2 Washb. R. Prop. 374; Cocke's Ex'or v. Phillips, 12 Leigh, 248; Ante p 115, 5', 133, 5', 111, 11.) 6. Applicability of the Rule in Shelley's Case, to Executory Limitations, and to Limitations in the nature of Contingent Remainders, respectively.

The rule in Shelley's case is not applicable to executory limitations, as we have seen that it is in case of nominal contingent remainders, apparently because the limitation to the ancestor and the heirs are not parts of the same estate, but are distinct and independent dispositions of the subject. (Fearne's Rem. 276.)

4. The Period within which an Executory Limitation must finally vest; W. C.

1. The principle upon which a Fixed Period is Prescribed. A fixed period is prescribed in order to prevent perpetuities. It having been held that executory limitations were incapable of being barred or destroyed by any alienation, or other act, of the tenant of the preceding estate, and these limitations being released from all the restraints which attached to remainders, and which kept them within due bounds, it was observed that, without some established rule to the contrary, there might be an indefinite succession of estates limited one after another which would arrest the alienation of lands, and still more disastrously of chattels, and which would be of even more signal prejudice to the well-being of society than the statute of entails had been prior to Taltarum's case, (Ante p. 83, 11.) Accordingly, it was settled that, although such future interests might be limited to as many persons successively as the testator or grantor might think proper, yet they must all be in esse during the life of the taker of the first estate; for then, as it was said, the candles are all lighted and consuming together, and the ultimate remainder is in reality only to that person who happens to survive the rest; or according to the canon established upon this subject, 'every executory limitation, in order to be valid, shall be so limited that it must vest in interest, if at all, within a life or lives in being, and the utmost period of gestation (reckoned in Virginia at ten months, V. C. 1873, c. 119, § 8), and twenty-one years thereafter, the period of gestation being allowed only in cases where gestation exists. (2 Bl. Com. 174, & n (21); Fearne's Rem. 429, & n (f), 444, n (a); 2 Lom. Dig. 311 & seq; 3 Do. 407; 2 Washb. R. Prop. 357 & seq; Long v. Blackall, 7 T. R. 100; Cadell v. Palmer, 10 Bingh. (25 E. C. L.) 140; Ante p. 233, 31.)

2. The Period Prescribed.

The doctrine touching the period prescribed will lead

us to note, (1), The precise period; (2), The considerations which led to the adoption of that period; and (3), The instances of limitations too remote, or too contingent, and therefore void;

W. C.

18. The Precise Period.

The precise period which has, after some fluctuations, but all looking to the same principle, been finally established is that just stated, namely, that every executory limitation, whether of real or of personal estate, in order to be valid, must vest in interest, if at all, within a life or lives in being, and the utmost period of gestation, (ten months in Virginia), and twenty-one years thereafter. (Supra 1.)

28. The Considerations which led to the adoption of that Period.

The period was adopted by analogy to the utmost period during which, at common law, land could be kept inalienable, by way of remainder. Thus, in marriagesettlements, (where the effort is to preserve the estate as long as possible within the limits of one or two families), the estate may be limited to H and W, during their joint lives, remainder to the survivor for life, remainder to the first and other sons of the marriage successively in tail, remainder to the daughters in tail, remainder in fee to H's right heirs, and until the first person to whom a remainder in tail is limited comes of age, the land is incapable of being aliened in fee-simple. And as that person may, at the death of H, be in ventre sa mere, the time in such case would be prolonged for the term of gestation, making the utmost period of inalienability of the inheritance at common law, one or more lives in being, the limit of gestation, and twentyone years afterwards, which has, therefore, for more than a century, constituted the "rule against perpetuities," in respect to lands, and a fortiori as to the chattels. (Long v. Blackall, 7 T. R. 101; Pleasants v. Pleasants, 2 Call. 336; 2 Bl. Com. 174, n (21); 2 Lom. Dig. 311; Fearne's Rem. 444, n (a); Howard v. Duke of Norfolk, 2 Swanst. 454.)

35. Instances of Limitations too Remote, or too Contingent, and therefore Void.

These instances may be enumerated as follows: (1), Limitations over upon a failure of heirs, or heirs of the body, or issue, &c.; (2), Limitations over after a devise or grant in fee, with unlimited power in the first taker to dispose of the subject; and (3), Limitations in con

templation of an act of legislature, or of incorporation, to make the disposition designed legal and valid;

W. C.

1. Limitations over upon a Failure of Heirs, or Heirs of the body, or Issue, &c.

It will be necessary, under this head, to advert to (1), The doctrine at common law touching limitations over upon a failure of heirs, or heirs of the body, &c.; and (2), The doctrine, by statute in Virginia, touching similar limitations;

W. C.

1'. The Doctrine at common law; W. C.

1. The General Doctrine, at Common Law, touching Limitations over upon a " Dying without Heirs," &c.

It is very clear that any limitation, which is only to take effect upon a failure of one's heirs, or heirs of the body, or issue, or descendants, &c., at any period whatsoever, may, in the event, be postponed beyond the prescribed term of a life or lives in being, and twenty-one years and a few months, and will therefore be void for remoteness. Thus, where lands are given by will or grant, to A and his heirs, and upon the failure of his heirs, to Z in fee, one has no difficulty in perceiving that the limitation to Z is inconsistent with the rule against perpetuities, and is invalid. The mind easily accepts the same conclusion where the limitation to Z is to take effect upon the failure of the heirs of A's body, or of A's issue, or of A's descendants, since any of those events may, in the course of nature, be postponed for many generations, or may never occur at all. But when the limitation is to A and his heirs, and if A die without heirs, then to Z in fee, it is not so plain that an indefinite fa lure of heirs is contemplated. On the contrary, one would think it the more legitimate construction (Mr. Hargrave calls it the vulgar, in contradistinction to the technical construction), that the limitation over to Z was to occur, in case A had no heirs at the time of his death; in which event it would be good, and would take effect in possession, in case it turned out that A did have no heirs at his decease. But these and similar phrases (e. g. "if he die without heirs," or "without heirs of his body," or "without issue,' or "without descendants"; or "upon his dying without heirs," &c.; or "leaving no heirs," &c.) have long been settled (unless there be other words of qualification), to refer to a general and indefinite failure of heirs, &c., at any future time. So that

every executory limitation, limited to take effect on such words, is at common law void Nor is it material in such cases how the fact actually turns out. The possibility that the event may, in point of time, exceed the limits allowed, vitiates the limitation ab initio; and also defeats all the limitations that may succeed it, although not themselves too remote. (Beauclerk v. Dormer, 2 Atk. 308; Hargr. Law Tr. 519; 2 Th. Co. Lit. 646, n (C); 3 Lom. Dig 410; Doe v. Fonnereau, 2 Dougl. 487; Thompson v. Griffith, 1 Leigh, 321; Riddick v. Cohoon, 4 Rand. 547; Bells v. Gillespie, 5 Rand. 276; Broaddus v. Turner, Id. 308; Callis v. Kemp, 11 Grat. 85; Tinsley v. Jones, 13 Grat. 289.)

The generality of the words heirs, or heirs of the body, &c., may be restrained by any other words sufficient for the purpose, to the period allowed, and then the devise over will be good. Thus, if the limitation were to A in fee simple, but if he die without heirs living at his death (or leaving no heirs behind him) to Z in fee, the failure of heirs could be tied up and restricted to the death of A, and so the limitation to Z would be good. But the word lend applied to the first taker, or a direction that the estate limited over upon the failure of issue of the first taker, shall, in the event of his leaving issue, be distributable to such issue as he may think fit, will not confine the failure of issue within the prescribed limits, and consequently will not save the subsequent limitation from being too remote, and therefore void. (3 Lom. Dig. 410-'11; Porter v. Bradley, 3 T. R. 143; Roe v. Jeffery, 7 T. R. 589; Williamson v. Ledbetter, 2 Munf. 521; Deane v. Hansford, 9 Leigh, 253; Callis v. Kemp, 11 Grat. 85.)

2k. Exceptions to the General Doctrine at common law touching Limitations over, upon a "dying without heirs," &c.; W. C.

11. Devise or Grant of a Reversion, expectant on an Estate-tail, after failure of the issue in tail.

e. g., Reversioner after an estate-tail in A, grants or devises the lands (i. e., the reversion in them), to Z in fee after failure of issue of A. This is merely the grant of the reversion, which does not fall into possession until the issue of tenant in tail is extinct, and it takes effect immediately, so that it is of course good. (2 Th. Co. Lit. 646 n (C); 3 Lom. Dig. 417-'18 & seq.)

21. Devise, in default of issue, &c., of the devisor.

This is not executory at all, but a conditional devise, to take effect at testator's death. Thus J. F.,. by his will, devised certain lands, in default of issue of his body, to P. It was adjudged a good devise, because at J. F.'s death, when it took effect, if it took effect at all, it was a devise in possession, and not executory. (3 Lom. Dig. 419; Wellington v. Wellington, 1 W. Bl. 645.)

31. Devise or grant over after failure of heirs, &c., for the life of a person in esse.

The future limitation being only for the life of a person in esse, it must necessarily take place during that life, or not all. (2 Th. Co. Lit. 646, n (C); 3 Lom. Dig. 419; Doe v. Lyde, 1 T. R. 598; Fearne's Rem. 488-'9.)

41. Devise over, upon failure of issue, after an Estatetail by Implication.

Thus, in a case of devise to R in fee, after the death of W (the testator's heir), if he should die without issue, W takes an estate-tail by implication, and the devise to R is supported as a remainder expectant, on the determination of the estate-tail. (2 Th. Co. Lit. 646, n (C); 3 Lom. Dig. 419-20; Walter v. Drew, Com. 372; Jiggetts & ux v. Davis, 1 Leigh, 368, 393, 400, &c.)

51. Limitations of Chattels, Real and Personal.

Limitations of chattels are, in general subject to the same rules and restrictions as those of freeholds. But as touching this present point, namely, the effect of limitations over and after the failure of heirs, &c., the courts have, from an early period, been more disposed, in future limitations of chattels than of freeholds, to lay hold upon slight circumstances and expressions, in order to repel the construction that an indefinite failure of heirs, &c., was contemplated, and to bring the disposition within the required compass of a life or lives in being, &c.; but the rulings upon the subject have been far from uniform. (3 Lom. Dig. 423-4 & seq.)

Limitations over of chattels, upon a dying without heirs, or heirs of the body, &c., are sometimes considered as sufficiently restricted by certain expressions, whilst other expressions will not have this effect;

W. C.

1. Expressions which restrict the dying without issue, &c., to a life or lives, &c.

If T die without issue male, in the life of H,