21. A parliamentary grant in aid of the pecuniary inability of the inhabitants of a town to protect it from the encroachment of the sea, is a gift to charitable 22use; and in general all funds supplied from the gift of the crown, or from the gift of the legis a a 142. 10 Att.-Gen. v. Bishop of Chester, 1 Bro. C. C. 444. 11 3 Bro. C. C. 171. 12 Powerscourt v. Powerscourt, 1 Moll. 616. 13 Clifford v. Freem. 330; 712. 14 Doe v. Pitch 17 Att.-Gen. v. Power, 1 Ball. & Bea. 145. West v. Shuttleworth, 2 My. & K. 684. 19 Att.Gen. v. Hurst, 1 Cox, 364; White v. White, 7 Ves. 423. 20 Mellick v. President of the Asylum, Jac. 180. Doe v. Pitcher, 3 M. & S. 407; S. C. 6 Taunt. 359. 2 Att.-Gen. v. Brown, 1 Swanst. 265. |