some future contingency. This is the definition commonly given of an executory devise. It comprehends indeed every species of an executory devise; but at the same time it is not confined to executory devises only; it includes every kind of contingent interest in lands given by devise (for every contingent interest must necessarily be future); now every contingent interest in lands limited by devise is not an executory devise, for some contingent interests by devise are contingent remainders; therefore, such a definition must be considered as defective in point of precision and accuracy. An executory devise is, strictly, such a limitation of a future estate or interest in lands or chattels 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 allowed to a man's last will and testament, where otherwise the words of the will would be void; for wherever a future interest is so limited by devise as to fall within the rules above laid down for the limitation of contingent remainders, such an interest is not an executory devise, but a contingent ⚫ remainder.

LEAKE, LAND LAW, 68. A disposition by will, equally with a disposition by deed, is subject to the general rules of the common law regulating the estates or interests which may be given. A testator can only devise such estates as are known to the law, nor can he alter or take away the legal incidents and qualities of such estates; for instance, he cannot render estates of inheritance inalienable, nor alter the law of inheritance.

But the power of disposition by will, being derived directly from the statute, is for the most part independent of the restrictions imposed by the peculiar feudal doctrines of the common law, and by the common law forms of conveyance. Devises of freehold estates were operative without livery of seisin, and without attornment, before these formalities were dispensed with by statute. Devises of freehold estates may be made to take effect in futuro, at a fu

ture date or upon any specified event, leaving the inheritance in the meantime to descend to the heir; or such devises may be made to take effect in defeasance of and in substitution for preceding devises; although such limitations of estates are contrary to the rules of the common law, which admit no future limitations or substitutions of the tenancy, except by way of remainders. These future devises are analogous to the springing and shifting uses which became legal limitations under the Statute of Uses, and they are called distinctively executory devises.

ID., 360. An executory devise being the limitation by will of a future estate or interest in land, which cannot take effect as a remainder, it follows that "every devise of a future interest which is not preceded by an estate of freehold created by the same will, or which, being so preceded, is limited to take effect before or after and not at the expiration of such prior estate of freehold is an executory devise."1

11 Jarman on Wills, 778.

CHAPTER III.

STATUTORY FUTURE ESTATES.

4 KENT COM., 271. The New York statute has, in effect, destroyed all distinction between contingent remainders and executory devises. They are equally future or expectant estates, subject to the same provisions, and may be equally created by grant or by will. The statute1 allows a freehold estate, as well as a chattel real, to be created to commence at a future day; and an estate for life to be created in a term for years, and a remainder limited thereon; and a remainder of a freehold or chattel real, either contingent or vested, to be created expectant on the determination of a term for years; and a fee to be limited on a fee, upon a contingency. There does not appear, therefore, to bc any real distinction left subsisting between contingent remainders and executory devises. They are so perfectly assimilated, that the latter may be considered as reduced. substantially to the same class; and they both come under the general denomination of expectant estates. Every species of future limitation is brought within the same definition and control. Uses being also abolished by the same code,2 all expectant estates, in the shape of springing, shifting, or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders, and subject precisely to the same rules.

GRAY, PERPETUITIES, § 67. In several of the United States freehold estates may be created in futuro either by express provision of statute or by inference from statutes 1 New York Revised Statutes, Vol. I., 724, sec. 24. 2 Ibid., Vol. I., 727, sec. 45.

dispensing with the necessity of livery of seisin. And although in several of the States (e.g., New York, Michigan, and Wisconsin) uses have been abolished, which of itself would greatly limit the creation of estates in futuro, yet wherever this has been done it is believed that freehold estates can, by statute, be created in futuro so that the abolition of uses occasions no practical inconvenience.

§ 68. The only possible exception to this is Ohio. The Statute of Uses is not in force in that State, and it has never been expressly enacted that freeholds can be created in futuro. But land passes there by deed without livery of seisin, and the courts of Ohio will not improbably hold, as have those of Maine and Vermont, that when livery of seisin is no longer necessary the objection to the creation of a freehold in futuro falls with it.

N. Y. REAL PROP. LAW, § 40. Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee or other less estate may be limited on a fee, on a contingency which, if it should occur, must happen within the period prescribed in this article.

§ 43. A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation.

CHAPTER IV.

POWERS.

Co. LIT., 237, a. Lastly, somewhat were necessarie to be spoken concerning clauses of provisoes, containing power of revocation, which since Littleton wrote are crept into voluntarie conveyances, which passe by raising of uses, being executed by the statute of 27 H. 8 and are become verie frequent, and the inheritance of many depend thereupon. As if a man ceised of lands in fee, and having issue divers. sonnes, by deed indented, covenanteth in consideration of fatherly love, and for the advancement of the blood, or upon any other good consideration, to stand seised of three acres of land to the use of himselfe for life, and after to the use of Thomas his eldest son in taile; and for default of such issue, to the use of his second son in taile, with divers like remainders over; with a proviso that it shall be lawful for the covenantor at any time during his life to revoke any of the said uses, &c.: this proviso being coupled with an use, is allowed to be good, and not repugnant to the former states. But in case of a feoffment, or other conveyance, whereby the foeffee or grantee, &c., is in by the common law, such a proviso were merely repugnant and void.

By the same conveyance that the old uses be revoked, may new be created or limited, where the former cease ipso facto by the revocation, without either entrie or claime.

SUGD. POW., II. Powers before the Statute of Uses were, as we have seen, mere directions to the trustee of the legal estate how to convey the estate; in truth they were future uses to be designated by the person to whom the power was given these, when they arose, equity compelled the trustee