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ascertain the balance upon the mere point of authority; but the importance of uniformity in the construction of wills, relative to the disposition of real property, has, in a great degree, prevailed over the distinction; though in bequests of personal property, the rule will, more readily than in devises of land, be made to yield to other expressions, or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. The courts, according to Mr. Fearne, lay hold, with avidity, of any circumstance, however slight, and create almost imperceptible shades of distinction, to support limitations over of personal estates.

■ Fearne on Executory Devises, by Powell, 186. 239. 259. Doe v. Lyde, 1 Term Rep. 593. Dashiell v. Dashiell, 2 Harr. & Gill, 127. Eichelberger v. Bernetz, 17 Serg. & Rawle, 293. Doe ex dem. Cadogan v. Ewart, 7 Adolph. & Ellis, 636. The conflict of opinion, as to the solidity of the distinction in Forth v. Chapman, is very remarkable, and forms one of the most curious and embarrassing cases in the law, to those well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2 Atk. Rep. 314,) Lord Thurlow, (1 Bro. 188. 1 Ves. jr. 286,) Lord Loughborough, (3 Ves. 99,) Lord Alvanley, (5 ibid. 440.) Lord Kenyon, (3 Term Rep. 133. 7 ibid. 595,) Sir William Grant, (17 Ves. 479,) and the court of K. B., in 4 Maule & Selw. 62, are authorities against the distinction. Lord Hardwicke, (2 Atk. Rep. 288. 2 Ves. 180. 616,) Lord Mansfield, (Cowp. Rep. 410. Den v. Shenton, 2 Chitty's Rep. 662,) Lord Eldon, (9 Ves. 203,) and the House of Lords, in Keily v. Fowler, 6 Bro. P. C. 309, are authorities for the distinction. As Lord Hardwicke has equally commended, and equally condemned the distinction, without any kind of explanation, his authority may be considered as neutralized, in like manner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. In the case of Campbell v. Harding, 2 Russell & Mylne, 390, it was held at the Rolls, and afterwards by the chancellor on appeal, that where by will, a sum of stock, and also real estate were given to C., and in case of her death without lawful issue, then over; she took an absolute interest in the stock, inasmuch as the bequest over, limited after a general failure of issue, was void. The old rule was re-asserted. The American cases, without adopting absolutely the distinction in Forth v. Chapman, are disposed to lay hold of slighter circumstances in bequests of chattels, than in devises of real estate, to tie up the generality of the expression dying without issue, and confine it to dying without issue living at the death of the party,

The New-York Revised Statutes have put an end to all semblance of any distinction in the contingent limitation of real and personal estates, by declaring, that all the provisions relative to future estates should be construed to apply to limitations of chattels real, as well as to freehold estates; and that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination, of not more than two lives in being at the date of the instrument containing the limitation

in order to support the devise over; and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. Rep. 12. Newton v. Griffith, 1 Harr. & Gill, 111. Royall v. Eppes, 2 Munf. Rep. 479. Brummet v. Barber, 2 Hill's S. C. Rep. 544, 545. Williams v. Turner, 10 Yerger, 287. Robards v. Jones, 4 Iredell N. C. Rep. 53. In Arnold v. Congreve, 1 Tamlyn, 347, it was said by the Master of the Rolls to be now perfectly well settled, that there is no difference with respect to a limitation of freehold and personalty, and the rule was also declared in Zollicoffer v. Zollicoffer, 3 Battle's N. C. Rep. 438, on the ground of the presumed intention of the testator that executory limitations of land and chattels were to be construed alike, and to go over on the same event, and in this last case in N. C., the limitation over a devise of lands and chattels was held good, where the gift was to the children, and in case of either dying without lawful heirs of the body, his share to go to the survivors. In Mazyck v. Vanderhost, 1 Bailey's Eq. Rep. 48, it was held that in a devise of real and personal estate to B., and to the heirs of her body, but if she should depart this life leaving no heirs of her body, then over, the word "leaving" restrained the otherwise indefinite failure of issue, to the death of the first taker, and that the limitation over was good by way of executory devise as to the personal estate, but was too remote, and void as to the real estate, although both species of property were disposed by the same words in the same clause of the will. This sanction of the case of Forth v. Chapman was in the court of appeals in South Carolina, in 1828, but the reporter in an elaborate note annexed to the case, questions the reason, justice, and applicability of the rule to the jurisprudence in this country, and ably contends that the rule of construction which imputes a difference of intention to a testator in respect to his real and personal estate, when he devises both by the same words, ought to be abandoned. See the case of Moody v. Walker, 3 Arkansas Rep. 147, to the same point, and that case contains an able and elaborate discussion of the doctrine of executory devises.

■ Vol. i. 724, sec. 23. vol. i. 773, sec. 1, 2. Vide supra, p. 271.

or condition, or, if it be a will, in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property, are made subject to the rules prescribed in relation to future estates in land.

The same limitation under the English law, which would create an estate tail if applied to real estates, would vest the whole interest absolutely in the first taker, if applied to chattels. And if the executory limitation, either of lands or chattels, be too remote in its commencement, it is void, and cannot be helped by any subsequent event, or by any modification or restriction in the execution of it. The possibility, at its creation, that the event on which the executory limitation depends, may exceed in point of time the authorized period, is fatal to it; though there are cases in which the limitation over has been held too remote only pro tanto, or in relation to a branch of the disposition.b

• Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Lord Chatham v. Tothill, 6 Bro. P. C. 450. Britton v. Twining, 3 Merivale, 176. Paterson v. Ellis, 11 Wendell, 259. See, also, supra, vol. ii. p. 354.

b Fearne on Executory Devises, 159, 160. Phipps v. Kelynge, ibid. 84. A limitation to an unborn child for life is not good, unless the remainder vests in interest at the same time. A gift in remainder, expectant upon the death of unborn children, is too remote. 4 Russell, 311. In Hannan v. Osborn, 4 Paige, 336, there was a devise of real and personal estate to a sister and her children, with devise over, if she should die and all her children without leaving children. The sister had but one child at the making of the will, and at the testator's death. It was held, that the sister took an estate for life, and the child a vested remainder in fee, subject to open and let in afterborn children, but that the limitation over was void, as being too remote as to the after-born children. In that case the real and personal estate was held subject to the same rule, and the chancellor said that there was no difference in principle under the New-York Revised Statutes on this subject, between the devise of real and personal estates, in respect to limitations over. See also, Gott v. Cook, 7 Paige, 521, and Hone v. Van Schaick, 7 Paige, 222, to the same point.

*IV. Of other matters relating to executory devises.

When there is an executory devise of the real estate, and the freehold is not, in the mean time, disposed of, the inheritance descends to the testator's heir until the event happens. So, where there is a preceding estate limited, with an executory devise over of the real estate, the intermediate profits between the determination of the first estate, and the vesting of the limitation over, will go to the heir at law, if not otherwise appropriated by the will. The same rule applies to an executory devise of the personal estate; and the intermediate profits, as well before the estate is to vest, as between the determination of the first estate, and the vesting of a subsequent limitation, will fall into the residuary personal estate. These executory interests, whether in real or personal estates, like contingent remainders, may be assigned or devised; and they are transmissible to the representatives of the devisee, if he dies before the contingency happens; and they vest in the representatives, either of the real or personal estate, as the case may be, when the contingency does happen.

In the great case of Thellusson v. Woodford, it was the declared doctrine, that there was no limited number of lives for the purpose of postponing the vesting of an executory interest. There might be an indefinite number of concurrent lives no way connected with the enjoyment of the estate; for, be there ever so many, there

Pay's case, Cro. Eliz. 878. Hayward v. Stillingfleet, 1 Atk. Rep. 422. Hopkins v. Hopkins, Cases temp. Talb. 44.

Chapman v. Blissel, Cases temp. Talb. 145. Duke of Bridgewater v. Egerton, 2 Vesey, 122.

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Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. Rep. 29. Fearne on Executory Devises, 529-535. New-York Revised Statutes, Higden v. Williamson, Cases temp. Talb. 131. 2 Saund. See, also, the concluding part of the last Lecture. 11 ibid. 112, S. C.

vol. i. 725, sec. 35.

Rep. 388, k. note.

4 Vesey, 227.

must be a survivor, and the limitation is only for *285 the length of that life. The purpose of accumulation was no objection to an executory devise, nor that the enjoyment of the subject was not given to the persons during whose lives it was to accumulate. The value of the thing was enlarged, but not the time. The accumulated profits arising prior to the happening of the contingency, might all be reserved for the persons who were to take upon the contingent event; and if the limitation of the executory devise was for any number of lives in being, and a reasonable time for a posthumous child to be born, and twenty-one years thereafter, it was valid in law. The devise in that case was that all the real and personal estate of the testator should be converted into one common fund, to be vested in trustees in fee for the rents and profits to accumulate during the lives of all the testator's sons, and of all the testator's grandsons, born in his lifetime, or living at his death, or then in ventre sa mere, and their issue, to receive the profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be conveyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. The testator's object was to protract the power of alienation, by taking in lives of persons who were mere nominees without any corresponding interest. The trusts created by the Thellusson will, were held valid by the court of chancery and the decree was affirmed in the house of lords. The property was thus tied up from alienation, and

• Lord Thurlow, in Robinson v. Hardcastle, 2 Bro. C. C. 30. Lord Eldon, in Thellusson v. Woodford, 11 Vesey, 145.

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