unborn son of a feme covert as should first attain the age of twenty-one, was held to be good; for the utmost length of time that could happen before the estate would vest, was the life of the mother, and the subsequent infancy of the son. Since that time, an executory devise of the inheritance to the extent of a life, or lives in being, and twenty-one years, and the fraction of another year, to reach the case of a posthumous child, has been uniformly allowed; and the same rule equally applies to chattel interests. And thus, notwithstanding the constant dread of perpetuities, and the jealousy of

executory devises, as being an irregular and 268 limited species of entail, a sense of the *conve

nience of such limitations in family settlements, has enabled them, after a struggle of nearly two centuries, to come triumphantly out of the contest. They have, also, become firmly established (though with some disabilities, in New-York, as we have already seen,') as part of the system of our American testamentary jurisprudence.c

Atkinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. 174. Long v. Blackall, 7 Term Rep. 100. Cadell v. Palmer, 1 Clark & Finnelly, 373. 10 Bingham, 140, S. C. In this last case, it was decided in the House of Lords, in accordance with the opinion of the twelve judges, that a limitation by way of executory devise is valid, though it is not to take effect until after the determination of a life or lives in being, and a term of twenty-one years afterwards as a term in gross, without reference to the infancy of any person who is to take under such limitation.

Supra, p. 17.

Though the Code Napoleon has abolished all perpetuities and substitutions, (as see supra, p. 21,) yet the convenience and policy of giving some reasonable effect to the will of the testator, even on the subject of fidei commissa, has prevailed. There are fidei commissa, and substitutions, which are held not to be prohibited; and it is declared to be the spirit of the existing jurisprudence of France, not to annul a testamentary disposition made under the code, except it necessarily presents a substitution, and cannot receive any other construction. Toullier, tom. v. No. 15, 16. 30. 44; and he refers to a decision of the court of Besancon, reported in the Recueil de Jurisprud encedu Code Civil, tom. xvi., in support of this principle.

II. Of the several kinds, and general qualities of executory devises.

There are two kinds of executory devises relative to real estate, and a third sort relative to personal estate. 1. Where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency. Thus, if there be a devise to A. for life, remainder to B. in fee, provided that if C. should, within three months after the death of A., pay one thousand dollars to B., then to C. in fee, this is an executory devise to C., and if he dies, in the lifetime of A., his heir may perform the con

dition. (2.) Where the testator gives a future *269 interest to arise upon a contingency, but does not part with the fee in the mean time; as in the case of a devise to the heirs of B., after the death of B., or a devise to B. in fee, to take effect six months after the testator's death; or a devise to the daughter of B., who shall marry C. within fifteen years. (3.) At common law, as was observed in a former volume, if there was an executory bequest of personal property, as of a term for years to A. for life, and after his death to B., the ulterior limitation was void, and the whole property vested in A. There was, then, a distinction between the bequest of the use of a chattel interest, and of the

This is the classification made by Powell, J., in Scatterwood v. Edge, 1 Salk. Rep. 229, and it has been followed by Mr. Fearne. Mr. Preston goes on to a greater subdivision; and he says there are six sorts of executory devise applicable to freehold interests, and two, at least, if not three, sorts of executory bequests applicable to chattel interests. Preston on Abstracts of Title, vol. ii. 124. I have chosen not to perplex the subject by divisions too refined and minute. The object in elementary discussions, according to the plan of these Lectures, is to generalize as much as possible.

b Marks v. Marks, 10 Mod. Rep. 419. Prec. in Ch. 486.

• Bate v. Amherst, T. Raym. 82, Lent v. Archer, 1 Salk. Rep. 226. Lord Ch. J. Treby, in Clark v. Smith, 1 Lutw. 798.

thing itself; but that distinction was afterwards exploded, and the doctrine is now settled, that such limitations over of chattels real or personal, in a will, or by way of trust, are good. The executory bequest is equally good, though the ulterior devisee be not at the time in esse, and chattels, so limited, are not subject to the demands of creditors beyond the life of the first taker, who cannot pledge them, nor dispose of them beyond his life interest therein.b

An executory devise differs from a remainder in three very material points. (1.) It needs not any particular estate to precede and support it, as in the case of a devise in fee to A. upon his marriage. Here is a freehold limited to commence in futuro, which may be done by devise, because the freehold passes without livery of seisin; and until the contingency happens the fee passes, in the usual course of descent, to the heirs at law. (2.) A fee may be limited after a fee, as in the case of a devise of land to B. in fee, and if he dies without issue, or before the age of twenty-one, then to C. in fee. (3.) A term for years may be: *limited over, after a life estate created in the same. At law, the grant of the term to a man for life would have been a total disposition of the whole term. Nor can an executory devise or bequest be prevented or destroyed by any alteration whatsoever, in the estate out of which, or subsequently to which, it is limited. The executory interest is wholly exempted from the power of the first devisee or taker. If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to

*270

a Cotton v. Heath, 1 Eq. Cas. Abr. 191. pl. 2. Hoare v. Parker, 2 Term Rep. 376.

2 Blacks. Com. 173, 174.

Fearne on Executory Devises, 46.

d Pells v. Brown, Cro. Jac. 590. Fearne on Executory Devises, 46.

A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave, or without selling or devising, the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will. A valid executory devise cannot subsist under an absolute power of disposition in the first taker. When an executory devise is duly created, it is a species of entailed estate, to the extent of the authorized period of limitation. It is a stable and inalienable interest, and the first taker has only the use of the land or chattel pending the contingency mentioned in the will. The executory devise cannot be divested even by a feoffment; but the stability of these executory limitations is, nevertheless, to be understood with this single qualification, that if an executory devise or interest follows an estate tail, a common recovery, suffered by the tenant in tail before the condition occurred, will bar the estate depending on that condition; for a common recovery bars all subsequent and conditional limitations. It is not *271 so with a recovery suffered by a tenant in fee; for that will not bar an executory devise, as was decided in Pells v. Brown, and the reason of the distinction, is, that the issue in tail is barred in respect of the recompense in value, which they are presumed to recover over against the vouchee; whereas the executory devisee is entitled to no part of the recompense, for that would

Jackson v. Bull, 10 Johns. Rep. 19. Attorney General v. Hall, Fitzg. 314. Ide v. Ide, 5 Mass. Rep. 500. Jackson v. Robins, 16 Johns. Rep. 537 b Mullineux's case, cited in Palm. 136.

• Driver v. Edgar, Cowp. Rep. 379. Fearne, 66, 67, 107.

Cro. Jac. 590.

go to the first taker, or person having the conditional fee. It is further to be observed, that a change of circumstances, either before or after a testator's death, may convert into a remainder a limitation, which, at the death of the testator, and without such change, could only have operated by way of executory devise."

III. Of limitations to executory devises:

(1.) When too remote.

b

We have seen, that an executory devise, either of real or personal estate, is good if limited to vest within the compass of twenty-one years after a life or lives in being; and the contingency may depend on as many lives in being as the settler pleases, for the whole period is no more than the life of the survivor. This rule of the English law has been restricted by the New-York Revised Statutes, which will not allow the absolute power of alienation to be suspended by any limitation or condition whatever, for a longer period than during the continuance of not more than two lives in being at the creation of the estate; except in the single case of a contingent remainder in fee, which may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years; or upon any other contingency by which the estate of such persons

* Preston on Abstracts, vol. ii. 154. Doe v. Howell, 10 Barnw. & Cress. 230.

b Supra, p. 267.

Vide supra, p. 17. In the case of a devise of real estate to trustees, in trust for wife for life, and after her death in trust for the grandchildren of B. then living, to be received by them in equal proportions, when they should severally attain the age of twenty-five years, the testator left the widow and B. surviving. Eight grandchildren were living at the death of the widow, and several were born afterwards. It was held, in Kevern v. Williams, 5 Simons, 171, that the devise was not void for remoteness, but those only of the grandchildren took who were in existence at the widow's death.

a Vol. i. 723, sec. 14, 15, 16. Vide infra, p. 283.