; UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY ^/. O^. .£^cly?^o/^MJ^eyt/2i. Clill .OV Oaiu'kuun-to . PRACTICAL TREATISE OK THE LAW OF PERPETUITY. A PRACTICAL TREATISE ON THE LAW OF PERPETUITY; OR, EEMOTENESS IN LIMITATIONS OF ESTATES: AS APPLICAHIK TO THE VARIOUS MODES OF SETTLEMENT OF PROPERTY, REAL AND PERSONAL, AND IN ITS BEARING ON TUE DIFFERENT MODIFICATIONS OF OWNERSHIP IN SUCH PROPERTY. BY WILLIAM DAVID LEWIS, OF i.intoi-n's inn, esq. Erpo ununi ilcbet esse omnibus propositum, ut cadcm sit utilitas unius-cujnsque et «nive<-. sorum : quani si ad se quisque rapiat, dissolvetur omnis linmana consortio.— OV. de Offic. Ub. ii> . LONDON: SAUNDERS AND BENNING, LAW BOOKSELLERS, (successors to J. BUTTF.RWORTH AND SOn), 43, FLEET STREET. 1843. To N DoK : t R 1 N t f: D fl Y K A y S E R AND M O D R S, i09, Fetter Lane, Fleet Street. TO THE RIGHT HONORABLE JOHN SINGLETON, BARON LYNDHURST, LORD HIGH CHANCELLOR OF GREAT BRITAIN, &c. &c. &c. My Lord, If it be the legitimate and iiiuclj-esteemed privilege of professional authorship to ofl'er the pro- ductions of the pen as an humble tribute of venera- tion for official rank, how much is the value of this privilege enhanced, when, to the advantages of exalted station, is added the superior lustre of unrivalled genius and learning. Such, my Lord, is the satisfaction I am permitted to enjoy, in prefixing your great name to this work. It were idle to attempt the enumeration of your claims upon public respect, since I cannot but remem- 671444 VI DEDICATION. ber, that it is the voice of the entire Profession over which you preside, that in your Lordship are united, vast talents, untiring assiduity and patience, and nitinners the niost dignified and engaging. I am unwilling, my Lord, to offend your delicacy, either by recounting the steps of your progress towards that summit which you long since attained, or by inquiring into the various elements of the brilliancy which now attends your occupation for the third time of the highest judicial station in the realm. Your successful pursuit of whatever the distinguished Pro- fession, of which you have long been facile princeps, could give you, both of honor and emolument, was matter of surprise to none who watched your early career ; and your title to each is attested by the unabated vigor of that intellect, which, while it smiles at sophistry, detects fraud, and which, laying bare every artifice, is unreservedly devoted alike to the elucidation of pliilosophic jurisprudence, and the unravelling of technicality and detail. In venturing now to lay before you, an inquiry into a subject of no mean importance in the Englisli Law, and, especially, in that branch of it, which enjoys the benefit of your Lordship's immediate superinten-^ DEDICATION. VII dcnce, 1 am not without apprehension of miicli inefficiency and many defects. But whether or not this humble treatise shall, in any small degree, assist the comprehension of that suhject, I have the satisfac- tion of acknowledging with gratitude, that the failure will not be attributable to any unwillingness on your Lordship's part to bestow your encouragement upon the bare effort, since it is, with your kind permission, that this volume is, with profound respect, dedicated to you by, My Lord, Your Lordship's very humble. And much obliged Servant, William D. Lewis. Lincoln's Inn, July nth, 1843. PREFACE. Although it will readily be admitted, that in a commercial country, the laws which regulate and preserve the right of free transmission of property and circulation of wealth, are of the highest importance, it must, at the same time, be conceded, that profes- sional writers have very much overlooked this branch of English jurisprudence ; so that, up to the present time, (with one inconsiderable exception) our legal literature has supplied no treatise, having for its object, the elucidation of the doctrines of Perpetuity, as they affect the transfer and settlement of pro- perty in England. Works on other subjects have, indeed, contained incidental allusions to this topic; and, occasionally, a single Section has been devoted to an inquiry into the effect and bearing of the laws against remoteness, with reference to the particular matter under the writer's consideration. But no formal attempt has hitherto been made to give a definite and intelligible outline of the general system, PREFACE. or to explain and reconcile the various judicial deci- sions on the subject. The writer of the following pages, in endea- vouring to supply the deficiency above alluded to, confidently claims the indulgence of the Profession, on the ground of an utter want of that guidance which previous treatises on the same or any similar subject would have afforded. He has had to walk alone, and to cut for himself a path through a con- fused and extensive mass of Statutes and of cases. His aim has been to develope a general and con- sistent scheme, by which apparently conflicting deci- sions may be reconciled, and a harmonious com- pleteness given to the entire subject. He does not flatter himself, that he has altogether succeeded: indeed, it would argue a very imperfect ac(]naintance with the number, extent, and complexity of the topics discussed, and a still more inadequate view of his own deficiencies, were he to claim credit for anything beyond an earnest desire to supply an acknow- ledged want in our professional libraries, and a laborious and unwearied effort to guard against errors, and illustrate the truth. Entertaining, as he does, the most profound veneration for our English real property law, he has been anxious to bring out the portion of it on which he has ventured to treat, in all its completeness and consistency, and to demonstrate the correctness and harmony of the princi])les, on which Ijoth our Parliamentary enactments and our judicial decisions have, with but fow exc('i)tions, uniformly proceeded. In aiming at PREFACE. XI this object, the author has sometimes, with much diffidence, ventured to differ in opinion from some writers, who, immediately occupied with other topics, have made incidental allusions to the subject of this treatise, and have published dicta and sentiments thereon, to which he lias not been able, at all times, to subscribe. It is not, indeed, matter of surprise, that writers, however learned, who merely glanced, occasionally and for a collateral purpose, at different portions of so extensive and difficult a subject, should be found inconclusive in the opi^ nions which they entertained and expressed. It has not been without severe and anxious scrutiny of the grounds of his own conclusions, however, that the writer has in any case dissented from those of his predecessors. Whether his views are in all cases correct, it is not for him, but for the Pro- fession, to decide ; and, whilst he awaits, with some trepidation, the decision of his judges, he derives consolation from the assurance, that he has spared neither time nor labor, in informing and maturing his judgment, ere he ventured to give publicity to his views on any branch of the subject. If, in any point, the writer may be allowed to express an hope, that the result of his exertions will be deemed commendable, it is in that of his having striven to raise the body of law discussed in this book into a consistent, uniform, and harmonious system; and he ventures to believe, that, in following up this design, strict truth has in no case been sacrificed to a fanciful symmetry of proportions. Xll PREFACE. One word as to the plan of the work : — The autlior has experienced the inconvenience of being, in this respect, almost entirely witliont a precedent. Hence, the arrangement and distribution of his subject, may, })robably, by some critics, be thought crude and faulty. The writer has taken up the various topics, in the order which, on reflection, seemed most convenient and simple ; and if, upon this point, he should un- fortunately differ with his readers, he trusts, that the copious Table of Contents, at the commencement of the volume, will furnisli both to practitioners and students, the readiest guidance to every point embraced by his work. By some, perhaps, the historical account of tlie origin and progress of our present real property system, which occupies the first nine chapters of the work, will be excepted to, as containing nothing that has not been often and better said by established elementary writers. To novelty, indeed, in this summary, the writer makes no pretensions : but he submits to the candid reader, whether the discussion of his subject would not have been exposed to the objection of abruptness, had not the more minute inquiries of the treatise been introduced, by a glance at the basis, character, and general operation of our laws of alienation and settlement. The full development of the writer's plan required him, in Chapter XV,, to introduce a topic, the dis- cussion of which he would, otherwise, have gladly deemed the peculiar pi'ovincc of Mr. Jarnuin, as well, because of the researches upon it, to which we PUEFArR. Xlll are alroiuly so nuicl» indebted, as of tliosc promised ill the concluding portion of the Treat'iae on Wills. Of course, it was, with niueli diffidence, that the writer ventured to trespass on ground ])rc-occupied by so distinguished an author ; but he was firmly convinced, that his book would be left deficient in a most important respect, had any motive induced him to pass over unnoticed such a subject, how excellent soever the previous or forthcoming elucidations. Of the many valuable treatises, from which the author has derived very material assistance in the composition of the following pages, he cannot omit ac- knowledging the greatest obligations to Mr. Fearnes, Essay on Contingent Remainders and Executory Devises ; Mr. Hargrave?, celebrated argument in the Tkellusson Causes ; that Section of Mr. Jarmans work on Wills, and of his edition of Mr. PoweWs Essay on Devises, which treats of the Rule against Perpetuities ; the second volume of Mr. Prestons Essay on Abstracts of Title ; Sir Edward Sugdens Treatise of Powers ; and Mr. Prior s useful Treatise on the construction of " Issue," &c. The writer has also been afforded valuable aid by that portion of the third Report of the Com- missioners appointed to inquire in the Law of Real Property, relating to Perpetuities ; but he has care- fully avoided introducing into the body of his work, any discussion or mention of the legislative enactments upon that subject recommended by the Commissioners. Those desirous of considering the alterations suggested, will find them in the Appendix, No. I. XIV PREFACE. The Jiutlior's plan originally embraced the subject of accumulation of income ; but lie has since found that topic so ably and luminously disposed of by Mr. John F. Hanjrave, in the recent " Treatise on the Thellusson Act," that he willingly relinquishes that portion of his task. " These are all the explanations which the writer deems it necessary to intrude upon the public. And he now, therefore, commends to the candour and indulgence of the Profession, this result of close and protracted investigation. Notwithstanding all his care and circumspection, errors both of sentiment and expression have, doubtless^ crept into his work. Learned readers will, probably, discover mistakes which have eluded his own vigilance, and mark defects which further study might have supplied. But, those inadvertencies allowed for, which scarcely any diligence would suffice altogether to exclude, the author ventures to hope, that, in the work which is now submitted to the Profession, he will be found, in the main, correctly to have elucidated the im- portant branch of tlie law under discussion, and to have contributed something, however trifling, towards supplying the deficiency so generally acknowledged. One reward, at least, the writer has already secured during the progress of his labors, — a deeper and more familiar acquaintance with that venerable body of ancient English law, whose rules and prin- ciples he has endeavoured to develope and illustrate ; which has been for many centuries the admiration of the world ; and which happily still continues to rnEFACC. XV regulate the affairs and juotect the interests of a creat commercial nation. To have taken a nearer view of such a code, and to have discerned the harmony and propriety of its principles and pro- visions, more clearly than hefore, is, of itself, abundant compensation for the time and effort ex- pended on the task ; but if, beyond this, the following pages shall be found, in any measure, to clear up the obscurities, explain the difficulties, account for the anomalies, or reconcile the apparent contradictions, which attach, more or less, to the most perfect of human institutions, the author must be abundantly satisfied with the result of his labors. To those of his friends, who have kindly assisted in the preparation of this work for the press, the author desires to record his gratitude; while he would also express the humble hope, that his exertions may not prove wholly unworthy the attention thus bestowed upon them. The writer originally contemplated a much more copious Index than that appended to the work ; but liaving found, that his design had led to the forma- tion of a most extensive Table of Contents, he has deemed it useless to supply an Index, embracing more than the principal heads or divisons of the subject. Lincoln s Inn^ Trinity Vacation, 1843. TABLE OF CONTENTS. INTRODUCTION. The right of disposal of property, heiyig the creature of political necessity, must be subject to such restrictions as are requisite for its answering the ends proposed in the institution _ . . _ 1 The exercise of this right of property i?i a manner fatal to its future enjoyment, militates against the desired end 2 Mired character of English resources, and variety in phases of its community, afford peculiar display to these priyiciples - - - - 3 In a commercial country, unrestricted right of disposal of personals, of equal importance uith that of the soil or land - - - - - 3 Ejxglish jurisprudence supplies tJie provisions found to be antecedently probable ... 4 These contained in the Rules against Perpetuities - 4 Testimony to their efficiency for the purpose designed 5 Summary of the reasons of the Rules against Perpetuities 5 CHAPTER I. A PRELIMINARY INQUIRY INTO THE CHARACTERISTIC FEATURES OF THE ENGLISH SYSTEM OF DISPOSAL OF REAL PROPERTY, AS TO ITS TRANSMISSION BY DESCENT, ALIENATION, AND SETTLEMENT. English late of rccd property strongly impregnated with the principles of the feodcd system - - 7 b XVill TABLK OF CONTENTS. Glance at the origin and progress ofthcftndal si/stem 8 Distinguishing characteristics of feodalism, in relation to the tenure of the fief the nature of the ■property which formed the substance of a fief and the connexion between lord and feodatory - . - 8 Feodal obligations disabled lord and feodatory from alien- ing toithotU mutual consent - - 9 Time and manner of introduction of feodalism into Eng- land _ - - - 9 Gradual deterioration offeods - - 10 Branches of feodal polity of greatest influence on Eng- lish system of real property - - 11 1. The Alienation offeods - - - 12 Gradual relaxation of feodal strictness i7i this respect 12 Of the mode of alienation by subinfeodation - 12 Restrictions upo7i this right by a provision in Magna Charta - - - - 13 Power of subinfeodation abolished, and general poiver of alienation conferred, by *S'ta;?//e Quia emptores terrarum 13 Extension of this poiver to tenants in capitc, and substi- tution of fines for alienation - - 14 Abolitiofi of these also, iii the reign of Charles II. 14 Of testamentary alienation under the feodal system 14 This even less conformable to principles of feodalism than alienation inter vivos - - - 14 The power sometimes exercised by custom, and over terms qfyears - - - - 15 Prohibitio7i of it not removed ivith that of alienation dur- ing life - - • • 15 Effect of the introduction of Uses, in insinuating a testa- mentary potver contrary to the ride of the Connnon late - - - - - 15 Temporary restoration of the former disabilities, by means of the Statute of Uses - - - 16 Testamentary power subsec/uently conferred by the legis- lature - - - - 16 But it did not extend to copyholds - • 17 This restriction also now removed - - 17 Some of the practical effects of feodal principles vjmn the . law of alienation - - - 17 Universal rule of tenure, feodal - - Jb TABLE OF CONTENTS. -JitK 2. Of the Rules of Inheritance and Succession under the feodallaw - - - - 18 Their peculiar features as contrasted loith those of the civil law _ . - . 19 Extent in tohich the contrast between the feodal system and the civil law, as to the Rides of hiheritance and Succession, is applicable to the English system of real property - - - - 24 Specification of those portions of the English system of real property attributable to feodal principles, with notice of other portions of a similar character recently abrogated - - - - 24 ,,,^ „ CHAPTER II. OF THE EARLY MODES OF SETTLEMENT AND ENTAIL OF REAL PROPERTY. Section I. OF PROPERTY OF FREEHOLD TENURE, BY MEANS OF CONDI- TIONAL FEES AT COMMON LAW, AND ESTATES-TAIL UNDER THE STATUTE DE DONIS CONDITIONALIBUS. Preliminary remarks - - - 27 Notice of feodal disabilities in respect to alienation and settlement - - - - . 27 Doioer and curtesy the only provisions claimable against the lord and heir - - - 28 Acquisition of a general power of cdienation introduced conditional fees - - . . 28 Their nature a7ul operation - - - 28 Inclination of the Common law favorable to the free alieyiation of property, proved by its construction of these gifts " - - - 29 Reasons of proprietors desiring a construction of such gifts ivhich would preserve the property for their families or descendants - - . og Legislative effect given to their desires by Statute dc doiiis conditionalibiis creating estates-tail - -29 b 2 XK' TABf.E OF CONTENTS. Prohahility of this enactment pi'oving unwelcome to the different classes of the community - - 30 Failure of attempts to procure a repeal of the Statttte 32 Reaso7i of this - - - - 32 Statute de donis introduced settlements of real property by way of estates-tail and remainders - - 32 Section II. OF SETTLEMENTS OF PROPEKTY OF COPYHOLD TENUKF., BY MEANS OF CONDITIONAL, FEES AND ENTAILS, UNDER CI STOMS. The question of the applicability of the Statute de donis to copyholds - - - - 32 The different opinions entertained thereon - 33 No entail in copyholds except by custom - 33 IVJiat necessary to prove a custom to entail - - 33 When an estate-tail, and when a conditional fee - 34 A custom to entail not necessarily existing in all manors admitting of the creation of estates in fee-simple - 34 Of the creation of entails in the trust of copyholds - 35 CHAPTER III. OF THE UNFETfERING OF ENTAILS. Section i. THE EVASION OF THE STATUTE DE DONIS, BY COMMON KECOVERIES AND FINES. The gradual establishment of the doctrine of a bar of the issue in tail by the descent of a recompense in value 36 And of the bar of reversions and remainders by collateral warranty without recompense - - 37 Invention of common recoveries upon the ground of a fictitious recompense to the issue - - - 37 Gladly adopted as a means of removing the grievances consequent on the Statute de donis - - 38 TABLE OF lONTENTS. XXI Of the destruction of entails by fine . . . 38 A^ot admitted as a bar to estates-tail so early as re- coveries - - - - 39 Their effect, entirely by statute . . . 39 Fines do not affect remainders and reversions - 39 Section IL THE VARIOUS MODES OF DISENTAILING COPYHOLD PROPERTT. Methods of destroying customary estates-tail, various 40 Of the effect of a fine levied by tenants in tail of copy- holds in the Court of Common Pleas - - 41 And of a similar common recovery - - 41 Section III. THE ASSURANCES SUBSTITUTED BY 3 & 4 GuL, 4, C. 74. Necessity for an alteratioti in the methods of barring estates-tail - - - - 42 Alteration effected by 'd S^ A GuL 4, c. 74 - 42 CHAPTER IV. OF THE FIRST ATTEMPTS TO RESTRICT THE LEGAL POWER OF ALIENATION, BY CONDITIONS AND LIMI- TATIONS RESTRAINING THE UNFE'riERING OF ES- TATES-TAIL. Prefatory observations - - - 44 At first doubtful, ichether conditions restraining the right of barring estates-tail tvere good - - 44 Afterivards settled, that siich right is inherent in estate- tail - - - - - 45 In ichatever form the restriction is attempted, it will be void ----- 4t) This power equally belongs to customary tenants in tail of copyhold hinds - - - - 17 Restrictions on this right void also in equity - , 47 XXU TABIJ3 OF CONTENTS. But tenant for life nia;i he debarred from joining with tenant in fail in remainder in destruction of the entail during his life . _ . _ 47 Right to execute new disentailing assnra7ices equally inseparable from estate-tail - - - 48 CHAPTER V. OF THE USES PRIOR TO THE STATUTE 27 HEN. 8, WHICH OPERATED ADVERSELY TO THE RULES OF THE COM MON LAW. Scope of the present observations with respect to Uses ------ 49 Chiff characteristic of Uses before Statute 27 Ifen. 8, — their entire disregard of the strict rules of the Common laio - - - - - 49 The different modifications of estates alloioed under the doctrine of Uses, which %cere opposed to the rules of the Common law ----- 50 CHAPTER VI. OF THE STATUTE OF USES; AND ITS EFFECT IN CREAT- ING SPRINGING, SHIFTING, AND FUTURE USES. The conversion of Uses into legal estates by Statute 27 Hen. 8, c. 10 - - - - 53 Conveyances to Uses not abolished by the Statute - 54 At first held, that no Uses loere executed by the Statute not in accordance with the rules of the Common laiv - 54 This rigor afterwards departed from - - 55 Except as to contingent remainders limited after terms for years, in reference to which the ancient rule teas pre- served - - - - 56 1. Uses limited to take effect in future, or Springing Uses - - - - 57 2. Uses limiting a fee after or upon a previous fee, or Shiftinff Uses - - - 58 TABLE OV CONTENT;*. XXUl 3. Uses limited in derogation of previous partial estates, rz/wfrt^/ty/ Shifting Uses - - 59 4. Uses creating j)Oicers of revocation and appoint- ment - - - - 60 These Uses, partli/ future or contingent, and partly shifting - - - - 60 The seisin out of which these various limitations of Uses take effect - - - - 61 And therein, of the doctrine o/" scintilla juris - 61 The question pro cticaUy of no moment - - 62 General remarks as to the operation of the Statute 27 Hen. 8, and the convenience of the estates introduced by it .... 62 Origin of Trusts in the limited construction of Statute 27 Hen. 8, by the Common latv judges - 63 The question, whether Springing and Shifting Uses may be created in surrenders of copyholds - - 64 Argumefits on lohich their inapplicability to copyhold estates is rested - - - - 65 The reasons urged in support of a contrary view - 66 The case of Boddington v. Abernethy - - 66 Observations upon Boddington v. Abernethy - 67 3lr. Serjeant Scriven'* opinion ofi the effect of Bodding- ton V. Abernethy, assailed - - - 68 Suggestion as to the probable nature of the ultimate decision of this question - - - 68 CHAPTER VII. OF THE NATURE AND ORIGIN OF EXECUTORY DEVISES AND BEQUESTS. Definition of an EcVecn to ry devise - - 72 Mr. Fearne's distribution of Executory devises - 72 And Mr. Preston's - - - 72 Limitotioti to A. and his heirs, and if he die under , twenty-one, to B. - - - 7o 3f*y TABLE OF CONTENTS. Limitation to the heirs of J. S., {dnriyig his life,) or to A., at the expiration of srrri/ i/ears - - 73 Limitation to A., for fife, and after his decease and one day, to B - - - - 73 I^imitation to A., for life, provided that on C.^s return from Rome, B. to take - - - 74 Limitation to A., B., and C, in fee, and on either marry- ing, then to such one for life only - - 74 TJmitution to A. in fee, and if B. returns from Rome, to him for life - - - - 75 Characteristic of all these limitations, — impossibility of their taking effect as remainders at Common law 75 Origin of Executory devises - - - 75 Probable, that they may have occurred under the cusfotn- ary power of devising, ivhich obtained prior to the Statutes of Wills - - - 76 Different conclusion furnished by case o/'Prior and Convent of St. Bartholomew - - - 77 Not much importance to he attached to the instances of Executory devise prior to reign of Hen. 8-77 Origin of Executory devises to be attributed to the com- bined operation of the Statutes of Uses a7id Wills 78 Conclusion, — that Springing, Shifting, and Future Uses and Executory devises are connected in their respective origins - - - - 79 First cases establishing Executory devises after Statutes of Wills - - - - 80 General character and mode of operation of Executory devises - - - - 82 Executory bequests of terms for years - - 83 Ancient inferiority of terms of years - - 83 Afteriva7-ds considered of more importance - 84 Former rule, that the bequest of a term for life teas a bequest of the whole term - - . 84 Relaxation of this rule, under cover of a distinction be- tween the bequest of the term itself, and of the use only, for life - - - - 85 Ultimate establishment of the validity of limitations of terms , after prior bequests for life, under the name of Executory bequests - - - . 85 TABLE OF CONTENTS. XXV Principle of construction, on tohich the doctHne of Execu- tory becjuest rests - - - 87 Doctrine of Executory bequests proceeds on assumption, that n term is incapable of division into particular-estate and remainder - - - - 88 Ko mode of disposition of terms by deed, similar to Executory bequest - - - 89 Mode of limiting legal remainders in terms suggested, and observed upon - - - - 90 All kinds of Executory bequests have one common feature 91 Classes of Executory bequests - - 91 1. Limitation cfter a prior gift for life - 91 2. Limitation after a prior complete legal and beneficial disposition - - 91 3. LJmitation in fiituro - - - 92 But questionable, ichetlier this be an instance of Executory bequest - - - - 92 Examination of this point - - - 92 Conclusion, — that limitations of terms in futuro, if not actually Executory bequests, involve the learnijig ap- plicable to such interests - - - 93 Of Executory bequests of chattels personal - 94 Ancient reasons against gifts of such property after aj)rior limitation for life - - - 94 Distinction taken between a gift of the chattel, and of the use only, for life - - - 95 This distinction long adhered to - - 95 But ultimately gave way to general convenience - 96 And therefore gifts of chattels, after a prior limitation for life, are good - - - - 96 The means adopted for preserving chattels personal for the tdterior legatee - - - - 96 The liability of the chattels to the acts and engagements of the legatee for life, and the remedies of the executory legatee - - - - 97 The same Executory gifts may be made of chattels per- sonal, as of terms of years - - - 9S The only mode of settlement of chattels personal by deed, is through the medium of trusts - - 99 Of chattels personal (\wx i^i^o wsu. con^umuntux - 99 XXVI TABLE OF CONTENTS. Formerly ruled, that w/iC7i such chattels were given for life, with. a?i ulterior limitation, they should be sold, and interest of produce paid to legatee for life - 99 Noio settled, that when specifically gr^ye??, the whole property vests in thejirst taker, but if included in a residuary gift, the chattels to be sold, and interest of produce paid to legatee for life - - - 100 How far this rule wotild apply to the case of an absolute gift of such chattels, subject to a limitation-over - 100 General observations as to the limitations treated of in this chapter - - - - 101 CHAPTER VIII. OF TRUSTS ANALOGOUS TO SPRINGING, SHIFUNG, AND FUTURE USES, AND EXECUTORY DEVISES AND BEQUESTS. All limitations alloivable as Springi?ig or Shifting Uses or Executory devises or bequests, may be created out of the trust or equitable interest - - 102 CHAPTER IX. COMPARATIVE VIEW OF SPRINGING, SlllFPlNG, AND FUTURE USES, AND EXECUTORY DEVISES. All limitations ichich may be created in deeds by way of Springing and Shifting Use, are equally allowable in tvills, under the doctrine of Executory devise - 105 Reasons of the nominal difference between these limita- tions - - - - - 105 Their chief resemblance consists in an entire disregard of the strict rules of the Common law - - 106 A superior favor shown to Executory devises - 106 TABLE OF CONTENTS. XXV U 1. Springing and S/iifting Uses lUfj'cr from Executcrrg devises, in that contingent limitations either after particular-estates for years, or after the determi- nation of a prior estate, and the lapse of a further period, are void as future Uses, but valid by devise - - - - 107 0)ie exception to the rule, requiring contingent Uses by ivay of remainder to conform to the rules of the Common law - - - 109 2. Springing and Shifting Uses must be raised out of a proper seisin, either created for the purpose, or already existing ; secus, as to Executory de- vises - - - - 110 3. Further distinction, if doctrine of scintilla juris be true - - - - 110 But it is not ; and why - - - 1 1 1 4. A limitation by deed, originally made as a remainder, must stand or fall, as such ; but a limitation by will intended as a remainder, may subsequently take effect as an Executory devise - - 112 5. Whenever a future limitation may take effect as a re- mainder, it cannot be construed a Springing or Shifting Use, or Executory devise - 113 6. Doubtful, whether Springing and Shifting Uses may be limited in copyhold surrenders ; but certain, that copyholds may be the subject of an Executory devise - - - - 115 7. 0?i the vesting of a Springing or Shifting Use or Executory devise not carrying the ivhole interest, all subsequent Executory limitations take place as remaindei's - - - 116 8. On the happening of the contingency on which an Executory limitation depends, it will, if possible, take place as a remainder, and stand or fall as such - - - - 117 9. All limitations subject to one which is Executory, are also Executory - - - 117 10. Limitations after an Executory limitation not carry- ing the whole interest may take effect, cither as a remainder, or as an alternate Executory limitation 1 1 7 XXVlll TABLE OF CONTENTS. But if Jirst Ex'cctttory limitation embraces tvhole in- terest, subsequent limitation cannot take effect as a remainder - - - 1 1 ^ 11. }*ersons may take jointly under an Executory limi- tation, though not all becoming capable at the same time - - - - 118 12. The influence of the old doctri^ie as to litnifations per verba de praesenti and per verba de futuro, upon Springing and Shifting Uses and Executory devises - - - - 118 13. As to the transmissibility and alienability of interests created by Executory limitations - 1 20 CHAPTER X. OF THE NECESSITY FOR A RULE FIXING LIMITS TO THE REMOTENESS OF LIMITATIONS OF SPRINGING, SHirriNG, AND FUTURE USES, AND EXECUTORY DE- VISES AND BEQUESTS, AND TRUSTS OF THE LIKE NATURE. At first, doubted, whether Springing, Shifting, and Fu- ture Uses were destructible - - 122 This uncertainty accotmted for - - 122 Eventually settled, that such limitations are indestructible 123 — By a common recovery - - - 123 — By afr?ie - - - - 125 And, therefore, by the assurances substituted for them, by 3 4-4 Gul 4, c. 74 - - - 127 — By feoffment - - - - 127 Observation as to the paucity of express authorities on these points - - - - 128 The indestructibility of future Uses the parent of the Rule against Perpetuities - - - 128 This shown from the evils of remote future interests in property - - - - 128 The feasibility of an adequate remedy - - 129 TABLE OF CONTENT?. -^^'X Early apprehension of the evils of perpetuities, or remote estates, vague - - - - 130 The authority which fixed the legality of Exectitory devises also adjudged them unbarrahle by common recpvery 131 And ever since so settled - - - 131 Integrity of the reasons urged for this indestructibility as- sailed, and doctrine rested on its trtie foundation 1 3 1 Interest of Executory devisee is barred, f he concur in the recovery - - - " 1 ^2 Executory devises indestructible by fine - 132 And by feoffment - - - l-^-^ But Executory devises eiigrafted on estates-tail are defea- sible - - - - 133 Indestructibility of Executory devises also a creative cause of the Rule against Perpetuities - - 134 Executory bequests of chattels real indestructible - 135 By merger, forfeiture, or other act, affecting interest of first taker - - - - 135 Exploded distinction as to this point, between bequest of a term to first taker, and devise of the ]{iad ->» ai(':136 But Executory interests may be released and bequeathed, and also assigned ill equity - - 13() Executory interests in chattels personal equally free from extinction - - - - 13 < Bule of indestructibility applies to all kinds of Executory bequests - - - - 137 Necessity for restrictions upon creation of Executory be- quests ' - - - 137 Equitable future interests preserved from destruction equally ivith legal litnitations - - 137 Evils of remote estates as great in Chancery as at Com- mon law - - - - 138 And remedy the same - - - 139 General remarks as to the subjects considered in this chapter - - - - 139 XXX TABLE OF CONTENTS. CHAPTER XL HISTORY AND PROGRESSIVE ESTABLISHMENT OF A RULE FOR PREVENTION OF REMOTENESS, UNDER THE NAME OF THE RULE AGAINST PERPETUITIES. Notions as to Tcmoteness in limifatiotis at first vague 140 And practically uncertain ajid confiicting - 140 i?e»iofe;2c*s o/" Executory devises and bequests - 140 C««e o/" Pells v. Brown - - - 140 Observations upon Pells v. Brown - - 141 Case of Snow V. Cutler - - - 141 These cases allowed the period of one life in being to future limitations - - - - 142 Several lives followed from the allowance of one life 142 Case o/" Goring v. BickerstafFe, establishing that conclusion as to terms of years - - - 142 Case o/ Taylor ?;. Biddal - - - 143 Seemed to sanction the period of lives in being, and twenty- one years - - - - 143 But not so treated - - - 143 Duke of 'Norfolk^ s case - - - 144 Observations upon the duke o/" Norfolk's case - 145 Case of Stephens v. Stephens - - 146 The decision in Stephens v. Stephens established the period of lives in being and twenty-one years - 147 This extended for the period of gestation, by effect of 10 6f 11 Gul. 3, c. 16 - - - 147 Case of Long v, Blackall, which allotoed a double period of gestation - - - - 148 Remoteness of Springing and Shifting Uses - 1 49 Originally, views of remoteness as to limitations of T^ses, .. equally undefined with those respecting Executory de- vises - - - - - 1m1 Bostock's frtse - - -• - lijO Case of J{oc V. Tranmer - - - lol Case of Lloyd v. Carew - - - 151 Observations upon the nature and effect of the decision in this case - - - - ],j2 TABLE OF CONTENTS. XXXI Ixarity of authorities upon remoteness of limitations by tuay of Use .... 1,33 lliis deficiency of little practical importance ; rule as to Executory devises being applicable to future Uses 153 The question, whether the term of twenty-one years was absolute, or conditional on ijifancy - - 154 Case of Beard v. Westcott - - 1 55 Case of Beugough V. Edrid^Q - - 157 Same case, sub nom. Cadell v. Palmer, in Dom. Proc. 159 Settled, that the term of twenty -one years may be absolute 160 But additional months coincide^it only tvith gestation 160 The lives forming part of the period of suspension may be those of persons not beneficially interested - 161 General remarks as to subject of this chapter - 161 CHAPTER XII. DEFINITION OF PERPETUITY. Perpetuity, not easy of definition Notice of some definitions that have been given of it Mr. Sanders' description of perpetuity A definition of perpetuity 163 163 164 164 CHAPTER XIII. BASIS AND GENERAL ANALOGY OF THE RULE AGAINST PERPETUITIES. Supposed, analogy of Perpetuity-rule to settlements by way of particular-estates and remainders - 1 65 This analogy unsustainable - - - 167 1. Because Perpetuity -rule admits of arbitrary lives 167 2. Because term of twenty-one years is absolute 167 But period of time borrowed from possible suspension of power over inheritance, under ordinary settlements 168 >^>^>^ll TABLK OF OONTF.XT.S. CHAPTER XIV. ADJUNCTS OF, OR RULES ACCESSORY TO, THE RULE AGAINST PERPETUITIES. 1. Rnle agamst Perpetifitics applicable equally to limita- tions of real and personal estate ' ' 169 2. And binding alike at law and in equity - 169 3. Rjile requires a l/niifation to be such as toill necessarily take effect within proper period - - 170 4. Limitations good or bad under the Rule, irrespectively of events subsequent to their creation - 170 5. Period of remoteness C07nputed either from date of deed, or death of testator - - '' "*^ - l7l C. Ttoerity-one years absolute the only available period, if lives in being not included - 172 7. Limited or partial estates may be created within tvhole alloioed period, as well as the fee or absolute in- terest - - - - 172 8. Rule against Perpetuities does not affect remoteness in cesser of limitations - - - 173 9. JVot necessary, that object of limitation be at once ascertained, if ascertainable %vhen gift takes effect, and within proper period - - 173 CHAPTER XV. OF THE RULE AGAINST PERPETUITIES, AS APPLICABLE TO LIMITATIONS AFTER A FAILURE OF HEIRS OR ISSUE. Lmportance of the class of limitations here brought under consideration - - - 174 Simple illustratio?i of it, a?id its connexion with Rule against Perpetuities - - - 174 Words importing death without issue mean, primarily, failure of issue at any time - - 174 Formal distribution of the subject - - 175 TABLE OF CONTENTS. XXXIII Consideration of effect of statute, 1 Vict. c. 26, post- poned - - - - - 175 Section I. SPRINGING AND SHIFTING USES AND KXKCUTORY DEVISES, TO TAKE EFFECT ON THE DEATH, AND FAILURE OF ISSUE, OF A PERSON TO WHOM THE PROPERTY IS BEFORE LIMITED, OR OF A STRANGER. Litnitation to A. and his heirs, and if B. die tcithout issue, to a - - - - - 176 Similar gift, prior interest being limited - - 176 lAmitation to A., on death of B. without issue - 176 Limitation on death without issue of prior donee or devisee - - - - 177 Gift hy will to A. in fee, with limitation-over on his death toithout heirs of his body or issue. - - 177 And therein, of the rule which curtails the fee into an estate-tail; - - - - 177 And gives effect to the ulterior limitation as a remain- der - - - - - 177 This construction exemplified in Doe d. Ellis v. Ellis 178 Same construction, where prior gift is for life, or indefi- nite - . _ . _ 179 This construction not admitted so freely in deeds - 179 Limitation by deed to A., and his heirs, tvith gift-over on his death without heirs of his body or issue of his body - ... - 180 WJiat necessary to raise the construction of implied estates- tail i7i deeds - - - - 180 Estate-tail raised by implication under devise on failure of issue of testator s heir, or to his heir, on failure of issue of another - - - - 181 But to curtail the fee of the heir into an estate-tail, there must be a clear devise oti failure of his issue, or what is eqxiivalent to it - - - 182 If no estate-tail can be raised by implication, limitations on geyieral failure of issue of prior donee or devisee, void - - - - - 184 ^^^'^ TABLE OF CONTENTS. Gift to A, in fee, and if he and li. die without issue, m- staiice of such a void liinitation - - 185 Limitdtioti 111 future after death of a person icithout issue, void, unless estate-tail can be raised binder doctrine as to heir-at-law - - - - 185 Limitations on failure of issue restricted to death of an- cestor ----- 186 T71 stances of these - - - - 186 JJviitatio7iS on a restricted faihire of issue do not tend to a perpettiity - - - - 187 And no estate-fail coil he raised by implication from them ; nor necessary that it should be - - 187 Same, if the failure of issiie be confined to lives in being - - - - - 188 Or to lives in being and twenty-one years - 188 Same rule as to restricted failure, ivhatever the character of prior gift, or although no such gift - - 189 And although failure of issue have reference to a stranger - - - - 189 The question for consideration is, whether particular limi- tations depend on an indefinite or on a restricted failure of issue - - - - 189 Subdivision L of the expressions and circumstances giving a restric- ted construction to words primarily importing an in- definite failure of issue. Inclination of law to the coustiuction of an indefinite failure, as to limitations of realty - - 190 Idiomatic interpretation different - - 191 And in wills, stronger pres?(mption in favor of that con- struction when prior gift is for life only - 191 Words, " len ring issue," refer to general failure, in limi- tations of real estate - - - 192 Cases o/* Porter v. Bradley, and Roe d. Sheers v. JefFery, cofisidered as to this jjoiiit - - - 193 And iti wills, words, " leaving children," also refer to in- definite failure of issue - - " 195 TABLE OF CONTENTS. XXXV But not in deeds - - - - 1 96 Words, " leaving children" even in wills, 7nore easily con- fined to immediate offspring, than, " leaving issue^' 196 Words primarilt/ importing generalfailure may be confined by accompanying expressions and extrinsic circumstances 1 96 1 . Charge of a sum of money, upon future limitation vesting in possession - <• - 196 Case of Doe d. Smith v. Webber - - 197 Doe d. King v. Frost - - ^ 198 iVb< necessary, that the charge be made in favor of first taker or his yiominee or representative - 199 Nor that the sum be raisable immediately on future limi" tation vesting in possession - - ^ 199 Case of Dunk v. Fanner - ^ i 200 Observations upon Dunk v. Fenner " - 201 r«ye - . 282 Effect of ivord, " leaving," occurring in limitation- over, after prior gift to children - 282 5. Gift-over, after prior limitation to children ^r life 283 6. II hen gift to children is in tail, but contingent on their surviving the patent - - - 283 7. Whe7i prior limitation to sons in tail-male and daughters in tail-general - - 283 8. Prior gift to sons in tail-male - - 284 9. Difference, in the case o/" trusts executory - 284 TABLE OF CONTENTS. 10. Prior gift to first and other sons in tail-male, and limitation on failure o/' issue-male - 284 11. Limitation-over after prior gift to eldest son in fee or in tail . . - - 284 12. JVhen previous gift to definite number of children 285 1 3. When issue taking under preceding gift must attain a .t'iv.v'iO certain age - - 286-' 14. When express gifts to issue only made in contingent events _ - - - 286 15. When there is a superadded contingency of issue dying tvithout issue _ - - 287 16. Gift-over preceding litnitatioji to issue - 287 17. When there is no preceding gift to the parent 288 18. Wheji the estate of the parent is ?iot freehold or is not of the satne nature as the ulterior estates - 288 19. When expressiofi introducing limitation-over is, "die tvithout children " - - - 289 Extent to which these rules are to be received - 290 Not yet extended to limitations in deeds - 290 . Subdivision IV. TUE OPERATION OF 7 GUL. 4 AND 1 VICT., C. 26, S. 29, UPON TESTAMENTARY LIMITATIONS OF REAL ESTATE, TO TAKE EFFECT ON A DYING WITHOUT ISSUE. Preliminary remarks - - - 291 7Gul.4:andlVict.,c.26,s.29 - - 291 Effect of new rule of construction, on devise to A. in fee, and on death of B. tvithout issue, to C. ; - 292 — to A. in fee, and on his death tvithout issue, to B. ; 292 • — to A. in fee, after the death of B. without issue ; 293 — to A. in fee, after the death of B. without issue, A. or B. being testator s heir ; - - - 293 — to A. for life, and after his death without issue, to B. ; 294 — to A., indejimtely, and after his death tvithout issue, to B. ; and, therein, of the 28th section of 1 Vict. c. 26; - - H.i^•v - 295 — to A. in fee, and if he and B. die without issue, to C. 296 Chief restdt of new rule, to remove objection of remoteness, to gifts on fadare of issue - - - 297 xli Xlii TABLE OF CONTENTS. But the person, whose issue is to fail, must be in esse at death of testator ... 297 iVo estate-tail can be raised by impUcation tinder new rule ; and xdterior gift, therefore, indestructible 298 Enactment does not extend to limitations, on failure of issue of a person deceased - - - 298 The exception in the act, of devises on failure of issue of a person having prior estate-tail, and to what cases it extends . - - - 299 The other exception, of devises referring to failure of issue entitled under a preceding gift, and inanner in which it affects doctrine of referential constriction - 30 1 General observations as to 1 Vict. c. 26, and subjects of foregoing Subdivisions ^ - - 302 Limitations on a dying imthout " heirs of the body" 304 Difference between expressions, " heirs of the body," and, " issue " - - - - 304 Whether these words of different force, when the question does not arise on an express gift to the descendants, but simply on a limitation-over - - 305 Same rule as to implication of estates-tail, as when " is- sue " is used - - - - 306 Force o/* restrictive expressions aiid circu7nstances also the same ... - ^qq And, likewise, the exception of limitations of reversions 307 And, also, the applicatio?i of the referential construction 307 1 Vict, c. 26 does not extend to limitatons on failure of *' heirs of the body" - ' • - 308 General remarks as to the weight due to these positions 308. Gift-over in wills on failure of " heirs male," same as ichen limited on default of " heirs of the body " 308 TABLE OF CONTKNTS. xlui Section II. SPRINGING AND SHIFTING USES AND KXECUTOKY DEVISES, TO TAKE EFFECT ON THE DEATH OF A PERSON WITHOUT HEIRS. Contingency of a person's death withotit heirs open to the same objection of remoteness, as that, of death loithout issue ----- 309 Whether the ancient doctrine against presuming the failure of a person's heirs, of influence at this day - 30.) Zfimitation on death of persoti 7ciihout heirs, good, xvhen ulterior taker in line of heirship to the former ; his fee being cut down to an estate-tail - - 311 Same rule, if ulterior gift be to heirs of testator, if such heirs be necessarily in line of heirship to first-faker 312 Difference in respect to limitations to half-brothers, and lineal ancestors, on a dying without heirs, before and since statute Z S,- A Gid. 4, c. 106 - - 3H Limitations to bastards and denizens and their heirs, and gifts-over on failure of their heirs - - 315 Uliether doctrine of itnjilied estates-tail tvill be applied, when person whose heirs are to fail is testator's heir, not taking by express gift - - - 313 Word, ^^ leaving," of same import, as in gifts on failure of issue - - - - ' 316 How far the rule of implication of estate-tail from con- sanguinity of tdterior taker, of force in regard to limi- tations in deeds -, - - - 316 Section III. EXECUTORY LIMITATIONS OF TERMS OF YEARS AND PERSONAL CHATTELS. TO TAKE EFFECT ON THE DEATH OF A PERSON WITHOUT ISSUE. Preliminary remarks - - - 317 All limitations of personalty depending on an indefinite failure of issue, bad, as too remote - - 318 A»d no estate can be raised by implication iujirst taker, : capable of supporting ulterior gift - • 318 xliv TABLE OF CONTENTS. ^7id no difference between cases, ichere a?i estate-tail tvoidd be raised by impUcatioji only, and %vhcre, by express gift 320 Where first gift, for life only, it is enlarged to a limitation of the absolute interest, and ulterior gift, void - 32 1 First gift remains in statu quo, tchen it passes the absohtte interest - - - _ 322 Wherever personalty limited by tvords, ivhich icoidd create estate-tail in realty, the absolute interest passes - 322 Exceptions to this nde - - _ 323 As to the enlargement of partial interests in personalty, under limitations in deeds - - . 323 Limitations of personal estate 07i a restricted failure of issue ----- 323 In such cases, no enlargement of first taker's interest, if limited for his life only - - - 324 Question to be decided is, whether particidar limitations depend on an indefinite or a restricted failure - 324 Subdivision I. OF THE EXPRESSIONS AND CIRCUMSTANCES GIVING A RE- STRICTED CONSTRUCTION TO WORDS THIlS^ARlfAf IMPORTING AN INDEFINITE FAILURE OF ISSDE,;f.>5 , <. M^„^fTpJ^ ' Inclination of law in favor of restricted construction. In regard to limitations of chattels - - 325 Ground of this - - - - 325 Word, " leaving," authorizes this construction - 326 Case o/" Forth v. Chapman, establishing this rule - 326 luferencefrom word, " leaving,'' may be rebutted by expres- sions and circumstances _ - - 327 As, first taker having a general potcer of appointment ; 327 — Realty and personalty being included in one gift ; 327 — Words contemplating failure of issue of issue - 328 But restrictive force of, "leaving," not negatived by cir- cumstance of prior gift being such as tcould create ex- press entail hi realty - - - ' 328 Expression, " dying ivithout children" - - 329 Meaning of, " di/iug without issue, '' and, " ivithout having issue,'^ same as in case of real estate - - 329 TABLE OF CONTENTS. Expressions and circumstances of restnctlve force, as re- gards realty, equally operative in respect to personalty 330 1 and 2. C/iargc of a sum of money, and limitation of life-interest only - _ . 330 3. Association of contingency personal to ancestor toilh that, of failure of his issue - - 330 Constructive change of " or" into " and" holds in limitations of personalty - - 331 4. Circumstance of limitation occurring subsequently to a gift on failure of issue clearly restricted - 331 5 and 6. Circumstances of superadded contingency of death of issue under specified age, and of failure bei?ig of a testator s oum issue - - 331 7. Circumstance of gift to a person, " if then living," Sfc. 332 Case of Brooke v. Taylor - - 332 Garratt v. Cockerell - - 332 Effect and extent of the decision in Garratt v. Cockerell 335 Words, " then living,'^ must have reference to the pe- riod of first taker's decease, and not to event of failure of issue generally - - 336 8. Bequest of chattels to survivors of a class of persons 337 Case of Hughes v. Sayer - - 337 Nicholls V. Skinner - - 338 Atkinson v. Hutchinson - - 339 Barlow r. Salter - - 340 Massey v. Hudson - - 341 Ranelagh v. Ranelagh - - 342 General restdt of foregoing authorities on this poiiit 343 Words of representation superadded to gift to sur- vivors negative any inference in favor of restrictive construction _ - - 344 If gift to survivors has the effect of restricting the failure, subsequent limitation, on failure of issue of all members of the class, subject to same construc- tion . . - _ 344 9. Circumstance of ulterior limitation being introduced by words, " after his decease," Sfc. - 344 Btit, " after him," not attended by any restrictive force . - - _ 345 10. Circumstance of limitation on failure of issue being preceded by power of ajypointmeyit or distribution among issue, given to first taker - - 3-J6 xIy xlvi TABLE OF CONTENTS. Grounds of restrictive construction from this circum- stance .... 347 Power must be understood to be confined to issue livhuj at ancestor s decease - - 347 Case of Target v. Gaunt - - - 3^7 Hockley v. Mawbey - - 348 Lord Brougham's dictum in Campbell v. Harding 349 Case of Leeming v. Sherratt - - 349 Observations on these cases - *■ 350 Necessary, that power should raise an implied gift to issue living at ancestor s death - - 350 Case o/' Simmons v. Simmons, exemplifying this 351 Bruce v. Bainbridge - - 351 Observations vpon Bruce v. Bainbridge - 352 Doctrine seemingly applicable to limitations of realty, as well as of personalty - - 354 iiule does not apply to cases of express limitations to issue - - - - 354 11. Circumstance of intention to restrict first taker to a life-interest - - - - 355 Case of Smith v. Clever - - - 355 Observations tipo7i Smith v. Clever - - 355 Case of Ranelagh v. Ranelagh - - 356 Extent of present infiuence of this doctrine " 357 12. Cose o/' Keily u. Fowler - - - 357 Nature of the decision in Keily v. Fowler - 358 13. Extrinsic circumstances, without concurring expres- sion or circumstance in the instrument, of no force 360 Instance of this - - •* 361 14. Adverbs ^^ then" and ^^ ivhen'^ insufficient - 362 Authorities showing this - * ^ 362 " Immediately thereupon," also of 710 force - 864 15. ''^ If any," in limitation to issue, preceding gift-over, not sufficient to support restrictive construction 364 Case of Elton v. Eason - - - 364 General observations as to subject of this Subdivision 365 As to applicability of above rules and distinctions to limitations in deeds - - ' ' 366 TABLE OF CX)NTENT3. xlvii Subdivision IT. OF THE EXCEPTIONS TO THE RULE, INVALIDATING LIMITATIONS OF PERSONALTY, TO TAKE EFFECT ON AN INDEFINITE FAILURE OF ISSUE. No exception, analogous to that of devise of reversion on estate-tail _ - - - 367 And none, similor to that of interests eocpectant on inde- structible base-fee - - . 367 1. Exception, zvhen subject is a term determinable on lives . - - . 367 2. Limitations of chattels tvith a double aspect - 367 Exemplification of this doctrine - - 368 Reaso7i for particular denomination of the doctrine 369 Case of Stanley v. Leigh - - - 369 Murray v. Addenbrooke * - 370 To be valid, limitation taking effect under this rule must he such as to vest within limits of perpetuity - 370 3. Bequest 07i failure of issue of a person, and death of that per somcithout issue, in testator s lifetime 371 Same ride applies to devises governed by 1 Vict. c. 2Q 372 Subdivision III. LIMITATIONS OF PERSONALTY ON A DYING WITHOtiT ISStJfi, OCCURRING SUBSEQUENTLY TO GIFTS TO CHILDREN OR OTHER ISSUE. Nature arid operation of referential construction 373 Case of Morse v. Marquis of Ormonde - ■» 374 Trickey v. Trickey . ^ - 375 EUicombe v. Gompertz - - 376 Carter v. Bentall '. . - 377 But referential construction does not obtain, if ati appar- ent intention, that gift-over should not take effect, till failure of all the issue of first taker - - 378 xlviii TABLE OF CONTENTS. If this construction rebutted, first taher has absolute in- terest, expectant on preceding limitations, by ana- logy to the rtde in case of realty - - 378 When preceding limitation embraces all issue of first taker, no enlargement of his interest, by force of gift- over - - - - - 379 hiclination of the Courts favorable to referential construc- tion, lolien subject-matter is personalty - 379 E. G. : the rule applied, in case of a gift to eldest son of first taker, and limitation-over, on failure of issue of the latter ; - - - - 380 — and also in case of gift-over on failure of issue, ivhen vesting of interests of the issue contingent on their at- taining a certain age ; - - - 381 — also (semble)wAen preceding gift to definite number of childre?i - - - - 381 Mule will not be applied, when gift to issue, for life only 381 Wherever doctrine applicable, in case of realty, it will hold, in respect to similar limitations of personalty 382 Rule assumes, that issue take by purchase under preceding gift - - - - - 382 Connexion of the question, whether issue take as pur- chasers, with the present inquiry - - 382 " Issue," and, " heirs of the body," primarily, ivords of limitation _ - - - 384 In what cases, " issue," and, " heirs of the body," read as words of purchase _ - - 384 Questio7i of the application of the referential construction does not arise, when gift-over introduced by, " in default of such issue" _ . - - 394 Case, tvhere these tvords were held to give effect to ul- terior limitation, although, " issue," in preceding gift, operated as a ivord of limitation - - 39.5 liule not yet extended to limitations in deeds - 395 TABLE OF CONTENTS. xUx Subdivision IV. THE OPERATION OF 7 GUL. 4 AND 1 VICT. C. 26, 8. 29, UPON TESTAMENTARY LIMITATIONS OF PERSONAL ESTATE, TO TAKE EFFECT ON A DYING WITHOOT ISSUE. Introductory observations - - - 396 Nature of recent enactment - - - 396 Effect of new rule of construction, on bequest to A., and on his death, or death of another, without issue, over ; 397 — to A., after the death of B. without issue ; - 397 — to A. for life, and after his death without issue, to B. 397 Wliether, in such a case, the issue take any interest, by implicatioH , - - 398 Effect of new law on bequest to A., and on death of A. and B. without issue, to C. ; - - 401 And where preceding bequest to ancestor, in words which would create estate-tail in realty - - 402 As to effect of " leaving," where it occurs in gift-over, after express limitation to ancestor and his issue - 403 New rule does not apply to case of a bequest on failure of issue of deceased person - - - 404 Effect of new rule on application of referential construction 404 General observations, as to operation of recent enactment upon gifts of personalty - - - 404 ffliere estate-fail raised in realty, ufider gift-over on failure of " heirs," first taker has absolute interest in personalty - - - _ 405 Authorities proving this - . _ 4O0 Whether " heirs" to be interpreted in the sense of next of kin, ivheti subject-matter is personalty - - 406 Limitations on failure of ^^ heirs" or ^^ heirs of the body," not affected by 1 Vict. c. 26 - - 407 TABLE OF t'ONTENTS. CHAPTER XVI. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS REMAINDERS, AND LIMITATIONS IN THE NATURE OF REMAINDERS; AND THEREIN, OF THE DOCTRINE OF CY-PRES. Sometimes supposed, that remainders are not within the scope of the laws against remoteness ; and xohy - 408 Remainders may he too remote, because particular-estates may be limited to unborn persons - - 409 Mature of rule, that remainder must vest at determination of particidar-estate - - - - 409 Limitations after gifts to unborn persons clearly re- mainders - - - - 412 Mr. Fearne'*, 3Ir. Preston'.*, and Mr. Jarman's accord- ance ivith the doctrine, that remainders may be too remote - - - - 412 C«S6; o/" Hopkins t', Hopkins - - - 413 Seaward v. Willock - - - 415 The circumstance q/" contingent remainders being destruc- tible by acts affecting prior particular-estate, no argu- ment against their tendency to a perpetuity - 416 Remainder not to vest until decease of unbor?i tenant for life, void - - - - - 417 Remainder to issue of unborn tenant for life, void, if the time of their coming in esse be not restricted - 419 But if the birth of the remoter issue be limited to happen with the legal period, the remainder is good - 420 A remainder to an xtnhorn child of a person in esse, post- poned to limitations to another unborn child and his issue, is too remote - - - 421 But if ulterior remainder be restricted to proper period, it is good - - - - 42 1 Remainder expectant on a particular-estate for life toper- sons in esse, rnniiot he too remote - - 422 Lfe-estates may be limited in succession to unborn tenants for life, children of a person in esse - - 422 TABLE OF CONTENTS. A/id that, though the vesting of each life-estate be post- poned to the time of successive takers attaining majority 423 Remainder may be limited to the issue of unborn person, if latter take estate-tail . - - 424 Remainder void, if made to an unascertained object at age above majority, though there be a person existing, tvho may answer description, and actually does so 424 The difference between legal arid equitable remainders, in their relation to the laws against remoteness, - 425 OF THE DOCTRINE OF (^Y-PRES. Nature of this doctrine . . . 426 Case of Humberston v. Humberston - - 427 Chapman d. Oliver v. Brown - - 427 Nicholl V. Nicholl - - - 428 Robinson f. Hardcastle - - 429 Pitt V. Jackson - - - 429 Doctrine presumes an intention, to create a succession of interests, resembling descent of estate-tail - 430 Cases of Pitt v. Jackson, a?id Mogg v. Mogg, in reference to this point - - - - 431 There must be a general intention to provide for all the issue, and not merely a single intent to create a succes- sion of void estates . _ - 433 Mere circumstance ofititerests of successive takers being ex- pressly for life, not sufficient to rebut gy-pr^s construction 434 Cy-pres construction applied in case of Executory trusts, although limitations seemingly designed to create a per- petuity only - _ - - 435 Cy-pres doctrine not extended to limitations of personalty 435 Case of Monkhouse v. Monkhouse considered, as to this point ----- 436 But rule applied, in case of conjoint disposition of real and personal estate - - - 437 Case o/' Mogg v. Mogg considered, as to this point 438 Jf Cy-pres doctrine not applicable, gift to issue may be treated as obliterated, and Jirst-taker have absolute interest, by force of gift-over - - 439 d 2 lil TABLE OF CONTENTS. Construction o/'^y-pres not applied to limitations in deeds 440 Person or class to he made teyiant or tenants in tail must have a freehold life-interest - - - 441 JVif/i what class of issue, the estate-tail is to commence 441 Case of Wollen v. Andrewes - - 443 Mortimer v. West - . - 443 •■ Brooke r. Turner - - _ 445 Trash v. Wood - - - 446 •: Goodtitle d. Cross v. Woodhull - - 447 Observations zipon Goodtitle d. Cross v. Woodhull - 448 Cf/se o/'Humberston t'. Ilumberston - - 450 Observations upon Humberston v. Humberston - 450 Case o/'Vander plank v. King - - - 452 Doctrine of (}y-pr 6s not to be extended t - 453 CHAPTER XVII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS TO CLASSES OR ASSOCIATIONS OF PERSONS. Illustration of the species of limitations to be considered 455 Limitation to children of perso?i in esse, to vest at age greater than twenty-one, bad - - 456 Same, although a person in existence associated with the unascertained class - _ _ 457 Limitatio7i to children of deceased person at age greater than twenty-one, good - _ _ 457 Same, if limitation to children, expressly named, of a per- son in esse - - - - 453 Limitation to issue of unborn children, void - 458 Secus; if birth of remoter issue provided to happen within prescribed period . _ _ 459 Not necessari/, to limit time of birth of remoter issue, in case of gift by testator to his otvn grandchildren - 459 Sed alitcr ; iii case of deeds - - - 460 Of no importance, whether children take interests, or not 460 Same rules applicable to limitations to other classes of persons - - - i 461 TABLE OF CONTIiNTS. liii Where one gift-over, applicable to two limitations to distinct classes, one of which is good, and the other, void, it is bad only, as to objects of prior remote gift - 461 CHAPTER XVIIt. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS TO PERSONS ANSWERING A CERTAIN DESCRIPTION, OR POSSESSING A SPECIFIED QUALI^ FICATION. Remarks as to natttre of gifts here considered - 464 Case (/Procter v. bishop of Bath and Wells : — devise to unborn person when in Holy Orders - - 465 Observations upon Procter v. bishop of Bath and Wells 465 Case of Tollemache v. earl of Coventry : — bequest to per-^ sons from time to time succeeding to a barony - 466 Case of Mackworth v. Hinxman : — bequest to persons, on whom a baronetcy should from time to time devolve, for life - ■• - - - 470 Case of Bacon v. Proctor ; — devise of rents to the person for the time being succeeding to dignity of premier baronet - - - - 471 Observations upon Bacon t. Proctot - - 472 Case of Kerr v. lord Dungannon : — bequest to first person taking by descent as heir male xoho shoidd attain twenty-one - - - - 4/3 Case of Liley v. Hay : — devise of rents, to be distributed yearly among certain families '■ - 474 Limitations of rents to persons from time to time in posses- sion of certai?i property - - - 4/5 Case of Charity Commissioners v. baroness De Clifford 476 General observations as to this class of gifts - 476 liv TABLE OF CONTENTS. CHAPTER XIX. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS UPON EVENTS OF INDEFINITE OCCUR- RENCE. Limitations on events which may happen at any period of time, too remote - - - - 478 nhtstrations of this kind of void limitations - 478 Case o/" Charity Commissioners v. baroness De Clifford : — gift-over on neglecting to protect charities - 4/9 TJmitation on fam'dy hocoming extinct - - 480 Gift-over on charity-trustees not peiforming trusts - 480 CHAPTER XX. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS POWERS OF APPOINTMENT, AND LIMITATIONS IN PURSUANCE OF THEM. Reasons of the applicability of the laws against remoteness, to Poivers, and appointme7its under them - 482 Exercises of general powers, subject only to same restric- tio?is, as alietiafion by tenants in fee - 483 Limitations under particu\ar powers must be such as would have been valid, at time of creation of latter - 484 Pmvers, the object of which is to create a perpetuity, void 485 Case of Spencer v. duhc of Marlborough - 486 Observations upon Spencer v. duke of Marlborough 486 General Power, created by exercise of previous general Power, not void, as tending to a perpetuity - 487 Not necessary, to restrict Powers to valid objects of gift 487 No estate can be limited under a Power which would be too remote if originally created instead of the Power 488 But, if vesting of interests created by ajrpointment ex- pressly restricted to proper period, it is good - 489 TABLE OF CONTENTS. Iv /Ippoiiitment to child oj child unborn at time of citation of Power, bad, although grandchild specifi- cally named in appointment - - - 491 Appointment bad, also, when made to child of child un- born at creation of Power, although latter be dead at date of appointment _ . _ 492 TVhen Power created by will, computation made from death of testator ; when, by deed, from its date - 493 Appointment, embracing objects too remote, wholly void, if shares of valid appointees rendered uncertain by excess ----- 493 Secus ; if excess of appointment can be ascertained - 494 Where limitations are by way of particular -estate and re- mainder, remainder may be void, and particular- estate, good - - - _ 496 Limitation i?i appointment, postponed to one which is too remote, also void - . , 495 But wJiere there are alternative gifts, one being good, and the other, void, valid gift may take effect, if bad 07ie fails ----- 497 /» case of remote restrictions on prior valid appointment, former rejected, and latter stands - - 497 When Power confined to persons tvithin prescribed limits, not necessary to restrict appointmeiH to such objects, 498 CHAPTER XXL OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS ON ALTERNATIVE CONTINGENCIES, OR CONTINGENCIES WITH A DOUBLE ASPECT. Limitation on alternative events, one of which is good, will take effect, if that happens - • - 501 Illustrations of the doctrine - - - 501 Nature and operation of the ride - - 503 Authorities establishing it - - - 503 Necessary, that valid and remote contingencies, should he distinct, or that that expressed, be separable - 506 Mr. Poweir.f reasoning on this point - • 507 Ivi TABLE OF CONTENTS. Dist'mction ttpon this point, as to one instance of limita- tion with a double aspect ^ - - 509 CHAPTER XXII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS, WHOSE POSSESSORY ENJOYMENT IS POSTPONED BEYOND THE PERIOD OF VESTING. Rule against Perpetuities has reference to the vesting of limitations - - - •" '^'* And gift not void, therefore, because its possessory enjoy- ment is deferred to too remote d period- - 511 Invalid clause of postponement of possession, rejected 512 Case o/" Farmer r. Francis - - - 512 Murray v. Addenbrooke - - 513 Of importance, to decide, whether vesting is postponed, or enjoyment only - - - - oI3 General rules as to the vesting of Irmifations - 514 These rules not departed from, because conseqttence may be the invalidity of a gift, on ground of remoteness 517 Crt.se o/* Leake V. Robinson - - - 518 Bull V. Pritchard - - - 518 Palmer v. Holford - - - 519 Vawdry v. Geddes - - - 519 Judd V. Judd - - - 520 Porter v. Fox - - - 521 Dodd V. Wake - - - 521 • Newman v. Newman - - - 521 Ring r. Ilardwicke - - - 521 Griffith V. Blunt - - - 523 Dodson V. Hay . - - 524 Montgomery v. Woodley - - 524 Bingley v. Broadhead - - - 524 Kevern v. Williams - - - 525 Bland V. W^iUiams - - - 525 Blease v. Burgh . - - 526 Doe. d. Dolley v. Ward - - 52& The extent to which the possession is accelerated, in the eases under consideration - - - 52& TABLE OF CONTENTS. CHAPTER XXIII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS VESTED LIMITATIONS, MADE SUBJECT TO SUBSE- QUENT DIVESTING Girrs. Remarks as to limitations divesting prior valid gifts, and their connexion ivith the perpetuity -rule - 531 Rule is, that prior limitation becomes absolute, and remote divesti7ig gift is void - . - 532 And same, although party taking under first gift, die before period or event contemplated by divesting clause 532 If divesting gift not too remote, it will take effect - 533 Remark as to a common fallacy upo7i this subject - 533 Remote divesting limitatioti yfhoMy fails / not void, merely as to excess _ . - - SSS' CHAPTER XXIV. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMITATIONS, ABSOLUTE IN THE FIRST INSTANCE, WITH SUBSEQUENT QUALIFYING AND RESTRICTING GIFTS ENGRAFTED UPON THEM. Illustration of class of gifts here noticed - 534 In these cases, remote modifying gifts rejected " 535 Case of Carver v. Bowles - ^ - 535 Observations upon Carver v. Bowles - - 535 Case of Kampf V. Jones _ - - 536 ■ ■ ' ■ Ring V. Hardwick - - - 537 Wells V. Maling - - - 538 Saumarez v. Sauroarez - - 538 Doctrine obtains, notwithstanding ordinary rule, in favor of latter of two inconsistent testamentary gifts - 540 Similarity of this class of limitations to that considered in last chapter _ - _ 540 Whether doctrine applicable to limitations in deeds 540 Ivii IVUl TABLE OF CONTENTS. CIHAPTER XXV. (3F THE RULE AGAINST PERPETUITIES, AS IT AFFECTS THE LIMITATION AND EXERCISE OF POWERS OF SALE, EXCHANGE, PARTITION, LEASING, AND THE LIKE. Poxcers of sale, Sfc, in their own nature, xoitldn the opera- tion of the laivs against remoteness - - 541 Any exemption, therefore, groxcnded on extrinsic con- siderations - - - - 541 Practice long conducted on assumption of their exemp- tion - - - - - 541 Doubt of legality of unrestricted Poivers originated in the decision in Ware v. Polhill - - 542 Nature of the decision in Ware v. Polhill - 543 Opinions of text-xvriters favorable to unrestricted Powers 544 Questionable arguments sometimes urged for validity of unrestricted Powers . _ - 547 Authorities upon the subject of unlimited Powers 548 Cases on indefinite Powers of sale, S^c., reviewed 552 Powers not extetided to representatives of donee {if living), cannot be too remote _ . - 554 Powers requiring consent of beneficial owners, valid 555 Unrestricted Poiver, limited in conveyance in fee, and, not requiring consent of beneficial owner, void, upon prin- ciple ----- 555 Actual exercise of indefinite Poxcers of sale, for raising fund for payment of debts and legacies, or for distri- bution, SfC, may be supported - - 557 Naked powers not supportable upon any gi-oimds of convenience _ - - _ 559 Practical objection, in reference to perpetuity-period, it being impracticable to select any lives, to form a por- tion of it - - - - 559 Poioers of sale in mortgages not open to any objection of remoteness . . . . 5Q0 Powers declared on limitations in strict settlement, re- quiring consent of beneficial owners, entirely valid 5G I TABLE OF CONTENTS. lix Powers declared on limitations i?i st7-ict settlement, thotiyh not requiring consent, valid as to life-estates and estates- tail ----- 562 If no consent reqxdred during minorities of tenants in tail, potoers equally good . _ . 5(53 Difference as to destructibility of power, during con- titiuance of life-estate, when consent of beneficial owner is, and when it is not required - - 563 Powers limited to pei'sons rmhorn open to objection of re- moteness, although not extended to their representatives 564 Poivers of determining terms, 8fc., on remote contingent events - - . . 555 As to remoteness of powers, in reference to terms created in marriage and other settlements - - 566 General observations as to unlimited special Powers 569 CHAPTER XXVL OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS THE IMPLICATION OF ESTATES. No legal implication can be made inconsistent with the Rule against Perpetuities - - - 570 Case o/" Chapman d. Oliver v. Brown - - 57 J Present notice confined to implication of estates violating laws against remoteness - - - 573 CHAPTER XXVn. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS EXECUTORY TRUSTS. Rides of law and equity the same, in reference to remote- ness, when limitatio?is complete - - 574 Biit if limitations executory only, equity ivill modify them with regard to laws against remoteness - 574 Ix TABLE OF COXTKNTS. Case of Bankes v. Le Despencer - - 576 Observations upon Bankes v. Le Despencer - 579 Case of countess of Lincoln v. duke of Newcastle 579 Executory trusts of personalty by reference to previous limitations of realty in strict settlemejit - 580 Ca*c o/* Woolmore r. Burrows - - 581 lord Dorchester v. earl of Effingham - 583 If direct object of executory trust be creation of a jierpe- tuity, it will not be assisted - - 584 Words, " as far as rides of law and equity will permit^'' not sufficient to render a trust executory - 585 Where Trusts executory created by deed, lives must be those of persons living at its date - - 585 Trusts for purchasing property, to be settled to uses of existing settlement, person then in possession being re- stricted to a life interest, ivith remainders - 586 Case of Tregonwell v. Sydenham - - 587 A branch of the decision in Mogg v. Mogg considered, in reference to subject of this Chapter - 590 CHAPTER XXVIIL OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS' TRUSTS FOR ACCUiMULATION OF INCOME. Limits to accumulation and vesting of future estates, for- merly the same - - - - 592 Allowed period of accumulation now regtdated by 39 Sf 40 Geo. 3, c. 98 ... 592 Trusts of accumulation good pro tanto under this act, if within perpetuity -boundary - - 593 But if directions for accumulation extend to period beyond limits of perpetuity, they are wholly void - 593 Case of lord Southampton v. marquis of Yi.exX^ordi 594 Marshall v. Holloway - 594 Palmer v. Holford - - 595 Vawdry v. Gedde$ .< - - 595 TABLE OF CONTENTS. Ixi Case of Curtis v. Lukin - - - 596 Griffith V. Blunt - - - 596 Effect of remoteness in trust of accumulation upon limi- tations of property subject to it - - 596 CHAPTER XXIX. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS THE GRANT AND RESERVATION OF RENTS, CONDI- TIONS, RIGHTS OF ENTRY, INTERESSE TERMINI. EASEMENTS, AND OTHER COMMON LAW INTERESTS. The doubt as to the appUcability of the laws against re- moteness to Common law interests - - 598 Some of these interests in their own nature obstructive of free circulation of property : but legally sanctioned and unobjectio7iable - - - - 599 Rents, ^-c, may be limited to commence in futuro 600 Of the Common law rule against a possibility upon a possibility - - - - 601 Nature of this doctrine, and its present weight - 602 Whether the Common law permitted the gra7it of rents, ^•c, to persons unborn _ - - 603 Rents, Sfc, m,ight be granted at Common law to persons unborn - , - - 607 JEven if grafit of rents, SfC, to persons xtnborn, void at Common law, yet Rule against remoteness not thereby excluded . _ . - 607 No ride of Common law, rendering unnecessary provi- sions against remoteness - - - 608 Operation of Rule against Perpetuities upon grants of rents ^ - ' - 611 Proper mode of making a rent the subject of limitations in strict settlement - - - - 611 Rents granted to secure performance of covenants not to hiild, S^c. - - ' - 612 ^limitations of the interesse termini, as affected by the per- petuity-nde - - - - 613 0/" conditions, with reference to Rule against remoteness 614 Ixii TAULli OF CONTENTS. Implied conditions - - - 615 Express conditiojis - - - 616 Conditions on conveyances in fee, as to takiny and using name and arms - - - - 616 Co7iditions determining estates-tail - - 618 Operation of perpetuity-rule upon rights of entry and re- entry _ _ - . 613 Grants of easements loith reference to Rule against Per- petuities - - - - 619 Provisions for cesser of rents, ^c, ?mist conform to limits of perpetuity ... 620 Remark as to the want of authority for these rides 620 The possibility of reverter remaining in grantor and his heirs, on grants in fee to corporations - 621 CHAPTER XXX. OF OTHER LIMITATIONS AFFECTED BY THE RULE AGAINST PERPETUITIES. Section I. LIMITATIONS AFTER OR SUBJECT TO A TRUST OR DIRECTION FOR PAYMENT OF DEBTS. When chattel interests only created for raising fund to pay debts, objection of remoteness cannot apply 622 Question is, whether limitations after trusts for payment of debts, embracing fee, pass valid legal executory estates ... - 623 Limitations in qiiestion, so considered, void as too remote 624 Difference between limitations depending on general satis- faction of debts, and those to arise on other contin- gencies _ . _ . 624 Whether circumstance of debts being ascertained and specified affects the question - - 625 Case (f Bagslunv v. Spencer ... 627 Strong V. Teatt - - - 628 TABLE OF CONTENTS. Ixill Case of Jones ik Say and Seal - - f)30 The question, whether a devise in fee for payment of debts can be construed as a charge merely upon the property, considered _ - _ 632 The doctrine, that a devise in fee for payment of debts is only a charge, insupportable - - 635 Whether limitations in question can be considered as gifts with double contingencies - - - 635 This doctrine, if sustainable, an insufficient answer to ob- jection of remoteness of limitations after devises in fee for payment of debts ... gSQ Circumstance of realty being rendered legally liable to all debts, tends to assist limitatiotis subsequent to provisions for their satisfaction _ _ . 537 But this no sufficient argument against remoteness of such limitations, at law _ - - 637 Incliiiation of Courts probably favorable to limitations in question .... 638 Same rules applicable to limitations in deeds, after pro- visions for paymetit of debts embracing fee - 638 Section II. LIMITATIONS AFTER OR SUBJECT TO A TRUST OF ACCUMULATION OF INCOME FOR RENEWAL OF UNEXPIRED LEASES. If unexpired terms of leases not greater than twenty-one years, these limitations not too remote - - 639 But if unexpired portion of leases exceed legal limits, limitations after trusts of accunmlation for their re- newal, too remote _ - . 639 If a right will certainly exist in some person interested in lease to be renewed, to put an end to accunmlation, within proper j)eriod, limitations i?i question good 639 Circumstance of lease being limited for life, and possibility of continuance of sxich life beyond the lease, not suffi- cient to support these limitations - - - 640 Case of Curtis v. Lukin ... 640 If expiration of leases properly restricted, no objection to these limitations - - - - 642 Ixiv TABLE OF CONTENTS. If trust of accximulation merely engrafted on limitations otherwise valid, latter not affected - - 643 Periods from which computation of unexpired term must commence , , - - 643 Section III, LIMITATIONS OP PERSONAL CHATTELS TO GO OR DESCEND AS HEIR-LOOMS, WITH REAL ESTATE ENTAILED IN STRICT SET- TLEMENT. Explanation as to nature of these limitations - 643 Intention generally is, that chattels shall not vest abso- lutely in tenant in tail dyi7ig under twenty-one toithout issue ----- 644 Effect of, " as far as the rides of law and equity will per- mit,'' for this purpose _ - - 645 Express provisions, that chattels shall not vest absolutely in tenant in tail, unless he attain twenty-one, or die under that age leaving issue - - 645 Limitations of chattels to go as heir-looms, which are partially exposed to objection of remoteness - 647 Case of ToUemache v. Coventry - - 647 Observations upon ToUemache v, Coventry - 648 Case of Ibbetson v. Ibbetson - - - 649 Observations upon Ibbetson v. Ibbetson - - 651 Case of TrafFord v. TrafFord - - - 652 Observations upon TrafFord v. TrafFord - - 653 luord Eldon'5 strictures upon TrafFord t;. TrafFord - 654 The doctrine, that limitations of chattels to successive takers of realty, may be good as to all persons in the line, prior to whom there could not be objects too remote, examined and dissented from - - 654 TABLE OF CONTEXT.- CHAPTER XXXL OF THE CONSEQUENCES OF REMOTENESS IN LIMITA- TIONS, UNDER THE RULE AGAINST PERPETUITIES. JRemote?iess in a limitation as it affects prior gifts - 657 Remoteness in a limitation, in reference to the objects of it 659 Effects of remoteness in a limitation upon posterior gifts 660 If ulterior limitation properly restricted, it is not affected by circumstance of preceding gift being too remote 661 CHAPTER XXXn. OF LIMITATIONS EXEMPT FROM THE OPERATION OF THE RULE AGAINST PERPETUITIES. 1. Limitations after estates-tail generally not open to ob- jection of remoteness - - - 663 Illustration of doctrine, that limitations after estates-tail cannot be too remote _ _ - 665 Ride equally applicable to gifts after future estates-tail to vest within legal period _ - - QQQ Reference to doctrine allowing devises of reversions ex- pectant on estates-tail - - - 668 If term of years precedent to estate-tail, but trusts thereof to arise on its determination, latter void for remoteiiess 668 When executory limitation not connected immediately with determination of estate-tail, it is not protected by rule under consideration _ . - 669 Extent to which this doctrine invalidates remote executory limitations after estates-tail - 672 Unrestricted Powers, to be exercised %oith consent of tenant in tail, not void for remoteness, upon sa7ne principle as that validating indefinite executory gifts - 672 2. Limitations of interests of confined duration - 673 Mr. Butler'i reasoning on this subject - - 673 Ixv Ixvi TABLE OF CONTENTS. The authorities not uniform iqwn the point - 675 Detail of these _ - - . 675 Decided cases, on the whole, favor able to the doctrine 680 Opinions of text-tcriters on the sid)ject - - 680 The difficulty presented in the case of leases, by the tenant- right of renewal - - - - 681 How far question affected hy general similarity of construc- tion of gfts of fee-simple estates, and of estates pur autre vie . - _ . 685 No settled rule yet arrived at - - - 686 Terms not determinable tvith lives not within scope of the doctrine, if for more than twenty-one years - 687 3. Alienation in tnortmain - - - 687 Always discouraged - - - 687 Allowed under license from the Croivn - - 688 Tendency of such alienations to create a pterpetuity - 688 Alienation to charitable uses, of a similar character 689 Necessity for restraint upon such alienations - 689 This effected by 9 Geo. 2, c. 36 - ' - 690 Spirit of this enactment aided by the judicature - 691 It is confined to England - - - 691 Questionable character of its preseyit policy - 692 Charitable uses, what - . - 692 Of settlements of advoivsoyis, in trust to present incumbents, as vacancies occur, such incumbents being selected by the trustees, or appoi?ited by parishioners - 694 By these provisions, advoivsons perpetually locked up 694 Whether good, as charitable uses - - 695 AdvowsoHS may be limited in pios usus - - 695 Nature of property in advowsons considered - 695 Trusts in question not sustainable as gifts to charitable uses ----- 695 Nor analogous to any of the charitable objects specified in 43 Eliz. - - - - 696 Opinions of Lords Hardwicke and Eldon agreeable to this conclusion - - - - 697 And, apparently, also, that of Sir J. L. Knight Bruce, V. C. - - - - 699 Uncertain testimony of other authorities - - 700 But general result decidedly nnj'avorable to charitable character of these trusts - - - 701 TABLK OF CONTENTS. IxVll Advoicsons legally recognized as subjects of commercial dealing, and within scope of laws against perpetuities 702 And, prima, facie, therefore, trusts in question invalid, as creating a perpetuity _ _ - 703 The provisions 7iot judicially sanctioned, as to this point 703 Considerations tending to diminish or remove objections to these settlements of advowsons in perpetuity - 705 But their validity still highly questionable - 707 Special exemptions from rigor of laws against grants in mortmain or to charitable uses, allowed by the Legis- lature _ _ - - 708 The possessions of the Church, not embraced by the laws providing for the free circulatioti of property - 708 CHAPTER XXXIII. OF PERPETUITIES ALLOWED OR CREATED BY ACT OF PARLIAMENT. At Common late, remainder or reversion in Crmcn after estate-tail could not be barred by tenant in tail 710 Statute 34 Sf 35 Hen. 8, c. 20, prohibiting bar of estate- tail remainders or reversion, where estate-tail granted as a reward for services, and while remainder or rever- sion in Crown - - - 711 When property part of ancient possessions of the Crown, its remainder or reversion cannot be alienated, and per- pet^dty of entail created - - - 712 Common law prerogative of Crown not destroyed in cases not embraced by 34 8^ 35 Hen, 8 - - 713 Provisions o/'34 ^ 35 Hen. 8, not allowed to be fraudu- lently resorted to, in order to create unbarrable entail 714 Provisions of 34 S^ 35 Hen. 8, not affected by 3 Sf 4 Gul. 4,c.74 - - ' - - 714 But Co7nmo7i law ptrerogative of the Crown not excepted from operation of last-mentioned statute - 714 Object and intention of 34 8f 35 //E OF ABBUEVIATIONS. Ixxv P. Wins. - - Peere Williams' Reports in Chancery, from 1093 to 1734. Palm. - - Palmer's Reports in B. R., from 17 James 1 tu 4 Charles 1. Pari. Ca. - - Sec Show. Pari. Ca. and Bro. Pari, Ca. Pig. Recov., or, J Pigott's treatise of Common Recoveries ; 3rd edi- Pig. Rec. - \ tion, by Serjeant Wilson. Plow nr Plowd f Pl^vden's Commentaries or Reports in reigns of or, Plowd. Com. Pollexf. < Edward 6, Mary, Philip and Mary, and Eliza- L beth. Pollexfen's Reports in B. R., &c., from 22 to 36 Charles 2. Pre.^Cha., or, Pr. I precedents in Chancery, from 1689 to 1722. Prest. Abst. - Preston's Essay on Abstracts of title : 1st edition. Prest. Conv. - Preston's Treatise on Conveyancing: 1st edition. Prest. Estates. - Preston's Elementary Treatise on Estates. Q. B. - - Queen's-Bench Reports, by Adolphus and EUiy, from 1S40 to present time. Ram Assets Ram's Treatise of Assets : 1st edition. Rand. Perp. - Randall's Essay on the Law of Perpetuity. Raym. - - Lord Raymond's Reports in B. R. and C. B., in Reigns of William 3, Anne, Geo. 1 and 2. Re. Pr. Com. Rep. Reports of the Commissioners on the Law of Real Property : as printed by order of Parliament. Read. Uses - See Bac. Read. Uses. Rep., or, Co. Rep. Lord Coke's Reports, from 14 Eliz. to 13 Jac. 1. Rol.,or, Roll. Abr. Rolle's Abridgment. Roll. Rep. - - Rolle's Reports in B. R., from 12 to 22 Jac 1. Rop. Leg. - - Roper's Treatise on Legacies : 2nd edition. Russ. - - Russell's Reports in Chancery, temp. Lord Eldon, 1826—1828. Russell and Mylne's Reports in Chancery, temp. Lord Lyndhurst, Lord Brougham, and Sir John Leach. Russ. & My. Salk. - Salkeld's Reports in B. R., &c., from 1 William and Mary to 10 Anne. Sand. Uses, or, T Sand. Uses and > Sanders' Essay on Uses and Trusts : 4th edition. Tr. - - J Sandf. Entail Saund. Sch. & L. Scott Scott, N. S. Scriv. Cop., Scriv. Copy Shelf. Wills or. Sandford on the history and law of Entails in Scotland : 2nd edition. Saunders' Reports in B. R., in reign of Charles 2. Schoales and Lefroy's Reports in Chancery in Ireland, temp. Lord Redesdale, 1802 — I8O6. Scott's Reports in C. B., from 1834 to 1840. Scott's New Reports in C. B., from 1840 to present time. ?■ Scriven's Treatise on Copyholds ; 3rd edition, Shelford's Treatise on Wills. Ixxvi TABLE OF ABBREVIATIONS. Shelf. Mortm. and "iShelford's Treatise on Mortmain and Charitable Char. Uses. J Uses, bhep. Touchst. Sheppard's Touchstone of Common Assurances ; Preston's edition. Show. Pari. Ca. Shower's Cases in Parliament. Sim. - - Simon's Reports in Chancery, (V. C.) from 1826 to present time. Sim. & Stu. - Simon and Stuart's Reports in Chancery, (V. C.) 2 to 7 Geo. 4. Smith - - Smith's Reports in B. R., &c., 44 to 46 Geo. 3. Stark. Evid. - Starkie's Treatise on Evidence : 2nd edition. Sug. Pow. - Sugden's Treatise of Powers : 6th edition (unless otherwise expressly stated). Sugd. Gilb. Uses 1 Sugden's edition of Gilbert's Treatise on Uses and Tr. - J and Trusts. Swanst. - - Swanston's Reports in Chancery, 1817 — 1819. T. R. - - Term Reports, or Durnford and East's Reports in B. R., from 1785 to 1800. Taunt. - - Taunton's Reports in C. B., &c., from 1807 to 1819. Turn. & Russ. Turner and Russell's Reports in Chancery, temp. Lord Eldon, 1823—1825. Vaugh. - - Vaughan's Reports in C. B. Ventr. - - Ventris' Reports in B. R. and C. B., in time of Charles 2. Vern. - - Vernon's Reports in Chancery, from 1680 to 1716. Ves. sr. - Vesey's (senr.) Reports in Chancery, temp. Lord Hardwicke, from 1746 to 1755. Vesey's (junr.) Reports in Chancery, from 1789 to 1816. Vesey and Beame's Reports in Chancery, from 1812 to 1814. Ves. jr., or, Ves. Ves. & B. Vin. Abr., or, Viner. Watk. Copy. West. Willes Wilm. Rep. Wils. Yelv. You. & Coll. You. & Coll. N. C. C. |-Viner's Abridgment of Law and Equity. - Watkins' Treatise on Copyholds : 4th edition. - West's Reports in Chancery, temj). Lord Chan- cellor Hardwicke, from 1736 to 1739- - Willes' Reports in C. B., from 1737 to 1758. - Wilmot's Notes of Oj)inions and Judgments. - Wilson's Reports in B. R. and C. B., from 1749 to 1769. - Yelverton's Reports in B. R., from 44 Eliz. to 10 Jac. 1. - Younge and CoUyer's Reports in Exch. Eq., from 1834 to 1840. "1 Younge and Collycr's Reports of Cases in Chan- - J eery before Sir J. L. K. Bruce, V. C. TABLE OF CASES CITED OR INTRODUCED IN THIS VOLUME. Note. — " V," follows the name of the plaintiflf— " and," the name of the defendant. A. Page Abernethy and Boddington 64, 66, 67 Adams and Savage 56, 107, 108 V. Adams Addenbrooke and Murray Agar and Doe d. Tenny and Tenny d. Agar Albemarle and Clarges Alexander v. Alexander Allan V. Nash and Farthing Allanson v. Clitherow Andree v. Ward 440, 496 336, 370, 380, 513 185, 286 193, 194 96 497 64 329 284 322 443 384 Andrewes and Wollen Applin and Doe Archbishop of Canterbury and Eden- borough . . 701 Archer's case . 111,448 Archer awe? Lamb . 119 Arnold v. Congreve . 535 Ash «wf/ Massenburgh 144 Atkins V. Atkins . 307 Atkinson v. Hutchinson 339, 343 Attorney-General v. Bayley 322, 349 V. Breton 701 V. Bright 355, 387 V. Cuming 699, 705 • V. Coopers' Com- pany , . 481 V. Cordwainers' Company . 480 Page Attorney-General and Foley 694 V. Forster 697, 703 V. Hall 327 V. Newcombe 698 V. Parker 697 V. Rutter 701 V. Scott 701 . t,^ Stewart 69 1 V. Sutton 179,285, 379 517 B. Audley and Jee Bacon v. Proctor 471, 472, 479, 631, 632, 649 Badger v. Lloyd . 253 Badham v. Mee . 270, 274 Bagshaw v. Spencer 627, 629 Baily and Child . 87 Bainhridge and Bruce 351, 353 Baker ««(/ Eastman . 231 Baldwin and Langley 179, 285 Bamfield v. Popham 283, 284 Bankes v. Holme 256, 262, 263 V. Le Despencer 576,579, 585 Barbut and Tilbury . 314 Barlow v. Salter 214, 322, 334, 340, 341, 343 Barnardine and Newton 183 Barnes and Harris . 109 Baron and Wood . 2 1 7 Barron and Low . 677 Ixxviii TABLE OF CASES CITED OR INTRODUCED. Page Barrow and Crompe 489, ^04 Barry and Fisher . 218 Barter and Scale . 355 Bath and Wells (Bishop) and Procter 464, 4G5, 4(3(3, 470, 506, 706 Bathurst and Verulam (Earl) 386 Baxter and Mainwarin^ . 46 Bayley o«f/ Attorney-General 322,349 Bayly and ^Vilson . 2-29 Beachcroft v. Broome 230, 233 Beard v. Westcott 155, 158,415,421, 423, 441, 502,661 Beauclerk v. Dormer 197, 250, 362 Bengough v. Edridge 91, 157, 167, 173, 420, 459, 589, 678, 685 Benn v. Dixon . . 245 Bennett v. Lowe . 283 Bensley and Bigge 250, 346, 360, 362 Bentall and Carter 243, 279, 287, 333, 377 Bentley v. Delamor . 64 Bergavenny and Richards 328 Bickerstaft' a/uZ Goring . 142 Biddal and Taylor d. Smith 143 Biddle v. Perkins 548, 552 Bigge V. Bensley 250, 346, 360, 362 Bill V. Kinaston . . 97 Billington and Wrinkle . 131 Bingley v. Broadhead 524 Blackall and Long . 148 Blackborn v. Edgeley 179, 377, 283, 284 Blackman and Wyth . 196 Blackwell v. Bull . . 182 Bland v. Williams . 525 Blandford v. Thackerell 154, 459 Blaxton v. Stone . 309 Blease v. Burgh . . 526 Blower and Lampley . 390 Bluck and Doe (/. Hatch 312 Blunt and Griffith 523, 596 Boddington v. Abernethy 64, 66, 67, 68 Boden v. Watson . 322 Boehm and Traffbrd 213, 217 Boodle and Mytton . 331 Booth and Edmonds 110 Boothby and Bristow . 256 Bostock's case . , 150 Boulton's case . . 80 Bowler and ('ooke . 418 Bowles and Carver 497, 535, 536 Boyce v. Hanning . 548, 552 Boyd V. Buckle . . 642 Bradley v. I'eixoto . 230 QHii Porter , 193 Page Bradley and Ward . . 389 Breedon v. Tugman . 527 Breton and Attorney-General 701 Brian v. Cawsin . 66, 115 Brien v. Smith . . 178 Bright oHf/ Attorney-General 355, 387 Bristow V. Boothby . 256 V. Warde 430, 489, 496 Broadhead and Bingley 524 Brooke v. Taylor . 332 V. Turner . . 444 Broome and Beachcroft 230, 233 Brown and Chapman d. Oliver 427, 571 ». Jervas . 178 and Pells 81, 131, 132, 140, 141, 142, 161, 186, 226, 227 Bruce v. Bainbridge 351, 353 Brudenell v. Elwes 440, 489, 496, 497, 504 Bryce and McDonald 381 Buckle and Boyd . 642 Buckley and Radcliffe . 195 Bull and Blackwell . 182 1?. Pritchard . 456,518 Bullock V. Stones • 146 Bulmer and Clapton . 327 Burgh and Blease . 526 Burnell and Foley 97, 137, 643, 644 Burnsall and Doe d. Davy 244, 385 Burrows and Woolmore 47, 581 Burslem and Vaughan 643, 645 Bussey and Hodgson . 384 Butcher v. Butcher . 496 Butterfield v. Butterfield 355, 387 C. Cadby and Gawler 345, 388, 395 Cadell and French . 245 V. Palmer 130, 153, 159 Cadogan v. Kennett 98, 137 Cambridge v. Rous . 505 Campbell and Candy 2S7, 336 r. Harding 287,325,335, 336, 349, 358, 360, 361, 363 Candy v. Campbell 287, 336 Capron and Powis . 548 Carbery (Lord) and Hartopp 671 Carew and Lloyd 126, 132, 143, 151 Carleton anr/ Doe . 113 Carr v. Errol (Lord) . 643 Carter v, Bentall 243, 279, 333, 377 Cartwright ff/jr/ Wright . 136 Carver v. Bowles 497, 535, 536 TABLE OF CASES CITED OR INTRODUCED. Page Carwardine v. Carwardine 107, 113, 128, 154 Case V. Drosier . . 669 Castle and Johnson . 96 Catchrnay v. Nicholls . ibid Cavendish and Doe . 195 Cawsin ««(/ Brian . 66,115 Chadock v. Cowley 219, 220, 226 Chapman and Forth 192, 326, 329 d. Olivers. Brown 427,571 Chappell and Wastneys . 677 Chatham (Earl) v. Daw Tothill 355, 387 Child V. Baily . . 87 Church V. Kemble 498, 536 Clapton V. Bulmer . 327 Clare r. Clare . 321,387 Clarges v. Albemarle . 96 Clarke v. Lubbock 295, 329, 399 anrfTate 194,300,384,387 V. Smith . . 82 Clerk V. Day . . 449 Clever and Smith . 355, 356 Clifford (Baroness de) and Commis- sioners of Charitable Donations and Bequests 476, 479, 481 Clitherow and Allanson 284 Cockerell and Garratt 225, 227r 333, 359, 406 Cockrell and Hanbury . 74 Collins V. Plummer . 46 Collyer anrf Tilly . 183 Commissioners of Charitable Dona- tions and Bequests v. Clifford (Baroness del 476,479,481 Congreve a7id Arnold . 535 and Douglas 386, 388 Cook and Doe d. Everett 229 and Idle . 315, 317 Cooke V. Bowler . 418 Cookson and Somersett (Duke) 9S Coopers' Company and Attorney- 481 384 46 At- 480 64 119 183 i, 135 676 and General Cooper and Doe Corbet's case Cordwainers' Company torney-General Cornhill and Poulter Cornish and Goodright Cosen's case Cotton V. Heath and King Coventry (Earl) and Tollemache 466, 476, 647, 648 and Waring 550, 552 Cowley and Chadock 219, 220, 226 Colewy and Ryan . 279 Page Croly V. Croly . . 349 Cromek v. Lumb . 461 Crompe v. Barrow 489, 504 Crooke v. De Vandes 172, 193, 194 Crowder v. Stone . 341 Crozier ». Crozier . 385 Cuming and Attorney-General 699 Cursham v. Newland 221, 385 Curtis V. Lukin . 596, 640 Cuthbert v. Purrier . 230 Cutler QHc? Snow . . 141 D. Dafforne v. Goodnoan 387 Daintry v. Daintry 193, 257, 328 DalzelltJ. Welch . 361 Dansey v. Griffiths . 193 Davies and Doe d. Davies 552 V. Speed . 56, 149 Daw Tothill and Chatham (Earl) 355, 387 Day and Clerk . . 449 and Right . 231 Death and Smith . . 355 Deerhurst (Lord) v. St. Alban's (Duke) . 466, 647, 654 Delamor arid Bentley . 64 Denn d. Geering v. Shenton 191,193 307 d. Slater v. Slater 309 d Wilkins v. Kemeys 232 Derby rtHf/ Johnson c^.Anglesea(Earl) 714 Destouches v. Walker 214, 336 De Vandes o?Jc? Crooke 179, 193, 194 Dixon a7id Benn . 245 Dixwell and Sands . 386 Dodd «. Wake . 456,521 Dodson V. Hay . 524 Doe V. Applin . . 384 d. Baldwin v. Rawding 229 d. Barnard v. Reason 287 d. Barn field v. Wetton 131 d. Baverstock v. Rolfe 121, 187 d. Bean v. Halley 179, 285 d. Blesard v. Simpson 194, 195, 250, 251 d. Cadogan v. Ewart 131, 191, 193, 194, 195, 215, 325, 327, 528 183, 185, 203, 210 113 195 237 307, 355 d. Cape V. Walker V. Carleton ■ V. Cavendish • d. Cock V. Cooper ■ d. Cole r. Goldsmith Ixxx TABl.i: OF CASKS CITED OR INTRODrCF.D. Page 384 552 •244, 385 526 Doe V. Cooper d. Davies v Davies d. Davy v. Burnsall d. DoUey v. Ward rf. Ellis r. Ellis 178 w. Elvey . 252 d. Everett v. Cooke 229 V. Featherstone . 384 ». Fonereau . 117 d. Gallini v. Gallini 283 d. Garrod v. Gar rod ibid V. Goff . 244 rf. Hatch «. Bluck 312 d. Herbert v. Selby 231 d. Jones v. Owens 213 d. King V. Frost 198, 234 r. Knowles . 193 d. Lyde v. Lyde 2 1 3, 358, 388 V. Morgan . . 113 d. Rew V. Lucraft 185, 193, 245, 249,286 d. Scott V. Roach 1 13, 128 d. Smith V. Webber 187, 195, 197, 205, 209 d. Tenny v. Agar 185, 286 d. Todd V. Duesbury 193, 199, 205, 210, 281, 282, 287 V. Vaughan . 388 Donn V. Penny 250, 345, 346 Donne v. Merrifield . 384 Donnes and Washbourne 163 Dorchester (Lord) «. Effingham (Earl) . . 583 Dormer and Beauclerk 197, 250, 362 Dorril and Routledge 420, 421, 436, 488, 489,491,493, 496,497 Doswell V. Earle 88 Douglas V. Congreve 386, 388 Drew and Walter 182, 193, 236 Drosier and Case . 669 Drury and Woodliff . 57, 58 Duden and Whittell . 540 Duesbury and Doe r/.Todd 193, 199, 205, 210, 281, 282, 287 Duffield I'. Duffield . 514 Duffoy a7?rf Theobalds . 88 Dungannon (Lord) and Kerr 319, 473. 474, 479, 652 Dunham and Goodright d. Docking 209,281, 377 Dunkt'. Fenner 200, 210, 237 Dyer and Miles . 231 E. Earle and Doswell Page Eason and Elton 194, 364, 387, 391, 392 Eastman v. Baker . 231 Edenborough and Archbishop of Canterbury . 701 Edge and Scattergood 119, 144, 163 Edgeley and Blackborn 179, 283, 284, 377 Edmonds r. Booth . 110 Edridge and Bengough 91, 157, 167, 173, 420, 459, 589, 678, 685 Edwards v. Hammond 64 Effingham (Earl) and Dorchester (Lord) . . 583 Egerton 15. Jones 261,262,263 Elkin and Pinbury 197, 330, 344, 346 Elkington and Weledon 85 Ellicombe v. Gompertz 278, 376, 378, 379 Ellis and Doe d. Ellis . 178 ani Knight . 322,386 V. Selby . . 279 Elton ». Eason 194,364,387,391, 392 Elvey and Doe . 252 Elwes and Brudenell 440, 489, 496, 497, 504 Errol (Lord) and Carr 643 Escolt and Hole . . 272 Ewart and Doe d. Cadogan 131, 191, 193, 194, 195, 215, 325, 327, 528 F. Farmer v. Francis Farr and Smith Farthing v. Allan Faussett and Whitfield Fearon v. Webb Featherstone and Doe Fellis V. Read Fenner and Dunk Ferard v. Griffin ■and Lepine 216,21 Ferrers and Shirley Fisher v. Barry Fitzmaurice and Rochfort Flud and Roe Foley V. Attorney-General V. BurncU 97, 137 Fonereau and Doe ForsterflHx/Attorney-General697,703 Forth V. Chapman 192, 326, 329 Fowler and Keily 357, 360 Fox and Lanesborough (Lady) 255, 257 512 459 329 125, 132 701 384 98 200, 210, 237 322 241,322 96 218 390 77 694 643, 644 117 TABI.K OF CASKS CITED OR INTRODFCED. Page Fox and Porter 456, 457, 521 Foy V. Hinde . . 46 Francis a?/c/ Farmei" . 512 Franks v. Price 193, 286, 287, 328, 332, 378, 379 Freestone and Wallis . 552 French v. Cadell 245 Frith and Gates . . 606 Frost and Doe d. King 198, 234 Fulraerston v. Steward 80 Funnell and Preston d. Eagle 314 G. Gallini and Doe d. Gallini 283 Gardiner and Sheldon 77. 185 Garratt v. Cockerell 225, 227, 333, 359, 406 Garrod and Doe d. Garrod 283 Gaunt and Target 322, 348, 350 Gawler v. Cadby 345, 388, 395 Geddes and Vawdry 456, 519, 595 Gerils and Hoe . . 80 Garrard and Soulle 178, 231 Ginger d. White v. White 281, 377, 449 Glover v. Monkhouse . 229 V. StrothofF 355, 3S7 GoS andTtoe . . 244 Goldsmith and Doe d. Cole 307, 355 Gompertz and Ellicombe 278, 376, 378, 379 Goodman and Dafforne 387 V. Goodright 146, 508 Goodright 17. Cornish 119 d. Docking v. Dunham 209, 281, 377 and Goodman 146, 508 V. Parker 726 V. Searle . 120 Goodtitle d. Cross v. Woodhull 447, 448, 450 V. Morse . 121 d. Peake v. Pegden 328, 405 V. Wood . 146 Gore V. Gore . 109, 144 Goring v. Bickerstaff . 142 Goudge and Lane . . 533 Gowdchep's case . 76 Gower v. Grosvenor . 645, 654 Green r. Harvey 231, 233, 331, 405 Green v. Rod . . 239 Greene v. Ward 179, 187, 189, 295, 322, 398 Grey v. Montagu . 230 Grieve and Griffiths 309 Griffin and Ferard Griffith V. Blunt . Griffiths arid Dansey V. Grieve . and Roe Grimshawe v. Pickup Grosvenor and Gower Grove and Mansel Ixxxi Page 322 523, 596 193 309 120 233, 243 645, 654 728, 729 Gulliver ». Wickett 119,146,185 H. Habergham v. Vincent Hall and Attorney-General Halley and Doe d. Bean Halsey and Upwell . Hamilton atid Royle • V. Royse . Hammington v. Rudyard Hammond and Edwards and Willock Hanbury v. Cockrell Hanning and Boyce Hardcastle and Robinson 728 327 179, 285 96 195 496 85, 135 64 66, 80, 115 74 548, 552 428, 489, 497 Harding awc^ Campbell 287, 325, 335, 336, 349, 358, 360, 361, 363 Hardman v. Johnson 100, 685 Hardwick and Ring 521, 533, 537 Harris v. Barnes . . 109 Hartopp V. Carbery (Lord) . 671 Harvey a??^? Green 231, 233, 331, 405 59 634 120 524 474 429 88, 135 485 733 229 Harwell v. Lucas Hawker v. Hawker . Hawkins and Moor Hay and Dodson — — and Liley and Phelp Heath and Cotton V. Heath Heneage v. Heneage Hepworth v. Taylor Hertford (Marquis) and Southampton (Lord) . . 594, 645, 659 Hinde and Foy . 46 V. Lyon . . 80 Hinxman and Mackworth 470, 472, 476, 479 9S, 137 349, 364 384 281 329 80 272 172, 519, 595 Hoare v. Parker . Hockley v. Mawbey Hodgson V. Bussey and Merest and Studholme Hoe V. Gerils Hole V. Escott Holford and Palmer / Ixxxii TABLR OF CASES CITED OR INTRODUCED. Page Holland and Rawley 107, 108 Holloway and Marshall 594, 059 Holme and Bankes 256, 262, 263 Holmes ««(/ I'lunkett . 189 Hooper fl?H/ Nicholls . 197 Ho])kins v. Hopkins 113, 413, 429 Howston V. Ives . . 199 Hudson fl?irf Massey 341,343 Hughes V. Sayer 329, 338, 339, 343 Humberston v. Humberston 427, 444, 450 Hunter v. Judd . . 520 Huntley's case . . 607 Hutchinson and Atkinson 339, 343 V. Stephens 236 Hyde v. Parratt . . 96 I. Ibbetson v. Ibbetson 64 9, 651, 655 Tdle V. Cook . . 315, 317 Irhy and Sanford 245, 249, 259 Ives and Howston . . 199 Ives V. Legge . 287, 312 Jackson on(^ Pitt 429,431,453 James atid Merest . 244, 385 CfndRomillyl20, 133, 185, 286 Jee V. Audley . . 517 Jeflery a7id Roe d. Sheers 193, 194, 212, 217 Jenkinson awe? Murthwaite 381, 382 Jennings antZ Nottingham 313 Jermyn v. Orchard . 92 Jervas fljiJ Bro\vn 178 Jesson V. Wright 244, 355, 385, 491 Johnson v. Castle . 96 and Hardman 100, 685 Jones and Egerton 261, 262, 263 and Kampf, 497, 498, 500, 536, 585 V. Legge . 287, 312 V. Mackilwain . 533 V. Morgan 257, 258, 388 and Roe . . 120 (Lady) v. Say and Seal (Lord) 630 . V. AVinwood . 273 Joselyn v. Joselyn . . 528 Judd and Hunter . . 520 V. Judd . 456, 520 K. Kampf V. Jones 49/ Keating v. Keating Keily v. Fowler Kelynge v. Phipps Kemble and Church Kemeys and Denn d. Wilkins Kemp a7id Wright d. Burrill Page 498, 500, 536, 585 349, 380 357, 360 733 498, 536 232 232 Kennett and Cadogan 98, 1 37 Kent V. Steward . . 123 Kerr v. Dungannon (Lord) 319, 473, 474, 479, 652 Kevern v. Williams . 525 Kilburne and Theebridge . 387 Kilpatrick and Kirkpatrick 241, 331 Kime aiid Loddington 143, 384, 449 Kinaston and Bill . . 97 Kinch V. Ward . 385, 387, 391 King V. Cotton . . 676 and Vanderplank . 452 (the) V. Oundle (lord of) 726 Kirkpatrick v. Kilpatrick 241, 331 Knight V. ElUs . 322, 386 Knowles and Doe . . 193 L. Lamb 17. Archer . . 119 Lampett's case 87, 96, 135, 136 Lampley v. Blower . 390 Lane v. Goudge . . 533 Lanesborough (Lady) v. Fox 255, 257 Langley v. Baldwin 179, 285 Leake v. Robinson 456, 505, 518 Le Despencer and Bankes 576, 579, 585 Lee V. Lee . Leeming v. Sherratt 135 280, 342, 349, 361 244, 305, 385 287, 312 Lees V. Mosley Legge and Ives and Jones . ibid Leigh and Stanley . . 369 fl«c? Wright . . 283 Lennard and Stanley 179, 285 Lepine v. Ferard 216, 217, 241, 322 Lessinghara one? Sheppard 241,331 Lethbridge and Somerville 433, 441 Lethieullier v. Tracy 295, 398 Lewis d. Ormond v. Waters 282 flWf^Wyld . . 192 Liley v. Hay . . 474 Lincoln (Countess) v. Newcastle (Duke) 579, 045 Linwood and Pye . . 363 TABLE OF CASES CITED OR INTRODUCED. Ixxxiii Lloyd and Badt^er . 253 V. Carevv 12G, 132, 143, 151 Loddington v. Kime 143, 384, 449 Long V. Blackall . . 148 and Martin . . 96 Longhead d. Hopkins v. Phelps 504 Love V. Wyndham 321, 326, 675 Lovelace v. Lovelace . 283 Low V. Barron Lowe and Bennett . Lowther v. Lowther Lubbock and Clarke, Lucas and Harwell Lucraft and Doe d, Rew 185, 193, 245, 249, 286 Lukin and Curtis . 596, 640 Lumb and Cromek . . 461 Lyde and Doe d. Lyde 213, 358, 388 Lyon and Hinde . . 80 V. Mitchell . 391, 392 Lytton V. Lytton 245, 254, 259 M. 677 283 98 295, 329, 399 59 Maberly v. Strode Mackell v. Weeding Mackinnon v. Peach Mackilwain and Jones Mackworth v. Hinxman 229 179 371 533 470, 472, 476, 479 Madox V. Staines 98, 144, 421 Mainwairing v. Baxter . 46 Malcolm v. Taylor 209, 281, 322, 377 Maling and Wells 538 Mallett V. Sackford 88 Manning's case 81, 85, 87, 135 Mansel v. Grove 728, 729 Marlborough (Duke) and Spenc er 485, 486 Marsh v. Marsh 285, 380 Marshall v. Holloway 594, 659 Martin v. Long 96 Mary Porlington's case 46, 721 Massenburgh %■>. Ash 144 Massey v. Hudson 341, 343 Mawbey and Hockley 349, 354 M'Donald v. Bryce . 381 Mee and Badham 270, 274 Merest v. Hodgson 281 V. James 244, 385 Merrifield and Donne 384 Mildmay's case 46 Miles V. Dyer 231 Mitchell and Lyon 391, 392 Page Mogg V. Mogg 289, 420, 431, 438, 439, 459, 590, C78 Monkhouse and Glover 229 V. Monkhouse 381, 436 Montagu and Grey . . 230 Montgomery v. Woodley 524 Moorw. Hawkins . . 120 Moorhouse v. Wainhouse . ibid Morgan anrf Doe . 113 and Jones 257, 258, 388 Morse onrf Goodtitle . 121 V, Ormonde (Marquis) 241, 284, 331, 373 Mortimer v. West 328, 435, 438, 443, 451 Mosley and Lees 244, 305, 385, 395 MuUineux's case . 127,133 Mundy aW Weddell . 331 Munkettrick and Ridgeway 242, 279, 361, 3S6 Murray v. Addenbrooke 336, 370, 380, 513 Murthwaite v. Jenkinson 381, 382 Mutton's case . 57, 58 Mytton V. Boodle . 331 N. Nash and Allan . . 64 Newcastle (Duke) and Lincoln (Countess) . 579, 645 Newcombefl/uZ Attorney- General 698 Newland flHC? Cursham 221,385 Newman v. Newman 171, 456, 521 Newton v. Barnardine . 183 Nicholl V. NichoU . 428 Nicholls and Catchmay 96 V. Hooper . 197 V. Sheffield . 733 V, Skinner 338, 341, 343 Norfolk's case (Duke) 87, 144, 169 Nottingham v. Jennings 313 O. Gates and Frith . . 606 Octavian Lumbard's case 36 Orchard and Jermyn . 92 Ormonde (Marquis) and Morse 241, 284, 331, 373 Orrery (Lord) and Sheffield 146, 188 Oswald and Trotter . 345 Oundle (lord of) and the King 726 Owens and Doe d. Jones 213 /2 Ixxxiv TABLE OF CASES ClTKl) OM INTKODITCED. Paine v. Stratton Palmer and Cadell V. Holford Paramour v. Yardley J'arker and Attorney-General and (joodright and Hoare and Purslowe V. Thacker Parr v. Svvindels Page 345 130, 153, 159 17-2, 519, 595 85 G97 726 98, 137 133 312 283 96 82 371 387 226, 252, 336 Parratt and Hyde Pay's case Peach and Mackinnon Peacock v. Spooner Pearson and Wright Pegden and Goodtitle (/. Pcake 328, 405 Peixoto and Bradley . 230 Pells p. Brown 81, 131, 132, 140, 141, 142,161,186,226,227 Penny and Uonn 250, 345, 346 Perkins and Biddle 548, 552 Phelp r. Hay . .429 Phelps and Longhead d. Hopkins 504 Philips «?Hrraylor Phipps V. Kelynge — ■ V. Williams Pickup and Grimshawe Pierce v. Wise Pinhury t;. Elkin 197, 330, 344, 346 121 733 527 233, 243 46 Pitt V. Jackson and Tothill Pleydell v. Pleydell Plummer and Collins Plunkct V. Holmes Polhill and Ware Pool's case Popham ayid Bamfield Porter v. Bradley V. Fox ■V. Tournay 429, 431, 453 355,387, 391 96, 380, 381 46 189 542, 543, 547 46 283, 284 193 456, 457, 521 100 46,721 528 Portington's case Pouklen and Snow Poulter V. Cornhill . 64 Powis V. Capron . . 548 Pratt and Sadler . 495 Preston (/. Eagle v. Funnell 314 Price and Franks 193, 286, 287, 328, 332, 378, 379 Price V. Price . . 386 Prior a7id Convent of St. Bartholo- mew . . . 77, 80 Pritchard and Bull 456, 5 1 8 Procter v. Bath and Wells (Bishop) 464, 465, 476, 506, 706 Page Proctor a??(i Bacon 471,472,479, 631, 632, 649 Purefoy v. Rogers 113, 380 Purrier and Cuthhert . 230 Purslowe V. Parker . 133 Pye V. Linwood . 363 R. Rackstraw v. Vile . 345 Radcliffe v. Buckley . 195 Radford v. Radford 241, 328, 331, 344 Randell v. Russell . 95, 100 Ranelagh v. Ranelagh 295, 322, 339, 342, 343,356 Rawding and Doe d. Baldwin 229 Rawley v. Holland . 107, 108 Rccd and Fellis . . 98 Reason and Doe d. Barnard 287 Rennick a7id W^oodcock 729 Rhodes and Scrope 181, 185 Richards v. Bergavenny 328 Ridgeway v. Munkettrick 242, 279, 361, 386 Right V Day . . 231 Ring V. Hardwick 521, 533, 537 Roach flHf/ Doe d Scott 113,128 Roberts ««(/Tuttesham . 178 Robinson v. Grey . 235 V. Hardcastle 428, 489, 497 and Leake 456, 505, 518 V. Robinson 387 390 239 88 77 120 ibid 220 193, 194. 212, 217 58, 110, 151 295, 398 113,380 Rolfe and Doe d. liaverstock 121 Rochfort V. Fitzmaurice Rod and Green Roe d. Bendall v. Somersett V. Flud V. Griffiths V. Jones ■ V. Scott and Smart d. Sheers v. Jeflfery V. Tranmer Rogers, ex parte and Purefoy Romilly v. James 126, 133, 185, 286 Ross V. Ross . 230, 527 Rous and Cambridge 505 Rouilidge v. Dorril 420, 421, 436, 488, 489, 491, 493, 496, 497 Royle u. Hamilton . 195 Royse and Hamilton . 496 Rudyard arid Hammington 85, 135 Russell atid Randell 95, 100 TABLE OF CASES CITED on INTRODUCED. Ixxxv llulter and Attornej -General Kyan v. Cowley Page 701 279 Sackford and Mallett . 88 Sadler v. Pratt . . 495 Salkeld v. Vernon . 288 Salter and Barlow 214, 322, 334, 340, 341, 343 Sands v. Dixwell . 386 Sanford v. Irby 245, 249, 259 Saumarez v. Saumarez 538 Saunders v. Vautier . 528 Savage and Adams 56, 107, 108 Say and Seal (Lord) and Jones (.Lady) . . .630 Sayer and Hughes 329, 338, 339, 343 Scattergood v. Edge 119, 144, 163 Scott anrf Attorney-General 701 and Smart and Roe 220 Scrope V. Rhodes 181, 185 Scale V. Barter . 355 Seaman and Worman . 387 Searle one? Goodright 120 Seaward v. Willock 415, 433, 435 Selby a«rf Doe £?. Herbert 231 fl«f/ Ellis . . 279 Selwyn v. Selwyn . 120 Shaw and Sjjarrow • 179 and Taylor . . 46 Sheffield anti Nicholls . 733 V. Orrery (Lord) 146, 188 Sheldon v. Gardiner 77, 185 Shelly's case 289, 300, 306, 356, 383, 386, 402, 437, 448 Shenton and Denn d. Geering 191, 193, 307 Sheppard v. Lessingham 241, 331 Sherratt and Leeming 280, 342, 349, 361 Shirley v. Ferrers . 96 Simmons v. Simmons 192, 215,322, 351, 354 Simpson and Doe d. Blesard 194, 195,250,251, 725 • V. Sotherne . 64 Skinner and Nicholls 338, 341, 343 309 178 82 356 355 731 123 Slater and Denn d. Slater Smith and Brien and Clarke V. Clever V. Death ■V. Farr ■ V. Warren 355, 726, Page Snow V. Cutler 141 V. Poulden . . 528 Somerset (Duke) v. Cookson 98 Somersett and Roe d. Bcndall 88 Somerville v. Lethbridge 433, 441 Sonday's case . . 46,179 Sotherne and Simpson . 64 Soulle V. Gerrard . 178, 231 South and Wilkinson 321, 345 Southampton (Lord) v. Hertford (Marquis) . 594, 645, 659 Southby ?;. Stonehouse 193,247 Sparrow v. Shaw . 179 Speed fljif/ Davies . 56,149 Spencer and Bagshaw 627, 629 V. Marlborough (Duke) 485, 486 Spooner and Peacock St. Alban's (Duke) (Lord), Staines and Madox Stanley v. Leigh V. Lennard 387 V. Deerhurst 466, 647, 654 98, 144, 421 369 179, 285 Stephens and Hutchinson 236 — ■ V. Stephens 147, 154 Steward and Fulraerston and Kent Stewart and Attorney-General St. George v. St. George Stone and Blaxton and Crowder 80 123 691 733 309 341 Stones and Bullock . 146 Stonehouse and Southby 193, 247 Stratton and Paine . 345 Strode and Maberly . 229 Strong V. Teatt 628, 632, 635 Strothoff ff??c? Glover 355,387 Studholme v. Hodgson . 329 Sutton «?; J Attorney-General 179, 285, 379 Swindels and Parr . 283 Sydenham «7«t/Tregonwell (Lord) 587 T. Taltarum's case Tarbuck v. Tarbuck 209, 281, Target v. Gaunt ' 322, 348, Tate V. Clarke 194, 300, 384, Taylor and Brooke and Hepworth and Malcolm 209, 281, — V. Philips — V. Shaw — d. Smith V, Biddal 37 282 350 387 332 229 322. 377 121 46 143 Ixxxvi TABLE OF CASES CITED OU INTRODITCED. Teatt and Strong Page 628, 632, 635 Tenny d. Agar v. Agar 193, 194 Thacker and Parker . 312 Thackerell and Blandford 154, 459 Theebridge v. Kilburne 387 Theobalds v. Duffoy . 88 Tiffin r. Tiffin . . 96 Tilbury r. Barbut . .314 Tilly V. Collyer . .183 Tollemache v. Coventry (Earl) 466, 476, 647, 648 Tothill and Chatham (EarD 355, 387 V. Pitt 355, 387, 391 Tournay and Porter . 100 Tracy and Lethieullier 189, 295, 398 Trafford v. Boehm . 213,217 y. Trafford 652, 653, 654 Tranmer and Roe 58, 110, 151 Trash v. Wood . 446, 728 Tregonwell (Lord) v. Sydenham 587 Trickey v. Trickey . 375 Trotter v. Oswald . .345 Tugman and Breedon . 527 Turner and Brooke . 444 Tuttesham r. Roberts . 178 Tyte V. Willis . . 312 U. Upwell V. Halsey 96 "Vachel v. Vachel . Vanderplank v. King Vaughan v. Burslem — and Doe 95, 401 452 643, 645 388 Vautier and Saunders . 528 Vawdry v. Geddes 456, 519, 595 Vernon and Salkeld . 288 Verulam (Earl) v. Bathurst 730 Vile and Rackstraw . 345 Vincent and llabergham 728 W. Wainhouse and Moorhouse 120 Wake and Dodd . 456, 521 Walker and Destouches Walker and Doe d. Cape Wallis V. Freestone Walter t?. Drew 214, 336 183, 203, 210 552 182, 193, 236 Page Ward and Andree . 322 V. Bradley . . 389 and Doe d. Dolley 526 and Greene 179, 187, 189, 295, 322, 398 and Kinch 385, 387, 391 Warde and Bristow 430, 489, 496 Ware v. Polhill 542, 543, 547 Waring v. Coventry . 550, 552 Warren and Smith . 123 Washbourne v. Donnes 163 Wastneys v. Chappell . (S77 Waters and Lewis d. Ormond 282 Watson and Boden . 322 Webb and Fearon . 701 Webber and Doe d. Smith 187, 195, 197, 209 Weddell v. Mundy . 331 Weeding and Mackell 179 Welch and Dalzell . 361 Weledon v. Elkington . 85 Wellington v. Wellington 245 Wellock V. Hammond 66, 80, 115 Wells V. Maling . 538 West and Mortimer 328, 435, 438, 443, 451 Westcott and Beard 155, 158, 415, 421,423, 441, 502, 661 Wetton awe? Doe t/. Barnfield 131, 187 White and Ginger d. White 281, 377, 449, 553 and Wood Whitfield V. Faussett W^hittell V. Duden Wickett and Gulliver Wild's case Wilkinson v. South Williams and Bland and Kevern and Phipps Willis and'Tyie. VVillock V. Hammond and Seaward Wills V. Wills Wilson V. Bayly VVinwood and Jones Wise and Pierce Wollen V. Andrewes Wood V. Baron and Goodtitle and Trash V. White Wood's case Woodcock V. Rennick 550, 552 125, 132 540 119, 146, 185 449 321, 345 525 ibid 527 312 66, 80, 115 415, 433, 435 730, 732 229 273 46 443 . 217 146 . 446 550, 552, 553 120 729 Woodhull and Goodtitle d. Cross 447, 448, 450 TABLE OF CASES CITED OR INTRODUCED. IXXXVII Woodley and Montgomery Woodlifft'. Drury Wooltnore v. Burrows Worman v. Seaman Wright d. Burrill v. Kemp V. Cartwright and Jesson 244, V. Leigh V. Pearson V. Wright 226, Page 524 57, 58 47, 581 387 232 136 355, 385, 491 283 252, 336 74, 120 Page Wrinkle V. Billington . 131 Wyld V. Lewis . . 192 Wyld's case . . 195 Wyndham and Love 321, 326, 0/5 Wyth y. Blackman . 196 Y. Yardley and Paramour 85 CORRIGENDA. P. 65, margin. — For applicability read inapplicability. P. 78, note (n) For Hargr. read Butl. P. 185, note. — For Gardiner r. Sheldon jead Sheldon v. Gardiner. P. 252, note. — For Doe d. Elvey read Doe v. Elvey. P. 325, line 1 7. — For astuti read astute. P. 413, line 27. — For authorites read authorities. PRACTICA I. TRI:A TISE ON THE LAW OF PERPETUITY. INTRODUCTION. The right of property, or the right to exercise an absolute The right of , , • 1 N 1 • disposal of pro- control over property, (to whatever extent enjoyed,} being pcrty, being the the creature of civil society, and introduced and established p^^^?*^^^, "^^.^j. bv the exigencies and necessities of that society, in opposi- sity. must be J f" _ J 11 subject to such tion to the primary suggestions of the law of nature, (a) restrictions . . . 1 1 1 • • 1 ^ as are requisite It is evident that the various rights consequent on, or asso- f^^ its answer- ciated with the absolute right of property, are and ever must '"& ^^^^^""^^ be regulated, in all respects, by the very same necessities the institution. which gave it birth. The right of the heir by descent, the purchaser by conveyance, and the devisee by testament, being alike the offspring of political necessity, and coun- tenanced and established for the peace and welfare of society, it is not only proper but necessary, that the exercise and enjoyment of those rights should be subjected to such (a) Puffendorf, de Offic. Horn, et Locke on Civ. Gov. c. 5.— Bl. ,Com. Civis. lib. 1, cap. 12. — Titius. — vol. 2, c. 1. INTROUITCTION. restrictions as will prevent their creating inconveniences and distnrbances even worse than those intended to be avoided by the original departure from the law of nature. The right of every landholder, whether countless acres own him as their lord, or he be proprietor only of a cottage garden, is the creature of necessity ; and the exercise of that right is properly subject to the laws which the same necessity, originating in varying times and circumstances, may impose. Now, in proportion as civilization advances, and, with it, trade and commerce, the great fountains of wealth ; — in proportion also as the exigencies of mankind increase, and, with them, an infinite variety of modifications of the right of property as requisite to meet those exigencies; — in the very same proportion will the necessity for the free and easy circulation and transmission of property be mani- fest. If the municipal laws empower neither the transfer of property from one person to another during the lifetime of the owner, nor its posthumous alienation, then is its value to the commonwealth small indeed. Accordingly, by the laws of all states, to any considerable extent advanced in civilization, either the whole, or a definite part, of the share of every recognised possessor or occupier of the soil, is at his disposal. The exercise of Nevertheless, this jus disponendi, however surely gua- this right of rauteed by the laws of a country, would, in the end, serve property in a •' _ ... manner fatal little purposc, wcre it opcn to an individual, either in his enjoyment lifetime or at his death, to exercise his right of disposal in '^''"''?!i, a manner that w^ould deprive the commonwealth for ever, against tnc -i desired end. q^. fQj. g, long period of time, of all practical benefit from the property in his possession. The political necessity that con- ferred on the owners of property the absolute right to dispose of the whole or a portion of it at their pleasure, would then forbid their exercise of that power, in a manner fatal to its enjoyment in all future time, or prejudicial to the general interests of society. But prejudical the exercise of that right, assuredly, is, when the property which an individual INTRODUCTION. 3 may have amassed by successful industry, or have acquired by fortune, thereby becomes (as it were) a stagnant posses- sion, and, for all purposes of the commonwealth, useless. A miserly disposition, in this case, withdraws from free circulation, and, therefore, renders worse than valueless, pro- perty which, without the protection of the state and its municipal laws, could not have been obtained, or, if obtained, preserved. " Experience," says Sir fVm. Blackstone, " hath shewn that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained." From the simplicity of manners and laws of some states. Mixed charac- and the backwardness in civilization and refinement of resourcesf and others, the necessity of which we have last spoken is un- ^^"'''ty '" ' "^ *^ phases ot Us known. In England, however, where the antiquity of our community, ... 1 1 1 , 1 • 1 • ^^otA peculiar laws and institutions is exceeded only by their complexity display to and infinite variety,- — where the trade and commerce, which ^jpfes^"^'"" form an integral part of our national strength, demand a power of free transfer of property from man to man, co- extensive with his ever-varying exigencies, — where the habits of an ancient and wealthy aristocracy incline that class to dispose of their property, in a manner favourable to the inheritors of their dignity, but not to its free interchange and transmission, — in England thus circumstanced, and with interests and classes so directly conflicting, it is reason- able to suppose that rules jealously protecting the free circu- lation of property, at once in accordance with the spirit of the laws, and answering all the necessities of a commercial country, while they afford every reasonable facility for those family arrangements enjoined by the ties of nature, and not inconsistent with the welfare of society ; — it is, we repeat, reasonable to suppose, that some such rules should form an important feature in the judicial polity of the kingdom. Nor can it be matter of surprise, if in a country such as i„ ^ commor- this ; vrhere the mohilia, (including in that term every thing y,^re^t"i"|e^d' except solum, vel quce solo adhcereni) form as much a con- right of B 2 INTKODICTION. disposal of personals, of equal import- ance with that of the soil or land. English juris- pruilencc supplies the provisions found to be antecedently probable. These con- tained in the rules against perpetuities. stitnent part of the national wealth, as the immobilia ; the laws shonld be found to evince as strict a regard for the unclogged circulation and transfer of the former, as the general condition and circumstances of the country lead us to infer they would entertain for the free interchange and alienation of the latter. And, accordingly, on surveying the temple of English jurisprudence, we behold in it a range of columns, which, while they impart symmetry and beauty to the whole build- ing, afford it, also, material support. In other words, the Laws of Property in England are nicely adapted for pre- serving harmony between the diversified elements which constitute the sources of national prosperity, at a point where they are most liable to clash, by securing the neces- sary freedom of commerce in the alienation and 'pledge of every species of property, on the one hand, and the proper and reasonable regard to private and family purposes in the settlement of property, on the other. These are the important objects designed in the branch of English law, known as the Rules against Perpetuities ; — rules which, while they are efficient for the purpose of pre- serving and guaranteeing the free circulation of property to the utmost reasonable extent, yet afford ample scope for that attention to personal and family exigencies, which it is neither the policy of the laws, nor the interest of society, entirely to overlook. In these rules, prohibiting, as they do, restrictions on the alienation or suspension of the pos- sessiort and enjoyment of property for more than a fixed j)eriod of time, we discover that wise attention to the public interest, in its minutest concerns, which characterizes England's judicial code, and will ever constitute its highest praise, {h) (b) The author has no intention to nicalities, provision for vshich is in- impugn the maxim, " c/e minimis non consistent with the majesty of the law, curat hx." The "minimis," it is and calls for more subtlety than is conceived, refers to insignificant tech- compatible with its general simplicity. INTRODUCTION. -^ To the practical efficiency of the Rules against Perpetni- Testimony to ties in promoting the purposes designed in them, testimony J-^r'the purpose is thus ahly borne by the learned Mr. Butler : (c) — " The designed, hinits within which the Enghsh system of the settlement of property confines the restraints on alienation prevent the subtraction from commerce of an imdue proportion of the national wealth, and leave as much of it for circulation as is sufficient to answer the wants of those who wish to pur- chase ; and while a perpetual entail is avoided, such an entail may be framed as will effi^ct all those provisions which it is consistent with the limited reach of human prudence to design ; and when the entail is discharged, it n)ost frequently happens that the rights or view^s of the })arties interested in the property lead wholly or partially to a renewal of the entail, and thus, while individuals have the means of effecting reasonable arrangements, that succes- sion of respectable proprietors is preserved, which conduces so much to public and private happiness." The importance of an inquiry into the origin, progress, and present state, of the Rules against Perpetuities, being thus ascertained, it only remains to observe that they are the subjects proposed for consideration in the following pjiges. We may conclude these introductory observations in the Summary of words of an elegant legal writer, who thus forcibly illus- the Rules trates the necessity for the Rules against Perpetuities : — i^r'ct'uties *' The necessity of imposing some restraint on the power of protracting the acquisition of the absolute interest in, or dominion over property, will be obvious, if we consider, for a moment, what would be the state of a community in which a considerable proportion of the land and capital was locked up. That free and active circulation of property, which is one of the springs as well as the consequences of commerce, would be obstructed; the improvement of land > (c) Note to F. C. R , p. 563. INTRODUCTION. checked ; its ac{|uisiliou rendered difficult ; the capital of the country gradually withdrawn from trade ; and the in- centives to exertion in every branch of industry diminished. Indeed, such a state of things would be utterly inconsistent with national ])rosperity ; and these restrictions, which were intended by the donors to guard the objects of their bounty against the effects of their own improvidence, or originated in more exceptionable motives, would be baneful to all." (d) (d) 1 J arm. Wills, 2 19, 220. CHAPTER I. A PRELIMINARY INQUIRY INTO THE CHARACTERISTIC FEATURES OF THE ENGLISH SYSTEM OF DISPOSAL OF REAL PROPERTY, AS TO ITS TRANSMISSION BY DESCENT, ALIENATION, AND SETTLEMENT. It does not seem wholly foreign to the purpose of an essay devoted to the consideration of that branch of English jurisprudence which secures the free circulation of the landed property of the realm, to preface our more minute inquiries into the history and progress of the law of settle- ment, (introductory to our main subject,) by a few remarks upon the general character and distinguishing features of those rights in and powers over the soil or real property of the kingdom, which are guaranteed by the laws, scriptcs et inscrlptce. Sir JVm. Blackstone has observed, that our lands are English law either plainly feods, or partake very strongly of the feodal stronglyT^^"^ ^ nature ; and concernins; the feodal system he has remarked, pregnated with ' ^ -^ the principles that it is impossible to understand with any degree of of the feodal accuracy either the civil constitution of this kingdom, or the laws which regulate its landed property, without some general acquaintance with the nature and doctrine of feods, or the feodal law. And certain it is, that English juris- prudence affords very many monuments and traces of that vast political system, in which the greater part of the Western world was, (as it were,) bound up, for centuries after the wreck of the Roman Empire ; a system which, though originally introduced by wandering barbarians, was as profound in policy, as it has proved to be extensive in results. 8 A PRELIMINARY INQUIRY, &C. [CHAP. I. Glance at the Concerning the origin and progress of this system, it origin and ^^^ j^^, neccssarv here to say but httle. That it was in- progress ot the '' *' feodal system, troduced soon after the final extinction of the Roman Empire in Europe, l)y the different nations who aided in its overthrow, is well known. That it originated in the seizure by conquering hordes of whatever they desired of the property of the conquered, in the general allotment of that property among the superior officers of the armies, and the subdivision of it, by these latter, among their inferiors, is also a fact historically ascertained. As for the rest, let Sir JJ'm. Blackstone speak : — " Allotments thus acquired naturally engaged such as accepted them to defend them, and as they all sprang from the same right of conquest, no part could subsist independent of the whole ; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But as that could not effectually be done in a tumultous ir- regular way, government, and to that end subordination, was necessary. Every receiver of lands or fcodatory was, therefore, bound, when called upon by his benefactor or immediate lord of his feod or fee, to do all in his power to defend him. Such benefactor or lord was likewise subordinate to and under the command of his immediate benefactor or superior ; and so likewise to the prince or general himself: and the several lords were also severally bound in their respective gradations, to protect the posses- sions they had given. Thus the feodal connection was established ; a proper military subjection was naturally introduced, and an army of feodatories was always ready enlisted, and mutually prepared to muster, not only in defence of each man's own several property, but also in defence of the whole and of every part of this their newly acquired country ; the prudence of which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests." Distinguishing The distinctive marks of this feodalism, were, first, the CHAP. 1.] A PRELIMINARY INQUIRY, &C. 9 destruction of allodial property, and the creation in its diaracteristici 1 /• , c . 1 • /^ . 1 1 of feodiilism, stead, or a system oi tenure, the sovereign or hrst lord ;„ relation to being entitled to the direct dominion of the land, while ll*® c'^T^f ^ o ' the fief, the the tenant or vassal was invested with the dominiitm utile ; "aturc of the property secondly, that inunoveable or real property only was ad- which formed mitted to be held in feodality, or, in other words, to be ^\ ^ ^J^ ^^'^^ the substance of a fief; thirdly, that the relation between the connexnm •' between lord the chief and his vassals was purely of a military nature, and fcodatory. and was territorial, and not considered to arise from the allegiance due from a subject to a sovereign, but from an implied obligation supposed to be annexed to the tenure of the fee. An important incident, also, of this tenure, was, that as Feodal obli- the feodal obligation was looked upon as reciprocal, the disabled lord lord could not alien or transfer his seigniory without the f"o^J*^Jjfej^"n^, consent of his vassal or tenant ; nor the vassal, his feod, without mutual consent. without the license of his lord : it being equally unreason- able that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should own subjection to a superior not of his own choosing. The reciprocal obligations arising from this relation were, on the part of the lord, the obligation of defending the title of his tenant, or, technically speaking, of warranty, and when subinfeodation was introduced, the further duty of acquittal, that is, of keeping the tenant free from molestation in respect of the services due to the lords paramount ; and, on the part of the tenant, the obligation of giving his lord his military assistance and services in defence of the feod, when necessary. Respecting the time and manner of the introduction of Time and this complex system of feodality into England, it may troduition of" suffice to observe that, if not introduced, it was matured ^o'^f''^'" '"to ' Lngland. and finally established among us, by William the Fii-st and the Norman barons who shared and assisted in the CoiKjuest, by the middle of the reign of that prince ; but that it was not imposed by the Concpicror, but rather 10 A PRKMMINARY INQUIRY, &C. [ciIAP. I- iiatiuiially and freely adopted by the magnates and repre- sentatives of the reahn, in the same manner as other nations of Europe had adopted it, upon the principle of self-security. Gradual dc- It docs not appertain to our present purpose to com- terioratiou ... ^ n • t- a ' ^ of foods. mence an inquiry into the mode of mfeodation by corporal investiture, or of the juramentum Jidelitatis entered into by the vassal or tenant, or of the homagium done by the tenant upon his investiture, or of the different kinds of services and suits to be rendered and done by the feodatory, in consideration of and as a return for his feod. Nor does it come within the scope of these prehminary remarks to inquire into the gradual progress of feods, (from being mere precarious holdings at the will of the lord, guided by his view of the manner in which the vassal performed his services,) to their eventual state of substantial inheritances descendible to the issue and collateral kindred of the feodatory. Nor do we intend to speak of the long train of burdensome and grievous imposts which attended the full establishment of the feodal system — a fruitful progeny of aids, reliefs, primer-seisins, wardships, maniages, fines for alienation, and escheats, rendering that a complicated and extensive slavery of tenure, which, (as Sir Wm. Blackstone says) in its primitive simplicity, was a plan of liberty equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. Nor need par- ticular mention be made of that system of scutages or escuages, by which the personal attendance and services of the feodatories were frequently conmiuted for pecuniary assessments, and through which all the advantages, promised or real, of the feodal constitution, were destroyed, and nothing but the hardships remained. It may be well, however, to describe, in the forcible language of the au- thority above referred to, the effects of the degenerating influences introduced into the working of feodalism : " Instead of forming a national militia composed of barons. CHAP. I.] A PRELIMINARY INQUIRY, &C. 11 knights and gentlemen, bound by their interest, tlieir honor, and their oaths, to defend their king and country, the whole of this system of tenures now tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. In the meantime, the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the Conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For besides the scutages to which they were liable in default of personal attendance, which were however assessed by themselves in Parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted, or his eldest daughter married : not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance by way of relief and primer-seisin, and if under age, of the whole of his estate during infancy. And when he came to his own after he was out of wardship, his woods decayed, houses fallen down, stock wasted and gone, land let forth and ploughed to be barren, to reduce him still further, he was yet to pay half a-year's profits as a fine for suing out his livery : and also the price or value of his marriage, if he refused such wife as his lord and guardian had bartered for and imposed upon him ; or twice that value if he married another woman. Add to this, the untimely and expensive honor of knighthood, to make his poverty more completely splendid. And when by these deductions, his fortune was so shattered and ruined, that perhaps he was obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a lice?ise of alienation." The chief points in connection with which it is desired Branches of to call attention to the genius of the feodal system, are greltLr^"^ °*^ those of the alienation, and the inheritance and succession "'*^"*^"^*^ <^" 12 A PilHLI.MINAUV INQUIRY, 8cV. [chat. I. Euglish system of real pro- perty. I. 'riif aliena- tion of feods. Gradual re- laxation of feodal strict- ness in tliis respect. Of the mode of alienation by subinfcodation. of feods, as being the piirticular branches of feodal juris- })riKiencc, which have intermingled themselves most in- timately with our laws ; and have contributed more than anything else to the formation of the English law and system of real property, and impressed it with their own distinctive features. 1. We have seen that upon strict feodal principles, feods were inalienable without the license of the lord. In ad- dition to this clog upon alienation, there was the further requisite of obtaining the concurrence of the proximate lineal heir, without which he could not be effectually de|)rived of the inheritance. This feodal strictness was first relaxed by a law of King Henry the First, allowing a man to sell and dispose of lands which he himself had purchased or acquired, pro- vided he did not wholly disinherit his children ; and so far, therefore, the feodal pre-requisites of a license of alienation, and the consent of the eldest son, were abolished. It does not seem, however, that this law removed the ancient dis- ability as respects the alienation of feods descended to the ieodatory from his ancestors, although the words of the statute may well enough be confined to a saving of the rights of tlie issue. From Glanville (a writer in the reign of Henry the Second), it would appear that the power of disposing of lands was afterwards, in some way or other, considerably enlarged, and a right of alienation seems to have been in his time exercised over all lands which a ])erson had himself acquired, provided they had been con- veyed to him and his assigns, and also over one-fourth of all lands descended, without the consent of the heir. But notwithstanding the disabilities under which feoda- tories were placed, in respect of the alienation of their lands, feods were ever susceptible of a particular mode of transfer, called subinfcodation, by means of which a new fief was created by the feodatory, who thereby became a mesne or middle lord, in respect of the vassals or tenants who held CHAP, r.] A PRELIMINAUY IXQIIRY, &C. 13 under the subinfeoclation. To this siibinreodation neither the hcensc of the superior lord nor the consent of the heir of the feodatory was necessary ; but it did not destroy the relation between the lord and his tenant, or deprive the former of the right to those suits and services reserved to him on the original creation of the feod. This power of subinfeodation was so far limited, however, that the feodatorv was to leave sufficient of the feod to enable him to answer the services due to his lord. This indirect power of ahena- tion was again exercised by the subfeodatories, who carved out of their fiefs still more minute estates, to be held of themselves as inferior lords. To such an extent was this practice of subinfeodation carried, that the lords paramount began to perceive that it was the occasion of the loss to them of many of their feodal profits, by reason as well of their sometimes falling into the hands of the mesne lords, as of these being less able to render the military and other services due from them to their superiors. More certainly, there- Rostrictions fore, to fix the limits imposed by the common law, it was by^" {.rovilwn provided by an article of Magim Charta, (9 Hen. 3, c. 32,) '^^^^'^f ''^ that no subinfeodation of part of the feod should be made, unless sufficient was left to answer the services due to the superior lords ; which sufficiency, says Sir Wm. Blackstone, was probably interpreted to be one-half or moiety of the land. This power of subinfeodation, however, does not appear to have extended to tenants in capile, or those who held immediately of the king ; in respect of whom nothing less than the whole was thought sufficient to answer the sei-vices. Thus stood the feodatory's power of alienation until the power of sub.. 18th year of Edward the First, in which the famous statute •"^°t'!,°" a ' abolished, and of Quia emptores terrarum w^as enacted. This statute, general powers 1 T 1 1 1 f 1 1 VI of alienation (18 Edw. 1, St. 1, c, 1,) at once abolished the feodal liberty conferred by of subinfeodation, and, instead of it, conferred a general ^ortsTen^aruni power of alienation of all lands held in fee simple, except those of the king's tenants iJi capite, without any license by 14 A I'HKLnilNARY INQl'I^Y, ikc. [CIIAP. I. Extension of this power to tenants in capite, and substitution of fines for alienation. Abolition of these also in reign of Charles II. Of testament- ary alienation under the feodal system. This even less conformable to prinoiples of fcodalism than alienation inter vivos. the lord, or consent by the heir. Its words are : — Quod de cetera liceat tinicuique libero homini terras snas sen tene- menta sua, seu partem vide ad voluntatem suam vendere. Ita tamen quod feoffatus teneat terram illam seu tenemen- tuvi ilhid, de cajntali domiyio feodi illius, per eadem servitia et consuetudines quce feoffator suus ilia j^riics tenuit. The king not being particularly named, the tenants in capite were held to be out of the statute ; but the restraints on alienation by them were, in a great degree, removed by the joint effect of the statute De Prerogaiivd Regis, 17 Edw. 2, c. 6, and the statute 1 Edw. 3, c. 12, whereby tenants in capite were permitted to alien, upon payment of a fine to the king. And, eventually, these fines for alienation, the last remnants of the barbarous restrictions or impositions with which feodalism had been overlaid, were swept away in the reign of Charles 2, together with every other outward badge of that military system. The statute which effected this salutary change was the 12 Charles 2, c. 24. Our attention has hitherto been confined to the power of alienation in the lifetime of the feodatory which obtained under the feodal system, and its gradual disencumbrance from the shackles which that system imposed upon it. It will be proper now to consider the subject of testamentary alienation, in connection with the influence of feodal prin- ciples. Sir JVm. Blackstone well observes that, though the feodal restraint on alienation by deed vanished very early, yet this on wills continued for some centuries after, and that, owing to the want of that notoriety and public desig- nation of the successor, which in descents is apparent to the neighbourhood, and which the simplicity of the common law always required in every transfer and acquisition of property. It seems sufficiently plain that the restraint upon the power of devising was a consequence of the introduction of the feodal system ; that right having been clearly in use among our Saxon ancestors. It is also to be ascribed to the same policy which dictated the feodal doctrine of non-aliena- CHAP. I.] A PRELIMINARY INQl IRY, &C. 15 tion in the fcodatory's lifetime without the consent of the lord. Some, indeed, says the above learned judge, have questioned whether this restraint was not founded upon truer principles of policy, than the power of wantonly dis- inheriting the heir by will, and transferring the estate, through the dotage or caprice of the ancestor, from those of his blood to mere strangers. For this, it is alleged, main- tained the balance of property, and prevented one man from growing too big or powerful for his neighbours ; since it rarely happens that the same man is heir to many others, though by art and management he may frequently become their devisee. But notwithstanding the feodal restrictions upon testa- The power sornGtimcs ox- mentary alienation, the power of devising was exercised ercised by over lands in some particular places, such as cities and o"erTerms of boroughs, in which by special custom Saxon immunities y^^'^''^- were still preserved. A testamentary power w^as also allowed to be exercised over terms for years and other chattel interests in land, which, on account of their original imbecility and insignificance, were regarded as pure per- sonalty, and, as such, were ever disposable by will. The statute of Quia emptores which removed the restric- Prohibition of tions upon alienations inter vivos, not only had not the like ^^.■^^^ ^■^^^^ ^f effect in regard to testamentary alienation, but seems not ^^"^."^^*°." even to have contemplated it, for the Latin term used in that statute does not convey the meaning of give or dispose of, generally, but the more confined signification of sell. The first inroad upon feodal restrictions on this head was Effect of the effected by artifice. It was one of the multifarious conse- ][|gp° iT'insinu- nuences of the introduction of the ingenious doctrine of ^^'"& ^ *^«ta. i '^ _ . _ mentary power Uses, (a more particular explication of which will be given contrary to the m Its proper place,) to render the mterest oi cestui que use. Common law. or the party beneficially entitled, deviseable, and thus, in effect and reality, to establish a power which was theoreti- cally denied. The same ingenuity which led to the inven- tion of Uses also taught the ecclesiastical chancellors and 16 A riSKrj.MlNAHY IXUllHY, ScC. [chap. 1. Temporary restoration of the former disabilities by means of the Statute of Uses. Testamentary power subse- quently con- ferred by the Legislature. But it did not judges f)f tlie time to afford scope for that j)ious liberality, whicli, as it lias been happily ex})rcssed, abounds most, when men can enjoy their possessions no longer. The mitred ministers of the law knew well how fast the wealth of the Church would flow in through the spacious door of devise, assisted by their own sedulous inculcation of the duty of bribing Heaven by a posthumous liberality. Most successful was their operation upon the superstitious fears of the timid ; and the results of their skill K^ve a new reading to the aphorism, " Charity blesses hira that gives and him that takes." The Chancery, therefore, found no difficulty in regarding the will of a person entitled to the use or bene- ficial interest of land, as amounting to a declaration of use, and by this sophistry evaded the Common law prohibition against testamentary alienation of real estates. The privilege thus surreptitiously gained, was doomed to be annihilated by the far famed Statute of Uses, (also hereafter more particularly noticed), which, by annexing a Conunon law seisin to the use, virtually destroyed all those immunities from Common law restrictions which attached themselves directly, or by consequence, to that creature of subtlety. Indeed, the "disherison of heirs by means of last wills and testaments," was one of the "subtle inventions and practices " which it was the express object of this statute to remove. The convulsion occasioned by this constructive operation of the Statute of Uses, and the bent of the times (which greatly favored the free alienation of property), procured the \statute of 32 Hen. 8, c. 1, explained and extended by that of 34 Hen. 8, c. 5 ; by which the power of testamentary disposi- tion of real estate was for the fii'st time since the introduction of the feodal system into England, allowed by the law of the land ; subject nevertheless to a restriction as to one-third of lands held in chivalry, which, by the abolition of military services in the reign of Charles the Second, ceased to exist. The operation of these statutes did not extend to lands CHAP. I.] A PRELIMINARY INQUIRY, &C. 17 of copyhold tenure ; but, over these lands, a testamentary extend to power was always indirectly exercised, through the medium *)f surrenders to the use of wills ; the wills operating as declarations of the uses of the surrenders. The necessity for these surrenders has also been recently abolished ; and copyhold lands have been rendered directly devisable ; with This restriction which extension of the power of testamentary disposition, Ji,ovedT ^^' all limits to its exercise (so far as respects the subject- matter of devise) have been i-emoved. Not, however, with the external marks or semblances of the feodal system, terminated its influence upon or con- nection with the judicial polity of England, as respects the alienation and transfer of real estate. Among its Some of the immediate tangible -products, is to be found a rule of vital effects of feodal practical importance in every disposition of freehold pro- fh""kw*?f"^°" perty, which is maintained with a strict inflexibility, worthy alienation, of a feodal off'-shoot. This is the well-known doctrine of law, that freehold corporeal interests cannot be created to commence in futuro ; the original foundation for which was, the necessity that the inheritance should always be full and presently represented by a tenant, against whom the lord might come for his rents, suits, and services. Another proper result of feodalism in connection with the transfer of freehold property, was the general (or even, at first, universal) mode of alienation by livery of seisin, or cor|)oral investiture of the land, in an open and public manner. This served a double purpose ; the information of the lord as to who was responsible for the feodal fruits of tenure, and the apprising persons, l)y the notorious change of ownership, against whom their writs were to be brought. li is true, this mode of alienation is now seldom resorted to; but the absolute necessity for livery of seisin to the validity of a feoff*ment, and the superior force of that assurance to all others, when so accompanied, render this product of the feodal system of more than his- torical or theoretical importance. A further consequence 18 A PRELIMINARY INQriRY, &C. [CIIAP. I. Universal rule of tenure, fcodal. 2. Of the lilies of inhe- ritance and succession un der the feudal law. ot" feodal ])rinciples was for some lime exemplified in the constant practice of attornment by tenants, on a transfer of the reversion to which their rents and services were incident; a practice since rendered unnecessary through legislative interposition. The necessity for words of limi- tation in conveyances at common law may, likewise, be considered to have originated under feodal auspices ; the presumption, apart from positive law, being, that a simple declaration of intention to change the ownership in pro- perty should pass the whole interest in that property ; and feods not having been originally descendible, but having become so only by express gift contained in a})pended words of inheritance. Thus much for the alienation of feods. We may here, however, remark as respects the possession of real estate, and the rights and lial)ilitles consequent upon it, that the first and foremost principle of feodalism is the basis of the whole superstructure of the English hnv of real property at this hour, as certainly as when it was first imported by the Conqueror and his Norman barons, or their predecessors in the establishment of feodalism : the principle, that is, that the monarch is the original proprietor of all the lands in the kingdom ; and that they are, therefore, held either mediately or immediately of the Crown. To the force and operation of tliis rule of tenure, oiu" doctrine of escheat (to mention but one instance) bears practical attestation. 2. We now pass on to consider our rules of inherilance and succession, and our canons of descent, which (notwith- standing their mutilation in many respects by modern and ill-digested enactments) are living witnesses to the genius and fundamental principles of a system, which the inde- pendence and conceit of new-born theories have been apt to stigmatize as altogether rude and uncivilized. Nor do they bear witness to the system or its principles alone, but testify also of its wisdom, and its suitableness, no less to the CHAP. I.] A PRELIMINARY INQUIRY, &C. 19 purposes of a commercial commonwcallli, than lo the union and defence of a mihtary peojile. To form a clear conception of the extent to which the maxims and principles of the feodal law in the regulation of the rights of property have contributed to the form and pressure of our own, it will only be necessary to bear in mind the striking contrast presented by the former to the doctrines and rules of inheritance and succession of the Roman or civil law ; that law being the only other distinct and systematic body of jurisprudence upon the subject (if we except, perhaps, the Code Napoleon) known to the civilized world. Thus, (e) in the Roman law, the distinction between real rpi^^j^ peculiar and personal property, except in the term of prescription, features as is seldom discoverable; but, in the feodal law, the legal those of the incidents and qualities of the two kinds of property are entirely dissimilar. The Roman law of inheritance em- braces both kinds of property equally : the feodal law of inheritance is, most strictly, confined to real property, and, as Mr. Butler has said, almost turns with disdain from all property of the personal kind. By the Roman law, the heir was a person instituted by the proprietor himself, or, in default of such institution, appointed by the law, to succeed both to his real and personal property, and to all his rights and obligations. In the feodal law, he is a person related in blood to the ancestor; and, in conse- quence of that relationship, entitled, either merely by act of law, or by the concurrent effect of law and the charter of investiture, to succeed, at the ancestor's decease, to his real or inuiiovcable property, not given away from him by will. In the civil law, he was considered as representing the person of the deceased ; and, in consequence of that supposed representation, the law cast on him the property and rio-hts of the deceased, and fixed on him all the de- (e) The writer lias to acknowledge distinctive features of the two systems his obligations to Mr. Butler, for the alluded to. See note to Co. Litt., brief outline, here attempted, of the and the Horse Juridica; Subsecivse. C 2 20 A PRELIMINARY INQIIRY, &C. [CIIAP. I. ceased's cliarges and obligations. Thus, by a fiction of the law, the person of the ancestor was cQnlinued in the heir, so that, in all religious, moral, and civil rights and obliga- tions, the heir, in the language of the Roman lawyers, was eadetu persoiui cum defuncto. In the feodal system, he succeeded to the real property only of the ancestor ; and this, not under any supposed representation to him, or in consequence of any supposed continuation of his person, but {IS related to him in blood, and, in consequence of that relationship, as a person designated by the original feodal contract, to succeed to the fief. Again, the Roman heir claimed, as such, all from the person last possessed, and nothing from the original donor : the feodal heir claimed, as such, all from the donor, and nothing from the person last possessed. The same difference in those laws is also observable with respect to the order of succession. By the Roman law, on the decease of an intestate, the descendants, of whatever degree, were called to the succession, in exclusion of all other relations, whether ascendants or collaterals, and without regard to primogeniture or preference of sex. Where the intestate left no descendants, such ascendants as were nearest in degree, male or female, paternal or ma- ternal, succeeded to his estate, in exclusion of remote heirs, and without any regard to representation ; but with this exception : that where the deceased left bi'others and sisters of the whole blood, besides ascendants, all succeeded in equal portions in capita ; and here, if, besides ascendants, the deceased left brothers' and sisters' children of the whole blood, the children succeeded to their parents' share, by representation in stirpes. Where the intestate left no des- cendants and no ascendants, the law called the collaterals to the succession, giving a pi'eference to the whole blood. In default of a legal heir, the estate became a res caduca, and the fiscus, or exchequer, succeeded. Such appears to be the general outline of the Roman law respecting succession. The feodal regulations respecting successions CUAP. I.] A PRKLIMINAIIY INQUIRY, &C. 21 differed from it in almost every respect. Originally, fiefs were granted to be held at the will of the donor, and were, therefore, resumablc at his pleasure ; then they were granted for a year certain ; then, for the life of the grantee ; then, to such of the sons of the grantee as the donor should ap- point. Then all the sons, and in default of sons, the grand- sons, were called to the succession of the fiefs : in process of time, it was open to the fourth, fifth, sixth, and seventh generations, and afterwards to all the male descendants, claiming through males, of the first grantee, and at last was sufl'ered to diverge generally to collaterals. But this, as to such collaterals as were not lineal heirs of the first donee, was effected through the medium of a fiction completely and peculiarly feodal : — Where a person took by descent, his brothers, though in the collateral line of relationship to him, were in the direct course of lineal descent from the an- cestor. In proportion as the descent from the ancestor was removed, the number of persons thus claiming collaterally from the last taker, and lineally descended from the first, was proportionably multiplied. In the course of time, the first-taking ancestor was forgotten, and then, it was pre- sumed, that all who could claim collaterally from the person last in the seisin of the fee, were of the blood of the original donee. On this ground, in later times, when, upon the grant of a fief, it was intended that on failure of lineal heirs, the fief should diverge to the collateral line, it was granted to be held with the original incidents and properties with which the donee would have held it, had it vested in him by descent, in a line of transmission from a distinct and for- gotten ancestor ; and among them, that of transmissibility to collaterals. In technical language, this was the gi-ant of a fief, novum ut antiquum. But the most striking point of difference between the Roman and the feodal course of succession, is the prerogative allowed by the latter to pri- mogeniture. To the eldest son, the Roman law showed no preference : wherever the feodal polity has been established, 22 A PRELIMINARY INQUIRY, &C. [ciIAP. I. he has been allowed several important prerogatives. In EugUind, priniog;cniture obtained in military fiefs, as early as the reign of William the (Jonqneror, bnt with this (quali- fication, that where the father had several fiefs, the primum patris feudum only, belonged to the eldest son. In the reign of Henry the Second, primogeniture prevailed ab- solutely in military fiefs, and, in die reign of Henry the Third, or soon afterwards, the same absolute right to the succession by primogeniture obtained in socage lands. In all countries where the feod has been established, a marked distinction in the order of succession has, in direct o})po- sitioii to every principle and practice of the Roman law, been shewn to primogeniture. Another striking point of difference between the Roman and the feodal polity, is the contrast between the absolute dominion over the inheritance with which the Roman law invested the heir, and the numerous and intricate fetters with which the feodal jurisprudence (of England, particu- larly,) has permitted it to be bound. The Roman law (it has been alread}'^ stated) permitted a person to appoint his heir, and invested him with all the rights, and imposed upon him all the obligations, of the deceased. This gave rise to the vulgar, the pupillar, and the quasipupillar substi- tutions. The vulgar substitution was where the testator appointed one to be his heir, and if he refused, substituted some other person. These conditional substitutions might be extended to any number of heirs. When they were made, the heirs instituted under them were called in suc- cession to accept or refuse the inheritance. When once an heir accepted the inheritance, it vested in him absolutely, and all subsequent substitutions entirely failed. The pu- pillar substitution was where a father substituted an heir to his children, under his power of disposing of his own estate and theirs, in case the child refused to accept the in- lieritance, or died before the age of puberty. The (piasi- pupillar substitulion, was where the children past puberty. CHAP. I.] A PIIELIMINARY INQUIRY, &C. 23 being unable themselves, the father, in imitation of the pnpillar substitution, made a testament for them. In all these cases it is evident the dominion and substance of the inheritance were preserved entire and uncpialified. In two instances, and in two only, the Roman law admitted an ex- ception to their integrity. The first was in the case of an usufruct ; where a right was given to one person, to use and enjoy the profits of a thing belonging to another. The second was the case of a fidei commissuvi, when the in- heritance was given, in whole or in part, to an heir, in trust that he should dispose of it to another. But neither of these devices suspended the absolute vesting of the inheri- tance. An usufruct could not be extended beyond the life of the usufructuary. The Jidei-commissarius (the person beneficially interested in the inheritance) could compel from the hceres fiduciarius (the trustee) a transfer of the in- heritance immediately on the accruer of his right. Thus the property and dominion of the inheritance absolutely vested in him in equity, with an immediate right to compel a transfer of it. In this manner, by the Roman law, the lieir succeeded, in every case, to the absolute property of the inheritance, and to all the rights and obligations of the ancestor. The alterations occasioned by the introduction of a fidei-commissarial substitution are, however, to be con- sidered as a departure from the genuine spirit of the Roman law, in the doctrines respecting inheritances. From that spirit nothing could be more different, with respect to the tenure and modifications of property, than the regulations of the feodal law. According to these, the heir was a nominee in the original grant: he took every thing from the grantor ; nothing from the ancestor. The consequence was, that while the absolute or ultimate ownership was sup- posed to reside in the lord, the ancestor and the heirs took equally, as a succession of usufructuaries, each of whom, during his life enjoyed the beneficial, but none of whom possessed or could lawfully dispose of, the direct or absolute 24 A PUiiLIMIXAnY INQUIRY, &C. [chap. I. Extent in whifli the con- trait between thi; feodal system and the civil law, as to the rules of inheritance and succession, is applicable to the English system of real property. Specification of those por- tions of the English system of real property attributable to feodal prin- ciples, with notice of other portions of a similar charac- ter recently abrogated. dominion of the property. Thus, while by the Roman law, property was vested in the possessor solely and absolutely* every species of feodal property was necessarily subject to the three distinct and clashing, though concurrent rights, of the lord, the tenant, and the heir. It must not, of course, be considered that all that is pre- dicated of the feodal system, or its maxims and rules, is equally applicable to English jurisprudence in relation to the succession and inheritance of, and power over, real property. Respect is to be had to the many modifications of feodal strictness (as, for example, the subjecting lands to the satisfaction of the deceased owner's debts, of whatever class,) which the exigencies of commerce, and the demands of an increased civilization, have rendered necessary. But notwithstanding the due allowance to be made for these considerations, it may, nevertheless, be asserted that the contrast between the doctrines and rules of the feodal system and the Roman or civil law, above given, unam- biguously testifies to the former as the source, whence the rights of property, as they obtain in England, are derived, and to which their distinctive features are to be traced. If lands have l)een renege red liable to the debts, whether specialty or simple contract, of deceased owners, in the hands of their devisees or heirs ; if the rule which preferred the elder title by descent, when the heir was also express devisee or grantee of his ancestor, has been abolished: if lineal ancestors and semi-kindred or the half-blood have been invested with heritable capacity ; if the rule which prevented a person attainted from transmitting inheritable blood to his descendants has been set aside, so as to admit of descents being traced through such a person j (though the impeding descent, by the attainder of a person through whom it must be traced, was rather a refinement upon the feodal system, than of its essence, or a property belonging to it ;) if the doctrine svini/ia J'acil slipilem, or the rule that actual seisin CHAP. I.] A rUL'LLMINARY INQUIRY, &C. 25 in an ancestor was necessary to his becoming a stock or root of descent, has been exploded ; if, in all these respects, feodal maxims have been made to yield to modern con- venience, or to a more questionable policy, there are still very many feodal remnants discoverable in our laws of property, (and they of no mean importance,) which have escaped modern iimovations. To the influence of the feodal system, testimony is still borne by our laivs of inheritance, in the preference of males among persons of equal degree ; in the rule of primogeniture, amongst males ; in the rule of representative primogeniture, as opposed to proximity of blood ; in the equal succession among females ; in the suc- cession in stirpes ; in the exclusion of one of the lines of heirs ex parte maternd or ex parte paternd, (as the case may be,) in case of a course of descent in the other of such lines ; in the preference of male stocks of descent ; in the rule of representative dignity or worthiness of blood, as opposed to proximity of kindred; in the exclusion of illegitimate off- spring from all rights of inheritance ; and in the deprivation of aliens (until denization or naturalization) of all power of acquiring property, either by inheritance or purchase, (although, perhaps, this rule is not, in all respects, proper to feodalism): by our laivs of limitation and settlement of estates, in the superior respect paid to the title of the heir, and the general prima facie presumption in its favour ; in the rule not allowing an heir to take by purchase where there is a prior limitation to his ancestor ; in the rule that freehold estates cannot be created to commence in futuro ; and that contingent remainders must vest eo instanti of the deter- mination of the particular estate : by the laws which entitle the crown by escheat and forfeiture, on extinction or cor- ruption of blood of the person last seised : (though the laws of forfeiture are, perhaps, more properly, independent of feodal origin ;) and by the wholly dissimilar nature of the laws which regulate the distribution of and succession to the two classes or primar/j divisions of propcrti/, one or 26 A rUKMMINAIlY INQUIRY, &C. [CIIAP. I. olhcT of which embraces every thing capuble of ownership; namely, real and personal estate, and the principles which appertain to each. (/) (/) The Commissioners on the law of real property, thus remark on the influ- ence of the feodal system upon the Eng- lish laws of property. " Although te- ««r(', which was introduced for the mili- tary defence of the kingdom, has long survived its principal object, its con- sequences so deeply and extensively pervade the whole system of our law of real property, that the abolition of it would be an innovation too dan- gerous to be prudently hazarded. The necessity would immediately arise, of providing, by positive enact- ments, for all the rules deduced from tenure, which it is intended to pre- serve. Some of these, notwithstand- ing the greatest care, would probably escape attention ; many questions would arise upon the meaning of the terms in which the existing laws would be declared ; and all the dan- gers and evils of codification would be encountered without its advan- tages." — Third Report, p. 4. The just sentiments contained in the fol- lowing extract from the examination of the late Mr. Justice Taunton {then at the bar,) arc happily expressed. " I consider the variety of tenures, in the narrow extent in which they exist, as a beauty and not as a blemish. They illustrate the antiquities, and confirm the history of the country. They bring home to our apprehension, ancient manners and customs which no longer exist, and set before our eyes, a faint but interesting picture of feodal relations. All this may be prejudice, but I own I should be sorry to see all these venerable remains sac- rificed to a dry and barren uniformity." See First Report, p. 100. It is a fact, worthy of notice, that of twenty-eight lawyers, who were personally examined by, or returned their opinions to the Commissioners, on the question of the retention of the principle of tenure in our laws of real property, as con- tradistinguished from a system of allodial ownership, twenty-five con- sidered it advantageous ; and only the remaining three were favourable to its rejection. Among the former are to be found the names of Butler and Bell, and most of the eminent conveyancers of the present day. 27 CHAPTER II. OF THE EARLY MODES OF SETTLEMENT AND ENTAIL OF REAL PROPERTY. Section I. Of property of Freehold Tenure, by means of Conditional Fees at Common law, and Estates tail under the Statute De donis conditionalibus. The law of England though now abhorring a perpetuity, preliminary and refusing validity to any disposition, either testamentary '"cmarks. or by instrument inter vivos, in any degree tending to it, has not always evinced the same regard for the free circu- lation! of property, and the interests of commerce. In the times when feodalism reigned, and its many and barbarous concomitants all served to aggrandize the wealthy baron, and reduce the fief-holder to a slavery of tenure, and, there- fore, a slavery of life and action, — when the former was the legislator enacting laws for the obedience of the latter, — in such times it can be no matter of surprise if we find a system of devolution of propert}' sanctioned and established, the proper and ultimate effect of which would be national poverty, and the loss of all national vigour and enterprise. Such a system was that originated by the statute of West- minster 2, in the thirteenth year of Edward the First, com- monly called the statute De donis conditionalibus. VVe have seen that under the feodal polity, as it stood in Notice of its original simplicity, where land was granted to a man and tj^.g ;„ respect his heirs, the lord was entitled to the services of his tenant to alienation ' and settlement. 28 EAIll.Y >1(»I)KS OF [chap. II. Dower and curtesy the only provision claimable against the lord, and heir. Acquisition of a general power of alien- ation intro- duced condi. tional fees. Their nature and operation. and to the reverter of the land, if the tenant died without heirs ; and that to the tenant was secured the actual enjoy- ment of the land, and its warranty and acquittal by the lord ; whilst the heir was cntided to the inheritance on the decease of the tenant. The heir, however, derived his title under the terms of the grant, and was, therefore, considered as claiming above, not under, his ancestor. Thus, land was at that time, subject to the three distinct rights of the lord, the tenant, and the heir ; and though the lord and tenant might join in the disposition of the inheritance, yet the concurrence of the heir in such disposition not being to be had, (as in the view of the law the heir did not exist in the lifetime of the ancestor, and his concurrence, therefore, could not be had,) it followed that any disposition by the former parties was invalid, and hence, under these feodal restrictions, land was wholly inalienable, and could not be modified into any form of settlement, {g) The feodal incidents of Dower and Curtesy were attached by law to estates of inheritance, and were the only provisions that could be claimed against the lord or the heir. We have also seen that by degrees, the right of the lord and the heir so far as they restrained the tenant's alienation of the land, ceased to be considered. This general ])ower of alienation inti'oduced limitations called conditional fees ; one species of which was formed by a grant of land to a j)erson and the heirs of his body. This mode of limitation operated as a settlement of the land, so far as that until the donee had issue inheritable under it, he could not alien nor charge the land ; but, after he had issue, the condition was supposed to be performed, and he might dispose of the land at his pleasure : if he made no such disposition, the land descended to the heirs of the body of the grantee, and on failure of such heirs, it reverted to the lord. " This," says Mr. Butler, " was the first attempt in ( g) Of course, an expectant heir might concur in a disposition of the inheritance, and would be bound in the event of his actually succeeding. Vide, supra, p. 12. SECT. I.] SETTLEMENT AND ENTAIL. 29 our law, at a settlement of veal property." The distinctive feature of this conditional fee, was, it will be perceived, its alienability, after the grantee had issue, by himself and every person who came into possession of the land under the grant; which deprived the heir and the donor of all security for the devolution of the land on them. The inclination of the Common law, therefore, after the indiiuition of power of alienation was established, was favourable to the ^ common r law favourable free disposal of property ; because, under its construction of to the free .(. . . . , . , . -Ill alienation of the gift in question, it was, obviously, impossible that the pro()erty, property could remain inalienable for a longer period than construction ^of the life of the grantee ; the birth of issue in his lifetime ^^*-'^^ o'fts. determining the condition, or his death without issue giving possession to the right of reverter remaining in the donor. This state of the law, however, suited not the ambitious Reasons of schemes of the all-powerful nobles of the realm. Their jesmn^rTcon- dignity required support, and their power was commensurate struction of only with their acres, and that support and those possessions wiiit-h would could not be guaranteed but by the perpetual transmission property for of their estates in the line in which their tides descended. ^•"'"" *'''™'|'es or Qcscendants. Moreover, they desired perpetually to free their estates from liability to forfeiture for treason ; an object which could be secured by the creation of a perpetual entail ; by analogy to the case of fees conditional at the Common law, which were not forfeitable for treason, before issue born, longer than for the life of the donee. These objects were incompatible with the rules of the Common law, by which the fee simple became absolute, and at the disposal of the donee, the instant any issue was born. Resort was had, therefore, to the Legislative power then Legislative wielded by the very persons seeking this alteration: and [heTr\lSres*by the result was, the statute Westm. 2, 13 Edw. 1, c. 1, which statute rf. ,/<»,/» enacted, that " concerning lands given upon condition, creating estates namely, where any giveth his land to a man and his wife and to the heirs begotten of the bodies of the man and his wife, with condition expressed that, if the man and his wife 30 EARI-Y MODES OF [ciIAP. II. (lie withoul heirs of llieir bodies between them begotten, the land siiall revert to the giver or his heirs ; also where one giveth lands in free marriiige, which gift hath a condi- tion annexed, though not expressed in the deed, that if the husband and wife die without heirs of their bodies, the land shall revert to the giver or his heirs ; also where one giveth land to another, and to the heirs of his body issuing ; the will of the giver according to the form in the deed of gift shall be observed ; so that they to whom the land was given under such condition shall have no power to alien the land, but it shall remain to their issue after their death, or shall revert to the giver or his heirs if issue fail ; neither shall the second husband of any such woman have anything in the land so given, after the death of his wife, by the law of England, nor shall the issue of the second husband succeed in the inheritance ; but immediately after the death of the husband and wife to whom the land was given, it shall return to their issue, or to the giver or to his heir." Thus, under the plausible pretences of observing the will of the donor, and favouring the interests of the issue, was raised by the Legislature the " mighty fabric" of perpetual entail — mighty in its originators, mighty in the vast extent of territory ultimately brought within its grasp, and mighty in its consequences. That this enactment should have been made in the reign of a Prince, whose generally wise and wholesome laws have conferred on him the title of the English Justinian, may, at first sight, seem a matter of surprise ; but the solution of the difficulty is to be found in that extraordinary influence exerted by the great barons in his and in the previous reigns, over both crown and people, of which abundant evidence is afforded in the page of history. Probability of It was obviously impossible, however, that a law conceived proving^Smcl! in a spirit so dangerous, and of a tendency so hurtful, could come to the alwavs continue entirely acceptable even to those by whom different classes -^ ./ i ■ i • rr i i of the com- it was originated and fostered. Restricted \i\ effect by the munity. SRCT. I.] SETTLEMENT AND ENTAIL. 31 statute de donis to the enjoyment of a mere life estate in their lands, and deprived of the power of alienation of any greater interest, these forgers of their own fetters would soon find their possessions, though of vast extent, compara- tively worthless, and themselves unable to meet the lavisli expenditure incurred in those wars and civil commotions, wherein, by the imprudence of some of their sovereigns, and the warlike tempers of others, they were necessarily and frequently involved. As the nobles would, in this respect, desire the removal of the statutory restrictions to the complete enjoyment of what they already possessed, so the advancement of commerce would lead the wealthy mer- chant and trader to seek the abrogation of a law, operating as a partial prohibition to their acquisition of that kind of j)roperty, which at once adds im[)ortance to character, and gives permanency and stability to the results of successful industry. Nor would the judges of the common law be insensible to the poisonous influence of this wide-spreading upas tree, upon the social- health and vigour and life of the nation, {h) (h) " At Common law, all estates were fee simple, absolute or condi- tional, which created a wonderful quiet and repose to the public ; but when this family-law was introduced, and these fettered inheritances estab- lished, it is not to be imagined what suits, troubles, and disputes, they created, as indeed it always happens when the grounds of the ancient com- mon laws of this kingdom are altered. And the reason is obvious, for the common law of England having its force from immemorial custom, and, as my Lord Coke observes, being re- fined by the experience of many ages, its goodness is formed by its use ; but when this excellent institution is al- tered by a positive law, though the change has a gay outside, yet time shows the inconvenience of the alter- ation, and the liCgislature having only a present conveniency in view, the new law, when used, manifests that what was intended profitable, proves often destructive ; and so it fell out in making the statute de do7ds, which created estates tail, turning all those estates which were fee simple at Com- mon law into those entailed estates, which being of an amphibious nature, and participating so much of a fee as to be inheritance, and yet tenant in tail in some respects, having only an estate for life, this odd mixture created infinite difficulties not foreseen, but experimentally found to be very troublesome to the quiet of the state." Pig. Recov. pp. 5, 6. 32 EAni.Y MODES OK [CIIAP. II. Failure of attempts to procure a repeal of the statute. Reason of this Statute fie donis intro- duced settle- ments of real property liy way of estates tail and re- mainders. Notwithstanding, however, the concurrence of these in- terests in favor of a Parhamentary repeal of the obnoxious statute, such a repeal was found impossible. The Com- mons, indeed, frequently endeavoured to obtain legislative provisions favorable to alienation by tenants in tail, but all attempts to bring the second Estate of the realm to consent to a repeal of the statute De donis, were fruitless. The exemption of estates tail from forfeiture for treason, fully compensated, in the minds of the nobles, for all the other inconveniences attending them ; an exemption, of the full value of which, during the civil contests then waging, when each party, in its turn victorious, visited its opponents with wholesale attaint, we can form no adequate estimate. All these things paved the way for a gradual evasion of the statute, by the constituted administrators of the law ; an evasion which, it has been well said, " ingenuity fabricated, and necessity adopted." We are to observe, in fine of this part of our subject, that the statute De donis gave rise to the settlement of real property, by way of estates tail and remainders; as the estate created by the statute did not, like the conditional fee, at common law, embrace the whole fee, but was a new kind of inheritance, admitting of further limitations after or expectant upon it. Section II. The question of the applica- bility of the Of Settlements of property of Copyhold Tenure, by means of Conditional Fees and Entails, under Customs. It remains for us to say somewhat respecting conditional fees and entails in lands of copyhold tenure. It has b6en matter of much learned controversy whether the statute De donis conditionalibus can be said to extend SECT. II.] SETTLEMENT AND ENTAIL. 33 to copyhold laiicls, so as to make them the subjects of a statute Je ., 1 !• 1 1-1 1 • dtmis to copy- Strict entail, resembling that which we have seen was in- holds. troduced by that statute with respect to freehold estates. Some have considered that by the joint co-operation of a The different - ... 1 1 o T^ J • opinions en- cusloni 01 entailing and tiie btatute JJe donis, an estate tertained may be created in copyholds, having all the qualities of an tnereon. estate-tail ; (i) others have maintained that the statute neither had nor could have had any connection whatever with lands of copyhold tenure ; (k) while others, again, have thought that copyholds were within the Statute of Entails, and may be entailed as well as other lands, (/) The general opinion at the present day is, that the Statute J)e donis does not extend to copyhold lands, and that it has neither an indirect nor any other influence in favor of the creation of estates-tail in such lands. It seems to be No entail in generally agreed, that before the statute, limitations of g^Sm^by cus- copyhold lands to a man and the heirs of his body were tom. common, and that such grants generally passed a fee-simple conditional, resembling in its characteristics the estate which was created under a similar limitation in freehold lands. With respect to gifts of this class since the statute, the better opinion seems to be, that, unless there is a custom to entail in the manor within which the lands are situate, they pass a conditional fee of the same kind. There may, however, be a custom in manors to create estates-tail, and such a custom, it should also seem, was not wholly unknown before the statute De donis. But the mere fact that lands have anciently and usually -what neces- been eranted by copy of court roll to persons and the heirs ^^^ ^° f^^^ * o J 1 ./ r custom to of their bodies will not, of itself, prove a custom of entailing entail. copyholds, for such grants might have created estates in fee-conditional at Common law. To prove that an entail (0 Co. Litt, 60. Gilb. Ten. 169. (0 Lord Hak,'m 3 Lev. 327. Pig. (/c) 1 Scriv. Cop. 68, et seq. 1 Rccov. 101. Prest. Conv, 153. 34 EAHLY MODKS OF [c HAP. II. When an estate tail, and when a condi- tional fee. A custom to entail not necc'SStirily existing in all manors admit- ting of the creation of estates in fee- simple. may be created, there must have been a custom allowing a remainder to be limited over after such an estate, (such a remainder not being reconcileable with a fee-conditional,) or empowering the copyholder to alienate before issue born, (which he could not do in respect of a fee-conditional,) or the issue must have recovered the lands in writs of formedon in the descender. To use the words of a recent writer upon this subject,(7») the immemorial existence of those privileges, which, under a limitation to a man and the heirs of his body, create a constructive estate-tail, is very common, and has frequently availed in questions upon copyhold titles ; so that where a remainder may be grafted on the limitation to the heirs of the body, which remainder is inconsistent with a fee- conditional, for no remainder could be limited after such an estate ; or where the tenant is permitted by the custom to claim even before issue born, in prejudice to the right of reverter, an estate limited to a man and the heirs of his body, is in the nature of a fee-tail at (Common law, since the Statute De don is ; and where from a more jealous preservation of the right of reverter, such remainders are not allowed, or the power of alienation originates with the birth of issue, the estate is in the nature of a fee-conditional. In opposition to these views, another learned writer (;/) has maintained, that the power of creating entails neces- sarily exists in all manors where a grant in fee-simple is allowed ; but to this it has been judiciously answered, (o) that although a custom to create a fee-simple will warrant a grant to a person and the heirs of his body, yet, that such a limitation would be a fee-conditional, unless the privileges of an estate-tail at common law have grown out of the custom of the manor under an immemorial usage. (wt) 1 Scriv. Cop. 69. (n) 1 Watk. Cop. 153. (o) 1 Scriv. Cop. 70. SECT. II.] SETTLEMENT AND ENTAIL. 35 With respect to the creation of entails in equitable Of the creation estates, the rule is, cequitas sequitur legem, and, therefore, the trust of wherever the legal estate does not admit of an entail at law, <'opy^o^<^s. an entail in equity is equally excluded; and, of course, wherever the legal estate of a copyhold is capable of an entail, the equitable interest is equally entailable. D 2 36 CHAPTER III. of the unfettering of entah^s. Section L The evasion of the Statute De donis, hy Common Recoveries and Fines. The gradual The first rule which the judojes adopted in relation to establishment i o • . i i • of the doctrine the htatute De donis conditionalibus, was, that the issue issue in tail ^ could not avoid the alienation of his ancestor, provided he by the descent [j^d a recompense in value by his ancestor for the estate- 01 a recom- '■ *' pcnse in value, tail which he had alienated, (p) Another rule, upon the same principle, was, that lineal warranty (q) by the tenant in tail, with assets descending to the issue in tail, was a good bar of the estate-tail. This doctrine was established by analogy to the Statute of Gloucester, 6 Edw. 1, c. 3, by which it was enacted, that warranty by a tenant by the curtesy descending upon his son, should be no bar to the son entitled to his mother's inheritance, unless assets descended from the father. And so, the judges, in ex- pounding the Statute De donis, held that lineal warranty with assets should be a sufficient bar to the estate-tail ; it being, according to Blackstone, (r) nothing more than, in ( p) Octavian Luinbards case, warranty ; as where a father, or an stated in 10 Rep. 37 b, and other elder son in the lifetime of the father, cases there cited. released to the disseisor of either of (q) " Lineal warranty was, where themselves, or the grandfather, with the heir derived, or might by possi- warranty, this was lineal to the bility have derived, his title to younger son." — 2B1. Com. 301. the land warranted, cither from or (r) 2 Com. 303. And see I.itt. through the ancestor who made the ss. 712, 749, SECT. I.] EVASION OF THE STATUTE I)E BONIS. 37 effect, exchanging the lands entailed, for others of c(pial value. It will be observed that in the preceding modes of barring estates-tail, the recompense in value, which descended to the issue in tail, was a real and bond fide recompense ; and as far, therefore, as they were concerned, no great advances had been made towards the unfettering of estates-tail, because by them no loss accrued t(!( the issue inheritable to the entail. It was, however, also determined And of the that such of the heirs of tenant in tail as were entitled in ^.^ °' '^^Y'^' sions and re- remainder or reversion, might be barred by the collateral n>ainders by collateral warranty of the ancestor descendmg upon them, even warranty witb- without assets ; which was, manifestly, an important increase pense.'^"'" of the power of tenants in tail over their lands. At length, the crying evils attendant on perpetuity of invention of entail, and the imperfect character of the powers extended *^?'"'|"?" to tenants in tail towards the removal of those evils, induced "P"" ^'^^' ground of a the judges to have recourse to, what Sir Wm, Blacks tone fictitious re- has happily denominated, " a kind of pia fraus ;'' the means, thrfss'ue! no less than the end of which, that learned writer considers worthy of admiration. This was effected in the twelfth year of the reign of Edw. 4, by the decision in a case, which may be deemed second only in importance to the Statute De donis itself. In this case, which is commonly called Taltarunis case, [s) the judges carried the principle of a recompense to a much greater length than any that had before occurred, and, in effect, determined that a nominal and fictitious recompense descending to the issue in tail, should be an effectual bar, not only to the issue in tail, but also to all persons in remainder or reversion. On the authority of the principles laid down in that case, depend the force and validity of that species of assurance called a common recovery ; which, until a very late period, (t) was almost the universal mode of barring estates -tail and the 'O (s) 12 Edw. 4, Year Book, 14, 19. providing greater facilities for that (<) The year 1834, since which purpose; as to which, vide infra, p. time, the mode of barring estates tail 42. is regulated by 3 & \ Wm. 4, c. 74. 38 UNFETTERING OF ENTAILS. [CHAP. m. remainders and reversion expectant thereon, and acquiring a clear and indefeasible fee-simple. Gladly adopted Thus after the lapse of nearly two centuries, and by a removing the ^^^^^' ^"*^^ gradual proccss, was devised and established a grievances dextcrous mode of evading the effect of a statute, which, as consequent on '-' the statute De Mr. Justicc Blackstone remarks, {u) was justly branded as the source of new contentions and mischiefs unknown to the Common law, and almost universally considered as the common grievance of the realm. And, notwithstand- ing that this judicial approbation of a scheme for unfettering estates-tail operated in direct contravention of the letter and spirit of the Statute De donis, and so trenched on the line of demarcation between the judicial and legislative functions, {v) the general convenience soon gave sanction and stability to this product of legal, or, more strictly, (as mitres then ruled in halls of justice) ecclesiastical ingenuity. Before, however, the integrity of this new method of unfettering perpetual entails was finally and completely established, it was doomed to encounter, in the perverse- ness of the human will, a trial of its inseparability from the very essence of an estate-tail. But the attempted restraints upon the liberty of suffering common recoveries, will more properly engage our attention, when we have remarked somewhat upon another mode of barring estates-tail, and upon the methods of destroying entails in copyhold lands. Of thedcstiuc- The method of unfettering estates-tail of freehold lands hy fine. to which allusiou is made, was that hyjine, which has been described to be, an amicable agreement or composition of a suit, whether real or fictitious, between the demandant and tenant, with the consent of the judges, and enrolled (m) 2 Com. 116. and custom have given common re- (c) "It is true, pratoris est jus coveries a sanction, &c." — Pig. Recov. dicere non condere, and this altering 8: sed vide, ib. 21, where a common of the law, and evading the Statute of recovery is spoken of as " a convey- Westminster 2, seems to be a tak- ance excepted out of the statute De ing away the force of a positive law donis, by construction of law." without the legislative power, but use SECT. I.] EVASION OF THE STATUTE DE DONIS. 39 among the records of the Court, where the suit is com- menced ; by which lands and tenements are transferred from one person to another, or any other settlement is made relating to lands and tenements, (w) Fines, though of an earlier origin than common recoveries, Not admitted did not legally operate as a bar to estates-tail, until long eStateMail so after the time when that effect was allowed to the latter. ^arly as recoveries. The operation of fines on estates-tail is entirely statutory ; Their effect, whereas that of recoveries was established by the judges ^"^^'^j^^ ^^ without any legislative sanction, though that sanction has been indirectly accorded by subsequent enactments. Prior to the statute 4 Hen. 7, c. 24, fines by tenants in tail worked a discontinuance of the estate tail, and put the issue to their formedon ; nor did that statute expressly impart to such fines any greater force, or give them any additional effect. Some ambiguous expressions in that act, however, gave rise to the question; and in the 19th year of Henry the Eighth, it was decided that the issue was barred by such a fine in pursuance of the statute 4 Hen. 7. [x) Doubts arising as to the correctness of this decision, the statute 32 Hen. 8, c. 36, was passed, by which it was enacted, that a fine with proclamations, levied of any lands, entailed to the person levying such fine, or to any of his ancestors, should bar such person and his heirs, claiming by force of such entail. Thus we see the I.egislature itself repealed that clause of the statute De doiiis, which expressly enacted, that a fine levied of an estate-tail should be void, and the formidable structure of inalienable, unbarrable, perpetuity erected by that statute, was thoroughly razed to its foundations. It only remains to be observed that fines do not destroy Yme% do not the remainders or reversion expectant on the estate-tail, ^^^j^^^^*; ^„d but only create a base fee, to continue so long as there are reversions, issue inheritable to the estate-tail : therefore, a clear fee- ,(«,) 6 Cru. Dig. 10. Bio. Ab. tit. Fine, pi. I. Dyer, (x) Year Book. 19 Hen. 8, 6 b. 3 a. 40 UNFETTERING OF ENTAILS, [CHAP. III. simple can only ])c acriuircd by means of a fine, in cases wliere the tenant in tail is entitled to the reversion or remainder in fee, in which the base fee created by the fine may merge. Section II. Methods of destroying customary estates- tail, V arious. The variotm modes of disentailing Copyhold property. The customary modes of barring entails in copyhold lands (when the custom allows of their creation) were, until a recent period (?/), very diversified. The first was by surrender merely ; in sujiport of which, it seems, there was no necessity for a special custom, and in the absence, therefore, of a custom pointing to any other mode of disentailing lands, this was the proper one to be resorted to. Another mode of barring entails in copyhold lands, was hy customary recovery suffered in the lord's Court, which must have had the like forms as were observed in a recovery of lands of freehold tenure ; but this mode must, it seems, have been authorized by a special custom. A third mode of barring customary entails was, by, what was technically cdWcd, fo7feiture and regrant, which proceeded u})on a custom for the tenant in tail to commit a forfeiture, whereupon the loi-d, after making proclamations, seized the copyhold, and then re-granted it to the copyholder, and his heirs, or otherwise according to his direction. This mode of disentailing customary lands, also required a custom in sup- port of it. A surrender to the use of a will has also been allowed the effect of barring an entail, as well as of ac- complishing the particular object contemplated by it. A plaint in the nature of a fine in the customary Court, was (jr) The reader will perceive that modes of unfettering entails formerly the course and order of this Treatise existing, although since superseded, reijuire a notice, however brief, of the SECT. II.] IN COPYHOLD PROPERTY. 41 also an effectual bar to an estate-tail, provided there was a special custom authorizing it, but not otherwise. Such a fine had no force under the statute, 4 lien. 7, as it was not levied pursuant to it, or in conformity with its provisions. Any one of these modes of barring customary entails might have been concurrent with any other of them, as, for example, a custom to bar by surrender was not inconsistent with the existence of a custom to bar by common recovery in the same manor. In regard to equitable entails, the rule was, that the cus- tomary mode of barring the entail of the legal state of copy- hold lands, must be observed in barring the equitable en- tail of such lands. Some doubt appears to have existed whether an estate- Of the effect of tail in copyhold lands might have been barred by a fine, by tenants in with proclamations levied in the Court of Common Pleas, ^oidfiJJXe either of the legal or the equitable interest ; it being urged, Court of Com- ^ •111- '^°" Pleas. on the one hand, that the freehold interest in the lands is within the jurisdiction of the Courts of Westminster Hall ; and, on the other, that a fine by a copyholder in the Court of Common Pleas would be void, on account of his inability either to implead or be impleaded in that Court, in respect of his copyhold lands. In the writer's view, the civil process of every copyholder in respect of his customary tenements, must be brought by plaint or bill to the lord in his Court ; and as a fine was but a composition of a suit, there does not appear any valid ground of distinction between a fine levied of copyhold land, and of land of the tenure of ancient demesne ; of which latter, it is well known, a fine could never properly be levied in the Court of Common Pleas. It seems to have been always considered clear that a And of similar common recovery in the Courts of Westminster suffered of ^°^"!,"" ^^' copyhold lands, would not be a good bar to an estate-tail ; since a customary recovery was the usually-prescribed mode of barring an entail in a copyhold. 42 UNFETTERINO OF ENTAILS. [chap. hi. Section 111. The Assurances substituted bf/ 3 ^ 4< Gul. 4, c. 74. Necessity for The cunibrous and expensive character of the modes of an alteration , . ., , i i- i i i in the methods oamng estates-tail, nivented to evade, or established on the estat^eT-tjul ruins of, the statute De donis condilionalibus, and the arbi- trary and uncertain methods of destroying customary entails, prevalent in different copyhold manors, led the way for the adoption of a more uniform, easy, and simple system of un- fettering entailed property. The evil of the existence of {)erpetual unbarrable entails in any species of property being admitted, little reason could be shown for making resort to modes of escape from that evil as uninviting as possible ; nor could any intelligent approval be given to disentailing assurances founded on fictions and stratagems unreasonable in theory, and ludicrous in their practical application. That which might have sufficed as a salvo to the consciences of judges for evading a Legislative enactment, whilst paying a tribute to the spirit of their age, ceased to be invested with any such adventitious sanctity, after successive Legislatures had, in various ways and degrees, recognised the current evasions of a law, whose influence was admitted to be hurt- ful, but which, moral strength seemed wanting, to subvert, upon grounds other than fictitious. Reason demanded modes of unfettering entails ; and absurdity was the charac- teristic of such as were mostly in use. The issue of considerations such as these, was the simul- taneous abolition, by statute 3 & 4 Gul. 4, c. 74, of com- mon recoveries and fines, and all the awkward apparatus for disentailing copyhold lands, except the mode by sur- render. The substituted assurances arc, in the case of freehold estates-tail, whether legal or equitable, a simple deed enrolled in Chancery within six months from its date; and in regard to entails of the legal estate in copyholds, a Alteration effected by :) & 4 Gul. -1, c. 74. SECT. III.] UNFETTERING OF ENTAILS. 43 common surrender, and of the equitable interest in lands of the same tenure, a deed entered on the Court rolls of the manor, or a surrender. Thus have disappeared from the catologue of legal per- formances, fictitious recompences, mysterious vouchings to waiTanty, unreal compositions of suits never instituted, and pretended re-grants upon forfeitures never committed, with the numerous train of adores fahularum appropriate to each. But, at the same time, from a remembrance of the vast benefits conferred through the instrumentality of these departed products of legal ingenuity, (all artificial though they v^^ere) in removing the evils of perpetuity of entail, let our elegy be — " peace to their ashes." 44 CHAPTER IV. OF THE FIRST ATTEMPTS TO RESTIUCT THE LEGAL POWER OF ALIENATION, BY CONDITIONS AND LIMITATIONS RESTRAIN- ING THE UNFETTERING OF ESTATES-TAIL. Prefatory Strange as it may seem, an effectual method had no observations. gooj^er \^eQu invented for freeing estates-tail from the fetters of unbarrableness, than some men seemed eagerly desirous of reimposing them, in the shape of conditions or limitations annexed to or engrafted upon the estate in tail at the time of its creation, determining it on any attempt being made to bar or destroy it. These may, indeed, be regarded as the first direct attempts of which we have any information, at the creation of interests in property, the effect of which would be its total abstraction from, or loss for the purposes of couunerce. The perpetuity of entail consequent on the statute De donis was a shackle on alienation imposed by the Legislature, in opposition to the genius and spirit of the Common law, and cannot, therefore, be regarded as an exemplification of the private exercise of the legal power of alienation, in a manner detrimental to its future unre- stricted enjoyment. An interest, consequently, belongs to these incipient exertions of men to enchain their property, in a perpetuity of settlement or line of transmission, pecu- liarly their own. At first doubt- Somc Conflict of opinion appears to have first existed conditions respecting the validity of conditions restrictive of alienation, rcstraininfr auucxcd lo cstatcs-tail ; and the pre|)ondcrancc of authority tiic ri^rlit ot . . barrinf; (States- may cvcu bc Said to havc favoured the view of their legality. tail were good. CHAP. IV.] ATTEMPTED RESTRAINTS, &C. 45 In the reign of Elizabeth, however, it was definitely settled Afterwards that the privilege of levying a fine or suffering a recovery such right is was as inherent in an estate-tail, as a power of alienation '"[^4*^"aii" in an estate in fee-simple ; and that, therefore, any pro- hibition of the exercise of that privilege was to be regarded as repugnant to the nature of the estate, and, consequently, void. Thus, to mention but one authority, a testator devised (») lands to several daughters successively in tail, with a proviso that if any of them should conclude and agree to or for the doing or execution of any act or devise whereby the lands entailed, or any estate or remainder thereof, should by any ways or means be discontinued, aliened, or put away from the person or persons to whom the same were devised, or should willingly or advisedly do any act or thing whereby the said lands might not descend, remain, or come, as limited by the will, that then the daughter or daughters so concluding and agreeing to and for the doing and execution of any such act or devise as aforesaid should, immediately after such conclusion and agreement, lose and forfeit all such estate and benefit as she or they might have or claim, in such manner as if she or they had never been named in the will, and that thence- forth the estate and estates given to her or them should utterly cease and be determined, as if she or they were dead without heir of her or their bodies. The first devisee in tail agreed to suffer a common recovery, and suffered one accordingly ; upon which the devisee next in remainder claimed the estate, as forfeited under the proviso. It was adjudged, however, that tenant in tail cannot be restrained by any condition or limitation from suffering a recovery ; and it was also laid down that the levying a fine within the statute 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36, in bar of the issue, was among those incidents to an estate-tail, which could not be restrained by condition. (2) Mary Portingtoni case, 10 Rep. 37. 46 ATTEMPTKD UESTRAIXTS UPON" THE [CHAP. IV. In whatever form the re- striction is attempted, it will be void. Restrictions upon the power of alienation by tenant in tiiil have been attempted in various forms, but they have as frequently met with a repulse. And it is evident that no other rule could have been adopted in reference to them, unless the judges were willing to see their own scheme for unfettering estates-tail rendered abortive, by the mere annexation to them of restrictive provisoes of the kind under consideration. Mr. Butler (a) has thus briefly summed up the results of decided authorities upon the subject. That the power to suffer a common recovery cannot be restrained by condition, appears by Co. Lit. 233 b, 234 a, and Sonday^s case, 9 Rep. 128. That it cannot be re- strained by limitation, appears by Cro.Jac. 696, i^o^ v.Hinde, and by Sondays case, and other books. That it cannot be restrained by custom, appears by the case of Taylor v. Shaio, in Carter, 6 and 22. That it cannot be restrained by recognisarice, or by statute, appears by Poo/'s case, cited in Moore, 810. That it cannot be restrained by covenanty appears in the case of Collins v. Plummer, 1 P. Wms. 104. That an attempt to suffer a common recovery cannot be restrained, appears by Corbet''^ case, in 1 Rep. 83, Mild- may b case, 6 Rep. 40, and the case of Pierce v. Wise, in Ventr. 321. And that a conclusion to suffer a common recovery cannot be restrained, appears by Mary PortingtonB case, in 10 Rep. 55. To these it may be added, that the power of tenant in tail to suffer a common recovery cannot be restrained by bond ; {b) and that a trust to raise a sum of money in the event of alienation by tenant in tail is also void, (c) (a) Note to Co Litt. (h) It seems a question, however, whether the obligor does not incur a personal liability on his bond, in case of alienation ; the act contemplated by the condition, not being malum in sc, but only malum prohibitum. The like observation applies to a covenant. See on this subject Co. Litt. 206 b. Collnis V. I'htmmer, 1 P. Wms. 104 ; 2 Vern. 635. Randell on Perpetuity, 55, 56. (c) Mainwaring v. Baxter, 5 Ves. 458. CHAP. IV.] POWER OF UNFETTERING ENTAILS. 47 ■ It may, too, be laid down, that all similar restrictions upon the right of tenant in tail to levy a fine are as invalid, as when applied to his power of suffering a recovery. And it is to be observed, in regard to copyhold tenure, This power ^ . equally be- whercver the tenure warrants the creation of an estate-tail, longs to cus- . , „ , . 1 . • r 11 tomary tenants a rjght of barnng or destroymg it, follows as a necessary -^^ ^^./^f incident to such estate, and, consequently, any restriction f^JJ^^"''^ upon the exercise of that power, whether by an alleged custom, or by limitation or condition in the assurance creating the entail, is void as tending to a perpetuity. As equity follows the law upon the point of destructibility Restrictions on ^ '' '^ ' . * this nght void of estates-tail, it follows that, not only in the case of express also in equity. or direct trusts, but also of trusts executory, or trusts to be more fully declared or carried out by a future settlement, any attempt to restrict this inherent right of tenant in tail, will not be permitted to have effect, whether in the form of direction, condition, hmitation, clause of forfeiture, or otherwise. This inseparable privilege of estates-tail, however, does But tenant for not extend to nullify provisions debarring persons having debarred from life-interests from concurring with a tenant in tail in re- {gnanf in tail in mainder in destruction of the entail during the continuance remainder in " ^ , destruction oi of the estate for life. It is necessary for a tenant in tail the entail in remainder to obtain the concurrence of the owner of the ijfe'"^ "* preceding life-estate, in order to an effectual bar of his estate-tail; but there is no inherent right in the tenant for life to have the power of so concurring. Accordingly, in a recent case, {d) the Court of Chancery gave effect to a trust executory, containing a provision against the tenant for life, (whom the testator seemed to have mistaken for a tenant in tail,) alienating the family estate, (by reference to the limitations of which, the devised property was directed to be settled) by decreeing that the estates devised should be vested in trustees during the life of the tenant for life, (d) Woolmore v. Burrows, 1 Sim. 512. 48 ATTEMPTED UESTHAINTS T PON POWER, &C. [cUAP. IV. in trust for him ; which provision would obviously disable him, by any act during his life, from aliening, or concurrmg in an alienation of the estates ; the remainders to be limited in them, being legal, and the case arising prior to the Act for x\bolishing Fines and Recoveries. It must be observed, _ however, in reference to cases falling within the operation of 3 & 4 Gul. 4, c. 74, that the only modes by which a tenant in tail in remainder can be debarred from destroying the estate-tail and remaindei-s, before the former comes into possession, are the limitation of a prior estate for years not determinable on lives, no freehold interest being vested in any other person; and (as it should seem) a limitation expressly detennining the particular-estate, (of whatever nature,) on its owner concurring with the remainder-man in tail in a destruction of the entail ; which does not seem to be a " device, shift, or contrivance," within the meaning of the 36th section of the before-mentioned statute. Right to Notwithstanding the abolition of fines and recoveries, and execute new j^^ ^^^^ ^Yi^h the assuranccs substituted for them do not clisentailiiig assurances eniov a like intrinsic force and operation, there can be no equally in- •' -^ ... ^ separable from doubt that any attempted restriction upon the power oi exercising the new modes of unfettering entails will be deemed as entirely objectionable and void, as were all restraints upon the right of tenant in tail to levy a fine or suffer a recovery. Indeed, the new disentailing assurances may be considered in this respect as of superior importance ; inasmuch as the Legislature has directly annexed the power of executing them to the estate of tenant in tail; which certainly could not be predicated equally of a common recovery, under the old system of destroying entails. 49 CHAPTER V. OF THE USES PRIOR TO THE STATTTTE 27 HEN. 8, WHICH OPERATED ADVERSELY TO THE RULES OF THE COMMON LAW. Of Uses prior to the statute of 27 Hen. 8, generally Scope of the known as the Statute of Uses, it will be necessary here to vations with say no more than will suffice to trace their connection with "^^P^*^' ^^ the various modifications of Uses since the statute, to which the laws against remoteness are especially applicable. With the origin of Uses as invented by ingenious ecclesiastics, for the purpose of evading the rigorous enactments of the statutes of Mortmain ; with the immunities enjoyed by cestui que use from the various services and feodal liabilities attendant on legal tenure ; and with the progressive assimi- lation of Uses to the Common law of the land ; it is here assumed that the learned reader is well conversant. Our present object will be, to bestow a short notice on those limitations of Uses prior to the statute, which Chancery allowed in derogation of the rules of the ancient Common law, and which, being, by the statute, converted into legal estates, originated the necessity for the salutary rules forming the subjects of consideration in the following pages. On inquiring into the modes of limiting Uses before the Chief cha- statute of Hen. 8, no feature is more striking than the "^serbefore utter contrariety between the strict, undeviatine;, and well- ®!**- ^" ^^'"- ^' '' ^ their entire defined rules of the Common law, on the one hand, and the disregard of tliG strict rules entire absence of any regular forms or rules, according to of the com- -, mon law. 50 USES PRIOR TO 27 HEN. 8, OPPOSED [CTIAP. ^'. The different modifications of estates allowed under the doctrine of Uses which were opposed to the rules of the Common law. which Uses should be modified or modelled, on the other, (e) The Court of Chancery seems to have had but one object in its administration of Uses ; and that, (certainly one which defied all rule or form) the giving complete effect to the expressed or implied intentions of donors or testators, however whimsical, capricious, or opposed to the rules of the (>ommon law. Not only wtis the use disposable by will (which, doubtless, was a beneficial innovation), but by way of use, a freehold was made to commence in futuro ; a fee to be limited on or after a fee ; and one estate to be defeated, and another to arise before the natural expiration of the first. (/) Each of these three modifications of estates, the reader will remember, was disallowed at Common law : the first, because the free- hold could never be in abeyance : the second, because as the law knew no higher estate than a fee-simple, nothing remained to be limited over, after it was once diposed of; and also no estate at Common law could be determined otherwise than by condition or natural expiration, and on a condition no further estate could be limited to any other person : the third, because the Common law regarded no future interest other than as a remainder ; and a remainder must wait for the natural and regular determination of the particular-estate. To exemplify these several classes: — A. might make a feoffment to B. and his heirs, to the use of C. and his heirs, on his marriage, or after seven years, or other future period or event. So, A. might covenant to stand seised to the use of B. and his heirs, at any such future fixed period, or on the happening of any such future event. These are instances of the first kind of limitations : the interest of C, in the one case, and of B., in the other, were allowed to spring up, independently, at a distance of time ; it being settled that a future interest might be created in the first instance, the grantor retaining the entire in- (e) 1 Cru. Dig. 438. (/) Bro. Ab. tit. Feoff, al Use, pi. 30. 13 Rep. 48. Jenk. Cent. 8, 62. Bac. Read, Uses, 18. CHAP, v.] TO RULES OF COMMON LAW. 51 heritancc, dctorminable on the happening of the event upon which the future use was to arise. And so, again, A. might make a feoffment to B., to the use of B. and his heirs, pro- vided that on the death of A., or the marriage of C, the estate should remain to the use of C. and his heirs. Here, B. took a fee-simple, determinable on the happening of the future event, when the use in favor of C. arose, in defiance of the rule of the (Common law, which would not admit of a remainder after a fee-simple. True, it was a fee-simple determinable, but still, even on such an estate, the Common law did not allow any other to be grafted, but gave a right of entry only to the grantor or his representatives, on the happening of the specified event, under a condition resei*ved for the purpose in the deed. And, again, A. might make a feoffment to B. for his Hfe, provided that after the decease of C, or D.'s return from Rome, the land should go to D. in tail, or in fee. In such a case, we see that the future use might take effect by the happening of the specified event, before the regular determination of the first estate, in oppo- sition to the rule, that every remainder must wait for the natural expiration of the particular-estate, and not operate to defeat or divest it. And not only might these future interests be created directly by means of Uses in the original instrument, but also a Power might be reserved to the grantor or some other person, of altering all or any of the Uses, and of limiting others at a future period, (g) and which substituted Uses were all allowed the same latitude of operation, as those originally limited in the instrument creating the Power. Here, again, was an innovation on the strictness of the ancient Common law, which would only allow a deed of defeazance coeval with the grant itself, or a condition actually contained in it, upon events specifically mentioned. " This Power," says Lord Coke, " being coupled with an Use is allowed to be good and not repugnant to (jr) Co. Litt. 237. 3 Cha. Ca. 66. E 2 52 USES PRIOR TO 27 HEN. 8, &c. [chap. v. the former est.ites. But in case of a feoffment or other conveyance, whereby the feoffee or grantee, &c., is in by the Common law, such power were merely repugnant and void." (h) And, lastly, the Court of Chancery allowed, through the medium of Uses, the limitation of a freehold remainder in contingency after a preceding estate for years, on the ground that the feoflf'ees remained tenants of the legal freehold, and that their estate supported the remainder, (i) Such was the system of Uses as administered by the Court of Chancery, prior to the statute of 27 Hen. 8 ; a system, which, while it scrupulously attended to and care- fully consulted the conveniences and necessities of families, was distinguished by nothing more than its entire disregard of the strict and undeviating rules of the ancient Common law of the land. (/.) Co. Litt. 237. 1 Rep. 135, a. (i) F. C. R. 284. 53 CHAPTER VI. OF THE STATUTE OF USES ; AND ITS EFFECT IN CREATING SPRINGING, SHIFTING, AND FUTURE USES. Notwithstanding the many statutes by which it was attempted to subject Uses to the rules of the Common law, the mischiefs and abuses that resulted from them increased to such an extent, that the application of an extensive and adequate remedy became a matter of absolute necessity. The previous statutes, remedying some of the inconveniences attendant on Uses, had but palliated the growing grievance, and afforded scope for the exercise of the same ingenuity in evading their provisions, which had been exemplified in the original invention of Uses. The result of long-continued experience of their evils, The conversion was the famous statute of 27 Hen. 8, c. 10, commonly °JauItatSb called the Statute of Uses, which enacted, that where any ^'**- ^' ^'*^"* •^ ' * "^ 8,c. 10. person or persons stood or were seised, or at any time thereafter, should happen to be seised, of and in any honors, or other hereditaments, to the use, confidence, or trust of any other person or persons, or of any body politic, by any manner of means whatsoever it should be, that in every such case, all such person and persons, and bodies politic, that had, or thereafter should have, any such use, confidence, or trust, in fee-simple, fee-tail, for term of life, or for years, or otherwise, or any use, confidence, or trust, in remainder or reverter, should from thenceforth stand and be seised, deemed, and adjudged, in lawful seisin, estate, and possession, of and in the same honors and hereditaments with tluii 54 SPRINGING AND SHIFTING USES [ciIAP. VI- Conveyances to Uses not abolished by the statute. At first held that no Uses were executed by the statute not limited in accordance with the rules of the Common law. riiis rigor appurtenances, to all intents, constructions, and pur|)oses in the law, of and in such like estates as they had or should have had in use, trust, or confidence, of or in the same, and that the estate, title, right, and possession, that was in such person or persons, that thereafter should be seised of any lands, tenements, or hereditaments, to the use, confidence, or trust, of any such person or persons, or of any body politic, should be from thenceforth clearly deemed and ad- judged to be in him or them that had or should have such use, confidence, or trust, after such quality, manner, form, and condition, as they had before in or to the use, con- fidence, or trust, that was in them. The effect of this important statute was, not to abolish the conveyance to Uses, but only to annihilate the inter- vening estate of the releasee, and turn the interest of cestui que tfse into a legal instead of an equitable ownership, (k) The intention of the framers of the statute was, evidently, the entire abolition of Uses, or, as was once quaintly re- marked, (/) " because Uses were so subtle and ungovernable, they have, with an indissoluble knot, coupled and married them to the land, which, of all the elements, is the most ponderous and immoveable." When the operation and effect of the Statute of Uses first engaged the consideration of the Courts of Law, it was held by some of the judges (w) that no Uses should be executed or converted into legal estates by the statute, which were limited against the rules of the Common law, for that it appeared by the preamble of the statute, that it was the intent of the makers of the act to restore the good and ancient Common law, which was in a manner subverted by abusive and erroneous Uses, and not to give more privi- lege to the execution of Uses, than to estates which were executed by the ancient Common law. But thou ill reference to that a contitigent remainder of the freehold should be pre- whicli tnc ancient rule ccded by a particuhir-cstate of freehold also, has been was preserved. prj.i,ej.ved, on the grountl that no estate remains in the feoffees or releasees to Uses, to support the remainder. As, where (r) a ])erson conveyed by lease and release to trustees and their heirs, to the use of himself for ninety" nine years, remainder to the use of trustees for twenty- five years, remainder to the use of the heirs-male of his own body, remainder to the use of his own right heirs ; it was held, that the limitation to the heirs-male of the body of the releasor was void, because there was no preceding estate of freehold to support it. Notwithstanding the doctrine of the necessity of a freehold estate to support a contingent re- mainder by way of Use since the statute, is thus well estab- lished ; a writer (s) has laid it down as settled, that in the case of a limitation to the use of A. for a term of years, with remainder to his first unborn son, " the remainder would be good, because the contingent Use arises out of the estate of the feoffees." How such a monstrous dogma could find its way into a modem treatise is a question not easy of solution ! With the exception just noticed, the Courts of law, in process of time, admitted of all those limitations in convey- ances to Uses after the statute of 27 Hen. 8, which had been previously allowed by the Court of ('hancery, and determined that in such cases the statute would transfer the ])ossession to the cestui que use, " in the same quality, form, and condition, as he had in the Use." And in the regulation of these limitations, very many of the rules before established (/•) Adams V. Savage, 2 Salk. ()7.9. Uses and Tr. 165. F. C. R., 284. Vide also Davits v. Speed, Show. (*) Ilandell on Perpetuity, 76. Purl. (,'a. 104. .Sugd. note to Gilb. Sprinyiiig Uses. CHAP. VI, J tTNDER 27 IIFN. 8. ^' in Equity, were also adopted by the judges of the Common law. 1. With respect to Uses limited to arise in fnluro, '• l^scs limited 1 ^ to take enect without any preceding estate to support them, which arc in futuro, or nsnally called Springing or Contingent Uses, it was adjudged very shortly after the Statute of Uses, that the Use need not always be executed the instant the conveyance is made ; but, that if it cannot take effect at that time, the operation of the statute may be postponed until the Use shall arise upon some future contingency. (/) Thus, where (u) J. M., being seised of certain lands in fee, levied a fine thereof, and by in- denture declared the use of the fine to be to himself, and to such wife and wives as the said J. M. should happen afterwards to marry, by whatever names she or they might be called, for and during their natural lives, and the life of the survivor of them, with divers remainders over ; and afterwards the said J. M. took to wife one A., and then died. Whether she should take anything by the said indenture or fine, or not, was the question ; and by the opinion of Wray and Meade, Serjeants, and Plowden and Onslow, Solicitors, she might, and thereto they subscribed their names. Moore states that, the parties not being satisfied with this deter- mination, the case was carried into the Court of Common Pleas, where it was adjudged in the same manner. And also where {v) a person made a feoffment, and it was declared by indenture that it should be to the use of himself and A. his wife, that should be, after their marriage, and of the heirs of their bodies ; and he took A. to wife. Whether she would take by the limitation of this Use was the question. Coke, Attorney-General, contended that she should not, for, presently, by the feoffment, the fee was in the husband by the possession executed to the Use which he had before the marriage, which could not, after the marriage, be di- (0 Bro, Ab. tit. Feoff, al Use, (v) ffoodliff v. Drury, Cro. Eliz. 340 a, pi. 50. Bac. Uses, 63. 43J». («) MnUona case. Dyer, 274, b. 58 spRixfiixf; AM) SHIFTING uses [chap. VI. vidcd, and made an estate-tail in hitn, as he had the fee in him until the marriage ; for it might have been that the niarri.ige had never taken effect, and that would have con- founded the other Use ; and Uses in futuro could not arise upon such future acts, for then an Use would rise out of an Use. But all the justices held, that although the feoffor be seised in fee in the meantine, as in truth he was, yet, by the marriage, the new Use should arise and vest. In Mutton^s case, and Woodliffv. Drury^ the assurances upon which the Uses were declared were those which ope- rated a transmutatioti of possession ; but in a more modem case, (to) the doctrine in question wjis admitted, and a freehold allowed to arise in futuro, upon a covenant to stand seised to Uses, under which there is no transmutation of possession. The distinction between Springing Uses limited in those assurances which do, and those which do not, operate by transmutation of possession, is, that the former arise out of the seisin of the feoffees or releasees to Uses, and the latter, out of the seisin of the covenantor or bargainor. 2. Uses limit- 2. As before the Statute of Uses, equity permitted a fee or'uponV ^ ^^ ^^ limited to take effect after a fee, on the happening of previous fee, or ^^y specified event, so, now, it was determined, that in such Shifting Uses. "^ ^ j 5 3 j cases, the statute executed the legal estate in the same manner as an Use before subsisted, (x) Such Uses were called Shifting or Secondary Uses : and their utility is such that they form the groundwork of most modern settlements. The following is the first case that occurred after the statute, in which the validity of such limitations of Uses was dis- cussed. A person made (y) a feoffment to the use of W. («)) Roe V. Tmnvier, 2 Wils. 75. judges seem to have long hesitated (x) Sir £J. ^Mi/e/en, in a note to his whether they should receive them, edition of Gilb. Uses and Tr., p. 164, The evidence appears to favour the says, that Shifting Uses were allowed former statement, very shortly after the statute; while (y) Rro. Ab. tit. Fcoft'. al Use, Mr. Ilargrave, in a note to Co. Litt. 339 a, pi. 30. 1 Roll. Abr. 415, pi. 271, b, n. 1, b. iii. 2, states, that the 12. CHAP, VI.j UNDER 27 HEN. 8. ^9 and his heirs, until A. paid 40/. to W,, and then to the use of A. and his heirs ; A. paid the 40/. Some of the judges said, that if A. entered, he would become ipso facto seised in fee, for W. being seised in the fee by the Statute of Uses, A. would be able to divest that fee, and transfer it to him- self upon performance of the condition. Others were of opinion, that the payment of the money and the entry of A. had no effect, without an entry by the feoifees, and then, qudcunque vid data, the entry would be good, and A. would become seised according to the terms of the deed. To this it was added, that a Use might change from one person to another by an act or circumstance ex post facto, as well since as before the statute. And so, where (s) A., seised of the manor of K., made a feoffment of it, to the use of trustees and their heirs, upon condition, that if they did not pay 10,000/. in fifteen days, then it should be to the use of the feoffor and M. his wife, remainder to Thomas, their second son, in tail, with divers remainders over. The money was not paid ; and it was resolved that the Uses arose, and that, after the death of the feoffor and his wife, Thomas, the second son, was well entided to the land. Thus was another species of legal estate introduced by the Statute of Uses, in opposition to that rule of the ancient Common law, which denied validity to any Hmitation of a fee, to take effect after, or in derogation of a previous fee. (a) 3. Another species of limitations, upon which the 3. Uses limited Statute of Uses operates, and also denominated Shifting JJJpJevfous" Uses, is, where a particular-estate, as for life, or in tail, is £'*J^,f^''"''' limited, with a subsequent estate to take effect in pos- Shifting Uses. session on an event which may operate in derogation, abridgment, or exclusion, of the first estate, instead of awaiting its regular expiration or determination. (6) As, if (2) Haru-cH v. Lucas, Moo. 99. (6) F. C. R., 273—276. Hde 1 Leon. 264. Pollcxf. 78. 10 Mod. Dyer, 314, pi. 96. Moo. 99, pi. 243. 403 Ley, 54. 2 Leon. 16. 1 Roll. Abr. («) Dyer, 23 a, pi. 12. 3 Oha. 415. Sugd. note to Gilb. Uses and €a. 19. Tr. 178. 60 SPRIXOINT. AND SIIIFTrNG TSES [ciIAP. VI. an esUite be limited to the use of A. for life, or to the use of A. iiulefiuitely, provided that, when C. returns from Rome, it shall thenceforth innncdiately he to the use of B. in fee. Here, the first estate is an estate for the life of A., and a remainder strictly so called can only be limited expectant on the determination of that estate by such events as a life- estate is liable to be determined by ; and, therefore, when the subsequent limitation is to commence and take effect in possession, from an event which may eventually interfere with, and in part defeat, the first estate, it is evident that such a Hmitation cannot be a remainder within the rules of the Common law, but can only take effect under the Statute of Uses, by analogy to the like limitations pre- viously allowed in Chancery. 4. Uses creat- 4. It has been before observed, (c) that by the rules of levocaUon^ and the Common law, no restriction or qualification could be appointment. annexed to a conveyance of lands, other than a deed of defeazance, or a condition. Any power to revoke a deed, whether reserved to the grantor or a stranger, was repugnant and absolutely void. And we have also seen, {d) that there was no such repugnancy as to trusts in ('hancery, which were simple declarations, or directions to the person seised of the legal estate, in what manner and to whom he should convey the estate, 'flie Statute of Uses vests the legal estate in the cestui que use, after " such quality, manner, and form, as he had in the Use," and the same reasoning, therefore, which led the Courts of Common law to consider Springing and Shifting Uses, within the operation of the statute, induced them also to con- clude, that in all conveyances to Uses, a power might be reserved of revoking a former limitation of a Use, and ap- pointing a new Use to some other person, (c) The estates These I'ses, partly future or continycHt, arising from the execution of a Power of revocation and (c) .S'M/.rf/, pp. 51, 52, Pow. 3rd edit, 4. (d) Supra, p. 51 ; and sec Sugd. (e) Co. Litt. 237. 1 Rep. 174. CHAP. VI.] UNDER 27 HEN. 8. 61 appointment have been, by some writers, (/) classed among and partly those Uses which, on account of the uncertainty of the ""' '^' events on which they depend, are termed Future or Contin- gent Uses ; but the better and more general opinion seems to be, (g) that they partake, partly, of the nature of Contingent Uses, and, partly, of that of Shifting Uses. The Uses to be raised under Powers are merely tantamount to Future or Contingent Uses, because they are not in esse, or defined, until ascertained and limited under the Power ; but they may also be said to be Shifting Uses, inasmuch as, when ascertained and limited, their operation is, to divest pre- ceding estates, or estates which would otherwise come into possession, in favor of those created by the execution of the Power. (A) All limitations of Springing, Shifting, and Contingent The soii5in out Uses, when they arise, take effect out of the seisin of the vLuIli'r*'iimUa- feoffees or releasees, in all cases where the limitations are ^'^n^ of Uses take effect. created by conveyances operating hy transmutation of pos- session, as a fine, recovery, feoffment, release, &c. ; and out of the seisin of the grantor, where they arise under deeds not operating by transmutation of possession, as a bargain and sale, and covenant to stand seised. On the character and office of this seisin, much learning And therein of and ingenuity have been spent by most legal writers, whose sciiitnia juris. subject has led them to the consideration of the operation of the Statute of Uses. By some, (i) the existence of a scin- tilla juris, or possibility of seisin, (even after Uses covering the whole fee are executed by the statute) is asserted, and, what is of more importance, its destructibility also. By others, again, {k) this scintilla is denied, and the relation of (/) Booth's Opinion at the end of Touchst. 1 Rep. 130, 137. Com. Sheph. Touchst. 1 Cru. Dig. 438. Dig. tit. Uses. Sand. Uses and Tr. (g) Sugd. Pow. 3rd edit., 12. vol. 1, 110, 175 ; vol. 2, 33. Gilb. Sugd. Gilb. Uses and Tr. 152. Burt. Uses and Tr. 131. Burt. Elem. Elem. Comp. 6G. Randell Perp. C>G. Comp. 63. (A) Sugd. Gilb. Uses and Tr. 152, (*) Sugd. Pow. 3rd edit., 11. 160. Fonbl. Eq. lib. 2, c. 6. F. C. B. (i) Booth's Opinion in Sheph. 200, ct ieq. 1 Prest. Estates, 169. 62 SPRINGING AND SHIFTING USES [cHAP. VI. The question practically of no moment. General re- marks as to the operation of the statute 27 Hen. 8, and the conveni- ence of the estates intro- duced by it. contingent Uses, as they arise, to the original seisin, without any remaining possibility, maintained. There are decisions seemingly supporting both views of the question, the appli- cation and decisiveness of which are alternately denied by tlie respective controversialists. Whatever be the nature of this seisin, — whether it be in nuhibus, in mare, in terra, or in custodid legis, — the question is of little practical impor- tance. (/) The Uses, whenever they arise, are executed by force of the statute, and no one ever thinks of inquiring the nature of the seisin which served them, except as to its original sufficiency. Certain it is, however, that the con- sequences of the doctrine of scintilla juris, were they le- gitimately carried out, w'ould soon render the question of more than theoretical importance, as has been ably shown by the author of the Treatise on Poivers. But, as be- fore observed, neither they who espouse, nor they who deny the doctrine, treat it as of any importance in practice 5 which, perhaps, is an argument against the existence of the scintilla, more forcible than any, a whole treatise of the ablest reasoning could supply, (m) The establishment of the validity of these various limita- tions of Uses was one of the most important results of the statute 27 Hen. 8 ; and the necessary consequence of the Courts of Law taking cognizance of such limitations was> the curtailment of that {)ower over landed property which was previously exercised by the Court of Chancery, through the medium of Uses. The utiUty of Shifting, Springing, and Future Uses in the carrying out of personal and family ar- rangements, and the satisfaction of natural claims by pro- (0 Sugd note to Gilb. Uses and Tr. 301. (m) It is a curious circumstance that the most strenuous opponent of the doctrine of scintilla juris should (in reference to the question of the destructibility of shifting Uses by the owner of the previous estate) tran- scribe, literatim, an opinion of Mr. Serjeant Hill, containing a marked approval of the doctrine, and that, without any observation, although the existence of the scintilla was the ground of tlie Serjeant's opinion upon the point under his consideration. See Sugd. Gilb. Uses and Tr. 288. CHAP. VI.] UNDER 27 TIEN. 8. "-^ viding for a numerous relationshij>, can scarcely be over- estimated ; for, as is well observed by the Real Property Commissioners, they are, " by their pliability, adapted to every kind of provision whichc an be required in a family arrangement." It is foreign to the purpose of this Treatise, to inquire i^';gi.YmUcr minutclv into those technical scruples of the judges of the construction of •^ , , . o ^ Stat. -27 Hen. Common law in regard to the operation ot the statute, ^^ by the com- from which arose the doctrines, that the statute does not j^Jg^g'" transfer the possession, where a Use is limited on a Use ; nor where Uses are declared of copyhold lands, or of terms of years, or of other chattel interests ; nor where there is a trust for the payment of rents by the releasee to the cestui que use. Suffice it to observe that in these several cases, Uses were held not to be executed by the statute, but still continued separate, and distinct from the legal estate. The cestui que use, therefore, or, as he is now termed, cestui que trust, in such cases, was driven into the Court of Chancery, to seek that protection of his rights which the (Courts of Common law denied. And it was determined, that though the Uses in question were not such as the statute could execute, they were still Trusts in equity, which in con- science ought to be performed. Thus was the old doctrine of Uses revived under the denomination of Trusts ; in the support and administration of which, the Court of Chancery has wisely avoided, in a great degree, those mischiefs which made Uses intolerable, {n) In subsequent pages, we shall have occasion to make frequent mention of Trusts and Trust-estates, but it is not here deemed necessary to do more than thus slightly refer to their origin, in the limited operation of the Statute of Uses, as explained and construed by the judges of the Common law. It has been matter of much controversy, whether Spring- The question (») 2 Bl. Com. 337. 64 SPRINGING AND SHIFTING USES [ciIAP. VI. whether ing and Sliiftin"; Uses can be limited in surrenders of copy- springing and , , , . TT 1 1 shifting uses hold cstutes, as in conveyances to Uses under tlie statute oi rsC^ende^*^ 27 Hen. 8. (o) Until the recent case of i?oc/c/i«^^o« v.^A^r- of copyholds. nethy,(p) there was little judicial authority on the point; and, perhaps, even now, the (juestion must be decided rather upon principle and analogy, than on express and satisfactory adjudication. Several obscure dicta, and even decisions, (g) are to be found in the old Reports, but they are too vague and contradictory to admit of a clear rule being deduced from them, (r) (o) The aflBrmativc view is sup- ported by Fearne Cont. Rem. 276 ; Lex Cust. 120, 121 ; Cru. Dig. ; Sanders' " Surrenders of copyhold property considered with reference to future and springing Uses." Burt. Elem. Comp. 424. In favour of the negative view are, 1 Watk, Copy. 197, et seq. ; 1 Scriv. Copy. 195, et seq.; 1 Prest. Abst. 141, 2 ib. 34; Gilb. Ten. 260, et seq. ; Gilb. Uses and Tr., and note by Sugden. (p) 5 B. & Cress. 776. 8 Dowl. & Ry. 626, (-'rrn\tsQ\\, and term by way of remainder. In the reign of Ehzabeth, for life, under a nice distinction between bequeathing the term itself, and bequeathing only the use of it, they allowed the bequest-over of a term, as appears by several cases in Dyer and Plowden.{k) But further than this, the judges would not go ; for they still held, that if the term itself were bequeathed to a person for lite, with a limitation-over after his decease, the whole vested in the first taker, and the ulterior limitation was void. In the reign of James 1, however, the Courts, yielding Ultimate , , . I ^ t (' establishment to the general convenience, no longer resorted to the nne- ^f ,iie validity spun distinction between the bequest of the term itself, and o[ |™n^f aft"e^r the bequest of the use of it onlv, for life, but established the prior bequests ". f n ^•c for life, under limitation of a term after a previous grant of it for life, as an the name of Executory devise, or, more correctly, as an Executory be'quest°s!^ bequest. (/) In Manning^s case, {m) which occurred in 7 James 1, a testator bequeathed the lease of a farm to M. M., after the death of his wife ; and, in the meantime, his will and meaning was, that she should have the use of the farm during her natural life. It was contended, that {k) 10 Eliz. Dy. 277, b. Weleden any rule of law which applies to the V. Elkington, 19 Eliz. Dy. 358 b. one, is applicable to the other. This Plow. 519. Paramour v. Yardley, is owing to the universality which pre- Plow. 539. Cro. Car. 346. Ham- vails in England of the law of tenure, mington v. liudyard, 10 Rep. 5'2. in which personal estate is of no ac- (Z) " Our law never allowed of li- count. Hence, possibly, it proceeded mitations of personal estate by way of that till a late })criod of our law, per- remainder, in the proper sense of that sonal property was not considered to word. It is observable that while the be susceptible of nioditication. When civil law in respect to heirship and at length it attracted the attention of alienation, and other general rights of our Courts, it was held that it could property, makes little perceptible dis- only be settled by way of Executory tinction between real and personal es- bequest or Executory trust." Butler, tate, except in the term of prescrip- note to F. C. R. 5f)7. tioD, the nature of them in English (/n ) 8 Rep. 94 b. law is wholly dissimilar, and scarcely 80 KXKCUTORY DKVISES [cHAP. VII. the devise to M. M. after the death of the testator's wife, was void, " for the wife having the same devised to her during her Ufe, she had the whole term, and the devisor cannot devise the possibility over, no more than a man can do by grant in his life.'" But four judges out of five held that M. M. took the term, not by way of remainder, but by way of an executory devise. Lord Coke states the resolu- tion of the judges to be, that, when the wife died, it should vest in ]M. M., as by an executory devise, as if the testator had devised that, after his son had paid such a sum to his executors, he should have his term ; or that after the death of A., B. should have the term ; or that after his son should have returned from beyond the seas, or that A. should die, that he should have it ; in all these cases, and other like ; upon the condition or contingent, the form of the devise was good, and in the meantime, the testator might dispose of it, and therefore in judgment of law, ut res viagis valeat, the executory devise should precede, and the disposition of the lease till the contingent happened, should be subsequent, as in the case at bar. For when the testator made the exe- cutory devise, he might afterwards well devise the lease till the contingency happened ; as if the testator had devised, that if his wife died within the term, that then M. M. should have the residue of the term, and further devised the same to his wife for her life. And, further, that there was no difference when one devised his term for life, remainder over, and when a man devised the land, or his lease or farm, or the use or occupation or projits of his lands ; and that where a man devised his lease to one for life, it was as much as to say he should have so many years as he should live, and that if he died within the term, another should have it, for the residue of the years ; and although at the beginning it could not be said how many years he should live, yet when he should die, it would be certain how many years he had lived and how many years the other should have, and so by subsequent act, all would be made certain. CHAP. VII. J AND niiCiUESTS. 87 The decision in Manninys case, we observe, proceeds Principle of . , ,. . . , . construction o:i upon the principle of transposing the Innitations ; that is, ^hich the of considering the limitation-over, as a bequest on the con- Executory be- tingency of the devisee for life dying during the term, and quest rests. the life- estate, as an intermediate disposition, till the contin- gency happens, and so, constructively, changing the order of the limitations, by reading the ulterior limitation as if it actually preceded the intermediate bequest. In the case in question, indeed, the devise itself accorded with this mode of construing it, for the limitation to M. M. was antecedent to the intermediate disposition of the life-estate to the wife. But it is quite clear that the rule of construction adopted in Manning'?, case is applicable to all cases of a limitation of a term of years to one for life, and afterwards to another, (n) Thus, in Lampetth case, (o) 10 James 1, a term of 500 years was devised to the testator's father for his life, and after his decease, the remainder over to another : upon the question, whether the ulterior limitation was good when the term itself (and not the use or occupation of it only) was devised for life, and afterwards to others ; it was held, that the limitation-over was good by way of Executory devise ; thus completely negativing the former distinction between the devise of the term for life, and the devise of the use of it only, and admitting the rule of construction adopted in Manning^s case, notwithstanding that, on the face of the will, the ulterior limitation was, in terms, postponed to the life-estate, and limited to take effect as a remainder after it. These two cases are the pillars upon which rests the law of Executory bequests of chattels real. Their authority was, indeed, attempted to be impugned in two cases (jo) which afterwards occurred; in one of which, a decision seemingly adverse was pronounced ; but it is distinguishable from the cases of which we are speakmg, and so far as it may be («) F. C. R. 403. (p) Child y. Baily, Cro. Jac. I5i). (o) 10 Rep. 46. Duke of Norfolk's case, 3 Cha. Ca. 1. 88 EXF.CUTOIIY DEVISES [chap. VII. (lecnicd as an oj)posing authority, it has been since overruled. And it has ever since remained settled, that chattels real may be limited by will in strict settlement, so as to answer all the purposes of an entail, iq) Doctrine of It will be observed, that the whole doctrine of Executory (|uestsprocoeds bcqucsts of tcmis for ycars is grounded on the assumption, d"r>ra"erm'"" ^^^'^^ there caunot possibly be a division of the term into iiKiipable of particular-estate and remainder. And such division is division into . . particular- impossible, uot Only because it would be inconsistent with remainder. ^lic notion that an cstatc for life is of greater magnitude than any term of years, but, also, because of the native indi- visibility of a term, except where a certain stated number of years is subtracted from the whole period, or it is other- wise definitely apportioned. For, if an estate for years be assigned or bequeathed to a person for life immediately, (that is, not through the medium of trustees) with a limita- tion-over after his death, it is certain, that during the life of the first taker, the whole term is in him ; for as it is impos- sible to say, what portion of the term will expire during his life, and what portion will remain to the person entitled under the limitation-over, it is not partible between the two ; and, not being partible, the whole must vest in the person for the time being in possession, (r) It is a rule in relation to remainders, at Common law, that the remainders must pass out of the grantor at the same time with the particular- estate ; but, in the ease of a term, there is no estate to con- stitute a remainder as distinct from the particular-estate, nor (if there were such an estate,) can it be predicated what the remainder will consist of. Having once ascertained that there is no remainder, in fact, nor any possibility of such a remainder, in the nature of the case, the question arises, what is the character of a limitation of a term, to take effect (it gifts of such property after a prior limita- tion for life. Tlie examples, above given, (whether two or three) of Executory betjuests of terms of years, will be found to comprise every testamentary limitation taking ctfect in that character ; and the wills of most testators possessed of leasehold property supply instances of such limitations, except when the terms are vested in trustees, and the interests of the persons intended to take beneficially, are limited through the medium of ti-usts. The validity of Executory gifts of chattels personal was not established so early, as was that of Executory bequests of terms of years, (e) The objection taken to their being made the subject of such modifications of ownership, was almost one with the reason urged against limitations of a term of years after a previous disposition of it for life : — the latter being, as before observed, the exility or small consideration of a term as compared with a life-estate, and the unpresumablc continuance of a term beyond the period of a life ; and the former, the perishableness of the subject-matter of the gift, which, it was said, could not be supposed capable of endurance or preservation beyond the period of a life. Accordingly, we find it expressly laid down (/) as a clear rule of law, that the disposition of a personal chattel, even though only for an hour, ojierated to vest the absolute interest in the person to wh(jm it was limited, so that he certain event, is an Executory bequest, and falls under the rules, by which that mode of limitation is regulated." Mr. Preston (2 Essay on Abst. 144,) considers, that as an assignment of a term by deed, to commence in futuro, is, upon principle, and (he thinks) au- thority, invalid, so also would a cor- respondent bequest of a term be, at Common law. Mr. Jarman ( 1 Treat, on Wills, 793,) says, "no remainders can be limited in real and personal chattels ; every future bequest of which, therefore, whether preceded by a partial gift or not, is in its nature executory." What connexion there is between the premiss, that no re- mainder can be limited in chattels, and the conclusion, that " therefore" a future gift unpreceded by a prior limitation is an E.\ecutory bequest, the writer is unable to discover ; although, doubtless, the learned reader's pene- tration will supply the hidden link in the chain of reasoning. (e) 2 Ilarg. Jurid. Arg. 51. (/) 8 Rep. 95. And see 2 Harg. Jurid, Arg. 51. CHAP. VII.] AND BEQUESTS. 95 might sell or dispose of it ; and every limitation over was void. In the course of time, the same distinction was admitted D'stmction taken between in bequests of chattels personal, as the judges (in the wise a gift of the . . n • -11 chattel, and of relaxation oi a rigorous rule, and in contormity with the the use only, superior respect paid to testamentary dispositions, although °^ ' ^' contravening the ancient rules of law,) allowed in limitations of terms of years : they sanctioned the bequest of the use of a personal thing, for life, with an ulterior limitation-over of the chattel, to take effect on the first legatee's death ; but still held, that the bequest of the chattel itself for life, invalidated any further limitation of it, and operated to vest the whole of it in the first taker, (g) This distinction was manifestly adopted, out of a desire to yield to the general convenience, which required that chattels personal should be allowed to be made the subject of settlement, in the same manner as real estate, and, at the same time, an unwillingness to give up the restrictions of the ancient Common law, for which the judges, in the times of which we are now speaking, always evinced great partiality. This subtle distinction was longer and more tenaciously This distinc- adhered to, in regard to Executory bequests of personal adhcred^to. chattels, than to similar limitations of terms for years. (A) Especial regard appears to have been had to the imbecility and insignificance of personalty, in the eye of the law ; and it was argued, that though terms of years and other chattel interests in land, were but of comparatively small con- sideration, yet, as the subject-matter of those interests was permanent and substantial, there was greater reason for allowing Executory bequests of them, than could be urged for the extension of a similar privilege to the meanest property of which the law was cognizant. As, however, personalty increased in consideration and But ultimately ( g) Bro. Ab. tit. Devise, Cro. Car. of Sir W. Grant in Randeltv. Russell, 346. Vachel v. Vachel, 1 Cha. Ca. 3 Mer. 195. 129. F. C. R. -101. Observations (h) 2 Harg. Jurid. Arg. 52. 96 KX Kt I roil Y 1)E VISF.S [CIIAP. VII. g.ivc way to jjoncral cun- And there- fore gifts of chattels, after a prior limitation for life, are good. The means adopted for preserving chattels per- sonal for the ulterior legatee. importance, tliis artificial distinction between the bo([ncst of the use of a personal chattel, and of the thing itself, was gradually abandoned, {i) The final struggle made in its behalf, was in the year 1695, in the case oi Hyde v. Par- ratt, (k) where, after argument and consideration, Lord Keeper «So?»e/-s adjudged a bc(|uest-over of household goods, &c., to II., after the death of the testator's wife, (to whom a life-interest had been previously given) to be good. The ground of the decision was, that such a limited gift en- titled the restricted legatee, only to the use of the thing bequeathed, for the period expressed, and did not vest the entire beneficial and legal interest in him. (/) Since this adjudication, it has always been considered perfectly settled, that an Executory gift of chattels personal, after a prior limitation for life, is equally valid with a similar bequest of a term of years. {771) And this, too, upon the same ground as that assigned in Ili/de v. Parratt ; viz., that a gift for life of a chattel is to be construed as a gift of the usufruct only. In the case of a gift of goods, &c., to a person for life, with an Executory bequest-over, the Courts of equity have always, during the continuance of the prior interest, adopted means to protect the rights of the ulterior legatee. For- merly, the legatee for life was compellable to give security for the chattels being forthcoming at his decease. (71) But (i) Catchmayv. Nichols, 1 P. Wms. 6, note ; Shirky v. Ferrers, ibid. ; in both which cases, the first legatee was also executor, and, therefore, as Mr. Feame says, the old distinction be- tween the use of a thing and the thing itself, might not be considered as com- plctely abandoned, on account of the legatee taking the thing itself as exe- cutor, and the use only, constructively, as legatee for life. See F. C. R. 405. (k) \ P. Wms. 1. 2 Vern. 331. And see 2 Freeman, 206 ; and Clarges V. Albemarle, 2 Vern. 24/). (/) The establishment of the validity of Executory bequests of terms for years occurred upwards of eighty years earlier than the settlement of the same doctrine in regard to chattels personal ; Lampett's case, 10 Rep. 46, having been decided in the year 1613, and Hyde v. Parratt, (as stated in the text) in the year ISQr). . (m) See Tiffin v. Tiffin, 1 Vern. 2. Martin v. Long, 2 Vern. 156. John- son V. Castle, 8 Vin. Ab. 104, pi. 12, Upwell V. HaUey, 1 P. Wms. 651. Pleydell v. Pleydell, ib. 748. («) 2 Freem. 206. Hyde v. Par- rati, ubi supra. F. C, R. 406. CHAP. VII.] AND BEQUESTS. 97 the modern practice is for the legatee for Ufe to sign an inventory ; (o) which, as it has been said, is more equal justice, as there ought to be danger, in order to require security, (p) As in the case of terms for years, so of personal chattels. The liability the whole legal interest vests in the legatee for life, and, on J*^ Jjj^ actTand his decease, passes, under the Executory bequest, to the engagements . . 1 ^ r- 1 /. "'' *^<^ legatee ulterior legatee, (g) During the life, therefore, of the first for life, and the taker, the Executory legatee has no interest of which the executory law can take cognizance, and has no remedy at law, by legatee, trover, or otherwise, for the recovery or restoration of the chattels, in case of spoliation, transfer, or other act of the legatee for life, likely to produce a consequent deterioration or destruction of the subject-matter of the gift. Nor is it clear, where the party beneficially interested for life is also clothed with the legal title, that even a Court of equity would interfere, during his life, on behalf of the ulterior legatee, to preserve the goods, &c., from the legal consequences attaching to the possession of personal chattels ; ex gr. their liability to be taken in execution by the credi- tors of the first taker, (r) That there is a strong principle of justice for preserving personal chattels for the benefit of the executory legatee, was admitted by Lord Thurlow ; (s) nor would it seem, when the subject of the gift is itself at stake, that the circumstance of the interest of the first taker being clothed with the legal estate is of sufficient weight to preclude the interposition of a Court of equity.(/) If, however, the chattels are vested in trustees, and the beneficial interests limited by way of trust, then, as the legal interest in them resides in the trustees, they are in a position which will enable them, in a Court of law, to recover (o) Bill V. Kinaston, 2 Atk. 89. 144. And see 3 P. Wms. 336; 2 Atk. (r) Foley \. Burnell, 1 Bro. C. C, 321. 274. (p) Per Lord Thurlow, 1 Bro C. (*) Ibid, C. 279. (0 F. C. R. 412. (9) F. C. R. 402. 2 Prest. Abst. H 98 EXECUTORY DEVISES [cHAP. VII. the goods, Sec, even during the Ufe of the first taker, in case of any ad by him detrimental to the interests of the executory legatee. (?/) But whatever be the liability of chattels personal, during the existence of the antecedent interest, in respect of the acts and engagements of the first taker, it is clear, that he cannot subject them to the demands of his creditors, or otherwise dispose of them, beyond his own life-interest therein. It is also certain, that the ulterior legatee, or the trustees, if the limitations are equitable, may, upon the der termination of the prior interest, maintain an action of trover, at law, for damages, or institute a suit, in equity, for execution of the ulterior gift in specie, by actual delivery of the specific chattels, (v) Nor are the rights of the parties entitled to the ulterior executory interests, affected in a greater degree by a disposition (whether by way of sale or security) of the goods, &c., by the legatee for life, for valuable consideration without notice, possession of chat- tels not being absolute proof, though affording a prima facie presumption, {w) of ownership, (x) The same Executory bequests of chattels personal have hitherto Executory |^ considered in reference only to the ordinary case of a guts may be ..... made of chat- bequest of personalty to a person for life, with a limitation tels personal as , i^i 5iit->* i of terras of over to another on the first legatees death. Isut it need hardly be observed that this is not the only mode in which the doctrine of Executory bequests of such interests is admissible ; for all such limitations as are good in respect of terms of years, are also valid as regards chattels personal, et e converso. And, therefore, personalty may be bequeathed to one absolutely, and in the event of his dying under a certain age, then over, {y) So, also, a bequest of personal (w) Cadogan v. Kcnnett. Cowp. FcUis v. Read, 3 Ves. 70. Lowther 432. 1 Jarm. Wills. 794. v. Lowther, 13 Ves. 95. (t)) Hoare v. Parker, 2 T. R. 370. (w) 2 Stark. Evid. 833. And as to suits in equity for the de- (.r) Hoare v. Parker, ubi supra. livery of specific chattels, see Duke of (y) 2 Freem. 137. And see Ma- Somertet v. Conksou, 3 P. Wms. 390. dox v. Staines, 2 P. Wms. 421. years. CHAP. VII.] AND BEQUESTS. 99 chattels may be made to commence in futuro, unprecedcd by any disposition thereof for Hfe, or other period. The same question may exist, indeed, whether such a hmitation be, in the strict sense of the term, an Executory bequest, as we have noticed in regard to similar limitations of terms for years. But in reference to both, it is to be observed, that for the purposes of this Treatise, they may properly be con- sidered as taking effect under the doctrine of Executory bequests; the rules of law in regard to the latter being generally applicable to the limitations in question. Chattels personal, like terms of years, not being sus- The only mode ceptible of division into particular-estate and remainder, "f ^hatteT" and there not being any mode of limiting future interests P^^J*^^^ ^>' in them, in deeds, analogous to Executory bequests, the through the , 1 1 1 p 1 • 1 li • medium of only mode of settlement by deed, ol which personalty is trusts. capable, is, through the medium of trusts; and, as was observed of terms of years, all such limitations of the bene- ficial interest in personal chattels are allowable by means of trusts, as are valid in wills, under the doctrine of Exe- cutory bequests. Before quitting the subject of Executory bequests of Of chattels . 1 • a • 1 personal qva personal chattels, a distinction must be noticed in regard {pg^ „,,„ con- to a class of such chattels, to which the doctrine under *"'»«"'«'•• consideration is not applicable. The class, referred to, consists of those articles, (such as, corn, and hay, and the like,) the use of which consists in the consumption, or, as it is expressed, gtice ipso usu consumuntur. To such things, the notion of a division or succession of interests, is entirely inapplicable. Doubt appears formerly to have existed, when the articles Formerly in question have been bequeathed to a person for a limited ^hen'such period, with a gift-over, what was to be done with respect g^^^en^^fo^i^fe to them : and the opinion seems to have been entertained with an ulterior ^ limitation, they by some judges, that they should be sold, and that a person should be sold, entitled only to a limited use of the chattels, should have H 2 100 EXECUTOllY DF-VISES [ciIAP. VII. produce paid to the interest of the money reahzed by the sale. (2) But this legatee for • i i • * • n 111 life. notion has been since partially expiodea. Now settled, The rule appears now to be, that a specific bequest for spedficuihj life, of tilings qiue ij)so tisu consumuntur, is a gift of the whole property P^'^^P^rty, and that there can be no limitation-over after a vests in the ]|fp interest in such articles; but that if they are included first taker, but *' if included in in a residuury bequest for life, then they must be sold, a residuary i 1 • r. 1 1 • i 1 i gift, the chat- ^nu the interest ot tlie produce enjoyed by the tenant for Ind i^nterest" of ^^^*^' ('^) "^'^^ following observations of Sir Wm. Grant, produce paid to whom we are indebted for this reasonable rule, are as to legatee for . 1 • t> life. pertinent to the general subject of Executory bequests of chattels, Jis to that particular branch of it now under notice. " Originally we know that by our law there could be no limitation-over of a chattel, but that a gift for life carried the absolute interest. Then, a distinction was taken between the use and the property. The use might be given to one for life, and the property afterwards to another. A gift for life of a chattel is now construed to be a gift of the usufruct only, but when the use and the property can have no separate existence, it should seem, that the old rule must still prevail, and that a limitation- over after a life-interest must be held to be ineffectual." How far this Jt is conceived, that the like rule would hold in regard rule would . ^ apply to the to a becjucst of this class of chattels to a person absolutely, absolute gift of subjcct to ail cxccutory gift in favor of another, on a such chattels specified event ; although it should seem, that the argument limitation- against the validity of the ulterior gift, derived from the circumstance of the use and the property of the chattels not being susceptible of separate existence, is scarcely applicable to such case. The first gift, in the supposed case, is of the whole chattel, if of anything ; and so also is the posterior one. And it may, perhaps, therefore, be (2) Porter v. Tournrty, 3 Ves. 31 1. And see Ilardmnn v. Johnson, ib- (a) Randelly. Russell, :^Mer. \9A. 347. over CHAP. VII.] AND BEQUESTS. ^^^ argued, that as the iiherior Hmitation is not postponed to a gift incompatible with the e])heuieral character of the sub- ject-matter, (which a Ufe-interest is,) but is made in lieu of a prior Hmitation carrying the whole interest, the chattels should be converted into a species of property, which may abide the issue of events. Certainly, such must be the con- clusion, when the operation of the preceding gift itself de- pends on a future contingent event, which may not happen until after the destruction of the subject-matter by use, and the happening or non-happening whereof, is to decide which of the two gifts takes effect, and which, fails. We cannot, perhaps, find a better conclusion for this General obser- chapter, than the following words of Mr. Hargrave, (b) with the limitations which he sums up an inquiry into the history and progress Jj^-f^^apte" of Executory devises and Executory bequests, similar to that in which we have been engaged : — " At length, a great, though partial, victory, appears to have been gained for Executory devises, and for limitations and trusts of the same nature, over every species of property in England, that is, over freehold and inheritance, over real chattels, and over chattels personal. Thus, neither the feodal strictness of conveyance, in the first of those three kinds of estates, especially against creating a freehold in futuro ; nor the exility or meanness of interest, in the second ; nor the moveableness, casualness, and perishableness of quality, in the third ; nor the doctrine against possibility on a possibility, with the danger of perpetuity, and of abuse in other respects as to all three ; finally availed to accom- plish the absolute exclusion of Executory devise ; all those objections being so successively encountered, and so suc- cessively subdued, that, at the utmost, they have only contributed to reduce Executory devise within regulation and circumscription." (fc) 2 Jurid. Arg. 53. 102 CHAPTER VIII. OF TRUSTS ANALOGOUS TO SPRINGING, SHIFTING, AND FUTURE USES, AND EXECUTORY DEVISES AND BEQUESTS. I'l' will be proper to give a short account of limitations of the trust or equitable interest of property, corresponding to Executory devises and bequests, and Springing and Shifting Uses, in regard to the different estates and in- terests affected by those limitations, respectively. These limitations of the trust also resemble legal Executory limi- tations, in respect to the various kinds of settlement which may be effected by them, although differing in the mode of their creation, and in the nature of the estates and in- terests which may be raised by means of them. As this descrij)tion shews, the limitations, alluded to, have to do only with the trust or equitable interest of property, and not with the legal seisin or ownership, which is supposed to be either already vested in some person, other than the settlor or testator, or is by him actually transferred to such person, at the time of the creation of the Future trusts, for the purpose of feeding them, or, in other words, forming the basis of the contemplated settlement. All limitations We have sceu, that Executory devises and bequests arc Sprinein'r' or spccics of testamentary dispositions allowed by the Courts Shifting Uses ^f \•^i^^^ and, when properly exercised, effectually passing devises or the legal cstate or interest to all persons in favor of whom bequests, may ,. . . i t i i i i i. . be created out dispositions are made. It has also been seen, that Iimita- 1 (lui'table hi-""^ tatioiis by way of Springing and Shifting Use, are modes '*''^*^^'- of settlement, by instruments inter vivos, based upon the Statute of Uses, and, like all other limitations of Uses CHAP. VIII.] FUTURE TRUSTS. 103 operated upon by that Statute, effectually transferring a Common law seisin or* ownership to all persons entitled to interests by virtue of them. The estates and interests which, by means of these several classes of limitations, may be created at law, and of which the law wiH take cogni- zance, are, in the same manner and to the same extent, allowable in equity, under a disposition of the trust of property, and will receive all the protection and favor which that branch of our jurisprudential system is accus-r tomed to extend to other kinds of trusts, as the peculiar offspring of its polity. If, for example, a testator devise land to A. in fee, in trust for B. in fee, and in the event of B.'s decease under the age of twenty-one years, in trust for C. in fee, the limitation in favor of C. is not, in strictness, an Executory devise, because the legal estate being vested in A., a Court of (Common law cannot regard any limitation of the beneficial interest as separate from and unconnected with that ; which the disposition in favor of B. is; and such being the case with respect to that limitation, the like holds in regard to the Executory limi- tation to C. So, also, if, by deed, land be conveyed to A. in fee, in trust for B. in fee, until his marriage, and after his maiTiage, in trust for C, the limitation in favor of C. is, simply, a Future trust, although, had no legal fee been previously vested in A., that limitation would take effect as a good Shifting Use, by means of which the Common law seisin would pass to C, on the happening of the specified event. And so, again, if a term be bequeathed or assigned by deed to A., in trust for B. for life, and after his decease, in trust for C. ; or in trust for B. absolutely, and in the event of his death under twenty-one, then in trust for C. ; the ultimate limitation, in both cases, takes effect as a Future trust. In the case of the bequest, this construction holds, because the legal interest in the term being previously vested in A., the limitations in favour of B. and C. are necessarily equitable only, and do not admit, 104 FUTUUK TRUSTS. [CHAP. VIII. tliercfore, of the application of the doctrine of Executory becpicsts: in the case of such a settlement by deed, how- ever, the limitation by way of trust is resorted to, from imperative necessity ; there being no mode known to the Connnon law, by which future and executory interests in chattels may be created by instruments inter vivos. It will be observed, that Executory devises and bequests and Springing and Shifting Uses differ only from the analogous trust, in the quality of the estate or interest capable of being created by them, respectively: it follows, therefore, that whatever modification of right in pro^^rty may be made the subject of the former class of limitations, is equally susceptible of transfer and setdement through the medium of trusts ; and that, in regard bpth to the nature and extent of the limitations which may be created by each, the limits imposed by law are correlative and coextensive. The limitations, of which mention has here been made, are frequently termed Executory trusts; and not impro- perly, as their operation is to create future equitable interests in property, resembling Springing and Shifting Uses, and Executory devises and bequests ; whose generic description is, Executory Umitation ; as contra-distinguished from gifts taking effect by way of remainder. But the use of the term, Executory trust, has been avoided, because occasion will hereafter arise for reference to a particular class of trusts, known as trusts executory, of a character entirely different from those we have been considering, and in reference to which, therefore, a confusion of terms is undesirable. 105 CHAPTER IX. COMPARATIVE VIEW OF SPRINGING, SHIFTING, AND FUTURE USES, AND EXECUTORY DEVISES. There is a very extensive analogy, in point of principle, between Springing and Shifting Uses and Executory de- vises. Executory bequests are not here mentioned, because as they affect only personal property, and Uses relate only to real estates, no analogy can exist between any form or modification of Uses and limitations by way of Executory bequest. Nor are Future trusts included in the subjects of this analogy, since there are limitations which cannot be substantiated as Springing and Shifting Uses, but which would be perfectly vahd, if created by way of trust, or out of an equitable estate or interest. Everv kind of disposition which may be effected by wav All limitations of Use in a deed, may be effected to an equal (and, as we created in shall presently see, even greater) extent, by a direct devise of Springing^ of the land itself, (c) Nor is the case varied, if the limita- ^^'I^^^Jjf"^ tions in the will be through the medium of Uses, because, equally allow- , . , , able in wills, although it be doubtful whether those Uses can be said to be under the strictly executed by the statute 27 H. 8, the construction JP^^JJI^l^ry^ of the will is guided by the intention of the testator, and the devise. mere interposition of a Use will make no difference. The Reasons of the distinction in name, therefore, between these limitations diflFerence b€- arises from two causes :— First, because the limitations in fj^^i^^^^^'n^j'^ a will arc not necessarily (nor even j^cncrally) created by (c) Hayes Conv. 107. 106 COMPARATIVE VIEW OF FUTURE [cHAP. IX. Their chief resemblance consists in an entire disre- gard of the strict rules of the Common law. A superior favor shewn to Executory devises. means of Uses, executecl or unexecuted ; and, secondly, because it is questionable, whether Uses limited in a will are within the operation of the Statute of Uses. Springing and Shifting Uses and Executory devises resemble each other in nothing more, than in their mutual disregard of all the rules of the Common law regulating the limitation of estates. By way of Springing Use, we have seen, {d) a freehold in fiituro may be created to arise, cither at a fixed period, or on the happening of a specified contin- gency. This also may be effected in wills, through the medium of Executory devises. By way of Shifting Use, a previous fee-simple may be limited to determine, and another fee-simple substituted in its place, at any future period ; and this is allowable, also, in Executory devise. By Shifting Use, likewise, an estate of freehold may be deter- mined, and a future Use limited to take effect, on the happening of a specified event, before the regular and natural expiration of the first estate. This is a mode of limitation admitted, too, under the law of Executory devise. But the Courts of Common law have evinced much greater favor towards Executory devises than Springing and Shifting Uses. Whether that partiality originated in the generous presumption, that a man's last will is made when he is inops consilii, and that, therefore, a more limited con- struction ought to be put upon his dispositions, we will not stop to inquire. Neither will it much profit us to examine, whether the greater rigor and strictness with which Springing and Shifting Uses are regarded, be caused by a secret repentance for deviation from the simplicity of the Common law, in the construction of instruments inter vivos; in regard to which, conformity to old rules and principles may be more reasonably required. These observations premised, we will proceed to inquire, wherein the rules applicable to these various kinds of Exe- cutory limitations agree, and wherein they differ. (d) Fide supra, p. 57, ct seq. CHAP. IX.] rsEs and exkcutory df-vises. 107 1. In putting- a construction upon a series of limitations l. Springing by way of Use, as it has been well said, (e) the test to be Usts^diffe"^ applied, is conformity or non-conformity to the rules of the ^r^"* Executory '' '' devises, m that Common law, and the result of the application of that test contingent varies accordin*^ as the limitations arc shaped as remainders, cither after in which form they obey the rules of the Common law; estate" foV or are shaped as Execulory uses, in which form, their legal y^^^< or after operation under the Statute of Uses, is measured by the tion of a prior equitable standard of Uses before the statute. Thus, as we We'^'of a ' ^ have before seen, ( f) all future Uses limited by way of re- furtl"*^!- period, '' ' J J are void as mainder after an estate previously limited are subject to the future Uses, rules of the Common law, and, therefore, liable to failure or devise, destruction, if the previous estate be not sufficient to support them, or determine before they can take effect in pos- session, (g) This doctrine holds equally, although the conse- quence of not construing the future limitation as a Springing Use, be, that it is actually void in its creation, if not so considered. Hence, if land be conveyed to the use of A. for twenty years, remainder to the use of the heirs of J. S. ; this contingent Use, being unsupported by an estate of free- hold, is void in its very creation, under the well-known rule of the Common law, in regard to the estate necessary to support a contingent remainder, and will not be admitted as a Springing Use. (A) And, so, if realty were limited to the use of A. for life, and after his decease and one day, to B. ; the future Use, not being capable of vesting in pos- session 60 instanti of the determination of the prior estate, is void as a remainder, and at the same time not allowed as a Springing Use. (i) In each of these cases, if the ulterior limitation were not preceded by a prior estate, it would be good as a Springing Use to arise on the event specified ; (e) Hayes Conv. 105. And see Tr. 165, note. Sugd. Gilb. Uses and Tr. 176, note. {K) Adams v. Savage, 2 Raym. 1 Prest. Abst. 129. B55, 2 Salk. 680. Rawhy \. HoU (f) Vide supra, p. 56. land, 22 Vin. Abr. 189, pi. 1 1. (g) Carwardine v. Carwardine, F. (») Sugd. Gilb. Uses and Tr. 167, C. R. 388. Sugd. Gilb. Uses and note, and 1 76, note. F. C. R. 398. 108 COMPARATIVE VIEW OF FUTURE • [ciIAP. IX. but, being limited by way of reniaiiider after a preceding estate, it is bound by the rules of ('ommon law, which render it void ab initio, {k) Or if the future Use were limited in defeazance or derogation of the previous par- ticular-estate, it would be a valid Shifting Use ; but in each of the cjises put, as it is to await the regular determination of the prior estate, and is intended to take effect as a re- mainder, it must stand or fall as a contingent Use in re- mainder, and, therefore, entirely fails. Mr. Sanders, in his Essay on Uses and Trusts, (/) observes upon the cases of Adams v. Savage, and Itawley v. Holland, cited in the margin, (and which afford instances of the former of the two kinds of limitation now under consider- ation) that there does not appear to be any satisfactory reason, why the ulterior contingent limitation after the preceding term for years should not be supported as a Springing Use, and endeavours to explain away the decisions in those cases, by the suggestion, that at the time they were decided, the events on which the ulterior limitations were to arise, were too remote in point of perpetuity. Serjeant Hill, also, in a MS. note on Adams v. Savage, (m) makes a query to the like effect. This suggestion, however, is pre- cluded by the fact, that the Use undisposed of, and which (if any) would result to the grantor, was no more than an estate of freehold, and, of course, in order to an ulterior limitation taking effect as a Springing Use, the Use which results must be a fee, and not an estate of freehold only, which would admit of and even necessitate the construction of the subsequent limitations operating as remainders. It is observable, also, that Mr. Preston (n) assumes it, as settled law, that as well in the case of a limitation for a term of years, with a future contingent Use by way of remainder, as in the case of a limitation for life, with a future Use after (*) Sug. Pow. 29. F. C. R. 284. («) 1 Essay on Abst. 114, ISO, (0 Vol. l,p. 142. 131. (w) Stated in 1 Sand. Uses, 143. CHAP. IX.] USES AND EXECUTORY DEVISES. 109 the determination of the hfe-estate, with a further inter- vening period of a day or the Uke, the ulterior Hmitations are valid as Springing Uses, because they cannot be good consistently with the law respecting remainders. In the former, we have seen that the learned writer is opposed by decided cases ; in the latter, the rules generally laid down, the tendency of the Courts, and the observations of several ancient authors, e(pially point to a different doctrine. In both these cases, the Courts have denied to Springing Uses the favor which is extended to Executory devises : the ulterior limitation in both being clearly valid in a Will by way of Executory devise, (o) Thus, ( j^) where a testator seised in fee devised to trustees for 500 years, remainder to the first and other sons of B. in tail, (B. having no son at the time of the testator's death) remainder in fee, it was held, that the limitation to the first son of B. was a good Executory devise, and that the freehold descended to the heir at law until the birth of a son of B., or his death with- out such a son. And, so, (as to the second of the above supposed cases) there is no question that wherever the pre- cedent estate is necessarily determinable before the taking effect of the ulterior limitation, the latter will be construed an Executory devise, (q) The will may give a preceding estate of freehold, capable, in ifs oion nature, of supporting a con- tingent remainder ; yet, if the ulterior limitation want that connection with it, necessary to constitute it a remain- der, it can only be good as an Executory devise, (r) Before dismissing this point, it may be proper to observe, One cxreption that the rule, that contingent Uses by way of remainder requiring con- must be governed by the rules of the Common law, is t'"gent Uses *-' ' by way ot rc- subject to one exception. It is, that, when a use is limited mainder to , , , ,, , conform to the in contmgency to several persons who do not all become rules of the Common law. (o) Sugd. Gilb. Uses and Tr. 168, 2157. note. 1 Sand. Uses, 14-2. ( • .or Executory or devised, as that it may take effect as a remainder, either devise. vested or contingent, it shall never be construed to be a Springing or Shifting Use or Executory devise, (c) Thus, if land be limited in use, or devised, to A. for life, and after the decease of A. and B., to C. in fee ; this is a contingent remainder to C, and the limitation shall not be supported (n) Doe V. Carleton, 1 Wils. 225. moreover, which would have been too Hopkins V. Hopkins, 1 Atk. 581. C. remote for the creation of an Execu- Temp. Talb. 44. Doe d. Scott v. tory devise, at the date of the will. Boach, 5 Mau. & Selw. 482. And See Doe d. Scott v. Roach, supra. this rule holds, although the inccp- (b) In Doe v. Morgan, 3 T. R. tive operation of the ulterior gift as a 763. remainder is the consequence of a r(//e (c) Vurefoy v. Rogers, 2 Saund. of construction applicable to the limi- 380. Carivardine v. Carwardine, uhi tation ; and although the event con- supra. Doe v. Morgan, ubi supra. tcmplated by the will, and provision F. C. R. 386 — 395. 1 Prest. Abst. for which raises the construction in 130. Sugd. Oilb. Uses and Tr. 171, question, be the very event which hap- 172, pens in the testator's life, and one, 114 COMPARATIVE VIEW OF FUTURE [CIIAP. IX. as a Springing Use or Executory devise, in the event of A.'s decease in the Ufetime of B., which will prevent its taking effect as a remninder. (d) So, if a limitation or devise be made to A. for twenty years, if he shall so long live, and after his decease, to B. ; B. has a contingent remainder, which will fail in the event of the expiration of the term in A.'s lifetime. Or, again, if a person limit or devise property to A. and B., for their joint lives, or to C, for the joint lives of A. and B., and after the decease of both A. and B., to D. ; D. takes a contingent remainder, which will fail, unless in the most improbable event of the simultaneous extinction of both the cestuis que vies. There is, also, another case, of very frequent occurrence, in which the application of this rule is strikingly manifest. Where there is a limitation-over after a preceding gift to a person and his heirs, and there are words in the will by which the limitation to the heirs can be restrained to mean heirs of the body only, the first estate will be construed to be an estate-tail, and the limitation-over, a remainder. Thus, if land be given to A. and his heirs, provided that if he die without heirs of his body, it shall be to B. in fee. There, the limitation-over manifests, that the persons in- tended in the gift to A. and his heirs, were A. and his issue, and that in case of failure of such issue, B. should take. Both these purposes are served by restraining the word " heirs " to mean " heirs of the body ;" and, so, raising an estate-tail in A., with a remainder in fee thereon to B. ; which is the legal construction put upon the limitation. In a deed, this alteration of an express limitation in favor of intention is not admitted to the same extent as in wills (as will be seen more at large hereafter) ; ( ^ I may be limited pointnient merely,) are allowable in surrenders of customary in copyhold 1,1 T , , , , surrenders ; but or copyhold estates ; and that, perhaps, the pomt cannot certain, that even yet be considered, as other than a vexata qucesHo, beYh^e°sibi^r although there is the strongest probability of its being °^ ^" Execu- determined in the affirmative. No such doubt has ever attached to the validity of Executory devises of copyhold estates, which are allowed in the same manner, and to the same extent, as in the case of freeholds, (g) The great inconsistency of allowing limitations of copyholds in last wills, similar to Springing and Shifting Uses, and rejecting such limitations in surrenders, is apparent. How did all devises of copyhold lands, prior to the recent statute, 1 Vict. c. 26, take effect ? By virtue of the power conferred by the Statutes of Wills? Certainly not: for those statutes only extended to lands held by knight-service and in socage. How then was a testamentary power acquired ? Only upon the principle of a surrender, to the Uses declared by the copy- holder's will, and of his will operating as a declaration of the Uses of such surrender. The testamentary disposition of copyholds bore no affinity to the statutory devise of free- holds, and more nearly resembled the devise of a Use prior to the statute, 27 Hen. 8 ; which operated as a direction, by cestui que tise, to the party having the legal estate, to stand seised to the use of the testamentary nominee. Since, then, limitations in wills of copyhold estates, resembling Executory devises of freeholds, have never been questioned, how comes it that there should be any doubt as to the validity of Springing and Shifting Uses in surrenders inter vivos ? It may, perhaps, be matter for consideration, whether even in tuills of copyholds, such limitations ought, on strict (/) ^ide supra. ^. QA, et seq. S. C. subnom. Willcoche v. Uamynond^ (g) Brian v. Cawsin, 3 Leo. 115. cited 3 Rep. 20 b. Willoek V. Hammond, Cro. Eliz. 204 ; I 2 IIG COMPARATIVE VIEW OF FUTURE [ciIAP. IX. 7. On tlic vesting of a Springiny the assur- for fines and recoveries, by the statute, 3 & 4 Gul. 4, c. 74, ain cs sub- have no greater force or more extensive operation, under ,Vem\yTcSi 4 the provisions of that act, than belonged to the old modes G"'- '*> •=• '4- of assurance thereby abohshed. An enrolled conveyance, therefore, by tenant in fee, subject to limitations over, in the nature of Springing and Shifting Uses, will be attended with no greater force as respects such interests, than was consequent on a fine or recovery levied or suffered under similar circumstances, prior to the commencement of the operation of the new law. Indeed, it remains to be seen, whether, in one respect, an assurance under the Disentailing Act will not be less efficacious than a Statute Fine ; namely, in the important question of non-claim. There is no provision in the act communicating to as- surances made in pursuance of it, the divesting and de- structive force belonging to fines under the old law ; and the general enabling clause is confined to assurances exe- cuted by tenants in tail. It would, therefore, seem, that an assurance under this act by a tenant in fee, subject to a Springing or Shifting Use, will have no greater force, as regards such an interest, than an ordinary conveyance by lease and release, or bargain and sale, which would, in this respect, be clearly nugatory. For the same reason, that they are mere possibilities in _];y fooff- law, Springing, Shifting, and Future Uses are, further, not ™*^" ' liable to be destroyed or divested by the feoffment of the first taker, or other party seised of the fee for the time being, {q) Thus, that assurance, the divesting force of which is generally stronger than that of any other assurance, (and that, without any regard to the estate or interest of the feoffor,) yet fails of affecting, in the smallest degree, the subtle and pliable Future Use. It may be observed, that although there are but few observation as (g) Mullinetix\ ca&c, Trin. 42 Eliz., cited Palm. 136. 2 Sand. Uses. 12, i;3. 128 NKCKSSITY roil RULE AGAINST [ciIAP. X. to the paucity of express authorities on these points. The inde- structibility of future Uses the parent of the Kule against Per- petuities. This shown from the evils of remote future interests in property. cases in our Reports, in which the effect of a coninion recovery, fine, or feoffment, on Fntnre Uses, has been the direct subject of adjudication, there are many decisions which have proceeded, and been expressly grounded, on the assumption, of the indestructibihty of such Uses by any assurance, however tortious, of the owner of the previous fee or freehold, (r) This general characteristic of Springing and Shifting Uses — their indestructibility or indefeasibleness — was one of the producing causes of those wholesome restrictions on the power of creating future interests in property, com- prehended in the Hide against Perpetuities, {s) If, by means of Shifting Uses, a future interest in realty might be limited to arise, divesting prior estates at any period of time, however remote ; or, if through the medium of Springing Uses, a future estate might be created to arise on events, either certain or contingent, loithout any limit in regard to the time within ivhich such events should happen ; or, if by virtue of Powers of revocation and new appoint- ment, the right to create future estates could be indejinilely reserved, either to an interested person, or a stranger ; — if such limitations should be allowed, it requires little argu- ment to prove, that the perpetuity of entail, the mischievous tendency of which led the judges to evade the Statute De donis conditio7ialibus, by the invention of common re- coveries, would be revived, in all its force and hurtfulness, under the guise of Springing, Shifting, and Future Uses, (t) (r) Carwareline v. Carwardine, F. C. R. 388, Doe d. Scott v. Roach, 5 Mau. & Sclw. 482, («) Harg. Co. Litt. 271 b. n. l,s. iii. 2. (<) " The reception of Executory Uses into the law of England gave rise to th.at important part of its juris- prudence, which respects the doctrine of perpetuity, or excessive restraint on alienation. No question of perpe- tuity could arise at the Common law, or under the Statute De donis. After the Statute De do7iis, and before the introduction of Executory Uses, fu- ture estates could only be created by way of remainder. The remoteness of a remainder, however great, was no objection to it on its creation. If the event upon which it was to vest, took place during the continuance of the preceding estate, or at the instant of CHAP. X.] REMOTENESS OF EXECUTORY LIMITATIONS. 12^ It is in the nature of such limitations to " hang hke a cloud" over the estate, impeding its free transmission by the uncertainty of future enjoyment, and, therefore, to that extent, obstructing that mutual interchange between land and money, which, in a country whose prosperity is derived from its soil and commerce alike, is so essential to the interests of all, whether landholders, or merchants and those engaged in trade. The injurious effects of indestructible Executory limitations The feasibility being ascertained, there could be little difficulty in inventing remedy.*^**"* ^ a remedy. As by the establishment of common recoveries, the judges of the Common law obviated the hurtful tendency to a perpetuity in an unbarrable entail, and have ever since evinced their jealous care for the free exercise of this mode of unfettering estates-tail, or its substitute ; so, it is obvious, that the same regard for the free circulation of property would lead them, in some way or other, to avoid the ill consequences which would ensue from the prevalence of unrestrained and unlimited perpetuity, under the form of Springing, Shifting, or Future Uses. If their ingenuity could suggest a mode of avoiding and almost repealing a legislative enactment, (the Statute De donis) on account of its pernicious tendency ; the judges could be at no loss to devise some bounds, within which to confine those limi- tations of Uses, which owed their existence to judicial its determination, the remainder would and, still more, the introduction of vest in possession immediately on the recoveries, which originated in an ar- determination of the preceding estate ; bitrary decision of the judges, in direct if the event did not take place during opposition to a positive statute, suf- tlie continuance of the preceding es- ficiently showed, that such a modifica- tate, or at the instant of its dctermina- tion of property, as rendered it perpe- tion, the remainder would wholly fail tually inalienable, or postponed the of eflfect : during this period, there- power of aliening it, to a period ne- fore, of our law, all inquiry respecting ccssarily remote, would not be endur- perpetuity was out of question. After ed. It was, therefore, incumbent on the introduction of Executory Uses, the Courts to fix the boundary, beyond the question of perpetuity necessarily which Executory limitations should forced itself on the attention of the not be permitted to operate." Butl. Courts. The introduction of fines, note to F. C. R. 565, 566. 130 NECESSITY FOR RULE AGAINST [ciIAP. X. favor alone, and thereby to restrain their tendency to a perpetuity. Early apprc- Accordingly, in almost every case of Future Use which evils of per- arose, (after the lapse of some little time from the passing of remoti^'esutcs '^^^ Statute, 27 Hen. 8,) we find mention of " perpetuity," or vague. reference to it ; and that, too, frequently, where, from the nature of the limitations in question, there was little or no tendency to it. The notion which prevailed of" a perpetuity was vague, general, and undefined; and the language of the old sages of the law regarding it, would convey but an inadequate idea of the monster, which was held up for exe- cration by bench, bar, and suitors alike. The suspension of the enjoyment or vesting of property for a few months, would call forth the apprehensions of our lawyers, with as much earnestness, as if the months had been lives or gene- rations. The settlement of any definite rule, as to the time within which Future Uses should arise, was progressive and slow ; and in the marking out these limits, as occasion from time to time required, not a little inconsistency is observa- ble. Even after a certain latitude had been once allowed, we sometimes find a subse(|uent retraction or retrogression ; so unstable were the principles, and so undefined the ideas, which had been formed or were entertained upon the subject. Nor has the ingenuity of modern lawyers been much less exercised in the discovery of the ultimiim quod sit, or ne plus ultra of perpetuity ; for, strange as it may seem, but ten years have elapsed since the fixation of that ultimatum took place, {u) Having discovered the necessity for restraining limitations of Future Uses, within reasonable limits, we will proceed to prosecute a similar inquiry in regard to Executory devises and bequests. The case The same adjudication which finally established the legality of validity of Executory devises, likewise created the necessity {u) See Caddl v. Vahner, 7 Bligh. N. S. 202, Stated infra, p. 159. CHAP. X.] REMOTENESS OF EXECUTORY LIMITATIONS. 131 for the imposition of some restraint on them. In tlic Executory before-cited (?') case of Pells v. Broivn, it was decided by adjudged them three iiidnrcs against Dodderidqe, J., that a recovery suffered ""barrable by J o n J ' ' J common by the person to whom the determinable fee was limited, recovery. did not bar or destroy the Executory interest, because he who suffered the recovery had a fee, and the ulterior devisee had no estate depending upon that of the former, but a mere collateral possibility, which could not be touched by a recovery, (w) Dodderidge, J., held the re- covery a bar to the Executory devise, because it was but a possibility to have a fee, and, quasi, a contingent estate, which was destroyed before it came in esse Ijy the recovery, for otherwise it would be a mischievous kind of perpetuity, which could not be barred. Ever since the decision in the case of Pells v. Brown, an And ever since Executory devise of inheritance has been deemed unbarrable ^^^^ ^ ' by the common recovery of the owner of the prior estate; (a;) and if there have been but few subsequent cases, in which the point has been discussed, (y) there are many in which it has been assumed (z) as indisputable. The reasons assigned for the exclusion of Executory integrity of devises from the operation of a common recovery, are the ^t "^d^or^tliis same with those on which the like exemption of Sprine;ing indestructibi- 1 o, •^. TT • IT 1 f & D lity assailed, and Shiftmg Uses is grounded, and are open to the same and doctrine observations as have been offered in relation to the destrnc- [rue^founda! tibility of those Uses by common recovery. Disregarding "the unattainable subtlety of the reasoning" (a) urged for the unbarrableness of Executory devises, as a fruitless at- tempt to prove, on legal principles, the correctness of a rule resting only on arbitrary decision, the true and only ground of the rule, is, a favorable " consideration of the utility of (u) Fkle supra, p. 81. Bos. & Pull. 324. (ic) And see 2 Rol. 394 ; I Lev. (2) Wrinkle v. Billington, Dougl. 136. 729. Doe d. Cadogan v. Ewart, 7 (x) Hargr. Law Tracts, 518. Ad. & Ell. 647. (y) Doe d. Barnfield v. Wetton, 2 (a) 2 Harg. Jurid. Arg. 34. K 2 tion. 132 NECESSITY FOR RULE AGAINST [ciIAP. X. Interest of Executory devisee is barred, if he concur in the recovery. Executory devises inde- structible by fine. these limitations, in enabling men thereby to make provision for payment of debts, younger childrens' portions, and other necessary family arrangements, by giving over the estate on non-compliance with such imposed conditions." (b) The fictions of the Executory devisee not being within the presumed recompence in a common recovery, — of the law not taking any notice of the possibility of an estate arising after a fee, (a fiction belied by the very existence of the Rule against Perpetuities, ; — and of the infinite duration of the previous determinable fee in the eye of the law, — these are all reasons ingeniously invented, for propping up, by a kind of ex post facto justification, a doctrine adopted, in reality, for convenience only. It was resolved, however, in the case of Pells v. Brown, that " if the person, to whom an Executory devise is limited, come in as vouchee in a common recovery, his possibility is thereby given up :" — in order to support which exception, reasons have been urged, (c) fatal, in the writer's view, to the validity of the arguments for the protection afforded to Executory interests, where the Executory devisee does not concur, as vouchee. It has generally been laid down, that Executory devises are not destructible by fine ; {d) unless there be five years' non-claim after the time of the Executory interest accrued, in which case, it should seem, that the fine bars by the very words of the Statute of Fines (4 Hen. 7, c. 24). The writer has been unable to discover any decided case, in which the effect of a fine on an Executory devise, has been determined, but the mutual applicability of the authorities on Springing and Shifting Uses, to Executory devises, and of the cases on the subject of Executory devises, to Springing and Shifting Uses, renders the cases of Lloyd v. Carew, and Whitfield v. (fc) Povpell's note to F. Ex. Dcv., 4th edit., 67, note. (c) Sec Powell's note fo F. Ex. Dev. 70, 71. (d) Sugd. Gilb. Uses and Tr. 278, 288. 5 Cru. Dig. 219. F. C. R. 418. Harg. Law Tracts, 518. CHAP. X.] REMOTENESS OF EXECUTORY LIMITATIONS. 133 Fausselt, before cited, {e) authorities for the position, that an Executory devise is unaffected by the fine of the owner of the determinable fee, until five years after the accruer of the Executory devisee's right. The principle of those cases was, that the fine vs^as no bar, because the Springing Use was a mere possibility, which could not be barred ; — a prin- ciple, obviously, applicable to the case of an Executory devise, to the same extent in which it is applicable to Springing and Shifting Uses, (f) An Executory devise is also indestructible by the feqff^- And by feoff- ment or other tortious alienation of the owner of the fee for "*^"*- tile time being, {g) Thus, where {h) one, by deed, granted several annuities to his younger children, and afterwards devised all his lands to his elder son and his heirs, upon condition that he paid the annuities, and if he failed of payment, that the youngest son should enter and have the lands; the eldest son entered and made a feoffment to A., and then the youngest son entered for nonpayment ; and it was held, that his entry was lawful, and that the contingent estate was not divested. So, also, where {i) lands were de- vised to A. in fee, and, upon a contingency, to B. in fee, and A. made a feoffment in fee ; it was held that the con- tingent right was not destroyed. The same reason — its being a mere possibility, or future expectation of an interest — which protects an Executory devise from the common recovery, and fine, also prevents its being divested by the feoffment, or other wTongful alienation, of the owner of the previous determinable fee. But it must be observed, that all that has been here But Executory . devises eii- said respecting the indestructibility of Executory devises, grafted on must be understood of such Executory devises only, as are 2S£' ^^ engrafted upon estates in fee-simple ; it being perfectly (e) Vide supra, pp. 125, 126. note, 292. (/ ) See the arguments in RomiUy (A) Mullineux's case, cited Palm. V. James, 6 Taunt. 262, referred to, 136. supni, p. 1 26, note. ( Purdowe v. Parker, 2 Rol. Abr. (g) Sugd. tiilb. Uses and Tr. 287, 793, pi. 2. 134 NECESSITY FOR RULE AGAINST [CIIAP, X. Indestructibi- lity of Execu- tory devises also a creative cause of the Rule cigainst Perpetuties. Executory becjuests of clear, that (like every other limitation) when limited after an estate- tail, they are barrable by the common recovery or disentailing assurance of the tenant in-tail. Thus, if land be limited to A. and the heirs of his body, and if A. should die under the age of twenty-two years, then, that immedi- ately after his death, his estate shall cease, and the land belong to B. in fee, or in tail, a common recovery suffered, or enrolled assurance executed, by the tenant in tail, imme- diately on his attainment of the age of twenty-one years, and, of course, while his estate is continuing, will bar the Executory hmitation. This privilege of Executory devises, which exempts them from being barred or destroyed, is the foundation of restric- tions imj)oscd upon their creation, the same as those which bind Future Uses, and also, ordinarily known under the name of the Rule against Perpetuities. It is the inevitable tendency of limitations by way of Executory devise, as well, as of Springing, Shifting, and Future Use, to operate as a clog upon the alienation of the inheritance, and to impair its value, by the uncertainty of enjoyment ; and, unless the right to create those future interests were confined within reasonable limits, it would be in a settlor's or testator's power to make an estate inalienable for generations to come {k) ; a power which the law very wisely denies to every man, as the exercise of it would tend to render property, in a great measure, useless to the general purposes of a commercial country. As before observed, the limits thus imposed on Executory devises are the same with those within which Shifting, Springing, and Future Uses are confined ; and the progressive extension of those limits, which it will be our business presently to trace, has been applicable to both kinds of limitations. Executory betjuests of terms for years and other chattel interests in land are equally secure, as Executory devises of {k) F. C. R. 430. CHAP. X.] REMOTENESS OF EXECUTORY LIMITATIONS. 135 real estates, against the disposition of the legatee of the chattels reai antecedent interest. (/) And, as in the case of Executory devises, this doctrine of the indestructibility of Executory bequests, was estabhshed by the very same decisions v^^hich affirmed the vahdity of those hmitations. Thus, the fourth resohition in Maniiing's case {m) was, " that after that the executor hath assented to the first devise, it heth not in the power of the first devisee to bar him who hath the future devise, for he cannot pass more to another than he himself hath." And so in Lam'peti'& case, {ii) one of the questions raised, was, " if the first devisee, after assent made by the executor, might bar the Executory devise, being but a pos- sibility, or not ;" and the opinion of the judges was in accordance with the resolution in Manning's case upon the same point. And it is also clear, that in the case of an By merger, Executory bequest of a term of years after a previous limi- ^^^H "^^' ^ tation of the same for life, no subsequent union of the fi'ee- affecting ^ interest ot hold or inheritance, with the interest of the first taker, nor first taker. a feoffment, nor any other tortious act, by such first taker, will destroy, or in any way affect, the interest of the ulterior legatee, (o) Thus, where {p) W. H., being possessed of a house for a term of thirty-one years, by his will devised the profits thereof to I. during widowhood, and afterwards de- vised the term to R. ; and I., by the assent of the executor, entered, and afterwards purchased the fee of the house devised : it was held, that although the whole term was in I. quousque, &c., so that by the purchase of the fee, her interest became extinct ; yet the same did not defeat the Executory bequest to R., but that after the marriage of 1., and not before, he might enter. And so, where (5) a person to whom a term was devised for life, with a limitation-over, (Z) F. C. R. 420. 10 Rep. 52. And see also Lee v. Lee, (m) 8 Rep. 96, vide supra, p. 85. Moor, 268. (n) 10 Rep. 47 b. (q) Cotton v. Heath, Jio. Abr. 612, (o) F. C. R. 421. I Ab. Eq. 191. ( p) Hammington v. Rudyard, cited 136 NECESSITY FOR RULE AGAINST [cHAP. X. Exploded distinction as to this point, between be- qnest of a. term to first taker, and devise of the land. But Executory interests may be released and be- queathed, and also assigned in equity. made a feoffment of" the lands, whereupon the reversioner in fee entered for the forfeiture; it was held, that the Exe- cutory bequest was not destroyed by the feoffment of the fii-st taker, and the reversioner's entry for the forfeiture. A distinction was, indeed, formerly taken between a be(|uest of an existing term, and a devise of the land for a term, in regard to the destructibility of the Executory in- terest by the first taker's possession of the inheritance, or by his tortious alienation. It was said, that where a person having a term, devised his term, the entire interest in it vested in the first legatee for a certain time, and that, during that time, it was subject to his power, in the same manner as if there had been no limitation-over, (r) But, as Mr. Fearne observes, (.?) how- ever admissible such a distinction might have been before Executory devises of terms were established, and whilst a difference was supposed between the limitation of the term itself, and of the land or profits, or iise, or occupation, &c., all pretence for it evidently vanished in Manning's and Lampetts cases, before mentioned. But it is to be observed, that although Executory interests in chattels real cannot be in any way affected by the acts of the first legatee, they are capable of being released by the person decidedly entitled under the ulterior limitation, to the first taker, or other person in possession of the antece- dent limited interest. (/) And they may also be transferred by deed to strangers, in equity; (u) but a Court of law does not recognise the assignment of such interests, before they vest in possession, (r) Executory interests in terms are also susceptible of testamentary alienation both at lato and in equity ; (tv) and t/iat, notwithstanding the testator (r) Sec in regard to this distinction, Dyer, 253 b. ; Cro. Eliz. 216 ; 1 Rep. 154; Co.Litt. 45 b. («) F. C. R. 422. And sec Ifriff/U V. Cartwright, 1 Burr. 282. ( t) Lampett's cajc, uhi supra. F. C. R. 423. 2 Prest. Abst. 118. (m) 2 Freem. 250. 9 Mod. 101. ■■i P. Wms. 132, 1 Ves. 409. (02 Prest. Abst. 118. (w) F. C. R. 366, 548. 2 Prest. Abst. 118. CHAP. X.] REMOTENESS OF EXECUTORY LIIMITATIONS. 137 may not be ascertained as the person in whom the future interest may ultimately become vested, or notwithstanding he may be entitled thereto, otherwise than under the in- strument by which the same was created, (x) In regard to Executory bequests of chattels personal ; the Executory cases {y) which establish the freedom of such interests, from chrielsVo'- the claims of the creditors of the first taker, fully demon- ^""^^f^^'^"^ strata their exemption from his power in any shape, whether extinction. it be in the nature of an assignment, sale, or other wrongful attempt at the extinction of the Executory interest, {z) And the rule, that Executory bequests of chattels real and Rule of in- , , , , 1 J !• Hi destructibility personal cannot be barred or destroyed, applies equally to applies to all every kind of such future limitations, whatever the nature ^^^'' °J^^''^" or extent of the antecedent interest. quests. This doctrine of the indestructibility of Executory interests Necessity for by the act of any one, other than the person entitled under JT^n'JJeaJon the future limitation, necessitates the application to them, of Executory . bequests. of the same restrictive rule as that before refered to m re- gard to Executory devises of inheritance, namely, a rule, by which the creation of future interests shall be confined within such reasonable limits, as will avoid the inconveni- ence attending the existence of unbarrable rights of remote expectancy in any kind of property. To establish a conclusion with respect to Trusts analogous to Spi'inging and Shifting Uses and Executory devises and bequests, similar to that which has been arrived at in regard to those limitations themselves, can be matter of but little difficulty. Equity is even more regardful than the Common law, of Equitable „ „ -. . n 1 ^ future interests the preservation oi future estates and interests trom aestruc- preserved from tion by the owners of preceding interests ; for it is a well- ^Jalirwi"h established rule of the Court of Chancery, that in the case legal limita- of equitable life-estates and contingent remainders, the (x) 1 Vict. c. 26, s. 2. note. Hoare v. Parker, 2 T. R. (y) Cadogan v. Kennett, Cowp. 376. f iWe s«/»r(i, p. 98. 432. Foley v. Burnell, Cowp. 435, (z) F. C". R. 420, 421. tions. 138 NECE^;siTY roil uui.e against [chap. x. remainders are not liable to be delcated by the tortious alie- nation of the tenant of the particular-estate, nor by its determination before the happening of the contingency on which the remainder is suspended : the reverse of all which, is the rule of the common law. A fortiori, therefore, as to Trusts not limited after the manner of particular-estates and remainders, but creating substantive and independent in- terests (whether taking effect in futuro, or divesting previous gifts,) will equity prevent any destruction of future estates, by persons entitled under prior limited gifts. And this, the more, as there are no proper equitable assurances of the like forcible operation in Chancery, with common recoveries, fines, and feoffments, at (Common law. These assurances are, indeed, when brought to bear upon equitable interests, similar to the Common law estates within the scope of their ordinary operation, attended by a like force and efficacy ; as, ex gr., a common recovery suffered by equitable tenant in tail ; but as to their extraordinary and tortious effects, the nature of equitable rights is not congenial to their display. As to the point of the operation of a recovery suffered by a person having a Trust in fee, rcquitas sequitur legem, is the rule ; for as the res gestce of the original question of the effect of a recovery at Common law, in a similar case, are of doubtful character {i. e. the operation of a recovery upon limitations engrafted on estates in fee, supposing it were allowed any, might either be considered proper and ordi- nary, or tortious and extraordinary,) the Chancery jurisdic- tion adopts the Common law rule. E(piitable interests, therefore, similar to Future Uses and Executory devises and bequests, are equally exempt from liability to be barred or destroyed by the owners of antecedent estates. Evils of remote This characteristic of Future Trusts established, the conse- hf ChlncCT^as (picnce must be the same with that which flows from a at Common giniilar quality in Executory limitations at Common law. The evils of remote indestructible estates, as forming a clog upon the alienation of property, are as great when taking CHAP. X.] REMOTENESS OF EXECUTORY LIMITATIONS. 139 the form of Trusts in Chancery, as when limited under the rules of the Common law; for as the equity jurisdiction is recognised, and concurrent with that of the Courts of law, resort to it would be an easy mode of evading the restric- tions on the creation of remote estates, did it not impose an e(|ually effective check upon that abuse of the right of pro- perty. But, further than this, the provisions of the law against too great remoteness in future unbarrable interests, are peculiarly in keeping with the salutary influence of the Court of Chancery in administering the laws of property, as all other justice ; and such as it might have been expected to have adopted, as to estates and interests within its sole jurisdiction, even had not the like restrictions previously obtained in regard to limitations of legal estates. Limita- And remedy tions of Future Trusts are, therefore, subject to the same restrictions in equity, as are similar legal estates, at law. Thus much for the several kinds of limitations of future General , , , 'ii •! J • ^• remarks as to mterests m property, legal and equitable, considered indi- the subjects vidually, as furnishing grounds for an antecedent probability t^^^'^jf^^^t^^jr" of their being restricted to take effect within reasonable limits in point of time. In the prosecution of this Treatise, many instances of the several kinds of Executory interests, noticed in this and the preceding chapter, will promiscu- ously demand our attention, in a variety of views uncon- nected with their specific distinctions or relations ; but what has been said in respect to those distinctions and relations, and their general distributive arrangement, will, it is appre- hended, be sufficient to enable the reader, who may have occasion or feel inclination for it, to distinguish and classify the several limitations in question, as they occur. 140 CHAPTER XL HISTORY AND PROGRESSIVE ESTABLISHMENT OK A RULE FOR PREVENTION OF REMOTENESS, UNDER THE NAME OF THE RULE AGAINST PERPETUITIES. Notions as to It has before been observed, that for a long time subse- Sudons^a" quent to the legal establishment of limitations by way of first vague ; Springing and Shifting Use and Execntor^' devise, there was no settled notion as to the ultimate period within which tlie law would confine the suspension of the possession and enjoy- ment of property, by means of those and similar limitations. Indeed, we find Lord Nottingham, in his time, laying down no more definite a rule on the subject, than that when general inconvenience begins, perj)ctuity must stop — a rule, one would think, requiring no very great legal discernment And practi- cithcr to approvc of or establish. The consequence was, andconfllcting" ^^^^' what was dccmcd a pei*petuity, or a tendency to a perpetuity, at one time, escaped even the suspicion of being such, at another : that is, the limits of perpetuity were as vague and uncertain, as was the principle laid down for the guidance of the judges in fixing those limits. Remoteness of But, to proceed in the inquiry concerning the progressive devTslTand establishment of the legal boundaries of remoteness of Exe- hequests. cutory limitations, and : — First, as to limitations by way of Executory devise and bequest. The case which has generally been thought to have first given any thing like direction or shape to the laws of perpetuity, in relation to Executory de- Case of rdu vises, is, that of Pells v. Brown ; (a) which, it will be remem- V. liroicn. (a) Cro. Jac. 590 ; 1 Eq. Abr, 187, c. 4. CriAP. XI.] IIISTOUY OF TIIK RULK, &C. 141 bered, (b) was the c.ise of a devise to a younger son and liis heirs for ever ; and if he died without issue, Uving his elder brother, then to him and his heirs. The hmitation to the elder brother was adjudged to be a good Executory devise ; and the case, therefore, went so far as to establish the lega- lity of an Executory devise to take effect within or at the expiration of a life in being. But still we cannot discover, Observations from the arguments of the judges who differed fi"om Dodde- Brown." * 7-idffe, J., on the point of the destructibility of the Executory limitation, to what extent they were influenced in their decision, by the fact of the period, within which the limita- tion was to take effect, being no more than one life in esse. Indeed, from the report, it is not clear, that the question was even submitted to them, although it is reasonable to suppose, they must have considered it, as the dissentient judge assigned the danger of a perpetuity as the express ground of his opinion in favor of the destructibility of Executory devises. The case of Pells v. Brown occurred in the year 1621 ; and it is of this case that Lord Kenyan once said, " it was the foundation, and, as it were, the magna charta of this branch of our law." To the last-mentioned case succeeded that of Snotv v. Case of Snow V CfHtlcr Cutler, (e) (between 1660-70) where there was a devise to the heirs of the body of the testator's wife, if they should attain the age of fourteen. The case is by no means satis- factory as an authority on the question under consideration, not only because the Court was divided in opinion, but also because the point of discussion appears to have been the validity of a double contingency ; viz., the birth of a child, and the attainment by that child of the age of fourteen years ; rather than, the validity of an Executory devise to take effect within a period of fourteen years superadded to a life in being. However, there was a clear recognition by These cases (6) I'ide supra, p. 81. 1 Keb. 752, 800, 151 ; 2 Keb. 11, (c) 1 Lev 135; T. Raym. 162; 145,296; 1 Sid. 153. 142 HISTORY OF THE RIILF, [t'lIAP. XI. allowed the period ot" ono life in bein;j to future limitations. Several lives followed from the allowance of one life. Case of Goring V. Bickerstaff, establishing that conclusion as to terms of years. the jn(l<2;os in this case, that Pells v. Brown had settled the vahdity of an Executory devise to take elfect within one life in being. From the allowance of one life in being, the transition was easy, to two or more contem])orary lives; because the period of any number of such lives, is, in fact, nothing more than the life of the person who may happen to be the sur- vivor. This consideration, — that the lives are all wearing away at the same time, or, as it lias been (juaintly expressed, that " all the candles arc ])urning at once," — accounts for the fact of there not being any case to be found, in which the circumstance of the period of postponement including more than one life, has been urged as an objection against its validity. Directly executory limitations were allowed to take effect within the compass of a life in being, it seems to have been tacitly admitted, that two or more lives did not constitute too remote a period for the vesting of future estates. Although no case is to be found in which the validity of an Executory devise of inheritance, after the determination of two or more lives, was actually decided, the legality of a limitation-over of the trust of a term, after two co-existing lives, was expressly affirmed by I^ord Chancellor Clarendon, in the case of Goring v. Bickerstaff, (d) which occurred in or about the 14 Charles 2, (1664). In that case, it was resolved, " that the limitation of a term to several persons in remainder, one after another, if they be all in being and alive together, is good, and doth in no sort tend to the perpetuity of a chattel." The principle of the decision was, obviously, applicable to an Executory devise of in- heritance, although the subject of the devise, in the parti- cular case under consideration, was a chattel, (e) Moreover, in the case, next in order of consideration, we do not find that any objection was taken to the validity of the Exe- (ctuity. Mr. Harqrave observes, (71) in re- Observations : . \ . , , ,.,•■, upon the duke ference to this case, that it was thought to be within the oi Norfolk's principle of the decree, that so long as the settlement of an3' species of property by Executory devise, or by Trusts («) 2 Jurid. Arg. 50. case. 146 HISTORY or THE RULE [cilAP. XT, of the same nature, ditl not exceed the ordinary time for harring a regular entail by estates for life, with remainder in tail to an unborn child; which was, when such child should attain twenty-one ; it would be considered as allow- able. That gentleman also observes, that this led to a general practice of settling terms for years, and of providing portions for children, under the trusts of such terms, to the extent of lives in being and twenty-one years after: and that such practice was made a chief ground of extend- ing Executory devises of inheritance, in like manner ; an extension which was affected by the case next to be noticed. The case of The casc referred to, was that of Stephens v. Stephens, (o) stTphens'' in the year 1736; the facts of which were :— A testator devised lands to his grandson W. and his heirs, and if he should die under age, then to his grandson, T., and if T. should die under age, then to such son of the body of his daughter M. S., by his son-in-law, T. S., as should happen to attain his age oftiventy-one years, with remainder- over. The testator died, leaving his grandsons, W. and T., who both died under age : afterwards, T. S. had another son by M. S., named A. A. claimed the lands under the limitations in the will. T. S. also claimed, as residuary devisee ; and M. S., as heir-at-law of the testator. The judges, after observing that the principal point was, whether the devise-over, upon T.'s dying under twenty-one years, to such other sons of M. S. as should attain twenty-one years, was good by way of Executory devise, said, that they were unable to find any other case, wherein the Executory devise of a freehold had been held good, w here the vesting of the estate was suspended until a son, unborn, should attain twenty-one, except the before mentioned case of Taylor v. Biddal. Therefore, they said, that however (o) Ca. T. T. 228. Forrest. Gulliver v. Wicket, \W\\s.\^b; Bid. 228. And see also Goodlitle\. Hood, lock v. Stoties, 2 Vcs. sr., 521 ; Good- WiUes, 211; 7 T. R. 103, note; wta« v. Goodright, 2Bun: HIS. Sheffidd V. Lord Oirenj, 3 Atk. 282 ; CHAP. XI.] AOAINST PKUrKTUITIE?!. 147 unwilling they might be to extend Executory devises, beyond the rules generally laid down by their predecessors, yet, upon the authority of that judgment, and its conformity to several late determinations in cases of terms for years, and considering that the power of alienation would not be restrained longer than the Common law would restrain it, viz., during the infancy of the first taker, which could not be reasonably said to extend to a perpetuity, they were of opinion, that the limitation in question was good by way of Executory devise. Since this adjudication, it has alwa3's The decision been allowed, that Executory devises of inheritance, to take %fjX'is"^ ^' effect within the period of a life or lives in being, and established the _ _ period of lives twenty-one years after, are valid : but still, it was by no in being and means clear, from the decision, that that period was to be ygars.^^"^ considered the ultimum quod sit of remoteness. The statute of 10 & 11 Gul. 3, c. 16, having provided This extended that children en ventre sa mere, born after their father's of gestation, by death, should, for all purposes of Hmitations of estates, be ^^^^q^\]^ ^ deemed to have been born in his lifetime, the rule as to the i*?. period of remoteness laid down in Stephens v. Sfephenx, obtained a further extension, by mere operation of law, of some nine or ten months, as the period oi gestation. For example, let us suppose, that in the same case of Stephens v. Stephens, T. S. had died, leaving his wife enceinte, and the child. A., had not been born for some months after the decease of T. S. ; in that case, the Executory devise under which A. eventually became entitled, would not have taken effect until the lapse of twenty-one years and a few months, beyond lives in being, and yet such Executory devise would, imquestionably, have been good. The case of Stephens v. Stephens, must, therefore, be considered as having estab- lished the validity of Executory devises to take effect within the period of a life or lives in being, and twenty-one years and nine or ten months afterwards. Tlie next stci) in the progress of the rule, fixing the time ^^asf' of ^•""5' tor which tlie possession and enjoyment of real estate may wliich allowed L 2 148 HISTORY OF THE RUT.K [tHAP. XI. a double period be suspended, was the allowance of a period of gestation at of gestation. ' r i • ii' . the commencement ot the contingency, as well as at an intermediate part of it. This extension of the rule was effected by the Court of B. R., in the case of Long v. Black- all, (p) during the time of Lord Kenyan's presidency in that Court. A testator be(|ueathcd a lease for years to trustees, in trust for his son, T. 1?., for life, and after his decease, in trust for such issue male of him, or descendants of his issue male, as at the time of his death should i)c his heir, and if at the time of T. B.'s death, there should be no such issue male, or descendants of issue male of him, living, then, in trust for the testator's son, S. S. 1?., for life, and after his decease, in trust for such issue male of him, or descendants of his issue male, as at his death should be his heir, and if at the time of his death, there should be no such issue male, or descendants of issue male of him, living, then, in trust for the child, with which the testator's wife was then enceinte, if the child should be a son, during his life, and after his decease, in trust for such issue male, or descendants of his issue male, as at the time of his death should be his heir, and if at the time of the death of such child, there should be no such issue male, or descendants of such issue male of him, living, or if such child in the womb shotild not be a son, then, in trust for such persons as should then be the testator's legal representatives. The child in the womb was born after the testator's decease, and wjis a son. The two sons living at the date of the will, and also the })osthumous one, died without leaving isgue. One of the questions which arose, was, whether the limitation-over to the testator's legal representatives, was good. On a case from (Chancery, the Court of B. R. sent their certificate in favor of the ultimate limitation, as a good Executory devise. The case itself, it will ];e perceived, was not one, in which a double period of gestation was actually allowed : but as the life of a posthumous child was one of those, on which {p) IT. R. 100. CIIAr. Xr.] AGAINST PERPETUITIES. 149 the ultimate limitation, whose validity was in (jucstion, de- pended, the point for decision was, the })ropricty o^ beginning the period of contingency on which the Executory devise was to take effect, with the life of a person in the womb. This case has been, since, generally deemed {q) an authority for the allowance of two periods of gestation to Executory devise, besides lives in being and twenty-one years : al- though attempts have been made (r) to show, that it was no- thing more than a decision affirming the allowance of a legal time for the birth of one posthumous child ; and that the judges did not contemplate the particular circumstance of the time of the birth of the posthumous child being taken at the commencement of the period of contingency ; because, in the case under their consideration, it was of little moment, the allowance of another period of gestation not being required. Our attention has, thus far, been confined to decisions on Romotoness cases of Executory devise and bequest ; but before proceed- „„,; shifUng ing further with the inquiry, it will be proper to take a ^*"' short review of a few cases of limitations, by way of Springing and Shifting Use. As in the case of Executory devises, so here, we shall be Originally, ^ n ■ 1 I'lii • 1 1* views of able to discover no dehnitc rule abided by, in the earlier remoteness as decisions upon die subject. We meet with the same dread Uses!equalir^ of " ncrpctuitv :" but what constituted a perpetuity, and undeiined with I i^ 'I _ T . those respcct- what, or, indeed, whether any, ])rincij)lc guided the consi- ing Executory deration of the question, it is difficult to ascertain. Holt, C. J., laid it down, {s) that if one bargain and sell to the use of another, five years hence, this was a good Euture or Springing Use. And it is also said, by the same authority, that a feoffment to the use of the right heirs of J. S., after the death of J. S., if he die without issue within twenty years, was a good commencement of a Euture Use. Indeed, (<;) 6€ru. Dig. -IHB. (*) In Davks v. Speed, 12 Mod, (,) 2 Hargr. Jmid. Arg. 105, ct 39; 2 Salk. 675; Holt. 731. 5t(»i(l ChicC Justice llalc luul before (/) treated it as clear, thai the limitation of a Use, after two years, or after the death of John at Stiles, to the use of J. N,, was good. Lord Bacon, also, considered {u) a bargain and sale to J. S., to lake effect after the bargainor's death, without issue, as a valid expectant Use ; but, at the present day, such a limita- tion would clearly be bad, as tending to a perpetuity. So, again, it was said, {v) if a man covenant to stand seised to the use of his mother in fee, if he himself die without issue, the use should arise ; for the contingency happens, if at all, upon the covenantor's death. In addition to these, there are many other dicta to be found in the earlier text-books, so vague and unsatisfactory, as to make it impossible to extract from them, any thing like a definite idea, as to whether any and what restriction was imposed on the crea- tion of future Uses. Probably, however, it is not risking too much to say, that there appears to have been Uttle doubt entertained, that the limitation of a Future Use to arise within the period of a life in being, was allowable. Rosfocns case. The first authority deserving notice is Bnstock's case, {w) which was as follows : — W. B., father of E. B., grandfather of R., being seised in fee of a messuage and mill, and other hereditaments in B., and M., and also of another messuage w ith a curtilage in B., levied a fine of the said hereditaments, as to the estate in B. and M., (except a close called G. C.,) to the use of W. B, for life, and, after his decease, to the use of E. B. and the heirs male of his body, on the body of M., his wife, together with other remainders-over in tail, with re- mainder to the right heirs of E. ; and as to the other messuage and certain lands thereto belonging, and the said close called G. (y., before excepted, to the use of E. B., for life, remainder to the use of the heirs male of the said E. B., on tlie body of the said M., together with other remainders in tail, re- mainder-over in fee to the right heirs of E. B. ; and if the (O I'ollexl. (i;5, ()ti. («') Pollux f. J30. (/.) Read. IFbcs, (j3. {w) Ley, 5ti. CUAP. XI.] AGAINST PEUPETUITIES. 151 said E. B. should fortune to die (livinj; tlic said M.,) that then the said fine should be of the said last mentioned messuage and the lands thereunto belonging, and therewith occupied, and of the said close called G. C, to the use of the said M., for the term of her life, and after her decease, to the uses aforesaid. E. B. died, living M. and W. B. the grandfather ; and it was resolved, that the estate M. was entitled to, was an estate for life in the last-mentioned mes- suage. This, we may observe, was a clear adjudication of the validity of a Shifting Use, to take effect within the com- pass of a life in being. The next case to be noticed, is that of Roe v. Tranmer, {x) Case of Roe where T. K., being seised in fee of the lands in (juestion, ^" '■"""'*''• executed indentures of lease and release of them to his brother. By the release, T. K., in consideration of natural love, and of 100/., granted, released, and confirmed to his brother, after the death of the said T. K., all that close, &c., to hold the same to his said brother, and the heirs of his body. It was admitted that the conveyance was void as a release, being a grant of a freehold to commence infuturo : but the Court held, that it should operate as a covenant to stand seised to uses ; and that the estate should vest in the brother as a Springing Use. This decision may be regarded as establishing the validity of a Springing Use, limited to operate on the expiration of a life in being. The next case bearing upon the question of the remote- Case of Lloyd ness of the contingency upon which a Springing or Shifting Use may be limited, is that of Lloyd v. Carew. {y) M. and P. T., being seised in fee as coheirs, in consideration of 4000/. paid to M. by K. C, and of a marriage which soon afterwards took place, between P. and R. C, conveyed all their estates to trustees and their heirs, to the use of K. CL for life, remainder to P. for life, for her jointure, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of 11. C. and 1*., in tail male, suc- {x) 2 Wils. 75. (y) Show. Pari. Ca. 137. Pre. Cha. 72. 1.02 HISTORY OF THE RULE [cUAP. XL ccssivcly, remainder to the cluuy;hlers iu tail, with the uUi- inate renuiinder to the said 11. C, and his heirs for ever ; suhject to a proviso, that if it shonld happen, diat no issue of the said K. C. by the said P. sliould be living at die decease of the survivor of them, and the heirs of die said r. should within twelve months after the decease of the sunivor of the said 11. C and P., dying widiout issue as aforesaid, pay to the heirs or assigns of the said 11. C. 40()()/., that then the remainder in fee-simple so limited to the said 11. C. and his heirs should cease, and that then and from thenceforth, the premises should remain to the use of the right heirs of the said P. for ever. Here, it will be ob- served, the contingency extended to two lives in being, and one year beyond. A bill in Chancery was filed by the wife's coheirs, against the husband's heir, to have the benefit of the limitation, on payment of the 4000/. The Court, assisted by two judges, dismissed the bill ; and, as it should seem, because the contingency was too remote. (;:) But die plaintiff appealed to Dom. Proc. Before that tribunal, the great point was, whether one year beyond lives in being, was not an excess of die time for an Executory devise of the fee, or for a contingent limitation or Springing Use of the same nature ; it being contended for the respondent, that the lives of persons in esse constituted the ne plus ultra of Executory devise and Springing Use. The ease ended in a reversal of the decree, and, consequently, became an authority for one year beyond lives in being, as not too remote a con- tingency on which to limit a Springing or Shifting Use. Observations It is difficult to say, upon what j)rinci{)lc Uie excess of one i'I!uun-'!,ml year beyond lives in being was allowed in the last-mentioned (■nwt uf iiic ^^y^, ^jj, ^yjj.jj^ further period of remoteness is to be consi- tleiiaioii IU this ' ^ <-' 1 • case. dered as having been legalized by the allowance of an arbi- trary term of one year, nnconnoctoil with the situation or circumstances of die party to whom the ulterior Shifting Use was limited. Certain it is, diat iheio is no reason for the allowance of one year beyond lives in being, which is {z) 2 Harg. Jurid. Arg. '66. CHAP. Xr.J AGAINST I'EIIPETUITIES. 153 not equally applical)le to any other arbitrary nuinbcr of years, added to a lite or lives ; unless it be that ot eonve- nience. And it is to this latter only, that we must look for the meaning and extent of the decision in Lloyd v. Carew : for the judges, in the case of Cadell v. Palmer, hereafter cited, (a) although their opinions were in fiwor of a gross term of twenty-one years beyond lives in being, took espe- cial care to remark, that although the case of Lloyd v. Carew established diat the period of a life or lives in being was not the ultimatum of perpetuity, yet it does not authorize the inference, that a term of twenty-one years or other arbitrary term, for which no special or reasonable purpose is assigned, would also be allowed. From the extreme paucity of cases in which the question jj^^jf^ ^f of remoteness, in reference to the creation of Springing and a"fl'<" 'fes ' I !::> o upon remote- Shifting Uses, has obtained any discussion, we shall find it noss of limita- . . . p tions by way impossible to take a progressive view oi the doctrine ot per- of Use. ]>etuity, as exclusively applicable to limitations by way of Use, similar to what has been done on the subject of Execu- tory devises. The writer has been unable to discover any decisions relating to Springing and Shifting Uses, corres- ponding to the before-mentioned cases of Taylor v. Biddal, Stephens v. Stephens, and Long v. Blackall, by which the law of perpetuity, as applicable to Executory devises, was so materially assisted. Nor does this hiatus in our historical 71,1^ deficiency deduction, occasion a deficiency of any great importance, '^^xcllrA im. except, perhaps, as regards the completeness of a continuous portance ; chain of decisions, and progressive development ot princi- Kxccutoi y pics, gradually ai)proximating to the rule and doctrine of fpi^iu-uUe'to law ultimately established. For every practical purpose, f"'"'-^ Uses. as has been before remarked, there is a reciprocal a})plica- bility of all rules laid down on (|uestions of remoteness of contingency, between Springing and Shifting Uses and Executory devises ; and whatever the state of the law on (a) Vide infra, j). \i)9. And bce of Pow. Dcv., vol. 2, pp. 31^7,398. remarks of Mr. Jai ituin, in his edition 154 HISTORY OK THE RULE [CIIAP. XI. the subject at any <>;iveu pL-iiod, no doubt a}>pcars to have been ever entertained, that what was too remote a contin- gency for an Executory devise, was hable to the same objection in regard to Umitations by way of Use, et e con- verso, (b) 111 addition to this, it is to be observed that I^ord Rosslyn, in the case of Blandford v. Thackerell, (c) (which occiu'red in the year 1793,) remarked, that there might be any number of Springing Uses within twenty-one years, after lives in being, which was the ])reci.se period of remoteness established in regard to Executory devises, by the case of Stephens v. Steiiliens, in the year 1736. The question, Thus far, therefore, we have seen, that Springing and term ot'tvvcnty- Shittuig Uscs and JirXccutory dcviscs maybe nmited to take ibL'lute^or '^ effect Oil cvciits or contingencies to happen within the space conditional on gf ^ \\{q qj. a^y number of Hves in being, and twenty-one infancy. . , , years after ; together with two periods of gestation, one at the commencement, and the other at an intermediate part, of the period of postponement. Doubt and uncertainty, however, were not yet put an end to : the exact limits of the rule had yet to be clearly ascertained. A question arose, on the construction of the rule, as just stated, of the follow- ing nature : — On the one hand, it was contended, that the term of twenty-one years superadded to lives in being, within whicli a Springing or Shifting Use or Executory devise might be limited to arise, was intended to be a gross term, irrespective of the state or circumstances either of the person whose estate was to be divested, or of tlie person entitled under the ulterior limitation. On the other hand, it wiis said, that these additional years must coincide with the non-age either of the person wIkjsc estate was to be divested, or of the person in whom the estate, under tlie Shifting Use or Executory devise, is to vest. In order to com[)rclicnd this ([uestion, it must be observeil, that the (6) Sec CiiTwardiiicv. Cunvanlint, edit. , 9-1, notCj and 111, note. F. C. 11.388; 1 Eden, :J4. And (c) 2 Vcs, jr. 241, 242. sec PowcW's note to F. E.\. Dev. 4th CHAP. XI.] AGAINST PEUPETUITIRS. 155 period of" lives in bcin<5 and twenty-one years was a limita- tion of time, not arbitrarily selected by our ( A)urts ot" justice, but adopted in analogy to the case of the ordinary limita- tions in a settlement, under which freeholds of inheritance could not be so limited by way of remainder, as to postpone a complete bar of the entail, by fine or recovery, for a longer space, {d) For instance, in the case of a settlement in favor of the husband for life, with remainder to the wife for life, with remainder to trustees to preserve contingent remainders, with remainder to the eldest son in tail, remainders-over; the husband may die leaving his wife enceinte, and a son be afterwards born : in such a case, as the law restrains the exercise of any act of ownership over the inheritance till the infant son attains twenty-one, the power of alienation be- comes, in that event, suspended for two lives and twenty- one years ; and as the law imposes such suspension of the power of alienation on the inflxnt, so it will permit a similar suspense by the owner for a like })eriod. This w^as not denied to be the reason of the period fixed by the rule under consideration, for the vesting of Future Uses and Executory devises, by the supporters of cither of the views in (piestion, but the controversy was, as to the extent of its application. The first case which called for the consideration of this Case of BtaiJ (juestion, was that of Beard v. Westcott, {e) the facts of which, as far as they are material to our present purpose, were as follow : — A testator, being seised of three different estates, gave one estate unto his grandson J. J. B., and his assigns, so that he and they might receive the rents thereof during the term of ninety-nine years, if he should so long live, and immediately after his decease, then he gave the same to the first son of the body (then unborn) of J. J. B., lawfully to be begotten, and his assigns, he and they to receive and take the yearly rents thereof for the like term of {(I) lliug. note to Co. Litt. 20 a, Ex. Dcv. 4tli edit. 113, note, note 5. And sec PuiveWn note to F. (c) 5 Taunt. 393. V. fVestcott. 156 IIISTOUY OF THE KULE [cIlAP. XI. niiioty-nlne years, if he should so lonti; live, and, so on, in tail-male to the issue of such first son lawfully issuing, for ever, and for want and in default of such issue of such fii-st son, then to the second, &c., sons, of the grandson, in Uke manner ; " and in case there shall be no such issue male of the same J. J. B., nor issue of such issue male, at the time of his death, or in case there shall be such issue male at that time, and they shall all die before they shall respectively attain their respective ages of twenty-one years, without leaving lawful issue male ;" then, there were similar limita- tions to the testator's grandson J. B., and his sons, and their issue male, with remainders-over. The testator then gave another estate to J. B., and his sons, and their issue male, in like manner, as he had before given the first estate to J. J. B., and his sons, and their issue male, with remainders-over. The remaining estate the testator devised to his grand- daughters, E. B. and M. B., and their sons, anil their issue male, in the same manner, with remainders- over. The judges determined, that the limitation to J. J. B. and his first son, were valid, but that the remainder to the issue male- of J. J. B.'s first son, were bad, as being too remote, and that the limitations to the second and every other son, and their issue male, were also bad, as being limited to take effect generally after the determination of estates bad in their creation. They, further, decided, however, that the gift- over, " in the event of there being no son of the said J. J. B., nor issue male of such son, living at his death, or there' being such issue male at that time, in the event of all of them dying before they attained twenty-one, without leaving lawful issue," was good, on the ground, (it should seem) that it must take effect, if at all, within the period of a life in being, and twenty-one years after ; although the twenty-one years were not measured by the minority of the devisee intended to take under the limitaliuu, but by the minority of a prior devisee, the devise to whom was inoperative, as tending; to a i)crpetuity. In this case, we may observe, that CHAP, xr.] AOAINST PRRPETUITIES. 157 had the limitation to the issue male of the sons of the grand- son, J. J. B., been valid, the additional period of twenty-one years would have been coincident with the infancy of the person whose estate was to be divested, and the decision would not have amounted to an authority for a gross term of twenty-one years beyond lives in being. As it was, however, the devise to the party, whose estate was intended to be divested by the ulterior limitation, was inoperative, as tending to a perpetuity, and, therefore, the additional years (which had reference to his minority) constituted, in reality, a gross term, unconnected \vith the devisee, in whom the estate was to vest under the Executory devise, and neces- sarily (because of the variance between the legal operation of the limitations and the testator's intention) independent of the infancy of the prior devisee. But, on account of the intended coincidence of the additional years with the minority of the devisee, whose estate was to be divested, the decision (albeit, made after full discussion) was not deemed conclusive on the question under consideration, as it would have been, had ^ewill itself cxeoXeA a gross term of twenty- one years. Before the lapse of many years, consequently, another opportunity was found for a more complete and satisfactory adjudication upon the point at issue. This was afforded by the case of Bengough v. Edridge, (f) Case of which was decided by the late Sir Jo/in Leach, V. C, so Edruhje'. recently as the year 1827. The question arose on the will of Mr. Henry Bengough, of Bristol, who devised to certain trustees, all his real estates, in trust to accumulate the rents for twenty-one years, and with the accumulations to pur- chase other real estate, which was to be held upon the trusts declared by his will. Subject to the trusts for ac- cumulation, the trustees were to stand possessed of all the devised estates for the term of one-hundred-and-twenty years, to commence from the testator's death, if twenty- (/) 1 Sim. 173—271. LIS ^I^^TORY OF TlIK RULE [CHAP. XT. eight persons named in the will, or any or either of them, should so loni:; live, and also for the farther term of twenty years, lo bo (•oin[)uted from the expiration or other sooner determination of the term of one-hundred- and-t wen ty years; and the estate created for that period was then made the subject of a series of limitations, which, taken by themselves, and as limited out of the fee, would have been invalid, ( !• 1.1 r ,• 1 unsustainable; — in the case ot ordinary settlements, by way ot particular- J < i5CC&USC estate and remainder, the lives which form a portion of the Pcrpetuity- . , , . 1 • 1 1 1 • n ^ !■"'*-' admits of period, during which the complete enjoyment ot the pro- arbitrary perty is postponed, are those of persons taking interests in '^^*' it, and, therefore, enter into and substantiate the reasons or grounds of that postponement. In regard, however, to the period fixed by the Rule against Peipetuitics, the connexion of the lives named with interests created in the property, is of no importance, as they may be those of persons, or classes of persons, in no way benefited by the prior gifts. As, for example, it is perfectly consistent with the terms of the Rule against Perpetuities, to make the lives of all the present members of the House of Lords, or, of all her Majesty's present soldiers, a part of the period of suspension ; the ag- gregate number of lives being regarded as, in fact, nothing more than a period equivalent to the duration of the life of such one of the persons named, as shall survive all the others. The case of Bengough v. Edridge affords an instance of this arbitrary selection of a number of lives, for the mere purpose of increasing the period of postponement. That such exercises of the power of settlement allowed by the English law are flagrant abuses of the spirit of the Rule against Perpetuities, and were in no way contemplated in the original fixation of its limits, is beyond all controversy : but that they are protected by the provisions of the Rule, as at present recognised, is equally certain. Secondly, — The other point, in regard to which, we re- 2. Because marked, a failure of the analogy referred to, is that of the twenty-one nature and character of the term of twenty-one years super- yf*"^? '^ •^ -^ * absolute. added to the period of lives in being, allowed by the Rule against Perpetuities. It is almost needless to observe, that in the case of common settlements by particular-estate and remainder, that term enters into the period of postpone- fine or common recovery, he may ac- must vest absolutely." Butler's note quire the absolute fee ; but at the end to F. C. R. pp. 566, 567. of the same period, personal estate 108 BASIS AXD ANALOGY OF RULE, &C. [ciIAP. XIII. ment, only as coincident with the infancy of the tenant in tail in remainder ; and even when so coincident, only to the extent of that portion of the minority of the tenant in tail, unexpired at the determination of the preceding estates. On the other hand, the term of twenty-one years allowed by the Rule :igainst Perpetuities, is absolute, and wholly independent of the infancy of any person taking under the Executory limitation, or under any of the prior gifts which are defeated by it. Indeed, it may so ha})pcn, that the person entitled under the Executory limitation, at the ex- piration of the extreme period of lives in being, and twenty- one years, may be an infant ; an event which would, of course, occasion a further postponement of the acquisition of complete power over the property, until his majority : nor is there anything to prevent a donor so framing his gifts, as that the person tiiking at the expiration of the period of ])()stp()ncmcnt shall necessarihj be an infant. This, also, is, manifestly, an encroachment upon the spirit and original design of the Rule against Perpetuities : although the use of an absolute term of twenty -one years in periods of post- ponement, is now established, as firmly as any other branch of the Rule. But period of In these two respects, therefore, we observe, a material time borrowed , i • i • j • i from possible deviation trom the analogy which is supposed to exist, be- power over''^ twccn the period for which the acc^uisitiou of full power inheritance, q^.j,^ nroncrtv may be dcierred, under the ordinary modes of under ordinary i i J J ^ -■ ^ settlements. settlement, and the period within which future interests in property are allowed to vest by the Rule against Perpetuities. That the idea of lives in being and twenty-one years forming the extreme period of remoteness was originally borrowed from, and was ultimately made a rule, by analogy, to the j)ossible course of things under common settlements, there can be little doubt : but the reasons and principles of the analogy having been disregarded, and an accordance in the bare outline of the subjects of the supposed common relation, only remaining, it is idle and luigatory to make any serious effort to sustain it. 1G9 CHAPTER XIV. ADJUNCTS OF, OR RULES ACCESSORY TO, THE RULE AGAINST PERPETUITIES. 1. The boundary fixed by the Rule against Perpetuities i. Rule against for the creation of future estates by way of Executory devise applicable and Springing and Shifting Use, is universally the same ; S^^'{5„^,J!, ^f whether the subject of the limitation be inheritance, terms real and pcr- •^ ..... sonal estate. for years, or chattels personal. Distinctions, it is true, were formerly attempted to be taken between limitations of the inheritance, and of chattels, on the ground that the exility of terms for years, and the perishable quality of chattels per- sonal, did not admit of the extension to them, of the period of remoteness which obtained in regard to the freehold and inheritance. But the whole course of modern adjudications, downward from the duke of NorfoWs case (as respects chattels) and the case of Stephens v. Stephens (as respects inheritable property), has completely established, that every Executory limitation of real or personal property, whether by deed or will, must be tested by one common rule of remoteness, conformity to which is. absolutely essential to its validity. 2. The limits prescribed to the creation of future estates 2. And bin.l- 1 111 1 • I T> 1 *iio alike at and interests are the same, both at law and equity : tlie Kule i^^. ,.i„,i i^ against Perpetuities is of equal force, and its provisions are *^1"'^v. administered with equal strictness, in both jurisdictions. It may be questioned, indeed, whether this uniformity of practice flows from or proves the rule, (tquitas sequitur legem, for the approved aphorism, palniain qui meruit ferat, 170 ADJUNCTS OF RULE [chap. XIV. 3. Rule requires a limitation to be such as will necessarily take effect within proper period. 4. Limitations good or bad under the Rule, irre- spectively of subsequent events. rc(iiiires us to admit, that the Court of Chancery has had by far the greater share in the determination and settlement of the wholesome provisions of the laws against remoteness. The truth, however, is, that these salutary restrictions have grown up under the fostering care of the Courts of both jurisdictions ; whose exertions have been sympathetic and accordant, and have resulted from an equally full persuasion of the evils of immoderate restrictions on the right and power of alienation. 3. It is not sufficient, in order to test the legality of a limitation, to inquire whether it be capable of taking effect within the period prescribed by the Rule : it must be so framed as, ex necessitate, to take effect, if at all, within that period. Thus, if land be Umited to A. in fee, and if he die under twenty-one, or unmarried, or without going to Rome, then to such sons of B. (who is living) as shall attain twenty - two. Here, it is jyossible, that B. may die before A. attains twenty-one, or while he is unmarried, or before he has been to Rome ; in which case, all B.'s children would, probably, attain twenty-two (if at all) within the period required by the Rule against Perpetuities. But it is also possible, that A. may die under twenty-one, or unmarried, or without going to Rome, in the lifetime of B., and B. may have issue born after his own death ; in which case, such after-born issue would not attain the specified age until the expiration of the period fixed by the Rule. That possibility (however remote) is of itself sufficient to vitiate the whole of the limitation : it must be a matter of positive certainty, that, if the limitation take effect at all, it shall do so within the period fixed for the vesting of executory interests. 4. A limitation which will not necessarily take effect, if at all, within the period prescribed by the Rule against Per- petuities, and which is, therefore, according to the rule just mentioned, bad in its inception, will not be substantiated or made valid by any events happening subsequently to the CHAP. XIV.] AGAINST PERPETUITIES. 171 time of the creation of the H nutation. Thus, where {t) a testator devised his real estate to trustees, in trust for his son for Hfe, and after his son's death, in trust to sell, and stand possessed of the proceeds, in trust for all his grand- children, the children of his son and three daughters, (whom he named) who should attain the age of twenty-four years, and the son and daughters had children living at the testa- tor's death, but none born afterwards : — it was held, that the trust for the grand-children was wholly void for remoteness. In this instance, we see a perfect exemplification of the rule, that regard is to be had to possible, and not actual, events, and that the fact, that the gift might have included objects too remote, is fatal to its validity, irrespectively of the event. The possible event was, that children might have been born to some or one of the testator's sons and daughters, after his decease, who should not attain twenty-four years of age, until after the expiration of twenty-one years fi*om the de- cease of their parent, in which case, the vesting of their shares would have been postponed beyond the period of lives in being, and twenty-one years. The actual event was, that all the grand-children, objects of the gift, were born in the testator's lifetime ; notwithstanding which, how- ever, they were all excluded from the benefits intended them, (w) 5. The time from which the period fixed by the Rule 5. Period of against Pci'petuities is to be computed, being the creation computed of the limitations requiring its application, that computation j^^'^'^/j'"',. must be made at the date of the deed, when the limitations or death of - , . testator. are created by instrument inter vivos, and at the death of the testator, when they are created by will. And this leads (<) Newman v. Newman, 10 Sim, by the Rule against Perpetuities; 61. And see 1 Jarm. Wills, 233. and where, therefore, events must be (u) This rule is subject to an ex- looked at, in order to decide the des- ccption as to Executory limitations to tination of the property, in respect to take effect on either of two contin- one or other of the alternate liniita- gencies, one of which is within, and tions. Vide infra. the other, without, the limits prescribed 172 ADJUNCTS OF RULE [cHAP. XIV. ITS to observe, in passing, the extraordinary inconsisleney between the rule, wliich (ixes the death of the testator as the time at which the period of remoteness is to be computed, in the case of wills, and the rule, last considered, whi(;h, in deciding on the validity of testamentary dispositions, in regard to the law of perpetuity, refuses to look at the state of events subsequently to the date of the will, although the death of the testator is the period for ascertaining the objects of his bounty. 6. Twenty-one g, Jt ig to bc obscrvcd, that whenever lives in being do years absolute '-' the only avail- not form part of the time of suspension or postponement, lives in being the Only period allowable under the Rule against Perpetui- not included. j.jgg jg twenty-onc years absolute, (v) The not resorting to one distributed portion of the whole period cannot and does not warrant the increase of another portion, of a kind or species totally different. Moreover, the frailty and uncertain duration of human life is such, that it does not admit of esti- mate or periodical computation in any given case; and, therefore, no fixed term can properly be substituted for a life, in cases where that life might have been included in, and pro- duced a consequential increase of, the period of remoteness. 7. Limited or 7. If a limitation be good within the Rule against Per- partial estates ...... ii- r- ^ ^ may be created petuities, it IS 01 iio importance whether It confer the fee or aTlowed'^peri'od, absolute property, or any less or partial interest, as for life, or as well as the otherwise, (w) Whatever the nature or quantum of estate fee or absolute , ^ interest. may be, the whole period allowed by the Rule may be taken advantage of for the pui*pose of giving it effect. Any ulterior limitation of the whole estate expectant upon the determin- able interest, must be conformable to the provisions of the Rule, and its validity will be tested by them alone. The mere circumstance of its postponement to a gift of a qualified estate, which, to be valid, must not transgress the legal boun- daries of remoteness, neither necessitates nor admits of its (») Vide Crooke v. De Vanrlcs, 9 270. 1 Jarm. Wills, 230. Ves. 197. Palmer v. Holford, 4 (w) 1 Jarm. Wills, 239. Russ. 40e. Burt. Elem. Comp. 269, CHAP. XrV.] AOAINST PERPETtllTIES. 173 violation of the laws of perpetuity, in respect of its vesting ; although that circumstance may have the effect of delaying the time of the ultimate limitation taking effect in posses- sion. '8. The remoteness against which the Rule for prevention 8. Rule against /. -r. ...-,. 1 . .1 Perpetuities of Perpetuities is (hrected, is remoteness in the commence- does not affect ment, or first taking effect, of limitations, and not in the remoteness m ' o ^ ' cesser oi cesser or determination of them. An estate that is to arise limitations, within the prescribed period, may be so limited as to de- termine on the happening of any event, however remote, as, for example, the indefinite failure of issue of a person ; which, we shall presently see, is too remote a contingency, for the commencement of limitations. But an estate can only be made to determine upon an event thus remote, when, by its original form and limitation, it will regularly cease by the happening of the contingency, as the term of the duration of the estate ; for, as will hereafter be seen, a power reserved to a person to determine the limitation on such remote event, would be void. An instance of this kind of valid termination of an estate, is to be found in the limitation of a term of one-thousand years, to A., if B. shall so long have issue, or until the death of B. without issue. 9. To render a gift valid within the Law against Perpe- ^- Notneces- o o A sary that object tuities, it is not necessary, that the object of it should be at of limitation be flt once SSCGF- once pointed out or ascertained, for it is immaterial in what tained, if way the description is made, so as there cannot be any '^^j'^en^g^t^^akcs doubt who is the person designated by it, when the period , Jac.'22; Brown v. Jervns, ib. 290; (a) 9 East, 382; in addition to lirien v. Smith, WiWcs, ]. And on the which, see Soulle v. Gcrrard, Cro. general doctrine, see 1 Jarm. Wills, Eliz. 525 ; Tutteshani v. Roberts, Cro. 487. SECT. I.] ON FAIT.TTRE OF ISSUR. 179 But not only where land is limited by will, in fee, with Same construc- an Executory devise on the failure of issue of the first taker, prioV gift is for does the law thus lend its assistance to testamentary limita- jnjggnjte tions otherwise partially void on the ground of remoteness ; but also where a gift is made to A. for life, {h) or indefi- nitely, (c) with an Executory limitation-over to B., in the event of his dying without issue, an estate-tail is invariably raised in the first taker, by implication, (c/) In these cases, there is the same argument for increasing the estate of the first taker, as in the former, for curtailing it ; namely, the manifestation of an intention to provide for his issue, which the law will carry out by moulding the limitations into a form better adapted to the purpose. Nor can the ulterior limitation in favor of B. take effect as an Executory devise, any more than if the prior estate limited to A. were a fee- simple; the event being, in both cases, the same, and, therefore, equally objectionable on the ground of remoteness. But, as a remainder, it may well take effect, in the same manner as if the first taker had an estate-tail by express limitation. Thus, the designs of the author of the gift, and the limitations by which they are intended to be carried out, are harmonized ; and the latter are subjected to a con- struction, which protects them from the destructive operation of the Rule against Perpetuities. As to this class of limitations in deeds, the doctrine of This construe constructive implication of estates-tan is not applicable to admitted so an equal extent ; the construction of gifts by instruments ^^ ^ '" inter vivos, being guided by stricter rules, than are usually (6) Sonday's case, 9 Rep. 127 b. R., in Green v. Ward, 1 Russ. 264; Sparrow v. Shaw, 3 Bro. P. C. 120. Fonbl. .Eq. lib. 2, cap. 3, ss. 3, 4. Doe V. HaUei/, 8 T. R. 5. Langley Burt. Elem. Comp. 222. V. Baldwin, 1 P. Wms. 759. Stanley (c) 4 Bac. Abr. 256. Fonbl. Eq. V. Lennard, 1 Eden, 87. Atlorney- lib. 2, cap. 3, ss. 3, 4. Burt. Elem. General v. Sutton, 3 Bro. P. C. 75. Comp. 222. Blackburn v. Edgeley, 1 P. Wms. 635. (d) See Mackell v. Weeding, 8 Sim. And see remarks of Lord Gijford, M. 4; 1 Jarm. Wills, 488. N 2 180 LIMITATIONS OF UEAT.TY. rciIAP. XV. Limitation by deed to A., and his heirs, with gift over, on his death without heirs of his body or issue of his body. What neces- sary to raise the construc- tion of implied estates-tail in deeds. applied to testanicntary dispositions, and a closer conlonnity to the principles of the Common law being insisted upon. A limitation, however, by deed, to A. and his heirs, with a gift -over on his death, without heirs of his body, or with- out issue of his bodij, will have the effect of vesting an estate-tail in tlic first taker, with a remainder expectant thereon in the ulterior donee, (e) So, also, under a gift to A., without any words of limi- tation, and a subsequent gift to B., on A.'s death, with- out heirs of his body, A. will take an estate-tail, with remainder to B. This construction, as Mr. Preston has observed, (/) " de- pends on the rule, that all the clauses of a deed are to bo taken into consideration together, and construction made on the several parts. The entire instrument must be con- strued by its parts, so that every clause, and every word of every clause, may liave effect, unless it be insensible or repugnant, or contrariaut to the former part of the deed ; or unless it be inconsistent with the rules and policy of the law. Wherever it is to be collected in construction on the clause of immediate gift of the estate, or from a clause which introduces the limitation of another estate, or refers to another part of the same instrument, or to another in- strument, that the gift under consideration is not to extend the benefit of the limitation to any heirs, besides those which are of the body of the donee ; the generality of the word heirs will be qualified and restrained to mean heirs of the body.'" But it is absolutely necessary, in order to the construction of an estate-tail being admissible in deeds, that the word " heirs" should occur in the gift, either in terms, or by reference, and adoption ; {g) and, therefore, under a gift to A., and on (e) 2 Prest. Estates, 504. (/) 2 Essay on Estates, 485, ig) Ibid. 484. SECT. I.] ON FAILURE OF ISSUE. 181 his death, without isstie, or wilhoiU issue of his body, to B., A. will take only an estate for life, with a contingent remainder expectant thereon to B., which will take effect, if A. leave no issue at his death, (being the time of the determination of the particular-estate). It is conceived, however, that if the first limitation were for life expressly , it could not be enlarged into an estate -tail, even though the gift over were limited to take effect on the death of the tenant for life, without heirs of his body ; as such a construction would be " repugnant and contrariant" to an express provision of the deed. Again, it is needful, to support the construction in question, that the gift should contain tvords of pi-ocreation, descriptive of those heirs which shall be the issue of the body of a particular person, (h) It follows, therefore, that a gift to A., and his heirs, and if he shall die tcithout issue, (without any provision as to the issue being of the body of the donee) to another, will vest the fee-simple in A., and the ulterior limitation will be void. (2) None of these requisites exist, it will be perceived, in regard to the enlarging or abridging of limitations created by will ; for in all the cases which have been here men- tioned, the gifts, if testamentary, would have passed an estate-tail to the first taker, with an expectant remainder, {k) Again, in certain cases of limitations in wills, an estate- Estate-tail . raised by im- tail may be raised by implication in a person, althougii no plication under express estate is given to such person, and the ulterior failure Tf issue limitation be thereby validated as a remainder, expectant pf testator's •^ '■ heir, or to his on the implied estate-tail. Thus, (/) suppose, a testator heir, on failure devises land to his heir-at-law, (whether apparent or pre- another, sumptive,) in fee, in the event of the death of A., without (A) Ibid. 481. of Mr. Preston on the language by (i) Scrope v. Rhodes, 2 Com. Rep. which estates-tail may be created, in 541. vol. 2, of the Essai/ on EstaUs, pp. (A) The student cannot be too 473 — .OSd. strongly recommended to peruse, once (/) 1 Jarni. Wills, 4b7. and again, tiie elaborate disquisition 182 LIMITATIONS OF REALTY. [CIIAP. XV. But to curtail the fee of the licir into an tstatc-tail, issue, but does not liniit any estate expressly to A. or his issue ; the irresistible ])rcsuniplion is, that the testator intended the property to devolve on A. and his issue, in- asmuch as the person to whom the land is devised, on failure of that issue, is the very individual on whom, unless an estate-tail be raised in A., by implication, the law im- mediately casts the inheritance ; and it would be absurd to suppose an express devise to the heir, to take effect at a specified period, unless in the meantime the testator in- tended some other pei-son to take the devised property. {So, again, if a devise be made on the general failure of issue of a person, who stands in the relation of heir-at-law of the testator ; the same rule holds, as in the case of an express devise in fee, with an Executory limitation-over on the death of the first devisee without issue. An estate-tail Is raised by implication in the heir, and the limitation expressed in the will to take effect on the failure of his issue, becomes a remainder expectant on the implied estate- tail. (;?i) It may be observed, that although the ease of a devise to a person, who is the testator's heir, on failure of the issue of another, to whom no estate is expressly devised, is generally considered as admitting and calling for the application of the doctrine of the implication of estates-tail, no precise authority can be cited for the doctrine. By analogy, however, to the clearly established rule in regard to the inn)lication of estates, where property is devised to an heir, after the death of a person not taking by express gift, (;i) it is conceived, little doubt can be entertained that the doctrine in question is sustainable. But a Court of law will not deprive the heir, of his right to take the inheritance in fec-simj)le of his ancestor, upon grounds of mere conjecture : there must be either an (m) Wtillrr v. Drew, Com. Kop. 37:i. -2 rri>t. Abst. ItiO. 1 Jarni. ^Vills, I!) I. («) Sec Blackwvll v. Bull, 1 Keen, 17ti. SECT. I.J ON FAILURE OF ISSUE. 183 express devise, on failure of issue of the heir, or such a there must be a ^ clear devise on clear manifestation of intention on the part ot the testator, failure of his as to be equivalent to a direction that the estate shall go Jg^eq^ivalenuo over on that event. Thus, in the late case of Doe d. Cape ^^^ V. Walker, (o) a testator, havinjg; a son and granddaughter, (child of a second son,) issue of one marriage, and a son and daughter, issue of a second, after giving legacies to the issue of the second marriage and the granddaughter, be- queathed thus : — " But if it should happen that my son, VV. W., (the eldest) should marry or contract matrimony , and have heirs of his oivn, then 1 order and direct that my will is, that my executors shall pay, or cause to be paid, unto my granddaughter, M., the further sum of 100/. more, in addition to the 100/. before bequeathed to her, to be paid within tioelve months after the birth of my son TV's first child.^ And after intermediate dispositions, he devised as follows : — " In case it should happen that my son, W., should depart this life, and leavi7ig no heirs lawfully begotten, and that my freehold messuage and tenement situate at, Sfc.y should fall by descent unto my granddaughter, M. W,, and she inherit and possess the same, then my said grand- daughter shall pay out of the said messuage," several legacies mentioned by the testator. W., the eldest son, having died without issue, and disposed of the property by his will, it was contended, on behalf of the issue of the granddaughter, M., (who died before W.) that W. took only an estate-tail, with remainder to M. in fee : another point, marked for argument, on the same side, (but apparently not insisted on) was, that there was an Executory devise to M., in the event of W. dying, without issue of his body living at his decease. Lord C. J. Tindal, in delivering the judgment of the Court of C. B., first observed, that it was (o) 2 Scott, N. S. 317. See also. servations upon it, 2 Scott, N. S. 335, as to the same point, Newton v. Bar- 336 ; and also Tilly v. Colhjcr, 3 Keb. nardiiie, F, Moore, 127; S. C. sub 5b9. nom. Cosen's case, Owen, 29, and ob- 184 LIMITATIONS OF KEAI.TY [l HAP. XV, clear, tliat supposing an unequivocal devise-over to M. was to be found in the expressions of the will, the heir-at-law would, by implication, take an estate-tail ; it appearing to be the necessary construction of the words, '* that if my son W. should depart this life, &c.," that those words pointed to an indefiniie failure of issue of his son, from which an estate-tail might be implied. The learned judge, then, after going through the different circumstances arising on the will, said, these circumstances had, midoubtedly, a strong tendency to show, that the testator contemplated the succession of M. to the estate, in case his eldest son should die without issue ; and that, perhaps, he meant that she should do so. But the testator, not having made any express dis{)osition affecting the right of his heir-at-law, might, without imjiuting to him any intention contradictory to the rest of his will, have intended to direct, that if his heir-at-laio should not exercise his powei' of disposing of the estate, in consequence of which the estate should descend, in the proper sense of the word, to M., to whom it would rightfully descend, in die absence of any disposition of it by W., she should, out of the estate, pay certain legacies. Here, the question was, not merely, whether the words of the will were such as might warrant an implication of an estate-tail in W., but whedier a remainder to M. was to be implied from the terms of the will, which expressly spoke of the taking by descent, and which might be satisfied, in the legal sense, without having such effect. Judgment was, therefore, given for the party claiming under the will of W., the tes- tator's heir. If no estate- jj^ ^\\ cascs, liowevcr, of Executory limitations, (either raisc(?1)y"im- by dccd or wiU) divestiug estates expressly limited, after a lilSiions on general failure of issue, other than those in which there is general lailuro .^ prcvious dcvisc or limitation, (whether in fee, or for life, of issui', void. 1 ^^ n • \ or indefinite,) susceptible of enlargement or modihcalion, {j)) ( p) I Jarni. Wills, VJl. SECT. I.] ON FAILURE OF ISSUE. 185 according to the distinctions above stated, the rule of law is, that no estate-tail can be raised by implication, so as to preserve them from the objection of being too re- mote. They maintain their primary character of Execu- tory devises, and, as such, they necessarily incur the fate of limitations, to take effect on events not confined within the period fixed by the Rule against Perpetuities. Of this kind, (in addition to the limitation, before con- Gift to A. in side red, to A. and his heirs, and if B. die without issue, to ^^^ g" ^^^ C. and his heirs,) is a limitation to A. and his heirs, and if without issue, instance of A. and B. die without issue, to C. and his heirs. Here, there such a void being no previous estate in B., which, with that of A., might be enlarged or modified, so as to admit of a remainder ex- pectant upon it, the ulterior limitation to C. can only take effect as an Executory devise, or Springing or Shifting Use, and, as such, it is void, as contravening the Rule against Perpetuities, (q) So, also, in every case of a limitation infuturn, by deed or will. Limitation in after the death of a person without issue, (to whom no pre- -^"^"r" 'jf**^'' ceding estate is given) where neither the person in default person without ^ 1 . ,,,... ^ no 1 hsw, void, un- oi whose issue the lunitation is to take eriect, nor the person less estate-tail to whom that limitation is made, fills the character of heir- undcr^d'octrine at-law of the testator, (this reservation applying only to wills) j^^*° heir-at- no estate can be raised by implication, and the gift is, con- sequently, void ah initio. In regard to limitations in deeds to arise in futuro, on (7) Scrope V. Rhodes, Com. Rep. suffice to observe of those cases, that 541. Gardiner v. Sheldon, Vaugh. in neither of them was any decision 259. And see Doe v. Lucraft, 1 Mo. called for on the point under consider- & So. 573. 2 Prest. Estates, 529, ation, and that, therefore, dicta in 536. The author is aware of the either, seemingly opposed to the doc- cases of Doe d. Tenny v. Agar, 12 trine here laid down, must be regarded East, 252, and RomiUy v. James, 6 as extra-judicial. Sec the cogent Taunt. 263, which have been deemed observations of Mr. Jartnan, in his authorities tending to the establish- Treatise on Wills, vol. 1, pp. 494, ment of a doctrine, different from that 495. laid down in the text ; but it may 186 LIMITATIONS OF REALTY [CIIAP. XV. I^imitations on failure of issue restricted to death of ancestor. Instances of these. the death without ibsiie of a person not taking any ])re- vious estate, no respect can be had to the circumstance of such person being the heir-at-law of the donor, or of tliat character being filled by the person taking under the Exe- cutory gift, and, therefore, no iin])lied estate-tail can bo raised to support the limitation, and it will, consequently, in every case, be void for remoteness. The instances, hitherto considered, have been those only of Executory limitations, to take effect after a general or indefinite failure of issue, that is, a dying without issue at whatever period of time it may happen. In all such cases, we have seen, that (except where an estate-tail can be raised by implication, according to the distinctions previously laid down,) the remoteness of the event is fatal to the limitation. It will now be proper to speak of such Executory estates as are limited upon a failure of issue not unrestrained, but to happen within a specified period of time, as a life or lives in being, or lives in being and twenty-one years, or the like. Thus, to take a simple instance, if land be devised or limited to A. and his heirs, but if he die without issue living at his own decease, or if he die without issue during the life of B., then to B. and his heirs ; it is clear, that though the event of the failure of issue of a person is inde- finite, and, therefore, per se, too remote, and, so, an Execu- tory limitation depending upon it, would be void, yet, as in the cases su})posed, the dying without issue contemplated, is to be ascertained within, or at the expiration of, a life in being, there can be no objection to the ulterior limitation in favor of B. taking effect as an Executory devise or Shift- ing Use, so far as respects the remoteness of the contin- gency. This doctrine was settled, so long ago as the reign of James 1, by the decision in the before-cited case of Pells V. Brown. In that case, it will be remembered, the testator devised lands to Thomas, his second son, and his heirs for over, and if Thomas died without issue, living William, his SECT. I.] ON FAILURE OF ISSUE. 187 brother, then William was to have the lands to him and his heirs and assigns for ever. It was held by all the judges, that this was a good limitation of the fee, upon the contin- gency of Thomas dying without issue, in the lifetime of William ; and that it did not operate as a remainder, but as an Executory devise. And such has been the rule of law, ever since this decision. With regard to the difference in the construction of a liimitations on , a restricted limitation to take effect after a general failure of issue of the failure of issue first taker, and a limitation after his death, without issue, ^ perpetuity. living at that time, two things are to be observed. First, the failure of issue, upon which the Executory limitation is to arise, being limited to happen during the life of a person in existence, there is no danger of tendency to a perpe- tuity in such Executory limitation ; because, if the first taker die, leaving behind him a child or other issue, (and this, as well in the case of the dying without issue being confined to the life of another person, as in that of its being restrained to the first taker's death,) although such issue survive him but a single day, the contingency fails, and the first estate becomes absolute ; whereas, if the first taker die without leaving issue, living at the time of his decease, the Executory limitation at once vests. In either case, a life in being decides the destination of the property, and there is, therefore, no objection to the ulterior limi- tation taking effect as an Executory devise, or Shifting Use, on the ground of any supposed remoteness in the event. Secondhj, in regard to a gift of this kind, it is to And no estate- be noticed, that as the gift-over is to take effect, in ra'ise'd by tm- the event of the first taker dying without issue livinq at P''cation from *' "-^ "^ them ; nor the time of his death, it cannot properly have the effect necessary that ^ .,. , . • c •\ • it should be. oi curtailing the prior estate in tee to an estate-tail, as it would do, were the failure of issue unrestricted, fr) For as (r) Sec observations of Lord El- in Greene v. Ward, 1 Russ. 264, and lenborouffh in Doe v. Webber. 1 B. & the case of Doe d. Barnfield v. Wet- Ald. 721,andof LordGV^orrf, M.R.» ton, 2 Bos. & Pul. 324; and Burt. 188 LIMITATIONS OF REALTY [c'lIAP. XV. Same, if tlic failure of issue be confined to lives in being. Or to lives in being and twenty-one years. the n;roun(l of ciUtiiij^ clown a limitation in fee to an estate- tail, is, the presumed intention of the author of the gift, to provide for all the issue who \vould be inheritable to an en- tail created in express terms ; and as the event described in the limitation in (juestion (viz., the failure of issue living at the death of a particular person) is not that by wliieh an estate-tail is necessarily determined or extinguished ; such an estate being coterminous only with the failure of issue at anij time ; the raising an estate- tail in the first taker, by im- plication, Avould be not only unnecessary, but even ineffec- tual, for carrying out the supposed intentions of the donor, or testator. And, accordingly, there is not to be found any instance of property being given to a person in fee, with a limitation-over in case he should die without leaving issue at the time of his death, in which the previous fee has been cut down to an estate-tail, by force of the limitation-over. The preceding obsci-vations as to remoteness are equally applicable to an Executory limitation, to take effect on a failure of issue during the lives of any number of persons in esse ; the period of such lives being, in fact, only the dura- tion of the life of the survivor. And, still further, there is no objection on the ground of remoteness, to an Executory devise or Shifting Use, to take effect upon the fliilure of issue of the first taker within twenty-one years after a life or lives in being, (s) Thus, if land Ix^ devised or limited to A. and his heirs, but if A. die, without issue living at the time of his decease, or if he die leaving issue, and all such issue shall die under the age of twenty-one j^ears, then to B. and his heirs. The contingent event on which the Executory limitation in favor of B. is to vest, must necessarily happen, if at all, within the period of a life in being, and twenty -one years; because, A.'s issue must all be born in his lifetime, (or, at all events, within a few months after his decease, which, in the eye of the law, Elcni. riini)). 22:i, 1 .hum. VM, 2 Janu. I'ow. Dev 5'j4. Wilif, (s) S/iiffid(lv.Jj<)rdOircr!/,2Ai\!i. 282. F. C. 11. 470. SECT, l] on failure OF ISSUE. 189 is the same thing,) and snch issno must, of course, cither die in infancy or attain their majority within or by the end of twenty-one years from the time of A.'s decease ; either of which events will be decisive of the destination of the property. And the rule, that limitations after a failure of issue Same rule as to restricted are valid, if the ascertainment of such failure be confined to failure, what- the period prescribed by the Rule against Perpetuities, is ricter ofpHor equally applicable, although there be no prior gift to the ^^^^^ ^^ person on failure of whose issue the limitation is to take such gift. effect, or, if there be such a gift, notwithstanding the fact of its being only for life, indefinitely, or otherwise; always observing, that an estate-tail neither is, nor is necessary to be, raised by implication, in any person, (t) Ijy reference to the construction, which obtains in the case of similar limita- tions after a general or indefinite failure of issue. It may. And although also, be further remarked, that by the rule now under con- havTreference sideration, a limitation to A. in fee, with an Executory to a stranger. devise or Shifting Use, on the death of B. without issue, (or, on the death of A. and B. without issue,) living C, to C, is equally free from objection, on the ground of remoteness, with a limitation to A. and his heirs, and if he die without issue living at his decease, to B. and his heirs ; of which mention has been before made. Thus far, probably, little difficulty will have been ex- The question . . . . , . f 1 T/Y« for considera- perienced, in attaunng a clear perception ot the ditterence, ^■^Q^■^ jg^ whether both in their nature and consequences, between an Execu- fi^[('^"iQ^„'^5 ^i^.. torv devise or Springing or Shifting Use, to take effect after pend on an />• I'Mi-' indefinite or on a general or indefinite failure of issue, and a similar limita- a restricted tion, to vest upon a default of issue happening in the com- *' "'"'' ° '^''"^' pass of a life or lives in being, or other period within the boundaries of perpetuity. The distinction itself is suffi- ciently intelligible ; not so easy of decision, however, has proved, the question, to which of the two classes, particular limitations (themselves wanting preciseness) belong. Nor (t) See LethieuUier v. Tracy, 3 1 Lev. 11 ; Greene v. Ward, 1 Russ. Atk. 774, 793 ; Plunket v. Holmes, 264. 19<» LIMITATIONS OF REALTY [ciIAP. XV. is this a merely speculative inquiry, the settlement of which may be requisite to the preservation of systematic proportion and theoretic symmetry, indeed, but destitute of any practi- cal importance. The force of this observation will be per- ceived, if it ])e remembered, that in all cases of a limitation upon a general failure of issue, in which (according to the rules and distinctions before laid down) an estate-tail may be raised by implication, the ulterior limitation (in its then character of a remainder) becomes destructible by the per- son in whom such estate is raised ; whereas, in every case of an Executory limitation in default of issue living at a specified period, where the implication of an estate-tail is not admissible, the Executory devise or Springing or Shift- ing Use is indefeasible by any act of the owner of the limited fee. And, wherever an estate-tail cannot be raised by impli- cation, the alternative is, then, nothing less than, the validity or invalidity of the Executory limitation. It will be our business, therefore, in as brief a manner as is consistent with perspicuity, to ascertain the principal distinctions which have been established in relation to this subject. That inquiry concluded, our next object will be, to discover the different exceptions to the rule rendering void limitations after an indefinite failure of issue. And to this end, it will be con- venient, that the subject should receive a more minute or particular distribution. Subdivision I. Of the expressions and circumstances giving a restricted construction to ivords 'primarily importing an indefinite failure of issue. Inclination of Qar present inquiry must be premised with the observa- construction of tioM, that the law, in every case of a limitation of real estate, SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 191 after or upon the failure of issue of a person (whether takinp; "" indefinite a prior estate or not,) leans to the construction ot a general limitations of or indefinite failure, as opposed to one limited to happen ^""'^ ^^' within a particular time. And the reason assigned for this inclination is, that in all cases of doubt in regard to the construction of limitations, that is to be preferred, which most favors the interests of the heir-at-law. The reason, indeed, falls flir short of the rule ; for it is obvious, the heir gains nothing by the construction of an indefinite failure of issue, except in those cases in which the limitation is not preceded by any gift to the person on Mure of whose issue it is to take effect, and is, therefore, void ; and not even then, as to limitations in wills, if such person or the devisee be the heir-at-law of the testator (when an estate-tail is raised, upon a ground quite inde- pendent of the favored construction in question) ; and in the cases upon deeds, where, for want of words of procreation, or of the word " heirs," a limited estate cannot be enlarged. In all other cases, either the first taker has an estate-tail, and the Executory limitation takes effect as a remainder expectant upon it, or the estate first Umited becomes absolute, and the Executory limitation wholly fails ; by either of which con- idiomatic . . .,, t -i • 1 1 • i_ c* interpretation structions, it is manifest, the heir-at-law derives no benefit different. whatever. Although such is the legal construction, however, of the words, " dying without issue," unaccompanied by any restrictive expressions or circumstances, there can be no question, that according to the common and ordinary idiom and construction of the English language, independent of any technical rules, which have been applied to the inter- pretation of legal instruments, those words imply a failure of issue living at the time of the death of the ancestor, (w) Another preliminary observation is, that as between a testa- And in wills, . r •\ r' c stronger meniary gift in fee, with a limitation-over on lailure ot issue ot presumption ii the first taker, and a similar limitation-over after a gift/or life, ^"^"""^ ""^ ^^""^ (u) See Lord Denman's judgment Lord Mansfield in Denn d. Geering in Doe d. Cadogan v. Ewart, 7 Ad. v. Slienton, 1 Cowp. 410 ; and 2 Pow. & El. 467 ; and also observations of Dev. by Jarm. 564. 192 LIMITATIONS OF REALTY [ciIAP. XV. construction, the prcsiimption in favor of the construction of an indefinite when prior i^ift .... ... . • .^i i .^ .^i • .1 is for life only. taHurc ot issiie, IS Stronger in the latter case, than in the former, (r) And this, because the restricted construction, as apphcd to a limitation in fee, simply has the effect of ren- dering that fee defeasible on the donee or devisee leaving no issue living at the time of his decease, and, therefore, of validatinir the ulterior "ji-ift, which will be also indestructible ; whereas, if the first gift be for life only, the consequence of the restricted construction is, to prevent any enlargement of that estate into an estate-tail, under which the issue, if any, nii(/ht take, and, at the same time, to confine the bene- fits for the ulterior donee or devisee, to the event of there being no issue of the first taker living at the time of his decease ; a result, both absurd and contrary to intention. Words " Icav- It has been long settled, (as the reader will have already ing issue " , , . . „ ^• ^ 1 refer to general Icarut) that tlic words, " leaving issue, as applied to real [rmitatio'ns estate, have not the effect of restricting the failure of issue of real estate, j^ r^ dying without issuc living at die death ; but that a limitation-over, in the event of the cleath of a person " with- out leaving issue," must bear the same construction, as if the event described had been, a death " without having issue," or, *' without issue," simply, (w) Thus, in a well-known case, (x) where a testator gave the residue of his real and personal estate, to his nephews, W. and G., and if either of them should depart this life, and leave no issue of their respective bodies, then he gave the said premises to D. It was held, that as to the freehold, the words, " leaving issue," imported a general failure of issue. And this deci- (y) 2 Pow. Dev. by .larm. 583. learned writer has, however, been Prior on " Issue," 71. And see Wtjld bold enough to advance a contrary V. Lewis, I Atk. 432 ; Simmons v. doctrine, and to adduce in its sup- Simmotts, 8 Sim. 22. port, two cases, one of which rests (w) See Powell's note to F. Ex. entirely on special circumstances, Dev. 200 ; Burt. Elem. Comp. 224 ; while the other is wholly inapplicable. Remarks of Lord Langdule, M. R., See Randell on Pcq)etuity, pp. 123, in Dom. Proc. , during the progress of 124. 1 Vict. c. 26, through Parliament, (.r) Forth v. Chapman, 1 P. Wms. Hansard, 36 vol, 3rd scries, 982. One 667. SEC. I. — SUB. I.] ON FAILUUE OF ISSUE. 193 sion has been expressly or tacitly confirmed by a long train of subsequent authorities, ly) It is true, that Lord Kenyan, Cases of For- on one occasion, {z) expressed a contrary opinion, but his and Roe d. lordship's decision in the case in question is capable of j^Z^l con- being rested, and was rested by the judge himself, upon sidered as to other grounds, which we will proced to notice. The case was this : a testator devised unto his son, P., his heirs and assigns for ever, a certain messuage, and declared his will, that in case his said son, P., should happen to die " leaving no issue behind him," then his (the testator's) wife should receive the rents, &c., during her widowhood, and after her decease or marriage, then the testator devised the property to his son, D., in fee, chargeable with the payment of 50/. a-piece to his daughters and their issue, within a twelve- month after D. should so enjoy the same ; but in case D. should happen to die before P., and P. should not leave any issue of his body begotten, then the testator's will was, that the property should be sold, and the produce equally divided between his six daughters and their issues. On a case sent from Chancery, the Court of B. R. certified, that P. took an estate in fee, with an Executory devise in favor of the testator's son, D., in the event specified. The Chief Justice (Lord Kenyon) in his judgment, much relied upon the words, " behind him, " as necessarily importing, that the testator meant a failure of issue " at the time of his son's death ;" and he said, that the subsequent parts of the will also con- veyed the same idea, for the devisor mentioned (or, as has been suggested, treated) the event as likely to happen in the lifetime of his widow. The special words in this case. (y) Walter v. Drew, 1 Com. Rep. Knowh, 1 B. & Ad. 3-24. JDoe v. 373. Denn d. Geerhtg v. Shenton, 1 Lucraft, 8 Bing. 386. Doe d. Cado-' Cowp. 410. Southby V. Stonehouse, gan v. Ewart, 7 Ad. & Ell. 636. 2 Ves sr. 611. Daintry V. Daintry, Franks v. Price, 3 Beav. 182. Doe d. 6T. R. 307. Tennyd. Agar V. Agar, Todd v. Duesbiiry, 8 M. Si W. 530, 12 East, 253. Dansey v. Griffiths, 532. 4 Mau. & Selw. 61. Crooke v. De (2) In Porter v. Bradley, 3 T. R. Vandes, 9 Ves. 197, 203. Doe v. M3. ^94 LIMITATIONS! OF RKAT.TY [ciIAP. XV. ("bi'liiiul him," in luUlitiou to the word, " letivinf!;,") it in:iy be observed, form (jiiite a suttieient ground for the denyinj^ the construction of an indefinite faihu-e of issue; (a) and the decision, therefore, forms an authority for the position, that the words, " behind him," are sufficient to restrain the faihire of issue to a dying without issue living at the death, and, it is submitted, for nothing more. (/;) But even should it be thought, that the decision in Porter v. Bradley laid down the doctrine, that the words, " leaving issue," in a limitation-over of real estate, confine the dying without issue to a failure at the death of the ancestor, subsequent judges {c) have too intelligibly expressed their disapproval of such a doctrine, in general, and of the case of Porter v. Bradlcij,* in particular, so far as it may tend to support it, to allow of that case being supposed to possess any authority upon the particular question under consideration, at the present day. The only other case in seeming opposition to the current of authorities upon this subject, is Roe d. Sheers v. Jeffery, {d) decided in B. R., like Porter v. Bradley, while Lord Kenyan was (yhief Justice. In that case, there was a devise-over of life -estates to persons in esse, in case a previous devisee in fee " should depart this life and leave no issue;" and it was held, that the limitation-over took effect as an Executory devise. Lord Kenyon, after making an observation, to the effect that the word, " leaving," ought to operate to confine the failure of issue to a dying without issue living at the death, grounded the decision of the C^ourt, princi})ally, on the testator's intention to confine the failure of issue to the death of the first taker, as gathered from the circumstance, (a) Sec the observation of Lc Eldon, in Croolie v. De fancies, 9 Ve?. Blanc, J., in Tenny A. Ayar v. Agar, 197 ; of Sir William Grant, in Elton ■uhi supra ,■ and of Lord Dvnman, in v. Eason, \9 Ves. 77 ; of Lord Dch- Doe d. Cadogan v. Etvurt, 7 Ad. & man, in Doe d. Cadogun v. Ewart, ubi Ell. 660. supra ; and of Lord Abinger, in Doe. (6) Powell's note to F. Ex, Dov. d. Bksnrd v. Simpson, .3 Scott, N. S. 4th edit. 209. 2 Pow. Dov. by Jarm. 774. 575. (fO 7 T. R. 589. (c) See the observations of Lord SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 195 that the persons to whom the devised property was given over, were in existence at the date of the will, and that life- estates only were given to them. The case of Roe d. Sheers v. Jeffrey, therefore, like its predecessor, Porter v. Bradley, must be considered as proceeding only on its peculiar circumstances, and as in no degree, oppugning the general rule as to the construction to be put upon the word, *' leaving," above stated. Of this case, I^ord Denman, in delivering the judgment of B. R. in a recent case, (e) ob- served, — " if supportable at all, it can only be so, on the ground of the devise-over being of life-estates." (/) And not only is it an undeniable rule of law, that a limi- And in wills, . . wordsj "leaving tation-over after the death of a person without leavmg issue, children," also unaccompanied by any restrictive expressions or circum- indefinite stances, imports an indefinite failure of issue ; but it may failure of issue. also be laid down with safety, that an Executory limitation in wills, to take effect after the death of a pefson tvithout leaving children, implies a dying without issue, generally, of such person, {g) It is true, in the ordinary and proper sense of the word, " children," it means the immediate descendants of a person, as contra-distinguished from, "issue ;" but in its legal signification, as applied to testamentary instruments, (unless the manifest intent requires a different construction,) it is extended to all the descendants, whether mediate or im- mediate, of the ancestor, {h) Let us suppose, therefore, a devise to A. and his heirs, and if he should die without leaving a child or children, then over to B. and his heirs ; as the words, " child or children," are synonymous with, " issue," A. will take an estate-tail, with remainder in fee to B., according to the doctrine of implication of estates-tail, before considered. Or, again, if land were devised to A. and (e) Doe d. Cadogan v. Eicart, ubi (h) IFj/ld's case, 6 Rep. 17 a. supra. Tioyle v. Hamilton, 4 Ves. 437. Doe (/) As to this, side infra, p. 212. v. Cavendish, 4 T. R. 741, 1 n. Rad- ((/) Doed. Smithy. U'ebber, 1 B. cliffi v. Buckley, 10 Ves. 201. Doe & Aid. 713. Doe d. Blesard\. Simji- d. Smith \. Webber, ubi supra. son, ubi supra. o 2 196 l.r.MlTATIOXS OV REAT-TY [CIIAP. XV. But not in deeds. Words, " leav- ing chiliiren," even in wills, more easily confined to immediate offspring, than, " leaving is- sue." Words primar- ily importing general failure may be con- fined by accompanying expressions and extrinsic circumstances. 1. Charge of a sum of money, upon future his heirs, after the death of B. without leaving children, as the words, " without leaving children," import a general failure of issue, the limitation to A. (unless either he or B. were the testator's heir, in whicli case an estate-tail would he raised in the first taker,) would be void for remoteness. It is to l)e observed, however, that this extension of the meaning of the word, " children," obtains only in testamen- tary dispositions ; for in deeds, in regard to which a stricter construction of words and limitations prevails, there is no doubt, that the word, " children," would be confined to the immediate descendants of the ancestor ; unless there were some accompanying expression, evidencing that the word was used in an enlarged sense, {i) And although in the case of wills, the general import of the word is not restrained to the immediate offspring, with- out some controlling expressions ; it would yet seem, that expressions or circumstances which would not of themselves be sufficient to confine the legal acceptation of the term, " issue," to a failure of issue at the death, would have greater force, when brought to bear upon die words, "without leaving children," as contra-distinguished from issue. Whatever the words in which a dying without issue is expressed, and however general or indefinite the failure in- dicated by them, (whether they be, " die without issue," or, " without having issue," or, " before having issue," or, " without leaving issue,") their force is always liable to be controlled, and their general import restrained, either by expressions incorporated into the limitation itself, or by any circumstances dehors or extrinsic to the gift, arising on the face of the instrument, in relation either to the land, or to the donee or devisee. 1. A mon; I make my sole heir and executrix : if she dies without issue, then to go to G. B. ; he to pay to D. B. 5000Z. &c." Lord Hardwicke said: — " With regard to D. B.'s 5000/. , something plausible might be said, if this was to be construed as mci ely personal to her, and by way of provision as a portion, and not to arise unless D. B. survived M. D. ; for, then, indeed, a strong argument might be drawn from thence, to show the testator's meaning was, to confine the dying without issue of M. D. to the time of her death. But this be- ing annexed by way of condition to the devise to G. B., makes it a vested legacy, and transmissible, though not payable till a future time, which takes away all the argument that might be raised from its being personal to her only ; for a death before the contin- gency happens will not defeat the legacy." This opinion of Lord Hurd- tcicke must have been delivered without due attention to the case of Pinhury V. Elkin, stated infra, sec. 3, which had been decided twenty-three years previously, and in which a bequest of a legacy, under similar circumstances to tliose of Beauclerk v. Dormer, was assigned as a reason for a restricted interpretation of words importing a failure of issue. (/) 1 B. & Aid. 713. 198 LIMITATIONS OF REALTY [ciIAP. XV. testator devised to M. II. her heirs and assigns for ever, and in case M., II. should happen to die, and leave no ciiild or children, then to J. B. and her heirs for ever, pmjbnj the mm of 1000/. to the executor or executors of M. H., or, to such j^erson as M. H. should by her will appoint. It was held, that this was not the devise of an estate-tail to M. II., but qf an estate in fee to M. II., with a good Executory devise to J, B., in case M. II. died leaving no issue at her death ; it having been determined in the same case, that the words, " child or children," must be construed to mean, "issue." The grounds of this judgment are thus tersely stated by the Chief Justice: — *' The payment of 1000/. being a personal provision, the event contemplated by the testator seems to have been a proximate, and not a remote, event, namely, an indefinite failure of issue, which might happen at any remote period." The next case bearing upon this point, though not so satisfactory an authority as that of Due V. Webber, is yet worthy of riotice, as being one of the very few furnished by our Reports, in which it has been Case of Doe d. considered or discussed. In Doe d. King v. Frost, (in) a tes- my V. roi, . ^^^^^^ having a son and daughter, and the latter having several children, devised to his (the testator's) son, W. R, in fee, and if he should have no children, or child, or issue, the said estate was, on the decease of TV. F., to become the property of the heir-at-law, subject to such legacies as IF, F, might leave to the younger branches of the family. It was adjudged by the Court of B. R., that W. F. took under this will an estate in fee, with an Executory devise-over to the person who, on the happening of the event contemplated by the will, should be the heir-at-law of the testator. In this case, it will be observed, that as independently of the charge of legacies upon the person entitled under the Exe- cutory limitation, that limitation itself was expressed to take effect on the decease of the person, in the event of whose (w) :i B. & Aid. 546. nominee or representative. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 199 death willmut issue, the property was given over, less doubt eould be entertained of the character of the failure of issue intended by the testator. As, however, the eventual charge of legacies was urged at the bar, in favor of the construction adopted by the Court, and referred to by the judges, without any exception being taken by them to the force attached to it in Doe v. fVebber, the latter case may not improperly be considered as confirmed by the adjudi- cation in Doe v. Frost. In these two cases, it happened, that the sum of money Not necessary to be paid by the devisee-over, was charged in favor of the be made in nominee, legatee, or executor, of the first devisee. It ^'^^j. ",. ^-^^ should seem, however, that this doctrine does not depend upon any such connexion between the person in whose favor the charge is made, and the first taker ; for it proceeds on the simple ground of a personal provision being intended, (n} The writer remembers a case, where the testator devised Lis lands to G. M. in fee, charged with legacies ; and in case the devisee should depart this life without leaving any issue lawfully begotten, then the testator devised the property to W. W. in fee, " but subject and liable with the further pay- ment of the sum of 800/., as thereinafter mentioned." The testator then proceeded to bequeath various other legacies to that amount, and directed them to be paid to the legatees, "within two years after the decease of the said G. M." The opinion of an eminent conveyancer upon this devise was^ that by force of the gift of the 800/., to be paid within two years after the decease of G. M., he took an estate in fee, subject to an Executory devise-over, in the event of his death without leaving issue living at that time. It must be further noted, in reference to the cases of Nor that the Doe v. JVebher, and Doe v. Frost, that the fact of the sums immediately on charged not being necessarily raisable immediately after the [!on7e!t"il?i"n possession. (m) An inference of this kind may Bolfe, B., in Doe d. Todd v. D^usbury, be drawn from Houston v. Ives, 2 8 M. & VV. 514, stated and observed Eden, 216. Scd vide, observations of upon, infra, pp. 207, 208. 200 LIMITATIONS OK UKAl/FY [ciIAP. XV. Executory liniitatioii vesting- in possession, but, possibly, at a mucli remoter period, does not diminish the force of the charge, as restricting a dying without issue to a faiUu'c of issue at the death. For it is evident, that in the former case, under the will of M. IL, the first taker, (and to whom the power of appointing the sum of 1000/. was given) the sum might not have been directed to be raised until the death of a person or persons in esse, or other period not too remote ; and in the latter case, the payment of the legacies which W. F. was empowered to leave to the younger members of the family, might have been also postponed for a period within the allowed limits. Nor, ])erhaps, (mght this possible postponement of the payment of the sum charged, to be al- lowed any weight, if it be remembered, that it is equally open to the person in whom the ])ower of appointment (or distribution or selection) is vested, to direct an immediate pavment ; and that the prohabiliiij, or, even, possibility, of such immediate payment must be considered to have been in the mind of the author of the gift, and to be, therefore, of equal force, as an evidence of his intention, with a direc- tio7i for immediate payment. Case of j)iniic Three cases remain to be noticed, upon the doctrine we have been considering, which may seem to lay it under very important restrictions. The first is that of Dunk v. Fen- ner, (o) where a testator gave the income of his real and personal estate, to his daughter for life, and at her decease, he gave unto her heirs, all his real and personal estate, to be cc[ually divided among them, as tenants in common ; should his daughter have but one child, such child was to take the whole ; but if his daughter should die tcilJiout issne, then, at her decease, tlie testator be(iueathed several legacies to various persons, and proceeded to dispose of his real and personal estate thus : — " At my daughter's decease without issue, all my goods and effects of every kind shall be sold, and (lie said legacies jiaid, and a sum sullicicnt to produce (_o) 1 llubs. iS; My. 557. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 201 150/. per annum invested; the interest to be paid to my said son-in-law for life : at my daughter's decciise without issue, all my real estates shall be sold, unless their rents^ produce a sum equal to the interest of the money they would fetch, in which case they shall not be sold until after the decease of my brothers or sisters as hereinafter stated ; all the residue of my personal estate, including that which arises from my real estates, should they be sold at my daughter's decease, shall be invested, and the produce be divided into four parts. Should my real estates remain unsold, then the interest arising from the personal estate, and all the rents of the real estate, shall be divided into four })arts ; and in either case, I give one-fourth to ray brother, and one-fourth to each of my two sisters, to be paid to my said brother and sisters for life ; and at the decease of either of them, such three parts shall be equally divided between the survivors and survivor for life." The testator then disposed of the remaining one-fourth, and also of the other three-fourths, and the capital producing the annuity, after the determination of the prior interests. The testator's daughter died without issue. It was held, that the daughter took an estate-tail in the freehold estates, with remainder to the trustees in trust to sell, and that she took the absolute interest in the personalty, and that the realty and personalty were to contribute equally to the pay- ment of the legacies and annultij. This decision has been Observations so justly and cogently observed upon by the learned author of i^^.^er.""^^' a treatise on the construction of the class of limitations under consideration, that no better commentary will be attempted in this place. " The gifts over," observes Mr. Prior, (p) " were all dependent upon the event of the daughter dying without issue ; the gifts of the real estate, and of the legacies and annuity, so far as they were charged upon the realty, were in any case valid : for if the failure of issue, on which they depended, was indefinite, they would take effect by way of remainder, after an estate-tail in the daughter: (p) On " Issue," p. 79. 202 T.miTATIONS OF REALTY [CIIAP. XV. if llie failure of issue referrctl to was such as would take j)laee at a limited period, they would enure by \\a.y of Executory devise. The validity, however, of the gift of the ])ersoiialty, and of the legacies and annuity, as far as they were charged upon it, depended entirely upon the construc- tion to be given to the expression, * dying without issue :' if an indefinite faihne of issue were referred to, the gift nuist, in every event, be void ; if a limited failure, it would be good. The decision, therefore, that the daughter took an estate-tail with remainders, in the real estate, that the gift- over of the corpus of the personalty was void, but that the legacies and annuity were well charged, not only on the realty, but also on the personalty, is necessarily a decision, tliat in the gifts of the real, and of the corpus of the personal, estate, an indefinite failure of issue was referred to, but that the legacies and annuity were made to depend on a failure of issue at the daughter's death. There is some difficulty in making out the ground on which this double meaning was attributed to the * dying without issue.' The first gift is of the legacies, and there the expression is, ' if she shall die without issue, then at her decease I give the lega- cies ;' this, according to the cases before cited, was sufficient to restrict the failure of issue to the time of her death. The next limitation is, * at my daughter's decease without issue, my goods and effects are to be sold, the said legacies paid, and a sum sufficient to produce an annuity invested.' The words, * at my daughter's decease without issue,' would, })robably, by themselves, mean, upon failure of her issue at any time, as they are only another Ibrm of the expression, ' when she shall die without issue ;' but the direction, that the said legacies were then to be paid, which were before given at (he daughters decease, shows, that the testator was in this case also referring to the death of his daughter, as the time when the issue was to fail. The expression in the next sentence is the same, — ' at my daughter's decease without issue, the real estates to be sold.' As this before referred to a failure of issue at the daughter's death, there is no SEC. I. SUB. I.] ON FAILURE OF ISSUE. 203 reason why it should not have the same meaning here; besides, the testator afterwards refers to the real estates being sold ' at his daughters death,'' and in the same sen- tence as this expression, he gives his personal estate and the produce of his real estate. It would seem, therefore, that as in the gift of the legacies, the testator refers to a failure of issue at the daughter's death, he does so equally in the latter clauses of the will ; and the proper decision would appear to have been, that the daughter took the real and personal estate absolutely, subject to an Executory devise- over, on her dying without issue at the time of her death." These observations, it will be perceived, more imme- diately refer to the eifect of the expression, " after the decease," or the like, introduced into gifts on a failure of issue; a subject which will be presently noticed. But they fully prove, that the case is open to question, so far as it may eifect the doctrine of a restricted failure, grounded on a charge of money ; for, the more extravagant the de- cision as to the former point, the less weight can it possess upon the latter. But the most important circumstance is, that the effect of the charge of money was not even pre- sented to the notice of the Court, and does not, therefore, appear to have at all attracted its attention. The next case calline; for special notice is that of Doe d. Case of Doe d. ° ^ Cape V. Walker. Cape V. Walker, (5) recently referred to, (r) where a testator, having bequeathed legacies to his son and daughter by a second marriage, and his granddaughter, M., the child of his second son by the first marriage, devised as follows : — "In case it should happen that my son W." (who was the eldest, but to whom no express devise was made,) " should depart this life, and leaving no heirs lawfully begotten, and that my freehold messuage and tenement situate, &c., should fall by descent unto my granddaughter, M., and she inherit and possess the same, then I order and direct, and (7) 2 Scott, N, S. 317, (r) Vide supra, p. 183. 204 LIMITATIONS OF UKAI/rV [ciIAP. XV. my will is, that my granddaughter, 31., aliall pay or cause to be paid, out of my freehold messuage aforesaid, the sum of 400/. of lawful money, viz., 200/. to my son, J., and 200/. unto my daughter, G. ; the savie to be paid luithin twelve months after she, my granddaughter, M., comes into possession of the said estate ;" with a power for the two legatees to enter and sell the devised property, in case of default in payment of the sums given to them, at the time ap])ointed. W. having died without issue, the property was claimed by the coheiresses of M., against a devisee under the will of \V. The Court of C. B., as has been already stated, held, (to reverse the order in which its o})inions were declared) that as the estate would have descended upon M., but for the devise made by W. in his lifetime, the reasonable construc- tion of the testator's dispositions was, that he intended to direct, that if his heir-at-law should not exercise his power of disposing of the estate, in consequence of which the estate should descend, in the proper sense of the word, to M., she should out of the estate pay certain legacies ; and that, therefore, there Wiis no gift to M., in any event. This obviously, rendered it unnecessary, expressly to determine, whether, had there been a devise to M. in the words of the will, the heir would have taken an estate-tail, by reason of the failure of issue expressed being indefinite, or not. But the Court observed, that it appeared to be the necessary construction of the words of the devise, " that if my son W. should depart this life, &c.," that those words j)oinlcd to an indefinite failure of issue of his son, from which an estate- Observations ^'^^' might be implied. Now, it will be oijservcd, that the "crey^Waiker ^^^^^ "^ ^^^^ Opinion enlertaincd by tiie Court upon the point as to the existence of an express gift to the grand- daughter, rendered it perfectly innnatcrial to those who claimed under her, whether the failure of issue of the son contemplated by the testator, was indefinite, or not; for even if ii were deemed to be confined to the son's death, still, as iherc was no gift to the grandilaughtcr, the happen- SEC. T. — STTJ. I.] ON FAILURE OF ISSUE. 205 ing of the event would not give her, or those cLaiming nndcr her, any title. And, further, it is to be remarked, that the construction of the heir taking an estate-tail, with remainder in fee to the granddaughter, was the only one pressed upon the consideration of the Court, although that, of the son taking a fee, with an Executory devise-over in case of failure of issue at his death, was slightly mentioned, and was also marked for argument. And, moreover, there was reason and policy in abstaining to insist upon the latter of the constructions; for, of the two, that, which went to limit and modify the estate of the heir (itself not arising by express gift) in general accordance with the contingency expressed, and to give effect to the intended direction, with respect to the granddaughter, upon the happening of that contingency, as upon the natural determination of the estate of the heir, was preferable to one, which implies a forcible interruption of an estate in fee, and which, on that account, seems to demand more form and explicitness in the expressions on which it is grounded. The other case, alluded to, is that of Doe d. Todd v. Case of Doe d. Dueshury, {s) where a testatrix devised real and leasehold ^ ' estates, to T. D. for life, and after his decease, unto all and every his child and children, his, her, or their heirs, execu- tors, administrators, or assigns, equally to be divided between them, if more than one ; but in case T. D. should happen to die without leaving lawful issue, then, to II. T., C. D., and M. D., their heirs, executors, administrators, and assigns, as tenants in common, charged nevertheless with the pay- ment of the legacy or sum of 1000/., which the testator thereby, in that case, bequeathed to E. H. ; the same to be paid to her at the end of twelve calendar months, next after the said R. T., C. D., and M. D., their heirs, executors, administrators, or assigns, should come into the possession of the devised property. All the children of T. D. died in (s) 8 M. cSc W. r)14. 20G LIJnTATIONS OF REALTY [(MFAP. XV. his lifetime, and he afterwards suffered a recovery to the use of himself in fee, and devised the property by his will. Two-third parts of the property being claimed by one of the ulterior devisees, in her own right, and also in right of another, whose heiress she was, against the person claiming under the will of T. I)., — it was argued, that the contin- gency, on which the limitation-over depended, was not too remote for an Executory devise, for that the charge of 1000/. in favor of E. H., indicating a benefit to a pei^son then living, and to be realised within twelve months after the event, showed that the testatrix contemplated a proximate event. It was, however, further contended, that, under the gift-over, the children of T. D. took estates-tail, with a vested remainder to the ulterior devisees ; in which case, the re- covery of T. D. was equally inoperative. On the other hand, it was insisted, that the gift-over to R. T., C. D., and M. D., was clearly too remote to be valid as an Executory devise ; the words, " die without leaving issue," having never, in relation to freeholds, been held, per se, to refer to issue living at the death. The other construction urged was also opposed, as untenable. It was held by the Court of Exche- quer, that the gift-over, by way of Executory devise, was void as being too remote. In reference to the argument, that the charge of the legacy was sufficient to cut down and narrow the ordinary construction of, " dying without leaving issue," RolJ'e, B., (who delivered the judgment of the Court,) made the following observations : — " The charge, it is said, is not a charge in favor of E. H. and her executor or administrator, but a gift personal to her, not payable unless she should be herself alive to receive it, and, therefore, it is contended, the failure of issue contemplated must have been a proximate, not a remote, event ; a failure of issue at the death of T. D., not an indefinite failure of issue at some distant time. But we are of opinion, that the foundation on which this argument rests, wholly fails, inasmuch as there is nothing whatever to justify the inference, that the gift SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 207 was intended to be personal to E. IL, and dependent on hor being alive to receive it, when payable. A legacy to A., is the same thing as a legacy, to him his executors and adminis- trators, and will be payable to them, whether they are named or not, unless there is something in the will, to point to a different constructi(m. There is nothing of the sort in this will, for the mere circumstance, of the gift being a gift to take effect after a failure of issue, clearly can have no such effect. That is a circumstance always occurring in the very common case of a devise to sons in tail, and on failure of their issue, over to collateral relations, subject in such case, to pecuniary charges in favor of daughters. In such a case, the daughters may not be alive to take the benefit, but no one ever suggested it as a reason for construing the gift as personal to them, that it was made to take effect after a general failure of the issue of the sons. It would certainly go to the executors or administrators of the daughter, whe- ther expressly named or not. The present case, therefore, is clearly distinguishable from that oi Doe d. Smith v. Webber ^ on which the plaintiff placed so much reliance ; for there, the party for whose benefit, or for the benefit of whose im- mediate nominee, the charge was to take effect, was herself the party, the failure of whose issue was in question, and the Covu*t, on the whole context of the will, felt itself war- ranted in concluding, that the charge, which certainly was not to arise till after the failure of issue in question, was to arise (if at all) immediately on the death of the tenant for life ; and the consequence necessarily was, that the failure of issue contemplated by the testator, was a failure of issue at the death of the tenant for life." The Court was, therefore, of opinion, that the gift-over was void as being to take effect after an indefinite failm'e of issue ; and also gave judgment for the defendant on the other point raised. Now, if it may be allowed to canvass the grounds on Observations which the conclusion of the Court, upon the effect of the "^°^^ ^ "'' charge of the legacy, is reported to Imve been rested, it D^esbury. LIMITATIONS OF REALTY. [ciIAP. XV. slioiild seem, that their sufficiency is open to very grave objection. In the first place, it is never supposed, that, when a testator directs a sum of money to be paid by a person taking in the event of a faihirc of issue, he intends that, as neceasarilij a pei-sonal provision for the object of it, or, as it was said, " dependent on that object being alive to receive it, when payable" : primarilij, doubtless, the charge is so intended. It is not a question of actual fact, as to whether the legatee survives the specified event; but o^ presumption of intention, going to negative another construction, like- wise proceeding on presumption. The argument, therefore, that the absence of words of representation does not neces- sarily imply a positive payment to the individual named, is of little weight, because a contrary argument is not neces- sary to support the construction contended for, viz., that of a restricted failure of issue. For the same reasons, the in- stance of a charge of a sum of money after an express estate- tail, is not apposite : no presumption is admissible ; and no opposing one is to be rebutted : the charge is postponed to an express estate-tail ; and it will, doubtless, take effect, although the object of it die before the determination of the entail, and although there be no words of representation. Nor is it a legitimate consequence of the argument, that in a case of doubtful construction, an inference is derivable from the circumstance of a pecuniary benefit being intended for an individual, that when an express estate-tail is given, with a charge of a sum of money on its determination, such charge must be held to be dependent on the object of it living to the period of its taking effect ; because no such necessity exists, or is contended for, in the former case. Nor is it easy to understand the distinction, between a charge in favor of the person, the failure of whose issue is in ques- tion, and a similar direction for payment of a sum of money to a stranger ; when it is remembered, that the hypothesis assumes the previous death of the object of the legacy. (/) (0 Vide supra, ■\^. 199. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 209 Moreover, in Doe v. Webber, (alluded to by the Court of Exchequer,) it has before been seen, the legacy was in favor of any person who should be appointed by the will of the first devisee; and such appointee might not have been " immediate," within the terms of Mr. Baron Rolfe's refer- ence to that case. But it deserves very serious consideration, whether Doe d. Todd v. Duesbury can be admitted as a case of very great authority upon the point under consideration ; as it seems to be opposed to that numerous class of cases, which have established the general rule, that words importing a failure of issue following an express limitation to children, whether in fee or in tail, are to be construed as referring to the objects of the preceding gift, viz., children, simply, and not to issue, generally, {u) Certain it is, that that rule has been frequently applied to limitations, " on all fours " with those i n the case in question ; (y) and it is unaccountable that it should have apparently escaped all notice in reference to that case. Perhaps, however, a reason is to be found in the probable circumstance, that the construction, alluded to, would not have served either of the litigating parties in Doe V. Duesbury; for, under it, the property would belong to the heirs-at-law of the several deceased children ; which character could not have been filled by the parent ; the deaths of the children having taken place prior to the com- mencement of the operation of the new law of inherit- ance. The only question which might have been raised in reference to this construction, is, whether the word, " leav- ing," did not refer to a failure of the objects of the preceding gift at the death of the tenant for life; a doctrine which is supported by the extra-judicial opinion of Lord Cottenham, in the case of Tarbuck v. Tarbuck; {w) and which, if sus- (n) See these cases stated, 2 Jarm. 416, Goodright v. Dunham, Dougl. Wills, 372, et seq. And vide infra. 264, and Tarbuck v. Tarbuck, infra. (r) jBa: 5rr. the gifts in the cases of {w) Staled 2 Jarm. Wills, 375, Malcolm v. Taylor, 2 Russ. & My. 210 MMITATIONS OF REALTY [CHAP. XV. tainable, avouUI have establi>hed the title of the person claim- ini>- under the hniitatlon-ovcr, in Doe v. Dtiesbury ; all the children, in that case, havin<»; died before their parent, the tenant for life. It remains to be seen, whether the decision here noticed, will be treated as having set aside the general rule alluded to : if not, the opinion of the ('ourt, upon the point as to the effect of the charge of a sum of money u])()n words import- ing a failure of issue, cannot be entitled to the ordinary weight of an express authority. It may be observed, how- ever, that the Court only adjudicated upon the propositions made by the plaintiti' in the case in question, who must have succeeded upon the strength of his own title, and between whom and the defendant, no advantage could be taken of the rule referred to, nor its applicability main- tained; except upon the doubtful effect of the word, "leav- ing;," above mentioned. Charge of Having endeavoured to place in its true light, the effect of importance in the decisions in the cases of Dunk v. Fenner, Doe d. Cape v. reference to Walker, and Doe d. Todd v. Dueshury, upon the doctrine fjitts on lailure ' ^ ' t. ofisbue, when of Construction, at present under consideration, it must effect of con- i • i i striRtionofa remain for time to show, the exact extent to which they fs^Traisc^air*^ will be deemed to have put limits upon that doctrine, or estate- tail. jj^^^^, ^-.^j, ^j^gy j^^^^ have circumscribed the range of its operation. One general observation may, however, be made with respect to them, to the effect, that the circum- stance of a legacy or other charge of a sum of money, in the event of the death of a person without issue, is entitled to less influence in determining the extent or character of the failure of issue contemplated, where the construction of an inde- finite failure of issue would have the effect of raising an estate-tnil in a prior taker, (which, of course, would validate the legacies or charges, and every other ulterior disposition affecting the property,) than where the application of such a construction would have the effect of rendering the money- 376 ; but sec the observations of that such a doctrino, pp. 377, 378, of the learned gentleman in reference to same Treatise. SEC. I. — SUB. I.] ON FAILURE OF ISSUR. 21 1 charge, and every other gift, void for remoteness, as not, by the rules of law, abridging or enlarging the prior estate into an estate-tail, (x) Of the former character, were the dis- positions in Dunk v. Fenner, (as to the real estate) and Doe d. Todd V. Dnesbury ; and as to Doe d. Cape v. Walker, there was not, as has been already said, any express or necessarily implied gift, on failure of issue of the heir, which would be either assisted or invalidated by any construction to be put upon the words importing failure of issue : had there been such a gift, the case would have been embraced by the observation just made, and, as was intimated by the Court, an estate-tail would have been raised, by implication, in the heir, which would have prevented the intended legacies being void for remoteness. In conclusion of this subject, it may be remarked, that the Restricting . force of charge cases in which the effect of a charge of a sum of money, in of money, the event of a hmitation after a failure of issue taking effect, fined to testa- has been discussed, are confined to wills ; there being, so mentary dispo. ' ° sitions. far as the writer's knowledge extends, no reported decision upon the question, as applicable to similar limitations in deeds. Nor is it easy to predicate, what decision would be arrived at by a Court of law upon the point, should it ever call for judicial notice. On the one hand, the superior favor Arguments for shown by our Courts of justice to the smallest manifestation extenfionof the ofinfentioti in a testator, the ijeneral inflexibility observed in doctnne to ' cs J mstruments the interpretation of instruments inter vivos, and the par- inter vivos. tiality of the law, for the construction of an indefinite, as opposed to a restricted, failure of issue, in regard to rea. estate, seem to point to a confinement of the doctrine in question to testamentary limitations; while, at the same time, the arbitrary character of the rule which prefers an indefinite failure of issue in limitations of real estate, the unreasonableness of applying it where a clear indication of a contrary intention exists, and the perfect applicability of (x) 2 Pow. Dev. by Jarni. 57fi. Sed vide, ib, 583. p 2 L>1L^ IJMIT.VTION'S OK HFAT.TY [CIIAP. XV. 2. Circum- stance of limitation on failure of issue beinfj of life- estates solely. the grounds of the doctrine under consideration, as well to litnitations in deeds, as to devises, lead to the conclusion, that the same rule would be abided by both in deeds and wills. 2. Another circumstance which has been allowed to exercise a control over words, indicating, in their ordinary lesral sio-nification, an indefinite failure of issue, is that of the limitation-over, after a dying without issue, being of a life-estate, or life-estates, only; to which subject a distant allusion has before been made, (t/) In iioed. Sheers \. Jef- fery, {z) a testator devised the premises in question to his wife for life ; after her decease, to his daughter for life ; after lier decease, to his grandson and his heirs for ever; but in case his said grandson should depart this life and leave no issue, then the premises should be and return to the three daughters of W., and M., F., or the survivors or survivor of them, to be equally divided betwixt them, share and share alike. The question was, whether the grandson took an estate-tail, or an estate in fee, with an Executory devise- over. I-,ord Kenyon, on delivering the judgment of the (^ourt of B. R., said, that on looking througli the whole of the will, the Court "had no doubt, but that the testator meant the dying without issue to be confined to a failure of issue at the death of the first taker ; for the persons to whom the property tvas yiceii over were then in existence, and life- estates tvere only given to them : and it was, therefore, held, that the limitation-over took effect as agood Executory devise. The doctrine proceeds upon this : — That as a life-estate only is given over, the failure of issue intended must be ])rc- sumed to be a failure, to happen, if at all, within the com- pass of that life ; and that, therefore, as no other period for ascertaining the failure can be fixed, it means a dying without issue living at the death of the first taker. In the above case of Doe v. Jefjerys, it will be seen, that as {y ) Villi' siijirn, j). 195. (i) 7 T. R. 589. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 213 there were no words of limitation annexed to the gift of the three daughters, nor any other words which could have the force of passing the fee to them, they took life-estates only; and this circumstance of the life-estates being only implied in law, tends to give greater force to the rule, as applied to cases where they are expressly limited ; though it may be questioned, whether it gives greater force to the argument. This doctrine is also sanctioned by the case of Tr afford v. Boehm, {a) where A. limited 10,000/., on failure of issue of the body of husband and wife, to B. in tail ; and it was held, that the limitation to B. was void, as an Executory devise, being too remote ; but that it was otherwise, where the limitations-over were for life, that confining it to a failure of issue during the lives in being. But the doctrine, that where there is a limitation-over for But doctrine life, upon the death of a person to whom a prior gift is unless* aW*''^ ^' made, without leavino; issue, the failure of issue shall be con- "'^''"°'" S^*^'^ ' o ' for lite. strued to refer to the time of the death of the first taker, does not obtain, where all the limitations-over are not of estates for life only, {b) This was adjudged in the case of Doe d. Jones v. Owens, (e) in which there was a devise for life with remain- der in fee, in the event of the death of a prior devisee in fee, without issue ; and it was held, that the failure of issue intended was a general failure, and that, consequently, the (a) 3 Atk. 449. R. L. and his wife were adjudged (b) The case of Doe A. Lyde v. good: and 5«Z/er, J., laid great stress Lyde, 1 T. R. 593, (1787,) favors, upon the circumstance of the limita- indeed, a different doctrine. There, tion to R. L. being for life only, as a testator bequeathed a term to G. L. excluding the idea of an indefinite for life, and after his decease, to M., failure of issue. But the current of his wife, for life, and after the decease subsequent authority is clearly op- of the survivor, to the children of G. posed to this notion ; and the deci- L., share and share alike, and if G. sion in Doe.y. Lyde, as far as it may L. died without issue, then to R. L. support such a doctrine, must be con- fer life, and after his decease, to M., sidered as overruled ; although it is to his wife, for life, and after the decease be observed, that the case furnishes of the survivor, to their children, in other grounds, upon which to rest the like manner, with the limitation to the decision. children of G. L. The limitations to (c) 1 B. iif Ad. 318. 214 MMITATIONS OF UF.ALTY [CIIAP. XV. first taker had an estate-tail. Jkiijley, B., observed :— " If lite-estates only had been devised over, Roe v. Jeffery might have applied, and the terms, " die without issue," might have been confined to a failure of issue at BenjaviirCs (the prior devisee) death." In Barloiv v. Salter, (d) i\ho, it wixs de- cided, that the mere circumstance of the first of the limita- tions-over being of a life-estate only, would not, of itself, suffice to restrain words importing a general failure of issue, to mean a dving without issue at the death. Sir Wm. Grant, M. 11., in the latter case, thus luminously stated the reasons of this distinction, and the general nature of the doctrine :— " When nothing but a life-interest is given over, the failure of issue must necessarily be intended a failure within the compass of that life : but where the entire interest is given over, the mere circumstance, that one taker is con- fined to a life-interest, furnishes no indication of an intention to make the whole bequest de})end upon the existence of that ])erson, at the time when the event happens, on which the limitation-over is to take effect. When a remainder for life has been limited after an estate-tail, it never was argued, that an estate-tail could not really be meant to be given, because of the improbability of intending a personal provi- sion for one })erson, after an indefinite failure of issue of another. The failure may happen during the life : and that chance is what is given to the remainder-man for life. So here, if Catherine (the devisee-over for life) shall be living when the issue fails, she will take a life-interest, but the bequest-over is still to take place, when the faihu'e of issiie shall happen, whether Catherine shall be then living, or not." i{ulc proceeds This rule, it will be observed, like that relating to a charge uon"of intcJ^^" of a sum of money on failure of issue, is grounded entirely upon the presumed intention of the author of the gift, and not upon any intrinsic force of the Executory limitation (d) 17 Vc£. 48-'. And sec Deslouvhes v. Wulktr, 2 Eden, 261. tion. the docti'ine. SEC. I. SUB, I.] ON FAILURE OF ISSUK. 215 itself; which, as being subsequent to the words describing the failure and determining the previous estate, cannot have any direct operation upon them. As an index to intention, the Umitation of a Ufe-estate after a dying without issue may, perhaps, be considered superior to a charge of a sum of money, {e) Such a hmitation seems more clearly to refer to a proximate event ; and it necessarily implies a personal provision, since the decease of the object of it, before the happening of the event on which it depends, prevents it from ever taking effect. At the same time, it would not seem, that our Courts of Courts seem Justice are at all disposed, to extend the doctrine ; if they extend favor to may not even be said, to evince a desire, to qualify and im- pose limits upon it. The cases o^ Doe v. Owens, and Barlow V. Salter, afford evidence of the former disposition ; and the latter may be inferred from the general tone of the observa- tions of Sir Wm. Grant, above cited, and the remark of Lord Denman, in a recent case, (/) that the decision in "-Roe d. Sheers v. Jeffery, if supportable at all, can only be so on the ground of the devise -over being of life-estates." Of a similar character, also, is the decision in the recent case of Simmons v. Simmons, (g) where there was a gift of real and personal estate, to the testator's daughter, A., for (e) It is true, a learned writer has restricted construction may be limited remarked,—" That the mere circum- after an express estate-tail, when they stance of the subsequent estates being can be attended by no such effect, for life only, should be made a ground seems to imply a disregard of the es- for varying the construction, is certainly sential character of the question under extraordinary, since it is every day's consideration, which is, whether the practice, to limit an estate for life in expressions or circumstances do not remainder after an estate-tail, which give rise to a presumption, sufficiently involves precisely the absurdity, which strong to rebut a construction itself is here supposed to flow from the con- grounded on presumption, although struction of an indefinite failure of supported by antecedent inclination of issue." See 2 Pow. Dev. by Jarm, law. 578. But, as has been before (sMjara, (/) Doe d. Cadogaii v. Ewart, 7 p. 208) observed, in reference to a Ad. & Ell. 660. charge of money, the argument, that ((/) 8 Sim. 22. gifts which arc said to give rise to a 216 LIMITATIONS OF REAT/PY [chap, XV. life ; and at her decease, she to be at hherty to will the same to her issue ; but in case of her dying without issue, to the testator's brother and sister, for their hves ; in the event of the brother's death, prior to the death of the daucrhter, to the chiklren of the brother. It was hekl, that A., took an estate-tail in the reaUy, and the absolute interest in the personalty. Here, it will be observed, that, except in the particular contingency of the brother dying before the daughter, life-interests only were limited-over. The observations of Lord Brougham, also, in the recent case of Lepine v. Ferrardi (h) show, that his lordship's in- clination was by no means favorable to the ])resuniption of a restricted failure, from die limited extent of the gifts-over ; althouirh it is to be remarked, that those observations were entirely extra-judicial, as there was a gift-over of the corpus of the fund in question. Whether the It docs not secm to be clearly settled, in regrad to these construction cascs of restrictive construction of words, importing a failure is to restrain ^f issue, on the eTound of the limited extent of the ulterior failure of issue ' o to death of an- interests, whether the default is to be considered as confined parties taking to the death of the person tvhose issue is to fail, or of the ti'on-ovc'r'"" persons taking the ulterior estates for life. The writer ven- tures to think, that both principle and analogy lead to the conclusion, that the failure is restricted to the death of the first taker. The question in these cases is, between two different interpretations of certain phrases, (one, fixing the ancestor's death as the time of ascertaining the failure, and the other, leaving that time unlimited,) neither of which can be considered forced or arbitrary. But that construction is arbitrary, which has no immediate connexion with the per- son whose issue is to fail, and yet does not admit of an unlimited period for the ascertainment of the failure. More- over, the influence of the circumstances and exju'cssions (/») 2 Russ. & My. 388, 3H9 ; but Sir ,fi)/iH I.riieli, M II , when the case was before liini, treated the doctrine as settled and unobjectionable : sec ib. 38:3. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 217 which tend to rebut the construction of an indefinite failure of issue, is one of general presumption only, and is not directed to the attainment of a coincidence or mechanical aptitude (as it were) between the character and extent of the failure of issue contemplated, and the nature and time of ac- tual taking effect of the estates dependent on that failure. Nay, more, an interpretation which, although proceeding only on presumption, should introduce the death of a stranger, as the limit within which to confine the happening of the failure of issue, would be an anomaly, not more irreconcileable with the nature of a presumptive construction, than unsustainable by the whole range of legal analogy, applicable to the class of limitations in question. It must, however, be noted, that the reverse of the view here suggested, is that maintained by a learned writer upon the class of limitations under consideration, of some acute- ness and research, {i) The only judicial dicta that appear to have been delivered upon the question, afford support to both views ; for while there is a distant intimation on the part of Lord Hardwicke, {k) in the before cited case of Trafford v. Boehm, that the failure sliould be restricted to the lives of the idterior takers ; the circumstance of life- estates being limited upon a failure of issue was expressly urged by Lord Kenyon, (I) in Hoe d. Sheers v. Jejfery, as restricting that failure to the death of the first taker. Sir John Leach, however, in the case of Lepine v. Ferrard, (m) seems to have considered, that the effect of the gift-over being for life only, was, to restrict the failure of issue to the death of the person taking under the ulterior gift ; although the arguments, and the observations of Lord Brougham, on the appeal, («) treat the doctrine as confining the failure, to the death of the first taker. (i) See Prior on " Issue," 87. IVood v. Baron, 1 East, 259. (k) 2 Atk. 449. (,n)2 Russ. & My. 383, referred (/; 7 T. R. 596. And see obser- to, supra, p. 21f)". vations of the same learned judge, in (n) See 2 Russ. & My. 386 389. 218 M.MiTA'ri()Ns*<)i' iiEAi/rv [chap. XV. 3. Circuni- 3. A liirtlicr circumstance to whicli a restraining force ov^rbcing'to ^^^^ soujctimcs bccn attributed, in regard to the character or survivors of a. exteul of a faihu'e of issue, is that of the gift-over being to the survivors or survivor of a chiss of persons, on the dcatli without issue of one or more of the members of the class, (o) Ground on The argument for this restrictive operation of the uUerior supposed effect gift proceeds, as in the instances before considered, upon '"^'^**' the assumption of a personal benefit being intended for the survivors of the class ; and that assumption, being incon- sistent with the notion of an indefinite failure of issue, as the event on which the benefit is to have effect, is urged as a ground for restricting the failure of issue, to a dying with- out issue living at the death of the ancestor. Insufficiency of I'he writer is not aware of this doctrine being sanctioned authority. ^^ more than one decided case, so far as it respects limita- tions of real estate ; and that adjudication is by no means satisfactory as an authority upon the point. The case in Case of Fj5/jer question is that of Fisher v. Barry, (p) adjudged in the V. Barr;/. ^^^^ Court of Chauccry, where a testator devised part of his realty, to his son, R., and his heirs, and the residue of his real estates, to his son, W., and his heirs : if R. died without issue, the testator gave all that was left to him, to W., he paying his sisters, H. and /., 500/. each : if VV. died with- out issue, the testator gave all that was left to him, to R., he paying H. and J. 3001. a-piece : if both sons died without issue, then all that was left to them to go to the testator's dauiihters, as mentioned in the will. It was held, that the alternate gifts to R. and VV., respectively, on failure of issue of the one first taking, were e(piivalent to cross-limitations in favor of the survivor, on either dying without issue, and Observations were, therefore, valid. Now, this decision is, manifestly, open X-"/"^^^ "' t" t^ic remark, that the construction adopted, though profess^ edly rested on the circumstance of the ulterior gift being made to the survivor, \v(hiIc1 have been ctiually and even more sus- (o) Prior on "Issue," 88, 89. (r) i Hog. 153. SEC. I. SUB, I.] ON FAILURE OK ISSUE. 219 tainable, on the ground of the charge of money, to which that uUerior gift was in each case subject. And, it is conceived, it would have been more correct, so rested ; for to read a gift to one of two persons named, on the death of the other under particular circumstances, as necessarily implying the survivorship of the former, is certainly a violent construc- tion, called for neither by any expressed intention, nor by necessary implication. It is, moreover, a doctrine not to be supported at the present day ; having been negatived in cases, much more strongly calling for the restricted construc- tion. If the decision in Fisher v. Barry be sustainable, it should seem difficult, in any case, to invalidate cross-limita- tions between members of a class, (although named) on failure of issue of any of them, upon the ground of remoteness. Thus proving too much, the importance of the case in question as an authority upon gifts to survivors, on a failure of issue, must be estimated as but small ; and that, the more, as it is sup- ported by no other adjudication as to gifts of realty. In opposition to the construction adopted in Fisher v. Authorities Barry, are to be cited two cases, which, if of modern date, restricted con- would be conclusive, against any restricted construction, in fJr"f JJJ'gm to reference to limitations of realty, arising from the circum- survivors. stance of the gift-over being to survivors. The first is that of Chadock v. Cowley, (a) where there was a devise of Black- Case of Chadock V. acre and Whiteacre to M. for life, and after her death, Black- Cowicy. acre to B. and his heirs for ever, and Whiteacre to C. and his heirs for ever, and if either of them should die without issue, the survivor should be heir to the other ; and it was held, that each of the devisees in remainder took an estate- tail, with a vested remainder to the other, and that it was not a contingent limitation to the survivor, on the death of either without issue in the lifetime of the other ; which, it was said, would have been the construction, if the devise- over had been, if either of them died without issue, living (7) Cro. Jac. 696. 220 LIMITATIONS OF REALTY [CIIAP. XI. The case of Jiof V. Scott anil Snuiyt, Extent of the decisions in C/iatlock V. Cowley, and Roe V. Scott and Smart. the other, on or hcfore such an age. The other case is Roe V. ^Scotf and Swart, (r) which is thus stated by Mr. Fearne: — A testator devised certain lands to his son James, to hold to him, his heirs and assigns for ever ; and other lands, to his son Jo/ui, to hold to him, his heirs and assigns for ever; and other lands, to his son Thomas, and to his heirs and assigns for ever ; with this express condition, that his son Thomas, his heirs and assigns, should yearly pay to a granddaughter of the testator, the sum of 3/., till her age of sixteen, and the testator charged the same premises with such payment; and he then added, that his will and mind was, that if either of his three sons should depart this life without issue of his or their bodies, then the estate or estates of such sons should go to the survivors or survivor : and if all his said three sons should happen to die without such issue, then he devised all the said premises, to his four daughters, and their heirs and assigns for ever. And he further charged the premises so as aforesaid by him devised to his said son Thomas and his heirs, with the sum of 40/., to be by him or them paid to his said grandchild at its age of twenty-one years. The three sons survived the testator, and entered, and John died some time after, intestate and unmarried. And it was held, that the devise to Thomas did not give him the fee, but an estate-tail, which descended to his daughter, and upon her decease, without issue, the estate ivent over to James, the then survivor of the three brothers, and not to the heirs of the said daughter, to whom James was only related of the half-blood. These cases must be considered as presenting serious obstacles to the restricted construction in question, for they are not opposed by any decisions more express and more satisfactory. At all events, they may, ])crhaps, be regarded as showing, that in the absence of any apparent intention, to make a personal provision for the survivors, and where (r) F. C. R. 473. 474, n. SEC. I. — SUB. I.] ON FAILUUE OF ISSUE. 221 the word, " survivors," is used merely as a designation of a class who are take, rather than, of a number of individuals who are to succeed in their own persons, the Courts will not consider the circumstance of the gift being made to " the survivors " of a class, on failure of issue of one or more of the members of that class, as, of itself, sufficient to give a confined signification, to words primarily importing a general failure of issue. It seems to have been assumed, in the latter of these cases. If gift to sur- 11/. • 1 • 1 1 . ji -^ vivor for life that the fee was given to the survivors ; as, undoubtealy, it only, restricted was, by force of the word, " estate," in the cross-limitation : ^btainr*'"" but it seems clear, that had there been nothing in the devise, to give the survivors more than life-estates, nor any subse- quent disposition carrying the whole interest, the dying with- out issue would have been restricted upon that ground, independently of any force of the word, " survivors." Nor should it seem, that this conclusion is affected by the cir- cumstance of the life-estates arising merely by implication, from the want of proper words of limitation. The doctrine in question, does, indeed, so far as respects Doctrine better ^ , . . founded in personal estate, seem to possess stronger claim to reception regard to as a rule of law, as we shall see hereafter; but all the pCTso^ndty." authorities bearing upon it (with the one exception above noticed) are strictly confined to limitations of personalty. However, this fact cannot be deemed conclusive against its applicabihty to limitations of real estate; because, in none of the cases has any such supposed distinction been noticed or refeired to ; but, on the contrary, upon two or three occasions, the question has been argued, both on the one side and on the other, without reference to the nature of the subject-matter of the limitations. In ordinary practice, the writer believes, the word, " sur- " Survivors " •' ^ _ ordinarily con- vivors," in regard to limitations of real estate, is generally strued "others." construed to mean, " others ;" (i) which latter word, it is evident, does not indicate individual and personal enjoy- (s) See Curshamv. Nacland, 2 Bc&v . 145. 222 I-IMITATI()\!=; OF URAT.TY [CHAP. XV. mcnt in tlie person named in the gift-over, to the same extent, as the word, " survivors." If we suppose a devise to two persons and their heirs, with a gift-over to the " other," in the event of the death of either, \vithout issue ; it is manifest, at onee, that the interest of the devisee-over is not intended to be, necessarily, or even, primarily, accom- panied by actual possession and enjoyment. And, imme- diately, the presmnption of a j)ersonal provision for the ulterior devisee is repelled, whether by any circumstance extrinsic to the limitations, or by the legal interpretation of those limitations themselves, the words, importing a failure of issue, retain their primary and uncontrolled signification, viz., dying without issue, generally, or inde- finitely. And this construction of, " survivors," to mean, " others," is adopted, because the former term is too vague and general, to warrant the legal presumption of a personal provision being intended, and, at the same time, too j)articular in its ordinary signification, to admit of its proper meaning being sacrificed to legal strictness. By holding it to mean, " others," the appropriate force of the word, in common usage, is left unassailed, and the ex- tended signification rests upon the assumed use of the substituted word; while, at the same time, as the word, "survivors," does not, necessarily, infer, a survivoi-ship of the first taker, (the only event, in reference to which survivorship can be of any importance, as to the construction of the gifts under consideration,) but may, without the application of a forced construction, be well enough sup- posed to mean an outliving oi the failure of issue, generally, a term is substituted of a less restrictive import, and not implying a survivorship of a person or event, of any descrip- tion. As before observed, however, this legal interpretation of the word, " survivors," as applicable to limitations of real estate, rests upon general i)rofessional opinion, rather than on express judicial authority : although there are not want- ing dicta, which seem to give it sanction. SEc^ I. SUB. I.] ON FAILURE OF ISStTE. 223 After what has been expressed in regard to the force of The effect of , „ words of repre- the word, "survivors, ni the construction ot Executory sentation being gifts upon' a dying without issue, it need hardly be ob- gf^^to*" ^'''^ served, that where words of Umitation or representation "survivors." (as, "heirs," or, "heirs and assigns,") are superadded, there is no possible pretence for attributing to it, any greater force than belongs to a future limitation after a failure of issue, to a person, by name, and his heirs ; in which case, the general import of the w^ords, indicating the failure, is, of course, uncontrolled. But, notwithstanding there seems great ground for contend- Effect of words, J 1. • more strict and ing, that no restrictive presumption arises in regard to limita- confined than tions of realty, from the fact of the gift-over being to the Jl^^^^X^J"'" survivors or survivor of a number of persons, of whom the similar signifi- cation. first taker is one, yet terms more strict and confined, though of similar signification, will have the effect of controlling a failure of issue, to a dying without issue living at the death. For example, we may suppose, a devise to A., B., and C, and their heirs, as tenants in common, with a proviso, " that in the event of the death of one or more of them without issue, then his or their share or shares shall go to such of them, the said A., B., and C, as shall survive the person or persons so dying without issue." Here, the devisees-over are described in intelligible terms, and their personal survivorship of the period at which the shares are to go over, clearly pointed out ; and there being no inde- finiteness in person or event, there is no opening for the substitution of terms, of less precise or more extended signifi- cation, which we have seen to be necessary, when the word, " survivors," is used. In such a case, therefore, the failure of issue is (it should seem) restricted to the death of each of the first takers, because the gift-over manifests an inten- tion, that the interest of the ulterior devisees should be accompanied by actual possession ; which intention is in- consistent with the notion of a general or indefinite failure of issue. 224 LIMITATIONS OK HI.Al.TV [cilAP. XV. 4. Circum. 4. Similar to the foregoing grounds of the restricted stance of . pi- • i • • i i • -l ulterior gift Construction oi a dying without issue, is another, which being to a jj,jj, sometimes been considered sufficient to control tlie person, or the members of a indefiniteness of the event, and which consists in the class, "if then i-n • i i • r living," or, " as superaddition OI some ([ualincation to the ulterior gitt, ivmg. ^viiercby it is necessarily prevented from taking effect, except during a limited period, not such as to violate the Rule against Perpetuities, (t) Thus, suppose land be given to A., and in the event of his death without issue, to B. in fee, if then living, or to suck members of a class of persons as shall he then living, — the qualification annexed to the limitation-over, renders it necessary, that that limitation should take effect during the life of a person or persons in esse, or not at all ; and this necessai-y qualification is considered incompatible with the construction of an in- definite failure of issue. Want of actual There is the same absence of positive decision in favor of decision in ,.,,,... .... favor of this class ot restrictive circumstances, as respects limitations construction of real estate, that we had occasion to remark, in regard to the from this class last considered : nor can it be predicated with certainty, circumstance. _ * .... that the terms of the doctrine would meet with judicial appro- But supported ^^^^ There seems, however, to be a very just analogy between rule respecting gifts to persons ill esse, made dependent on their existence gift-over of i • r> i i • c ^ life-ostotes, ^^ the time ot the happening ot the contingency in question, and gifts of life-interests solely, to persons in being, after the death of the first taker without issue, as they, respectively, imply or require the existence of persons in esse, when the event happens, and, therefore, alike point to a personal pro- vision for the ulterior takers, {u) Whatever the force, conse- quently, of the circumstance of life-estates only being limited after a failure of issue, upon the construction to be put upon that failure, there seems to be little doubt, that, upon prin- ciple, it must equally attach to a gift to persons in esse, (t) 2 Pow. Dcv. by Jarm. 574, (u) See 2 Pow. Dev. by Jarm. 584. 584. Prior on " Lsuc," 84, 85. SEC. I. SUB, I.] ON FAILURE OF ISSUE. 225 upon a dying without issue, which requires the existence of the object of it at the time of the future estate vesting. It is absolutely necessary, in order to wai-rant the restric- Objects of •^ *' . future gift must ted construction, upon the ground now under notice, that be in esse at the objects of the ulterior gift should all be in esse at the limitations. date of the will creating the limitations, and that the original frame of the gift should be such as to exclude all possibility of after-bom persons becoming entitled under it ; (v) for it is obvious, that if objects of the latter description may take under the future limitation, the restriction, " if they shall be then living," affords no guarantee whatever against the vio- lation of legal limits, notwithstanding the intention, that the failure of issue should happen in the lifetime of the parties taking under the gift. Again, it must be clear, that the qualification as to the Contingency of 1 • • /» 1 r ulterior takers existence of the objects of the ulterior gift, has reference to being living, the time at which their interests are to vest in possession ; for ™"^j. ^^^^J it may sometimes, (not inconsistently with presumable inten- f""*^ of their •' ^ J L interests tion) be construed to refer to the period, when the number and vesting in description of the objects of the ulterior limitation are to be ascertained, and not to the period of actual division among them. Ex gr., in the case of a gift to A. for life, with a limita- tion in the event of his death without issue, to such members of a class of persons, as shall he living at the decease of A.; the question arises, whether the existence of the persons named, has any further or other connexion with their title under the ulterior gift, than that which arises from the necessity of their surviving the first taker ; or whether the survivorship contemplated be also that, of the period at which the future interests are to become vested in possession. It seems to have been recently held, in the case of a similar gift of per- sonalty, (lo) that the limitation-over did not require the existence of the objects of it at the time of the actual divi- sion of their interests, and that, therefore, the failure was (v) See Prior on " Issue," 85. & Coll. N. S. 494, stated infra. (w) See Garratt v. Cockerell, 1 You. Q 226 LIMITATIONS OF REAT-TY [ciIAP. XV. not resfrictcd lo the doatli of the first taker, hy force of iho (liialification sujieradded to the ulterior gift. Necessary also 'pj^jj. construction, further, necessarily inipHes, that the that the wonl . "then," iS.c., word, " then," in any given case, relates to the period of refer to death ,,, ,^ t i- i-ii of ancestor, and the death oj the fir at taker, as the tune at which the contin- orfa'ilurc*of {^^^^.Y **^ '^ failure of issue will be ascertained ; for if they issue. merely form an expression of reference to the time, whether at or lohensnever after the death, the issue shall fail, (j;) it is obvious, they have no force whatever in favor of a restricted construction. Any argument, derived from the words hi (juestion under such circumstances, would be, simply, apeti- tio principii. Thus, in one case, (;/) the construction of an indefinite failure obtained, where there was a devise on a dying without issue, to the testator's grandchildren, living at the time of the faihire of issue. Limitation to Kcscmbling the class of cases here noticed, is a gift to A. heirs, and if he '"^''^^ ^"^ heirs, and in the event of his death without issue, die without living; R., to B. In such a case, the failure of issue is held issue, living " ' ' B., to B. to be restricted to the death of B. ; and the ulterior limita- tion will, therefore, take effect, in case of the failure happen- innj durino; his life. This was the effect of the decision in the before-cited case of Pells v. Broivn, where the gifts were similar to those just illustrated, (s) Observations This construction has always been considered a forced on the \e"a\ ■. . mii -i -i i --i /\t construction of oiie, and irrcconciieablc with strict legal principles, (a) In- such gifts. deed, it seems difficult to conceive, upon what ground the words, " living B.," can be construed to mean more than, that if he be living at the time of the failure of A.'s issue, he shall succeed to the property ; although, probably, even this latter interpretation would subject the faihire to a res- tricted construction, upon the rule above considered. The (x) 1 You. & Coll. N. S. 507. Russ. 421. (y) Wright v. Pearson, 1 Eden, (z) And see judgment in Chndock 119; Ambl. 358. And see the v. Coit'/ey, Cro Jac. 695. cases in rnfercncc to gifts of per- (a) Sec 1 Pow. Dev. by Jarm. sonalty, iyijra. Sed vide, i contra, 4 lfi8 n. ; 2 ib. 574. SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 227 truth is, however, that in regard to both cases, the proper and sound legal construction would have been, to hold the failure of issue unrestricted ; and thereby to raise an estate-tail, with an expectant remainder, contingent upon the happening of the collateral contingency superadded to the dying with- out issue, {h) A question seems to exist in reference to the classes of gifts The question, under consideration, whether the operation of the ([ualifica- ^nm-e^LVe- tion superadded to the gift-over be, really and strictly, to stricted to confine the failure of issue to the death of the ancestor ; or taker, or to whether, on the other hand, the proper construction be not, taking under that the dying without issue means a general failure of issue t^?^"'*®""*" within the prescribed -period, (c) The writer has before {d) hinted his view of the somewhat similar question, arising on gifts-over of life-estates ; and he ventures to think, that in regard also to gifts of the des- cription at present under notice, the proper rule is, that the failure of issue is restricted to the death of the ancestor, and that, on the ground already urged. This certainly seems to have been the opinion of the Court, in Pells v. Brown ; although it is true, it was not necessary to decide the question. And in the recent case of Garratt v. Cockerell, above referred to, and hereafter more fully stated, it is ob- servable, that throughout the whole of the V. C. Knight Bruce's able reasoning on the case, he treated it as clear, that the only possible construction, alternative to that of an indefinite failure of issue, was, that the testator, by dying without issue, meant a failure of issue living at the respec- tive deaths of the first takers, or living at the death of the survivor of them. What, it may be asked, is commonly un- derstood by the phrase, '* restricted (or restrictive) construc- tion " ? Is it not, a construction which is broadly distin- guished from an indefinite interpretation, by not exceeding the intelligible boundary of the death of the ancestor ? And (6) See 1 Pow. Dev. by Jarm. (c) 1 Pow. Dcv. by Jarm. 189. 188 n. ; et infra, p. 228. (d) Vide supra, p. 216, 217. Q 2 228 LIMIT ATTONS OF REALTY [on A P. XV. 5. Circum- stance of failure of issue being combined with contin- gency per- sonal to an- cestor. Limitation- over on death in minority, and without issue. Limitation- over on death oAoi'c particular can any construction not limited to tiio ancestor's decease, but i>artlj indefinite, be termed, " restricted ?" And where will be the limit, sliort of the ])eriod of ]>erpetuity, to this inroad upon the peculiar feature and province of the in- definite construction ? 5. Another circumstance, whicJi has the effect of restrict- ing words, importiniz: a failure of issue, to a dying without issue living at the death of the ancestor, is that, of their being associated with a collateral contingency having refer- ence to the age of, or otherwise personal to, the ancestor, (e) Thus, whenever j^roperty is limited to a person, and in the event of his dying imder the Jige of twenty-one, without issue, or, under twenty-one and without issue ; there can be no question, that the failure of issue intended, is a failure coincident only with the non-age of the party referred to ; and such intended coincidency the law c(mstrues to be in- consistent with the construction of an indefinite failure of issue. But this supposed coincidence extends no further than to show, that the Executory limitation is to be depend- ent on the lia])pening of a collateral event, superadded to the dying Avithout issue ; for strict 'principle and analogy would seem to recjuire the construction of an indefinite failure of issue, and a contingent remainder, exj)ectant on the estate- tail, which would be thereby raised, to take effect in the event of the fivilure of issue ha))pening within the specified age. (/) It is, however, undeniably established, that when- ever the failure of issue in (juesticm is combined with a fur- ther contingency, having reference to the death of the ancestor under a specified age, the failure is restricted to that ancestor's death. So, again, it seems, that the confined signification will obtain, whenever a particular age is mentioned in connexion (c) 1 Pow. Dev. by Jarm. 107, 188 ; 2 ib. 573, 57 1. Prior on " Is- sue," 72, 73. (y) Sec the conclusive reasoning of Mr. Jnrman on this point, in 1 Pow. Dev. 188, 189, n. Vide, supra, ]>. 227. SEC. I. SUB. I.J ON FAILURE OF ISSUE. 229 with the Hmltalion on failure of issue, aUhough the failure age, and , • I 1 7 1 1 1 without issue. be not restricted to happen under that age, but expressly refer to a subsequent period, {g) Thus, where {h) real estate was devised to trustees, upon certain trusts for the benefit of the testator's son and daughter, until the son should attain twenty-one, or the daughter should marry ; when the son should attain twenty- one, or the daughter marry, then upon trust to raise a sum of money for the daughter, and subject thereto, in trust for the son until twenty-one ; and when the son should attain twenty-one, in trust for him and his heirs; but in case the son should not live to attain twenty-one, and the daughter should be living at the time of the decease of the son, or in case the son should attain twenty-one, but should afterwards die without leaving lawful issue, then, in trust for the daughter for life, with remainders-over ; and the son attained twenty-one: the Court of C. B., on a case sent from Chancery, certified, that the son took an estate in fee- simple, subject to an Executory devise-over, in case of bis dying without having issue living at his death. In these Ground of cases, the strong inference is, that as death under a partieu- ^tteHas*"" '" lar age has been previously mentioned, and a further con- tingency is added, having reference to the subsequent death of the same person, a restricted failure of issue was intended ; that being the best method of giving full effect to the implied restraint as to the period at which the dying without issue is to take place, (f) Upon the like principle, if the contingency associated Limitation on with that of the failure of issue, be, the death of the ancestor ^^rneX'and unmarried, the restricted construction will obtain, {k) Thus, without issue. where (/) a testator devised leaseholds to trustees, in trust (^r) 2 Pow. Dev. by Jarm. 573. Toml. edit. 195. And see also Hep- Prior on " Issue," 72. worth v. Taylor, 1 Cox, 112 ; Maberly (A) Glover v. Monkhouse, 3 Bing. v. Strode, 3 Ves. 450 ; JDoe d Everett 13. V. Coohe, 7 East, 269 ; Doe d. Bald- (i) Prior on " Issue," 73. win v. Rawding, 2 B. & Aid. 441. (A) 2 Pow. Dev. by Jarm. 574. In the two latter cases, however, the (/) Wilton V. Bayly, 3 Bro. P. C. restricted construction might be re- 230 LIMITATIONS OF REALTY [CIIAP. XV. Limitation- over, on *' not settling the estate " and without issue. But no restric- tive construc- tion arises from association of contingencies of latter kind, at this day. for Ins son J., until his inarri;iai/, 16 East, 67. 8 Sim. 330. Eastman v. Baker, 1 Taunt. 174. (9) Pp. 444, 445. 232 LIMIT \TIONS OF KEALTY [CUAP. XV Limitation on death of B. in life of A., or witliout issue. it is liiglily improbable, tlmt he should mean this benefit to depend upon the eontingeney of the devisee attaining ma- jority ; while, on the other hand, it isA^ery probable, that the testator should intend, in the event of the devisee dying under that age leaving issue, to give him an estate which would devolve ujion the issue; but that, if he attained twenty-one, (the age at which he would ac([uire a disposing competency,) he should take the estate absolutely, i. e. whether he afterwards died leaving issue, or not. The change of or into and, therefore, substitutes a rejusonable for a most unreasonable scheme of disposition." Again, — " the principle in question applies to every case, where the gift- over is to arise in the event of the preceding devisee or leo-atee dying under prescribed circumstances, or leaving an object who would, or, at least, who might take a benefit derivatively through the devisee or legatee, if his interest remained undivested, and to whom, therefore, it is probable, the testator intended directly a benefit, not dependent u]>on the circumstance of the devisee or legatee dying under the prescribed circumstances, or not," And the same learned writer states the principle, upon which the doctrine rests, to be, shortly,—" that where the dying under twenty- one is associated with the event of the devisee leaving an object, who would, if the devisee retained the estate, take an interest derivatively through him, the copulative construction prevails." And this alteration of, " or", into, " and," obtains, also, in the case of a limitation to a person in fee, subject to a gift- over, if he shall die in the lifetime of another, or without issue, (r) Thus, where (s) there was a devise to A. for life, with remainder to B. and her heirs, but if B. died before A., or if she died icithmd heirs of her body, then to C. and his heirs ; it was held, that the devise-over to C. could only (r) iJaru). Wills, 146. 2 East, :!()«. Ami sec Wriyht d, (s) Venn d. WUkins v. Ktmeys, liurrill v. Kimp, 3 T. R. 470. SEC. I. — SUB. I.] ON FAILITUE OF ISSUE. 233 take effect, if B. died before A., and without issue, for that unless or were read as aiid, the devisee-over would take if B. died before A., although B. left issue ; and that would clearly be against the apparent intent of the devisor, which was, to prefer the issue of B. to C. Again, the construction in question has been admitted in Limitation on the before-mentioned case, (f) of a devise of estates to A. oursettlliiff the and his heirs, but if he should die without settling or dis- ^^ute," or ^ ^ without issue. -posing of the same, or without issue, then, over ; in regard to which, it was held by the Court of B. R., that the devise- over failed on A.'s disposing of the property, although he subsequently died without issue. And so, also, the same rule was acted upon in a recent Limitation on case, where (?/) there was a devise to trustees, to the use of twentv"thn;e the testator's son, if he should attain twenty-three, or should "r ^^"'^ ">*"■- •^ ned with con- be married with the consent of the trustees, which should sent, without first happen, in fee ; and in case he should die without at- taining twenty-three, or, being married tvith such consent as aforesaid, should die without leaving lawful issue, or such issue should die under twenty-one, then, over ; the son married with consent under twenty-three : and it was held, that the son could make a good title to an estate in fee- simple. It is observable, that this constructive change of, " or," into, Ruie restrict- *' and," and also the rule which gives a restricted construe- '"^ failure on . ground of tion to words importing a failure of issue, by reason of their association . . . , 11 1 • 1 , ^jf'' collateral association with a collateral contingency personal to the contingencies, ancestor, obtain, as well in cases, where the construction of changing "or" an indefinite failure of issue would have the effect of raisins: '"to"and," " obtain, though an estate-tail by implication, which would validate the sub- contrary sequent gifts, as where that construction, on account of its tion would not so operating, would, simply, render the ulterior limitations [^ir ^^***^' void for remoteness. {t) Beachcroft v. Broome, 4 T. R. (?<) Grimshaw v. Pickup, reported 441. And SCO also Green v. Harvey, in 3 Jur. 28G. 1 Hare, 428, as to personal estate. 234 LIMITATIONS OF REALTY [chap. XV. 6. Circum- stanco of gift- over being intrculuied by words — " iifter liis tlccoase," or thu like. No nctndJ (Ircision has admittod force of these ex- jiressions as to liinitations of realty. Case of Doe d. Kinropcrty of the heir-at-law, stibject to such le- gacies as W. F. might leave by will, to any of the younger branches of the family. It was held, that W. F. took an estate in fee, subject to an Executory devise-over, in the event of his death, without leaving issue living at that time. It has l)(>en before seen, that this decision is, in a great degree, to be referred to the circumstance of the charge of legacies. (,v) 3 B. & Aid. 046. SEC. I. SUB. I.] ON FAILURE OF ISSUE. 235 subject to which the ulterior limitation was made. But it is clear, that the words, " on the decease," by which the gift- over was introduced, must be considered as having, in some measure, influenced the decision, for Holroyd, J., referred to that expression, as of some importance in putting a construc- tion upon the limitations. The case cannot, however, be treated as even approaching to a decision upon the effect of the words in question ; for it does not appear, that they were urged in the argument at the bar, or by the other judges, as warranting the limited construction adopted by the Court. The other case, referred to, is that of Robinson v. Grey (w) Case of Bobin- , , , . . son V. Grev. where there was a devise to a trustee, in trust to pay the rents and profits, to the testatrix's three daughters, and the survivor of them, for their respective lives, share and share alike ; and after their decease, the property to be in trust for the ciiildren of the said three daughters, who should be living at the death of the survivor of the said daughters, share and share alike, as tenants in common (without any words of limitation) : but if all the said daughters should die without leaving issue, then after the decease of the survivor of the said daughters, in trust for the testatrix's grandson, W. R., his heirs and assigns for ever. On a case from Chancery, the Court of B. R. certified, that the testatrix's daughters took estates for their lives, and that such of their children, as should be living at the death of the survivor of the daughters, would take estates in fee, as tenants in common. To have Observations arrived at this conclusion, it is evident, that the judges must y.^Gw" ""*"* have discarded the construction of an indefinite failure of issue, for the application of such a constrviction would have had the effect of raising estates-tail by implication in the testator's daughters, in remainder expectant on the deter- mination of the life-estates of their children. A restricted construction, on the other hand, operated in this manner : — the testator, by giving over the property in fee, in the event {^tv) 9 East, i. 236 LIMITATIONS OF REALTY [cllAP. XV. of adofault of children of his daughters, Hvingat the time of the decease of the survivor of those daughters, plainly im- j)lied, that if any grandchildren outlived the survivor of the daughters, such grandchildren should take the fee; as the con- struction of their taking only life-interests would make it per- fectly immaterial, at what period their deceases should take place, and would, therefore, render nugatory any provison, contemplating the deaths of the daughters' children under particular circumstances ; reasoning similar to that, which •rives the fee to a person under a devise to him indefinitely, with a subsequent limitation-over, in the event of his death under twenty-one, or other specified age. To give full effect, consequently, to the limitation on the contingency of a failure of the testator's grandchildren, the Court, having de- termined upon the construction of a restricted failure, would give effect to that construction, by holding the grandchildren livino; at the decease of the survivor of the daughters, entitled in fee-simple ; which was the decision actually pronounced. This, it is conceived, is the true character of the adjudication referred to ; {x) and it has been here considered, for the pur- pose of showing, that Ruhinson v. Grey must be regarded as an authority in favor of the restricted foilure of issue ; but whether, or to what extent, that construction is to be referred to the words, " after the decease, &c.," introducing the ulterior gift, it may be difficult to say. Case of WaUf Opposed to these two authorities, are two others, of the following description. In Walter v. Drew, (y) a testator devised, that if W., his eldest son and heir-at-law, should happen to die, and leave no issue of his body lawfully be- gotten, then and in that case, and not otherwise, after the death of the said VV., the testator's lands of inheritance should be to R. in fee: and it was held, that W. took an estate-tail ; of course, upon the ground of the failure being (x) Sec the arguments in llutchhi- as to the nature of this decision. son V. SUjihuis, 1 Keen, '244, "245, (ij) 1 Com. 373. V. Drew. SEC. I. SUB. I.] ON FAILURE OF ISSUE. 237 unrestricted. In Doe d. Cock v. Cooper, (;i') there was a Case of Doe d. devise of lands, to th(^ testator's nephew, R. C, for his Hfe, " ' ' *^^^' and after his decase, to the lawful issue of the said R. C, as tenants in common ; but in case the said R. C. should die without leaving lawful issue, then, after his decease, to G. II. in fee : and it was held in B. R., that R. C took an estate- tail, to accomplish the general intention, and by implication from the words, " in case R. C. shall die without leaving issue." In neither of these last-mentioned cases docs it appear, Observations that the question of the force of the words referring to the Cock v. CWer. decease of the ancestor, in the gift-over, was at all presented to the notice of the judges. In the latter of the two, indeed, the construction of an estate-tail in the first taker obtained, independently of the limitation on failure of his issue ; although that gift was urged in favor of his taking an estate- tail. The only effect, therefore, of a limited interpretation of the words importing failure of issue, would have been, to give place to the ulterior limitation as a remainder, continge7it on the event of the death of the tenant in tail, without issue living at that time; and, as has been properly said, {a) it could hardly be contended, that the words, " after his decease," sufficed for that purpose; especially, as the indefinite construc- tion would have the advantage of making the ulterior limi- tation a remainder, to arise on the determination of the preceding estate-tail at any time. It must be admitted, therefore, that Doe d. Cock v. Cooper forms no very im- portant authority against the restrictive construction under consideration ; although, as supported by Walter v. Dreiv, it may, perhaps, be considered of some weight and con- sideration upon the point. It remains to notice the case of Dimk v. Fenner, {h) Case of Dunk recently cited and observed upon at some length, (c) In observa^bnT that case, it will be remembered, the Court adopted the "P°° **• (2) 1 East, 229. (6) 2 Russ. & My, 557. (a) 2 Pow. Dev. by Jarm. 582, n. (c) Vide supra, p. 200, et seq. 238 LIMITATIONS OF RF.AT.TY [ciIAP. XV. construction of an indefinite failure of issnc, as regards both the real and pei-sonal estate, notwithstanding that the words, " after her decease," occurred in the uUerior depositions, in reference to the person, on the faihire of whose issue they were to take effect ; and yet tliat, at the same time, some of the gifts so made vvcre held valid, as dej)ending only on the decease of the first taker. This decision, it must be confessed, is utterly incomprehensible on any other ground, than that, where expressions, referring to the decease of the first taker, occur in or after a limitation-over on his death without issue, such expressions may be attended to, so far as to be allowed to give effect to the ulterior gifts, if at the time of the first taker's death there are no issue, but that the words in ques- tion cannot have the force of restricting the faihu-e of issue itself to that period. For a doctrine of this kind, there might, perhaps, be some show of argument. But Dunk v. Fenner cannot be supported upon any such ground. For the ulterior gifts of the corpus of the personal estate were in that case held to be void ; and, as to the realty, it was decided, that the subsequent limitations took effect as re- mainders ; of course, on a similar ground. The result of the decision, therefore, was this : that the failure of issue contemplated was indefinite ; that certain bequests of lega- cies which were not to take effect, except in the event of default of issue, were, nevertheless, good, because, as to them, the failure was restricted to the death of the first taker; while the gifts of the cm-pus of the personalty, whereout those legacies were to be satisfied, and which were to take effect in the very same event, were void, as too remote. To say, that such a decision is not referrible to or explicable by any rule or principle of legal construction, applicable to a single scheme of disposition, complete in itself, and evincing one uniform intention, appears to be almost superfluous. But when to this consideration, is added, that, of the gifts of the corpus of the property expressly referring to the event on which the legacies depended, as coincident with that on SEC. I. — SUB. I.] ON FAILURE OF ISSUE. 239 which the former were to arise, room is left for no other supposition, than, that the extraordinary character of the decision is to be attributed to the apparent circumstance, of no argument having been addressed to the Court, upon the point of the remoteness of the gifts of the legacies. Had such a view of the case been pressed, there can be little doubt, that cither the bequests of the legacies would have been held too remote, in accordance with the principle of construction adopted in reference to all the other gifts ; or, that the Court would have harmonized the interpretation, by holding, that all the ulterior gifts depended upon one, namely, a restricted, failure of issue, and that, therefore, as to both realty and personalty, they were good Executory limitations. At all events, it may be affirmed, thai Dunk v. Fenner is an authority of no very decisive character, upon the force belonging to the expression, " after his decease," or the like, in regard to the construction to be put upon words importing a failure of issue. Here, it may be observed, that where the words, " after AVords " after his decease as his decease," &c., occur merely as a referential expression, aforesaid" and are not themselves used to introduce the limitation ^^^""^^f/^x! depending on the failure of issue, they, without doubt, have pression only. no force, in relation to the extent or character of that failure. Thus, where (b) there was a gift by will, in case the testator's daughter, M., should die without issue, and subse- quent gifts were made, " after her decease in manner afore- said ;" it was held, that those words must be construed to refer to the daughter's decease without issue, and, therefore, to mean, after the failure of issue at any time. Upon the whole, it must be observed, that no sufficient Observations as ^ T 1 • • £■ **' present state authority at present exists, for extending the restnctive force of the law, of the words, " after his decease," or the like, to limitations Srof"" after of real estate, however well established the rule, in regard ^'^ '^5^''*?^^;"^^ to similar gifts of personalty. That the inference arising realty. (rf) Green v. Rod, Fitzg. 08 ; cited 3 Atk. 289. 240 LIMITATIONS OF REALTY [CIIAP. XV. 7. Circum- stance of f.'ift liavinfT refer- ence to prior limitation on failure of issue, clearly restricted. from such expressions in favor of a confined signification of words imporlinG!; a failiu-c of issue, is c(|nally strong, what- ever the nature of the subject-matter of the gift, is plain ; and it is by no means clear, that that presumption will be restricted to limitations of jicrsonal property, should occa- sion arise for an actual adjudication on the cjuestion. If that course be adopted, however, the reason of the difference of construction must be sought for, in the greater facility with which the Courts are accustomed to admit the restric- tive interpretation, in respect to limitations of real, than of personal, estate. 7. Another circumstance, sometimes restrictive of words primarily importing a general failure of issue, is that, of the particular gift in reference to which the question arises, oc- curing subsequently to another, which is, either expressly, or by legal implication from accompanying expressions or circumstances, to take effect upon a dying without issue living at the death of the ancestor, (e) This ride is founded on a presumption, that when an event of the same character is contemplated in two distinct gifts, the author of the limi- tations also had in his mind an accordance in (what may be termed) the adjuncts or accessories of the contingency ; and that any difference in the expressions used is to be referred to the very common and natural tendency, to speak less precisely, or more summarily, on a subject, or of an event, previously particularised : or if the first mention of the con- tingency be not, in itself, technical and definite, but derive its ])articular purport from accompanying ex])ressions, or cir- cimistances extrinsic, as that boiTowed or accidental precision proceeds from a presumed intention (not less clear, because informally evinced, or incidentally educed,) the recurring expression of a similar contingency, in general terms, is entitled to or demands a similar interpretation, although it may not be assisted by the like incidental manifestations (e) See Prior on " Issue," 90, et seq. SEC. I. SUB, I.] ON FAILURE OF ISSUE. 241 of intention ; in other words, the rule, noscitur a sociis, has glace. It may suffice to mention one case, in which this referential Case of Rad- construction has obtained. Thus, in the late case oi Radford V. Radfordy (/) there was a devise of freehold and leasehold estates, to A. and B., as tenants in common, and the heirs of the body and bodies of the said A. and B., as tenants in common, and if either of them should die without leaving issue, then, as to the share of such of them as should so die without issue as aforesaid, to the use of the survivor of them, the said A. and B., and the heirs of his body ; and in case both of them should die without issue of his or their body or bodies, then, to the use of C. for life, with remainder, to trustees to preserve, &c., and divers remainders-over: and it was held, that the limitation to the survivor was a good limitation by way of Executory devise; that by the word, " issue," in the succeeding clause, the testator intended, such issue as were to take under the prior limitation; and that, consequently, the limitation-over to C. was not too remote. In the application of the rule under consideration, it is ma- Caution requi- nifest, very great caution is requisite ; else, the mere circum- site, m the stance, that in one part of an instrument, a restricted failure this doctrine. of issue is, either expressly or by implication, contemplated, might be deemed sufficient to rebut any other construction, however deficient the grounds for a limited construction, or adverse the inclination and rules of legal interpretation. One limit to the application of this doctrine seems to be. Referential that the limitation, which is the subject of the supposed re- be subsequent ferential construction, should be posterior in order, to that *P *^*** \^^^'"S ' i: 'the construc- which is to lead the interpretation. Without this, settled t'on- rules of construction would be open to unlimited interference, and groundless intrusion ; and in default of this, that which yf) 1 Keen, 486. And see the vide Lepine v. Ferard, 2 Russ. & previous cases of Sheppard v. Les- My. 378, but Sir J. Leach and Lord singham, Kxah\. 122; Kirkpatrich \. ^roi/^/iam differed, as to the construe- Kirkpatrick, 13 Ves. 476; Morse v. tion of the failure first mentioned. Lord Ormonde, 1 Russ. 382. Sed 242 LIMITATIONS OF RKALTY [chap. XV. As between prior express and implied restriction of failure, latter more favorable to referential construction. And doctrine more readily af)piied to cross-limita- tions, with subsequent •jift-over, on failure of issue of all the objects of prior gift. is the whole and sole basis of the doctrine fails ; and this, in its tnrn, becomes snbject to qnestion, as resting on no solid or rational foundation, by reason of its extension to cases, which cannot share with it a common principle of operation. Again, it would appear, that there is more ground for the applicadon of the doctrine in question, when the failure of issue first mentioned is only, constnictiveli), restrained to the death of die ancestor, than when that failure is, by express terms, so restricted ; for, in the latter case, there will, ge- nerally, be such a marked difference in the expressions used, as almost to give rise to the presumption, that two kinds of dying without issue were intended, (g) When, however, the restriction of the first failure proceeds from implication, grounded on accompanying expressions or extrinsic circum- stances, the deficiency in preciseness of the contingency subsequently contemplated, raises no presumption as to an intended distinction in the character of the respective events. Further, it should seem, that this rule more easily applies to cases, where the first gift, on a dying without issue, is to one or more of two or more persons taking under a prior limitation, in the event of the death of either without issue, and tlie subsequent gift is on failure of issue oiall the objects of the previous limitation. (A) Here, a strong presumption arises, that the author of the gifts intended a coincidence between the event, on which the cross-Umitation was to de- pend, and that, on which the ulterior gift-over was to take effect. And in this case, the referential construction seems better founded, because of the relationship which exists be- tween the gifts depending on the respective failures, and, also, because of the closer contact into which the two limita- tions in (jucstion are, generally, brought, when they actually occur. Nor does the influence of these considerations appear (p) See, •'to which others will suggest themselves to the reader, of various force restrictive lorcG IS and import, which do not admit of regular classification, denied. (s) See 2 Pow Dev. by Jarm. 654. See also Doe v. Lucraft, ubi 567. supra, (t) Sanford v. Lhy, 3 B. & Aid. 250 MMITATIOXS OK UEALTY [ciIAP. XV. Any words whicli lumiiiljiguously iiulicatc an intention in the author of the gilt, to confine the t'aihjre of issue on which the estate is given over, to a dying without issue hving at the death of the first taker, will be sufficient to rebut the construction of an indefinite faihire of issue. Words " then,' jJut thesc words or expressions must be clear and definite, or, " imnicdi- . . • i ,• i /• i » i i atcly there- as pointing to the specific period or the iirst taker s ueatii. upon.' ^^^^ therefore, in general, mere adverbs of time will not suffice for this purpose, as they are ca])able of being referred to the happening of the specified event, however remote, and do not, necessarily and exclusively, point to the particular period of the first taker's death. Thus, if there be a limi- tation to A., and his heirs, and in the event of his dying without issue, the7i, or immediately/ thereupon, to ]5. ; there is no question, that the ulterior gift is void, {u) But such adverbs, when used conjointly with any other expressions, which aid the construction of a restricted failure of issue, will be of weight, in putting an interpretation upon the limitations. «' After liim." Again, it is clear, that the expression, " after him," in a gift-over on failure of issue of the first-taker, will not have the effect of controlling that failure to the time of his death, (u) liimitation of In reference to all the foregoing rules and distinctions, it uncntailahle . i i i • ,' i i • r i i* • • copyholds, IS to be remarked, that it the subject-matter ot the limitation faCeoTi'ssuc^ ^-'^ ^^"^ of co/)////oW tenure, and the custom of the manor do how construed, i^^j admit of the creation of direct entails, any gift which, in the case of freehold property, would confer, by implica- tion or otherwise, an estate-tail, has the effect of creating a conditional fee in copyholds. Thus, in a recent case, (w) copyhold lands held of the manor of K., in which there is no custom to entail, were devised to J. S., and his heirs, («) Sec Beauchrk v. Dormer, 2 S. C. 19 Ves. 545. Atk. 308. Biffr/e v. Bensley, I Bro. {w) Doc A. Bksard v. Simpson, 4 C. C. 187. " Bing. N. S. :3:3:3— :M(l ; -J Scott, N. (v) DnH>, V. P,H,u/. 1 Mer. -2(1 ; S. 774. SEC. I. — SUB. I.J ON FAILURE OF ISSUE. 251 but if he should die without leaving any child or children, then to M. B., and her heirs : and the Court of C. B. decided, that a fee-conditional passed to J. S. ; and that, as the fee-conditional had merged in the possibility of reverter, which had descended to J. S., (the consequence of the construction being, that the gift to M. B. was void, as limited after a fee,) as heir of the devisor, he had become seised of a fee-simple absolute. In the case of a similar Umitation of freeholds, it will be remembered, J. S. would have taken an estate-tail, with remainder, to M. B, in fee ; the word, " children," being construed, " issue." It is, further, established, that the circumstance, of property Restricted con- . „ ., struction will comprised in a limitation being of the tenure ot unentail- not be induced able copyhold, will not induce a Court of law to construe s^ice'^Ta words, primarily importing a general failure of issue, as copyhold not referring to a failure at the death, so as to enable the ulterior able, and of gift to take effect as an Executory limitation ; but that, invalidity of whatever construction would be put on the words in ques- "^^enor gift. tion, if applied to a limitation of freehold lands, will also hold in regard to a similar gift of copyholds, although the conse- quence be, the invalidity of the ulterior limitation, by reason of no remainder being allowable after a conditional fee. {x) The various rules and distinctions which have been here General ob- noticed, in reference to a restricted construction of words, ^s to appl'lca- importing a failure of issue, can be considered only as bear- f^j.^^^^^^ ing upon limitations in wills, so far as their extension to rules and , . distinctions to instruments ijiter vivos depends upon express authority, limitations in The greater precision and technicality, observed in limita- tions in deeds, have, in some degree, rendered practically unnecessary, the consideration as to them, of the question of the construction to be put upon words of doubtful import, in reference to a failure of issue, or of the force to be attributed to accompanying expressions, and circumstances dehors the gift. Nor is it possible to affirm, that there is au appli- cability of all authorities upon the construction of testamen- (.1') Doe d. Bhsitrd v. Simpson, ubi supra. 252 LIMITATIONS OF REALTY [CHAP. XV. tary limitations, to similar gifts in deeds, for the broad dis- tinction between the two classes of instruments, in regard to all questions of construction, precludes the supposition, that the inclination to give effect to informal and obscure exhi- bitions of intention, on the part of testators, would, to any considerable extent, be sliown, to similar indications in in- struments inter vivos. Indeed, the presumption is, that unless the intention in favor of a restricted failure were manifested so strongly, as to render a different interpretation, an instrument of violence to plain language and express provision, the Courts would always adhere to the con- struction favored by antecedent inclination of law, not- withstanding the existence of circumstances, which, in the case of testamentary dispositions, would restrict the failure, to the death of the ancestor. Any case that may arise, upon the restrictive force of either of the expressions or circumstances above considered, in reference to limita- tions in deeds, will, the writer believes, be one almost jjrimce impressionis ; and it would, therefore, be rash, to speculate upon the probable weight that might be attached to any particular circumstance or expression, as connected with a limitation, by instrument inter vivos, to take effect on failure of issue, either of a prior taker, or of a stranger. Limitation to It may be observed here, in fine of this branch of our ifeVrs^of iiiT subject, that if land be given to a person, and the heirs of body, and if he his bodv, with a limitation-over in the event of his dying leave no issue '' at his death, without issue living at his death, the ulterior gift does not operate as a conditional limitation, partially defeating or suspending the first estate-tail, but as a contingent re- mainder, to take effect in possession, if the first-taker leave no issue at his death. (//) Of course, where the word, " leaving," only, is used in the limitation-over, no question can exist as to its character ; as, in the case of real estate, that word simply refers to the failure of the issue inheritable to the entail. (y) See Wright \\ Pearson, kmh\. gift, in Doe d. Ehey, \ East, 313; 358 ; and an instance of this i'=> p • ^'^ authorities, seems to be, that the Courts will lay hold of any circum- as to inaccu- stances, whether arising on the will itself, or extnnsic to it, ^^ contingen- affording a reasonable presumption, that the testator, in J^^'^^^'VJ^^jf^* using words which, abstractedly considered, refer to an in- pond. definite failure of issue, contemplated only a failure of the issue inheritable to the subsisting estate-tail ; and, upon the strength of those circumstances, will support the devise, as a disposition of the reversion, to take effect in the event, upon which it will come into possession, (r) It is to be observed, in reference to those cases, where There can be no objection to the issue referred to in the will are more extensive, those restricting entitled under the estate-tail, only in the respect of their ^contingency {q) See the observations of Lord Jones, in his Treatise on Wills, vol. Eldon, on Bankcsv. Holme, in 1 Russ. 2, p. 411 — 413. 406, 407 ; and, also, of Mr. Jarma7i, (r) See 2 Jarm. Wills, 413. on the same case, and Egerton v. 2G4 I^nriTATIONS OF REALTY [CIIAP. XV failure of issue taking under entail, as afjainst issue of subsequent marriage, as birth of such issue revokes the will. As to cases, where there are issue living, of marriage prior to that, the issue of which are inheritable to the estate- tail. not being confined to a particular marriage, no objection can proi)erly be taken to a restriction of the issue men- tioned, to the class inheritable to the entail, on the ground of the testator being thereby made to exclude or disinherit issue of a subsequent marriage, for such subsequent marriage, cither alone, or together with the birth of issue, (according as the will is, or is not, governed by the statute, 1 Vict. c. 2G,) will operate to revoke the will, by mere o])eration of law. Indeed, it may even be said, with a late writer, (s) that the principle, on which the cases, confining tlie failure con- templated, to the issue of the marriage on which the settle- ment was made, were decided, " is only an extension of that, on which the rule of implied revocation is founded, viz., that a testivtor, in making his will, has not the idea of future marriage and birth of issue in contemplation, and does not intend to provide for that event." This suggests an inquiry, to which decided cases do not, as yet, enable us to return a decisive answer, viz., whether tlie rule, which, in the case of a testator disposing of a re- version expectant on an estate-tail, descendible to issue of a particular marriage, refers expressions, primarily signifying a failure of general issue, to a default of the particular line of issue inheritable to the entail, will be extended to cases, where there are issue of a prior marriage in existence, and who are within the scope of the contingency contemplated by the testator, as expressed upon the face of the will. Now, it is obvious, at once, that there is a broad and in- telligible distinction between these two cases : when there arc no issue living, but such as can claim under the sub- sisting estate-tail, every consideration is favorable to the presumj)tion, that no future marriage, nor issue of such marriage, was in contemplation ; but, in the case of the existence of issue by a prior marriage, not in the line of succession to the supposed estate-tail, it seems extremely (s ) Prior on " Is>suc," 99. SEC. I. — StTB. II.] ON FAILURK OF ISSUE. 265 difficult, to conceive the possibility of an intention in the testator, that the property should <^o over to his devisees, on failure of issue by his then wife, without any reference to his other issue previously born : every presumption militates against such a notion ; while (ex hijpothesi) the language of the testator is not agreeable to it ; and its injurious results are, at the same time, not remedied by the rule as to implied revocations of wills, which serves that end, in the case of subsequent marriage and birth of issue. It seems, then, apart from authority, an inevitable conclusion, that, in the case supposed, the failure of issue contemplated cannot be referred solely to that line of issue, which is in the order of succession to the estate-tail, but must be held to refer to issue of the testator by any mamage ; under which con- struction, the devises will, of course, be void for remoteness. And, upon similar grounds, if, at the date of the will. And where there are issue living, of a marriage subsequent to that, the \Wmcr of mar- issue of which are inheritable to the existing estate-tail, it "^^'^ *"^" '-' sequent to seems impossible, to exclude such issue from the contin- that, the issue , . . 1 . 1 • r< • 1 1 1 of which are gency, as not bemg m contemplation ; and, it included, entitled under the devise cannot have reference solely to the reversion ; * ^ *^"*^' * and if the devise be not a disposition of the reversion, and of the reversion, simply, it must, in the supposed case, be void for remoteness ; for, quoad such of the issue referred to as are not entitled under the entail, the limitation is, in fact, dependent on an indefinite failure of issue, unsup- ported by an estate-tail, and is, consequently, invalid. Lastly, it must be remarked, that if the failure of issue if failure of expressed in the will, be less extensive than that which is tion^'d"'^"" 11 requisite for determinins; the estate-tail, and ffivino; effect ^''«* extensive ^ . ^ , ' & D ^ than that to the reversion, there can, it should seem, be no question which deter- as to the validity of the limitations, {t) Certainly, there y^t devise, ' can be none, as to the point of remoteness, if only it be ".: ^ ^}^ 'I 'J position of established, that the devise may take effect as a disposition revcrsiou. (<) See Prior on " Issue," 98, 266 LIMITATIONS OF REALTY [CIIAP. XV. As to limita- tions of reversions, in deeds. of the reversion ; and it appears to be no impediment to sueh an operation of the devise, that the happening of the contin- gency expressed may, possibly, not suffice to bring the reversionary interest into possession. Clearly, the reversion would be well disposed of, without the express mention of any contingency, as that on which it depended, and would, moreover, effectually pass by any residuary gift, were the limitations not inconsistent with such a supposition ; and it would, therefore, be alike unnecessary and inconsequential, that the deficient specification of the contingency shouKl operate to prevent the reversion passing, if the reference to the particular subject-matter were unambiguous ; or should, as a consequence of the devise not taking effect as a dis- position of the reversion, expose that devise to the objection of remoteness. It is to be observed, that the rule, which protects limita- tions after a general failure of issue, when the contingency is referrible to the determination of prior estates-Uiil, has not, as yet, been authoritatively extended to gifts in in- struments inter vivos; and it may, perhaps, be questioned, whether, if nothing appeared on the face of the deed, to show that the interest limited was reversionary, a Court would consider itself warranted, in travelling out of the deed, and looking at circumstances extrinsic, for the pur- pose of ascertaining that such is the fact. It should seem, however, that if the instrument itself showed, either by express recital, or otherwise, that the property was held only in reversion expectant on subsisting estates-tail, words of contingency, referring to a fjiilure of the issue taking under the entail, would be regarded as, simply, words of description of the grantor's interest. But it is improbable, that any inaccuracy, in the mention of the contingency, would be cured, as in the case of wills, supposing the failure of issue, referred to by the deed, to be more extensive than that which will determine the estate-tail ; and, in such case, therefore, the limitations would be void for remoteness. SEC. I. — SUB. II.] ON FAILURE OF ISSUE. 267 2. A second ground of exception to the rule, invalidat- 2. Subject- ing limitations on a general failure of issue, is afforded by being partial the circumstance, of the subject-matter of the gift being a capabiJof limited or partial estate or interest, which must, of necessity, continuance . . . beyond determine before the expiration of the period prescribed allowed limits. by the Rule against Perpetuities. This, at least, is the general opinion. It will be proper, however, to postpone the consideration of the points arising on this branch of the subject, until the fitting occasion for its introduction, in connexion with all other classes of limitations within the range of the Rule against Perpetuities. The doctrine is only glanced at here, as necessarily included in the rules of exception at present under notice. 3. The third and only remaining exception from the 3. Interests rule, rendering void gifts of realty on a general failure of base-fee, issue, is one of a very peculiar character. It may be well d<^term:nable to preface its consideration by a few observations. issue, arising by matter ex The subject bears affinity to the doctrine of base-fees, post facto. It will occur to the reader, that in the ordinary case of a tenant in tail levying a fine, or (under the modern system) executing a disentailing assurance, without the consent of the protector, and thereby acquiring a base-fee, determin- able on failure of his issue, there never can be any danger of violation of the laws against perpetuity, inasmuch as the tenant in tail and his issue still retain the power of destroy- ing the remainders and reversion, in virtue of the imaginary scintilla of right which resides in them, notwithstanding they may have effectually parted with all beneficial enjoyment of the property. It is true, this consequence of the statutory power of barring entails by fine, was in direct opposition to the rule of the Common law, which prohibited the limita- tion of a fee upon a fee ; (r) but, still, so far as any question of remoteness is involved, it is clear, that the existence of rights (r) See Hayes Conv. 118. 268 LIMITATIONS OF REALTY. [CIIAP. XV. in the nature of" remainders and reversions, after base-fees created out of estates-tail, is entirely free from objeetion. Hut, thougli the defcasibleness of remainders and rever- sions expectant on these base-fees rendered them unobjec- tionable in point of remoteness, it ever was, and still is, an undeniable rule of law, that an estate, analogous to a base- fee, cannot be expressly limited in a deed, with an express nlterior Hinitation, on the happening of the event, which is to determine the first fee, or on any other contingency. The rule of the Common law, which did not permit the limita- tion of a fee after or upon a previous fee, to use the lan- guage of Lord Coke, (s) had regard to the " ampleness and greatness of the estate, and not to the perdurableness of the same ;" whereby a " diversity appeared between the quantity and (pialily of the estate." In this latter case, therefore, no question of perpetuity could arise ; for the Common law rule adjudged the supposed limitations void, upon a ground wholly independent of any such question. And this leads us to the point for observation, which is, that, Although by express " act of the party," no estate can be limited upon the determination of a base-fee previously granted, it may haj)pen, that by matter ex post facto, a base-fee, determinable upon the general failure of issue of a person, and a future expectancy or right of reverter in absolute fee-simple, may co-exist in the same property, the latter being, at the same time, indestructible by the Lord Cohe% owner of the base-fee, or any other person. The nature of this rule. this rule will appear from the following observations of Lord Coke, who, in commenting upon the position of Littleton^ — that a man cannot have a larger or greater estate of inheritance than fee-simj)le, — and after remarking, that this rule extended, as well to fees-conditional and qualified, as to fee-simples pure and absolute, says (^) : — "For this cause, (s) Co. Liu. 1« a. (0 Co. Litt. 18 a. SEC. I. — SUB. II.] ON FAILURE OF ISSUE. 269 two fee-simplcs absolute cannot be of one and the self-same land. If the king make a gift in tail, and the donee is attainted of treason, in this case, the king hath not two fee- simples in him, viz., the ancient reversion in fee, and a fee- simple determinable upon the dying without issue of tenant in tail, but both of them are consolidated and joined together. And so it is, if such a tenant in tail doth convey the land to the king, his heirs and successors, the king hath but one estate in fee-simple united in him, and the king's grant of one estate is good, and so it was adjudged in the Court of Common Pleas. And yet in several persons, by act in lata, a reversion may be in fee-simple, in one, and a fee-simple determinable, in another, by matter ex post facto ; as, if a gift in tail be made to a villein, and the lord enter, the lord hath a fee-simple qualified, and the donor, a reversion in fee. But if the lord enfeoff the donor, now both fee-simples are united, and he hath but one fee-simple in him. But one fee-simple cannot depend upon another, by the grant of the party : as, if lands be given to A., and his heirs, (m) so long as B. hath heirs of his body, the remainder-over in fee, the remainder is void." And, again, in allusion to Littleton's rule, that where a villein purchaseth land in fee -simple, or in fee-tail, the lord of the villein may enter into the land, and oust the villein, and his heirs, for ever. Lord Coke re- marks (y) : — " By this it is apparent, that if lands be given to a villein, and the heirs of his body, the lord may enter and put out the villein, and the heirs of his body ; for quicquid acquiritur servo acqiiiritur domino. And in this case, the lord gains a fee-simple, determinable upon the dying of the villein without heir of his body ; and the absolute fee-simple remaineth still in the donor. And if the lord enter, and, after, infranchise the donee, and, after, the donee hath issue, yet that issue shall never have remedy, either hy forme don or entry, to recover this land, by force of the statute of do?iis (m) Tlie words, atid his heirs, arc (v) Co. Litt. 117 a. properly supplied by Mr. Hargrave. 270 LIMITATIONS OF REALTY [CIIAP. XV. Recent cases bearing upon the doctrine. Case of Bad- ham V. Mte. conditionalibus ; for that statute glvcth remedy to the issues of the donee, that have capacity and power to take and re- tain such a gift ; and the title of the lord remains, as it did at the Common law, for the statute restraineth acts done only by the tenant in tail. And so it is, if lands be given to an alien, and the heirs of his body, upon office-found, the land is seised for the king, afterwards, the king makes the alien a denizen, who hath issue and dieth, the king shall detain the land against the issue." To the case here put by Lord Coke, is to be added that, (also hinted at by him,) of a forfeiture of an estate-tail for treason ; where the crown becomes entitled to an estate in fee, determinable on failure of issue of the tenant in tail, upon which the possibility of reverter in fee is expectant. But this rule has received peculiar exemplification in several recent cases, which have occurred in reference to the effect of bankruptcy and insolvency upon powers of ap- pointment, and in which, conflicting decisions were given, as to the point under notice, though the principle of Lord Cokes position was ultimately adhered to. In Bad/tain v. Mee, {w) R. M. made a settlement of real estate, to the use (subject to a prior term) of himself for life, with remainder, to trustees, to preserve contingent re- mainders, with remainder, to the intent, that M. D., inten- ded wife of R. M., might receive a rent-charge for her life, with remainder, to trustees, for a term of six-hundred years, and subject thereto, to the use of the sons of R. M., by M. I)., as R. M. should by deed or will appoint, and in default of appointment, to the use of the first and other sons suc- cessively in tail general, with remainder, to the right heirs of R. M. R. M. subsequently became bankrupt, and the acting commissioners executed the usual bargain and sale, to the assignees under the bankruptcy, who sold the bankrupt's interest in the property, to one P. M. Many years after- wards, R. M. exercised the poiver contained in the settle- (w) 7 Bing. 695 ; 1 My. & K. 32. SEC. I. — SUB. II.] ON FAILURE OF ISSUE. 271 mcnt, by appointing the property to his eldest son in fee. A bill was filed for ascertaining the rights of the parties, a child of the appointee being plaintiff, and persons claiming under P. M., defendants. A case was sent to the Court of C. B., upon the effect of the appointment made by R. M. ; and the Court certified, that the son of R. M. did not take a7iy estate in the property under the deed of appointmetit, but that, under the original settlement, he took an estate-tail, in remainder expectant on the determination of the life- estate of his father. On return of the certificate, it was argued, against its confirmation, that although a fee mounted upon a fee was not allowable, yet, there was no objection to appointing an estate in fee, which might, under certain cir- cumstances, become iticonsistent with a remainder-over, but which, until those circumstances arose, was perfectly good. Sir Joh7i Leach, M. R., after remarking, that the omission of the Judges to assign reasons for their opinions prevented its being known, upon what grounds their certificate rested, {x) observed, that it was ** conjectured, from an ob- servation made by one of the judges in the course of the argument, that the Court of Common Pleas decided against the validity of the appointment, upon the ground, that by (ar) The writer cannot forbear in- of a Court of law upon the point in troducing (however inapt the occa- question ; not, indeed, that such sion,) the following just and forcible opinion is to be treated as a decision, remarks of Sir John Leach, to which but in order that the Court of Equity allusion is made in the text : — " The may be assisted in forming its judg- practice of the Courts of Common ment. It might well be expected, law, not to assign the reasons of their therefore, that the Court which directs opinions upon cases sent from Courts of the case should have the advantage of Equity, is a practice of modern intro- knowing the grounds, upon which the duction, and it is much to be regretted ; opinion of the Court of law is found- being, at once, disadvantageous to the ed." It is to be hoped, that the con- public, and inconvenient to the Court venience of the Profession, and the directing the case, which is deprived, credit of the Courts of law, will be by this practice, of the assistance it consulted, by an early alteration of would derive from the opinion of the this practice, which seems as desti- Court of law, were the grounds of tute of reason, as it is undeniably pro - such opinion disclosed. The object of ductive of uncertainty and confusion, directing a case, is, to know the opinion in its results. 272 LT^IITATIOXS OF UKALTY [niAP. XV. Observations ui)on Bailham V. Mve. Case of Hole V. Egcolt. the execution of a power, no estate could be created, which would not have been valid, if limited in the deed creating the power, li) therefore, it were admitted, that the power of appointment continued in the bankrupt, notwithstanding his bankruptf.y, and that the appointment in favor of the eldest son in fee might be construed as an appointment creating a base-fee only, and not prejudicing the remainder, which passed to the assignees under the commission, the appointment would, nevertheless, be void, because a limita- tion to that effect w^ould have been void in the oriirinal deed creating the power, inasmuch as the rule of law does 7iot permit otie fee to be limited after another, although the first fee he only a base or determinable fee. This rule will support the opinion which has been formed by the judges of the Court of Common Pleas." The decision of Sir John Leach, in Badham v. Mee, therefore, (and, in all probability, the certificate of the Court of Common Pleas) affirmed, that, neither directly and expressly, nor by matter ex post facto, can a fee be limited to depend on a base-fee, determinable on the failure of issue of a person. The next case, bearing upon the subject, though worthy of notice, did not call for a decision upon the particular point which occurred in Badham v. Mee. The case is Hole V. Escoit, {y) where a husband, upon marriage, settled pro- perty, to the use of himself for life, with remainder, to the use of trustees, to preserve contingent remainders, with remainder, to the use of trustees, for a term of years, to secure a jointure for the wife, with remainder, to the use of such children of the marriage as the husband and wife jointly, or, in default of joint appointment, the survivor of them, should appoint, with remainder, in default of such appoint- ment, to the children of the marriage living at the decease of the survivor of the husband and tvife, equally, with re- (y) -2 Keen, 444 ; 4 Myl. h Cr. 187. SEC. I. SUB. II.] ON FAILURE OP ISSUE. 273 mainder, to the right heirs of the husband. The husband be- came bankrupt ; and afterwards he and his wife made a joint appointment in fee, in favor of two of the children of the marriage. The husband subsequently died, leaving his wife surviving ; by which event, the estates limited to the children in default of appointment failed, for want of a particular- estate to support them ; the wife having no freehold estate for her life under the settlement, and the interests of the children being contingent. As the event turned out, therefore, at the date of the bankruptcy, the bankrupt had an estate for life, with an immediate remainder to himself in fee, subject to his wife's rentcharge, and the term securing it. Any appointment by the bankrupt and his wife must neces- sarily have operated in derogation of the title of his assignees, who had acquired his life-estate, and the remainder in fee. There were, in fact, no intermediate estates in the children, capable of taking effect, in default of appointment by their parents. The inevitable conclusion, therefore, was, that arrived at by Lord Langdale and Lord Cottenham, viz., that the husband, after his bankruptcy, could not, by an execution of the power, take from his assignees, property, which had been once vested in them by the operation of the bankrupt laws. The case of most importance upon this subject, is that of Case of /one* Jones V. Winwood, (z) the facts of which were these : — An ^' *"""'' ' estate was setded, to such uses as W. D., and F., his wife, should, during their joint lives, appoint, and, in default of appointment, to the use of W. D. for life, with remainder, to trustees, to preserve contingent remainders, with re- mainder, to the use of F. D. for life, with remainder, to trustees, to preserve contingent remainders, with re- mainder, to the use of the first and other sons of W. D. successively in tail general, with remainder, to the use of the daughters as tenants in common in fail general, with re- (z) 3 M. & W. 653 ; 10 Sim. 150. T iJ74 LIMITATIONS OK HKALTY [CHAP. XV. inaiiulcr, to the use of W. I), in fee. Five years afterwards, W. L). took the benefit of the Insolvent Debtors' Act, and bargained and sold all his estate and effects to the provisional assignee, who subsequently conveyed the same to the cre- ditors' assignee. Four years after the insolvency, W. D., and V. his wife, in execution of their joint power, appointed the property to trustees in fee, upon trusts for sale. The trustees afterwards concurred with the assignee in a sale of the property. The pui'chaser declined to complete his contract, on the ground, that W. I), had no power or right, after his insolvency, to concur with his wife in the execution of the joint power of appointment, reserved to them by the settlement, and that, therefore, the estates limited to the children were undivcsted. A bill for specific performance having been filed, a case was sent to the Court of Exche- quer, upon the questions, whether the power was destroyed by the assurance executed by the insolvent to the assignee, and, if not so destroyed, what estate })assed under the appointment. Before the (]ourt of Exchequer, the case was professedly argued upon the point, of Badham v. Mee having been rightly decided, or not : the propriety of that decision was, in fact, directly called in question. The Court returned their certificate, to the effect, that the power was not destroyed, by the conveyance to the provisional assignee ; and that by the appointment, an estate in fee- simple was conveyed, subject to the estate for life of the insolvent, and (on failure of the intermediate estates) to the remainder in fee to the insolvent, which had been, prior thereto, conveyed to the assignee of the insolvent's estate. On return of the certificate, it was argued for the purchaser, that the interest attempted to be created by the appoint- ment was illegal : it was a base-fee, with a remainder-over; and as no estate -tail had been converted into a base-fee, the estate, to take effect on the determination of the base fee, could not be barred. In reply, it was said, that it had been settled for a scries of years, that a base-fee might exist SEC. I. SUB. II.] ON FAILUUE OF ISSUE. 275 in one person, and a remainder in fee, in another, to take effect on the determination of the base-fee. Sir L. Shadwell, V. C, after remarking, that the ground of the certificate of the Court of C. B., in Badham v. Mee, must be supposed to have been, really, that assumed by Sir /. Leach, said, that the bankrupt did not, in execution of his power, appoint a hase-fee, so as to give ground for the objection that Sir /. Leach mentioned : that the bankrupt appointed in fee- simple to his son ; and the law provided, that the appoint- ment should not affect the remainder in fee, which the assignees had, previously, acquired, by virtue of the limi- tation in default of appointment ; and that, therefore, the remainder in fee which the assignees took at first, continued in them, unaffected by the exercise of the power. His Honor further remarked, however, that though his own opinion was clear, he was free to admit, that, in the abstract, the certificate of the Court of C. B., confirmed by Sir John Leach, must create a doubt, when there was only opposed to it, the certificate of the Court of Exechequer. But, upon the evident understanding between the parties, as to the result of a decision in opposition to Badham v. Mee, the Court considered itself bound to decree a specific perform- ance by the purchaser ; which was accordingly done. This decision, it is conceived, is in entire accordance observations with the rule laid down by Lord Coke, in the passages above ^^^J^^J^ ^' cited : and they concur to establish, that although it is not allowable, to limit any estate, after a previous fee determin- able on the death of a person without issue, yet, by matter ex post facto, or by operation of law, there may be a possi- bility of reverter expectant on such a base-fee. This base- fee, moreover, as it has been already observed, is not barr- able, like a base-fee created out of an estate-tail ; and the possibility of reverter, therefore, which is allowed to exist expectant upon it, being to take effect on an indefinite failure of issue, would, upon ordinary principles, be obnoxi- ous to the laws against remoteness. T 2 276 T.IMTTATIONS OF REALTY [cHAP. XV. Mr. j'liston'a Thc viow tliiis established is further sanctioned and con- confirnation of „ , , . „ ■ c rrres doctrine; as Wills, 243, 244. to which, vide infra. (i) See Mogg v. Mugg, 1 Mer. U 290 r,I>IITATIONS OF REALTY [CIIAP. XV. Extent to which these rules are to be received. Not yet ex- tended to limitations in deeds. as to issue taking by purcliase, or othenvise, under a prior gift; as, in such a case, they might not he immaterial to show, that, " issue," was not intended as a word of hmitation. For all purposes of the referential construction, however, it is conceived, the words in question are of equivalent import to, "dying witliout issue." And, as a corollary to that proposition, it should also seem, that whenever an estate-tail would be raised by implication, by force of the last-mentioned expression, a similar effect will attend the use of the synonymous phrase. Any force that may be allowed to the word, " children," as distinguished from that which belongs to, "issue," will always be influenced so materially by the particular circumstances of each case, that it is impossible to lay down any positive rules, as to what will suffice to give the former word a more restricted con- struction, than that usually borne by the latter. The rules and distinctions, above stated, are not advanced, as all and entirely clear and unquestionable, but, rather, as furnishing the general outline of a system, which the fruitful source of litigation furnished by the words, " die without issue," has enabled the Courts to raise, with some appear- ance of harmony and proportion. Nor has it, in general, been here attempted to anticipate occasions of further refinement and distinction, to which the ingenuity, caprice, ignorance, or carelessness, of testators may, from time to time, give rise. Since the dispositions of self-taught law- yers are as frequently destitute of grammatical sense, as, ever-varying and fantastic, it is impossible to declare, from well-educed princi])le, or justly-formed analogy, under what particular rule, distinction, or exception, supposable cases might take rank. It only remains, to make an observation, similar to that, with which there has been occasion to accompany most of the inquiries, occupying the previous Subdivisions, viz., that actual decision on the various points here noticed is con- fmcd to cases of lestamentary limitations ; and that no SEC. I. — sun. TTT.] ON FAILURK OF ISSUE. analogy can be deduced from such existing authorities, in favor of the extension of the Uke rules, to gifts by instru- ments inter vivos : as to which, any question that may occur will be of the first impression. 291 Subdivision 4. The operation of 7 Gul. 4 and 1 Fid., c. 26, s. 29, upon testamentary limitations of real estate, to take effect on a dying without issue. Our inquiries, hitherto, have embraced the whole subject, Preliminary of limitations of real estate after or upon a failure of issue, anterior to or irrespectively of the alterations introduced, in reference to these limitations, by the recent statute, 7 Gul. 4 and 1 Vict., c. 26, the operation of which com- menced vnth the year, 1838, but only as to all wills dated or republished subsequently to the year, 1837. It now remains, to point out the nature of the new enactment, and its effects and general bearing, as well immediate and direct, as remote and consequential, in reference to the subject before us. It is necessai'y to premise, however, that the statutory provisions we are to consider, are entirely confined to wills; and, therefore, all that has been said in relation to limitations in deeds, must be considered, as applicable in its full extent, at this present time, notwithstanding any difference we may have to notice, in regard to limitations in wills. It will facilitate the inquiry, if the words of the act pass 7 Gyd. 4 & in review before us ; and too much attention can scarcely g^ 29. ' be given to them, important as they are, in their relation to our present subject. The 29th section of the act referred to (the section with which wc are principally concerned) u 2 292 LIMITATIONS OF REALTY [CUAP. XV. is to the following eftect : — '' Be it enacted, that in any devise or hecjucst of real or personal estate, the words, 'die without issue,' or, ' die without leaving issue,' or, ' have no issue,' or any other words, which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean, a want or failure of issue in the lifetime, or at the time of the death, of such person, and not, an indefinite failure of his issue, unless a contrary intention shall appear by the wnll, by reason of such person having a prior estate- tail, or of a preceding gift Ijcing, without any implication arisina: from such words, a limitation of an estate-tail to such person, or issue, or otherwise : provided, that this act shall not extend to cases, where such words as aforesaid import, if no issue described in a preceding gift shall be born, or if there shall be no issue, who shall live to attain the age, or otherwise answer the description, required, for obtaining a vested estate, by a preceding gift to such issue." Tt) apply the provisions of this enactment, in the order adhered to in our previous consideration of the old law : — Effect of new 1- If land be devised to A., and his heirs, provided that, rule of con- j^ j^ jj without issue, or without having issue, or without struction, on ' o ' devise to A. in leaving issue, then, to C. ; the limitation to C. will be good ; fee, and on i p • i ^ t> j • i • death of B. the cvent described, — viz., the failure of i3. s issue, — bemg, without issue. ^^ ^^^^^ ^^ ^^ J y.^^^ ^ 26, limited to happen, either before or at the decease of B., and, therefore, within the period prescribed by the Rule for prevention of Perpetuities. And if B. die leaving a child or other issue behind him, though there be, afterwards, an extinction of the line of issue, the specified event does not receive its fulfilment, and the ulterior limitation, conse(juently, fails, —to A. in fee, 2. If there be a devise to A. and his heirs, and if he die death without without issue, to B., and his heirs, the failure of issue being, issue, to B. ; jj^ y^^^ j^^^ Statute, confined to the death of A., the limita- tion to B. is good, as an Executory devise, to take effect in the event of the death of A., without leaving issue living at SKC. I. — SUB. IV.] ON FAILURE OF ISSUE. 293 that time, (w) It will be perceived, therefore, that the doc- trine of implication of estates-tail, is now entirely abolished, as to wills embraced by the new enactment, except in those cases, where an intention, to use the words importing dying without issue, as signifying an indefinite failure of issue, is plainly evinced. Not only is the necessity for the implication of an estate-tail, in the case under consideration, removed, but that construction is also rendered impossible, by the confined interpretation now to be put upon words indicating a failure of issue, under the provisions of the new law. The failure of issue, co-extensive with the limits of an estate-tail, is a general or indefinite failure; in other words, the failure, which involves the natural extinction of an entail, embraces the whole line of issue inheritable to the first purchaser. If, therefore, the meaning, either proper or forced, of words importing a dying without issue, confine the failure intended to the death of the devisee, it is plain, (as was formerly ob- served,) {71) that there is no opening for the raising an estate- tail by implication in the person, the failure of whose issue is in question, from the mere circumstance, of the manifes- tation of an intention, that if such failure happen within a limited period, another person shall succeed to the property. As it is, however, the mode of interpretation which has rendered impossible, any resort to the old rule of construc- tion, in the case supposed, has also removed all necessity for it, so far as concerns the harmony and support of the several limitations, the effecting which, was the original moving cause of the adoption of the rule. ^ 3. And so, with respect to a devise to A., and his heirs, _to A. in fee, - , . . , . . , . Ill- after the death after the death of B. without issue, neither A. nor 15. being ^f g. without the testator's heir-at-law, and no preceding estate being *^^"®' given to B. ; the limitation to A. is good, the failure of B.'s issue being restricted to his death. 4. Affain, suppose a limitation, similar to the last, but —to A. in fee, ° ^^ after the dcatU (,m) 1 Jarm. Wills, 49(}. Shelf. («) Vide supra, p. 187. Wills, 320. 294 LIMITATIONS OF REAT.TY [cilAP. XV ol' B. without with the difference, of A. or B. being the testator's heir. issue, A. or B. i- i i • being testator's The rule (as we have seen) (o) apphcable in such a case, ' in regard to wills not within the operation of the new statute, is, that B. takes an estate-tail by implication ; it being supposed, in the one case, that the testator could not give to a person, at a future specified period, what devolves to him by act of law, immediately, without intending to dis- pose of it in the mean time ; and, in the other, that by limiting the property over, on the death of his heir without issue, the testator showed an intention, that in the meantime it should belong to him, as the person on whom the law casts the inheritance, in default of any disposition of it, secus. But under the new law, the failure of issue is re- stricted to the death of B., and an estate-tail cannot, there- fore, be raised in him, in either of the cases supposed. Yet, as it is manifestly absurd, in the case of the devisee being the heir, not to provide for the destination of the property, until the period fixed for him to take it, it would seem, that an estate must be implied in the ancestor, on failure of whose issue the heir is to take ; and, as the construction of an estate- tail is now impossible, that estate must be a fee-simple, {p) In the other case, viz., that of the person, on failure of whose issue the devise is to take effect, being the testator's heir, the like rule must hold. In both cases, in a word, (to revert to the illustration,) B. takes a fee-simple, subject to an Executory devise in favor of A., in the event of his (B.'s) dying without issue living at the time of his death. —to A. for 5. Further, let it be supposed, that property is devised to his death A. for life, and if he die without issue, to B. in fee. Prior without issue, j-Q ^|j(, ^^^ enactment, we have seen, that the effect of such a limitation would be, to enlarge the life-interest of A. into an estate-tail, and to give place to the limitation to B., as a remainder expectant upon it. But, as the words importing a failure of issue are now cut down to a dying without issue (o) Vide supra, \k 181. ( p) 1 Jarm. Wills, 498. SEC. I. — SUB, IV.] ON FAILURE OF ISSUE. 295 living at the death, there is no ground lor the eulargeineui of the life-estate ; because, as before remarked, to create an estate-tail, a general or indefinite failure of issue must be intended : while, at the same time, there is no express gift to the issue. The effect, therefore, of such a devise, under the new statute, will be, to confer on A., an estate for life only, whether he has issue or not, with a contingent re- mainder to B., to take effect, in the event of A.'s dying, without leaving issue living at his decease, (^q) It may be questioned, indeed, whether, in this instance, the alteration introduced by the recent act be, in all respects, a wise or beneficial one ; for, while the ulterior gift is postponed till the failure of issue of the tenant for life, such issue not only take nothing, by reason of the want of an express devise to them, but, also, the estate for life is rendered unsusceptible of enlargement into an estate-tail, under which the issue might inherit. It has not, however, been decided, whether, in the alternative event, of the existence of issue at the de- cease of the tenant for life, any estate can be raised by implication in their favor, and their exclusion from all benefit of the devise cannot, therefore, be treated as per- fectly clear ; but the better opinion, and that most accordant with principle, seems unfavorable to such an implication, (r) 6. The next species of limitation, the construction of — to A., indc- which undergoes a change, by force of the new statute, occurs after his death in the case of a devise to A., indefinitely, (that is, for no ^'b, • and, ' express estate,) and in the event of his death without issue, therein, of the ^ '^ _ ^ ' 28th section of to B. Under the former law, it will be remembered, {s) the i Vict. c. 26 ; (5) 1 Jarm. Wills, 497. Shelf. upon, infra,) the issue of legatees for Wills, 32 1 . See LethieuUier v. Tracy, life of a personal fund claimed to take 3 Atk. 774, 793 ; and observations of by implication as purchasers ; but the Lord Giffhrd, M. R., in Greene v. claim seems to have been treated as Ward, 1 Russ. 264 ; in reference to unsustainable. Ex parte Rogers, 2 a similar devise, prior to 1 Vict. c. 26. Madd. 449, leads to a different con- (r) 1 Jarm. Wills, 490, 497 : and elusion. See Clarke v. Lubbock, 1 see Greene v. Ward, ubi supra. And You. & Coll. N. C. C. 492. Also in the case of Rauelagh v. Ranelayh, stated and observed upon, infru. 2 My. & K. 441, (stated and observed (*) Vide supra, p. 17M, 296 LIMITATIONS OF REALTY fciIAP. XV. effect of such a devise is, to raise an estate-tail in A., with remainder to B., in the same manner, as in the case of a U- mitation of an express hfe-estate ; and, were there nothing more in the recent statute appHcahle to the case of an inde- finite devise, the ?ietv construction of these two classes of limitations would be also identical. But that statute effects an important alteration, in regard to the nature and effect of an indefinite devise, which occasions a material difference, be- tween it and the devise of an express life-estate, in reference to the operation upon them of the provisions of the statute, re- lative to the construction of words importing a failure of issue. The 28th section of 1 Vict. c. 26 enacts, that " where any real estate shall be devised to any person, without any words of limitation, such devise shall be construed to pass the fee- simple, or other the whole estate or interest, which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will." An indefinite devise, therefore, must be read, as a devise in fee- simple ; and, that being the case, it is immediately ascer- tained, that, under a devise to A., without words of limita- tion, and if he die without issue, to B., the operation of the new statute is, to vest the fee-simple in A., with an Execu- tory devise to B., in the event of A. dying, without leaving issue living at his decease, (t) — to A. in fee, 7. Yet again, let us suppose the case of a devise to A., and B. die without his heirs, and if A. and B. die without issue, to C, and his issue, to C. ; i^gij-g, Tliis is a case, in which, as to wills made prior to the commencement of the recent statute, the ulterior limi- tation is void, and not capable of being supported by the implication of estates-tail, co-extensive with the lines of issue, whose failure is to give it effect, by reason of the want of an express estate in one of the ancestors named, (u) The effect of the new enactment, in the case put, is, to vest the fee- simple of the devised property in A., subject to an Execu- (0 Shelf. Wills, 3'>1. (k) idc supra, p. 185. SEC. I. — SUB. IV.] ON FAILURE OF ISSUE. 297 tory devise in favor of C, in the event of the deaths of A, and B., without leaving issue hving at the time of their re- spective deceases. 8. It must be remembered, that the grand effect of the Chief result of ,. . . . new rule, to new enactment is, to brmg all Executory limitations in remove ob- wills, depending on the contingency of the death and failure iemoteness to of issue of a person, (whether taking a preceding estate, P'^ts^on failure or not,) within the limits prescribed by the Rule for the prevention of Perpetuities, where the person, the failure of whose issue is to give effect to the devise, is in esse at the death of the testator ; whereas, formerly, (as we have before seen,) the inevitable fate of such limitations (unless the failure of issue was confined to the death of the ancestor, or unless the case was such, as to admit of the implication of an estate-tail in him,) was, their invalidity on the ground of remoteness. With reference, indeed, to the qualification, that the But the person, . p 1 1 1 • 1 • whose issue is person, on the contingency of whose death without issue, the to fail, must be devise is to operate, must be in existence at the death of the "f testator ^^* testator, a late writer (v) has advanced the position, that the Rule against Perpetuities will not be violated, if the ancestor be existing at the death of the testator, or necessarily come in esse within twenty-one years afterwards. In laying down such a doctrine, it is submitted, that the learned gentleman has overlooked the terms of the Rule against Perpetuities, which are, that executory estates must be so limited, as to take effect, if at all, within the period of a life or lives in being, and the term of twenty-one years afterwards, with the superadded months, allowed in case of infancy : the term of twenty-one years cannot, it is conceived, be taken, in the first instance, as a period, within which the life or lives, constituting the main term of suspense, may come in esse. If the lives are in existence, then, indeed, it matters not, whether the term of twenty-one years precede or follow (u) 1 Jarm. Wills, 498. 298 LIMIT A.TIONS OF REALTY [CUAP. XV. No estate- tail can be raised by implication under new- rule ; and ulterior gift, therefore, in- destructible. Enactment does not *jxtond to the lives ; for though the duration of the period of contin- gcney, iu each case, may not, in the end, perfectly coincide ; in neither, will that period exceed lives in being and twenty- one years. Moreover, it would be difficult to predicate of any person, not in rerum naturd, that he will necessar'dtj come in esse, within any specified period, as re(|uired by the terms of the position alluded to; and luilcss it be a matter of certainty, that the contingent event will happen, if at all, within the period fixed by the Rule against Perpetuities, we know, that the limitation depending upon it is void. 9. A further consequence of the new mode of construc- tion is, that, whereas, under the former rule, in all eases which admit of the application of the doctrine of implication of estates-tail, (namely, where the person, whose issue is referred to, takes some estate under the will, or, if he take no estate, where he, or the devisee, fills the character of heir- at-law of the testator,) the executory limitation (in its cha- racter of a remainder,) is liable to destruction by the tenant in tail, such limitation, under the new mode of construction, is (with the exception next noticed) exempted from that or any similarliability, by reason of its taking effect, as an Executory devise limited upon a preceding fee-simple. With respect, indeed, to the case of the devise of an express life-estate, with a limitation, in the event of the death of the tenant for life without issue, as the executory limitation, under the new mode of construction, takes place as a contingent remainder, it is, of course, liable to be defeated by any of those acts of the devisee for life, which usually occasion the destruction of ccmtingcnt remainders. And as the altered construction, by precluding, and preventing the necessity of, the implication of estates-tail, preserves the executory limitation from the destructibility consequent thereupon, so docs it render the estate of the first taker absolute, iu the alternative event, of his dying, leaving a child, or other issue, behind him. 10. One species of limitation must be noticed, which is, obviously, without the purview of the recent enactment ; SEC. I. SUB. IV. j ON FAILURE OF ISSUE. 299 viz, a devise upon the failure of issue of a person de- limitations, on ceased. The antecedent death of the ancestor referred to issue of a ;jer. forbids the apphcation of the newly-enacted rule of con- *"" '''^""*"^- struction, in such a case, because a contrary notion induces the absurd consequence, of the testator being made to speak of an event, as contingent and futurely, the happening or not happening of which would, by the construction in question, have been previously ascertained. In the case supposed, therefore, if no estate be given to, or be already vested in, the issue of the deceased ancestor, the devise will be void, as being to take effect upon too remote an event, viz.f a general or indefinite failure of issue. 11. By the express provision of the statute, the rule of The exception r. -X ^ • • 1 in the act, of construction nxed by it is not to extend to cases, where devises on a contrary intention appears by the will, by reason of the oT a p^ersor"'' person, the failure of whose issue is in question, having having prior ^ ^ . estate-tail, a prior estate-tail, or of a preceding gift being, without any and to what implication arising from the words referring to the failure, a tends. limitation of an estate-tail to such person, or issue, or otherwise. Upon the construction of the first part of this exception, it has been thought, by a late writer, {w) that the words, " such person having a prior estate-tail," must be under- stood, as referring to the case of a testator having a remain- der or reversion, expectant on an estate-tail created by a previous will or settlement, notwithstanding the express requirement, that the " contrary intention shall appear by the will ,-" and this view is supported by the argument, that a different reading of this part of the exception M'ould have the effect of rendering nugatory the second branch of it, viz., that which refers to "a preceding gift being, without any implication, &c., a limitation of an estate-tail." It is con- ceived, however, that this exception is susceptible of an in- terpretation, affixing a definite meaning to each branch of (w) Prior on "Issue," 190. 300 LIMITATIONS OF REALTY [ciIAP. XV. ■it, and, at the same time, not sacrificing the expreas pro- vision, that the contrary intention should appear by the loill. It should seem, that the words, " prior estate-tail," refer to the limitation of an estate-tail in the usual direct mode, (as, to A., and the heirs of his body,) and, those immediately following, to a gift which has the ejfect of raising an estate- tail, under the Rule in Shelley s case, by reason of, " heirs of the body, and, issue," and, " children," operating as words of limitation, though occurring in a gift by way of, and intended to take effect as a, remainder after a life-estate in the parent or ancestor, (x) It is true, in both these cases, an estate-tail is created, but the different mode and principles of operation of the respective gifts satisfies the ex- pressions in the enactment alluded to, and renders it perfectly unnecessary, to suppose, that the exception referred to an estate-tail, created otherwise than by the will itself. Doubtless, an indejinit^ construction of words, referring to the failure of issue of a person, who has an estate-tail in the property, is more convenient, and better adapted to the state of the title ; but the Legislature has not seen fit, to make any express exception, in favor of such a case, from the general rule of construction fixed by the act in question. Nor is it necessary, that the failure should be general, in order that the devise may take effect as a disposition of the reversion ; although, undoubtedly, that devise will be depen- dent on the death of the tenant in tail without leaving issue living at that time, and will not, therefore, take effect, on a S2ibseguent extinction of his issue. The other 12. There is, also, another exception, from the rule of exception, of (x) It is unnecessary here to enter ventures to conceive, that the autho- into the question raised by Mr. Prior, rities and principles, cited and ad- in his Treatise on " Issue," (pp. 191 duced in Mr. Jarman's Treatise on — 195,) whether, under a limitation Wills, (vol 2, pp. 335 — 353,) furnish to A. for life, and, after his decease, a conclusive answer, in favor of the to his issue, and their heirs, or to them, affirmative of that proposition. See, as tenants in common, uithout any especially, Tatv v. Clarke, 1 Beav. gift-over, on failure of issue of A., he 100. will take an estate-tail ; but the writer SEC. I. — SUB. IV.] ON FAILURE OF ISSUE. 301 construction prescribed by the act, of cases, where the words, devises refer- . . . . . , . ring to failure denoting faihire of issue, import, if no issue described in a of issue entitled preceding gift shall be born, or, if there shall be no issue, who ceding gift," shall live to attain the age, or otherwise answer the descrip- ^y^^ ^"affects tion, required, for obtaining a vested estate, by a preceding gift doctrine of to such issue. This exception manifestly takes out of the ope- construction. ration of the act, all limitations embraced by the doctriiie of referential construction, considered in our last Subdivision. When, however, it is settled, in regard to any particular limitation on failure of issue, that it is not exclusively referrible to children or issue taking under a preceding gift, the statute immediately effects a change in the con- struction of the limitations. In the first place, it will be impossible' to raise an estate-tail in remainder, by impli- cation, in the parent, expectant on the interests of the class of issue taking under the previous gift, whether in tail or for life, according to the rule established, (as we have seen) (y) with respect to limitations not governed by the recent enactment. And, in addition to this, if the estates limited to the children or other issue be, in fee, the effect will be, to render those estates, defeasible on the death of the parent, without leaving issue living at that time. Where the children or issue take estates-tail, they will not, of course, be liable to any such forcible determination, since their very continuance, at and after the death of the parent, decides, that the limitation-over cannot take effect. But it should seem, that the restricted construction will not obtain, when the issue take estates-tail, as, in that case, the limita- tions fall within the previous exception in the act, which provides for a preceding gift being, a " limitation of an estate-tail to such person, or issue.'" It may be doubted, however, whether this exception meets the case of children only, as contra-distinguished from issue, taking estates-tail : no words occur in the preceding part of the section, tending (y) Vide supra, p. 283, et seq. 802 LIMITATIONS OF REALTY [ciIAP. XV, to give, " issue," other than its usual unconfined signifi- cation ; and it seems difficult to construe the same word in two different senses : if, therefore, it cannot be held to mean, " children," simply, limitations on failure of issue» after a gift to children, in tail, will be within the rule of con- struction prescribed by the statute. Again, if the estates limited to the children be, /or life only, there will be no premature determination of them, by reason of the restricted construction established by the new law, for those estates must have expired at the death of the parent, or the ulterior gift necessarily fails. These considerations supply strong ground for adhering strictly to those cases, which establish the referential con- struction ; and, it may be added, will induce the Courts to extend favor to that construction, as the most effectual mode of giving effect to all the limitations (as operated upon by the recent enactment) («). Finally, it is to be observed, in reference to limitations on a dying without issue, after an express gift to children or issue, that the new mode of construction establishes the validity of the ulterior gift, in those cases, where it cannot be deemed simply referential to the preceding limitations, and where, also, (as a consequence of the altered construction) no es- tate-tail can be raised, by implication, in the parent. The failure of issue being, in such cases, restricted to the time of the parent's or ancestor's death, no objection to the gift-over can arise, on the ground of remoteness ; though, on the other hand, it will fail, if the first taker leave any issue sur- viving him. General Thus, have we considered, the general bearing and observations as operation of the recent enactment, in regard to devises, to 26, and sub- take effect after a dying without issue. It will be observed, going Sub- the rule of construction substituted by the new law, for that Iivisions. (2) See 2 Jarm. Wills. 415, 416. SEC. I. — SUB. n^] ON FAILURE OF ISSUE. 303 which previously obtained, will, in the course of time, remove many of those questions, which occupied our atten- tion in the earlier part of this Chapter, in reference to the construction of words importing a failure of issue, and to the exceptions from the general rule, invahdating limita- tions, to take effect upon such a failure, (a) The recurrence of these questions, however, will not be wholly prevented, even when the (not very proximate) period shall have arrived, that the new law will be operative in regard to every will requiring interpretation. The occasional mani- festation (sometimes imperfect) by a testator, of an intention, to use words, importing a failure of issue, in the former un- confined sense, and the occurrence of cases, expressly excepted from the operation of the recent act, or not embraced by its provisions, (b) together with the con- tinuance of the old rule of construction, in regard to limi- tations in deeds, will frequently call for the consideration of questions, similar to, or, even, identical with, those, which have heretofore proved the fruitful source of doubt and uncertainty, in connexion with the general subject of limi- tations, to take effect after or upon a failure of issue. The view, therefore, here presented, of the principles of law applicable, in regard to limitations in deeds and wills, prior to the recent statute, 1 Vict. c. 26, and of the alterations introduced by that statute, as to wills executed or repub- lished, subsequently to the year 1837, will not, it is sup- posed, prove either uninteresting or unnecessary. (a) The third exception {vide su- the exhibition by a testator of a "con- pra, p. 267,) will not, however, it is trary intention," will present a wide obvious, be affected by the new rule field of discussion, to which authorita- of construction. tive decision alone will enable us to (6) The words, " or otherwise," affix bounds, containod in the act, in reference to 304 LIMITATIONS OF REALTY [CIIAP. XV. Limitations on a (lyinf;^ with- out " heirs of the bod}'." DifiFercncc between ex- pressions, " heirs of the body," and, " issue." It will have been obsen^cd, that, throughout all the prece(liuf>; Subdivisions, the exj^ressions, to which our in- quiries have had reference, have been, " in default of issue,^'' and, " in default of children^^ as distinguished from the expression, " in default of heirs of the body,^^ whose general purport, though similar to that of the phrases just mentioned, has (on account of the infrequency of its actual occurrence) been exempt from those questions, as to the influence of particular circumstances and modes of gift, which, as we have seen, form so large a portion of the subjects of judicial discussion and investigation, upon the meaning and o])cration of limitations, on a failure of usue or children. The words, " in default of issue," are, obviously, more popular, or more easily understood, than, " in default of heirs of the body." The latter words are entirely technical, and their origin is peculiarly legal ; while, on the other hand, " failure" or " want of issue," is a term, which immediately suggests itself to persons, unaccustomed to the precise phraseology of the \sc\\. (c) As a consequence of this, the expression in question is seldom found in the dispositions, which call tor judicial construction on account of their informal and untechnical character. If there be no express gift to heirs of the body or issue, the terms naturally used, to make a gift dependent on the extinction of the whole line of descendants of a person, are, " if he die without issue ;" while, if there he such a previous limitation, but ex- tending only to a particular class of issue, the same phrase is, also, of more probable occurrence, whether it be intended to be strictly referential to the prior gift, or not. In the case of express limitations to the descendants of a prior tenant for life, it is undeniable, that the words, " heirs of the body," are of su})crior force, (as embracing issue, indefinitely,) to the word, " issue," under similar (c) See Prior on " Issue," 29, 30. SEC. I. STTB. IV,] ON FAILURE OF ISSUE. 305 circumstances, and they will, consequently, retain this indefinite signification, in cases, where, " issue," would be construed as a word descriptive of particular objects, to take by purchase, {d) " Heirs of the body" are, in fact, proprio vie/ore, words, referrible to the whole line of de- scendants of a person, while, " issue," though, primarily, of similar import, is, yet, in itself ambiguous and less deter- minate, as not having any proper or necessary legal signi- fication. But the question, whether, " heirs of the body," in the Whether these „ .^ ^ , ^ ,. . . words of diffe- case ot an express giit, operate as words ot limitation, or rentforce,when not, is wholly distinct from, or, at least, does not necessarily does^nof arise involve, that with which we are here concerned, viz., <^" ^" express . gift to the whether, in any particular case, the words, " in default of descendants, heirs of the body," occurring in a gift-over, either preceded a^limiuUon- or not preceded by an express gift to heirs of the body or °'^^^' issue, refer to an indefinite failure of the heirs special, or to such a failure, at the death of the ancestor ; or, how far, if preceded by an express gift to heirs of the body or issue, the words in question can be construed as referential to the objects of such preceding limitation. In these cases, there is no question, even when the word, " issue," is used, that descendants of any degree are contemplated by the contingency ; only the period of ascertaining that failure being in doubt. No infiringement of the technical force of the words, " heirs of the body," ensues from an interpre- tation, giving to particular circumstances, the effect, of limiting the period at which the failure of issue is to take place. Nor is there any distinction whatever in the re- lative force of the terms, " heirs of the body," and, " issue,'' in cases, where it is not possible for either to operate as a word or words of purchase ; and it may, therefore, be justly conceived, that in regard to any given case of a limitation {(1) See this doctrine forcibly il- & Coll. 589. See also 2 Jarm. Wills, lustrated and observed upon, in the 330 n. , 347. judgment in Lees v, Mosley, 1 You. 3or> LIMITATIONS OF REALTY [chap. XV. Same rule as to implication of estates-tail, as when " is- sue " is used. Force of re- j^rif^t ye expres- sions and cir- cumstances also the same. on failure of heirs of the body, a construction will hold, similar to that which obtains under the like circumstances, when the word, " issue," is used. We may, consequently, dismiss the particular mention of limitations on failure of heirs of the body, with a few general observations, in conformity with the sentiments above expressed. There is, of course, no question, that, under a limitation to A., and his heirs, or to A., for life, and in the event of his death without heirs of his body, over, the same modifica- tion or enlargement (as the case may be) of A.'s estate takes place, as in the case of a similar gift, the word, "issue," being used, instead of, " heirs of the body," viz., the vesting of an estate-tail in A., with a remainder expectant thereon, to the ulterior taker: and this, also, upon the same princi- ples, which are, that, in the one case, the author of the gift shows, that by, " heirs," in the first limitation, heirs procre- ated of a particular body were intended, and, in the other, that by the evident intention, not to give the property over until a failure of all the descendants of the tenant for life, a remainder in tail is raised in the issue, which unites with the prior life-estate, under the Rule in Shelley^s case. It may also be averred, that all the other rules and distinctions, which have been, at the commencement of this Section, noticed, in regard to the implication or non-implication of estates-tail, where the contingencies contemplated a failure of issue, are of equal applicability to gifts affected by limi- tations-over, on default oi heirs of the body. As regards the force of expressions and circumstances, accompanying or extrinsic to limitations on a dying without heirs special, to restrict that failure to the decease of the ancestor, the authorities do not enable us to speak with any greater degree of certainty or precision, than was found attainable, in respect to limitations on a default of issue. Indeed, as has been before hinted, even that which is attain- able is supported only by the analogy, deducible from the SEC. I. — BUB. IV.] ON FAILURE OF ISSUE. 307 rules laid down upon the more-frequently-occurring cases of gifts on a dying without issue, (e) This analogy is, how- ever, it is submitted, pei'fectly free from objection ; although, certainly, (and it is a curious circumstance) the point has not engaged the attention of those text-writers, who have enlightened the Profession with their laborious and learned researches on this branch of our law. (/) Nor does it seem, that the variation of the terms of refer- And, likewise, ence to the line of descendants occasions any difference in of HmU^ion'* f the development of the exception to the rule, invalidating reversions, gifts on a general default of heirs special, founded on the circumstance, of the author of the limitations being a testator possessed of a reversion or remainder expectant on sub- sisting estates-tail. The nature of the other two exceptions, formerly noticed, clearly does not admit of any question upon this head, as respects them. It is difficult, moreover, to discover any valid ground of And, also, the distinction, between gifts-over on failure oUeirs of the body, Utr^Ztti and on failure of issue, in reference to the operation of the construction. referential construction, the consideration of which occupied our third Subdivision. The argument, it is obvious, is equally strong in both cases, — that a person, in limiting pro- perty to heirs of the body, or issue, or children, or to a class (e) In reference to one class charge of a sum of money, in the case of restrictive expressions formerly of Denn d. Geering v. Shenton, Cowp. noticed, (^lide supra, p. 234, et seq.,) 410. it may here be observed, that there (/) See those excellent specimens are several cases, in which the words, of the combination of eloquence of "after his decease," occurring in a thought and diction, with acuteness gift-over, after an express limitation and accuracy in the deduction and to heirs of the body, have been denied, inculcation of principles, previously any controlling influence upon the entombed in scattered and apparently previous gift to the heirs special. See irreconcileable dicta and decisions, jitkins V. Atkins, Cro. Eliz. 248; Mr. //aye*' Inquiry, &c. , and his Prin- Doe d. Cole v. Goldsmith, 7 Taunt. ciples, &c. See also Mr. Jarma?i'3 209; 2 Marsh. 517. And a similar Treatise on Wills, vol.2, c.c. 37— 40. doctrine was held in reference to the X 2 308 FJ.MITA rioNS OF REALTY [CHAP. XV. of heiis ot the body or issue, with a subsequent gift-over, on a defauh of heirs of the body or issue, intended the uherior hinitatiou to take effect, on faihu'e of the objects of the preceding gift : and it seems as clear, that on whatever ground this referential construction is rebutted or denied, when the word, " issue," occurs in the limitation-over, the same objection must exist to the extension of that doctrine to a similar case, where the line of descendants is referred to under the description of^ " heirs of the body." 1 Vict. c. 26, Finally, it is to be remarked, that the recent enactment does not ex- '' tend to limita- of a new rule of construction in cases, where the gifts tions on failure , , „ ., „, . , ,. . . of" heirsof the depend ou a lailure oi issue, m no way extends to Innitations " ^' on a " default of heirs of the body," which, as well, there- fore, in regard to wills, as to deeds, will continue to be governed by the same rules of construction, as those, either upon authority or by analogy, apj)licable to them, previous to the establishment of the new principle of interpretation. General re- These positions, in reference to gifts on a dying without weight duo to hcirs of thc body, (with the exception of the last) are these positions, advanced, rather as suggestions, sustainable by reasoning and analogy, than as doctrines, bearing the impress of ex- press adjudication. At the same time, it is clear, the only doubt that can attach to their accuracy arises from the cir- cumstance, of, " hcirs of the body," being words, which, suis viribus, embrace the entire line of descendants, as contra- distinguished from, " issue," which has no such necessary import. It is conceived, however, that satisfactory grounds have been assigned, to prove the inapplicability of this cir- cumstance, to the class of cases here brought under notice, and in reference to which alone, any question of remoteness can arise. fJift-over in It may here be observed, in connexion with this subject, of "heirs male," t^^^t a gift-ovcr in wills, on failure of "heirs male," has been same as w len construed, as Similar to a limitation on a dyin"; without heirs limited on de- ' J n fault of " heirs of the body, so far as respects the controlling the word. SEC. II.] ON FAILURE OF ISSUE. 309 " heirs," in u prior gift ; {g) and so, doubtless, would any analogous expressions, tending to show, that a class of heirs, less extensive than heirs general, was intended. (A) Section II. Springing and Shifting Uses and Executory Devises, to take effect on the death of a person without heirs. Another class of limitations applicable to real estate, similar to those forming the subject of consideration in the last Section, is that of limitations, to take effect after the death of a person without heirs. As regards the indejiniteness of the contingency, it is evi- Contingency of dent, that it closely resembles a limitation upon a general wUhout"/Lvs failure of issue ; the legal construction of the event of a dying ^P^" ^? ^^'"f '-' ./ D objection ot without heirs, being, the death of the person named, and remoteness, as the failure or extinction of his line of heirs, (lineal and colla- without issue. teral) whenever it may happen. And that extinction, thus general and unconfined, is necessarily too remote an event, on which to limit an interest in real property, when tested by the Rule for the prevention of Perpetuities, (i) For al- though it be possible, that the person named may die, and a failure of his heirs happen, within the period of time pre- scribed by the Rule, yet, as we have seen, such potentia, albeit propingtiissima, will not satisfy the terms of the Rule, any more than would, potentia remotissima. But the limi- whether the tation in question would formerly have been void, not only f^"^'^"* 4°*^: 1 "^ ^ J trine against as expressed to take effect on too remote an event ; but, also, presuming the failure of a person's heirs, (^) Blaxtonv. S'^owe, 3 Mod. 123. (/) Griffiths v. Grieve, 1 Jac. & tjjjs (ja v Den7i d. Slater v. Slater, 5T. R. 335. W. 31. (A) 2 Jarm. Wills, 233. 310 LIMITATIONS OF REALTY [cHAP. XV. because the extinction of the general line of heirs of a per- son was not such an event, as the law would presume, or take notice of. This was an old legal notion, which pre- vailed prior to the existence of any definite rule, in regard to the remoteness of limitations, as being akin to the ancient but now exploded doctrine, as to a possibility upon a possi- bility. A fee-simple inheritance, in the eye of the law, endures for ever, and any limitation after a fee-simple was void at the Common law, prior to the establishment of Shifting Uses, and Executory devises. But, independently of that technical rule, the contingency in the limitation in question was such as the law would not expect. Whether this notion would now be of any avail against the validity of a limitation, to take effect after a dying without heirs, irrespective of the Rule against Perpetuities, it is difficult to say ; although it seems clear, that the force of the doctrine is seriously diminished, if an extinction of heirs, to happen within the period of perpetuity, be so far presumable, as to admit of a future estate being limited to arise upon it. The " writer is not aware of any case, in which the validity of a limitation, to take effect on a restricted failure of heirs, has been affirmed, or the point itself at all discussed. As a question of remoteness, it is clear, that if the failure be con- fined to a period within the limits of perpetuity, the event is, so far, unobjectionable. The sole remaining question, then, would be, whether the old legal doctrine, of the unpresum- ableness of a general extinction of heirs, is, at the present day, entitled to any weight. On the one hand, it may be urged, by analogy to the rule which obtains, in the case of a limitation after a restricted failure of issue, that if all ob- jection on the score of remoteness be removed, it is valid ; while, on the other, it may be said, that the ancient doctrine, which declares the event of an extinction of the line of heirs, not to be such as the law can expect, or take notice of, loses none of its force, from the mere circumstance, of that ex- tinction being confined to happen within a prescribed period SEC. n.] • ON FAILURE OF HEIRS. 311 of time. To strike the balance between these considerations, seems a task of as much difficulty, as the decision of the numerical difference between six and half-a-dozen. But although a limitation, whether by way of devise or use, after a dying without heirs, is, in general, void ; there are, yet, some exceptions to this rule, which shall now be shortly noticed. In the first place, then, let us suppose the case of an estate Limitation on being limited by will, to A. and his heirs, and if, or when, gon'^ithout'* he dies without heirs, or without an heir, then to B., and ^^i'"^' S°°^.' ' ^ _ ^ when ulterior his heirs. As the limitations stand, it is clear, as above taker in line of ,, ,_ ,.., T>' -17 heirship to the observed, that the future estate limited to 13. is void, ab former, his fee initio. But let it be supposed, that B., the person to whom ^^1^^^°^ the limitation-over is made, is a relative of, and capable of tail. beino- collateral (it would be absurd to assume him a lineal) heir to. A., the first devisee. Here, it is manifest, that either nonsense must be imputed to the testator, or a con- struction must be put upon the word, heirs, short of or different from its proper legal signification. If the words are to be taken in their ordinary sense, then, the testator must be understood to have devised the property to a per- son, and a certain line of representatives or descendants of such person, and to have, further, intended it to go over on the death of that person, and the extinction of his line of descendants, to an individual included in the line, and through whom the property either has, or must be presumed to have, passed, before the event happens, on which the ulterior limitation in favor of that individual can possibly take effect. That such, therefore, cannot be the inten- tion of the devisor, is certain, unless he be assumed to have designed to make a testamentary disposition, not use- less and incapable of taking effect only, but void of all sense. To render the limitations consistent, consequently, the word, " heirs," is read as, " heirs of the body," and, thus, the prior fee is abridged into an estate -tail, and the ulterior 312 I. IMITATIONS OF REALTY [cilAP. XV. limitation takes place as a remainder expectant upon it. (k) Thus, where (/) A. devised lands, to B., and his heirs, and for tcant of heirs of him, to D., who was a near relative of B., it was adjudged, an estate-tail only in B., because he could not die without heirs, so long as D., or any of his lineal heirs, existed. So, where {m) A. devised lands, to his wife, for life, remainder, to his son, II., for life, remainder, to his son, G., and his heirs for ever, and if he should die without heirs, then, to the testator's two danffhters : it wrs adjudged, that G. took an estate-tail ; for that it was impos- sible, he should die without heirs, whilst his sisters were living ; consequently, the testator by, heirs, could only mean, heirs of the body. And again, in a more recent case, {71) a testator devised real estate, to his wife, for life, remainder, to his son, J. P., and his heirs for ever, and if it should happen, that the said J. P. died without heirs, the testator gave the property, to his daughter, S. P., and her heirs : J. P. died, leaving a daughter, who died unmarried. It was held, that the heir of the daughter, S. P., was entitled to recover under the devise to her : the Court said, it was clear, that the testator never meant, that his daughter should take, unless, those whom he calls, the heirs of his son, should fail ; and that, as the next limitation was to his daughter, after the failure of heirs of his son, it was clear, that he meant a class of heirs, amongst whom the daughter could not be enu- merated, for, if otherwise, he would be giving a remainder- over, which could not take effect, till after the extinction of the person, to whom it was given. Same rule, if But, Still further, if there be a devise of land, upon failure to heirs of tes- of heirs of a prior devisee, to the heirs of the testator himself, tutor, if such heirs be neces- sarily in line f>f , „ „ „ „ . „ , heirship to (*) ^- ^- ^- 466; 2 Prest. Abst. Talb. 1. first-taker. 161 ; 2 Prest. Estates, ch. " Tail ;" (n) Doe d. Hatch v Bluck, 6 Burt. Elem. Comp. 223. Taunt. 484. And sec also Jones v. (l) Parker V. Thacker, 3 Lev. 70. Lc ^ express gift. estatc-tail, only by implication, to the effect, that, in the latter case, the failure of issue must be understood as re- stricted to the death of the first legatee, and that, conse- quently, his interest in the term must be confined to his life. But this notion has long been exploded ; and Mr. Fearne, after noticing the authorities applicable to the subject, thus luminously states thegeneral rule of law (a): — That although (2) Burt. Elem. Comp. 326. 2 cited. Rop. Leg. 394 ; and authorities there (a) F. C. R. 485. SECT, in,] ON FAILURE OF ISSUE. 321 in the limitation of a personal estate, after a dying without issue, those words shall not, ex vi termini, and without the concurrence of any other circumstance of intention, signify a dying without issue then living, even though the limita- tion is in the nature of an estate-tail by implication only ; yet, on the other hand, they shall not, ex vi termini, when there is any other circumstance of intention, import an indefinite failure of issue, even though the limitation is in the nature of an express estate-tail ; but that, in either case, if the limitation rests solely upon the usual extent and import of those words, the limitation-over is too remote, and, there- fore, void, and the whole vests in the first devisee or legatee ; but that, in either case, the signification of these words may be confined to a dying without issue then living, by any clause or circumstance in the will, which can indicate or imply such intention. (6) And so, again, if a term or other personal estate be be- Where first queathed to A., for life, and if he die without issue, to B. ; o^iy^ it is en- the effect of the limitation-over upon the failure of A.'s issue IS'ftionofthe is, to vest the absolute interest in the term in him, notwith- absolute inter- ' . . est, and ulterior Standing the previous express bequest for life. And this, gift, void, by analogy to the rule, which obtains in regard to similar limitations of realty, whereby (as has been seen) an estate- tail is raised by implication in A., by reason of the manifes- tation of an intention in the author of the gift, that the ulterior limitation is not to take effect, until the extinction of the issue of the first taker. Some doubt appears to have formerly existed, (c) as to the question, whether the express gift for life did not amount to a declaration of intention, that the interest of the first taker should be confined to his life (in which case, the interest, intermediate his death and the time of the ulterior limitation taking effect, being un- (6) And see remarks of Lord Talb. 21. In arguend. Wilkinson v. Brougham, C, in 2 Russ. & My. 409. South, 7 T. R. 556. F. C. R. 487. (c) Love\. Windham, \ M.oi. bQ ; Rand. Perp. 148. 1 Lev. 290. Clare v. Clare, Ca. T. 322 LIMITATIONS OF PERSONATiTY [cHAP. XV First gift re- mains in siatJi (juo, when it passes the ab- solute interest. Wherever per- sonalty limited by words, which would create estate-tail in realty, the ab- solute interest passes. disposed of, and the last-mentioned period being too remote, there would be a failm-e of disposition); but later determi- nations (t/) have negatived this supposed distinction, between the bequest of a term, expressly for life, and an indefinite be(iuest, and have established, that, in regard to both, the effect of the limitation-over on the fiiilure of issue of the first laker, is, to vest the absolute interest of the term in him. Indeed, the circumstance, that the express life-interest will be enlarged by a stibsequent bequest-over on an indefinite failure of issue of the legatee for life, was, in one case, made use of as an argument, in support of the construction of a restricted failure, (e) Where the prior bequest of the term is absolute, (/. e. passes the whole interest,) it need hardly be remarked, that a subsequent limitation, upon failure of issue of the first taker, effects no alteration in his interest; that limitation being void for remoteness ; and the prior bequest having already vested an interest, corresponding to the estate-tail, to which the fee would have been cut down, had the subject-matter of the gift been real estate. It may be observed, in passing, that, not only in the cases above specified, but, also, in every case of a bequest of a term, by such words, as, applied to realty, would create an estate-tail, either express or implied, the absolute interest of (-< y^Tu have reference above quotcd irom ttic judgment in Garratt v. Cockerell, fi°3t leaker's " ^^^^ ^^ ^^^^ limitation-over be merely made to such members decease, and ^f ^ ^lass as shall be living at the time of the failure of issue, not to event of ^ o j j ^ ' whenever it may happen, there is no ground whatever, for a construction, restricting the failure to the ancestor's death, so far as it may depend on any such circumstance. Thus, in a late case, (r) a testator directed, that in the event of the death of his daughter, C. M., without lawful issue, certain property, which he had bequeathed to her, should be equally divided betwixt his nephews and nieces that should be living failure of issue, generally. (r) Campbell v. Harding, 2 Russ. & My. 390. S. C. sub nom. Candy V. Catnpbell, 2 CI. & Fin. 421 ; 8 Bligh, N. S. , 46;). And see the ear- lier cases of Wright v, Pearson, Ambl. 358; 1 Eden, 119; Destouches v. Walker, 2 Eden, 261 . Sed uirfe judg- ment in Murray v. Addenbrouk, 4 Russ. 407. SEC. III. — SUB. I.] ON FAILURE OF ISSUE. 337 at the time. It was held, both in the Court of (chancery, and in D. P., that the gift-over was void for remoteness. Lord Brougham, C, made the following pertinent observations, in reference to the argument which had been urged, that the words of qualification, in the ulterior limitation, restrained the generality of the expression, " decease without lawful issue," to a failure of issue at the death of C. H. : — " It is impossible, according to any fair principle of con- struction, to carry the case further upon the expression, * at the time,' than upon the word, ' then,' used as an adverb of time. The (juestion then resolves itself into this, ought that expression to be construed, as referring to the time of the decease, or to the time of the failure of issue ? And that again brings us round to the point, from which the inquiry originally set out, that is to say, to the construction to be put upon the clause of gift itself. Indeed, it is only, by a petitio principii, or something very like it, that the least shadow of argument can be founded on the expression, * living at the time,' and that only, by importing it into the clause, from a subsequent part of the will." And, again, — *' The time indicated may be, of issue living at the death of the first taker, or it may point to an indefinite failure of issue. If the limitation can be made out, by context, to mean, at the death, you do not want the words, for you have the estate by the limitation. K the other construction is put on them, the case is decided against the limitation-over." 8. Whenever a term or other chattel is bequeathed to 8. Bequest of two or more persons, and, in the event of the death of s!lr^S;-J of a either or any of them, to the survivors or survivor, it is said, class of persons. that the failure of issue referred to will be construed to be, a failure of issue living at the death of the parent ; a personal benefit being supposed to be intended for the surviving legatees, which is inconsistent with the idea of an indefinite foilure of issue. As the state of the law on this subject cannot be con- C&sQoi Hughea sidered perfectly settled, it will be proper, to take a brief ^' '^^^' 338 rJMITATIONS OF PERSONALTY [ciIAP. XV. review of" the autlioritics bearing upon it. The first case to be noticed is that oi Hughes v. Sayer, (s) wliere J. II., by liis will, be<]ucathecl certain shares in his residuary personal estate, to his nephew and niece, P. II. and A. II., and if cither of Ihem should die without children, then, to the survivor. Upon the question, whether this bequest-over of a personal estate, upon the legatees dying without children, (which was treated as synonymous with issue,) was good, or not ; Sir J. Jekyll was of opinion, that the words, dying without children, must be taken to mean, children living fit the death of the party : that they could not be taken in the other sense, that is, whenever there should be a failure of issue, because the immediate limitation-over was, to the surviving devisee, and it was not probable, that if either of the devisees should die leaving issue, the survivors should live so long, as to see a failure of issue, whicli, in notion of law, was such a limitation, as might endure for ever : and that as, therefore, the testator must be intended to mean, a dying without children living at the death of the parent, the devise-over was good. Case of A7. The next case is Nicholls v. Skinner, {t) (decided in the skitiner. jcar following the decision in the case last stated,) where J. N., by his will, devised certain real estate, and also some stock, to his three children, to be divided and paid at their respective ages of twenty-one, or days of marriage, and if any of them should die before that age or day of marriage, or if any ot them should die without issue, then, the share or shares of him or them so dying to go to the survivors or survivor, and to their heirs. Upon a bill filed by the eldest son, on his marriage under twenty-one, for an account and payment of his share, it was decreed, that the rents and income of the property should be invested, until the son should attain twenty-one, ivhen he was to have one-third of t ho stork, ami the produce thereof. Here, we perceive, \s) i P. Wms. 5;i4. (0 Pre. Ch. 528 ; better reported in 2 Mer, 135. SEC. III. sun. I.J ON FAILURE OF ISSUE. 339 the bcqucst-over of the stock was treated as void, upon the ground (as must be presumed) of the remoteness of the event ; and the fact, of the bequest being to the survivoi-s, could not, therefore, have been considered, as restricting the prior words, referring to a failure of issue, to mean, a dying without issue living at the death of the parent. And the reason must be supposed to be, that the circumstance, of the bequest-over being to the survivors a7id their heirs, excluded the notion of a 'personal benefit being intended for the survi- vors, which was the chief ground of the decision in Hughes V. Sayer. There does not appear to have been any direction respecting the real estate, in Nicholls v. Skinner, which, it should seem, is to be accounted for, by the fact, that, as the son took an estate-tail, by implication, the limitation to the survivors would be good as a remainder, which might be bar- red by the tenant in tail. One thing seems clear, however : — that Nicholls v. Skinner did not (as has been supposed,) {u) over-rule Hughes v. Sayer, by reason of the great difference between the limitations to the surviving legatees, in the two cases, arising out of the circumstance, of the bequest, in the former, being extended to the representatives of the sur*- vivors. In the case of Atkinson v. Hutchinson, (v) a term was be- Case of AfMn- queathed to A., for life, and after his decease, to such chil- son. dren as the testator should leave at the time of his decease ; and in the event of the death of any or either of the child- ren loithout leaving issue, to the survivors of them ; and if all such children should die without leaving any issue, then, to B. : and it was held, that the bequest to B. was good. The decision was not rested upon any supposed effect, of the bec[uest to the sun'ivors of the children, in controlling the failure of issue expressed, but proceeded upon the exploded distinction, between the bequest of leaseholds, by words, which would give an express estate -tail in freeholds, and (m) See argument in Ranelagh v. (y) 3 P. Wms. 25b. Ranelayh, 2 My. &• K. 445. z 2 S40 LIMITATIONS OF PERSONALTY [cilAP. XV, hy words, wliicli would give such an estate, only by impli- cation. But the case is noticed here, for the purpose of introducinp; an observation, of Mr. Fearnes,, {w) that the words, rc'terriufi; to the failure of issue of the legatees, were not sti'ictly a})plicable to an indefinite failure of issue, be- cause the first executory Umitatiun loas to the survivors ; upon which ground, that learned writer considers, the deci- sion, in favor of the ulterior limitation to B., supportable, irrespectively of the force to be attributed to tlu^ word, " leaving." Case oi Barlow The casc, next to be noticed, is that o^ Barlow v. Salter, (x) V. a er. ^^ wluch, a tcstatrix be([ncathed her real and personal estate, to M. V. ; " in case she died without issue, all to be divided between the testatrix's four nephews and nieces, N., VV., C, and E. ; C.'s part, only for life, and her part to be divided between the survivors.'^ The principal (luestion for decision was, how far the bequest to C for life had the effect, of restricting the failure of issue referred to, so as to render all the executory bequests valid. But the connexion of the case with our present subject, arises out of the follow- ing remarks of Sir Jf\ Grant, M. 11., made in the course of his observations, relative to the position of the three per- sons, who took absolute interests under the Executory bequests, transmissible to their representatives : — " Their right, even to C.'s fourth, will not depend on their being alive at her death ; for the word, ' survivors,' as here used, has the same sense as the word, ' others ' ; as has been frecjuently decided." This remark seems to deny to a be- quest to survivors of several legatees, a controlling force, in regard to previous words, referring to a failure of issue of some of them ; inasmuch as, by holding, that the title of the executory legatees does not depend on their surviving the failiue of issue intended, the sole ground for attributing to them, such a restrictive o])cialion, is taken away. (w) C. R. 480, (x) 17 Ves, 479. SEC. III. — SUB. I.] ON FAILURE OF ISSUE. 341 Next ill order, is the ease of Massey v. Hudson, (y) in Case of Afassey wliieh, there was a ehargc of two several legacies of 300/. each, upon real estate, in favor of A. and B. ; and in case A. or B., should die without issue, then, the whole of the said two legacies to go to the survivor of them, his executors, administrators, or assigns : one of the legatees dying with- out issue in the testator's lifetime; it was held, that the legacy lapsed. This case, it will be perceived, resembles Nicholls V. Skinner, in that, the words of representation, superadded to the limitation to the survivoi-s, excluded all idea of any j)ersonal benefit being intended them ; and upon that ground the decision was rested. While, however, the particular circumstances of the case did not admit of the words, " die without issue," receiving a restricted inlerj)re- tation, by force of the bequest-over, Sir W. Grant (in sin- gular inconsistency with his own above-quoted remark, in the case of Barloiv v. Salter,) thus forcibly observed upon the general presumption, arising from a bequest to the survivors of legatees, upon failure of issue of any of them. " Frimd facie,^'' said that learned judge, " a bequest-over, to the survivor of two persons, after the death of one without issue, furnishes the presum})tion, that an indefinite failure of issue could not be in the testator's contemplation ; for it will be intended, that the survivor was meant, individually and personally, to enjoy the legacy, and not merely, to take a vested interest, which might or might not be accompanied by actual possession. Foi', if the survivorship be necessary, only to vest the interest, and to render it transmissible, the objection of remoteness is not at all obviated, and the re- strictive presumption does not arise. Now, the addition of the words, ' executors, administrators, or assigns,' excludes the presumption, that it was a mere personal benefit, that was intended for the survivor. For, though there should be no such failure of issue as would enable him personally to take, yet his representatives would be entitled to claim, in (y) 2 Mer. 130. And sec Owrrfer strictive construction adopted had no V. Stone, 3 Russ. 217; but the re- reference to the word, " suivivors." 342 LIMIT ATIONS OF PERSONALTY [CUAP. XV. his right, wlicnsocvcr the faihirc should happen. It is, therefore, not a personal, but a transmissible interest, and, C(Miscqnentlv, the ground fails, on which alone, the words, ' dying without issue,' could have received a restricted in- terpretation." Case of The only remaining case to be noticed, is that of Ranelagh liaiivlayh V, \ n i i i C \ ' liandagh. V. Raiieiagh, (:) where, alter an absolute bequest to one ot nis daughters, the testator becjueathed four several legacies, to two others of his daughters, and his two younger sons, for their respective natural lives ; legal interest at five pounds per centum to be paid to all of them, on their legacies, until the testator's eldest son should attain twenty-one ; and in case of the demise of any of the legatees without legitimate issue, then, his or her proportions to be divided equally amongst the survivors.. The legatees claimed the absolute interest in their respective legacies, on the ground, that the gift-over, in case of the demise of any of them without issue, was to be referred to an indefinite failure of issue, and, therefore, operated to vest the absolute interest in the first takers. Sir John Leach, M. R., said, he adopted the language of Sir W. Grant, in Massey v. Hudson, and took the rule to be, that if separate legacies arc given to two or more persons, with a limitation- over, to the survivor or survivors, in case of the death of either without issue, the presumption, prima facie, was, that the testator had not in his contemplation, an indefinite failure of issue ; and he also said, that, so far from there being any circum- stance, to repel this presumption, in the case under con- sideration, it was fortified by the fact, that the legacies were, in the first j)lace, given for life only. The case was brought before Lord Brougham, on appeal, who, after noticing three circumstances, tending to rebut the construction which would give an absolute interest to the legatees, {viz., first, the testator having expressly given an absolute interest to one legatee ; secondly, the fixing a rate of interest which («) 2 My. & K. 441. And sec My. 408; and Ltcming v. Sherratt, dicta of Lord Brougham, 2 Kuss. & 1 Hare, 14. SEC III. SUB. I. I ON FAILtJHE OF ISSUK. 343 the legatees were to have, for a given period; and, thirdly, the becjiiests of the legacies being all expressly for llie lives of the legatees,) said, that they greatly favored the opinion, that the word, " survivors," was used, in its plain and obvious sense, as meaning, such of the four individuals named as should be living, when any of tiiem slioukl happen to die ; and that, if such should be the meaning of the word, then it was clear, that the failure of issue was at once restricted, to failure of issue living at the death of the deceased leiiatec. His lordship also took occasion to observe, that his decision rested upon the special circumstances noticed, and that, therefore, it was not a decision upon the general principle, and did not, indeed, go so far towards it, as either the doctrine of Sir IF. Grant, in Massey v. Hudson, or the decision of Sir /. Jekyll, in Hughes v. Sayer. It is difficult, to arrive at any positive conclusion, from the General result foregoing authorities, upon the question under consideration, authorhic" oa On the one hand, the decision in Hughes v. Sayer, (unat- *^^'^ P°'"*' fected, as we have seen, by Nicholls v. Skinner,) the opinion of Mr. Fearne, in regard to the case of Atkinso7i v. Hut- chinson, and the dicta of Sir W. Grant, in the case of Massey v. Hudson, and of Sir John Leach, in Ranelagh v. RaneJagh, strongly support the doctrine, that a gift to survi- voi-s of several persons, upon the death of any of them without issue, restricts the failure of issue, to the death of the parent ; while, at the same time, the observation of Sir AF. Grant, in Barlow v. Salter, (albeit irreconcileable with his subse- quent remarks, in Massey v. Hudson,) and the guarded and cautious language of Lord Brougham, in Ranelagh v. Rane- lagh, with his apparent eagerness to rest his decision of the case, upon other grounds than the supposed rule, seem to re(|uire hesitation in the adoption of the doctrine in ques- tion, as a settled rule of construction. It may be observed, however, that the preponderance of authority is supported by the jii'iiiciple of law, which seeks to establish Executory be- quests of personal estate, depending upon a failure of issue, 344 LIMITATIONS OF PERSONALTY [ciIAP. XT. Words of representation superadded to gift to survivors negative any inference in favor of restrictive con- struction. If gift to sur- vivors has the effect of restricting the failure, subse- quent limita- tion, on failure of issue of all members of the class, subject to same construc- tion. 9. Circum- stance of ulterior limita- tion being introduced by words, " after his decease," &c. by taking advantage of" any circumstances, connected with the Umitations, which may reasonably be understood to in- dicate, tliat the faihire intended was, a dying without issue Uving at the death. Of course, it is perfectly clear, that wherever words of rej^rescntation (such i\s, " executors and administrators,"; are superadded to the limitation to the survivoi-s, all presumption, of personal or individual enjoyment being intended for them, is excluded ; and, in such case, therefore, there is no ground for giving the words, " die without issue," &c., a restricted interpretation. We have here to observe, in connexion with the subject, of the force to be attributed to a limitation to the survivors of several legatees, in regard to words, importing a failure of issue of one or more of them, that it should seem, if, by virtue of such a limitation, the failure of issue is restricted to the death of the parent, so as to enable the bequest to the surviving legatees to take effect, a subsequent bequest- over, on failure of issue of all the legatees, by the same words as are used to introduce the c;-05S-limitation, will be e([ually good ; as it is but reasonable, to give the same words, the same construction, in an ulterior limitation, as they bear, in a limitation immediately preceding, applied to the same subject, (a) 9. It is well established, that the words, " at" or " after his decease," introduced in a hmitation-over of personal estate, to take effect upon the death and default of issue of a prior legatee, have the effect, of restraining the failure of issue, to the time of the death of the legatee. Thus, in a case before cited, (b) a testator, after making his wife executrix, bequeathed to her, all his goods and chattels, provided, that if she should die without issue by the testator, then, after her decease, 80/. should remain to (a) Vide supra, p. 242. Radford V. Radford, I Keen, 486. And sec F. C. R. 481. (b) Pinhury V. Elkin, 1 P. Wms. 663. Sed vide, observations of Lord Hardwichc, 1 Ves. sr. 237, 238. SEC. III. SUB. 1.] ON FAILURE OF ISSUE, 34o the testator's brother : and it was held, that the becjuest-over was good ; the words, the^i after (i. e. immediately after, (c)) the decease of the testator's wife, being repugnant, if the dying without issue should be taken in the sense, ivhenever there should be a failure of issue. So, also, where {d) a testator bequeathed a leasehold estate, to his wife, M. P., for life, and, after her decease, to his son, S. P., and the heirs of his body, and their heirs and assigns for ever ; but in default of such issue, then, after his decease, to go to T. W., his heirs and assigns; the question was, whether the Executory bequest to T. W. was valid : and the Court of B. R., on a case sent from Chancery, certified, that they were of opinion, that the entire and absolute interest in the term passed to T. W., on the ground, that the words, " but in default of such issue, then, after his decease, to T. W.," showed, that the testator's intention was, that, if S. P. did not leave any issue at his death, the subsequent limitation should take effect. Yet again, where (e) a testator bequeathed leasehold pro- perty, to his daughter and her children, and in default of such issue, and in case of her death, to A. and B. ; upon the question, whether the limitation-over was too remote. Sir Thomas Plumer, M. R., held, that the words, " in default of such issue," must be taken in connexion with those that follow ; viz., " in case of her death ;" in which case, they referred to the same period, and meant, a failure of issue at her death, whereupon the limitation-over was to take effect. And, once more, where (/) a testator by his will be- (pieathed one -fourth part of his personal estate, to his son. (c) Sed vide, as to this, observations And see also the cases of Paine v. of Sir W. Grant, in Donn v. Penny, Stratton, cited 2 Atk. 647, and re- 19 Ves. 548. ported, 3 Bro. Pari Ca. 257; and (d) Wilkinson v. South, 7 T. R. Trotter v. Omald, I Cox, 3\7. 555. (/) Rackstraw v. Vile, 1 Sim. & (c) Gaickr v. Cadbt/, Jac, 346. Stu. 604. 340 LIMITATIONS OF PERSONALTY [c'lIAP. XV. ]Jut, " after him," not attendcfl by any restrictive force. 10. Circum- stance of limitation on failure of issue being jjrccx'dcd by power of appointment among issue*, given to first taker. and, by a codicil, declared, that that share should be only tor the natural life of the son and his wife, provided they had no issue, and, at their death, should fall into the residue ; it was held, by Sir /. Leach, V. C, that the failure of issue was restricted to the decease of the survivor of the son and his wife, by force of the words, by which the ulterior dispo- sition was introduced. But the words, " after him," will not have the same effect, of confining previous general words, referring to a failure of issue, as the expression, " after his decease." Thus, upon (g) a bequest of real and personal estate, to 11. D,, and his male issue, and for want of such issue, after him, to W. 1)., and his male issue, and so, in like manner, to others ; the ques- tion was, whether the above words gave the absolute inter- est in the personalty, to R. D., or a life interest only, with an Executory bequest to W. D., in the event of R. D.'s death, without leaving male issue ; and Sir JV. Grant, after referring to Pinhunj v. Elkin, said, that there was no deter- minate period assigned, vis^., the death of the first taker, as in that case ; and that there were no circumstances arising u})on fair demonstration, by which alone the general sense of the words, " for want of issue," conld be varied, {h) 10. It occurs, in the next place, to notice another cir- cumstance, which has been considered sufficient, to give a restricted construction to words, importing a failure of issue, although, perhaps, in some respects, its consideration belongs, more properly, to the division of our subject, appropriated to the construction, making the contingency of a failure of issue, referential to children or issue taking imder a preceding gift. The restrictive circumstance in question is that, of a power of appointment or selection, among the issue of the first taker, being vested in him ; in virtue of which, there is an implied gift to the issue living at his decease. (/) ((/) Donn V. re.nny, 1 Mer. 20. (A) Ptr Lord Thurlou; in Bifff/e V. Bcnski/, I Bro. C. C. 100. (i) 2 Jarm. Pow. Dcv. 090. SEC. III. SIII{. I.] ON FAILtJIlE OF iSSlTE. 347 This doctrine proceeds on a rnle ol" law, that where a Grounds of , , . , , , restrictive power IS given ni tenns, which show, that the title ot tlie construction objects of it to the property is not intended, to be depend- |!^jr"ums'tance ent on the exercise of the discretion with which the first taker is invested, but that he is merely to have a power of apportioning the shares or interests of the objects, they will take, in the event of and notwithstanding default in execu- tion of the power by the donee of it. (k) In the case supposed, therefore, of a right of selection among the issue of the fii"st taker, the word, " issue," does not receive its primary indefinite signification, but is con- strued to mean, issue living at the first taker's death, being the peinod, when an actual division of the property must take place, either according to the appointment of the first taker, or in the proportions, in which the issue are naturally entitled, in default of any explicit direction or gift. The word, " issue," being thus confined to the significa- tion of issue living at the death of the ancestor, the restricted construction of the words introducing the gift-over is com- pleted, by holding them to refer to the issue entitled under the preceding implied gift ; the result of which con- struction is, the validity of the ulterior limitation, as not depending on too remote an event. It will be observed, this doctrine assumes, that the Power must power and the implied gift are co-extensive, in regard to to b "confined the class of issue comprehended by each ; i, e., as includino; ^° '^^"^' ^'""S '^ . ^' ancestor s only issue living at the first taker's death. (/) And this, decease. it is evident, is indispensable, for, as the implication of a gift is grounded on the inference derived from the terms of the power, if that power embrace issue, not to be neces- sarily ascertained at the death of the ancestor, but at any PowelTs note to F. Ex. Dev. 188. But see one of the authorities for the 2 Rop. Leg. 401. Prior on ' Issue," doctrine in question cited in 1 Sag. 117, 131. Pow 490, as showing, that all issue (k) 2 Sug. Pow. 177, 184. u-iihin the limits of retnoteness were (0 See 2 Jarm. Pow. Dev. -592. embraced by the power. 348 LIMITATIONS OF PERSONALTY [CHAP. XV. time within the allowed limits of remoteness, all ground for restrictin ])owcr was, clearly, nothing more than an authority, antl raised no gift by implication to the issue, as purchasers. Independently of that, however, any argument from tlw? power, would have been objectionable, seeing that, as re- gards the interests of the other devisees, it operated nothing, there being expi-es.s limitations to their resjiective issue ; which (as will be presently shown,) negatives any controlling influence belonging to the power ; and it would have been a strange decision, that should make that power sei^ve to introduce an isolated construction, in reference to one of several gifts, contemplated by it as a single class or (con- tinuous series, and that, too, from a circumstance arising in (he mere neglect of the transcriber. The case of Bruce v. Bainhr'ulge, therefore, is not irre- concilcablc widi that of Simmons v. Simmons, and does not affect the rule, that, to support the restricted construction of a failure of issue, founded on the circumstance, of the an- cestor having a power of appointment among the issue, the case must be one, in which the issue living at his decease would be entitled under an implied gift, in default of ap- ])ointment : and (hat, because the case, in reality, forms no authority /o;- the doctrine we have been considering. Doctrine seem- It may be obsei*ved, that there seems no ground, for con- cable 1*0^' ' fining the application of this doctrine, to limitations of per- liniitatioiis of sonalty, although, in the instances furnished by the authori- icalty as well ... as of person- ties, with the exception of Hockley v. Matvbey, the subject- matter has been personal estate, and notwithstanding a different view seems to have been sometimes entertained, {v) Rule docs not It must be noted, that the restrictive construction, groun- apply to cases , , , . r r ■ ot ajncss uc(l ou ttic cu'cumstancc of a power or apponitment among issue. llis issue, has no application whatever to the case, of an ex- (v) See 2 Jarm. Pow. Dcv. 590. SEC. III. — SUB. I.] ON FAILURE OF ISSUE. 355 press limitation to issue of a prior tenant for life, which happens to be preceded by a power of appointment in favor of children or issue, for then, according to the only rational construction, the first taker has an estate-tail, or, in the case of personalty, the absolute interest, in the same manner, as if no such power had been inserted, {w) 11. A circumstance, to which, as we have before seen, ii. Circum 1 , ^ 1 • • • , .• stance of in- importance has been attached, m puttmg an mterpretation tention to upon words importing a failure of issue, is that, of the gift [akerto^a Hfc to the parent or other ancestor being expressly/ for life. interest. Thus, in the case of Smith v. Clever, (x) A., after giving Case of several legacies, devised, that the rest and residue of her ciever. estate unbequeathed, should be put forth to interest, by her executors, and that one-half should be paid to the testatrix's sister, B., during her life, and the other half of the interest, unto her daughter, C, and she to have one-half of the tes- tatrix's household goods, and after her mother's decease, to have all the interest during her life ; and the testatrix's will was, that if the said B. should die without issue of her body, the principal of the residue should be divided equally between D. and E., and such children as were or should be born of their bodies, then living. The question was, as to the validity of the bequest to D. and E. ; and it was deter- mined, that that limitation was good, upon the ground of the distinction between the bequest of the interest of money, and the bequest of the money itself, the former furnishing evidence of the testator's intention, to use the words, " dying without issue," in a sense, which would not carry the whole interest to the legatee for life. It has, indeed, been de- Observations cided, {y) that, in the case of a bequest of the interest of a clever. {w) See Scale V. Barter, 2 Bos. & (y) Butterfeld \. Bititerjielcl,! Yes. Pull. 485; lesson v. IFriffht, 2 Bligh, sr. 133, 154. Tothill \ . Pitt,, 1 Madd. 1 ; Doe d. Cole y. Goldsmith, 2 Marsh, 488; S. C. sub nam. Earl of Chat- 617 ; 7 Taunt. 209 ; Smithy. Death, ham v. Daw Tothill, 6 Bro. Pari, Ca. 5 Madd. 371 ; 2 Jarrn. Pow. Dev. 450. Glover v. Strothof, 2 Bro. C.C 593; Hayes' Enquiry, &c., 42— 55 ; 33. Attorneij- General v. Bright, i Prior on " Issue," 119, 120. Keen, 57. (x) 2 Ch. Rep. 410; 2 Vern. 38. A A 2 356 LIMITATIONS OF PERSONALTY [ciIAP. XV. personal fund, foi- life, and of the principal^ after the decease of the legatee for life, to the heirs of his body, the circum- stance, of the prior bequest beinfr confined to the life of the legatee, does not prevent the whole finid vesting absolutely in him, under the bequest to his issue, conjoined with that to himself: and it has, in consequence, been sometimes {z) supposed, that the rule laid down in Smith v. Clever, does not now obtain. But it is conceived, the two cases are per- fectly distinct : — in that of a bccpicst, expressly for life, and, aftcrwai'ds, to the issue of the legatee, the mere circumstance, of the prior bequest being of a life interest only, cannot properly have the effect of preventing the whole fund vesting in the first taker, any more than, the fict, of a devise of real estate being expressly for life, prevents a fee- tail passing to the devisee, under a subsequent devise to the heirs of his body, by virtue of the Rule in Shelley^s case; by analogy to which rule, the absolute interest, in the case supposed, is held to vest in the legatee for life : but, in the case of a bequest for life, and, in default of issue of the legatee, over, any enlargement of his interest must take effect entirely by implication, founded on a construction, put upon the words, referring to the failure of his issue ; and such implication may well be repelled, by the manifest- ation of a contrary intention, afforded, in some degree, by the circumstance, of the pi'ior bequest being expressly con- fined to the life of the legatee, (a) Case of Rane. lu addition to the case of Smith v. Clever, in support of lianeiafjh. ^^ prcsumption we are considering, it will be remembered, that in the before-cited case of lianelagh v. Ranelagh, {b) Lord Chancellor Brougham laid great stress upon the fact, of the first ijecjuests being of life-interests only, as an argu- ment against the construction contendctl for in that case, which would give the absolute interest in the legacy to the legatees for life. (z) F. C. R. 475, 486. pp. '270, 271. («) And sec flic observations of Mr. {b) 2 Mv. »Sc K. 441. Powell, in his edition of F. Ex. Dov., SEC. m. — SUB. I.] ON FAILURE OF ISSUE. 357 The presumption, In favor of a restricted interpretation Extent of , , present of words, referring to a failure of issue, arising from the cir- influence of cumstance, of the prior bequest being confined to the hfe ^^'^ octnne. of the ancestor, is based, it will be perceived, solely upon a regard to the consequences of a contrary construction, which involves a practical obliteration of a portion of the gift. But this presumption will not, it would seem, be allowed, except as auxiliary to other circumstances, of a like ten- dency ; for it is clear, (as has been formerly remarked,) that a limitation of a term or other chattel, to a person, for life, and if he die without issue, over, simply operates to vest the absolute interest in the chattel, in the prior legatee. 12. In addition to the various expressions and circum- ^2. Case of . Keily\. Fowler. stances, the influence of which, upon words referring to a failure of issue, has hitherto engaged our attention, instances have, from time to time, occurred, of others, of a peculiar character, and not properly belonging to any of the classes before enumerated, one of which, it will not be well, to leave wholly unnoticed. The case in question, is that of Keily v. Fowler, (c) de- termined in Dom. Proc, on appeal from the Court of Chancery in Ireland. W. C. bequeathed to his daughter, all his worldly substance, lands, stock, corn, debts, and household goods ; provided she married by the consent of his executors ; and, after naming A. and B. his executors, the testator appointed, that in case his said daughter should marry without consent, or die without issue, all his said sub- stance, &c., should return back to his executors, to be by them distributed, in manner following : viz., to his nephew, J. D., lOOZ., to H. G., 50/., to each of his executors afore- said, 50/., to his daughter, twenty cows and a horse only, and the remainder to be equally divided amongst the children of the testator's sister, F. F. iVnd upon the question, of the validity of the limitation-over after the death of the (c) 6 Bro. Pari. Ca. 309. 358 LIMIT ATIOXS OF PERSONALTY [cHAP. XV. testator's daughter without issue, the House of Lords (affirm - ing the decree of the Court below) held, that the bequest was good, as being to take effect, on the death of the Nature of daughter icithout issue then living. This decision appears the decision in, , iiiij-- Keiiyy.Fowkr. to havc proceeded on the ground, that, by the direction, that the projxjrty should return to the executors, to be dis- tributed by them, the testator placed a personal trust and confidence in the executors, and showed, that he considered the events, on which the limitation-over was to take effect, to be such, as, if they happened at all, would, in all proba- bility, so happen, in the lifetime of his executors, or one of them ; which was inconsistent with the idea of an indefinite failure of issue, {d) In the arguments, too, great stress was laid on the circumstance, of the limitation-over being made to the executors named in the will, and of a personal trust being reposed in them, in support of a construction, restrict- ing the failure of issue to the time of the first legatee's death. The legacies and other provisions, contingent on the failure of issue, were, also, favorable to the construction adopted. In addition to the proper weight of this case, it has been adhered to, as one of no less authority at the present day, by eminent judges. For example, Lord Brougham, in a recent case, (e) thus refeiTcd to this decision, and the grounds of it : — " The Court laid hold of the circumstance of it being a personal trust, the duties imposed on the executors strongly implying a delectus personarum : the very peculiar form of the direction, that the property should return back to the executors, in order to be divided, and the nature of the chattels to be given to the daughter, viz.y twenty cows and one horse, in the event of the limitation- (rf) F. C. R. 483. And see the circumstances attending the limita- observations of Mr. Justice Bulkr, in tion-over formed the chief ground of Doe V. Lyde, 1 T. R. 537, where that the decision. learned judge refers to a full note of (e) Campbell v. Harding, 2 Russi. the judgment in Kcihjv. Fowler; from & My. 408, 409. ■which it appears, that the peculiar SEC. in. SUB. I.] 0"N KATLTIRE OF ISSUE. 359 over taking effect, (/) were also material features in the case." And, again, {g) — " In Keily v. Fowler, the subject of the gift was to return hack to the very identical persona; delectce, the executoi-s, and was to be actually provided, in terms clearly contemplating and expressing a desire, that it should revert to them personally." And, so. Sir /. L. Knight Bruce, V. C, in a still later case, {h) after remarking, that the case of Keily v. Fowler, was decided in the time of Lord Chan- cellor Camden, and, it was to be supposed, with his concur- rence, and, certainly, in accordance with the unanimous opinion of the consulted judges, after time taken to consider, and that it was, in all respects, of the very highest authority, thus forcibly showed the real extent and meaning of the decision. " Considering that, in that case," said his honor, *' the executors had no discretion to exercise, as to the mode of distributing the property ; that the daughter might have died leaving issue, which might afterwards have failed, livin<>- the original executors ; that, on the other hand, the daughter might have sun'ived the executors, and might afterwards have died without leaving issue, in which event, the children of the sister or their representatives must, probably, have been held entitled to take, whether those children did, or did not, survive the daughter, it may, I think, be fairly doubted, whether the circumstances, held to be sufficient to sepel the presum})tion of the unrestricted sense of the words, ' die without issue,' were more than ex- ceedingly slight circumstances." And the learned judge then quoted an observation of Wilmot, C. J., on delivering (/) In reference to this argu- held in trust ; and it, therefore, comes ment, it has been aptly observed,— to the same thing, as if he had spe- " This reason is not so clear ; the cifically bequeathed them to his daughter was not to have these, only daughter, and excepted them out of in the event of her dying without the residuary devise. " Prior on "Is- issue : on the contrary, it seems to sue," 86, 87. See also 2 Jarm. Pow. have been the testator's intention, to Dev. 589. give them to lier, upon every contin- ((;) lb. 413. gency ; probably, to prevent the in- (/i) Garratt \. Cockercll, 1 You. &■ convenience of such property being Coll., N. C C, 505, 50tj. 360 LIRHTATIONS OF PERSONALTY [ciIAP. XV. his opinion upon the case, in the House of Lords, to show, that the case stood upon the evidence of the testator's inten- tion arising out of the will, and that it was unnecessary and useless, to resort to decided cases, which did not perfectly coincide, for that a will was " the picture of a man's mind." The case of Keihj v. Fowler must, therefore, be treated, as one, decided upon the strength of the indicia of intention furnished by the will, which were, undeniably, unfavorable to the supposition, that the testator had in his contemplation, an event of indefinite expectancy. Strictures may be made upon the force of any particular circumstance or expression, and their individual sufficiency may be questioned ; (/) but if an intelligible presumption may be founded on the whole, adverse to the construction of a general failure, there can be no doubt, that effect may legally be given to that presumption. 13. But, notwithstanding the inclination of the Courts, to pay attention to circumstances, favorable to the construction of a restricted failure of issue, in regard to limitations of circumstance in personal cstatc, it is clear, that mere presumption of intcn- tlie instrument, * ... of no force. tion, drawn from extrinsic circumstances, unless some ex- j)ression of the intention, or some circumstance, from which it may he inferred, be found in the instrument, is of no value, [j) There must be something apparent upon the face of the limitations themselves, evincing an intention, not merely, that the gift in question should take effect, but that it should be dependent, on the event of a dying without issue, not indefinite or unrestricted. The following pointed observations of Lord Brougham manifest the unwillingness of the judges, to expound and decide the construction of instruments, upon circumstances wholly independent of them. " I will not," said his lord- ship, in a recent case, {k) " be stopped by a colon or a 13. Extrinsic circumstances, without con- curring ex- pression or ncies, was a word of reference, and related to the determination of the first limitation, when the contingency arises, and that, in the case before him, it did not ascertain the point of time, but Wcis merely relative to the determination of the limita- tion to M. D., and the contingencies taking place. So, also, in another case, {p) one bequeathed all his personal estate, to his wife, F., and appointed her sole executrix, but in case (n) Per Lord Brougham, '2 Russ. & My. 408. (o) Ueauckrk v. Dormer, 2 Atk. 308. (;)) Bigge v. Bcnsky, 1 Bro. C. C, 190. SEC. III. — SUB. r.j ON FAILURE OF ISSUE. of the death of F. without issue, then, ho gave the whole, to the eldest son of his brother, R. Lord Thurloro held, that the word, " then," in limitations of estates, was merely a word of relation, and not an adverb of time, and upon Lord Hardwiches authority, he said, he must hold, that that word did not make any difference. And, again, in a more recent case, {q) where there was a gift in the fol- lowing words : — " In case of her death without lawful issue, I then will the money so left to her, to be equally divided betwixt my nephews and nieces who may be living at the time ;" it was decided by Lord Broughaniy C, that, *• then," was a word of reference, relating to the deter- mination of the first limitation, whether at or whensoever after the death, the issue should fail. And, moreover, in a still later case, (r) there was a bequest of a moiety of the testatrix's residuary estate, to her natural daughter, E. B. O., for life, to her separate use, and upon her decease, to her children lawfully begotten, and in case of her decease with- out lawful issue, then, to J. O., also a natural child of the testatrix. E. B. O. had only one child, who died a few hours after its birth ; and J. O. also died without issue. After the decease of E. B. O., a bill was filed, by persons who had taken out letters of administration to the deceased child, claiming to be entitled to a sum of stock, part of the testatrix's personal estate. The fund was claimed by the Crown, on the ground, that there was a valid executory gift to J. O., in case of the decease of the legatee for life without leaving issue surviving her, to the benefit of which, the Crown was entitled, by reason of the death of J. O. without issue. The question, therefore, obviously, was, whether the word, " then," was sufficient to restrict the failure of issue, to the time of the death of the first legatee, as it was only upon the force of that word, that such a con- struction could rest. Sir /. L. Knight Bruce, V. C, after (<7) Campbell v. Harding, 2 Russ. (^r) Pye v. Linwood, reported in 6 & My. 390. Jur. 618. 363 36-4 LIMITATIONS OF PERSONALTY [ciIAP. XV. " Immediately thereupon " also of no force. 15. "If any" in limitation to issue, preceding' gift-over, not sufficient to support restrictive construction. Case of Eltoti V. Eason. quoting and commenting upon, at length, the arguments of Lord Brougham, in the last-cited case, decided, that, "then," did not mean the instant of death of the parent, but death without issue, generally, and that, therefore, the representa- tives of the deceased child were entitled. Upon the like ground, there can be little doubt, that the words, " immediately tliereupon," or the like, would be in- operative, to give rise to a restricted interpretation of the contingency of a failnre of issue. 15. And so, again, words, which, though apparently con- fmiu"- the failure of issue, to the time of the death of the first taker, do, in fact, express no more, than is, from the nature of the case, imphed, will have no restrictive effect, in accordance with the rule, expressio eorum qiuc tacite in- sunt nihil operatur. If, therefore, there be a limitation of personalty, to A., and the heirs of his body, if any, and in default of snch issue, over, it may, perhaps, at first sight, appear, that the words, " if any," must be construed, if there shall be any issue at the time of the cesser of the life-estate, and that the further limitation, in default of issue, must be confined to the contingency of a failure of issue, at that par- ticular time. But the following observations of Sir W. Grant, M. 11., in reference to a bequest of the kind mentioned, en- tu'ely dispose of any such argument (s): — " Can the addition of the words, * if any,' which must always be implied, whether they arc added or not, change the sense of, ' heirs of the body,' and make those words mean, such heirs of his body only as should be living at his (the first taker's) death? To be sure, if there were no heirs of his body, none could take : but a limitation-over, in default of heirs of die body, includes both the case, of there never being any heir, or, of there being none capable of taking, by surviving the parent, and of the failure of such heirs, at any subsequent time. Though heirs of the body, if any, arc to take,. which is the (*) See Ellon V. Eami, 19 Vcs. 78. SEC. III. — SUB. I.] ON FAILURE OF ISSUE. 3G5 whole ini})ort of the clause, how does it follow, that the re- mainder-man -over is not to take, whenever the heirs shall fail, at whatever period that may happen? Supposing, personal property were capahle of heing entailed, I see nothing, that w^ould shut out the claim of the remainder-man, whenever a failure of issue should have taken place. It would he no answer to him, to say, the heirs, if any, were to take hefore you. That, every limitation to heirs of the body implies : they are to take before the remainder-man : but is he not to take when they fail ?" And, in the case, upon which these observations w^ere made, accordingly, the learned judge held, that the absolute interest in the personal property be- queathed, vested in the first taker, and that the legatee- over, who claimed on his death without issue, had no title. We have thus ascertained, the various distinctions that General ob- prevail, in regard to the expressions and circumstances, sulVect°of this" which are of weight, to give a restricted interpretation to Subdivision. words, importing, in the first instance, an indefinite failure of issue, in limitations of terms and other personal estate. One general observation, to be made with respect to them, is, that, however plain the expressions, or intelligible the circumstances, to which this restrictive force is attached, they are only allowed effect, as affording evidence of the intention of the author of the gift ; and that presumption may, therefore, be always rebutted, by any thing in the language of the limitations, denoting, that the words, refer- ring to a failure of issue, w^ere used in the general unconfined sense, which belongs to them, according to their proper legal signification. And, of course, in estimating, in any given case, the relative weight of legal import, and of ambiguously expressed intention, the primary interpretation of words or expressions must be considered to be, that which is sanc- tioned by the former, to be repelled, only ])y the plain ex- pression, or necessary implication, of a contrary intent, in the author of the limitations : in other words, the presump- tion must be treated, as on the side of late, and the burthen 300 LIMITATIONS OF rERi50KALTY. [cHAP. XV. As to applica- bility of above rules and distinctions to limitations in deeds. of proof, on that of intent. For while, upon the one hand, the construction of specific words, which have acquired a fixed legal import, (so as to enable the learned to decide immediately, how far, and, in what manner, property may be dealt with and settled,) must not Xm broken in upon ; so, on the other, it is perfectly allowable, to push criticisms, to the utmost extent, upon those words, where the liberality of modern times has struggled, to escape fi-om the trammels of technical conclusions, which obstruct or stand in the way of evident intention, by admitting minute, yet obvious dis- tinctions, deduced fi'om additional language, or concomitant circumstances, (t) It remains, to observe, that all the authorities, as to the restrictive force of particular expressions and circumstances, u])on the contingency of a dying without issue, in respect to limitations of personalty, are confined to instances of such limitations, in wills; and, as was remarked, when concluding a similar inquiry as to limitations of real estate, (m) it is impossible, to predicate, with any degree of certainty, to what extent, the rules, that have been established, in reference to testamentary dispositions, would be extended to cases arising upon instruments inter vivos. Subdivision II. No exception, Of the exceptions to the rule, invalidating limitations cf personalty, to take effect on an indefinite failure of issue. It will be proper, now to proceed to inquire, in what instances, limitations of terms or other chattels, expressed to take eifect upon a general failure of issue, are valid. In the first place, it is plain, that there is no opening for an exception to the general rule, analogous to that founded (0 PoweWs note to F, Ex. Dcv. (?t) Vide supra, pp. 251, 252. 257. SEC. Til.— sun. II.] ON FAILURE OF ISSUE. ^67 on the devise of a reversion of real estate, expectant upon analogous to . that of devise failure of the issue entitled under a preceding entail; {v) of reversion on and that, because the existence of an interest in personal ®^ * property, contingent upon an indefinite failure of issue, is impossible. For a similar reason, it is manifest, that the exception, in the And none . . similar to tha case of realty, of possibilities, depending on base-fees ansmg of interest by matter ex post facto, (w) can have no place, in regard to -^iXTtructibUj limitations of personalty on foilure of issue. That doctrine base-lec. necessarily pre-supposes the existence of valid estates, pos- terior to or expectant upon a preceding estate-tail, which, nor analogous interests, cannot co-exist in personalty. 1. The exception to the rule in question, arising in the l. Exception, when subject is limited extent of the subject-matter, which has been for- a term deter- merly noticed, (a?) in reference to gifts of real estate, is of ™!"^ equal applicalnlity to limitations on a failure of issue, where the subject-matter is a term of years determinable on lives, or is, otherwise, such, as to afford a guarantee for the non- violation of the laws against remoteness. But it will be well, to delay the more particular consideration of this subject, agreeably to the course adopted, in reference to the same question, as connected with limitations of real estate. 2. The most frequently-occurring instance, of a valid limi- 2. Limitations If,., r- ' • of chattels with tation of personal property after a general failure ot issue, is a double aspect. that which is technically termed, a Umiiatmi with a double aspect, {y) Thus, let it be supposed, that a term is be- queathed, or limited by deed, to A., for life, and, after his decease, to his fii-st (unborn) son, and the heirs of his body, with a limitation-over, on failure of such issue, to B. Here, it is plain, that the limitation to B. must be void, if the event, on which it depends, be regarded, abstractedly; because there is a prior limitation to the son of A., and his issue, and it is only upon his death, and the general failure of («) Vide supra, p. 253. My. 406. (w) Vide supra, p. 267. (y) See 2 Rop. Leg. 395 ; 2 Jarm. (x) Vide supra, p. 267. See re- Pow. Dev. 640. marks of Lord Broupham, 2 Russ. & 368 LIMITATIONS OF PERSONALTY. [ciIAP. XV. liis issue, that the subsequent Umitatiou is to take effect. But, inasmuch as no son of A. may ever be born, and the gift, therefore, to that son may never vest, the law regards all the limitations, subsc(iucnt to that in favor of xV., as being in suspense, until the birth of a son to him : if such a son be born, the whole interest in the terra vests absolutely in him, under the gift to him and the heirs of his body, and the subsequent limitation to B. instantly becomes void: if, however, A. die without having had issue, a son, and so, the limitation to that son fail of taking effect, the ulterior gift to B., thereupon, becomes good in event, and the whole term vests absolutely in him. And, moreover, as it must be decided by the death of A., whether he has any son, or not, and it is, upon the failure of such issue only, that the limitation to B. can vest, all tendency to a perpe- tuity, in respect of it, is removed ; for, however remote it may be, as a contingent limitation, yet, it is impossible, that it can ever vest, at any later period, than the death of A. And this reasoning equally applies to any number of suc- cessive contingent limitations : until the first executory limi- tation of the whole interest vests, any of the succeeding limitations, although, apparently, depending upon the gene- ral failure of issue of the person, to whom the first limitation is made, may eventually be good ; each, of course, taking place, according to its order : and, if the executory limitation, which takes place upon the failure of the first gift, carry the whole interest, then, all the subsequent limitations become void ; if it do not include the entire interest, the gifts expectant upon it will take place, in due course, until some one, embracing the whole interest, happens to vest. Exemplifica- To exemplify this, by the common mode of limitations in tion ot this nian-iao-e settlements : — A term of years is assigned to trus- doctnnc. o . tees, in trust for the husband and wife, successively, for their rcsi)ective lives, and, after the decease of the survivor, in trust for the first, second, and every other son of the marriage, successively, and the heirs of their respective SEC. III. — SUB. n.] ON FAILURE OF ISSUE. 369 bodies ; with further Hmitations, in case of there being no sons of the marriage ; and a proviso is then inserted, that the term shall not vest absohitely in any son, under the hmitation to him and the iieirs of his body, until he shall attain the age of twenty-one years. It may be supposed, two sons are born: until the attainment, by the eldest, of his age of twenty-one years, it is uncertain, whether he will ever acquire a vested interest, under the limitation to him. If the eldest son attain his age of twenty-one years, the whole term vests absolutely, by virtue of the limitation to him and the hell's of his body, and the gift to the second son immediately becomes void : if the eldest son die in his minority, the limitations, subsecpient to that in favor of the deceased son, continue in suspense, until the second son attains his majority, whereupon, the whole interest in the term vests absolutely in him : and the same applies to each son successively becoming an eldest, until some one son attains a vested interest. In fact, as it has been well said, (z) it appears, that in a Reason for settlement of chattels, there may be an interest, answering denomination to a remainder, expectant upon a contmgent, but not upon a °{^^ ^'^^' vested, estate-tail. And this mode of settlement is called a limitation with a double aspect, because the limitations, sub- sequent to the first which carries the whole interest, do not properly take effect after that limitation, but as alternatives substituted in its place, if it fails, in consequence of no per- son acquiring a vested interest under it. As this doctrine is the foundation of, and is, therefore. Case of Stan- lei/ V. Leigh. exemplified in, nearly all modern settlements of terms of years and other chattels, it will be unnecessary, to illustrate or confirm it, by more than two decided cases. In one case, (o) a testatrix bequeathed a term of years, in trust (after payment of debts, &c.,) for F., for life, and after his decease, for his first son, and the heirs male of his body, (z) Burt. Elem. Comp. 325. (a) Stanley v. Leigh, 2 P. Wms. 68t). B B 370 LIMITATIONS OF PERSONALTY [CHAP. XV. and in default of sucli issue, for tlic second and other sons of F., severally and respectively, in order and course, as they should be in seniority of age and priority of birth, and the several heirs male of the respective bodies of such son and sons, and in default of such issue, for the use of the daughter and daughters of F., and, if more than one, to be divided among them, share and share alike, at their ages of twenty-one, or their respective days of marriage, and in default of daughters, or in case of their death before twenty- one, or marriage, to P., for the then residue of the term ; and F. died without having had any issue. Upon the question, whether the limitation of the trust of the term, to P., was a good or a void limitation. Sir Josefh Jekyll, M. 11., after elaborately examining the several authorities upon the sub- ject, and discussing their principles, decided in favor of the validity of the bequest to B., as the limitations to the sons and daughters had never vested. Case of Again, in a more modern case, {b) a testator, having be- AdjZhrwke. queathed a yearly sum, to a person, for life, gave the an- nuity, upon the death of the annuitant, to the eldest sur- viving son of A., and failing the issue male of A., to the daughters of A., living at the demise of such male issue ; at the death of the annuitant, A. had no son living, but had two daughters : and it was held, that the gift to the daughters of A. was not too remote, and that they were, therefore, entitled to the annuity. Here, we perceive, that . the ulterior limitation was a gift, in the alternative event of no person becoming entitled under the prior limitation, which, if it had taken effect, would have entirely superseded the former, because this would, in that case, be expectant upon too remote an event, viz., the general failure of issue male of A. To be valid, It nuist be observed, in conclusion of this subject, that, in limitation tak- . i- • • ,• i i i • rr- i • ing effect under order to a Imntatiou ot a cliattei takmg eiiect as a substi- (6) Murray v. Addenhroohe, 4 Russ. 407. SEC. III. SUB. 11.] ON FAILURE OF ISSUE. 371 tuted gift, under the rule we have been considering, it must this rule must be so limited, as to vest, (if at all,) within the period pre- vest witllin ° scribed by the Rule against Perpetuities : if it be not so ^'^^?^ °*" P^"^' limited, although none of the prior interests may vest, it will, together with every subsequent limitation, be void, in the same manner, as if made to take effect, after or upon the preceding limitation, determinable upon a general failure of issue. And, of course, it is necessary, that the preceding limitation, on failure of which, a subsequent one is substi- tuted, should not be too remote in its creation, because, as the latter is to take effect, at the time limited for the first, (if at all,) and not before, it must be tainted by any objection of remoteness, to which that may be exposed. 3. Another and the last instance, of a limitation of per- 3. Bequest on , . ,. , failure of issue sonal estate upon a general failure of issue being valid, of a person, occurs, where there is a bequest to a person, and in the JJat pereon^ event of his death without issue, over, to another, and the without issue, in testator's first legatee dies without issue, in the lifetime of the testator, lifetime. Such, at least, would appear to be the doctrine established by a recent case, (c) in which, there was a bequest of chattels, to two legatees, share and share alike, and upon the death of either of them without lawful issue, her share to go to the other ; and it was held, that the death of one of the legatees without issue, in the testator's lifetime, entitled the sui-viving legatee to the property bequeathed, under the gift-over. The argument for the surviving legatee was, that the will, speaking not from its date, but from the death of the testator, the gift-over would, after the death of one of the legatees without issue, take effect; and that, by which his claim was opposed, was, that the gift-over was void, as it was to take effect, upon an indefinite failure of issue, and that, if the gift-over were void, in the first instance, the circum- stance, of the death of one of the legatees, in the testator's lifetime, would not cure its original invalidity. As the (c) Mackinnon v. Peach, 2 Keen, 555. B B 2 {.'overn I Vict. c. -iG 372 LIMITATIONS OF TF-RSONALTY [CIIAP. XV. Master of the Rolls could not have decided in favor of the surviving; legatee, upon the ground, that the gift-over to lier had the effect, of restricting tlie failure of issue referred to, to the deatli of the legatee, (the word used in the gift- over being, merely, " other,") it must be supposed, tha the coincided in the argument, by wliich the claim of the suc- cessful party was supported. This conjecture is offered, only because it cannot be collected from his lordship's judgment, as reported, upon what precise ground, lie gave effect to a limitation, prima facie, and according to ordinary rules, too remote. Same rule It may be observed, in reference to this doctrine, that, as ^kviles *" 't depends upon the operation of the will commencing at a ed by period posterior to the happening of the failure of issue, viz., at the death of the testator, it would seem to be equally ap- plicable to devises of real estate, subsequent to the year, 1837, which, by the recent statute, 1 Vict., c. 20, are assi- milated to bequests of personalty, in respect of the time of their taking effect. It is, further, to be remarked, that this doctrine is not open to the objection of impugning the rule, formerly laiil down, that, in deciding on the validity of testamentary limitations, regard cannot be had to subsequent events ; for that rule assumes, that the gift, whose remoteness is in ([uestion, becomes capable of taking effect, so far as the actual existence of valid objects is concerned, and declares the gift void, simply because it did not, in its inception, contemplate such objects only ; whereas, in the case sup- })osed, the contingency, which would render the limitation void, as of too remote expectancy, has happened previously to the period, when the operation of the instrument com- mences, — is, in fact, an ascertained event. SEC. iir. — sun. in,] on FAn>URr. of issue. 373 Subdivision 3. Limitations of personalty on a dying toithout issue occurring subsequently to gifts to children or other issue. Following the order observed in our inquiries respecting limitations of real estate, dependent on a failure of issue, {d) we are now to consider, the mode and effect of the appli- cation of the referential construction, where the subject- matter of the gifts is personalty. The doctrine in question, it will be remembered, (e) has Nature and . 11- operation of reference to those cases, where the gift-over, though, in referential terms, made to depend upon the general failure of issue of construction. a person, is construed, as intended to take effect upon the failure of a j^articular description of descendants, to whom express limitations have been before made, and who must take within a certain allowable period, or not at all. Here, if it be clearly the intention, to make provision only for certain members of a class, answering a particular des- cription, the generality of the expression, which refers to tlie failure of the whole class, is confined by the prior pro- visions. If, for example, there be a bequest, to A., for life, and after his decease, to all his children, and in default of issue of A., to B. : regarding the words introducing the hmitation to B., abstractedly from the prior gift to A.'s children, the former is, clearly, too remote ; but connecting the term, " issue," with the previous limitation, it is then restricted, so as to denote the issue before mentioned, f/^., children of A. In other words, the generality of the ex- pression, " in default of issue," is restricted to mean, a failure of the class of issue included in the prior gift, by reading the limitation-over, as if it stood thus, — " in default of such issue," or, " in default of the said issue," &c. Thus, where (/) a testatrix, by her will, limited certain Case of Morse (d) Viik supnt, p. 277. (/) Morse v. Marquis of Ormonde, (c) Vide supra , p. 277, el scq. 5 Madd. 99. 374 LIMITATIONS OF PERSONALTY [cHAP. XV. V Marquis of cstates, to her (laughter, Lady O., for life, remainder, to her Ormonde. j,^^^^ ^^^^^ other S071S, siicccssivcly in tail-male, remainder, to lier daughters, as tenants in common in tail-general, and if an onlv sur\iving daughter, to her in tail-general, and in default of all such issue of Lady O., to trustees, for one thousand years, upon trust, to raise the legacies the testatrix had thereinafter becjueathed, or should be(jueath by any co- dicil or codicils ; and the testatrix afterwards bequeathed certain legacies, from and immediately after the decease and failure of issue of her daughter, Lady O. ; Lady (). having died without issue, the question was, whether the legacies bequeathed, as above mentioned, were valid, or too remote and void. Sir John Leach, V. C, said, it was perfectly true, that there was no estate before limited to the issue female of sons of the daughter, and, consequently, no estate, which extended to all possible issue of the daughter, and that, taking the expression literally, the legacies were too remote : that the literal force of the expressions was not ac- cording to the real intention of the testatrix, admitted of no doubt ; and the question was, whether, upon the whole of the will, there wassufficient evidence of intention, to waiTant the Court in holding, that, when the testatrix used the expression, ' from and after the failure of issue of my said daughter,' she must have meant, * issue of my said daughter as aforesaid ;' and that the testatrix, having, upon failure of particular issue of her daughter, created a term, for the sole purpose of paying legacies, and having used ex- pressions, which imported, that those legacies were to be paid when the term arose, when she afterwards spoke of the legacies, which were to be paid upon failure of issue of her daughter, must be understood, as speaking of those legacies, for which she had before provided, and which were to be payable, upon failure of particular issue of her daughter ; and the two clauses were to be rendered consistent, by supply- ing the sense of issue aforesaid. SEC. III. — SUB. III.] ON FAILURK OF ISSUE. 375 Asrain, where (a) a testator bc(uiealhod the residue of his C&se oi Tiickey » ' ^•'" .,.11 ] V. Trickey. personal estate, to trustees, ni trust lor his dauglitcr, ami after her decease, for all and every the child or children of his daughter, share and share alike, when they should res- pectively attain twenty-one ; and in case any of the said children should die under twenty-one, and have one or more child or children, which should survive the testators daughter, and live to attain twenty-one, such child or child- ren to be entided to his or their parent's share ; provided, that, in case any child or children of his daughter should die before attaining twenty-one, the share or shares of such child or children to go to the survivor or survivors, and the ijisue of any deceased child or children, who should marry and die under twenty-one, to be equally divided between them, if more than one ; the issue of any deceased child or children to stand in the place of their parents ; and if there should be no child of the testator's daughter, or, there being any such, none of them should live to attain twenty-one, nor leave any issue who should live to attain that age, then, over : the question was, whether the limitation-over, in the event of the testator's daughter having no child, w^ho should live to attain the age of twenty-one, nor leave any issue which would live to attain that age, was, or was not, too remote. Sir John Leach said, that the first provision in the will, in favor of the children of a child of a daughter, who should die under twenty-one, was confined to such grands children as should survive the daughter, and, if, in the sub- ^quent passages of the will, the testator was to be under- stood to speak of such grandchildren oiily, the limitation- over was plainly not too remote : that it was reasonable to intend, that the testator meant, that the same grandchildren who, by the former clause, were to take their parent's original share, should take that portion of the share, which accrued by the death of another child of the daughter, with- (' ' . gift-over ncccssary, to give to that word, its full ordinary meaning, in should not take , ^ , . . i . i .. • effect, till order to effectuate the apparent intention, and to let in theTssutof^ children or other issue, to exclude whom there does not first taker. appear to be any intention, but with respect to whom, it simply appears, that they are not comprised in the former description or enumeration. (; ) In such cases, therefore, the gift-over will not be assisted by the circumstance, of there being a previous limitation to a descript class of des' cendants, to whom the words, " die without issse," or the like, may be made to refer ; and will, consequently, be void, as too remote. If this And, on the other hand, for the professed purpose of letting Suited! fi"st in such of the issue, as have not been before expressly pro- lul^e inleret"^ ^idcd for, the words, referring to die failure of issue of the expectant on tenant for life, will have the effect, of giving him the absolute (;• ) Franks v. Price, 3 Beav. 182. J My. &: Cr. 152, 153. Judgment in Ellicombc v. Gompertz, SEC. in. — SOB. III.] ON FAILURE OF ISSUE. 379 interest, in the event of the failure of the preceding liniita- preceding limi- tations, by tions, in accordance with the general rule of analogy to those analogy to the cases, in which, an estate-tail is raised by implication, under reaUy? similar limitations of realty, (k) It is to be observed, how- ever, this construction is adopted, rather as a necessary con- sequence of the fixed legal import of certain words, than, as a means of effecting the supposed intention of the author of the gift, to provide for all the issue, on whose failure, the ulterior limitation is to take effect. If the words, " die with- out issue," are not refen-ed to a class of issue, previously described, they, necessarily, contemplate the general failure of issue of the tenant for life, (for we are supposing the ordinary case of a limitation-over on failure of his issue,) and as, in that case, the effect, as regards real estate, would be, the implication of an estate-tail in him, the rule of analogy^ before referred to, gives him the absolute interest in per- sonalty. If, on the other hand, the words in question are understood to mean, issue of a particular description only, then, there is not only no enlargement of the interest of the tenant for life, but the result ensues, of the validity of the ulterior gift. When, however, the preceding gifts exhaust the whole When peccd- issue of the tenant for life, (and, therefore, as a necessary embraces all consequence, all the issue, on failure of whom, the gift-over J^kTr °n(f "^^^ is to take effect,) no enlargement of his interest will be im- enlargement of his interest, by plied from words, in which the gift-over is expressed. (/) force of gift- As the consequence of not holding the limitation-over, in , ,." . . the case of personalty, to be strictly referential to the objects the Courts ,. ,.,. f. , ... favorable to of the preceding gift, is, the invalidity of that limitation, on referential con- the ground of remoteness, the inclination of the Courts is subject-matte'r' much more favorable to the referential construction, when '^ personalty, the subject-matter is personal estate, than when it is realty; a gift-over of which, on failure of issue, is supportable by the implication of an estate-tail in the ancestor, if it is not (k) Franks v. Price, vbi supra. supra. And see, in arguendo, Attor- (l) Judgment in Fran/is \. Price, net/- General v. Sutton,] P. Wms. 160. 380 LLMITATIDNS 01< PEUSONALTY [ciIAP. XV. capable of b(;iii}>' construed, as referring solely, to issue or children previously described. As, moreover, the interest, which is raised in the ancestor by implication, when the failure of issue is held to be indefinite, does not, of itself and in its own nature, carry the property to the issue who are excluded from the ])rior gift, and to provide for whom an intention is presumed, the very ground, on which the aj)- plication of the referential construction is frequently refused, in the case of real estate, fails, when the question is to be considered, in reference to a limitation of personalty. Perhaps, therefore, it will be found, that there are very few instances, of a limitation-over of personal estate, on a dying without issue, having been held, to contemplate an indefinite failure of issue, when preceded by a gift to issue or children, or a class of either, other than those cases, where realty and personalty have been combined in one general disposition, and the (Jourts have felt themselves obliged, to apply the same rule of construction to the entire gift, and have, therefore, determined, that the ancestor took the absolute interest, by force of the limitation-over, after a failure of the objects of the preceding gift. E. G. : the Thus, it w^as formerly observed, (wi) that where a limita- lulc applied, in . , . , i • i i caseof a gifito tiou oi real estate, is made to an eldest son only, with a sub- firsT'takci^ and Sequent gift-over, on failure of issue of the parent, an limitation-over, estutc-tail is raised in the latter, expectant on the estate on failure of issue of the limited to the eldest son ; thereby negativing the referential construction. Where the subject-matter of the gifts, however, is personalty, it seems to be settled, (?/) that the limitation-over is to be construed, as simply dependent on the failure of the object of the preceding gift. It is clear, moreover, that the same rule will hold, although the limitation to the son be, in terms which will create an estate-tail in realty, inasmuch (m) Vide supra, pp. 284, 285. 293. Keating v. Keating, LI. & Go. (ji) Plrijddl V. rieydell, 1 P. Wms. temp. Plunkett, 201. And see Mur- 748, explained and corrected, Ambl. rug v. Addaibrooku, 4 Russ. 407. 12.5. Murah V. Marsh, 1 IJro. C. C. SEC. III. SUB. III.] ON FAILURE OF ISSUE. 381 as the principle of the referential constrnction is eqnally ap- plicable ; viz., that the limitation-over is dependent on the event of no son coming in esse, and not, upon that of an indefinite failure of issue of such son. (o) So, ao-ain, it seems to be clear, («) that the circumstance, —and also in ,. . , case of gift- of the interests of the issue taking under the preceding gitt over on failure being dependent, for their vesting, upon the attainment of vestTn"g'of inte- a particular age by such issue, is not sufficient, to rebut the ^^^^^^ ^^J^^ ^^^^ construction, rendering the contingency contemplated by the on their attain- „ . " .p ing a certain limitation-over, referential to the objects ot a prior gitt ; age ; although (as was formerly seen, (q)) the application of that construction has been denied to similar limitations of realty. It seems to follow, from the rule established, in regard to —also, (semble) when a gift of personal estate to an eldest son, with a subsequent preceding gift limitation-over, on failure of issue of the parent, that the J,^„/£"of chil- doctrine of referential construction will, also, be applied, in ^'■'^"• the case of a gift of personalty, to a definite number of child- ren, with a subsequent limitation, on the death of the parent without issue ; and it should appear to be of little import- ance, in reference to this point, whether the limitation be to the children, concurrently, or, successively. Although there is but little authority, applicable to the Rule will not • I'll /• 7-^ ^'^ applied, case of a gift of personalty to issue, or children, for lije, ex- ^hen gift to pressly, with a subsequent limitation-over, on failure of 0^"/.' ^"'^ '"^^ issue of the parent or ancestor, it seems to be clear, that the rule of construction under consideration cannot be extended to limitations of that character ; (r) for the obvious intention, to make the ulterior gift dependent on failure of the issue of the first taker, cannot, possibly, be satisfied, by construing it, to be referential to a class of issue, whose extinction ini- (o) Sed vide, Monkhouse v. Monk. M'Donald v. Bryce, 2 Keen, 276. honse, 3 Sim. 1)9. See, however, (7) Fide supra, p. 2R6. the observations of Mr. Prior, on that (r) See Murthwaitev. Jenkinson, 1 case; Treatise on " Issue," 176. H. i*v C. S^S. (;>) Pleydell v. Phydell, ubl supra. 382 LIMITATIONS OF PEUSONALTY [fltAP. XV. "Wherever doctrine appli- cable, in case of realty, it will hold, in respect to similar limitations of personalty. Rule assumes, that issue takes by j)urchase under preced- ing gift. Connexion of the question, whether issue take as pur- chasers, with the present inquiry. piles, not even a failure of par/iaf, issue, but, simply, that ccrtaiu limited interests to a particular generation of issue ftiil of taking; effect, (s) In such case, therefore, it should seem, the ancestor would take an absolute interest, expectant on the gifts for life to his children, and that, therefore, the limitation-over would be void for remoteness, (t) It is almost needless, to remark, that wherever the rule in question would obtain, if the subject-matter of the gifts were real estate, it will be of e(|ual applicability, in regard to similar limitations of personalty ; the tendency of the judicature being rather favorable, than otherwise, to the extension of the doctrine, in the latter case, beyond the limits, to which it has been confined, in the former. It will be observed, that the rule of construction under consideration proceeds on the assumption, that the pre- ceding limitation to the issue operates to vest in them, in- terests by purchase ; for if the effect of that gift be, merely to enlarge the first life-interest into an absolute limitation, the failure of issue intended must, obviously, be indefinite, and the gift- over is necessarily void, as too remote, {u) This consideration will show, that it is a matter of impor- tance, in cases where there is an express gift to the issue, after a prior limitation to the parent, to decide, whether the issue take by purchase, (e. e., independently, and in their own right,) or, whether the word, " issue," be merely a word (s) See Prior on " Issue," 147. (f) Sed vide, Murthwaiie v. Jen- ki7isou, supra, where it was held, that the first taker had the absolute interest inimediateli/, without reference to the limitation to the children for life. (u) The learned reader will ob- serve, that it is necessary to pursue a course, in reference to the considera- tion of gifts of personalty, different from that, adopted in the inquiry upon limitations of real estate, as to the question, under what limitations the issue take as purchasers. In the case of real estate, the consequence of rejecting the referential construc- tion is not the remoteness of the ul- terior gift, because, generally speak- ing, it is supported by the implica- tion of an estate-tail in the ancestor ; but, as regards personalty, it is ab- solutely necessary, that the referential construction should obtain, and, there- fore, that the issue should take as purchasers, in order to support the limitation-over, when expressed to take effect on an indefinite failure of issue. SEC. IIL- -SUB. III.] ON FAILURE OF IP8IIE. ^^^ of limitation, and, so, have the efFccl of enlarging the Hfe- interest previously limited, (v) Fully to comprehend the nature of this question, it must be remembered, that in cases, where, (supposing the subject of the gift to be real estate,) by the Jitile in Shelley s case, the estate for life in the ancestor would be enlarged into an estate-tail, there, a similar gift of personalty operates to vest the absolute interest of the term or other chattel, in the person, who would be tenant in-tail, in the former case : except that, as the doctrine of the union of the particular-estate for life with the re- mainder, and consecpient enlargement of the former estate, in dispositions of realty, is founded only on a general rule of law, established upon feodal principles, (which con- templated only real estate,) the Courts will, in putting an interpretation on limitations of personalty, endeavour to construe, " issue," as a descriptio personarum, merely, where a plain intention appears, to confine the first taker to a life- interest. In all cases, therefore, as before observed, where the absolute interest in the legacy vests in the first taker, by reason of the word, " issue," being regarded as a word of limitation, it follows, as a necessary consequence, that the ulterior gift, to take effect on failure of issue of the first taker, will be void for remoteness, because it implies a general failure of such issue. But where, by means of an explanatory context, the limitation to the issue or heirs of the body of the first taker, is construed, as a designation of the person intended to take, on his death, by purchase, then, as the gift-over, on failure of issue of the first taker, will, inider the rule we have been considering, be held to refer to the class of issue previously described, it will be (u) " Words of purchase are those, by them ; whilst words of limitation by which, taken absolutely, without operate by reference to or in con- reference to or connexion with any ncxion with other words, and extend other words, the estate first attaches, or modify the estate given by such or is considered as commencing, in other words. " 1 Preston on Estates, point of title, in the person described 38. 384 LIMITATIONS OF PERSONALTY [cHAP, XV. " Issue " and •' heirs of the body," prima- rily, words of limitation. In what cases, " issue "and " heirs of the body " read as words of pur- chase. good, as a limitation to take cfFect, in case of the death of the fii-st taker without issue Uviug at that time. Now, as an ordinary rule, it may be laid down, that the words, " issue," and, " heirs of the body," (which are generally and prmarili/ regarded as synonymous, though the latter expression is more strict and technical,) are words of limi- tation, i. e., do not carry the legacy to the persons answer- ing that description, as purchasers, after the decease of the ancestor taking a prior life-interest, but describe and regulate the quantum of interest to be taken by such ancestor. And this construction is not varied by the circumstance, of words of division or distribution being superadded to the gift to the issue ; (?<') nor will that of a gift-over in default of issue aiford sufficient reason for construing the word, "issue," otherwise than as a word of limitation, (x) This interpretation, however, assumes, that the instrument docs not afford sutTicient ground for a different construction ; for all general rules of construction must give way to a con- trary unambiguous intention, collected from the whole con- text of the deed or will. Thus, the superaddition of words of limitation and representation, as, " heirs," or, " executors, administrators, and assigns," to the gift to the issue, has, in some cases, been held, to show an intention in the author of the gifts, inconsistent with the legatee for life taking the absolute interest, under the interpretation of the term, "issue," as a word of limitation, (y) But it seems, that these additional expressions will not enable, " issue," or, " heirs of the body," to operate as words of purchase, unless the words introducing the gift-over confirm the supposition, of the issue being intended to take in their own right, by referring (w) See Doe v. Applin, 4 T.R. 82 ; Doe V. Cooper, 1 East, 229 ; Tate v. Clarke, 1 Beav. 100 ; which, although decided upon limitations of real estate, seem authorities, no less applicable to gifts of personalty. Sed vide, 2 Jarm. Pow. Dev. f)38, 639. (.r) Doe V. Feather stone, 1 B. & Aid. 944. Tate v. Clarke, ubi stipra. (y) Loddington v. Kime, 1 Salk. 224. Donne v. Merrificld, cited Ca. temp. Talb. 56. Hodgson v. Bussey, 2 Atk. 89. SEC. in. — SUB. III.] ON FAILURE OF ISSUE. 385 to them as " such issue." For if the limitation-over refer to In what cases, a default of issue generally, the gift to the issue or heirs of "heirs of the the body of the first taker will have its usual or technical ^"'^y " 'f^ " •^ words ot pur- effect, although there be words of representation appended to chase. it. Thus, where (s) there was a devise of freeholds, and also a bequest of leaseholds, to A., for life, and after his decease, to the heirs of his body, " their heirs, executors, adminis- trators, and assigns, for ever ;" but in case A. should die without issue, over ; it was held, that A. took an estate-tail in the freeholds, and the absolute property in the leaseholds. And it is to be observed, that wherever the superaddition of words of representation is denied the effect, of giving, " issue," the force of a word of purchase, their virtual rejec- tion from the limitations is the alternative implied ; (a) for, as applied to any other interest, than such as vests primarily in the issue, they are not only nugatory, but, even, absurd. So, also, the circumstance, of the gift-over being expressed to take effect, not only upon a "default of issue" of the first taker, but, also, upon a failure of issue of such issue, or upon the issue dying under twenty-one, has been held sufficient, to confine the, " issue," first mentioned, to the immediate generation, and, so, to give it the force of a word of purchase, (b) So, again, where a testator has, in other parts of the same will, and in connexion with other dispositions, used the word, "issue," as synonymous with, " children," or, "sons and daughters," it has been interpreted to be a word of purchase ; the context not manifesting any intention, to use the term in a sense, different from that which it had before been made to convey, (c) («) Kinch V. Jfard, 2 Sim. & Stu. has been held, (judgment in Jesson v. 409. Wric/ht, 2 Bligh, 58,) that the force (a) 2 Sim. & Stu. 418. of, heirs of the body, as words of limi- (h) Doe V. Burnsall, 6 T. R. 30. tation, will not be controlled by a Merest v. James, 4 Moo. 327 ; 1 Bred. gift-over, on the issue dying under tb" & Bing. 127. Leesx. Mosley, 1 You. & age of twenty-one. Coll. 589. In limitations of rea%, it (c) Curshamw Newland, 2 Binj. C C 386 LIMITATIONS OF PERSONALTY [ciIAP. XV. In what cases, Further, the word, " issue," will be a word of purchase, if "heiJs ofThe ^he Hfe-intcrcst and the hniitation to the issue are not of the body " read as g-^^e nature, i. c, cither, botli leji-aL or, both cciuitablc, as it is words of . . purchase. necessary, that there should be that identity of character, in order to the applicability of the Mule in Shelley s case, in limitations of real estates. It follows, therefore, that where a term or other chattel is limited in triist for the separate use of a married woman, for life, and the property is after- wards directly given to her issue, the issue will take as pur- chasers, {d) But if the personal estate be directly bequeathed to the feme, for her separate use, and not through the inter- vention of a trustee, the circumstance, of the life-interest being for the separate use of the legatee, will not prevent its coalescing with a subsecjuent limitation to her issue, {e) Again, in the case of a personal fund, if the interest only be given to the first legatee, and afterwards the capital or corpus of the fund, be limited to the issue, it has been sometimes held, that they will take as purchasers : and where a bequest of this kind occurred, and there were no issue to take, the consequence of the construction in question had place ; viz., the affirmation of the title of the ulterior legatee. (/) Where, indeed, the limitation has been to the heirs of the body of the first taker, the circumstance, of the gift to the latter being of the interest only, was (as was above remarked,) held insufficient, to prevent the whole legacy vest- N. S. 58; 2 Moo. & So. 105; 2 words of division or distribution allow Boav. 145. The decision in this case it so to operate. See b\so Ridyeway has been referred to the ground stated v. Munkettrich, I Dr. & War. 84. in the text, although, as the reasons (J) Sands v. Dixwell, c\ied 2 Ves. of the judges do not appear, (it being sr. 652, 661. Pricey. Price, cited a case from Chancery,) it may be 2 Ves. sr. 234. doubtful, upon what it is to be rested. (e) Douglas v. Congreve, 1 Beav. It would not seem, that the circum- 59. stance, of there being " benefit of sur- (/) Knight \. Ellis, 2 Bro. C. C. vivorship among the issue," would 570. Perhaps, however, the word, suffice to prevent, "issue," being a "such," in the gift-over, exercised word of limitation, any more than some influence, in this case. SEC. III. — STTIi. III.] ON FAILTTUE OF ISSUE. 387 Ing in him : {g) but that doctrine must be considered to rest In what cases, upon the superior force of, " heirs of the body," as words of « i^^.j^s of the hmitation, in comi)arison with that of the word, " issue." (h) ^°^\ " "T^^ ^ ' ^ \ / words of And in reference to, " issue," also, it seems, that, unless the purchase, dictinction, between interest and capital or corpus, be plainly marked, it will operate as a word of limitation. Thus, in a recent case, {i) where a testator gave tlie sum of 500/., stock, " to S. T., to receive the interest during her life, and then to her issue, but in case of her death without issue, the said sum of 500/., stock," to go over; Lord Lang- dale, M. R., held, that S. T. took the absolute interest in the sum of stock, and that the ulterior bequest, upon her death without issue, was void for remoteness. But, in general, the interpretation of, " issue," as a word of Hmitation, will prevail, notwithstanding the testator has affixed to the previous gift for life, words, seemingly nega- tiving any enlargement of that interest, such as, " and no longer," or, " and not otherwise ;" (^*) nor will the circum- stance, of the gift to the issue being expressed to take effect, *' afterwards," or, " after the decease" of the first taker, suffice, to prevent the union of the two interests, and the consequent enlargement of that of the first taker, [k) And, in a recent case, (J) this construction of the whole legacy (p) Butterfield v. Butterficld, I v. Pitt, 1 Madd. 488. Sed vide, Pea- Yes, sr. 133, 154. Tothill \. Pitt, cock v. Spooner, 2 Y em. 43 ; Bafforne 1 Madd. 488; S. C. sub itom. Earl v. Goodman, 2 Freem. 228, 231; of Chatham v. Daw Tothill, 6 Bro. Worma?t v. Seaman, Fin. Ch. Rep. Pari. Ca. 450. Glover v. Strothoff, 279 ; 2 Ch. Ca. 209 ; and Clare v. 2 Bro. C. C. 33. Clare, Ca. temp. Talb.21. It seems (/i) See Prior on " Issue," 173. clear, however, that, at the present (?) Attornetj- General \. Bright, 2 day, these cases cannot be treated, as Keen, 57. And see 2 Jarm. Pow. possessing any authority, so far as they Dev. 639. may establish a different doctrine from {j) Rohinsonx. Robinson, 1 Burr. 38. that laid down in the text. See the (A) Tlieebridge v. Kilburne, 2 Ves. observations of Sir Thomas Plnmer, sr. 233. Kinch\. Ward, 2 Sim. &. Stu. respecting them; 1 Madd. 483, 486, 409. Tate v. Clarke, 1 Beav. 100. 487. Elton V. Eason, 19 Ves. 73. 2'othill (I) Tate v. Clarke, ribi supra. c c 2 388 LIMITATIONS OF PERSONALTY [ciIAr. XV. In what esses, vesting in the first taker, by force of a subsequent gift to his "heirs of the issuc, united with that to hinisclf^ was adhered to, ahhough y^ords of^^ '^ ^^^ ^^^^ ^^^*-'^^ befoi'e the testator, and had left issue, who were, purchase. ^f consequence, deprived of all benefit of the limitations, either as representatives of their parent, or under the gift to them. It may be observed, that if, " children," be the term used, much less explanatory context will suffice, to give it the force of a word of purchase, than is requisite, in regard to, " issue :" e. g., words of (livision or distribution will genei'ally be sufficient, to prevent its being construed as a word of limitation, {ni) In the absence, however, of any expression or circumstance, showing, that, "children," w^as intended to operate as a word of purchase, it will be construed, as synonymous with, " issue," and, therefore, will have the effect, of vesting the absolute interest in the first taker. {71) The preceding observations will show, (what, indeed, has been before hinted at,) that the mere circumstance, of the in- terest of the first taker being expressly confined to his life, will, in no case, be sufficient, of itself, to prevent, " issue," operating as a word of limitation : although it may generally be predicated, that, in such cases, the intent of the author of the gift is adverse to any enlargement of that interest. Thus, Lord Thurlow, on occasion of this circumstance being urged in favor of such a construction, observed : (0) — " I think the argument immaterial, that he meant the first estate to be an estate for life. I take it, that in all cases, the testator does mean so ; I rest it upon what he meant after- wards." Ptnhaps, however, some weight is due to this cir- cumstance, when it is assisted by any expressions or other circumstances, pointing to an intention, to use, "issue," as a word of purchase ; although (it may be) neither, taken (in) Docv. Vauyhan, 5 B. & Aid. (o) In Jones v. Morgan, 1 Bro. C. 464. Doe v. Lyde, 1 T. R. 593. C. 220 ; adopted by Lord Lnngdale, (»») Gawler v. Cadhj, Jac. 346, in Douglas v. Congreve, 1 Bcav. 71. SEC. ni. — SUB. III.] ON FAILURE OF ISSUE. liSO separately, would be of sufficient importance, to authorize In what case=, 1 • , . " issue " and that construction, (p) .. heirs of the It seems, that where, instead of a term beinf^ limited for ^^^y" ^^^'^ «« ' ' ^ worcis ot life, and afterwards, to the issue of the first taker, a sub-term purchase. is created out of it, determinable on the death of the person to whom it is limited, and, after his decease, to the heirs of his body, or issue, the issue will take by purchase. Thus, where {(j) A., possessed of a term of 2000 years, demised to trustees, for 1 700 years, if he and his wife, or any of their issue, should live so long, in trust for x\., for 99 years, and afterwards, for the heirs of the body of A., on his wife ; it was insisted, by the administratrix of A., after his decease, that the whole trust of the term of 1700 years, vested in the father, and was executed in him, and that the issue could not take by purchase : but, it was held, that, inasmuch as there was a term of 99 years, taken out of the 1700 years' term, and the father had a particular-estate unto him for 99 years, the trust of the whole term during the 1 700 years, was not exe- cuted to the father, but that the limitation to the heirs of his body would carry it to all the children equally. And, so also, where a term, or other personal estate, is agreed to be settled by marriage-art ides , upon a person, for life, and, after his decease, upon his issue by the intended marriage, it may be laid down, as a general rule, that a Court of Equity will execute the articles, by limiting the property, to the issue, as purchasers, by analogy to the rule, which is ordinarily observed, in regard to similar limitations of real estate, when the Court executes the articles, by direct- ing limitations to the first and other sons of the marriage, successively in tail, with remainder, to the daughters, as tenants in common in tail. This rule proceeds upon the obvious purpose of the instrument; viz., the securing a pro- vision for the issue of the marriage, independent and free from the control of the parties contracting marriage. Indeed, (p) Sec the observations of Sir 484. Thomas Pliimei; 1 Madd. 476, 483, (g) IFaril v. Bradley, 2 Vcrn. 23. 390 LIMITATIONS OF PERSONALTY [ciIAP. XV. In what cases, not onlv in tlic casG of marriage-articles, but whenever the " issue " and ,„ . , „ , "heirs of the gifts arc ui tlic iiaturc oi executory trusts, and not corn- words o7* "^ plete in themselves, a (Jourt of E([uity will, in executing purchase. \\^q limitations of the will or settlement, provide for the issue, by means of a limitation to them, as purchasers, unless an intention appears upon the face of the instrument, to vest the absolute interest in, and control over, the pro- perty, in the first taker, (r) But, in order to this interference, on the part of the (]ourt, it will not suflice, that the limita- tions are, by way of trust; for that admits of their being 'perfectly complete in themselves ; but it must appear, that the author of the gift contemplated some further settlement, as carrying out his intentions, and for which, the trusts de- clared by him, are intended, as general heads or instructions. "Issue" has also been construed to l)e a word of })urchase, where, after a limitation of a term, to A. and his issue, there was a gift-over, if A. should die and leave no issue: (s) I-iord Hardwicke observing, in that case, that the words, " leave no issue," related to any child living at A.'s decease, and, therefore, showed, that such issue was to take, after A.'s death, and, consetjuently, that, " issue," was to be considered as a word of purchase. It may, perhaps, admit of a doubt, however, whether, at this day, " leave," would suffice to give, " issue," the force of a word of purchase, tmless the dis- tinction, between the prior life-interest and the gift to the issue, were clearly marked : and that was not the case with the limitations, in regard to which. Lord Jfardioicke laid down the rule just stated ; the gift, there, being, to F. and L., and to their issue, and if either of them should happen to die, and leave no issue, over. It has been already hinted, that, in putting a construction u])on, " issue," as a word of limitation, or a word of purchase, force has been attached to the circumstance, of the gift-over being, in dcfaultofj9zIMITATION9 OF PERSONALTY [ciIAP. XV. the failure of issue of the legatee for life solely ; inasmuch as, before the recent act, the absolute interest would not have vested in both the persons, the failure of whose issue is referred to, nor even in the first taker alone, {g) 5. Where a term or other personal estate is bequeathed to a pei-son, by such words as, in the case of real estate, would vest an estate-tail in him, by direct limitation, or by the operation of the Rule in Shelley^s case, the rule of con- struction will, it should seem, bo the same, under the new statute, as that which previously obtained; viz., the abso- lute interest will vest in the legatee, and any limitation- over, on his death without issue, will be void, as too remote. If, indeed, the very words of the act be abided by, there will be some difficulty, in bringing this kind of limita- tion within the general exception, from the rule of con- struction enacted by it, which provides for those cases, where an intention, contrary to that construction, shall appear by the will, by reason of the person, the failure of whose issue is referred to, having a prior estate-tail, or of a preceding gift being, without any implication, a limitation of an estate-tail, to such person, or his issue. This excep- tion, it will be observed, does not, in terms, contemplate the case of a previous gift of personal estate, by words which give the absolute interest in chattels, as the con- struction, parallel to the devise of an estate-tail in realty ; and a captious adherence to strict technical language might, therefore, justify the application of the restricted interpreta- tion, established by the recent statute, even to those cases, where there is an express bequest to the first taker and the heirs of his body. An equitable attention, however, to the spirit and meaning of the provision in cjuestion, will pre- serve it from the disrepute, of authorizing two different rules of construction, in regard to cases, in most respects, similar, in their nature, and differing, chiefly in the quality of the subject-matter of the gift. (ra, \) 185. SEC. III. — SUB. IV.] ON FAILURE OF ISSUE. 403 6. Connected with the last observation, is the remark. As to effect of that where personal estate is bequeathed, to a person, and whete'lt^occurs the heirs of his body, or to a person, for life, and after- '" g>ft-over, *' '■ after express wards, to the heirs of his body, and, in the event of his liniitation to . . ancestor and death without leaving issue, to another, the hnn tat) on-over his issue, would seem to be good, notwithstanding the case is em- braced by the exception, of words, referring to a failure of issue, after a preceding express estate-tail, from the rule of interpretation established by the new statute. It will be remembered, {h) that, as to bequests not governed by 1 Vict. c. 26, a limitation of personalty, after a preceding gift to a person and the heirs of his body, to take effect in the event of his death without leaving issue, is good; the word, " leaving," having its usual restrictive force, notwith- standing the circumstance, of the previous gift being ex- pressly made to the first taker, and the heirs of his body. And, although the recent enactment has assimilated the legal signification of the words, " dying without issue," or, " without having issue," to that of, " dying without leaving issue," in regard to the cases, in which those expressions do not occur after the limitation of an express estate-tail, it should seem, that the words, " leaving issue," still retain their appropriate and peculiar force, in those cases, which are excepted from the operation of the general rule of con- struction laid down in the act. There does not seem to be any ground, for supposing, that the legislature intended, in any case, to extend the proper signification of the word, " leaving ; " but, rather, to leave the rule of intei^jretation, applicable to each of the expressions above-mentioned, in statu quo fill t, in regard to such limitations, as are expressly excepted from the operation of the new enactment. 7. As was observed, in relation to the effect of the new New rule does rule of construction upon limitations of real estate, (i) so ^asc of a here, it is to be noted, that the application of that rule is l?*:^"^^^ °". ' ' i r failure of issue (A) Vide supra, p. 328. (0 Hde supra, p. 21*8, 299. U D 2 404 LIMITATIONS OF PERSONALTY [CIIAP. XV. of deceased person. Effect of new rule on appli- cation of referential con^ struction. General obser- vations, as to operation of recent enact- ment upon gifts of personalty. precliKlcd, where the person, the failure of whose issue is re- ferred to, is dead at the time of the creation of the limita- tions ; it being then impossible, to refer the dying without issue, to the period of his death, and no other than an inde- Jinite failure of issue being the alternative construction. 8. The exception, in the act, of cases, where words, im- porting fiiilure of issue, refer to issue taking under a preceding gift, obviously, exempts from the new rule of interpretation, all limitations, capable of being brought within the doctrine of referential construction, the discussion of which occupied our last Subdivision. Whenever, however, in any given case, it is ascertained, that that rule is not applicable, the effect of the recent enactment will, simply, be, to render the interests of the issue entitled under the prior limitation, defeasible on the death of the parent or ancestor, without leaving any issue surviving him ; and, of consequence, the ulterior gift will be open to no objection of remoteness. 9. In fine, it is to be observed, that the general tendency of the recent enactment will be less observable, and the revo- lution introduced by it, less extensive, in regard to the law of limitations of personal estates, than, with reference to devises of realty ; and that, as well, because there is less variety in the modifications of interest and ownership, of which personalty is susceptible, as, also, because of the con- stant dis{>osition, always more or less decided, to approxi- mate to the restricted rule of interpretation, recently estab- lished, in the construction of limitations of chattels, to take effect after or upon the failure of issue of a person. Its effect may, generally, be deemed advantageous, as facilitating the settlement of a species of i)roperty, to which, the ne- cessities of a commercial commonwealth have given an importance, little inferior to that of the more perdurable realty. SEC. III. — SUB. IV.] ON FAILUHE OF ISSUE. 405 It has been formerly shown, that where real estate is Where estate- f. , . ,. . . , . tail raised in given to a person, in tee, subject to a limitation-over, on his reaitv, under death without heirs, to a person who is inheritable to the K'^'-'^^''^^'" o" ' I failure of first taker, the effect is, to raise an estate-tail in the latter, " heirs," first taker has With a remainder expectant thereon, to the person, in whose absolute in- favor the ulterior limitation is made. It frequently happens, personalty. that a similar disposition is made of personalty, or that real and personal estate are comprised in one general gift, of the character just mentioned. In such cases, the Courts have applied the same principle of construction, and have held, that the absolute interest of the property vests in the first taker, and that the ulterior gift is void, as depending on an indefinite failure of issue. Thus, the interpretation of the word, " heirs," to mean. Authorities „ . , •! 1 1 1 • proving this. issue, m a bequest ot personalty, prevailed, halt-a-century since, in a case, (_;) where a person, possessed of a term, bequeathed it, " to his grandson. P., son of D., and his wife, and the heirs lawfully of him for ever, but in case he should happen to die, and leave no lawful heir, then and in that case, he gave it, after the death of his said grandson, to the next eldest son or heir of D. and his wife ; and, so on, to the next eldest son or heir, if the last should die without heirs :" P. having died without issue, an ejectment was brought, by the next eldest son of D. : and it was held, in B. R., that it was apparent on the will, that the testator, by, "lawful heirs," meant, " heirs of the body," and that, "leaving no lawful heir," must be confined to, " leaving no issue at the time of his death ;" which construction entitled the legatee-over. And the construction, of the absolute interest vesting under a bequest in default of heirs, was also adopted in a very recent case, {k) where a' testator be(|ueathed a lease- hold house, with the furniture, plate, &c., thereunto belong- ing, to his son, R. ; " and should he die w ithout heir or will, {j) Goodtitk d. reake v. Pegden, (k) Greeny. Harvey, I Hare, ^28. 2 T. R. 720. -lOG LIMITATIONS OF PERSONALTY [cilAP. XV. AVhether " heirs " to be interpreted in the sense of 7iext of kin, when subject- matter is personalty. the profits of the said house to be e([ually divided between all the testator's grandchildren :" R. having died without ibsue and intestate, a question arose, between the represen- tatives of the deceased son, and the grandchildren, as to the right to the property: and Sir /. H'igram, V. C, decided, that the gift to 11. was absolute in the first instance, as the testator, in referring to the heir of liis son, must, of necessity, mean, issue; and, being of opinion, that the gift-over, in case of the legatee not making any will, was void, the learned judge declared, the representatives of K. entitled. And, again, in a still later case, (/) a testator, possessed of personal property only, by his will, directed, that the in- terest on his property should be divided into four equal shares : one share to l)c given to his wife, for life, and, then, to devolve to his children, and the longest liver, in equal shares; the remaining three shares to be divided equally between his three children and their heirs ; with a direction, thus : — " should all my children die without heirs, my pro- perty, in that case, to be divided equally between the child- ren of my brothers and sisters alive on the death of my last child." Questions arising as to the construction of this will, no doubt was made at the bar, as to the propriety of construing the word, " heirs,"' in the ulterior gift, in the sense of " issue ;" and Sir /. L. Knight Bruce, V. C, decided, that such was the interpretation to be put upon it. It seems {m) to be a question, in these cases, whether, an- terior to the inquiry, as to the relationship of the ulterior legatee to the first taker, the word, heirs, is to be regarded, as meaning, next 0/ kin, and not, strictly, the line of persons inheritable to real estate. There can be little doubt, that, under ordinary circumstances, the word, "heirs," in limita- tions of personal estate, must be thus interpreted. But the difficulty, in extending this rule to the class of gifts in question, consists in this : — that the constructive change of, (?) Grecede(l. Thus nmch, then, upon the rule, as to the period for the vesting of remainders, as influenced by the circumstance, of hfe-estatcs being allowed to be limited to persons un- born. To complete the theoretic proof of the doctrine, that remainders may be too remote, it only remains, to show, that, where limitations are made, after gifts to persons un- born, for life, either to persons i?i esse, or to the issue of such unborn tenants for life, those limitations are, in the strict sense of the term, remainders. And this may be ])roved, even upon the hypothesis, that the first freehold estate is that, during whose continuance, or at whose determination, the contingent remainder must vest. For, what is the invariable test, sis to the mode of operation of future hmitations of real estate? It is, that, if the limita- tion may, possibly, take effect, as a remainder, it shall never operate, as an Executory devise, or Springing, or Shifting use. (j)) If this criterion be applied, in the supposed case, it is clear, that, as it is })ossiljle, for any limitation to a per- son or persons unborn to vest before the determination of a prior freehold estate, (there being, of course, no extra- neous restriction, as to the hirlh of such persons talcing place after the expiration of the jjrecedinc/ interest,) such limitation must always be of the character of a remainder. And, if the preceding or last-cuntinuing particular-estate be that, during whose continuance, the remainder is to vest, it is obvious, the arginnent is, if possible, still stronger. In support of the ])ractical conclusion from these senti- ments, are to be adduced, the opinions of several established text-writei-s. Mr. Fearne remarks, (g-) that "any limita- tion, in future, or hij way of remainder, of lands of inherit- ance, which, in its nature, tends to a perpetuity, even {})) Vide nupm, pp. 75, lU7. (q) C R. p. .502. CHAP. XVI.] AS IT AFFi:CTS REMAINDERS. 413 although there he a preceding iwsfed freehold, so as to take w-iy be too ' r 1 1 • • r ri 7--i remotc. it out oj the description of an iLxecutory devise, is by our Courts considered, as void in its creation ; as in the cavSe, of a limitation of lands in succession, first, to a person in esse, and, after his decease, to his unborn children, and, afterwards, to the children of such unborn children, this last remainder is absolutely void." And so, Mr. Preston, though taking a somewhat artificial distinction, between the remoteness of a remainder, and the remoteness of the event on tohich it depends, (r) says, — " A remainder may be too remote and void, because it is limited to the children of a person unborn, and to whom a prior estate for life is limited; and all limitations-over, hy icay of remainder, after and expectant on a remainder which is too remote, will, also, be void." And, in another place, {s) the same gentle- man speaks of remainders being " obnoxious to the objec- tion of contravening the policy of law against perpetuities : " and, elsewhere, {t) he has treated it, as perfectly clear, that remainders may be open to the objection of remoteness. The author of the Treatise on Wills, also, in various parts of the section of his work which relates to the Rule against Perpetuities, {u) has discussed that subject, upon the clear understanding, that strict remainders at Common law are embraced by it. In addition to these opinions, are to be adduced, two Case of cases, which, the writer ventures to conceive, are conclusive HopkinsJ' authorites in favor of the doctrine here maintained. The first is the famous one of Hopkins v. Hopkins, (v) the facts of which were, shortly, these : — A testator devised real estate, to the use of trustees, and their heirs, upon trust for S. H., only son of J. H., for life, and after his decease, in trust for the first and other sons of his body, successively in (r) 2 Essay on Abst. 114, 115. 240, 241, 260, 261. (s) lb. 148. (r) 1 Atk. 580; 1 West, 606; (0 lb. 166, 168. Butl. n. to Co. Litt. 271, b. («) See pp. 226, 229, 230, 236, n.. 414 THE RULE AGAINST PERPETUITIES [ciIAP. XVI. tail-male, and in dcflxull of snch issue, in ease J. II. should have any other sou or sons of his body, then, in trust for all and every such other son and sons, respectively and successively, for life, with lik(^ remainders, to their several sons, as are limited to the issue male of S. II., and for de- fault of such issue, then, in trust for the first and every other son of C. H., the eldest daughter of J. H., successively, for life, with remainder, to the heirs male of their respec- tive bodies, with similar limitations to the sons of three other daughters of J. H., or, to the sons of any other dauiihters which he might afterwards have born, and for default of such issue, in trust for the first and every other son of H. D., successively, for life, with divers remainders- over. S. H. died in the lifetime of the testator ; and J. II., after the death of the testator, had another son, W,, who lived only a few months. There being no issue male of J. II., or of any of his daughters, the eldest son of II. D. claimed to be entitled to the estates devised, under the limi- tations to the first and other sons of H. D. In support of this claim, it was contended, that, although by the death of S. II., in the testator's lifetime, all the limitations were executory, yet, on the subsecpient birth of W., the estate for life, given to him, vested, and the ulterior limitations became remainders; and that all the intermediate limita- tions failing, as such, by reason of the non-existence of the objects of them, at the decease of W., the remainder to the eldest son of H. D. was the first vested remainder ; which, therefore, took effect. It was further argued, on the same side, that if the subsequent limitations could not take effect, as Executory devises, neither could they be good, as con- tingent remainders, because they were not to come in esse, within that compass of time which the law allowed. On the other hand, it was said, that the estate, vested in the trustees, was sufficient, to suj)port the contingent remainders, though no particular trust was declared: it was admitted, however, that the subsequent limitations to the sons of sons CHAP. XVI.] AS IT AFFECTS REMAINDERS. 415 unborn were had, but, it ^vas said, that did not affect the question under consideration; they might be altogether struck out, or might, more properly, be construed as creating estates-tail. Lord Chancellor Hardwicke held, that the subsequent contingent limitations could not be supported, as so many distinct Executory devises, but that they must all be considered as remainders. His lordship then proceeded to observe, that it was not necessary, i/i order to bar the plaintiff from having an immediate convey- ance, that all the contingent lim.itations, intervening the estate limited to S. II., and that to the plaintiff, should be good szibsisting contingent remainders: it was sufficient if some of them were good, for, then, so long as they continued, the plaintiff could not be let in. The Lord Chancellor, then, decided, that the legal estate in the trustees was sufficient to support si/ch of the contingent remainders as ivere valid; and the bill for a conveyance was, consequently, dismissed. In this case, then, we have a decision, that limitations to unborn persons and their children, successively, after an estate of freehold, are contingent remainders ; and an ad- mission, at the same time, that such remainders may be void, on the ground of remoteness. The other authority, alluded to, is the case of Seaward v. Case of Willock, (w) where there was a devise, " to A., tor lite, and mihck. after him, to his eldest or any other son after him, for life, and after them, to as many of his descendants, issue male, as shall be heirs of his or their bodies, down to the tenth o-eneration, during their natural lives." A. having become bankrupt, the property was sold by the assignees, and, upon an action by the purchaser, for return of the deposit, on the ground of a good title to the fee-simple not being deduced, it was contended, on the part of A., that he took an estate- tail, in order to effectuate the general intention, that the property should be inherited, in succession, by his issue («)) 5 East, 198. See also Beard v. Jf estcott, 5 Taunt. 393. 416 THE KULE AGAINST rERrKTUITIES [ciIAP. XVI. The circum- stance of contingent remainders being destruc- tible by acts affecting prior particular- estate, no argument against their tendency to a perpetuity. mule. But it was held, in B. R., thai the estate of A. could not be enlarged, as there was no general intent, to give a descendible estate to the issue of the first devisee, but a single intent, to create a .succession of estates for life, not warranted hij the law. And, throughout the judgment, it is observable, that it was treated, as clear, that if the first taker had only an estate for life, all his sons, excejH one, and the issue of all such sons, would be excluded. In this case, then, there were limitations of strict Common law re- mainders, deemed void on the ground of remoteness. After this attempt, to support the view, here taken, of the question, of the applicability of the laws against remote- ness, to limitations of remainders at Common law, as well, by reason and analogy, as, by authority, the writer trusts, he shall escape the charge of presumption, in advancing a doctrine, opposed to one, which has, apparently, obtained the concurring assent, of so respectable and learned a body, as the Conmiissioners on the law of Ileal Property. It has been sometimes said, (x) that contingent remainders being liable to be defeated, by the tortious alienation of the particular-tenants, or, by the merger of the particular- estates in ulterior vested remainders, a sufficient protection is provided against Perpetuities, to entitle such remainders, to exemption, from the operation of the Rule for their pre- vention. This argument, however, is exposed to die remark, that it meets those cases only, in which, there is no intervening estate limited to trustees, for the puii^ose of presei-ving the contingent remainders. Besides, it assumes a regard, on the part of the law, to, and a prospective provision for, acts and consequences, which it deems wrongful, and which, there- fore, it cannot, with consistency, presume. And to this objection, in point of principle, is to be added, the absence of all authority for the doctrine in question, and the exist- (.r) 2 Prcst. Abst. 1 14. Rand. Pcrp. 93, et seq. CHAP. XVI.] AS IT AFFECTS REMAINDERS. 417 ence of some of a contrary tendency, if respect be had to the analogy afforded by the rule, which refuses to force on a purchaser, a title to property, based on a tortious destruc- tion of contingent remainders. On all the grounds of objection, then, to which the validity of any argument can be exposed, that, here referred to, seems disentitled to our confidence and reception, {y) The operation of the Rule against Perpetuities, upon limitations by way of remainder, being thus ascertained, it will be proper, to proceed in the inquiry, as to what re- mainders are thereby rendered void for remoteness, and, what are valid. And in this, as in every, application of the doctrine of perpetuity, it must be remembered, that the requirement of the Rule is, a necessary, and, not merely, a probable or possible, vesting, within the prescribed limits. 1. It may be laid down, as a universal proposition upon Remainder not this subject, that every remainder, limited after a particu- ^? ^^^' ""^'^ lar-estate to an unborn person for life, which is so given, unbom tenant tnat It cannot vest until the decease oi such unborn person, is void, as too remote. It is true, the unborn tenant for life will necessarily come in esse, if at all, during a hfe in being; and if the vesting of the remainder were not postponed for a longer period, than his attainment of the age of twenty- one years, there would be no objection to it, on the ground of remoteness. But, as the period of the death of the unborn tenant for life is indefinite, it is manifest, that the limits of the Rule are transgressed ; a whole life not in esse being taken for the period of suspension, independently of the time which must elapse prior to the birth of the first taker. It is not, it will be observed, that a remainder can- not be limited after an estate for life to an unborn person, or after a succession of such estates (as was formerly sup- posed) ; but that the remainder is, either, not vested imme- diately, or is not so limited, that it must vest, within the (y) See 2 Jarm. Wills, 226. E E 418 THE nrr-K against pehpetuities [cnAr. xvi. allowed limits. This may be exemplified by a recent case, in reference to a limitation of personalty. Thus, (2) a testa- tor gave the dividends of stock, to his brother and three sisters, and after the decease of either of them, leaving any children, the share of him or them so dying, to be paid to siicli children, for their lives, with benefit of survivorship, and in case either of his brother and sisters should die with- out leaving such issue, then, the survivor or sun'ivors to take the dividends, and after the decease of the sui-vivor of the children of his brother and sisters, the testator directed the stock, and all dividends then due, to be disposed of accord- injTj to the Statute of Distributions ; and it was held, that the bequest of the capital of the stock failed for remoteness, and that it was, therefore, undisposed of, and went to the next of kin of the testator living at his death. Here, we perceive, that the ulterior bequest was necessarily contin- gent, until the decease of the survivor of the class of unborn persons, (children of the testator's brother and sisters,) as the individuals, who should answer the description of those to whom the capital was given, could not be ascertained until that time. The argument, as reported, extended even so far, as to maintain the invalidity of any gift of an absolute interest, beyond a prior limitation of a life-interest to an unborn child, but it cannot be presumed, that either the advocate or the (Jourt adojited any such doctrine, opposed, as it is, no less to the very authority cited in its behalfj than to all principle and analogy, {a) (z) Cooke V. Bowler, 2 Keen, 54. v. Bowler, 2 Keen, 54,) though the (a) A learned writer has observed, adjudication itself, rightly considered, with reference to this case, as fol- lends no support to any such doc- lows : — " It is not uncommon, to find trine, as the ulterior gift, which was it stated, in unqualified terms, that, there pronounced to be void, was no- though you may givea iife-intcrcstto thing more than a declaration, that an unborn person, every ulterior gift the property should go according to is necessarily and absolutely void ; the Statute of Distributions ; so that and some countenance to this doctrine the claim of the next of kin, who was is to be found, in the judgment, as re- held to be entitled, was perfectly con- ported, of an able living judge, ( CooAe sistent with the will, unless, indeed, CHAP. XVI.] A«! IT AFFECTS REMAINDERS. 419 It may be observed, that a remainder, after an estate for life limited to an unborn person, will not be rendered con- tingent on its determination, by the mere circumstance, of the remainder being introduced by the words, " subject thereto," or the like ; such expressions having reference only to the posteriority' of the remainder to the partial estate. 2. A limitation to the unborn child or other issue of an Remainder to 1 , x^Tr o 1 • 1,1- issue of unborn unborn tenant tor Jiie, unconnned m regard to the time tenant for life, of the birth of the remoter issue, is absolutely void for ti°f' of their remoteness. Such a limitation is necessarily void ; because, coming in esse . , be not as there are no iunits to the time, within which the unborn restricted. child in the second degree is to come in esse, it may hap- pen, that no person, entitled to take under the remainder, will exist, until after the lapse of twenty-one years from the birth of the unborn tenant for life ; and, unless the remain- der vests within that period, it, obviously, transgresses the prescribed boundary. It might, also, be supposed, that such a limitation violates the Common law rule, with respect to a 'possibility upon a possibility, as it assumes, first, the event of the birth of a child, and, then, the birth of issue of such child ; but this doctrine can now scarcely be said to be of any au- thority, since it is clear, that limitations may be made to the unborn issue of an unborn child, if it be provided, that such issue, in the second degree, shall be born, or that their it applied to the next of kin at the (rightly or wrongly ; it is of no im- death of the unborn legatee for life, portance to consider ;) read, as a gift which would have been clearly void, to the next of kin of the testator liviiig as embracing persons, who would not at the decease of the survivor of the have been ascertainable until more children of his brother and sisters ; than twenty-one years after a life in which was, clearly, too remote a period, being ; but for this construction there for ascertaining the objects of the gift, seems to have been no ground." 1 If the ulterior limitation merely Jarm. "Wills, 241, 242. With de- amounted to a declaration, that they ference to this opinion, it is conceived, should take, on whom the law would the Master of the Rolls did decide, cast the property, wherefore was it that the ultimate limitation was void, "void?" and how could it "fail for upon the ground of its remoteness ; remoteness ? " (to use the very words and that, because the limitation was of the M. R). E E 2 420 TUF, Rl'LE Ati.VlNST I'lilllT/rLITlES [ciIAI'. XVI. But if the birth of the remoter issue be limited to happen with the legal period, the remainder is good. shares shall vest, wilhhi the proper period, (b) And this leads us to ohservc, that, 3. A hinitation may he made to an iinhorn person, for life, with remainder, to the imhorn ehild or other issue of sueh person, provided, the hirth of the issue, entitled under the ulterior remainder, he limited to take place, -within the period of lives in hcing and twenty-one years, (c) In such a case, as the remainder will vest, (if at all,) on the hirth of the remoter issue, and as the hirth of the issue who are to take, must happen within the prescrihed limits of remote- ness, the mere fact, that such issue arc to he the issue of children, themselves as yet unhorn, can he of no weight, in reference to the question of the remoteness of the remainder. If the issue are born within the specified period, although they be in even the third or foiu'th remove from the living ancestor, the Rule against Perpetuities is still preserved inviolate : and if they are not so born, the remainder will fail, and some ulterior limitation take effect. Upon the same principle, a limitation may be made to A., (a person in esse,) for life, with remainder, to his unborn son, or other child, for life, with remainder, to a child of such unborn child, if it be provided, that the issue in the second degree shall be born, during the lifetime of A., or within the period of twenty-one years from his decease. It must be admitted, the authorities do not warrant our saying more, than that, if the birth of the remoter issue is limited to happen durwg the lifetime of the tenant in esse, the remainder to them will be good ; but, it is conceived, that, upon principle, there can be no question, that advantage may be taken of the whole allowed period, for the purpose of postponing the (6) Sec the argument, derived from the old rule against the existence of a possibility upon a possibility, urged in I Sug. Pow. 493, 494 ; Rand. Perp. 102 ; ari)iitndo, Bengonyh v. Edridgpy 1 Sim. 232. (c) lioutledge v. Dorrill, 2 Vcs. jr. 357. And sec, per Preston, arguendo, Bcvgough v. Ediidge, 1 Sim. 251, and Mogg v. Mogg, 1 Mcr. 664 ; Hayes Conv. 385. CHAP. XVI.] AS IT AFFECTS REMAINDERS. 421 vesting of remainders, as is the case with respect to limita- tions by way of Executory devise and bequest, and Spring- ing and Shifting Use. (d) 4. As every remainder, depending or expectant upon a A remainder , , to an unborn prior remainder which is void for remoteness, must also be too child of a remote, (e) it follows, that, if a limitation be made to A., (a PoItponed'tT' person i?i esse,) for life, with remainder, to his unborn child, limitations to ^ another unborn for life, with remainder, to a child of that unborn person, by child and his purchase, (such latter remainder being unrestricted in point remote, of time,) with remainder, to the second or other child of A., for life, or otherwise, the ulterior limitation must be void, as being postponed to an unconfined remainder to the unborn child of a })erson not in esse. In such a case, the objection of remoteness, which attaches to the remainder to the un- born issue of the first child of A., necessarily affects the sub- sequent limitation, in favor of the second or other child of A., although such last-mentioned limitation, regarded per se, is free from any tendency to remoteness. But, 5. If the death and failure of the issue of the first unborn But if ulterior . . , . 1 /!> remainder be child of A., on which the ulterior remainder is to take effect, restricted to be limited to happen within the prescribed period of perpe- ft7s^good."° ' tuity, the mere circumstance, that such limitation is post- poned to a remainder, in itself too remote, will not expose it to the objection of remoteness, which attaches to the latter. (/) Thus, if land be limited, to A., for life, with re- mainder, to the first (unborn) son of A., for life, wdth re- (d) The writer is aware, that what posslhility, be no longer of any autho- has been above advanced is at variance rity, it is difficult, to conceive, upon with the positions of some text- what ground, except that of a ten- vriters, (see, F. C. R. 502 ; 2 Prest. dency to remoteness, the limitations in Abst. 166, 168; 1 Sug. Pow. 493 ; question can be considered invalid; Burt. Elem. Comp. 268 ; 1 Jarm. and if that tendency be obviated, by Wills, 236 n., 240 ;) who affirm, that the restriction of the birth of the re- every gift to an unborn person, for moter issue to the proper limits, all life, with remainder, to the child or objection is, clearly, removed, other issue of such person, is absolutely ( e) Routledge v. Dorril, uhi supra. void. But if the Common law rule, (/) Beard v. Westcott, 5 Taunt, with respect to a possibility upon a 393; "2 Prest. Abst. 170. 422 THE RULE AGAINST PERPETUITIES [CHAP. XVI. Remainder, expectant on a particular- estate for life to a person in esse, cannot be too remote. I/ifc-cs>tatcs may lie limited in succession mainder, to the issue of such son, by purchase, there being an ulterior rcniaindcr-ovcr, in the event of a faikire of issue male of A., at his death, or in tlie event of the death and failure of issue of such issue male, before they attain their ages of twenty-one years, it is clear, that the remainder-over is perfectly good, notwithstanding the invalidity of the prior limitation to the issue of the unborn son of A. This rule proves to demonstration, that the only criterion, in deciding the question, of the validity of remainders in regard to re- moteness, is, their tendency or non-tendency to a pei-pctuity, with reference to the limits prescribed by the peq)etuity- rule. 6. Wherever an estate for life is given to a person in esse, a remainder may be limited thereupon, to any class of un- born issue, or other persons, and the vesting of their interests may be postponed to any degree of remoteness, as the re- mainder must necessarily take effect or fail, at the expiration of a life in being, which is within the Rule, (g) It follows, therefore, that there is no objection to a limitation to A., for life, and after his decease, to all the children of B., who shall attain twenty-five, or other age greater than twenty- one, or to all the children of an unborn child of A. ; although both such ulterior limitations would be void, as too remote, if made, independently, by way of Executory devise, or Future use. However remote, in its original and abstract form, the remainder may be, if it takes effect within the prescribed period, there is, obviously, no real perpetuity created ; and if, from the rules of law which govern remainders, the limi- tation in question must so take effect, if at all, then, every requirement of the Rule against Perpetuities is satisfied, and it is of little moment, what may be the remoteness of the re- mainder, regarded abstractedly from its nature and implied consequences, and the circumstances of its operation. 7. It is a result of the rule, giving effect to every remain- der, after a limitation to an unborn person, for life, which (ff) 2 Prest. Abst. Hiii. CHAP. XVI.] AS IT AFFECTS KEiMAINDERS. 423 must necessarily take effect within the prescribed boundaries, to unbom that a Hmitation may be made to A., for hfe, with remainder, uf^^ children of to his first son (unborn), for hfe, with remainder, to a ^ person m second unborn son, for hfe, and so on, successively, to all the other children of A., who may be born, for their respec- tive lives ; because every one of the successive tenants for life must necessarily be bom, and, therefore, each of the remainders, vest, during A.'s lifetime, or within such time after his decease, as the law allows for the birth of post- humous issue, (/i) Did each successive remainder for life depend, for its vesting, upon some other event, besides that of the donee surviving the prior unborn tenant for life, which would not necessarily happen within the prescribed limits, all the remainders, subsequent to that to the first un- born son, would be too remote. It is true, each remainder- man mast, in order to his becoming entitled in possession, survive the other unborn persons, to whom prior estates for life are limited ; but this contingency is implied in the very nature of the estates, and does not operate to prevent alie- nation, by the concurrence of all the persons successively entitled, (i) This leads us to observe, that, 8. Life-estates may, also, be given, successively, to the ^"^ ^i!*^!' unborn children of a person i7i esse, if the interests of the vesting of each successive remainder-men are limited to vest, on their postponed to attainment of their ages of twenty-one years, as such event ^™? " J J ^ successive must necessarily happen within twenty-one years after a life takers attaining 1 • All . . , majority. m bemg. And, by consequence, an ultimate remainder may also be limited, expectant upon such life-estates, pro- vided it be, either, presently vested, or, will necessarily vest within the proper period ; e. g., a remainder to the unborn child of any other person m esse. But, an ultimate remainder, (A) Beard v. Westcott, 5 Taunt. person, or any other unborn person." 393. Hayes Conv. 385, 38G. See 1 Jarm. Wills, 236, n. But the (i) It is, surely, lapsus penna of same doctrine has been, inadvertently, a learned writer, to say, that the legal advanced by other writers. See PowelFs prohibition is against " the engrafting note to F. Ex. Dev. 327 ; 1 Sug. Pow. on a life-interest to an unborn person, 493 ; Rand. Perp. 87, 88, 102. a remainder-over to the issue of such 424 THE RULE AGAINST PliUl'ETLITIES [cHAP. XVI. Ri-mainder may be limited to the issue of unborn person, if latter take estate-tail. Remainder void, if made to an unascer- tained person at age above majority, though there be a person existing, who may answer description, and actually does so. The diffcrcnco betuecn lc{^al whose vesting is postponed until the decease of the survivor of such tenants for life, (notwitlistancUng the vesting of ///cir interests withiu the prescribed period,) must be void, because that event may transgress the boundaries of perpetuity. 9. It will be hereafter seen, that limitations, after or ex- pectant upon estates-tail, are, generally, exempt from the operation of the Rule against Perpetuities, by reason of their dcstriictihility l^y the disentailing assurance of the tenant in tail. It is a consequence of this rule, that, if a limi- tation in tail be made to an unborn person, with remainder, to his issue, by purchase, for life, in tail, or in fee, such remainder will not be void for remoteness, although uncon- fined in reaard to the time of the birth of such issue in the second degree, or of the vesting of their interests. (Jc) And, so, it should seem, that, if, j^rior to the limitation to the un- born parent, there be a gift of an estate-tail to some other person, the remainder, to the children of the unborn tenant for life, will be equally free from objection, with the limita- tion to such children, where the parent takes an estate-tail. 10. The rule, which requires remainders to be so limited, as to vest within the prescribed period of remoteness, renders a remainder void, if limited to an unascertained person or class, who will not necessarily answer the required description within the proper period, although, as the event turns out, such person, or the members of such class, be actually in existence, at the time of the creation of the limitations. Thus, if there be a gift, to A., for life, and after his decease, to the unborn son of B., for life, and after his decease, to such son of C, as shall first attain the age of twenty five years, the ulterior remainder is, clearly, too remote ; although there be a son of C. in existence, who afterwards attains the specified age ; inasmuch as, at the date of the will or settlement, there was a possibility, that an imborn son of C. would be the first who should attain the age of twenty-five. 11. A dilliculty seems to arise, as regards the applica- (k) 2 Prest. Absf. 170. CHAP. XVI.] AS IT AFFECTS UEMAINDERS. 425 tion of the doctrines of remoteness, to limitations of equi- and equitable table remainders, which are not bound by the same rules, ^1,^;^ relation ■with respect to the time of their takinj^j effect, as remain- ^° '!'*' ^^"^ , i o ' against remote- ders at Common law ; there being no rule, requiring an ness. equitable remainder to take effect immediately on the deter- mination of the particular-estate. Without this rule, it is certainly difficult, to discover the guarantee afforded by the limitation of a legal remainder, after a life-estate to a person in esse, for the non-violation of the Rule against Perpe- tuities ; since, if the remainder may take effect at any time, so far as respects its validity as a remainder, there would seem to be a prima facie necessity, for the observance of those cautions, in the avoidance of remoteness, which are required in limitations of Executory devises, and Future Uses. The only mode, whereby it seems possible for a Court of equity, to put an interpretation upon such limita- tions, analogous to that which obtains in regard to Common law remainders, is a constructive annexation to the gift of the remainder, of a qualification, that it shall become capable of taking effect, before or at the determination of the particular-estate, (l) As, if the trust of property be limited, to A., for life, with remainder, to such son of his, as shall first attain twenty-five years of age, such quasi-revnain- der must, (it should seem,) if it be good at all, be so, upon the implied condition, that, at the decease of A., there shall be a son of the requisite age. Unless such a construction be admissible, (and it is not advanced, as one established on unquestionable authority,) there seems no alternative, but the subjecting equitable remainders, to all the restrictions and requirements of the Rule against Perpetuities, as it is applied to Executory limitations. Between equitable remainders, limited after prior life- estates to persons tinhorn, and similar legal remainders, no difference seems to exist ; because, as avc have seen, there is, (0 2 Prcst. Abst. 148. 426 THE DOCTRINE OF (,Y-rRES. [ciIAP. XVI. clearly, a necessity, in regard to the latter, for confining the rcniaiuder witliin the prescribed boundaries of remote- ness ; and no other requisite can exist, with respect to re- mainders of the trust or equitable interest. OF THE DOCTRINE OF qY-PRES. Although limitations by way of remainder, to the children of unborn persons, are, it luis been seen, generally void for remoteness, unless the birth of the remoter issue be confined to ha])pcn, within the proper period, there are cases, in which the Courts have so moulded, or put such a construction upon, the limitations, as that the unborn parent may take an estate-tail, and the property vest in his issue by descent ; by which all objection of remoteness is obviated, (m) Nature of this To comprehend the principles on which this doctrine doctrine. ^pgjg^ ^j. j^^^gj. i^g understood, as a rule of law, that, where a testator has two objects, one primary or general, and the other secondary or particular, which are incompatible, the particular intention must be sacrificed, in order that, as far as possible, effect may be given to the general one. (w) If, therefore, a testator manifest a general intention, that a particuhu' unborn devisee and his issue should take certain property, but, in consequence of the interests of the issue being limited by purchase, die particular mode adopted by the testator of carrying into effect his primary intent, be (»n) Sec, Butler's note to F. C. R. intention, here alluded to, has no nc- 204, et seq.; PoweWs note to F. Ex. ccssary connexion with that, which Dev. :333; 2 Sug. Pow. 61 ; 2 Prest. has been sometimes improperly ad- Abst. 166, 167; 1 Madd. Chan. 60; vanced, in reference to the construc- I Jarm. Wills, 260 ; Hayes Prin- tion of limitations affected bt/ gifts- ciplcs, &c., 50, 110; Hurt. Elem. over on a dying wit/iout issue, and Comp. 284 ; Prior on " Issue," 58. which has been subjected to the just (ji) The reader will remark, that censures of some late writers. See tlic doctrine of general and particular Hayes' Iruiuiry, ^c, '284. CHAP. XVI.] THE DOCTRINE OF (JY-PRE8. 427 contrary to law, the Courts have, in support of the testator's general intention, to provide for the issue of the devisee, sometimes held, that the issue shall take derivatively through the ancestor, by vesting an estate-tail in him, which is con- formable to the rules of law. This doctrine is called the rule o^ approximation, or qy-pres, i. e., of carrying into effect the testator's intentions, as nearly as may be, according to the rules of law. Thus, in a well-known case, (o) land was devised, to Case of . Humberston v. trustees, upon trust, to be conveyed to M., for life, and after Hnmbemton. his decease, to M., his first son, for life, and so, to the first son of that first son, for life, &c., and if no issue male of the first son, then, to the second son of M., for life, and so, to his first son, &c., with remainders-over, to about fifty others, for their lives, successively, and so on, without giving an estate-tail to any of them, or making a disposition of the fee : and Lord Chancellor Cowper held, that the limitation to the unborn sons of M., with remainders to their issue, created a perpetuity ; but decreed, that the con- veyance should be as near the intent as the rules of law would admit ; viz., by making all the sons of M., in being at the testator's decease, tenants for life, with remainders to their issue, and limiting estates-tail to the sons unborn. So, again, in another case, (p) a testator gave certain ^f ^ ^^ estates, to his nephew, W. B., eldest son of his brother, R., Oliver w. 1 • n 11 • • BroiL-n. for life, remanider, to his first and other sons, ni strict set- tlement, remainder, to the second son of the testator's bro- ther, for hfe, and after the death of such second son, to the first son of his body, and the heirs male of his body, and for default of such issue, to the second, third, fourth, fifth, and every other son and sons of the said second son of the tes- tator's brother, successively, and to the heirs male of their several bodies : the testator's brother had only one son, W., born in the testator's lifetime, but he had a second son, T., (o) Humberston v. Humberston, 1 ( ;>) Chapman d. Oliver v. Broun, P. Wms. 33-2. 3 Burr. 1626. 428 THE DOCTRINL: of (,Y-PRES. [cUAP. XVI. born after tlio testator's death, and in the lifetime of W. ; W. died without issue, and, then, the second son entered, and suffered a recovery : and upon the question, whether T., the second son of 11., who was not born until after the testator's death, took an estate-tail, or only an estate for life, it was held, by the Court of B. R., that the second son took an estate-tail, for the purpose of effectuating the general intention of the testator. Case of A7c/io// Aj>;ain, in another case, ((7) A. devised all his real estate, to the use of the second son of B., (who had then no son,) for the life of such second son, and after his death, or in case he should inherit his paternal estate, by the death of his bro- ther, to his second son lawfully to be begotten, and his heirs male, and for default of such issue, to the third, fourth, and other sons of B., successively, in tail-male, and in default of such issue, to the use of the first, second and other sons of C, successively, in tail-male, and for default of such issue, to the use of D., and his heirs for ever : B. had no son living at the time of the testator's death : and the Court of C B., upon a case out of Chancery, unani- mously certified, that the estates should vest in the second son of B., when any such should be, by way of Executory devise ; and that, in order to effectuate the general intent of the testator, such second son would take an estate to him and the heirs male of his body, determinable on the acces- sion of the paternal estate. Here, it will be perceived, the Court disregarded the intention, to exclude the eldest son of the second son, but, in order to caiTy out the testator's general desire, gave the second son, an estate, which must, if unbarred, descend upon his eldest son, in prejudice of the second son, who was an express object of the testator's bounty, (r) Case of So, also, in another case, {s) by setdement on the mar- fry) Mchollv. \icholl,2 Sir W. HI. upon this case, Treatise on " Issue," 1 1 fjD. 64. bC). (r) See oLi.scrvulions of Mr. Prior, (5) Rnbinson v. Ilardcmth, 2 T. CHAP. XVI.] THE DOCTIUNE OK (,Y-P1UCS. 429 Jackson. riaffe of A., with B., estates were conveyed to trustees, after Rohinson v. ° . Hardcastle. limitations not important to the present purpose, m trust for such cliild or children of A., on the body of B., as A. should, by deed or will, appoint, and in default of appoint- ment, to the first and other sons of A. and B., in tail, &c. : B. havins: died in the lifetime of her husband, he devised the settled estates, to the use of his son, J., for hfe, with remainder, to trustees, to support contingent remainders, with remainder, to the first and other sons of J., in tail, with remainders-over : and the Court of B. R. admitted the doctrine of qy-jwes, by giving the son, J., an estate-tail, as the limitations in the will, to the sons of J., as purchasers, were clearly void, by reason of his being a person, unborn at the time of the creation of the power. But the case, {t) which is generally considered to have Case of Pitt v. carried the principle of qy-pres, to its utmost length, remains yet to be stated. In it, money was, previous to marriage, covenanted to be laid out in the purchase of lands, to be settled, to the use of A., for life, remainder, to B., for life, remainder, to the use of the children of the marriage, subject to such powers limitations and provisions, as A., by deed or will, should appoint, with remainders- over : A. had several children by B., and, by his will, in execution of the power, directed part of a sum of money to be laid out in the purchase of estates, to be conveyed, in trust for his daughter, M., during her life, for her separate use, with remainder, to trustees, to preserve contingent re- mainders, with remainder, to the children of the testator's daughter, as tenants in common in tail, with remainders-over: the question being, as to the validity of the appointment, Lord Kenyon, then Master of the Rolls, stopped the argu- R. 241 ; 2 Bro. C. C. 22. Mr. But- And see, as to that case, Prior on ler considered, (n. to F. C. R. 406,) " Issue," 64. that the case of Hopkins v. Hopkins, 1 (t) Pitt v. Jackson, 2 Bro. C. C. West, 606; 1 Atk. 580; afforded sup- 51 ; as to which, see 1 Jarm. Wills, port to the doctrine under considera- 263 ; 2 Sug. Pow. 64, 65. And see tion ; but it seems difficult, to discover Phelp v. Hay, App. to 2 Sug. Pow. any solid ground for that conclusion. no. 16. 430 THE DOCTUINIC OF (A-PUKS. [chap, XVI. Doctrine pre- sumes an intention, to create a succession of interests, resembling' descent of estate-tail. mcnt, and determined, that, in order to effectuate the tes- tators f-eneral intention, the daughter must be considered as taking an estate- taih In this case, it will be observed, the extent of the application of the doctrine was the greater, as the order, in which the children of M. were to take under the appointment, was not strictly coincident with the course of succession under an estate-tail. (?<) But, although the general rule is thus firmly established, by the concurring assent of various judges, both of law and equity, it has been carefully confined within due limits, and has been subjected to various restrictions, which shall now be noticed. 1. There must be a clear indicium of an intention, that the issue of the unborn person should take estates-tail, or should succeed in a mode, analogous to the course in which an estate-tail would descend, (v) Therefore, where there is a limitation, to the issue of an unborn tenant for life, as the parent shall appoint, without any express gift, the qy-pres doctrine does not apply, and the limitations, ultra the life-estate, arc bad. This was ruled in a case, (w) before Lord Jivsslyn, where an estate was setded, pursuant to marriage-articles, upon the husband, for the joint lives of himself and his wife, remainder, on an event which hap- pened, to the wife, for life, remainder, to the children, as the husband should appoint, and in default of appoint- ment, to the children, as tenants in common in tail, with cross-remainders in tail; and the husband, by his will, appointed part of the estate, to one of his sons, for life, and after his decease, to the children of that son, as he should ap- point : and it was adjudged, that the interests, limited by the appointment to the children of the son, could not, in any respect, take eff'cct, as no estate-tail was given, nor any intention of the kind, expressed, but that the children were (m) See 2 Jarm. Wills, 263. (u) 2 Sug. Pow. 65. 1 Jam. Wills, 260,264; 2 ib. 342, n. (w) Bristow V. Uarde, 2 Vcs. jr. 336. CUAP. XVI.] THE DOCTRINE OF C,Y-rUKg. 431 intended to take, either by appointment, or, for want of it, distributively, per capita. There was, in fact, no general intent, sufficiently strong, manifested, the furtherance of which would be promoted, by sacrificing the secondary intention, and giving the unborn son an estate-tail. This rule may seem, in some degree, impeached, by the Cases of Pitt decision in the case oi Fitt v. Jackson, before citeu ; [x) and Mofff, v. but, it will be observed, that, in that case, although the issue ^^Snc" to of the appointee for life were to take conctirrently, they tins point. were, nevertheless, to succeed to estates-tail, under the appointment. It may, also, appear, that this principle is impugned, by the judgment in the important case of Mogg V. Mogg, ( y) where there was a devise of estates, to all and every the childi-en and child of the testator's daughter, S. M., (who was in esse,) for life, and after the decease of such child and children, to the lawful issue of such child and children, to hold to such issue, his her and their heirs, as tenants in common, without survivorship, and in default of such issue, over, to other persons. It was held, by the Court of B. R., on a case from the Court of Chancery, and afterwards, by Sir Thomas Plumer, V. C, on return of the certificate of that Court, that all the children of S. M. took estates-tail, as tenants in common, with cross-remain- ders in tail. In support of this construction, it seems to have been admitted, on the argument, that it would be necessary, to prove, that the issue of the children were intended to take estates-tail, and not estates in fee ; it being urged, that the gift was clearly intended, to the children and their family : the measure of an estate-tail was, to a man and the heirs of his body ; and, therefore, a gift to the family was satisfied by such a gift. It was also argued, that the words, " in default of such issue," in the gift-over, had the effect of cutting down the word, " heirs," in the limita- tion to the grandchildren, to, " heirs of the body." On the (x) Vide, supra, p. 429. case, 2 Jarm. Wills, 341, 342, n. (y^ 1 Mer. 654. See, as to this 432 THE DOC-TRlMi OF (.V-l'ltLS. [l IIAP. XVI. Other hand, it was said, that, in all the cases on the doctrine of qij-pres, estates-tail were intended for the issue ; and that there was no one of them, in which a fee was intended for the issue: tliat tlie intention, in tliat case, was, that the children should take life-estates, with remainder, in fee, to their children : and that the words, " in default of such issue," only referred to children of the children, and could not, therefore, be held, to cut down the estate limited to the grandchildren, to any thing less than a fee-simple. In reply, it was, further, said, that it was clear, the testator used the word, " issue," as descriptive of the descendants of the children ; and that the word, " heirs," which he had added, served only to give the devise the character of an inhe- ritance : that those expressions together could not be satisfied, otherwise than by giving the children estates-tail : that the case did not turn upon the doctrine of gy-pres, alone ; for, inde})endent of that, the case might be decided on those authorities, which proicssed to establish the general intention of the testator. What the exact ground of the decision, that the children took estates-tail, was, it would not be proj)cr to conjecture ; but, certain it is, that the case cannot be deemed an authority for the position, that, under a devise to unborn chiklren, for life, with remainder, to their iss2ie, as tenants in comino)i in fee, the children will take estates-tail. On either of two grounds, that alternative is avoided : the Court may have considered, that the word, " heirs," in the gift to the grandchildren, meant, heirs of the body, or that, by the effect of the words, " in default of such issue," intro- ducing the limitation-over, the estates of the issue of the children were cut down to estates-tail ; in either of which cases, the decision would be similar to that in Pitt v. Jack- son : or the adjudication may not have proceeded solely upon the rule of construction, gy-pres, but, also, as was maintained in the argument, upon a general regard for the testator's intention, which was, to provide for the family or descendants of the children, and, likewise, (it may be added CHAP. XVI.] THE DOCTRINE OF gY-PRES. 433 an anxiety to give effect to the testator's dispositions, which would have been, in a great part, defeated, by giving the grandchildren estates by purchase. 2. The doctrine oigy-pres is not admissible, where there There must be is only a single intent, to create a perpetuity, and not a ge- ^nfe^ntlon to ncral intention of providing for all the line of issue, combined P™^'^^' ^^'^ ^'| I " ' the issue, and with an inconsistent particular intent, in regard to the mode not merely a . \ mi 1 \ 1 single intent to of effecting that object, {z) Thus, where (a) there was create a suc- a devise, " to A., for life, and after him, to his eldest or void estates. to any other son after him, for life, and after them, to as many of his descendants, issue male, as should be heirs of his or their bodies, down to the tenth generation i'' it was held, that A. took no more than a life-estate, for that here was no general intent, to create an estate-tail, as contradis- tinguished from the particular intent, to give an estate for life, to the first taker, but a single intent, to create a suc- cession of life-estates to persons not in esse, which the law would not allow. So, also, where (6) there was a devise of lands, to trustees, in fee, in trust for A., an infant, for ninety- nine years if he should so long live, and after that term, to his first, second, third, and fourth sons, and the issue male of their bodies, /or the like term of ninety-nine years, as they should be in seniority of birth, and in default of such issue male in him or them, then, to B., and the issue male of his body, for the like term of ninety-nine years, and in default of such issue male, then, to the right heirs of the devisor ; it was held, that A. took an estate for ninety- nine years determinable with his life, and that upon his death, his first son took a like estate, but that the subsequent limitations to A.'s other sons, and to B., and his issue male, were void. Here, it will be observed, was an intention, to limit successive estates for years, to the individuals from time to time answering the description of heirs male, and not a (i) 2 Sug. Pow. 60, n. ; 2 Prest. 198 ; 1 Smith, 390. Abst. 167. (6) Somerville v. Lcthbridge, 6 T. (a) Seaward v. Willock, 5 East, R, 213. F F 434 THE DOCTRINE OF ('Y-PRKS. [ciIAP. XVI. Mere circum- stance of interests of successive takers being expressly for life, not sufficient to rebut <:y-prcs construction. general intent, to piovulc lor the lines of issne, by de- scendible estates, capable of devolution in a due course of succession. Moreover, as the inheritance was partitioned into a variety of terms for years, it would have been impos- sible, to convert them into one descendible entail, without resortinc: to an imwarrantablv tortuous and strained con- ~ *■' struct ion. From a passa^te in ihc judgment of Lord Ellenborough, C. J., in the first of the cases just cited, it would appear, as if die circumstance, of the interests of the successive takers heivg expressly confined to their lives, was the ground of the rejection of the qy-prcs doctrine. " In this case," said the Chief Justice, (c) " the devisor has not used general terms, from whence an intent, to give a descendible estate to the issue of the first devisee, may be collected ; but has, in express terms, narrowed the estates, which the issue were to take, to estates for life ; and this, properly speaking, is not a case of a particular and a general intent, both of which cannot be etfectuated, and where the one must give way to the other, but a case of single intent, to create a succession oi estates fur life, not warranted by any law." But, notwithstanding the inference derivable from these observations, it is conceived, that the principle of the qy-prcs construction is no less ap])licable to a case, where there is an apparent intention, to give each successive taker, an estate for his life only, than, where the property is, in direct terms, limited to the issue of an unborn person, and the heirs of lluir bodies, so as to create an express estate-tail. The real intent is, in both cases, the same, — viz., that there should be a succession of interests in the line of persons, who would be inheritable to an estate-tail, cither general or special. The law declares, that can be only effected, by creating an estate, which shall, in its own nature, be descendible to the persons intended successively to take. What avails it, then, (c) '} East, 207. And sec Hayes' Principles, 50. OTIAF'. XVI.] TTTK DOCTRINE OF c;Y-PRES. 435 that the interest of each person, inchidcd in this line of takers, is, in terms, confined to his life, if the paramount intention be thereby frustrated ? And, in what consists the difference, as regards the appUcation of the gy-pres doctrine, between such a case, and that of a hmitation of descendible interests to issue of a person unborn, which are intended to devolve on successive generations ? It seems undeniable, that both cases alike admit of and require the application of the rule in question, [d) Whatever force may be attributable to the circumstance Oj-pr6s con- under consideration, in the limitation of legal estates, there applied in case can be little doubt, that, in a case of executory trusts in °^ s'tralthou^ h Chancery, the carrying into effect of which is subject to limitations . . seemingly the control of the Court, limitations of the character just designed to mentioned would fall within the general doctrine of ^y-j)res, perpetuity and would be executed, by the creation of an estate-tail, in ''"^^^ favor of the first unborn person, supposing, the whole line of issue of such person were intended to be comprehended in the limitations ; which cannot be predicated of the before- stated case of Seaward v. Willock. {e) 3. The doctrine of gy-pres is not applicable to limitations Cij-prh oi personal estate. The reason, on which that doctrine is extended to grounded, is, as has been already stated, the giving effect p^smlaUy. ° to the supposed primary intention of the testator, to provide for the general line of issue, who cannot, by the rules of law, take otherwise than derivatively through their ancestor, but, to some of whom, the testator has attempted to limit interests, originally and independently. It is obvious, therefore, that, since personalty is not capable of transmission by entail, but always vests absolutely in any person, to whom it is limited, by words which would create an estate-tail in realty, the appli- cation of the principles of the doctrine in question, to limi- tations of personal estate, would be arbitrary and baseless. (erty, in the above-noticed case of Mogg v. Mogg, (j ) where the Court, having (as it seems) applied the construc- tion oi gy-pres, to various limitations of realty, extended it to a bequest of personalty, upon trusts declared in exactly similar ivords, although not, it is true, by reference, merely, to the previous gifts. It was argued, in support of the absolute in- terest of the personalty vesting in the parties made tenants in tail under the doctrine of gy-pres, that such a construction was necessary, in order to effect the general plan and intention of the will : and that, although the doctrine in question did not strictly hold, the words used in the limitations of the real and personal estate were the same, and, therefore, the maxim, noscitur a sociis, applied. On the other hand, it was said, that the object of the testator was, that the issue of the children should take the absolute interest of the person- alty, it being given to them, their executors and adminis- trators: and that it was impossible, to enlarge the gift to the {j) 1 Mer. 654. In addition to 274 ; and Prior on " Issue," 66. which, sec Mortimer v. irest, 2 Sim. CHAP. XVI.j THE DOCTRINE OF QY-PRE9. 439 children, on account of the limitation to their issue, because, giving the absohitc interest to the parent, in a chattel, was not doing anything for the issue. It cannot be collected, on what precise ground, the construction, that the parties, made tenants in tail of the realty, took the absolute interest of the personalty, was intended to rest. We have seen, (k) that, even in resard to the limitations of the real estate, the de- cision adopted, is not, necessarily and exclusively, referrible to the doctrine of gi/-pres : and, in respect of the personalty, it may, perhaps, not improperly, be considered, as the compound result of the influence of the qy-pres doctrine, a regard for the testator's general intention, with an anxiety to support his dispositions, as far as possible, and the rule, nos- citur a sociis. It is obvious, therefore, that a decision, affected by such considerations, can operate no very impor- tant infringement of the rule, that the construction, gy-pres, is not applicable to limitations of personalty, even though it be not wholly resolvable into the principle of the referential construction, before alluded to, and which does not seem open to any just exception. But there is another reflection, affecting the decision in vi ^y.pres Mogg V. Mogg, and, at the same time, of general impor- appSi"!' tance, in regard to the limitations of personalty under con- ^''^'^ ^j^J^J"® ^^i sideration. It is, that, where the gifts to the parent and as obliterated, , ,. . . -, ., r and first taker issue are followed by a generab nmitahon-over, onjatlure of have absolute isstte, either of the parent, or the first generation of issue, as JJJrce^of gift- the limitation to the remote class of issue, as purchasers, is, over. ex hypothesi, bad, it must be considered, as struck out of the limitations, leaving only a gift to the ancestor, or first class of issue, for life, with a limitation-over, on failure of issue of either ; which, under the general rule of law, formerly considered, will operate to vest the absolute interest, in the person or class, on failure of whose issue, the ultimate gift is to take effect. (/) This reflection, though not proper to (A)' Vide supra, pp. 4;J1, 432. (/) Sec Trior on " Issue," 178. 140 THE DOCTRINK OF f;Y-PRKS, [cHAP, XVI. the constnictlon of qy-pr^s, will be fouiul to be uUitnutely connected with the (question, of its apjihcabihty to hinitations of personalty, on account of the frequency of limitations- over, on a general failure of issue, following gifts to persons and classes, and their issue. Construction of 4. A further restriction of the doctrine o^ qy-j)res, is, that (y-ftrts not . . 1-11 !• • • • 1 /> 1 I applied to It IS not ap])licable to lunitations, cither oi real or personal linmations in ^^^^^^^ j^ ^^^^^^ j^ j^^ -^^ ^^^^^ ^^ offslioot of that general system of indulgence and laxity of construction, as respects wills, which has long obtained in our Courts, both of law and equity, but which has not been suffered to have place, in regard to the interpretation of, and giving effect to, in- struments inter vivos. And, accordingly, where (rn) a power of a])pointmcnt, among the children of a marriage, was executed, by an appointment, by deed, to a daughter, for life, remainder, to the eldest son, for life, remainder, to trustees, to preserve contingent remainders, remainder, to the first and other sons, in tail, &c., remainder, to the daughter, in fee ; it was held, by the Court of B. 11., on a case from Chancery, that all the limitations, subsequent to that to the eldest son for life, were void, as being an excess beyond the power ; and that such an appointment, being by deed, could not be construed, qy-pres, so as to give the sou an estate-tail, as might have been the case, if the appointment had been by will. And liord Eldon, also, in the same case, when before him, («) observed, that the doctrine had not been applied to limitations in deeds, (o) (m) Brudenell v. Elwes, 1 East, legal estates ; but no autliority is nd- 442. And SCO Adams V. Adams, Cowyt, duced for this j)osition : and, as the 651. opinion is hesitatingly expressed, and (n) 7 Vcs. jr. 390. the writer has not found it confirmed (o) Mr. Preston, (2 Essay on Abst. by that of any other author, or by any 166, 167,) seems to incline to the decided case, it is not deemed neces- opinion, that the doctrine of fy-pres sary, to do more, than, thus incident- is ailmissiblo in the construction of ally, allude to the apparent impres- limitations bi/ uny of trust, in deeds, sion of the eminent real projicrty although not, of sunilar limitations of lawyer in question. CHAP. XVr.] THE DOCTRINE OF CY-PRliS. 441 5. It is to be further observed, that the rule o^qy-vres can- Person or , . ^ . class to be not be a})pUc(l, unless the person, or class, who, in case of its mailc tenant application, would take an estate-tail, be entitled to a freehold (^ii must have estate or estates for life, (p) An estate for years determinable ^.freehold hic- ^' ' *' interest. with the life or lives will not suffice, as a foundation for an estate-tail : for though the Courts, in the case of an express gift for life, so far disregard the particular intention of the testator, as to convert it into a limitation of an estate-tail, yet there is no repugnancy between the nature of the estate, on which the enlargement is founded, and that, into which it is enlarged. When an estate for years, however, is given, there is no interest, susceptible of enlargement into a descendible estate, — nothing, on which the construction of an estate-tail can proceed. In such a case, therefore, the limitations, sub- sequent to the term, are irremediably void, and the pre- sumed general intention cannot be effectuated. 6. A question seems to exist, as to the estate which is to With what cljiss of issue be enlarged under the application of the doctrine of gy-pres : the estate-tail whether those members of the class of issue designated, who l^c^j.^"""' come in esse in the testator's lifetime, may be restricted to life-estates, with remainders in tail, to their children, while the other unborn members of the same generation of issue take immediate estates-tail ; or, whether the interest of the first takers, although born in the testator's lifetime, is that, which is to be enlarged into an estate-tail. In other words, the question is, whether the wishes of the testator, are to be com})lied with, as far as the Rule against Perpetuities will permit ; or, whether, when a necessity for the application of the qy-pres doctrine exists, it is to be a})j)licd, to the interests of a// persons possibly falling within its range, irrespectively of the circumstance, of some of those persons being born, so as to admit of express gifts being Ihnited to their issue, by purchase. ip) Sec Somervilk v. Lethbritlyc, B. ^ Aid. 801 ; 5 Taunt. 3;»3. 6 T. R. 213; Beard v. Wvstcott, 5 442 THE DOCTRINE OF (;Y-rUKS. [chap. XVI. If regard be had to principle and analogy, it docs not seem difficnlt, to arrive at a conclnsion upon this (juestion. It has been before seen, that every hmitatiou by will must be such, as, according to the state of events at its date, can be substantiated under the Rule against Perpetuities ; and that the whole limitation fails, if remoteness attach to any of the objects of it. In the su})posed case, therefore, it is clear, that, independently of the construction of gj/-prt's, the entire gift, subsequent to that, which is made to the first class of un- born issue, or which may possibly embrace such after-born issue, is void : none of the objects of it can claim, although they may be born, or become capable of taking, within the testator's lifetime. Now, the rule of qy-prcs effects no change in the ordinary rules upon the question of re- moteness. It consolidates the remote gifts, and the prior valid one, into a limitation of an estate, whose course of devolution answers to the general intention of the testator, as to the parties to succeed, and the mode of succession. And the rule does it upon this principle : that those per- sons, who, by the ordinary rules of remoteness, cannot be made tenants for life, with remainders, to their issue, are to be the persons, whose estate is to be enlarged. In the case of a gift, by will, to A., for life, with remainder, to his child- ren, for life, with remainder, to their children, in tail, we have seen, that the ulterior limitation is void ; and that, although A. may die in the testator's lifetime, and, so, the remoter issue be made capable of taking by express gift, if the testator avail himself of the change of events. Obviously, tlierefore, the rule of qy-prh nmst be ap})lied to the limita- tions, as they oriyinally stand; that construction being the mode, whereby to remedy the invalidity of the limitations, which arises from the rule of law, requiring them to be valid within the Rule against Perpetuities, in their original formation, and according to the state of events at the date of the will. Case oi Thib view i^, apj)aiently, sui)ported by several authorities CHAP. XVI.] THE DOCTRINE OF (JY-PRES. 443 which it will be proper to notice. In Wollen v. Andrewes, (r) »'„//,.„ >-. there was a devise, to a trustee, in trust, to permit the testa- ^^'"^'■<'«'"- tor's six chiUken to receive the rents of the property, for their lives, and after their respective deceases, to permit the children of the son or daughter dying, to receive the rents of his or her sixth share, in equal shares and proportions ; and, so, in like manner, from children to children : in case either of the testator's children should die without leaving issue, the rents belonging to the child so dying, to go to the survivor or survivors. It does not appear, whether any of the children had issue, at the time of the testator's death. It was held by the Court of C. B., that the testators chil- dren took estates-tail. In delivering the judgment of the Court, Best, C. J., remarked, as follows : (s) — " On the face of the will, the testator has given only an estate for life, to the grandchildren, but we are of opinion, that, by the operation of subsequent words, the six children took estates- tail in the premises, because the testator goes on to attempt that which is impossible, — to give an estate for life to un- born grandchildren ; he is not allowed by law, so to advance towards the creation of a perpetuity : but we must do that which will approach the nearest to his intentions, and, therefore, the second limitation must he construed as an enlargement of the first estate for life" Here, it is manifest, that though it would have been perfectly allowable, as far as regards any question of remoteness, to have vested estates- tail in the children of the teslator^s children, leaving the estates of the children, as limited by the will ; the enlarge- ment of the interests of the first takers must be referred to a general rule, such as that here maintained ; which was applied incorrectly, in consequence of a misconception as to the legality of gifts of life-interests to unborn persons. In Mortimer v. IVcst, (t) there was a devise, to A., B., C, and D., natural children of the testator, by M. D., share and ^'^^^ ^^ Mortinur v. (r) 2 Bing. 12G, (0 2 Sim. 274. '^"'* (s) 2 Bing. 130. 444 THE DOCTRINE OF qY-VRKS. [CIIAP. XVI. share alike, for tlicir lives, and after the decease of every of the said chiklren, leaving issne, the share of such child so dying, to go and be divided ecjually between his or her children, whether sons or daughters, for life, share and share alike, if more than one, and if but one, then, the whole share to such only child, for life, and so, to be con- tinued and distributed in a descending line, per stirpesy from issue to issue, for life, so long as any issue should be living, descending from the said M. I). ; the children of the ])arcnt dying to take such parent's share equally between thcni, in all cases of decease : in case any of the said chil- dren of M. 1)., or their respective issue, should die, leaving no issue, then, the share of him or her so dying, to go to the surviving brothers and sisters, for their lives, and propor- tionably amongst the issue of any, who should be dead ; and for defliult of such brother or sister, or their issue, then, as in the will mentioned : and in default of any issue, descend- ing and proceeding from the children of M. I)., over. It would seem, that none of the children of M. I)., had issue at the time of the testator's death. It was held by Sir L. Shadiuell, V. C, that A., B., C, and D., took estates-tail ; although it had been argued, on behalf of the children of one of those persons, that, by force of the decision in Hum- berston v. Humberston, the first legatees must be confined to the life-interests, intended them by the will, and that their children should take estates-tail; but his honor observed, that the decision in the case cited was not ap- plicable, the trusts, there, being executory, and being, therefore, carried out, to the utmost extent allowed by law. Case of Again, in the case of Brooke v. Turner, {u) a testator (li) 2 Bing. N. C. 422. It has sumption of intention can be collected been thought, (see Prior on " Issue," from the limitation-over, which is not 156, 157,) that this and the preceding afforded, in a superior degree, by the cases proceeded chiefly on the evi- previous express gifts. In all c.ises, dencc of intention, afforded by the where the principle of fy-pr^s applies, gift-over, in each, in rlefauU of isnue the testator is supposed to \iiteiid, and of the person made tenant in tail. shows thai he intends, a succession. But it is not easy to see, what pre- in iujinitum, by the issue of a particu- CHAP. XVI.] THE DOCTRINE OF (,Y-PRES. 445 devised lands, to trustees, in fee, in trust for his wife, for life, Bmohe v. and after her dceease, to the use of his children, F., T., and K.yfor their lives, in equal shares, and to the iss?ie of their respective bodies, for their respective life only, in etjual shares, for ever ; and in case of the death of any or either of his said children without issue, then, upon trust for the survivors or survivor of them, in equal shares, for life only ; and in case there should be only one child then living, then, upon trust for such only child, for life only, and for the issue of such only child, for life, in equal shares ; and if but one issue of such child, then, to such only child's issue, for life only, and the heir of his or her body, for ever ; but, in case there should not be any issue of such child, or the child of such child, remainder, over: either of the testator's chil- dren who should marry, to have power, to make a settlement of his share ; such settlement, to be for the lives of the parties, and the lives of their issue, with remainder-over, in tail : and the testator desired, that his children should keep the property in his family, so long as there should be found one of them living. By a codicil, the testator, noticing the dispositions in his will, devised the property, after the decease of his wife, to the trustees, in fee, for the use of his three children, as tenants in common, for the term of ninety-nine years, if they, or either of them, should so long live, and, gubject thereto, to the trustees, to preserve the contingent estates ; and the uses (subject to those declared by the codicil) expressed in the will, as far as the rules of law would permit, were to be carried into execution. On a case out of ('hancery, upon the construction of this will and codicil, it was argued, on the one side, that, as the testator's desire was, to create a perpetuity, among his children and their issue, a construction must be put upon the will, which would nearest approach the testator's intention; and that, in order to secure the issue of each of the testator's children, a lar person or class : and what strength the terms of the limitation- over, which does that circumstance derive, from itself can only raise an inference ? 446 THE DO( TUIXR OF CY-PRKS. [cilAP. XVU sliarc, those children must take cstatcs-tnil, (v) in remainder cx])ectant on the estates for ninety-nine years created by the codicil, and the estate to support contingent remainders ; and that the paramount intention of the testator must [)re- vail over incompatil)le subordinate intention : and, on the other hand, it was contended, that the children took estates for ninety-nine years determinable with their lives, the free- hold being vested in the trustees during the term, with remainders i?i tail, to the isstie of the three children. The certificate of the Court of C B, was to the effect, that the testator's three children took estates for the term of ninety- nine years, if they should respectively so long live, with remainder, to the trustees, for the respective lives of the three children, in trust to preserve contingent remainders, with remainder, to those children, as tenants in common in tail-general, with cross-remainders between them in tail- general. Casoof 7V«»7i Another authority, of the same character, is the recent case of Trash v. JFood, {w) where a testator devised copy- hold property, to trustees, upon trust, subject to certain yearly charges, to pay the residue of the rents and profits, as follows: — "To my grandson, J. T., for his life, and after his decease, to pay the residue as aforesaid, unto his children, and so on, for ever ; and for want of children lawfully begotten, to my three daughters, for the term of" their natural lives, equally between them, and from and after their decease, to pay the residue, unto all my grand- children, ecjually between them, and so on, to their chil- dren, for ever." It does not appear, whether there was any gift-over on default of issue of all the testator's children- On a bill, filed by the youngest son of J. T., claiming to be customary heir of the latter, for a declaration of his title to the property devised, it was contended, that J. T. took an cstate- (v) This, clearly, was not neccs- issue might legally take by purchase, sary : the children were (from the (w) 4 Myl. & Cr. 324. nature of the case,) in tsse, and their iroixL CHAP, xvr.] THE doctrtnr of f;Y-PRF,s. 447 tail ; thai being, as was said, the only construction, by whicli, effect could be given to the manifest intent of the testatrix. On the other hand, it was urged, that J. T. took no more than a life-estate in the devised copyhold, and that, n[)on his death, all his children, who were then living, l)ecamc entitled to a life-interest. Lord Chancellor Cotfenham, after observing, that the words, " for want of children," in the ulterior gift, nuist mean, for want of issue, said, the testatrix's object was, that children's children for ever should enjoy the property in perpetual succession ; and she made no gift-over, whilst any such were left : and that there w^as no way of effecting that pin-pose, but by giving an estate-tail to J. T. In opposition to the doctrine apparently established by Case of Cnnd- these authorities, has been urged, the decision in (joodtiUe Woodhuii. d. Cross v. WoodhuU, (x) where there was a devise, to the testator's eldest son, J. C, for life, and after his decease, the property to descend to his male children, (if he had any,) for their natural lives only, and to the male children de- scending from them, and upon their decease or failure, then, the property to fall to L. C, and the heirs male of his body, for the same term of life, and upon the same terms as the testator intended for his son, J., and his male children, and in case of his (L.'s) and his male children, their failure, then, the property to descend to T. C, and his male chil- dren, for the same term of his and their life, and upon the same terms. Then followed a gift, to the daughters of J. C, L. C, and T. C, and an viltimate gift-over, on feilure of the testator's children, and their issue. J. C. and L. C. died, without ever having had issue, but they both had suf- fered recoveries. T. C. died, leaving issue, two sons, by whom ejectment was brought. It was decided, that J. C. and L. C, respectively, took for life only ; and judgment was, accordingly, given, for the parties claiming under the ulterior gift. Upon this decision, it has been observed, (y) that, — " In this case, it was clear, that all the male descend- (x) Willcs, 592. (y) Prior oa " Issue," 62, 448 I'l'J- DOCTlilNE OF C,Y-PaKS. [chap. XVI. ants of J. C. were to take for life successively, before L. C, and those of L. C, before T. C. ; yet the decision was, that J. C. and L. C. took for life only. The ground of the de- cision, it is apprehended, was, that the devolution of the pro])erty, to all the descendants of J. C and L. C, might be secured, by giving the sons of J. C. and L. C, estates-tail, instead of their parents ; and that, therefore, the testator's intention, of giving successive life-estates, should also be effectuated, as far as was consistent with the Rule of Law against Perpetuities." Observations Now, it is admitted, that, if the testator evinced an inten- upon (;,HHiiitk ^^^^^ ^^ « o-ivins successive hfe-estates," to all the issue of his (1. ( ros.i V. Do Wuodiudi. three children, and, thereby, brought his dispositions within the principle of the qij-pres doctrine, the decision, that those chilchren took only life-estates, is inconsistent with the rule deduced from the authorities before cited. But, it is con- ceived, that the case in question has no real connexion with the rule of qy-pres ; and that the decision, at which the Court arrived, was the only one consistent with established rules of construction. The case seems to have been, simply, one of a devise for life, with remainder, for life, with remainder, to the male issue of the last devisee for life ; which two latter limitations coalesced under the Rule in Shelley s case. The gifts, to the male issue of the children, were expressed in terms, proper for creating cstates-tail-male : there was notliiniT in the will, to confine the interests of the successive descendants, to their lives : and there was, consequently, no ground for the application of the construction of qy-pres. An attention to the obervations of Lord (J. J. Willes, on delivering judgment, will immediately shew this. " We are of opinion," observed that eminent judge, {z) " that J. C. took only an estate for life ; for which, I shall cite only three or four cases. Archer's case, 1 Co. (SQ ; a devise to 11. A., for life, and to his next heir male, and the heirs (z) Willes, 594. CHAP. XVl] the doctrine OF f;Y-PRES. 449 male of the body of such heir male ; and it was holdcn, t5 be only an estate for life. The case of Clerk v. Day, Cro. Eliz. 313, was exactly the same. Then in fVild^s case, 6 Co. 17, where it was held, that if there be a devise to A., and his children, and there be no children, it is an estate-tail, of ne- cessity, because it is a devise to the children by words deprce- senti: but a devise to A,, and after his decease, to his children ; it is only an estate for life. Again, in Lodington v. Kime, Salk. 224, there was a devise to A., for life, without im- peachment of waste, and in case he have any issue male, then, to such issue male, and his heirs for ever ; and it was held, that issue must be taken as nomen singulare, because of the devise to the heirs of such issue. So, in Rol. Abr. 837, pi. 13, a devise to his eldest son, for life, and after his decease, to the sons of his body ; it was holden, to be only an estate for life, by reason of the words, 7ion aliter. And, lastly, in the case of Ginger v. White, Willes, 348, there was a devise to A., for life, then, to the children of A., successively, and their heirs, and if A. die without issue, then, to B. in fee ; held, that A. took only an estate for life. With regard to the objection, as to the absurdities that will follow ; it is not to be supposed, that the devisor knew them : but it is plain, that he had it in his contemplation, whether they should have estates for life, or in tail." These observations (all that were delivered on the point of construction,) conclusively demonstrate, that the decision was far removed from any connexion with the qy-pres doc- trine, and that it rested upon the plain and intelligible ground, afforded by the superaddition of words of inheritable succession, to the gift to the children of the testator's chil- dren ; which, as between the first and second generations of issue, necessitated the construction of the latter taking by purchase. But, even if there were no observable difference, or intel- ligible ground of distinction, between the cases which have been noticed, little practical objection could exist, to the G G 450 THE DOCTRINE OF CY-PRES. [CHAP. XVI. Case of Ilttinberston v. Ilumberstun. Observations upon Humber- aton V. Hnmbcrston, alternative, of considering the decision in Goodtitle v. IVoodhull as overruled by the later adjudications, as it occurred at a comparatively distant })eriod, when the laws against remoteness were unsettled, and their principles (if any) imperfectly understood, and when the many distinc- tions and refinements, now well established in reference to those laws, were seldom even presented to judicial con- sideration, or subjected to forensic inquiry and discussion. It next occurs, to notice the case of Humherston v. Huin- herston, (a) in connexion with the fjuestion here considered. In that case, it will be remembered, M. II. devised lands, to a corporation, in trust to convey them, to his godson, M. H., for life, and upon his death, to his first son, for life, and so, to the first son of that first son, for life, &c., and if no issue male of the first son, then, to the second son of M. II., the devisee, for life, and his issue, in like manner, with remainders-over, to various other members of the H. family, and their sons, &c., for life, without any disposition of the fee. On a bill filed by the first devisee, for execution of the trusts of the will, Lord Chancellor Cowper said, that, so far as the testator's intention was consistent with the rules of law, it ought to be complied with ; and he, accordingly, directed, that all the sons of the II. 's, that were already born, should take estates for their lives ; but that, where the limitation was to the first son unborn, there, the estate to such unborn son should be in tail-male. It does not clearly appear, from either the observations of the Lord Chancellor, or the statement of the decree, in the report, what period was referred to, in the expression, soris already born ,■ but, it must be assumed, that the Court intended, sons, born at the time of the testators death, to take estates lor life, and not, all such as might be living at the date of the settle- ment. This decision, obviously, proceeded ujion the principle, that the limitations, being executory, might be carried out (a) 1 P. Wms. 332 ; 2 Vein. 737 ; Pr. Cha. 4r)3 ; 1 Eq. Ca. 207, pi. 8. CHAP. XVI.] THE DOCTRINE OF QY-PRKS. 451 in accordance with the testator's intention, as far as was allowable by the rules of law ; and the case has always formed an authority for that mode of proceeding, in regard to executory trusts. It is idle to affirm, that the fact of the trust being executory cannot affect the question, when the giving effect to limitations, which, if executed, would be void for remoteness, on account of their incomplete and in- determinate character, is a matter of constant observation. It is difficult, therefore, to discover the weight of an argu- ment, which has been urged against the distinction between trusts executed and executory, of the following character. *' In cases of executory trusts," observes Mr. Prior, (6) " the Courts consider, that the testator is, as it were, giving in- structions for a conveyance, and uses a shorter and more popular way of expressing himself, than he would have done, if he had been actually declaring executed trusts; and, therefore, they hold, that general expressions are used by him in a particular sense ; as, for instance, ' heirs of the body,' is construed, as if it were, first and other sons. Ac- cording to the Vice-Chancellor, however," (alluding to the distinction taken by Sir L. Shadwell, in the case of Mor- timer V. West, between it and Humherston v. Humherston,) "they are called upon to do just the contrary, in these gy-pres cases : they are to infer, that the testator has used more particular and precise expressions, in directing a con- veyance to be made, than he intended to be inserted in the actual conveyance; a position very difficult to be main- tained." With all respect for this gendeman's opinion, it is conceived, that the distinctive character of the practice of Courts of equity, in carrying out executory trusts, is, the giving effect to them, as far as possible, according to the intentions of their author. His expressions may fall short of, or exceed, his legal powers : but his intention is regarded in both alike ; and the duty of a Court of equity is, in each, (b) Treatise on " Issue," 60, 61. G G 2 452 THE DOCTRINE OF CY-PUKS, [ciIAP. XVI. the same. He wishes his ])roperty to be settled, as strictly as possible : in one case, he uses general words of succession, which would fail of effecting his purpose ; and Chancery supplies the defect : in another, he aspires to an excessive posthumous control over his property ; and Equity sets aside the invalid portion of his dispositive scheme, but gives effect, at the same time, to whatever may be sub- stantiated. Moreover, the learned writer's argument directs itself, equally, against all decisions that have ever been pro- nounced, whereby effect has been given to trusts excutory, which, if executed, would have been too remote. Until these cases have been over-ruled, therefore, there can be little impropriety, in affirming the justness of the distinc- tion, between trusts executory and trusts executed, in respect to the particular point of the application of the gy-pres doctrine under consideration. Case of Since the preceding observations were written, a case has y""King."" been decided, which apparently supports the opinion, that the class of children or issue who first take is not that with which the estate-tail shoidd commence, when such children or issue come in esse in the testator's lifetime. The case is that of Vanderplank v. King, (c) whore there was a devise, to the testator's daughter, J. K., for life, and after her decease, to all and every the child or children of her boily, male or female, and their assigns, for their lives, and after the decease of any such child or children, to the child and children of the body and bodies of all and every such child or children of the testator's said daughter, male or female, to be begotten, and the heirs of his and their respective body and bodies ; such children to take in equal shares, as tenants in common, and not as joint tenants ; and in case of the death of any child of the testator's said daughter, and failure of issue of his or her body, then, the share or shares which so failed, to go to the survivor or sur\ivors of such (c) Er relation/- , not yet reported. CHAP, xvl] the DOCTRINK oF TY-PRES. 453 children, as tenants in common, if more than one ; and in case of the death of all such children without issue, over : most of the children of J. K. were born in the testator's lifetime ; but the birth of one of them did not take place till after his decease : and the principal (piestion seems to have been, whether the children of the daughter took estates for life, or in tail. It was held by Sir James fVigram, V. C, that all the children of the testator's daughter, J. K., born in the lifetime of the testator, took estates for life, with remainder, to their children, in tail; but that the child, born after the death of the testator, took an estate-tail, by the doctrine of gy-pres ; and, further, that the children took cross-remainders between them. At present, it can only be observed of this decision, that, if it shall prove to have pro- ceeded, broadly and intelligibly, upon a consideration of the nature and operation of the qy-jpres construction, it should seem to be at variance with some, at least, of the authorities previously cited; and that it must remain for future adjudication to determine, how far the doctrine, apparently sanctioned by it, accords with strict principles of law, as compared with that supported by the cases above adduced. 7. It has lone; been a very general opinion, that the Doctrine of doctrine of gy-pres has been carried out, to the fullest extent be extended, warranted by the principles on which it is grounded. Thus, Lord Kenyan himself, who decided the case of Pitt v. Jack- son, observed, {d) many years afterwards, that it went to the very outside of the rules of construction, and to the utmost verge of the law. And Lord Eldon, also, remarked, {e) that, in the gy-pres doctrine, it was not proper, to go one step further; as the cases, in order to serve the general intent, and the particular intent, had destroyed both. Mr. Butler has, also, observ'ed, (/) that, in practice, the doctrine should not be acted upon without a considerable degree of attention; (,/) 1 East, 442. (/) Note to F. C. R. 208. («) 7 Vcs. jr. 390. 454 THE DOCTRINE OF (;Y-rilES. [ciIAP. XVI. while Sir Edward Sugden has remarked, {g) that it appears to have been carried too far. The concurrence of authorities, such as these, in the opinion, that the construction, qij-pres, is not to be, indiscriminately and unguardedly, resorted to, renders it unnecessary, here to prescribe further caution, in the ap})lication of the doctrine ; in order that, as Lord Eldon remarked, while endeavouring to subserve the general in- tention, that, as well as the particular, be not defeated, {h) ((/) 2 Sug. Povv. GO. And sec 2 Jarm. Wills, ^342, n. (A) It is observable, that a doctrine, much resembling that of gy-pris, was not unknown to the earlier sages of the law. Sec Co. Litt. 219. But that doctrine had reference to a par- tial failure of disposition, by reason of a change of events, before the period of its being completely effected; whereas, the modern rule contem- plates, solely, such an imperfection, .as arising in the operation of inflexible principles of law. 455 CHAPTER XVII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMI- TATIONS TO CLASSES OR ASSOCIATIONS OF PERSONS. Foremost among the various kinds of dispositions, which call for the application of the Rule for the prevention of Perpetuities, are to be placed, limitations to a class or asso- ciated number of individuals, either answering a particular description, or specifically named. These gifts are, for the most part, of the nature, either, of Executory devises and bequests, and Springing and Shifting Uses, (in any of their various modifications,) or of Trusts, declared in deeds, of personal estate, analogous to those limitations. To exemplify this class of limitations : — Suppose, a tes- Illustration of tator bequeaths personalty, to A., for life, and after his limitations to decease, to such of the children of A., as shall attain twenty- ^ ^°"^' five. The question being, whether this Executory limitation to the children is, or is not, too remote, it is to be inquired, whether, in the very nature of the limitation, that rule of law is satisfied, which requires, that every future interest in property be so limited, as that it must necessarily vest, or fail of effect, within the space of one or more life or lives in being, and twenty-one years. And the answer to this iucpiiry being, that A. may have a child, born but just before, or not until after, his decease, and who could not, therefore, attain the specified age, within twenty-one years from the expiration of a life in being, (viz., that of A.,) but who, nevertheless, is included in the class entitled under the executory gift, such gift is void, as possibly postponing the vesting of the future interests, for too remote a period. 456 LIMITATIONS TO CLASSES OR [ciIAP. XVIL And it is a consequence of the rule, which denies the liberty of looking at actual events, in considering the validity of Executory limitations, (i) that, since the attainment of the rec^uired ages, by the children, is not confined to the period allowed by law, no regard can be had, to the circumstance, of some of the children acquiring the capacity of taking, within the proper time, or, even, of such being the case, with respect to all the children ; but the gift is absolutely void, to the same extent, as if it had actually happened, that no one child had become entitled, within the period of legal remoteness. The gift is, in a word, either, wholly good, or, wholly void : to be valid, it must be provided, that the child- ren, who arc to take, by attaining twenty-five, must attain that age, within twenty-one years from the death of A. ; and in such case, they w-ho answer the required description will take the whole property be(|ueathed : without such re- striction, the gift will be entirely bad, whatever be the course of subsequent events. This general property, then, of limitations to a class of persons, being remembered, it is to be ascertained, how the different species of these gifts stand affected, by the practical application of the provisions of the Rule against Perpetuities. 1. The preceding observations will have prepared the way for the general rule, that every limitation, whether it be of an interest in futuro, or, whether it operate to divest prior interests, or, whether it be a simple gift expectant on a prior partial interest, which is made to the children of a person in esse, but which is not to vest, uritil after their attainment of their ages of twenty-one years, (however small the additional period,) is absolutely void, {k) The grounds of this general conclusion have been already stated. Same, although 2. Upon the same principle, if a living person is associated Limitation to children of person in esse, to vest at age greater than twenty-one, bad. (j) Vide supra, ^"p. 170, 17L (A) Lrake v. RohiHson, 2 Mer. 363. Bull V. Pritchnrd, 1 Russ. 213. I'uivdi!/ V. (7c(i'/cs, 1 Rust:. & My. 203. Judd \. Judd, 3 Sim. 525. Porter v. Fox, 6 Sim. 485. Dodd v. fyake, 8 Sim. 616. Nemnan v. Neiv- maii, 10 Sim. 51. CHAP. XVII.] ASSOCIATIONS OF PERSONS. 457 with the ffcneral class, (as if a child of the person in esse, person in . , 111- existence who is actually born, be specifically named,) and the vesting associated with of his interest depends upon the same (remote) event, as tained cL^s! that which is to give effect to the interests of the members of the unascertained class, the Avhole gift will be void, as in the case first supposed. (/) There can be no separation of interests which are blended in the limitation ; and which must either stand or fall together. Moreover, the practical impediments to a contrary doctrine are insur- mountable. Is the living person to take the tchole fund or property ? Or, if not the whole, what distributive share ? — and how is it to be estimated, seeing that the relative })roportion of one, to the number of members of the conunon class, cannot, from the nature of the case, be ascer- tained ? Thus much upon principle. The rule is equally clear on the ground of authority. In the case of Porter v. Fox, (m) there was a bc(piest of produce of real and personal estate, in trust, to be accumulated, " for the benefit of the testator's grandchildren, and his nephew, J. O., and to be distributed in manner and form following, that is to say, as they should become of the age of twenty- five years respectively ;" with directions for the transfer of the share of each grandchild and nephew, on their respectively attaining twenty-five. Sir L. Shadwell, V. C, having de- cided, that the gift to the grandchildren was too remote, also held, that the limitation to the grandchildren and nephew was to them, as a class ; and, therefore, as the whole of the testator's intention could not prevail, effect could not be given to that part which related to the nephew : his share could not be determined, as it depended upon the number of members of the class, living when the eldest attained twenty-five. 3 But. if the gift is made to the children of a person Limitation to ' '-' children ol deceased, the vesting of their shares may be postponed to deceased (/) 1 Jarm. Wills, -233. ("0 6 Sim. 485. 458 LIMITATIONS TO CLASSKS OK [lHAl'. XVII. person, at age gvoator than twcnty-ouc, good. Same, if limitation to children, expressly named, of a person in esse. Limitation to issue of un- born children, void. any a^c, ihoii^h greater than twenty-one. And this, beeausc, as the hypothesis assumes, that the lives arc in esse, at the (Lite of the creation of the gift, and, also, implies, their existence, at the time of its taking effect, the extreme period of suspension of the vesting, cannot, possibly, exceed the life of the survivor of several persons in esse, (n) Nor does this violate the rule, formerly laid down, that no longer term, than twenty-one years can be used, for the purpose of remoteness of limitations, where a life m being does not form part of the period ; because, in the case supposed, the term of years taken, is only a subdivision or subordinate portion of the unascertained period of a life ; the premature termination of which will, also, quoad the particular life, put an end to the term of suspension. 4. Upon the same principle, a gift may (it should seem) be made, to the children of a person in esse, who are living, and named or spec'ifically described in the will or settlement, and the vesting of their shares may be postponed to any age subse(juent to minority. In such case, as the limitation does not include after-born children, by reason of its ex- ])rcssed restriction to those named, the period of suspension cannot, possibly, exceed lives in being. For this rule to apply, however, it must clearly appear, from the limitations, that no other children, than those mentioned, are to par- tici})atc; because, if the gift be sufficiently general in its terms, to include children subsequently born, the accidental existence, or casual mention, of some of the objects of it, will not suffice, to satisfy the provisions of the Rule. 5. A simple limitation to all the grandchildren, or other remoter issue, of a person in esse, is altogether void : and this, without regard to the time of the vesting of their in- terests ; whether at birth, or otherwise, (o) As the living ancestor may beget children, unborn at the time of the creation of the gift, and as all the children of such after- (m) -1 Prcst. Abst. 149. {<)) I Sug. I'ow. 49.5. Posth. •21.'-). 2 Prest. Abst. 168. 1 Fearne, Jarni. Wills, 234. CHAP. XVII.] ASSOCIATIONS OF rEIlPONS. 459 born children arc included in the coniinon class, there is, obviously, in such a case, no security, that, even thou«;h the shares of the grandchildren vest on their birth, such birth will take place within twenty-one years from the decease of the ancestor, or from the death of the survivor of all his children, who arc iw esse at the death of the testator, or the date of the settlement 6. If, however, it be provided, by the author of the limi- Secus-, if birth tations, that all the grandchildren, who are to take under the }>.<;„,> provided gift, shall be born, within twenty-one years after the death ^"jJ,^{]P*r"_ of the common ancestor, or, within the like period after scribed period, the death of the survivor of such of his children as are in existence at the time of the creation of the gift, all objection to the Executory limitation, on the ground of remoteness ceases, {p) And this remoteness of the issue from the common ancestor may be indefinitely postponed, provided, care be taken, that such only as come in esse within twenty- one years after lives in being, shall be entitled to take under the gift. And so, upon the like principle, limitations may be made, to such a class of grandchildren, or other issue, of a person in existence, as shall be born during the lives of those children of the living ancestor who are in esse, or during the lives or life of the survivors or survivor of them, and as shall attain the age of twenty-one years. And, in such a case, it is to be observed, that the gift is not confined to children of the children who are living, but extends to the issue of unborn children, provided, they are born before the decease of the survivor of the children in esse, and provided, they, also, attain the required age. 7. Where the gifts are by zvill, and the testator is creating Not necessary, limitations in favor of his own children and grand-children, ^irth of '™*^ ° he may well limit interests to the o;encral class of his grand- [''"lot'^'' issue, J " ~ m case of gift children, whether the issue of children in esse at the date ^y testator to (p) 2 Vcs. jr. 366. Andsce, /«';• arguendo, in Bengough v. Edridge, Lord Rosslyn,'m Blunilford v . Thavk- 1 Sim. 251, and in Mogg v. Mogg, 1 erdl, 2 Vcs. jr. 242 ; and /»c/- Pnslon, Mor. 66-1. 2 Prest. Abst. 168. 460 LIMITATIONS TO CLASSES OR [ciIAP. XVIL his own graiul- of tlic Will, or iiot, if he provide, that their shares shall vest, ^ ' "^'''°' at or before they attain their ages of twenty-one years, and it will not be necessary, to limit the time of the births of the grand-children. (anj/, 3 My. & K. 534. CHAP. XIX.] INDEFINITE CONTINGENCIES. 481 vantage ever attempted to be taken, of breach of duty by the trustees of a charity. In the other case, (/ ) alluded to, a testator devised certain houses, to tlie master wardens of the Company of the Coopers, upon divers charitable trusts mentioned in the •will; and the testator subsequently declared, that, if the said master wardens neglected to carry out the trusts for the space of one whole year, then, the master wardens of the company of Grocers should enter upon the said houses, "and they to repulse and put out the master wardens of the Company of Coopers, for ever; and the master wardens of the Company of Grocers to enjoy them, and have them for ever, and do with it, as shall seem good to them, and to do and use them, as they do with any lands belonging unto them." This is, unquestionably, another instance of a limitation, void for remoteness, as dependino- on an event of indeterminate occurrence, {ff) In fine, let the event contemplated be what it may, and the probability of its early occurrence, as great as it may, it will, in every case, be of too remote expectancy, and a limi- tation depending upon it will, therefore, always be void, unless, either, from the nature or internal quality of the contingency, or, from express provision and restriction, it be certain, that the event which is to give effect to the limita- tion will happen, if at all, within the period of lives in being and twenty-one years. (/) Attorney- General v. Cooptrs' (ff) See judgment in Charity Company, Bcav. 29. Commissioners v. De Clifford, 1 Dr. & War. 245. I 1 482 CHAPTER XX. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS POWERS OF APPOINTMENT, AND LIMITATIONS IN PURSUANCE OF THEM. A CLASS of limitations, of great importance, viewed in reference to the perpetuity-rule, is that, comprised under the denomination of Pmvers of appointme7it, including gifts taking effect tinder exercises of such Powers. Reasons of the The maxim, quod facit per alium facit per se, necessarily t'hri'aws"'^ ^' implies, that that, which it is not allowalile for an indivi- against ic- j^j^j j-q Jq himsclf, niust be equally imi)roper, when effected motenoss, to i ./ i i Powers, and in the pcrsou of another, A limitation, therefore, which is appointments .„ , , • i • /• under them. too rcmotc, it attempted by a person seised in tee, or possess- ing the absolute interest, is equally objectionable, when made by another, to whom that person has entrusted a power of disposition, in favor of particular objects, and not itself commensurate with the entire ownership of the property. And, consequently, our laws of properly have wisely sur- rounded the limitation and execution of Powers of appoint- ment, with the same beneficial restrictions, as a regard for the interests of commerce has found to be necessary, in relation to the exercise of the ordinary rights of alienation and transfer, proper to absolute owiwrship. But, before proceeding to inquire, more particularly, into the application of the doctrines of remoteness, to Powers of appointment, and gifts in pursuance of them, a brief notice must be taken of a class of such limitations, which, on account of their near affinity to an aljsolute properly, have CHAP. XX.] POWERS OF APPOINTMENT, &C. 483 not been considered, as calling for any restrictions, peculiar to their character of Powers, but such only as would be applicable, wcvc the donee of the Power absolute oioner of the property. The Powers, referred to, are those called general Powers, Exeic'sosof , . , . . , 1 I • general powers, I. e., Powers which give a right to the donees, to appoint subject only t.) to whomsoever they please, {g) Of this kind, is a limita- ^^"^^^ aTll'iena- tion of property, to such Uses, or upon such Trusts, as tion by tenants A. shall appoint, and, subject to any appointment, to A., in fee, or to B., in fee, or to any other person, or succes- sion of persons, for life, in tail, in fee, or otherwise. In such cases, as the Power is so general and absolute, as to be equivalent, for the purposes of alienation, to the owner- ship in fee-simple, an appointment under it, so far as concerns the proper period for the vesting of the inte- rests thereby conferred, rests on the same footing with an original conveyance. Nor is there any greater ten- dency to a perpetuity, in a general Power of appointment over property, and the possibility of the exercise of such Power, in opposition to the laws of remoteness, than, in a simple absolute right of ownership. The general Power authorizes as complete and as immediate a disposition of the property, as could be effected, were the donee entitled to the fee or absolute interest ; and it is, of course, clear, that such a Power may be exercised by the donee, in favor of himself. And, as regards the estate limited in default of appointment, when not given to the donee of the Power, (A) there can be no necessity, to consider, how far a perpetuity may be created, because, although that estate is liable to be defeated, at any time, by an exercise of the Power, yet, the great aim of the laws against remoteness is (p) See 1 Sug. Pow. 495. beyond the life of the douee'\- but this (ft) In reference to this point, it has seems an insufficient argument, as it been said, (1 Sug. Pow. 497,) "no does not meet the supposable case of perpetuity is created, in regard to the the Power being given to a person, person who takes until appointment, and his heirs, or other represc7itatives. I I 2 484 POWERS OF APPOINTMENT, [c'HAP. XX. secured, in the immediate and unrestrained alienability of the projierty, by means of the Power. It may be true, that any alienation of the property must be, merely and simply, by virtue of the Power, and that the exercise of such Power must take effect, by refei-ence to the deed or will creating it, and, so far, a necessity may seem to exist, for restricting the donee, to the appointment of interests, which would have been good, if limited in the original will or settlement; but, if the essence of a perpetuity be wanting in the nature of the Power, or, rather, if the scope and spirit of the Power be directly adverse to a perpetuity, it seems too much to argue, that it will not authorize limitations, which might have been created, by a person having the absolute dominion; /. e., such limitations as will necessarily vest, within lives in being and twenty-one years, computed from the time at which they are raised. It is a consequence of this exemption of general Powers from the restrictions of the Rule against Perpetuities, that, under a Power to A., to appoint, by deed, to such Uses, &c., as he shall think fit, property maybe limited, to a son of A., unborn at the time of the creation of the Power, (but in esse at the period of its execution,) with remainder, to his issue, as purchasers ; a settlement which could not have been effected by A., or any other person, at the date of the in- strument creati7ig the Poiver, (unless the birth of the issue in the second degree were restricted to take place within the pro})cr period,) but, of which, the alteration of circumstances at the time of the appointment, admits. T/imitations But, with reference to all other Powers, viz., Powers re- /T Pmvo'rs' "'" strained to particular objects, and not commensurate with must bo such jj^^ entire dominion ; which are contradistinguished from as would hiivo _ *-^ been valid, at general Powers, by the denomination o{ particular Powers ; time of ,,...", . , . 1 cnation of as the lumtatious to be appomted, m some degree, receive ''"^"'^' their form and condition from the original settlement or will, the ])crio(l prescribed for the vesting of those limita- tions must be reckoned from the instrument creating the CriAP. XX.] AND LIMITATIONS BY VIUTUK OF THEM. 485 Power, and, unless so given, as that they shall necessarily vest, (if at all) within such period, they will be void, as too remote. These Powers do not authorize a disposition, such as might have Ijccn made by a person absolutely entitled : they may enable the donee, to limit a fee, or absolute in- terest ; but not, to whom he pleases : and as the entire pro- perty is not capable of unrestricted alienation by means of the Power, the Kule against Perpetuities rccpiires, that all limitations, made in pursuance of it, shall be such only, as would have been valid, if inserted in the original will or settlement. (/) Unless the exercise of Powers of appointment were so restrained, a facile method would exist, for con- stantly evading the Rule for the prevention of Perpetuities ; while, as well, in the eye of the law, as, in fact, the appoint- ment, when made, becomes part of the existing settlement, and takes eflPect with reference to it, and, in the case of realty, out of the same original seisin, upon wdiich that settlement was based, {k) These observations premised, it will be proper, to in- quire into the rules and distinctions, to which, the appli- cation of the doctrines of remoteness, to Powders of appoint- ment, and to limitations made by virtue of them, has given rise. 1. Every Power, the direct object of which is to create a Powers, the perpetuity, is absolutely void. (/) Thus, where (w<) John, Is {o^reate a'^ (/) 1 Sug. Pow. 498. 1 Jarm. is to be governed by the same rules, Wills, 218. as all other appointments; but such (^) In reference to the distinction be- a notion is no where entertained, at tween general and particular Powers, the present day. It has been deemed as they are affected by the laws of unnecessary, to introduce, here, the remoteness, see Butlers note to Co. arguments of the learned writer, al- Litt. 271, b. n. iii. 4; TowelTs note luded to, as an especial regard has to F. Ex. Dcv. 375. It must be been had to them, in the observations remarked, that Mr. rowill laboured in the text. to establish, that, except where the {D 1 Sug. Pow. 180. 1 Jarm. general Power of appointment, and Wills, 247, 2-18. 4 Cru, Dig. tit. the fee simple in default of appoint XXXII. c. 26, ss. 16, 17. ment, are vested in the same person, (?«) Spencer v. Duke of Marl- by the deed creating the Power, an borough, 5 Bro. Pari. Ca. 592. And appointment, under a general Power, sec Heath v. Heath, 2 Eden, 330. 486 POWERS OF APPOFNTMENT, [ciIAP. XX. perpetuity, void. Ca^io of Sj,(iic(r V. Duke of Marlborouyli. Observations upon Spencer V. Duke of Murlboruui/h, duke of M., devised all his estates, to trustees, and their heirs, to the use of his daughter, H., countess of G., for life, with remainder, to lord R., her eldest son, for life, with remainder, to trustees, to preserve contingent re- mainders, with remainder, to the first and other sons of lord R., in tail-male, with remainder, to lord R. S., eldest son of the testator's second daughter, A., countess of A., for life, with remainder, to trustees, to preserve con- tingent remainders, with remainder, to his first and other sons, in tail-male, with remainder, to lord C. S., afterwards duke of M., and his issue male, in the same manner ; and the testator empowered his trustees, on the birth of each son of the said lord R. S., and lord C. S., to revoke and make void the respective uses, limited to their respective sons in tail-male, and, in lieu thereof^ to limit the property, to the use of such sons, for their lives, with immediate remainders, to the respective sons of such sons, severally and respectively, in tail-male : upon a question, as to the validity of the Power of revocation and new appointment, given to the trustees by the will, it was adjudged, by the House of Lords, in accoi'dance with the unanimous opinion of the judges, and in afllirmance of a decree of the Court of (Chancery, that the Power was wholly void, as tending to a perpetuity. In this case, the effect of any attempted exer- cise of the Power would have been, to vest estates for life, in persons unborn at the dale of the will, with remainder, to the issue of such persons, respectively, in tail-male ; which, as we have seen, cannot be effected by direct limitations in a settlement, unless the birth of the remoter issue be con- fined within ])roper limits ; and, there being no such restraint, in reference to the issue to be entitled under an appointment by the trustees of the duke of M.'s will, the Power was necessarily void. But it may, perhaps, admit of question, whether, as the Power was capable of being exer- cised, in lavor of issue within the rule of law, (i. c., by ap- pointing Jife-eslales, to such ol' (he sons of the testator's CHAP. XX.] AND LIMITATIONS BY VIRTUE OF THEM. 487 children as were horn in his lifetime, and limiting estates- tail to their issue,) the Power might not have been held good, pro tanto, in the event of its being so exercised, in accord- ance with the Rule, as to ordinary Powers, to be presently mentioned. But, it is to be remarked, that a general Power will not General Power, be deemed void, as tending to a perpetuity, because it is exercise of itself limited in exercise of a previous general Power, and, generalVower, so, prolongs the period of the vesting of an estate under the "°* ,^"'^' ^^ ' I ^ i^ o tending to a first Power, [n) It has before been shown, that general perpetuity. Powers are to be regarded as tantamount to the absolute ownership ; and it is clear, that, as far as respects any ques- tion of remoteness, there would be no objection whatever to an indefinite succession of general Powers, although the estates ultimately appointed, take effect by reference to the original Power. A 2^articular Power, created under an exercise of a general Power, would, as it should seem, be within the spirit of the Rule against Perpetuities, and it, would, consequently, be necessary, in executing it, to appoint interests, which would have been valid, if expressly limited at the time of the creation of the particular Power. 2. A particular Power may embrace objects of any degree Not necessary, of remoteness ; i. e., such a Power will not be void, because Powers to it attempts to authorize an appointment, to persons, not ^^|,'^ objects of necessarily bom, or the creation of interests, not necessarily vested, within the fixed boundaries of perpetuity, (o) The Power itself not giving any right, or creating any definite interest, no danger ensues, from the range of choice or selection extending to objects, whom the law would not allow to paiticipate in an express gift. The possible exercise of the Power, in favor of such objects, only answers to the chances of abuse, which attend the power of dominion, possessed by a person absolutely entitled, but which have never been supposed to justify the total deprivation (/«) 1 Sug. Pow. 249, 250. Jarm. Wills, 250. Burt. Elem. (o) 1 Sug. Pow. 281, 499. 1 Conip. 273. 488 POWERS OF APPOINTMENT, [ciIAP. XX. of tliat power, or to disallow its exercise within temperate limits. Did the rules of law require an exercise of the Power, in favor of every person answering to the descrip- tion of the objects embraced by it, or did the conferring a Power of a])pointment among a class of persons, operate as an implied gift to all the members of that class, in default of the exercise of the Power, arguments would exist, against extending a Power, to persons who could not legally parti- cipate in any direct gift, contemporaneous with, or made instead of, the Power. The security against the violation of the law^s of remoteness, consists in the very discretion and latitude of choice, with which the donee of the Power is invested, by it, and in the failure and nullification of his dispositions, consequent upon an abuse of that discretion. It is a result of this rule, that a Powder may be given to a person, to appoint among children, grandchildren, or other issue ; {p) although it will be construed to extend to issue in any degree, {q) And it should, even, seem, that there would be no objection to a Power of appointment, exclusively among a class of issue, (as, children of children unborn,) none of whom could be included in any express unrestricted limitation, if made at that time, but who might come in esse during the life of the donee of the Power, or within twenty-one years afterwards, and who might, there- fore, take imder any appointment by him, which should be, in terms, restricted to all issue born within the allowed limits. No estate can 3. But, although there is no necessity, to confine the undorfpower objects of a Power, to those who might be legally included which would . cxnress gift of the same date, it is a long-established be too remote '-to if originally j.,j]p^ tli^t no estate or interest can be limited under a par- created instead ' ^ ... ,, 1 1 ^ . -i'l- -i- 1 of the Power, ticular Powcr, winch would have been too remote, it iunited in the deed or will creating the Power, (r) The office of discrimination belongs to the donee of the Power ; and, if ( ;,) I{,wtl('lates the failure or non-existence of the object, in reference to whom the remoteness arises, antecedently to any consi- deration of his answering the description, or possessing the (qualification, required by the gift. Ilavinij; thus given a short outline of the leading features Authorities , , , . . , ^ r establishing it. of limitations on double contmgencies, as they stand at- t(2Cted by the Rule against Perpetuities, it will be proper, to afford a closer view, by a brief notice of some of the aulho- (»■) Vide supra, p. 3b7, 504 LIMITATIONS WITH A DOinLE ASPECT. [ciIAP. XXI. ritics, which have contributed to the jircscnt form and cha- racter of the doctrine. In one ease, (a) a term of one-thousand years was created, in a marriage-settlement, upon trust, that, in case the settlor should happen to die without leaving issue male of his body, on the body of his wife, or, if all the issue male between them should happen to die without issue, and there should be issue female of the marriage, who should resj)eetively attain the age or ages of eighteen years, or be married, then, from and after the death of the survivor of the settlor and his wife, without leaving issue male, or, in case, at the death of the survivor, there should be issue male, then, from and after the death of such issue male, without issue, the trustees should raise the portions therein mentioned : there was a failure of issue male of the marriage, during the lifetime of the mother, who survived the settlor, leaving daughters, who claimed the portions secured to them under the trusts of the term : it being argued, that these trusts were void, as limited on too remote an event, i. e., the dying of the issue male of the marriage, without issue, generally ; it was held, that the first part of the contingency was good, viz., "in case the settlor and his wife should happen to die without leaving issue male ;" and, as that ha])pened in fact to be the case, the Court would not enter into the consideration, how far the other branch of the contingency might have been su])ported, which could only come in question, in case the issue male had sunived both the parents. Again, in another case, (t) the same point was decided upon a limitation under a Poiuer. A feme-cover te, by her will, appointed property, to her son, C. B., for life, and after his decease, to his wife and children, but in case he should die without leaving a wife or child him surviving, the testatrix (s) Longhead A. Hopkins \. P/u/its, And sec Lord At «yo«'s observations, 2 Sir \V. HI. 704. on that case, in Drudcndl v. Elwei), I (<) Crumjic V. L'aiKiu; I Vcs. ()81, East, 450. CHAP. XXr.] T.nilTATIONS WITH A DOUBLE ASPECT. 505 bequeathed the property, to her daiij^litcr, F. J. ; the bccpiest, to the wife and ehil(h'en of tlic son, being void, both as an excess of Power, and as too remote, with refe- rence to the deed creating the Power, it was argued, that the ulterior gift to F. J. was, also, void ; but it was held, that there were two alternatives in the appointment, and that, if C. B. left neither wife nor children, the limitation-over, being to a good object, should take effect ; if he left a wife, or children, it would not take effect, (n) And so, also, in a well-known case, (v) stock and monies were bequeathed, to W. 11. R., for life, and after his de- cease, to the child or children of VV. R. R., who, being a son or sons, should attain the age of twenty-five, or, being a daughter or daughters, should attain that age, or be mar- ried, with consent ; and, in case W. R. R. should die loithout leaving issue living at the time of his decease, or, leaving such, they should all die before any of them should attain twenty-five, if sons, and, if daughters, before they should attain such age, or be married, as aforesaid, then, to the brothers and sisters of W. R. R,, on their attaining twenty- five, if a brother or brothers, and, if a sister or sisters, on such age or marriage, as aforesaid : W. R. R. died without leaving issue. Here, we perceive, the gift-over was void, in itself, as extending to all the brothers and sisters of W. R. R., living at his death, while the vesting of their shares was postponed till their ages of twenty-five years ; and so it was held : but the point to be noticed in this place, is, that it (m) It will be observed, that, the mcnt, as an authority in favor of the vesting of the alternate gift, in the event applicability of the doctrine of double of a failure of the wife and children of contingencies, to limitations under theson, (who was unborn at the time of Powers. Sec per Lord Keni/on, 1 the creation of the Power,) being no- East, 450; 2 Sug. Pow. 77, 78 ; 1 Jarni. cessarily postponed till his death, the Wills, 246. ulterior limitation was too remote, in (y) Leahe v. Robinson, 2 Mer. reference to both contingencies. But 363. And see Cambridge v. Rous, 8 this oversight on the part of the Court Ves. 12; and observations thereon, docs not affect the force of the judg- 1 Jarm. Wills, 247. r)()G LIMITATIONS WITH A DOUnr.E ASPPXT. [ciIAI', XXI. was nowlicrc iirgetl, that, in reference to tlic [uirl iciiliir con- tingency which had hapjK'ncd, and on which the iiniitation- articular point of its validity depending on the course of events subsequent to its creation. manner, as if penned in these tenns ; tcrnative, that there shall not be a and the limitation is good, in the al- child of A." 2 Frcst. Abst. 171. 511 CHAPTER XXII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMI- TATIONS, WHOSE POSSESSORY ENJOYMENT IS POSTPONED BEYOND THE PERIOD OF VESTING. It has been frequently observed, that the particular Rule agrainst feature in limitations of future interests, with which the has^refercnce Rule against Perpetuities is connected, is, the time of their to the ^es<^«5' & r ' ' of limitations. vesting, or, in other words, of their becoming interests, transmissible to the representative of the grantee, devisee, or legatee, and disposable by him. When they are so limited, as, necessarily, to attain this quality, within the legal period of remoteness, they are free from objection, in reference to the perpetuity-rule. It follows, therefore, that, if the vesting of a limitation be And gift not .,,,.... • 1- 1 J L ^°'^' therefore, confined to the prescribed innits, it is not mvahdated by because its the circumstance, of its taking effect in possession being enfoyment is postponed beyond the boundary of perpetuity ; for that ^^cferred to too suspension of the possessory enjoyment of the property, period. so far as it transgresses the boundary, will be void, and the possession, accelerated, by the virtual erasure of the clause of postponement from the gift, (e) As the suspen- sion of the actual possession is not of the essence of the gift, the allowing that to defeat it, when, in other respects, com- plying with the requisites of the Rule against Perpetuities, would be a disregard of all principle and analogy, not more unnecessary, for the preservation of the integrity of the (e) See 1 Jarm. "Wills, 252, etseq. 512 VKSTEl) MMITATIOXS WITH [CIIAP. XXII. Kiilo, than calculated to defeat the intentions of the author Invalid ( lausc of tlic gift. By rejecting the excess of postponement, and, 'n'uK""" at the same time, giving full effect to it, up to the extremity r^'cSd""' «f llic allowed limits, and, withal, preserving unimpaired, the force and validity of the restricted vesting, the most ecpiitahle reconcilement is effected between die designs of the person, by whom the limitations arc created, and the restrictions of the perpctuity-rulc. Nor is there, upon principle, any ground, for invalidating the whole term of postponement, extra the period of vesting; for the latter being, solely, that which enters into the consideration of the question of remoteness in the gift, there is not the like objection to a separation of the eventual excess, from the valid portion of the term, which the rigid requirements of the Rule against Perpetuities present, in regard to the period of the vesting of a limitation. It follows, likewise, from these principles, that, whenever the time, during which the enjoyment is postponed, docs not exceed the legal boundary, the possession will be accelerated, to no extent, although the vesting of the limitation may take place at a much earlier period. Case of 'Pq exemplify the doctrinc^under consideration : — In one Farmer v. 1^ i.i"i -i r ^ ' iv Francis. casc, (/) a tcstator devised the residue ot his eiiects, to trustees, in trust, to pay the rents, to his daughter, A., for life, with remainder, to all her children, that should be living at the time of her death, equally amongst them, if more than one, to be divided, share and share alike, ivhen and as they should respectively attain the age of twenty-four years, and to their respective heirs, executors, &c., for ever, to take as tenants in common, and not as joint tenants : a question arose, as to the remoteness of the devise to A.'s children ; and it was held, in C. B., that they took ecpiit- able estates in fee, as tenants in common, by virtue of the residuary clause, and that they would have taken legal (/) Farmer v. Francis, 9 Moo. 310; 2 Bing. 151. CHAP. XXII. J DEFERRED ENJOYMENT. 513 estates in fee, but for the introduction of trustees. Here, we perceive, it was tlic period of division which was too remote ; and not, the time of the vesting of the devise, which did not exceed a life in being at the date of the will. And ^asc of so, agam, m another case, {g) a testator gave the residue of Addenbroohe. his pro])erty, to his widow, during her life, and at her decease, to the eldest surviving son of A., upon his attaining twenty-five^ (the trustees being directed, to apply the inte- rest to his use, till his attainment of that age,) or, failing sififh issue male, to the daughters of A., living at the decease of the last of such issue male ; the only son of A. died under twenty-five, in the lifetime of the widow, leaving two daughters of A., him surviving: and it was held, that, if there had been any son of A. living at the death of the widow, he would have taken a vested interest in the residue, though he had not then attained the age of twenty-five ; and that, therefore, the gift-over of the residue, to the daughters of A., was not too remote, and that, in the events which happened, they, upon the death of the widow, became entitled to the residue. This distinction between the period of vesting, and the Of importance, -, . . . ~ , T ,. to decide, time ot enjoyment or possession, in reterence to the vahdity whether of limitations under the laws of remoteness, has given rise ^^^^'"" '^ ' D postjioned, or to much discussion, in cases of doubtful construction, upon enjoyment 1 • • ' only. the question, whether, where the possessory enjoyment of the property is postponed to a period, more remote than that allowed by the Rule against Perpetuities, the vesting is postponed, also, or whether it takes place, immediately, or at any time within the prescribed limits. In some instances, the gift, and direction for payment or distribution, arc so closely connected, as to leave it doubtftd, whether there is any gift, distinct from the clause fixing the period of actual possession, and whether, consequently, it can be supposed, ig) Mwray V. Adde.ubrvohe, 1 Russ. 407. L L imiilatums 514 Vf5STED LIMITATIONS, WITH [cHAP. XXII. tlial tluTP is a vc'stiul iiitovcst, \vl\ilc thcro is a postponed oiijoymonl. (ienoral rulos 'l\^, authorities, to be cited, will be Ibund, tor the most as to till' vestinij of part, pcrhaps, to establish this general conclusion : — that, nlthongh the time is mentioned as referring to the gift itself, miless it a])pears to have been fixed on by the donor, as the period, ])reviously to which, no part of his bounty can attach to the donee, the gift vests immediately, and the time of payment or distribution, only, is postponed, not being annexed to the substance of the gift ; but, if it appears, that tlic donor intended the period or contingency named, as a condition precedent, upon which alone the gift can take place, then, if such condition or contingency does not happen, the limitation never operates ; and, of conse- quence, if the time or event specified be of too remote ex- pectancy, the limitation wholly foils, whatever be the course of events, (h) It must be observed, further, that, as a gene- ral principle, the judicial construction of limitations always strongly inclines to their immediate vesting, unless there be a strong manifestation of a contrary intent, in the person frotn whom the dispositions move. The reason of this pre- possession of the law, and its expounders, has been thus well stated by an eminent living judge : (i) — " The rights of the different members of families not being ascertained, whilst estates remain contingent, such families continue in an un- settled state, which is often productive of inconvenience, and, sometimes, of injury, to them. If the parent's attaining a certain age be a condition precedent to the vesting estates, by the deathof their parents before they are of that age, children lose estates, which were intended for them, and which, their relation to the testator may give them the strongest claim to. In consideration of these circumstances, the judges, from the earliest times, w'cre always inclined to (A) Sec 3 Bro. C. C. 473. Wtjyiford, in Duffield v. Duffield, 1 (t) Per Best, C. J., now Lord Dow & Clark, 311. CHAP. XXII.] DEFERRED ENJOYMENT. 515 decide, that estates devised were vested ; and it has long General tuIm been an establislied rnle, lor the guidance of the Courts vesUng'of of Westminster, in construing devises, that all estates arc to l^'tations. be holden to be vested, except estates, in the devise of which, a condition, precedent to the vesting, is so clearly expressed, that the Courts cannot treat them as vested, without deciding in direct opposition to the terms of the will. If there be the least doubt, advantage is to be taken of the circumstances occasioning the doubt ; and what seems to make a condition, is holden to have only the effect of postponing the right of possession." A rule, auxiliary of the same construction, is, that, when either the interest or income accruing before the period of enjoyment, is given to the donee, or directed to be appro- priated for his benefit, or, when the corpus of the gift is directed to be immediately severed from the general estate of which it forms a part, or must necessarily be so set apart, in order to answer the intermediate disposition of income, or, when there is a gift-over, in the event of the death of the donee before the arrival of the fixed period, or his attainment of the specified age, or ivithout leaving issite, (as implying, that, in the alternative event, they would succeed, as representatives of the donee, and as giving the limitation-over the appearance of a divesting operation,) in all such cases, the presumption is strongly in favor of the immediate vesting of the gift, (k) It is on2g a presumption, however, to which these circumstances give rise, for the force of them all, is liable to be rebutted, by the plain exhi- bition of a contrary intention, in the maker of the limita- tions. And so, also, the Courts are always strongly inclined, to construe devises or bequests of residuary estates, imme- diately vested, as the frequent consequence of a contrary (i) See 1 Jarm. Wills, 733—767; 1 Hop. l.og. 151—249. I. L 2 516 VF.STi:i) LIMITATIONS, WITH [niAP. XXIf. General rules constniction, is, intestacy, \\ liicli is, «t" course, averse from as to the 1 • • /• 1 yesting of the intentions of the testator. (/; imi atioiii. Qj^ jl^^ Other liand, it may, in general, be said, that, where there is no gift, but in the direction for payment or distribution, and that direction attaches only in favor of per- sons, of a description too remote, in such case, as there is no antecedent gift, of which the enjoyment can be post- poned, the limitation is necessarily tainted b}' any remote- ness that affects the clause of transfer or ])ossession, which is also the clause of gift. The involved texture of some dispositions renders it, not unfrecjuently, difficult, to decide, whether there be any direct gift, antecedent to or distinct from the clause point- ing out the time or contingency, at or on which the })osses- sory enjoyment of the property is to commence. When such is the character of the dispositive provisions, the ge- neral partiality for vested interests will, ordinarily, suffice, to incline the balance of legal interpretation, in favor of the construction of an antecedent gift, and a subsequent direc- tion for deferred enjoyment, or futurity of possession. But, it is impossible and unnecessary, further to pursue this subject : the distinctions which have })een established arc manifold ; and several of the authorities are not easily reconciled with each other : it is, moreover, beside our pre- sent purpose, to do more, than show the consequences of remoteness in either the vesting or time of taking effect of gifts ; the construction of which is to be referred to other principles, and is conducted upon totally distinct grounds The exceeding difficulty of framing a determinate rule, a])j)licablc to all cases of doubt, as to vesting and possessory enjoyment, has been instrumental, in supplying a numerous train of decisions, by examination of which, the importance of these cases of construction, in connexion with the o})cra- (0 See 1 Jarm. Wills, 767. CHAP, xxil] deferred enjoyment. 517 lion of the Kulc ajrainst Perpetuities, will be the better perceived. It is to be observed, tluit, in determining the question of These ruleb not the period of vesting of a limitation, in reference to its because °'"' validity under the perpetuity-rule, there is no real distinc- consequence '' I V J ' may be, the tion, in point of principle, between cases, where the question invalidity of a 11 1 1 1 I- • • &'f*' **" ground has been, wlietlier the iimitatiou was too remote, and those, of remctencss, in which nothing but the time of vesting was in dispute, as between the ])erson entitled under the limitation, and some one interested until or in default of its taking effect. The Courts do not regard the conse(|uences of any rule of con- struction, which they may have established, as presenting any objection to its application, when clearly called for; and, therefore, the circumstance, that, by the laws of re- moteness, the effect of applying any particular rule, in regard to the vesting of limitations, will be, the wholly de- feating the donor's scheme of disposition, is of no weight in opposition to the application of that rule, if, in a case, in which the remoteness of the limitation did not come in question, it would have been undoubtedly admitted, (w) Authorities, therefore, upon the subject of the time of vesting of limitations, free from all suspicion of remoteness, are constantly made the basis of the application of a similar rule of construction, to cases, in which the invalidating of limitations, by reason of remoteness, is the grand object \\\ view ; and towards which, the question, as to the period of vesting, is only subsidiary or introductory. As, however, there is a sufficiency of authorities, of this latter description, to afford a complete illustration of the doctrines of law, upon the subject of the vesting and postponement of enjoyment of limitations, while, at the same time, subserving our present purpose, of elucidating their connexion with the Rule against Perpetuities, it will, perhaps, be [)roper, to confine our attention to this class of cases ; referring, for a more (w) Jtt V. .-liHllti/, 1 Cox, '32 4. And sec 1 Jarm. Wills, 253. 254. 518 VESTED LIMITATIONS, WITH [chap. XXII. Case of Leake f. Robinson. Case of Bull v. Pritchard. extensive inquiry, lo authors who have systematically dis- cussed the sui)jcct. We proceed, first, to ascertain the cases, in which limita- tions have been held void for remoteness, by reason of the construction of a postponed vesting having obtained. In Leake v. Robinson, (n) a testator gave certain real and personal property, to trustees, in trust for W. R. R., for life, and after his decease, to pay, apply, and transfer the same, unto and amongst the child or children of the said W. R. R., who, being a son or sons, should attain the age of twenty-Jive, or, being a daughter or daughters, should attain that age, or be married, with consent; and the trustees were authorized, to apply the rents, profits, and interest, or so much as they should think proper, for the mainten- ance of the said children, in the meantime : and it was held, by Sir fV. Grant, M. R., that this was not a case, in which the enjoyment only was postponed, but, that the direction to pay, was the gift, and that that gift was only to attach to children who should attain twenty-five, and that, conse- quently, the bequest was void. In the case of Bull v. Pritchard, (o) there was a bequest of property, to trustees, upon trust, to pay the dividends, to the testator's daughter, for life, for her separate use, and after her decease, to pay the principal, unto all and every her children who should live to attain tiventy-three years of age, share and share alike, with benefit of survivorship, in case any of them died under that age ; with limitations- over, in case there should be no such child or children, or, being such, in case all of them should die under twenty- three years, without lawful issue : and the trustees were authorized to apply the interest of each child's respective share, towards their maintenance, notwithstanding such child's share should not have become absolutely vested : the daughter had a child who died under age in the daughter's lifetime. Lord Gifford, M. R., held, that the (n) 2Mcr. 363. (o) 1 Russ. 213. CHAP. XXII.] DEFERRED ENJOYMENT. 519 bequest to the chilcheii, ami the subsecjuent Umitations, were too remote. (^;) In Palmer v. Jl()Iford,{q) there was a becjuest of 2oOO/., Cascoi Vnimer Stock, to trustees, ni trust, to accumulate, and to transfer the accunuilated fund, unto all and every the children and child of C. T. II., (a person in esse,) who should be living, at the expiration of tive7ity-eight years from the testator's decease, other than an eldest or only son. Sir /. Leach, M. R., observed, that, if C. T. II. had children, born to liim at any time within seven years from the testator's death, then, the vesting of the interests of such children, who were unborn at the death of the testator, would have been suspended for more than twenty-one years, and the gift was, therefore, too remote and void; and the gift- over, not being to take effect until after the same period, which was too remote, was necessarily void, also. In Vawdry v. Geddes,{r) there was a bequest of the Case of Vawdii/ produce of the testatrix s residuary estate, in trust tor her four sisters, for their lives, and a direction, that, on their decease, the interest of their shares should be applied in the maintenance, and be accumulated for the benefit, of the chil- dren of each of the sisters, until they should attain the age of twenty-two years, and ujwn any of the said children attain- ing that age, they to be entitled to their mother's share of the capital ; with limitations-over, in case of any of the (/») Mr. Jarman thus remarks however, that the question before the upon this decision ( 1 Treatise on Court respected, merely, the bequest- Wills, 772,) :— " The propriety of over, to the testator's brothers and this determination has been qucs- sisters, which was clearly invalid, on tioncd ; and, perhaps, looking at the the ground of remoteness, whatever gift-over, in connexion with the direc- might be the fate of the prior bequest tion, to apply the interest of the chil- to the children of his daughter ; so dren's shares, for their maintenance, that the case seems to have been, in until they became absolutely vested, point of fact, no adjudication, as to there was ground to contend, that the the period of vesting under the prior children took, innnediately, vested bequest to such children. " interests, subject to be divested, on {q) 4 Russ. 403. their respectively dying under the (r) 1 Russ. & My. 203, prescribed age. It is to be observed, 520 VESTED LIMITATIONS, WITH [ciIAP. XXII. children (lying uniler the age of twenty-two years. It was held, that the vesting of the shares of the children was jiostponcd to their attainment of the age of twenty-two, and that, as all children, born before and after the death of the testatrix, were entitled under the bequest, it was too remote and void. Ca-c ot jiuidv. In Judd \\ Jiidd,{s) there was a devise and bequest, of residuary real antl personal estate, to trustees, upon trust, to pay the income of one-third part, to the testator's daughter, S., for life, and after her death, to stand possessed of that one-third, in trust for her child or children, and to he transferred to them, on their attaining twenty-Jioe ,■ but, in case the testator's daughter should leave but one child her surviving, then, the whole of the one-third part to go to such only child, on his or her attaining twenty-five, and to be transmissible to his or her executors ; and in case his daughter should leave no child her survivin";, or in case she should leave a child, who should not attain twenty-five, then, over. It was held, by 8ir L. Shadwell, V. C, that the children were not intended to take vested interests until thev attained twenty-five, and that, therefore, the bequest to them was void for remoteness. The main ground of his honor's decision, in this case, was, that, by the terms of the gift, in case of there being one child only, it was plainly contingent upon the attainment, by that child, of the specified age, and, that the testator could not be supposed to have intended a difference in the time of vesting, when there was a plurality of objects, and when there was only an indi- vidual object, {t) An argument, against an immediate vesting, was, also, derived from subsequent dispositions, in the same will, of a similar character, which were admitted to be contingent. It was observed, however, by the learned judge, {u) that, standing alone, the bequest to the children clearly passed a vested interest, with a deferred enjoyment. is) 3 Sim. 625. See also Hunter (<) 1 Janii. Wills, 770. V. Judd, 4 Sim. 455. («) In Hunter v. Judd. ubi supra. CHAl'. XXII.] DKFEIIULI) ENJOYMENT. 521 In Porter v. Fox, (^•) a testator l)c'([ucathe(l tlie produce Case of Purler of his real and personal estate, in trust, to be accunuilatcd, " for the benefit of ]iis grandchildren, and his nephew, T. O., and to be distributed, in manner and form following, that is to say, as they should become of the age of tiventy-fivc years, respectively ;" with directions for the transfer of the share of each grandchild and nephew, on their respectively attaining twenty-five. Sir L. Shadioell, V. C, was of opinion, that the direction for distribution was part of the gift, and that, therefore, the vesting was postponed, till the legatees' attainment of the age of twenty -five. In Dodd V. Wake, iw) there was a bequest of a sum of Case of Doid , V. Wake. money, unto and amongst the children of the testators daughter, M. M., the wife of G., who should be living at the time the eldest attained the age of twenty-four years, and the issue of such of the children of his said daughter, as might then happen to be dead, leaving issue, -''^ therefore, tlie gift is vested, subject to be divested ; but 1 eonsider this share means, sucli share as had been before given, that is, a share for such as should live to attain twenty-five years, and this subsequent clause cannot, there- fore, alter the effect of the previous gift." " In respect to the clauses for maintenance, and for raising money for advancement, they are accessories to that which is void, and cannot, therefore, alter the construction." This case is brought forward, for the sake of the pertinent observations of the learned judge upon the ulterior gift. In truth, how- ever, there does not seem to have been any necessity, to consider, whether that gift, in itself, was too remote, or not : for, as it was postponed to a bequest, which was, undoubtedly, in that predicament, (the vesting of the shares of the daughters' children being expressly postponed to their ages of twenty-five,) it was void, on that account. Nor was the case of the parties claiming under the gift-over, assisted by the argument, urged at the bar, that the i)rior bequest was a vested gift to the children, subject to be divested, on a child's not attaining twenty-five ; for, even assuming such to be the proper construction of the first gift, the Executory limitation was, clearly, void, as depending on too remote an expectancy. Lastly, in the very recent case of Griffith v. Blunt, {z) <^ase of . 1 i> 11 1 Griffith V. there was a bequest, in trust, to accumulate tor all tlie Bhmt. children of A. and B,, (who were living) ecjually, the shares of sons to be vested at twenty-five, and of daughters, at twenty-five, or marriage, and, if one child only, to be paid at twenty-five, or mamage ; with cross-limitations, in case of the death of any son, under twenty-five, or of any daughter, under that age, unmarried : and it was held, that the be- quest was too remote ; the vesting, and not the time of payment and distribution only, being postponed. (i) 4 Bcav. -248. 524 VESTED LIMITATIONS, WITH [cil.Vr. XXII. <.'aso o( DckIsoii V. Ifui/. Case of Montf/oincri/ v. Jfooitlei/. Case of Binfflcy V. Broadhutd. The authorities, applicable to cases of ivimcdiate or valid vesting and postponed possession, are now to be noticed. lu Dodson V. Hay, (a) a testator gave unto the children of his sister, the whole of his real and personal estate, (sub- ject to legacies,) and proceeded as follows: — " it is my ])ar- ticular will and desire, that the children, all of them, be educated with the yearly interest of whatever portion of my estate may fall to each respective child's lot or share, and such juirtion not to be other ivise claimed or inherited, directly or indirectly, until the said children arrive at the age of twenty-two years, whether married or single :" a daughter having died under twenty-two, her share was claimed by her representative. It was held, by Sir It. P. Arden, M. K., that the subse(juent words were too vague, to control the previous clear bequest, from operating to give immediate vested interests to the children, and that, therefore, the representative of the deceased child was entitled to her share. In the case of Montgomery v. Woodley, (b) there was a devise of real estate, with the residue of the personal estate, upon long limitations in strict settlement, including estates to persons unborn, and a subsequent direction, that none of the devisees should take, or come into possession, before the age of ticenty-five. It was held, that this direction was confined to the actual possession, and did not operate, by way of pro tanto revocation of the prior gifts, which (as was observed by Lord Alvanley, (v.,) would have had the effect of rendering all the limitations, to the unborn ]>ersons, void. In Bingley v. Broadhead, (c) there was a devise to A., an infant, for life, and his first and other sons, in strict settlement, with remainders, for similar estates, and a direction, that, " during the minority of the heirs of the A. family," an accumulation of the rents should be made ; (a) 3 Bro. C. C. 104. (e) 8 Ves. 415. (6) 5 Vcs. 522. rnAl>. XXFT.] DFFrUlJKD KNJOYMKNT. -''2-> the accumulations to be laid out in a purchase, " until the minor arrives at the full age of twenty-five years, and, then, the heir to take full possession of this estate." A question arose, as to the disposition of the accumulated rents, between the tenant for life and the persons entided in remainder ; but the point, to be here noticed, is, that there was a claim, by the heir-at-lmv of the devisor, on account, (as must be supposed,) of the direction, as to the postponement of pos- session, having the effect of invalidating the remainders, subsequent to the first life-estate: which claim, however. Sir JV. Grant, M. R., deemed groundless. In Kevern v. Williams, {d) there was a devise of residuary Case of estate, to trustees, in trust for the testator's wife, for life, ^^y/)^'^,^'. and after her decease, to preserve the then remaining part of the testator's estate, for the grandchildren of his brother, C, to be by them received, in equal proportions, when they shoidd severally attain the age of twenty-five years, and when the youngest should have attained the age of twenty-five years, and he or she should have received their final divi- dend or share of the testator's estate, the trust should cease. It was held, that the bequest was not void for remoteness ; a distinction being made, by the testator, between the time of vesting of the gift, and the time of enjoyment. In Bland v. Williams, (e) there was a devise of residue, Caso of Bhnd to trustees, upon trust, to receive the rents and profits, and apply them, or a sufficient part thereof, to the maintenance and education of the child or children of the testator's daughters, until they should respectively attain the age of twenty-four, and when and as they should respectively attain that age, then, to pay, assign, &c., all the residue, with such proceeds as should not have been applied for and towards their maintenance and education, equally, unto and amongst all the said children, jchen and as they should sever- ally and respectively attain the said age ; and in case any or either of the said children should die before they attained (rf) 5 Sim. 171. (f) 3 Myl. & K. 411. 526 VESTKD LTMrrATION>> WITH [CIIAP. XXII. that acre, and without lawful issue of his or her body, tlie trustees wore to jxiy, assign, &c., all the residue, to such of Ike same children as should attain liventy-foiir, share and share alike, if more than one, and, if but one, then, the whole to that one ; with a gift-over, if all the children should die under the age of twenty-four, and without leaving lawful issue. Sir John Leach, M. 11., said, that the gift-over was, not simply upon the death under twenty-four, but, upon the tleath under twenty-four, without leaving issue ; and, there- fore, that the devise was, in effect, of a vested interest, with an Executory devise-over, in case of death under twenty- four without leaving issue. It may be observed, however, that the distinction, seemingly taken by the learned judge, between a gift-over, in case of the death of the devisee under a specified age, and a similar limitation, in the event of his death under that age, without leaving issue, appears to be ill-founded ; and that the gift-over, in either case, is of equal force, in favor of the construction of an immediate vesting. ( / ) Case of Biensc In Bleose V. Burgh, [g) there was a gift of residuary V. Bitryh, . Ill estate, to trustees, in trust, to accumulate, and to stand possessed of the property, and its accumulations, in trust for all the children of J. B., other than A., and to he paid on their attaining twenty-three ; with a gift-over, in the event of the death of all the said children under twenty-three. It was held, by Lord Langdale, M. R., that the legacy passed immediate vested interests to the children of J. B., with a postponed time of payment. <'asc of Doc a. In Doe dem. DoUey v. Ward, (h) a testator devised free- hold and other property, to trustees, in trust for his daugh- ter, S., for life, and from and after her decease, to such of her children as she then had, or might have, if a son or sons, at his or their age or ages of twenty-three years, and, if a daughter or daughters, at her or their age or ages of twenty- (/) See 1 .larra. Wills, 774, 77r), (-/) 2 Beav. 221. 776. (A) 9 Ad.& Ell. 582. Dol/ei/ V. Ward. niAP. xxTi.] nr.FRRnF.u knjoymknt. 527 one years, their n^spcctive heirs, executors, administrators, and assigns, according to the natnre thereof, as tenants in common ; and in case of the death of any child of S., if a son, under twenty-three, and, if a danghter, under twenty-one, his or her share to go to the survivors and survivor of the said children, being a son or sons, at his or their age or ages of fwenty-three years, and, being a daugliter or daughters, at her or their age or ages of twenty-one years ; and in case S. should have only one child, if a son, that should attain twenty-three, and, if a daughter, that should attain twenty- one, the testator gave the aforesaid property, unto such only child, so attaining such age, his or her heirs, executors, and administrators; and the testator directed, that the ,,,, rents issues interest and annual produce should, until his said grandchildren attained such ages as aforesaid, be ap- plied for their maintenance and education. The will con- tained a devise-over, to a son and other daughters of the testator, and their children, if all the children of S. died under the prescribed ages. There was, also, an ultimate devise-over, in case of the death of all the testator's grand- children, then born or thereafter to be born, if a son or sons, under the age of twenty-three, or, if a daughter or daughters, under the age of twenty-one, without leaving any child or children, them or any of them surviving, in favor of the testator's nephews and nieces. The testator's daughter, S., having died, the freehold property was claimed by the heir-at-law, on the ground, that the devise to the children of S., and all the subsequent limitations, were too remote, and void. After an elaborate argument, and a thorough investigation of the authorities, the (^ourt of B. 11. decided, that the children took a vested interest, on the death of S., and, consequently, that the devise to them was not void for remoteness. Besides these authorities, there are the cases of Ross v. Ross, ii) Breedon v. Tugman, (k) Phipps v. Williams, (/) (0 1 Jac. & W. 154. (/) 5 Sim. 44. (A) 3 My. & K. 289. VESTK1> T.IMITATIOX!^, NVTTH [cilAP. XX IT. Snoiv V. Poftldeti, (m) Joselyn v. Joselyn, (w) Doa dcm. Cadoyan v. Ewart, {<>) and Saunders \. I^autier, (p) in which the cjnestion of the remoteness of the hinitation did not (m) 1 Keen, 186. (n) 9 Sim. 63. (o) 7 Ad. & Ell. 636. (p) 1 Cr. & Ph. 240; 4 Beav. 115. In reference to this case, and that o{ Joselyn v. Jonelyn, nhi supra, a recent writer on the Thellusson Act, (39 & 40 Geo. 3, c. 98,) after noticing those cases, in which directions for accumulation have been held ivhoUy void, as exceeding the allowed limits of perjetuity, and not void for the excess only, as would have been the con- struction, had they only transgressed the boundaries of accumulation, has observed, as follows : — " There is another class of accumulations, which, at first sight, appear to be within, but, upon consideration, will be found to be beyond, the operation of the Act; and, upon the same principle, as was involved in the preceding cases. The cases alluded to are, where gifts or legacies are directed not to be fully enjoyed, until some years after the donee or legatee shall have attained majority ; and accumulation expressly or impliedly is directed, until the gift or legacy becomes enjoyable. In these cases, if the gift or legacy can, on a fair construction, be held to vest, and be payable, when the donee or legatee attains majority, according to the rules of laws affecting the case, dehors the act, the fund, with its ac- cumulations, will be ordered to be transferred at that age ; the subse- quent accumulations failing, not by force of the Thellusson Act, but, because they were void, dehors that Act. Thus, in the cases of Joselyn V. Joselyn, and Saunders v. Vautier, all consideration of the Thellusson Act was excluded ; the Court pro- ceeding to the construction of the testator's will, precisely as if that Act had not passsed ; and, having, in each case, held, that the infant took an im- mediate vested interest in the legacy, ordered the fund, with its accumula- tions, to be transferred to the infant, on his attainment of twenty-one years of age ; although the testator had directed the accumulation to continue, in the f(;rmer case, until the donee h.id attained twenty four, and, in the latter, until he had attained twenty- five years of age ; and although, in both cases, the accumulation, as directed by the testator, would not have exceeded the statutory limits " Hargr. Accum. 109, 110. Now, if, by the accumulations failing, " be- cause they were void, dehors the Thellusson Act," be meant, their remoteness under the law of Perpe- tuity, the whole of this proposition must be excepted to. For, in Joselyn v. Joselyn, and Saunders v. Vautier, the legatee was a person in esse, and the postponement of the vesting be- yond majority would not, therefore, have rendered the gift, void for re- moteness (^vide supra, p. 458). Nor was the legacy, in cither of the cases in question, " held to vest and be pay- able, when the donee or legatee at- tained majority ;" and, on that ground, transferred, with its accmulations, to the legatee, at that age ; for, it was expressly decided, that the legatees took immediate vested interests, without reference to majority, or any other age. As far as the doctrine of Perpetuity was concerned, the lega- cies might have been held to vest at the ages specified in the bequests, or at any other ages, had the rules of law required such a construction ; and it is quite clear, that, in such a case, CHAP. XXir.] DEFERRED ENJOYMENT. 529 arise, as the devisee or legatee, in each case, was a person in esse, and named ; and the postponement of beneficial enjoyment by him, therefore, to some age greater than majority, (which was the fact, in each of the cases men- tioned,) could not affect the validity of the limitations ; but those cases are, nevertheless, valuable, as proving the dis- position of the Courts, both of law and equity, towards the vesting of estates, where a contrary construction is not forced upon them, by the unambiguously expressed intent of the author of the gifts. It has been above remarked, (q) that, in cases where the The extent, to possessory enjoyment of limitations is deferred to too re- possession is mote a period, the possession will be accelerated, to the ff^^lerated, m t- ' i- ' the Ccoscs under extent of the excess of pustjwnement. But, this must be consideration. understood, with the quaUfication, that there is some valid divesting gift, to take effect before the expiration of the period, to which the suspension of actual enjoyment is so cut down ; for, if there be no such divesting limitation, the donee will, in all cases, be entitled to the possession of the property, or to the receipt of the fund, on his attainment of the accumulations might have gone age was not of the essence of the gift,) on, for twenty-one years from the to anticipate the accumulations, by testator's death, as not being " void taking the fund into his own hands, dehors the Thellusson Act." The immediately the law gave him the true ground of the decisions, in the power of affecting or disposing of his two cases alluded to, seems to be, property. That this is the proper that, the legacies being vested at interpretation of the decisions in once, and there being merely a post- question, is conclusively established, poned enjoyment, without any gift- by the observation of Lord Lung- over, in the event of the legatees not dale, (4 Beav. 116,) on one of the attaining such full enjoyment, the cases again coming before the Court, consequences of the right of property to the effect, that, " where a legacy is inevitably attached ; one of which was, directed to accumulate for a certain the power to assume an absolute con- period, or where the payment is post- trol over, and, therefore, to demand a poned, the legatee, if he has an abso- transfer of, the fund, immediately on lute indefeasible interest in the legacy, attaining majority ; it being open to is not bound to wait until the expira- the legatee, cither, to allow the ac- tion of that period, but may require mulations to proceed, until his attain- payment, the moment he is competent ment of the age specified in the will, to give a valid discharge." or, (as the attainment of a particular (<;) Hde supra, p. 512. M M 530 VESTED LIMITATIONS, &C. [CHAP. XXII. majority ; because, as, ex //i/pothesi, lie is the only person interested under the limitations, and entitled to the income, and, as he is competent to claim possession, and give all necessary discharges, no object is to be served, by delaying his personal enjoyment, and by accumulating income, which the donee must, in any case, enjoy, either personally, or, by his representatives, whether in the character of .in aggre- gate, or of a yearly -accruing, fund, (r) (r) nde supra, p 529, n. 531 CHAPTER XXIII. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS VESTED LIMITATIONS, MADE SUBJECT TO SUBSEQUENT DIVESTING GIFTS. Whenever a gift is creative of a present vested interest, Remarks as with a deferred period of enjoyment, it is usually followed divesting prior by an Executory limitation, to take effect in case of the death and tlf' ir ' of the donee under the me, or prior to the happening of the "exion with the 1 . , 1 . . . perpetuity. contmgency, at or on which his interest is to be completed rule. in possession. Indeed, as we have seen, the circumstance of there being such a gift-over, is one of the most forcible arguments, in favor of the immediate vesting of the limi- tation, in cases of doubtful construction. Having ascer- tained, in any given case, that there is a futurity of possession only, as distinct from a postponed vesting, the question arises, whether, where the original gift is subject to a divesting clause, to take effect upon the death of the donee before the arrival of the period of possessory enjoy- ment, that period is within the prescribed boundaries of remoteness. And so, also, if the first limitation be, to a class of persons, who are not to become entitled in actual possession, until a period, posterior to the time of vesting, and the gift is followed by a clause of accruer or survivor- ship, between and among the members of the class, in case of the death of any of them, prior to the time of possessory enjoyment, the question of the remoteness of the event, contemplated by the divesting gift, inevitably arises. Upon the assumption of the vesting and possession M M 2 532 VESTED LIMITATIONf^, SUBJECT [ciIAP. XXIII. Rule is, that prior limita- tion becomes absolute, and remote divest- ing gift is void. And same, although party taking under first gift, die before period or event contemplated by divesting clause. of the original gift being coincident, this question can never directly arise : because, if that gift be valid, the Executory limitiition, which is to take effect in the alternative of the same contingency, must be good, also ; and it is equally certain, that, if the first limitation be void, as too remote, the ulterior gift must, likewise, necessarily, fail. The general rule is, that, if the clause of accruer, or other the gift, engrafted on, or limited in derogation of, the original limitation, is to take effect on too remote a ccmtin- gency, such limitation is not invalidated, but is rendered absolute, by relieving it from the clauses, qualifying or divesting the interests of its objects, {s) The interest, first given, being (upon the hypothesis assumed,) vested, it can only be made liable to be defeated, by a gift of perfect validity, and unambiguous import. And if such qualities cannot be predicated of any particular Executory limitation, it is manifest, that, so far as concerns its effect upon the original gift, the latter must be construed, as though it had been limited absolute and entirely unrestricted : for, to hold, that a limitation, though void in itself, should yet have the force of qualifying or divesting a previous perfectly valid gift, no otherwise connected with it, would be, to retain the practical influence of a disposition, while its scope and object are condemned and frustrated. It is a consequence of this rule, that, where the donee, entitled under the original gift, dies after acquiring a vested interest, although before the age or other the contingency contemplated by the remote divesting clause, as the event on which that interest was to become absolute and inde- feasible, his representative will be entitled, in the same manner, as if the enjoyment had been in no wise postponed, and no divesting gift had been superadded. And, accord- ingly, in several of the authorities before cited, in which the construction of an immediate vesting obtained, it will be found, that the dispute, as to the character of the limi- (s) I Jarm. Wills, 253. CHAP. XXllI.] TO DIVESTING GIFTS. 533 tations, was carried on between the representative of the person entitled nnder the original gift, and the object of the Executory limitation, (t). On the other hand, it scarcely needs observation, that, if If divesting the divesting clause be not too remote, the happening of femote, it will the specified contingency will terminate the interest ori- ^^^^ cfiFect. ginally given, whether in the hands of the donee, or his representative, (supposing it to have no reference to his death under a particular age, in which case, there can, of course, be no representation,) and will give effect to the Executory limitation. The foregoing observations will demonstrate the fallacy Remark as to a of the argument, not uncommonly urged, (u) that, the fallacy upon construction, necessarily alternative to that of a postponed * ^^ ^" ^^^^ vesting and enjoyment, being, that the interest is imme- diately vested, subject to be divested, the divesting clause, in such latter case, is, consetjuently, not void for remote- ness ; in other words, that the construction which validates the original gift, is equally preservative of the Executory limitation. It remains, to be observed, that, though the period of Remote di. deferred enjoyment, and the contingency, provided for by [atfon^^'^y the divesting clause, ordinarily, correspond ; the gift falling ^^'^^ ' ^^^ ^'"<^« into possession, and becoming absolute and indefeasible, excess. simultaneously ; the effect of the event contemplated being too remote, materially differs, in respect to each. We have seen, that, as regards the postponed possession, the excess of remoteness is vacated, and the enjoyment, accelerated. But, with reference to the divesting clause, the contingency contemplated, must be, either, wholly good, as within the limits, or, it must be entirely void, as too remote : it cannot be left to eventual determination, whether the Executory limitation shall be capable of taking effect, or not, within the Rule against Perpetuities. (<) And sec Lane v, Goudge, 9 («) See the argument, for the Vcs. 225; Jones v. Machilwain, 1 legatees-over, in Ring v. Hardwick, Russ. 220. 2 Beav. 357. 534 CHAPTER XXIV. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS LIMI- TATIONS, ABSOLUTE IN THE FIRST INSTANCE, WITH SUB- SEQUENT QUALIFYING AND RESTRICTING GIFTS ENGRAFTED UPON THEM. Illustration of class of g'fts here noticed. In these cases, remote modi- It has been already hinted, that, in deciding on the character of a Hmitation, in reference to the period of its vesting, the Courts do not pay any regard to the conse- f|iiences which may attach on any particular construction* by the application of the Rule against Perpetuities, if, upon principle and authority, such construction would hold, in a similar case, where the remoteness of the limitation did not come in question. But this disregard of consequences will not be allowed to extend to cases of gifts, the remote portion of which is superinduced upon, or has no necessary connexion with, a prior complete and valid disposition. As, if property be Hmited, by will, to an unborn person, absolutely, and, in a subsequent part of the same will, or, in a codicil, there be a clause, curtailing the previous abso- lute gift, to a life-interest, by a provision, that the property shall be settled upon the devisee or legatee, for his life, only, and after his decease, upon his children. Here, it will be perceived, the restrictive gift is engrafted upon a limitation, perfectly complete in itself, and docs not, there- fore, so necessarily form part of it, as to involve it in any invalidity, which may affect the former. And, accordingly, in such cases, it has been held, that the first absolute gift CHAP. XXIV.] ABSOLUTE LIMITATIONS, &C. 535 takes effect, and that the modifying clanscs must be re- fying gifts jected. This rule, as it has been said, (u) proceeds from ^^ an anxiety, to prevent a testator's dispositive scheme from proving abortive, on account of the remoteness of a specific portion of such scheme. And the particular ground, on which the construction in question is rested, is, that the author of the limitations intends the prior absolute gift to prevail, except so far only as it is effectually superseded by the subsequent qualifying one. (w) Thus, in Carver v. Bowles, (x) a testatrix, under a power Case of Cawet of appointment, in favor of her children, contained in her marriage-settlement, appointed the property, to her five children, two sons and three daughters, in equal shares, absolutely ; and the testatrix then declared, and appointed, " so far as she lawfully or equitably could or might," that the one-fifth so appointed to each of her daughters should be held upon trust for the daughter, for her separate use, for life, and after her decease, for the children of such daughter, and in default of children, in trust for such persons as the daughter should appoint, and in default of ap- pointment, for her next of kin. It was held, by Sir J. Leach, M. R., that the words of the appointment were sufficient, to vest the shares absolutely in the daughters, in the first instance, and that the attempted restriction of their interests, by means of limitations to their issue, being- inoperative, as too remote, did not abridge the absolute appointment : his honor was of opinion, however, that the restrictions, as to the enjoyment by the daughters, were good, and took effect. This latter circumstance proves, Observations how strongly the Court will endeavour to support the ^BowUs"^^^' ^ testator's main disposition ; as the trust for separate use and proviso against anticipation, which the Court held valid, were part of the very restrictive gift, the main object (^y) 1 Jarm. Wills, 257. Arnold v. Congrcve, 1 Russ, & My. ((,■) Ibid. 209. (x) 2 Russ. iSi My. W6. And sec 536 ABSOLUTE LIMITATIONS, WITH [cHAP. XXIV. of which was condemned and frustrated, as inoperative to control the previous absolute appointment. Case of Kampf Affaiii, in the case of Kampf v. Jones, {ij) a testatrix, V. Jones. " 11- having powers of appouitment, under two settlements, in favor of her children, appointed part of the trust funds, to her five children, four sons and one dauf^hter; and the tes- tatrix directed, that the share of the daughter should be a vested interest in her, on attaining twenty-one, or marriage with consent ; but she, also, directed, that such daughter's share should, on her attaining a vested interest, be invested in the joint names of the trustees and the daughter, and that the same should be held, in trust for the daughter, for her separate use, for her life, and after her decease, in trust for her children, equally, and in default of children, in trust for her next of kin. A question arose, whether the interests, appointed to the unborn children of the daughter, which were too remote, belonged to her, or were divisible between all the children of the testatrix, in consequence of the de- fault of appointment ; it being contended, on behalf of the daughter, on the authority of Carver v. Boivles, that, the fund being appointed to her, in the first instance, the abso- lute gift to her, of one-fifth, had not been cut down by the subsequent ineffectual gift-over to her children ; and that, consequently, she was absolutely entitled to that portion of the fund. Lord Lamjdale, M. R., said : — " I think, that, upon the authority of the case of Carver v. Bowles, this is an absolute appointment, for the benefit of this lady, subject only to such restrictions, within the limits of the power, as arc afterwards properly imposed on her. The difference, be- tween this case, and the case of Carver v. Bowles, which strikes one at first, is, that, in the case of Carver v. Bowles^ the gift-over was contingent, on whether the testator could do what he was about to do: he says, 'so far as I lawfully or c) 1 My. JS; Cr. 331. CHAP. XXIV.] QUALIFYING GIFTS SUPERADDED, portions, and after their death, to their chihlron. And, in Hke manner, if any of his children should die after him, and before they have attained the age of twenty-jive years, such portion as they possess is to be divided between the sur- viving brothers and sisters, and in default of them, the whole is to go to the children of my daughters, M., and C, in equal proportions." Upon a bill filed for execution of the trusts of the will, and declaration of the rights of the parties, one of the questions was, as to the quantity of interest taken by R., in the devised real estate ; and, if only a life-estate passed under the devise to him, whether the reversion in fee was included in the residuary disposition. The Master of the Rolls decreed, that the son took only a life-estate in the freehold property, and that the reversion in fee passed to him and his two sisters, in equal undivided third parts, under the residuary clause. Upon appeal, this decision was affirmed by Lord Chancellor Cottenham ; his lordship con- cluding his judgment, with the opinion, that the reversion of the real estate, which passed to the residuary devisees, " must he subject to the same trusts and Imitations, as the rest of the property comprised in that clmise.'" This expres- sion, obviously, assumed, that the qualifications, superadded to the residuary devise, were valid ; and that, again, de- pended upon the question, whether the vesting of the in- terests of the son's children, was suspended, until their age of twenty-five. If the latter inquiry be determined in the affirmative, it is clear, that the limitations to the children were void, as too remote ; and, it seems equally certain, that, in that case, as, under the first part of the residuary clause, there was an absolute gift to the testator's son and daughters, the son's share would remain vested in him, un- affected by the ulterior restrictive or qualifying Hraitations. Whether this point was present to the mind of the M. R., when he pronounced his decree, that the son and daughter were entitled to the reversion, in fee-simple, under the residuary gift, does not appear; but it may, perhaps, be considered, as more than probable, that such was the case. 539 540 ABSOLUTE LIMITATION^!, &.C. [CIIAP. XXIV. Doctrine TliG rule of construction, we have been considonng, it w^lSandinR ^ill bc obscrv'cd, affbrds the greater evidence of the inchna- ordinarvrulcin ^j^^,^ ^j- ^\^q Courts, to uphold tcstauicntary dispositions, oftwoincon- when thc remote portion can be separated from the valid sistciu gi ts. ^.^^^ ^^^ ^ .^^ .^^ ^^^^^ measure, contravenes the general rule of law, which prefers the posterior of two inconsistent limi- tations, in a will. Similarity of It will, also, be pcrccived, that this doctrine bears a limitatk)n°to Strong resemblance to the rule, discussed in the preceding inlL^Chapte*!? ^'li'-^ptcr, in reference to remote divesting gifts, engrafted on prior limitations, presently vested : the difference consist- ing, chiefly, in this ; that, in regard to the former, the inten- tion of thc testator may generally be presumed to have been, to confine the absolute devisee or legatee, to a life-interest; whereas, in the case of the latter, there is (upon the terms of thc hypothesis,) a clear intention, to give the whole pro- })erty, subject only to a disposition of it, to another person, on a specified event. Wliether It may bc doubtful, how far this rule would be applicable applSlc to to limitations in Deeds ; that is, whether it is grounded, so Umiutions in exclusively, on the general favor shown to testamentary dis- positions, as to leave no sufficient reason, on which to rest, an extension of it to gifts in instruments inter vivos. The argument, founded on thc ineffectual character of the restrictive or qualifying clause, is, certainly, of equal force, whether applied to limitations in wills, or, in deeds ; but it may be questioned, whether that argument enters so far into the essence of the rule, as to necessitate, or, even, admit of its application to limitations, of the character contem- plated by it, when other than testamentary. (c) It is not to bc supposed, how. cited in thc text,) Sir T. Plumer, ever, that this rule proceeds solely M. R. , acted upon the principle of from a desire to support a valid limi- holding a prior absolute gift un- tation, against the operation of a rt- affected by a subsequent qualifying mote restrictive clause; for, in the limitation, in cwnts not jroi tiled for case of Whittell v. Dudcn, 2 Jac. & by thc latter. W. 27'J, (which preceded all thc cases 541 CHAPTER XXV. OP THE RULE AGAINST PERPETUITIES, AS IT AFFECTS THE LIMITATION AND EXERCISE OF POWERS OF SALE, EXCHANGE, PARTITION, LEASING, AND THE LIKE. As the Rule against Perpetuities requires every limita- Powers of sale, tion oi a luture interest to be such, as, m its own lorm own nature, and nature, will necessarily take effect, if at all, within the oppr'ation*^of prescribed limits, it may, at first sight, seem, that Powers of laws agamst sale, exchange, partition, and leasing, which are but modifi- cations of future Uses, should, in their original limitation, comply with this requisite. Regarding them, abstractedly, it cannot be said, that there is any reason for the confine- ment of direct Executory limitations, which does not equally oblige to the restriction of the exercise of these special Powers, within the allowed limits of remoteness. Any exemption, therefore, which may be claimed for these Any exemp- limitations, from the perpetuity-rule, must be grounded on grounded on ' considerations, extrinsic to their own nature. considerations Whether any necessity do really exist, for restricting Practice long Powers, of the kind under consideration, to the perpetuity- assumption of boundary, has long been a question with writers on real ^^^^ exemp- property-law ; while, on the other hand, the admitted prac- tice of the profession was, for a long series of years, con- ducted, upon the notion, that such Powers were valid, although unrestricted ; so as, on the first mooting of the question, to excite the remark, by a great law luminary, that a contrary rule would shake half of the titles in the kingdom. 542 INDKFINITE TOWEllS OF SALE, [ciIAP. XXV. Doubt of legality of unrestricted Powers originated in decision in H'art V. Polhill. The doubt arose in conscfiiicnce of a decision, by Lord Kldon, in IVare v. Polhill. (d) In that case, freeholds and copyholds were devised to the testator's son, for life, remainder, to trustees, to preserve contingent remainders, remainder, to his first and other sons, in tail, with re- mainders-over; and leaseholds were becjueathed to trustees, in trust, to renew, and to pay the rents, to the persons, who, under the preceding limitations, should be, for the time being, entitled to the rents of the freeholds and copy- holds ; and the testator empowered the trustees, at any time thereafter, with the consent and approbation of the person, who should, for the time being, be entitled to the rents and profits of the freehold and copyhold estates, or, in case such person should be a minor, then, at the discretion of the trustees, to sell and dispose of his leasehold estates, and to invest the money, arising from such sale, in the purchase of freehold or copyhold hereditaments, to be conveyed and surrendered to the uses declared of the freeholds and copy- holds devised; and until such purchase, the sale-monies to be invested, and the interest paid to the person for the time being entitled to the rents of the devised estates. The power of sale not having been exercised, and a grandson having died under twenty-one, without issue, it was asserted, on behalf of persons, entitled, in remainder, to the real estates devised, that it was the intention of the testator, that all his property, not real estate, should be converted into realty, and limited in strict settlement; and that the trustees ought to have sold all the leasehold estate, accord- ingly : that the intention was, to provide for the issue male ; and that the leasehold estate, while unsold, should go with the freehold, as far as the rules of law and equity would permit ; and not vest in a tenant in tail so as to be trans- missible. Lord Eldon was of opinion, that the leasehold estates vested absolutely in the deceased grandson, as («/) 11 Ves. jr. 257. Polhill. CHAP. XXV. J EXCITANGE;, PAIITITION, &C. 543 quasi-iexxQxxt in tail, upon his birtli ; and, with reference to the power of sale, (which is the point material in this place) his lordship subsequently delivered himself thus : — " Upon further consideration, as to the leasehold estate, I think, that power of sale is void; for it may travel through mino- rities, for two centuries, and if it is bad, to the extent to which it is given, you cannot model it, to make it good. I think, the soundest ground is, that the power is bad." The Nature of the T p 1 . , . . . . decision in exact meanmg and extent oi this decision, it is not easy to Ware v. arrive at ; although the expressions of the learned judge certainly lead to the supposition, that he was influenced by some idea of the possible remoteness of the power. Sir Edtvard Sugden [e) explains it merely to mean, that, where a leasehold estate is settled as realty, but so as to vest absolutely in a quasi-ien&xvi in tail, a power to defeat his estate, by selling the property, and buying real estate, to be re-settled, is void ; and says, that the Lord Chancellor did not intend to impeach the validity of the powers before alluded to ; the particular feature of the case being, that the effect of a sale might have been, to defeat altogether the estate of the representative of a person, who died entitled to a vested interest in the absolute property. (/) But, ad- (e) Sug. Pow. (3rded. ) 144; ib. authorising an indefinite conversion of (6th ed. ) vol. 2, p. 493. the property, and tending, therefore, (/) Mr. Jarman has thus alluded to keep it in a state of of perpetual to the character of the decision in uncertainty or fluctuation ; and it IFare v. Polhill, in reference to the seems to be a material ingredient in distinction, he conceives to exist, that case, that the execution of the between the Power, in that case, and power involved a change, not merely the ordinary Powers of sale, &c. in the nature of the property, but in " The case is different," says that its destination ; so that, in effect, if learned writer, ( 1 Jarm. Pow. Dev. not, in terms, it did tend to a per- 251,) " where, as in Ware v. Polhill, petuity, in the truest sense of the an absolute ownership is given, though word. There is ground to contend, to infants, or persons unborn, with a that the power would not have been power of sale, to third persons, not open to the same objection, if it had expressly restrained, in its exercise, extended only to the conversion of to the minorities of those persons, nor the leaseholds into freeholds or copy- limited, by its purpose and object, holds, to be settled upon the trusts within the prescribed boundary, but declared of the leaseholds, for, then. 544 INDEFINITE POWERS OF SALE, [ciIAP. XXV. inlttin"- this view of the decision, the reason assitj-ncd seems insutKcient, tor tlonying vaUcHty to the power; as there appears to be no greater argument, against allowing the exercise of a Power, to divest the estate of a representative of the person entitled to the absolute interest in leaseholds, than, against the operation of any other Power, which may, probably, or, possibly, defeat a vested fee-simple, (whether residing in the original donee, or his representative,) but which is, clearly, not, on that account, exposed to any objection. But, whatever may have been the real ground of Lord Eldoiis rejection of the Power, in Ware v. Polhill, it may suffice, to observe, that the decision created great alarm among practitioners, as, apparently, affecting the common Powers of sale, exchange, &c., ordinarily inserted in marriage and other settlements, and which, as before remarked, it had not been customary, expressly to confine, within the limits of perpetuity. And, notwithstanding the general impres- sion, that the validity of such Powers was not impeached by the case of Ware v. Polhill, and that it was not necessary, to limit their exercise to the boundaries of remoteness, much doubt and uncertainty continued to exist ; as it was natural to suppose, that the opinions expressed upon the subject, conformed to that view, rather, out of regard to what had been the constant view and practice of Conveyancers, than, from a consideration of the abstract merits of the question, as founded on principle, apart from convenience. Opinions of Yox somc time, each successive text-writer gave in his ad- tcxt-writcrs ^ " favoraijlo to hercncc to the practice of non-restriction ; and, thus, a law Powers. was being gradually made, to that effect, even upon the supposition, that the principle of it was insupportable. the duration of the power would hare to be analogous to a power of sale, in been circumscribed by the ownership a strict settlement, where the first under the limitations, and, in the tenant in tail attaining twenty-one meantime, would have subsisted, only may, by a recovery, acquire the ab- as a power of varying the investment. solute ownership, discharged of the In this point of view, it would seem power. " CHAP. XXV.] EXCHANGE, PARTITION, &C. 545 Thus, Sir Edward Sugden, {(j) declared, that the validity of the common Powers of sale and exchange was not im- peached by Ware v. Polhill: that the general practice had been, not to confine them to lives in being and twenty-one years ; and that half the titles in the kingdom depended on the validity of such Powers : that, if the Power was within the law of perpetuities, the line could always be drawn, and that there appeared to be no reason, why it should be deemed void, in its creation: that such Powers did not operate to defeat estates, or destroy interests, but, merely, to transfer them, from one property to another: and that Powers of sale and exchange, in strict settlements, were valid, like other Shifting Uses, as they might be destroyed by the recovery of tenant in tail. So, Mr. Preston (h) maintained, that the common Powers of sale and exchange, in marriage settlements and wills, though not prescribed to be exercised within a given period, were good, as to the estates for life, because, as to them, the power fell within the limited period; and, also, as to estates-tail, because the power might be barred by any tenant in tail ; but was void, as to the remainder or reversion in fee, when it fell into possession, or was discharged from the estates-tail. So, also, the Meal Projjerti/ Commissioners (i) considered, that, wherever the consent of the parties beneficially en- titled was required to an exercise of the power, or an estate- tail was created, the power was valid, as a conveyance by the former, and recovery by the latter, would, at any time, destroy it. And Mr. Coventnj, (k) also, contended, that, if the consent of the tenant for life was made an essential preliminary to the sale or exchange, it was difficult, to see, how the rules of perpetuity could be transgressed : that estates for life could not be given to the issue of children unborn, and if the consent of a tenant in tail was essential, (ff) Pow. (3rd cd.) 146 ; ib. (6th (t) 3 Rep. 3-4. ed.) vol. 1, p. 181, vol. 2, p. 494. Qt) Couv. Ev. 87, 8P. (A) Essay on Abst, vol. 2, p. 168. H N 516 INDEFINITE TOWERS OF SALE, [CTIAP. XXV. then, the power must l)e subservient to the estate-tail, and mied the purchaser to take the title. Potvis V. Capron, {w) a case nearly similar, was dcciileil, by Sir /. Leach, in the same manner. In Boyce v. Ilanning, {.x) by a marriage-settlement, real estate was conveyed to trustees, to the use (after the so- lemnization of the then intended marriage,) of the settlor, for life, with remainder, to trustees, to preserve contingent remainders, with remainder, to the intent, that the settlor's then intended wife should take an annuity, for her life, and subject thereto, to the use of the children of the marriage, as the settlor and his wife should appoint, and in default of appointment, as the survivor should appoint, and in (m) Sec Hargv. Accuni, 93, 94, n. (w) 4 Sim. 138. (v) 4 Sim. 135. (.r) 2 Cr. & Jcrv. 334. CHAP. XXV.] EXCHANGE, PARTITION, &C. 549 default of such last-mentioned appointment, to the use of the children, as tenants in common in fee, with a cross- limitation, in fee, between them, in case of the death of any of them under twenty-one. The will, also, contained a power, for the trustees, tvith the consent of the settlor and his wife, and the survivor of Ihem, and after the decease of the survivor, at the discretion of the trustees, to sell the estates. The trustees contracted to sell the settled pro- perty, under the power, in the lifetime of the tenant for life ; but the purchaser having excepted to the title, a case was sent to the Court of Exchequer, upon the question, whether the trustees were able to make a title, under the power of sale. It was contended, for the trustees, that the power was good during the life of the tenant for life, al- though void afterwards ; there being, in fact, two powers, one to be exercised during the life of the tenant for life, with his consent, and the other, after his decease, without any consent. It was, also, said, in support of the title, that the power was given to the trustees for the time being, and not, to the trustees, nominatim, and, therefore, existed only during the trust, which was to continue for the life of the tenant for life, and the minority of the children, so as to be within the limits of the Rule against Perpetuities : the settlement did not impose upon the trustees any act, after the attainment of majority by the children, as the children were to take absolutely at twenty-one. It was argued, for the purchaser, that it was impossible, to split the power into two, it being given under one limitation, not to be exercised in a different manner under different circumstances ; and that, therefore, it was clearly void, as violating the Rule against Pei'petuities. It was, further, said, on the same side, in reference to the continuance of the trust, during which the power was to be exercised, that a child might die under twenty-one, leaving issue ; in which case, the power would, clearly, continue, and that the argument might be carried further, by supposing an- 550 rST>EFINlTE POWERS OF SALE, [CHAP. XXV. Other generation ; but that it was sufficient to put the case of two minorities, which might keep up the power beyond hves in being and twenty-one years. The Court sent their certificate, to the effect, that the trustees might make a good title to the purchaser, under the power of sale. In Waring v. Coventry, (y) there was a settlement, by deed, of realty, in strict entail, with a power of sale, given to the trustees, to be exercised, with the consent of the 2)ersons for the time being entitled to the possession of the estates, and, during the minority of such persons, at the discretion of the trustees. The settled estates having been directed to be sold by a decree, (whether, or not, in the lifetime of the tenant for life, does not appear,) an objection to the title was taken, on the part of a purchaser, on the ground, that the power was void, as extending to an inde- finite period of time. Sir John Leach, M. R., held, that the power was co-extensive only with the estates-tail, and might, like them, be destroyed ; and that it did not, there- fore, fall within the Rule against Perpetuities. In Wood V. White, (z) a testator, by his will, after giving his wife, a life-interest in a portion of his real and personal estate, and after disposing of three one-fifths of his residuary real and personal estate, gave another one-fifth, in trust for his son, W., for life, and after his death, in trust, to convey and assign to his children, their heirs, executors, and ad- ministrators, subject to a cross-limitation, between the children, in the event of any of them dying under twenty- one, without leaving issue, and a limitation-over, in case all the children should die under twenty-one, without leaving issue. Another one-fifth was given, in trust, to be conveyed and assigned to the testator's daughter, E., on her attaining twenty-five, or marriage. The will contained a power, for the trustees, during the life of the testator's wife, or at any time afterwards, during the continuance of (y) 1 Myl. & K. 21B. (i) 2 Keen, t)(J4 ; 4 Myl. & Cr. 4tiO. CUAP. XXV. EXCHANGE, PARTITION, &C. 551 the trusts by the will reposed in them, with the consent of the wife during her Ufe or widowhood, and, afterwards, with the consent of the persons for the time being in possession of the rents and profits, or of the authority of the trustees^ if such persons should he in their minority, to sell all or any part of the real estate devised. The surviving trustee and executor of the will having, after the death of the widow, contracted to sell a portion of the real estate, an objection was taken to the title, as to the two-fifths devised, as above-mentioned, (there being no question as to the other three-fifths,) on the ground, that the trusts, as to the shares of W. and E., were not then continuing, and that, if such trusts were continuing, they were of a nature to last through a succession of minorities, and that, there being nothing to limit the period within which the power might be exercised, it was void, within the Rule against Per- petuities. Lord Langdale, M. R., was of opinion, that the trusts were not continuing, and, therefore, observed, it was not necessary for him to consider the other very important question, which had been argued, as to the validity of the power, on the supposition that the trusts were continuing ; and he, accordingly, dismissed the bill for specific perform- ance : but, it appears, from the argument on the appeal, that his lordship intimated serious doubts, whether the power might not be void, ah origine, as tending to a perpetuity. The cause coming, by appeal, before Lord Cottenham, C, it was insisted, that, by the death of one of the children of W., under age, leaving issue, the trusts might continue, and, with them, the powder, for an indefinite period, and during a series of minorities, in which case, the power would be bad ; and, if bad to the extent to which it was given, the Court could not moderate it. The Lord Chan- cellor differed from the M. R., in reference to the period of the continuance of the trusts, and held, that they did not determine, as to one share, until all the children of W. attained twenty-one, and, as to the other share, until E. 552 INDEFINITE POWERS OF SALE, [CIIAP. XXV. Cases on indefinite Powers of sale, SiC, reviewed. attained tvvcnty-favc ; and, being of that opinion, his lord- ship observed, the objection raised, as to the power tending to a perpetuity, might be considered as disposed of: but, if it were otherwise, the sale in question was within the per- mitted period, and there tvould not, he thought, be much doubt of its validity, until the expiration of that period. In JVallis v. Freestone, (a) an estate was devised to O. W., for life, with remainder, to trustees, to preserve contingent remainders, with remainder, to the first and other sons of O. W., successively, in tail, with remainder, to the trustees, and their heirs, in trust for the separate use of the testator's niece, for her life, with remainder, to the use of her children, in tail, with remainder, to the testator's ri'dit heirs. A power of leasing the devised estate was given to the tenant for life, and, after his decease, and during the minorities of the issue in tail, to the trustees. The trustees having entered into an agreement for a lease, under the power, with the concurrence of the first tenatU for life, a bill was filed for a specific performance of the agreement, which the purchaser had refused to complete, on the ground of the power being indefinite, and, therefore, void. It was held, by Sir L. Shadwell, V. C, that, though the power was given for an indefinite period, yet, as either of the tenants for life might concur with his or her children, in destroying it, the objection to the power, on the ground of perpetuity, could not be sustained ; and specific perform- ance of the contract was, accordingly, decreed. In the foregoing case of Biddle v. Perkins, it will be perceived, that the power was, at no time, exerciscable without the consent of the parties beneficially entitled. In Boyce v. Hanning, Wood v. White, and Wallis v. Free- stone, and (in all probability) Waring v. Coventry, the (a) 10 Sim. 225. The case of plicablc to the question of the validity Doc A.Davks v.Ddiics, 1 Q. B. 430, of unrestricted Powers of sale; but has also been cited, (sec 2 Jarin. there socms little or no ground for Wills, Index, xiv. ) as an authority, ap- that conclusion. CHAP. XXV.] EXCHANGE, PARTITION, &C. '^53 power was exercised within tlie period, or under the cir- cumstances, during, or in reference to, which, a consent, by the person interested, was required, by the terms of the power ; and within or under which, therefore, the power might properly be deemed free from all obiection of remote- ness. In Biddle v. Perkins, Waring v. Coventry, and Wallis V. Freesto7ie, estates-tail were limited, by the set- tlement or will creating the power ; and, therefore, without regard to any consent required to the exercise of the power, it was, so far as it might be deemed collateral to or co-ex- tensive with the estate-tail, clearly valid ; whatever might be its character, dehors or subject to that estate. It will be observed, that, in none of the cases cited, is there any instance of the exercise of a power, created in a simple conveyance in fee, unrestricted, and requiring no consent by the beneficial owner : the power, in the case of Boyce v. Hanning, being exercised within the period during ivhich consent tvas necessary ; although, after the expiration of such period, the power was of the character alluded to ; and the power, in the case of Wood v. White, requiring consent, except only in the event of the infancy of the persons interested, and not being, therefore, affected by any remoteness, which might attach to it, in that event, during the period of its exercise being made dependent on consent. It will, also, be perceived, that no one of the cases cited was decided on the questionable ground of the actual exer- cise of the power being within the allowed limits, without regard to any consideration of consent originally required to such exercise, or of the power being collateral to estates- tail. It is true, that, in Wood v. White, Lord Cottenham expressed an extrajudicial opinion, implying, that, had the case called for it, the actual exercise of the power might have been sustained, as having taken place within the proper period. But, this opinion may well be conceived 554 INDEFINITE POWERS OF SALE, [cHAP. XXV. not to have been the result ot "much special consideration; as it WM clear, that the construction, ruled by his lordship, in retercnce to the period of the continuance of the trusts, (with which the duration of the power was coextensive,) prevented any question of perpetuity arising; and, especially, as the circumstance of consent being recjuired to the exer- cise of the power, in every case, but that of the infancy of the parties beneficially interested, may have occasioned an oversight of the fact, that that was the actual state of things, in which the question arose, and may have, therefore, im- pressed his lordship with a conviction of the validity of the power. The deficiency in express authority being thus ascer- tained, it remains, to point out those rules, on the subject of the limitation and exercise of Powers, of the class under consideration, to which, an examination of the principles of the laws of remoteness, combined with a regard to the limits and restrictions established by decided cases, seems to lead. The positions that follow are not all advanced, as indubitable ; nor is it pretended, that the question of the validity of unrestricted Powers of sale, &c., as presented in any supposable case, is entirely extricated from dithculty : but, it is confidently presumed, that the rules laid down approach as near to a systematic exhibition of the operation of the Rule against Perpetuities, upon these Powers, as the unsatisfactory state of the authorities permits us to suppose, at present attainable. Powers not i_ There can be no objection, on the ground of remote- cxtcndud to i i • • i representatives iiess, to uuconfiiicd Powcrs of salc, exchange, partition, and cannoTbc too t^^e like, when limited to a person i7i esse, or several of such persons, and the survivors and survivor of them, and not extended to their representatives. In such case, they re- semble a Springing Use or Executory devise, to arise within the compass of a life in being ; and, like those Executory limitations, they, in no degree, transgress the perpetuity- remote. CHAP. XXV.] EXCHANGE, PAHTITION, &C. 555 boundary. The Powers, therefore, of which future mention is made, will be understood to mean, such as are reserved or limited to persons, and their representatives. 2. It is conceived, that a special Power, limited in a Powers rc- simple conveyance in fee, to be exercised with the consent 1^ beneficial of the beneficial oivner for the time being, is entirely valid, owners, vahd. and may be exercised, at any time, unless such an exercise be precluded by the act of the person, whose consent is necessary. This rule arises from the conspicuous circum- stance, that, the concurrence of the party interested being requisite to any disposition under the power, it may be, at any time, destroyed by him ; as the rule, that a person must not derogate from his own act, will not allow a man to avail himself of a power with which he is intrusted, to the detri- ment or disadvantage of rights conferred, or interests created, by him, in another capacity. The power of sale, or other power, therefore, does not operate as any impediment to the alienation or setdement of the property, and, consequently, offers no violation to the laws against remoteness. In con- firmation of this view, the opinion of the Commissioners on the law of Real Property may be adduced : they consider- ed, {h) that, " if an estate be limited to the use of A. B., and his heirs, with a power, reserved to C. D. and E. R, and the survivor of them, and his heirs, to sell or exchange, with the consent of A. B., or the persons for the time being en- titled to the ownership, there seems to be no ground for considering this objectionable, on account of its tending to a perpetuity ; for the conveyance of the estate, by the person entitled to die ownership, would, in effect, destroy the power, as he could not afterwards consent to the exercise of the power ; that is to say, he could not defeat his own act or conveyance, by a subsequent exercise of his power." 3. But it seems equally certain, that a Power of sale, or Unrestricted anv other Power of that class, limited in a conveyance in V^^'^'^' limited "* J '-'^' '- ' J \n conveyance feCi or in a settlement, whereby no estate-tail is created, i" fi;e, and not (6) 3 Rep. 34. 556 INDEFINITE POWERS OF SALE, [cHAP. XXV. requiring wilhout aiiv restriction upon ihc j)LTiod of its exercise, and consent of .' , , r i • i • beneficial fiot rcqiiiniig the consent ot the person tor the tune beuig owner, voul, entitled, is wholly void. No act of die beneficial owner upon ))ruicij)lc. ' J being available to over-ride the power, it hangs suspended over the fee, like an. unbarrable Executory devise or Spring- ing Use ; and, its exercise not being restricted within due limits, it must, (it should seem) like those limitations, also, in similar cases, be void for remoteness. Here, indeed, the vexata qucesiio of the firo tanto validity, or in toto remoteness, of the power, arises. If, in any case, an unconfined power, not requiring the consent of the persons entitled to the ownership, and not collateral to estates-tail, can be, to any extent, good, such, it is evident, must be powers, of the class supposed. It may, then, with little hesitation, be admitted, that, 7/^)ow strict principle and analogy, a bare naked power, reserved on a conveyance in fee, to a stranger and his heirs, must be treated as wholly invalid, on the ground of remoteness. From this conclusion, there is, clearly, no escape, which, upon examination, will not be found to resolve itself into a sophistical evasion, rest- ing solely on considerations of convenience, or originating in a desire, to avert the evils consequent upon the rejection of a different practice, long prevalent. For, as it has been, once and again, said, wherein consists the difference, between direct Executory limitations, and Powers of sale and other Powers, of a similar nature, but in the circumstance, that tlie latter leave the creation of the future interests, to the intervention of a person invested with a discretion to that end ? and how does this difference affect the connexion of each, with the laws against remoteness, seeing that they are alike directed to objects within the scope of those laws ? and, if equally embraced by the provisions of the perpetuity-rule, must not their original form and character supply the re- quired restrictions? and must not the result of the absence of such restrictions be, in both alike, the invalidity, ab origine et in toto, of the future limitation and power ? CHAP. XXV.] KXCTIANGE, PAllTITION, &C. 557 Considerations, such as these, seem to have influenced the Real Property Coniniissioners, who lay it down, (c) that, " if an estate were settled to the use of A. B., and his heirs, with a power of sale or revocation, reserved to C. D., and his heirs, without rcquirin) In reference to the decision as the life-estate is given, is incapable of to this point, Sir Edward Sugden {in taking it, the remainder is instantly arguendo, Bcngough v. Edridge, 1 Sim. accelerated. But if the particular- 226, 227,) has made the following estate is void, on account of perpe- pertinent observations : — " It does not tuity, there is no acceleration ; and appear to have occurred, to the even that which otherwise would be a learned persons who decided that case, good remainder, altogether ceases, that the consequence of illegality, on and is void. It would, therefore, account of perpetuity, is different, in seem, that there was great occasion to almost every respect, from that of suppose, that the decision of the Court other invalid dispositions. If an of Exchequer was right." estate for life is given, with remain- (w) See 1 Jarm. Wills, 235, n, der-over, and the person, to whom 590 EXECITTORY TRUSTS, [OTIAP. XXVII. or invalidity of the former; that is, the two propositions will be convertible. A branch of It remains, to observe, that the doctrine of Executory the decision in i i • r i • Mo,,;/ V. Moo,, 1 rusts docs not present the only instances ot the strict rerrenccto'" Operation and effect of limitations undergoing a constructive subject of this change, in order to preclude any objection of remoteness chapter. » ' * . that might attach to them in their proper character. Thus, in a well-known case, {x) property was devised to trustees, in trust, to pay the rents and profits towards the support and maintenance of the child and children of S. M., (a person in esse) during his her and their life and lives, and after the decease of such children, the testator devised the estate, to the lawful issue of such child and children of S. M., and their heirs, as tenants in common. S. M. had nine chil- dren, four born in the testator's lifetime, and five after his decease. It was held, in the first place, that the trustees took the legal estate, for the lives of the children and the life of the survivor, and that, therefore, the limitations to the children and their issue could not coalesce, so as to give the children estates-tail. It was, however, also, decided, that all the nine children took equitable interests for their lives, and the life of the survivor of them, and that, on the decease of the survivor of the children, the property would go over to the issue of the four children of S. M. horn in the testators lifetime, by purchase, as tenants in common in fee ; thereby giving effect to the ulterior limitation, which, as a remainder to the issue of children born and unborn, would have been, clearly, too remote. The Court, in fact, read the gift, as one, simply, to the issue of such of the children as should be born in the lifetime of the testator, and as could, therefore, take life-interests, with remainders to their issue. The case, consequently, forms no authority in oppo- sition to the doctrine, formerly staled, that, where property is limited to a class of persons, the limitation must be good (.(•) Mo;;;; V, Mug;;, 1 Mer. 654. CHAP. XXVII.] KXECUTORY TRUSTS. 591 or bad, as a whole, and cannot be substantiated, as to a portion of the objects, and rejected, as to the rest. It must, nevertheless, be admitted, that this decision is an extreme one, and that the greatest caution is requisite in its practical application. In confirmation of this latter view, the writer earnestly invites attention to the following just observations of Mr. Jarman : — " As it is clear," says that learned author, (//) *' beyond dispute, that, upon the ordinary rules of construc- tion, the devise to the issue would have included, not only those living at the death of the testator, but, also, those wlio should he horn during the continuance of the particular-estate, the departure from this construction, by narrowing the range of objects, in order to bring the devise within the legal limits, goes to establish a principle of very great importance, and entitles this branch of the case of Mogg v. Mogg, to parti- cular attention. It certainly deals more Uherally with the testator s disposition than some judges have conceived them- selves at liherty to do, and we are, therefore, the more sur- prised, that the point should have passed sub silentio, in the argument of the case at the Rolls, prior to the confirmation of the certificate, notwithstanding the novelty and holdness of the construction, and the ample and ahle discussion given to the other parts of the case^ (y) 1 Jarm. Pow. Dev. 414, n. 592 CHAPTER XXVIII. OF TIIK RULE AGAINST PERPETUITIES, AS IT AFFECTS TRUSTS FOR ACCUMULATION OF INCOME. liimits to ac- cumulation and vesting of future estates, formerly the same. Allowed period of accu- mulation now With the general subject of the accumulation of annual income, it has before been remarked, this Treatise has no immediate connexion. But there are certain Trusts of accumulation, within the operation of the Rule against Perpetuities, which, it would not be consistent with the desired completeness of our disquisitions, to leave entirely unnoticed. It must be observed, then, that the limits to the accumu- laiio7i of annual income, and the creation of future estates and interests in property, were, imtil the commencement of the present century, the same : that which was too remote a period, for the suspension of the acquisition of full power over the corpus of property, was, likewise, too remote, for the accumulation (and consequent deprivation of the bene- ficial enjoyment) of the accruing profits, {z) And the results of remoteness attaching to a trust or direction for accumulation were, also, the same with those ensuing from the remoteness of Executory limitations : the trust or direc- tion was wholly avoided ; and it could not be substantiated, in part, and be deemed bad, only for the excess. By the 39 & 40 Geo. 3, c. 98, however, the legal period for trusts of accumulation was restricted to narrower limits; and a (i) Sec 1 Jarni. U'ills, 264; 2 Prcst. Abst. 175, 178; Hargr. Accum. 20,61. CHAP. XXVIII.] TRUSTS OF ACCUMULATION. 593 discretion allowed, of selecting from among various terms or regulated by computations of time specified in the act, but none of 3 c, 98. which equalled the prescribed limits of perpetuity. The act, however, was not extended to provisions for payment of debts, nor to provisions for raising portions for the children of a settlor or devisor, or of any person taking an interest under the settlement or will creating the trust of accumula- tion, nor to directions touching the produce of timber or wood upon lands. Upon this act, it was afterwards adjudged, that trusts for Trusts of accumulation, transgressing the limits prescribed by the goodnro act, were not wholly void, but were s;ood for the allowed '""'" ""^|'^ ' J ' o this act, if period ; (a) a rule of construction entirely novel in the within perpe- T • • r • p • • tuity- decision of questions, as to the remoteness of provisions boundary, suspending the present enjoyment of property. The act, however, being one of a restraining force, it But if direc- was evident, that it could not affect, or give any increased accumdation efficiency to, trusts of accumulation, expressly or possibly, extend to •^ 1 .. 1 », ^ period t cyond exteiiding over a lovger period than that allowed by law for limits of ... - . rni 1 7 1 perpetuity, the limitation of future estates. {0) Ine act could only they are apply to provisions for accumulation, valid independently of ^ ° ^ ^^' ' it : which was not the case with respect to trusts, exceeding or not confined to the period of remoteness prescribed by the perpetuity-rule. As to such trusts, therefore, as, also, with respect to the particular provisions for accumulation specially exempted from the operation of the act, the Rule against Perpetuities is still applicable, (c) (Consequently, strange as it may seem, a trust of accumulation may verge on the very outside of the allowed limits of perpetuity, and, yet, be void only for the actual excess beyond the absolute period authorized by the act; while, if it, in any degree, however insignificant, transgress the boundary of remote- ness, or, if it be so framed, as that it may possibly transgress (a) 1 Jarm. Wills, 269. 2 Prest. (c) 2 Prest. Abst, 183. 1 Jarm. Abst. 183. Pow. Dev. 417. Hargr. Accum. 91, {h) See Hargr. Accum. 91. 110. Q Q 594 Tur>^Ts OF accitmulation. [chap, xxviti. such boundary, ii will wholly fail, without regard to the actual course of events. Case of lord Thus, in the well-known case of lord Southampton v. marqlTisTr'' marquis of Hertford, {d) estates were conveyed to trustees, Htrtford. J, J v;trict sottleiMont, subject to a term, which was declared to be limited uj)on trust, that, during the miuorit// of any 2)erson, tvho for the time being should, by virtue of the limi- tations in the settlement, be immediate tenant for life, in tail- male, or in tail, in possession, of, or actually entitled to, tlie rents of the settled estates, the trustees should receive the rents, and invest the same, so that the interest and dividends might accumulate during such minority or minorities ; and that the trustees might stand possessed of the accumulations, in trust for the person or })ersons, who, upon the expiration of the minority, or respective minorities, or the death or deaths of the minor or minors, should be entitled to the rents, and be of the age of twenty-one years. Here, it will be perceived, there might have been several consecutive minorities of persons succeeding to an estate-tail, during which, the trust of accumulation in question would operate, but which, nevertheless, might run through a period far exceeding the allowed limits of perpetuity. It w^as, there- fore, held, that the provision for accumulation was void ; it not being open to the Court, to model the trust, and make it good in the extent to which it might have been well carried on in its creation. Case of So, also, in the case of Marshall v. Holloway, (e) a testa- Jl'oiioway. ' ^^^' devised and bequeathed all his real and personal estates, to trustees, upon trust, to convert his personal estate into money, and, after payment of his debts and legacies, to ac- cumulate the surplus jnonies arising from the testator's per- sonal estate, as and when and during all such times, as any perso)i or persons beneficially interested in any real and per- sonal estate, under the trusts thereinafter declared thereof, 00 2 V. & B. 54. (e) 2 Swanst. 432. CHAP. XXVIII.] TRUSTS OF ACCUMULATION. 595 should he under the age of twenty-one years, adding all such investments to the testator's personal estate, in order to ac- cumulate the same ; and then followed, dispositions of the testator's real and personal estates, in favor of several per- sons, and their respective issue, successively. Lord Eldon held, that the trust for accumulation was bad, because it might last for ages, and that the gift of the property took effect exempt from the trust. In Palmer v. Holford, (/) stock was bequeathed to trustees. Case of Palmer upon trust, to raise an accumulated fund, and to assign and transfer such accumulated fund, unto the children of the testator's son, C. J. H., who should be living at the end of twenty-eight years, to be computed from the testator's decease, other than an eldest or only son. It was held, by Sir /. Leach, that the trust for accumulation was altogether void, and that the limitation of the stock and accumulated fund also failed, as the objects would not necessarily be such as were capable within the Rule against Perpetuities. In Vawdry v. Geddes, (g) also, a testatrix bequeathed the Case of produce of her residuary estate, in trust for her four sisters, Q^j/ex. for their lives, and directed, that, on their decease, the in- terest of their respective shares should, at the discretion of the executors, be applied in the maintenance, or accumulate for the benefit, of the children of each of the sisters so dying, until they should severally attain the age of twenty- tivo years ; and upon the said children attaining their res- pective ages of twenty-two years, they to be entitled to their mother's share of the principal ; with limitations-over, in the event of their deaths under twenty-two. Sir /. Leach, M. R., held, that the vesting of the children's interests was postponed to their age of twenty-two, and that the bequest extended to all the children, born before or after the death of the testatrix ; and, consequently, that the trust for the children was too remote and void, and, with it, also, the direction for accumulation. (/) 4Russ. 403. (g) 1 Russ. & My. 203. Q Q 2 596 TRUSTS OF ACCUMULATION. [CHAP. XXVIII. Case of Curtis T. Lukin. Case of Griffith V. Blunt. Effect of remoteness in trust of accumulation upon limita- tions of And, again, the same rule AVfis acted on in the case of Curtis V. Lukin, (//) where a testator be(|ueathcd leasehold property, to trustees, upon trust, to invest, and accm/iulate the rents, until the leases of certain other property bequeathed by the will, and the terms wherein had upwards of sixty years to run, had nearly expired; and, then, upon trust, to apply a competent part of such accumulations, in the re- newal of the leases secondly mentioned, for the benefit of the persons to whom the testator had given the same. Here, the trust of accumulation was to endure for a period, not, of a certainty, confined to the legal limits of perpetuity, and was, therefore, wholly void : and, accordingly, a bill, praying, that the trustees should be declared responsible for the fund which might have been realized by the accumulation of the rents, and an appropriation of such fund, towards the re- newal of the leases intended to be benefited by it, was dis- missed, with costs. And, once more, in the late case of Griffith v. Blunt, (i) there was a bequest to trustees, in trust, to accumulate the income, for all and every the children and child of T. R. D. and C. J. D., equally, the share or shares of such of them as should be a son or sons, to be an interest or interests vested in him or them at his or their age or respective ages of twenty-Jive years, and the share or shares of such of them as should be a daughter or daughters, to be an interest or interests vested in her or them at her or their age or respec- tive ages of twenty-Jive years, or day or respective days of marriage ; and it was held, that the gift (including, therefore, the trust for accumulation, of which, indeed, the gift alone consisted,) was altogether void, as too remote. The ej/lect of remoteness in a trust of accumulation, upon the limitations of the property, the income of which is to be accumulated, depends upon the general character of the dis- positions, as, either, made subject to a void direction for ac- (A) Reported in 6 Jur. 721, (i) 4 Beav. 252. CHAP. XXVIII.] TRUSTS OF ACCUMULATION. 597 cumulation substantively and independently engrafted upon property them, or, as limited to take effect after the termination of the prescribed period of accumulation, and out of the accu- mulated fund, as part of the subject-matter of the gift : but, into these points, it is not in order, here to enter, as they will more properly occur for consideration, when the general subject, of the consequences of limitations being void for remoteness, is discoursed upon. {Jc) (k) Vide infra, ch. 31, •598 CHAPTER XXIX. OF THE RULE AGAINST PERPETUITIES, AS IT AFFECTS THE GRANT AND RESERVATION OF RENTS, CONDITIONS, RIGHTS OF ENTRY, INTERESSE TERMINI, EASEMENTS, AND OTHER COMMON LAW INTERESTS. The doubt as to the applica- bility of the laws against remoteness to Common law interests. It may seem matter for surprise, that, at this advanced period of our jurisprudence, there should exist rights in pro- perty of any magnitude or importance, with reference to which, the operation of the laws against remoteness is in- volved in uncertainty, and even their applicability considered debateable. Such, however, is the case : and the fact is not the less remarkable, from the circumstance, that the origin of the rights in question is coeval with tlic earliest periods of our legal history, and that they were known to those who laid the very foundations of our jurisprudential system. The estates and interests alluded to are those which were, peculiarly, the creatures of the Common law, and still remain subjects of which its (Courts take principal cogni- zance ; such, for instance, as rents, rights of entry, condi- tions, the irderesse termini, rights of way, water, and light, and the like. These all were rights in property, sanctioned and protected long previously to the invention of those modi- fications of ownership and modes of settlement, with which the greater portion of this Treatise has been so familiar. And, as it is clear, that the doctrines of law, limiting the extent of Perpetuities, in the first place arose with reference lo the estates and interests constructed under the o})cration CHAP. XXIX.] GRANT AND RESKRVATION, &C. 599 of the h^tatutes of Uses and Wills, and that, to that circum- stance, it is owing, that the law of Perpetuity has been so httle discussed in respect to estates and interests arising by other means, (/) so, it is certain, that many of the objects and provisions, formerly effected by the creation and hmita- tion of the Common law rights above-mentioned, are now frequently carried out by means of the modern schemes of disposition, which are recommended by their superior aptitude and facility of adaptation. But, still, the question, as to the applicability of the laws against remoteness to rights and interests at Common law, is of more than speculative importance; and it becomes necessary, to determine this point upon settled principles of law, with the aid of whatever of authority our judicial records and authoritative legal commentaries may afford. In the first place, then, it may be observed, that, strictly Some of these speaking, some of these rights may themselves be considered their own as burthens impeding the free circulation of landed pro- Jive^offree'^"^' perty, and as, therefore, in their own nature, (without refe- circulation of 1 '^ ' ^ ... property : but rence to the mode and circumstances of their limitation,) legally sane- exposed to objection, {m) Such, for example, are rights of unobjection- way, light, and water, and, even, rents. But, this is a view, ^^^^' at the least, extravagant, and, certainly, incapable of being practically supported; for these rights are recognised by law, as a substantive species of property, differing only from land, in that it is incorporeal, but, with land, capable of being made the subject of sale, transfer, settlement, and all other legal modes of disposition, and embraced, too, as an independent object of all the laws which have been esta- blished to regulate rights in property. From the very nature of the case, the corporeal property in question is cloyged, when subjected to these rights, and its value may, therefore, be proportionably decreased, but its alienability is unaffected, and its aptness for commercial dealing remains. [I) :.{ Re. Pr. Com. Rep. 31. ^w) Soc 3 Re. Pr. Com. Rep. r,J, GOO GR^^NT AND llESEUVATION OF RENTS, [cHAP. XXIX. Rents, Ac, Tlic first tliiiif^ to be observed, in reference to the ques- to commence ^^o" ^^ ^^^^ possible renioteness of tlie Common law rights mfuturo. under consideration, is, that, when granted de novo, they may be limited to commence in futuro, {n) The grounds of the Common law prohibition, against limiting an estate of freehold to conmience in futuro, have no applicability what- ever to rents and other like interests. Thus, it has been well said : (o) — " If an original grant be made of a rent, to commence after the death of J. S., it is good : for this is not like the case of lands, where the livery must carry the freehold immediately, and where the abeyance, for want of distinguishing where the freehold is, may be of prejudice to the rights of others ; for if the freehold was to be granted in futuro, and a man had brought his prtz'cijJe against the grantor, after he had proceeded in it a considerable time, the writ might abate by the freehold's vesting in a stranger, by reason of a conveyance made by the grantor, before the writ brought. But the grant of a rent de novo is not attended with the like inconveniency ; for no man can have a precedent right to a thing which is originally created by the grant itself." This rule is equally applicable to limitations of the inie- resse termini, and to grants and reservations of conditions, casements, and other incorporeal hereditaments, {p) The validity, then, of rents, and other similar interests, limited to commence in futuro, being established, it is obvious, that they must have a tendency to remoteness, un- less there are rules of the Common law ajiplicable to them, which preclude their taking effect in contravention of the limits of perpetuity ; unless, in fact, it can be said, to be impossible to })ut a case of a Common law conveyance or grant, calculated to operate as a fraud on the Rule against Perpetuities, which would not be met in limine, and ren- («) 1 Prcst. Estates, 218. 247, (o) Gilb, Rents, 59. 26U. 3 I'rost. Abst. 48. F. C. R.629. ip) 2 Prcst. Abst. 146; 3 ib. 48. CHAP. XXIX.] CONDITIONS, EASEMENTS, &'C. 601 dered void, by one or other of the rules of the ancient Common law. One of these rules which mii^ht, probably, be deemed a Of the Com- *" . mon law rule preservative against undue remoteness in rents and other against a like interests, was that which disallowed limitations of future a'possibifity^°" estates upon double possibilities, or, as it was technically termed, on a possibility upon a possibility. Thus, it was said : — (q) " If a man gives lands, to two men and one woman, and the heirs of their three bodies begotten, in this case, they have several inheritances ; for, albeit it may be said, that the woman may, by possibility, marry both the men, one after another ; yet, first, she cannot marry them both in prcesenti, and the law will never intend a possibility upon a possibility, as, first to marry the one, and, then, to marry the other." And, so again, it was laid down, (r) that, "if a lease be made, for life, the remainder, to the right heirs of J. S., this is good, for, by common possibility, J. S. may die during the life of the tenant for life, but, if, at the time of the limitation, there be no such person as J. S., but not- withstanding, during the life of the tenant for hfe, J. S. is born and dieth, his heirs shall never take." And in reference to this last case, Mr. Fearne observes : [s] — " The possibility, on which the limitation is to take effect, is too remote, for it amounts to the concurrence of two several contingencies, not independent and collateral, but the one requiring the previous existence of the other, and yet, not necessarily arising out of it, viz., first, that such a person as J. S. should be born, which is ver}- uncertain, and, secondly, that he should die during the particular-estate, which is another uncertainty engrafted upon the former." And the same doctrine, as to the invalidity of future, estates depend- ing on a double possibility, has been, also, advanced, or referred to as operative, by other writers, (t) ((7) Co. Litt. 184 a. And see ib. 31b. 25 b. (s) C. R. 251. (r) 2 Rep. 51 b. And see 10 Rep. (<) 2 Bl. Com. 169, 170. 1 Sug. (102 GRANT AND RESERVATION OF RENTS, [ciIAP. XXIX. Nature of this This cloctrinc luul reference, chiefly, lo remainders, but itrprcscnr was, doubtless, eciually applicable to rents and other in- wcight. corporeal rights, commencing in futuro. It, clearly, had no connexion with the modern law of perpetuity, since, in all the cases by which lord Coke illustrates its operation, in reference to remainders, the event or possibility, whether common or double, must have happened previous to the determination of the particular-estate, (in those times always limited to a person in. esse,) or the remainder could not have taken effect. But, it is plain, that this doctrine never could wholly preclude questions as to remoteness, seeing that many cases might be put, of limitations, void under the law of perpetuity, which would, nevertheless, be free from the objection of depending upon adouble possibility. E. G., a grant of a rent, at the expiration of forty years, to A., and his heirs, would, clearly, be good, so far as respects the doctrine in question, while there can be as little doubt, that, (unless antecedently found void upon other grounds,) it contravenes the modern Rule against Perpetuities. Independently of these considerations, it is to be noted, that lord Nottingham observed, (?/) that there might be a possibility upon a possibility, and a contingency upon a contingency, was neither unnatural nor absurd in itself, and that he had known that rule often denied in Westminster Hall. And, so, Mr. Butler remarked, {v) the expression of a possibility upon a possibility must not be understood in too large a sense, for that a remainder, to the son of A. who first or alone shall attain twenty-one, was so far a possibility on a possibility, as it depended for its effect on the happen- ing of two possible events ; that A. should have an eldest or only son, and that such son should attain twenty-one ; but that the validity of such a remainder was, nevertheless, nncjuestionable. And, again, the Real Property Commis- Pow. 493, 494. Rand. Pcrp. 102. (n) Sec 3 Re. Pr. Com. Rep. 29. (Vu. Dig. Tit. xvi., v.. 2, ss. 4, 8. (v) Note to F. C. R. 251. 2 Ilarg. Jurid. Arg. 45. CHAP. XXIX.] CONDITIONS, EASEMENTS, 8iC. fi03 sioners, {vv) after quoting the sentiment of lord Nottingham, to the effect above-mentioned, observed, that modern deter- minations had established his lordship's opinion. Mr. Preston, again, (w) has ably shown, that the cases, by which lord Coke illustrates the doctrine under consideration, may be easily accoimted for, on principles of law, without resort- ing to the quaint and unintelligible terms of a possibility on a possibility ; and that they must be understood as confined to instances, in which the future estate is void, either, from the uncertainty of the person who is take, or, from the gift being to persons particularly designated, while, in point of fact, there is not any individual answering that description. This doctrine, then, while it embraced many limitations of future estates that would have been equally void under the modern perpetuity-rule, and also some that would have been not so, yet failed to meet others, which are clearly condemned by the latter, and, therefore, afforded no guar- antee against undue remoteness in Common law estates. At the same time, however, its effect, unquestionably, was, to deter donors and settlors from the grant and reservation of future rights, of a remote character, on account of the indefinite nature and oblique operation of the doctrine, and the consequent uncertainty, as to how far the dispositions in question might be affected by it. A more important argument which may, perhaps, be Whether the urged against the applicability of the laws of remoteness to permitted the grants of rents and other Common law interests, is, that grant of rents, etc. , to persons there are grounds for supposing, they cannot be limited unborn. or reserved to persons unborn. This, clearly, would go far towards determining all controversy on the subject, suppos- ing the authorities, capable of being adduced in its support, will bear the construction, necessary to be put upon them in order to establish the doctrine in question. This, how- ever, it is confidently presumed, will be found, upon exami- nation, not to be the case. {vv) 3 Rep. 29. {w) 1 Essay on Abst. 128, 129. 604 GRANT AND RESERVATION OF RENTS, [ciIAP. XXIX. It is laid down by Littleton, (x)—" No rent (which is pro- perly said a rent) may be reserved upon a feoffment, gift, or lease, but only to the feoffor, or to the donor, or to the lessor, or to their heirs, and in no manner, it may be reserved to any strange person. But if two joint-tenants make a lease, by deed indented, reserving to one of them, a certain yearly rent, this is good enough to him to whom the rent is reserved, for that he is privy to the lease, and not a stranger to the lease," &c. And, again, — " No entry nor re-entry may be reserved or given to any person, but only to the feoffor, or to the donor, or to the lessor, or to their heirs : and such re-entry cannot be given to any other person." From these passages, it may, possibly, be inferred, that rents cannot be reserved, except to a person in esse at the time of the reservation: and it may, perhaps, farther, be said, that grants of rents de novo are bound by the same rules. Both these inferences, however, seem open to just exception. In the first place, what is the case to which Littleton's rules have reference ? Let Lord Chief Baron Gilbert sup- ply the answer. After quoting the first of the above ex- tracts from Littleton, that learned writer says : (ij) — « And the reason of the rule is this ; because the rent is something paid by way of retribution for the land ; and, therefore, ought to be made to him from whom the land passes." And, so, Mr. Butler, in his note to the passage in Littleton, remarks, in nearly the same terms, (z) — " The principle which gave rise to this rule, is, that rent is considered as a retribution for the land, and is, therefore, payable to those who would otherwise have had the land." The rule in question, then, clearly, has reference only to the reservation of rents, on feoffments and conveyances in fee, or leases for lives or years : it, in fact, lays down a principle which is of (x) S. 346. (z) Note to Co. Litt. 2M a. (y) Treatise on Rents, 54. CHAP. XXIX.] CONDITIONS, EASEMENTS, &C. ^^5 the essence of a reservation ; and has no connexion with any question, as to the person to whom the rent is reserved being born or unborn. And, then, as to any inference, that the rents can only be reserved to persons in esse : this seems to be equally untenable, both because Littleton's position proves too much for it, and, because this, again, affirms more than is war- ranted by the former. The doctrine in Littleton establishes too much for this hypothesis. That doctrine declares, that the rent may, "in no manner be reserved to any strange person,^^ and that " such re-entry cannot be given to any other person ,•" whereas the inference in question admits the validity of a grant of a rent to any person in esse ; and, in so admitting, it is clearly right : both doctrines are good, but they have reference to wholly different cases. The premiss, then, is too strong for the conclusion ; and this, also, more extensive than the former. Again, it may be argued, that Littleton disallows the gi-ant of a rent to persons unborn. Let us hear, how far lord Coke agrees with any such interpretation of the doctrine. " Hereby," says the commentator, (a) " it may seem, that if a man make a feoffment, gift, or lease, that (omitting him- self) he may reserve a rent to his heirs. But Littleton is not so to be understood ; his meaning is, that either the feoffor, &c., may reserve the rent to himself only, or to him- self and his heirs. And yet it is holden in our books, that a man may make a feoffment in fee, reserving a rent of 40^. to the feoffor, for term of his life, and after his decease, a pound of comyn, to his heirs, that this is good." Here is a case supposed of a new and independent rent reserved to the heir, who may, of course, be a person unborn at the time of the reservation ; which is, nevertheless, declared to be valid. But, perhaps, it may be said, Littleton's doctrine decides, (a) Co. Litt. 213 b, 214 a. GOG GRANT AND RESERVATION OF RENTS, [cilAP. XXIX. that the rent will be good, if granted to a livhig person and his heirs. This, however, seems to be, again, a conclusion not warranted by the premises. The doctrine in question allows the reservation of a rent to the feojfo?-, donor, or les- sor, and his heirs : it nowhere embraces any other person, nor the heirs of any other person, although such person be tw esse. Besides, if the grant be allowed to be extended to the heirs, where will be the security sujjposed to be afforded by the circumstance of the immediate grantee being a person in esse ? Will not the heir be entitled, although the ancestor die prior to the commencement of the rent ? Moreover, as the event (upon the hypothesis) may be of any degree of re- moteness, may not the heir who eventually becomes entitled be a person unborn ? And, if so, is not the rent, in that case, practically granted to a person not m esse ? Thus, then, it seems impossible, to found upon the rule laid down by Litttleton, any hypothesis or inference, favor- able to the doctrine, that rents cannot be granted to persons unborn. This view is strongly corroborated by an old case in Ho- bart, {b) which is thus stated : — " Between Oates and Frith the case was, that the father being seised in fee, he and his son and heir apparent, by indenture, leased land unto the defendant, for years, to begin after the death of the father, rendering rent unto the son ; the father died; lessee entered ; and the rent was behind ; and the son distrained ; and the lessee brought an action of trespass, and had judgment : for the reservation of the rent w\is held utterly void; although the son did prove heir, it bettered not the case by event, but the reservation must have been to the heir or heirs of the lessor, by that name, for that is the only word of privity in law, requisite in reservation of rents and conditions, for the heir is in representation, in point of taking by inheritance, eddem persond cum antecessore. And (b) 130, Trin. 12 James. CHAP. XXIX.] CONDITIONS, EASEMENTS, &C. 607 though, in such a case, the rent could never be demanded by the father, yet the heir shall take it from the father, as inherent, and rising from the root of the reversion, which was his father's, and which he takes by descent from his father ; and so the rent itself, which was in the father, though not to demand, because it was not yet due, but yet it was so his, that he might release and discharge it by the word, ' rent,' though not by the word, ' action.' And so, note a difference between this case, where rent is reserved upon a lease of the ancestor's, to the heir first, and when the an- cestor makes a warranty for a like charge against his heirs, first omitting himself : all such grants are utterly void, for no man can charge his heir but as a part of himself, and, therefore, beginning with himself. And such charges stand naked, and have nothing that was first in the father, and comes from him to them, whereunto they may cleave, as a rent to a reversion, in the former cases." This case forms one of the authorities cited by lord Coke, in support of Littletons doctrine above commented on, and seems conclusively to show, that that doctrine had reference solely to the question of the reservation of rents, as respects the feoffor or lessor, and his heirs, and had no connexion whatever with the general subject of independent grants of rents, (c) Irrespectively of the authorities which have been con- Rents, &c., • 11 ^ • • ^ r 1 • ^ • • might be sidered, nothmg is to be lound in the ancient text-writers, granted at at all countenancing the notion, that rents cannot be granted to^persons^"^ to persons unborn ; and it is clear, that, if there be no objec- u'^^o'""- tion to such limitations of rents, similar grants of other Common law interests are equally valid. But, it is worthy of observation, that, even supposing the ^^^" '^ grants of rents, &c., doctrine in question were sustainable, it would by no means to persons exclude the necessity for the application of the laws against Common law. remoteness, seeing that a rent may be created in prcesenfi, ^ (c) The same, observations apply to tmgham, MSS. Huntley's case, Palm. 485 ; lord Not- et rule rainst 008 GRANT AND RESERVATION OF RENTS, [ciIAP. XXIX. remotcncsg not thereby ex- cluded. No rule of Common law, rendering unnecessary provisions against remoteness. and in favor of a person i/i esse, but sn])ject to divesting, sus- pending, and qualifying gifts and conditions, which, how- ever remote, would not be invahdated by any rule as to hmitations to persons unborn ; and which, therefore, clearly call for the application of the perpetuity-rule. That such gifts were not wholly unknown, is clear, even in the way of positive authority, as will appear from a case, in 12 Edw. 3, cited in Plowden, (d) which is thus stated; — *' It is held in 12 Edw. 3, that if one grants to another, a rent out of his land, in fee, upon condition, that if the grantee or any of his heirs die, his or their heir being within age, then, during such non-age, the rent shall cease, there, if the grantee dies, his heir being within age, his wife shall have dower, but execution shall cease during the non- age of the heir, but there it is put, that if the heir dies durins his non-anre, his wife shall not have dower of the rent, for there the rent was never leviable in the son, as it was in the father, and the rent would have been in esse at the full age of the heir, if he had lived so long, and so there the rent for a time may be in esse, and for a time shall not be in esse, because it was newly granted, and at the first commencement of a grant, a man may grant the thing, in what form he pleases, as a rent de novo may be granted, to commence after the death of J. S., but a rent, or a reversion, or other thing in esse, a man cannot make it to be in esse at one time, and to cease at another, nor grant it to another person, after the death of any one, or at a day to come, re- serviny: to himself an estate in the mean time." There seems, then, to be no rule of the Common law, operating to preclude the grant and reservation of rents, and other like interests, in a manner that would bring them within the operation of the laws against remoteness; no security, in fact, in the nature of the case, and inde})endent- ly of extrinsic rule, that the interests created will take effect (d) Pp. 155, 156. And see Fitz. Cru. Dig. tit. xxviii, ch. 2, s. 32. Dower, pi. 143 ; Jcnk. Cent. l,Ca. ti; cHAP. XXIX.] CONDITION^;, EASEMENTS, &C. 609 within the prescribed limits of perpetuity, or within any other reasonable period. It, further, seems undeniable, as has been already said, that there is nothing in the character of the interests of which we are speaking, to entitle it to exemption from the rules providing for the free circulation of property. As a consequence of these views, the conclu- sion seems inevitable, that the creation and reservation of Common law rights of property must be subject to the observance of the beneficial restrictions ascertained and fixed by the Rule against Perpetuities. For this conclusion, an abundance of professional opinion is to be adduced, from the works of writers on different branches of real property law. Lord Chief Baron Gilbert, after stating, in the passage already quoted, that rents granted de novo may be limited to commence in futuro, thus remarks {e) : — " Yet, qucere, at what distance of time such charges may be allowed to com- mence, whether it must not be after the lives of persons in esse ? for, if they be indefinite, they seem to have the same tendency to a perpetuity as any contingent remainders or Executory devises : and the bare affection of a perpetuity is sufficient to damn any conveyance." Again, Mr. Butler, (/) : — " If an estate be conveyed to A., and his heirs, to the use, that B. may receive a rent, for life, and after his decease, to the use, that his first and other sons, successively, and the heirs of thtir respective bodies, may receive the rent ; these, it maj^ be contended, are dis- tinct rents ; and, therefore, the rent to the second son may he considered too remote, as being a new rent, limited to take effect after an indefinite failure of the issue of the first son." And the same learned writer has elsewhere {g) remarked : — " If rents are created to commence at a future time, care must he tahen, that the period at which they are created to (e) Treatise on Rents, 59. s. iii, 4. (/) Note to Co. Litt. 271 b, n, 1, (g) Note to F. C. R. 528. R R 610 (jnANT AND I5KSKUVATION OK RENTS, [CHAP. XXIX. ('O)innence, dn not exceed the hounds for telnch the law allows Ihc in/ierilance of lands to be suspended.'" And, so, Mr. Sanders lias observed (h): — The principle of perpetuity is applicable to all future interests, as rents'- cliarc/e, and terms of years, which cannot be barred. A case t)cctuTed in Ireland, some few years ago. An estate having- been settled by will to uses in strict settlement, a rent- charae was limited to arise after the failure of issue of a person not taking any estate in the pr{)})erty settled, and upon argument it was determined by the ('ourt of K. B. in Ireland, that the limitation of the rent-charge was void as being too remote." And, again, — " It can scarcely be doubted, that, by analogy to the modern doctrine of pei*pe- tnities. the rights of entry upon Common law conditions, and the interesse termini, would be confined to the time allowed in cases of Executory devises and Springing Uses." And the Real Property Commissioners, while they af- firm, (/■) that the ancient (Jommon law did not restrain the creation of future interests to a given period, and that the time allowed for re-entries under conditions broken, and for grants of rents'-charge, or other incorporeal hereditaments, connncncing in fnttiro, and for creating the interesse termini, was indefinite, and that {k) interests at the Conmion law have never been considered to be subject to the rules against perpetuity, yet, admit, that Courts of justice are at present disposed to consider them as being, and that they are, in fact, clearly, within the j)olicy which the law has ad()])lcd with respect to perpetuities. (/) Having thus, then, ascertained, that there is no suffi- cient ground, for considering limitations of (Common law interests exempted from the observance of the laws against remoteness, it remains, to illustrate more particu- larly the nature and extent of the operation of those laws in reference to the species of property under consideration. (h) P^ssay on Uses and Trusts, 197. ositions and dis- tinctions, it is to be remarked, that, though the absence of authority which the learned reader will have noticed, must be considered as leaving their correctness open to question, yet, that it does not form any serious obstacle to their reception ; because the Rule against Perpetuities is to be treated as embodying a grand and fundamental principle of our jurisprudential code, which condemns all estates, rights, and interests, of whatever class, operating as a CHAP. XXIX.] CONDITIONS, EASEMENTS, &:C. 621 clog on the free alienation and transmission of property, unless, suis viribus, affording a preservative against undue remoteness ; and, therefore, the application of the per- petuity-rule must always be clear, without the support of express adjudication, unless, from the operation of extrinsic principles and doctrines of law, the aim of that rule be other- wise secured ; which, as we have seen, cannot be predicated of the Common law rights and interests, of which we have been treating. Before closing this branch of our subject, an observation The possibility must be made, with respect to one interest at the Common remaining in law, which cannot in any way be properly brought within grantor and his , , , , heirs, on grants the operation of the Rule against Perpetuities. The inte- in fee to cor- rest in question is the possibility of reverter, which, by con- struction of the Common law, abides in every grantor, and the representatives of every grantor, by whom property is conveyed in fee-simple to a corporation ; and by virtue of which, the law declares, that, on the disruption, dissolution, or extinction of the corporate body, such grantor, or his representatives, shall be entitled to re-enter. (/) The appli- cation of the rules of remoteness to such a case, is, clearly, impossible, seeing that there is a necessity to provide for the failure of the gift or grant, in the manner referred to ; and necessitas legem non hahet. (/) Co. Litt. 13. 1 Bl. Com. 484 ; 2 ib. 256, 257. porations. 622 (UIAPTER XXX. OF othi:k limitations affected nv riiK lu le against PERPETUITIES. In the present Chapter, it is j)ro]K)sed to consider the laws against remoteness, as they affect, 1st, Limitations after or subject to a trust or direction for payment of debts ; 2dly, Limitations after or su])ject to a trust for accumu- lation of income, for the renewal of unexpired leases; And, 3dly, Limitations of personal cliattels to go or descend as heir-looms, with real estate entailed in strict settlement. Section 1. Limitations after or subject to a trust or direction for 'payment of debts. When chaticl To arrive at a clear conception, as to the extent of the ["ea'tcTfor' ^ connexion of these limitations with the Rule against Per- raisinj^ fund to pc^ji^jgg^ it uiust be remembered, that provisions for pay- oi)jcrtinn of mcnt of dcbts may assume the form, either, of a chattel remoteness , . • i i i • i £p . i c cannot apply, uitcrcst co-cxtcusive With the object to be ettected, or, ot a fee-simple to be held and disposed of for the purpose of raising the necessary funds. In the former case, all limita- tions subsequent to the provision for debts take effect as remainders or executory limitations, expectant upon the CHAP. XXX.] LIMITATIONS AFTER TRUSTB, &C. 623 determination of the chattel interest, and arc not, therefore, (however objectionable on other grounds) within the scope of our present inquiries as to the operation of the perpetuity- rule. Where, however, the disposition to the trustees, absorbs ^J^j£7> j_ the whole fee, by reason of its being made to them and tations after ...-,.. trusts for pay- f heir heirs, or of there being an express or unphed direction ^ent of debts, for sale, the limitations after or subject to the trust for pay- pas/va/icPlegal ment of debts cannot take effect by way of remainder, but executory , . . estates, must operate, if at all, either, as Executory devises or Shifting Uses, or, as Trusts in equity. The question which now offers itself for consideration, therefore, is, whether the indefinite and unrestricted event of the general satisfaction of a per- son's debts be such as allows of an Executory devise or Shifting Use being limited upon it, within the provisions of the Rule against Perpetuities, {g) Considering the question upon strict principles of law, there is no difficulty in coming to the immediate conclusion, that limitations dependent upon the event alluded to are, as respects their conferring legal estates, wholly void for remote- ness. Were there any guarantee, in the nature of the case, for the happening of the contingency within the period of twenty-one years, (for, the trust not being supposed to be restricted to any life or lives, or to any particular period, no other term is admissible: and it may, perhaps, be ques- tionable, whether even the term of years can be taken as a substantive and independent period;) a general discharge of debts would, perhaps, not be an event of too remote expectancy, with reference to the Rule against Perpetuities. But, as it is clear, that, by acknowledgments or from con- tinuance of disability, a charge or debt may be kept alive or subsist for a longer period than twenty years, and, even, (in the case of successive acknowledgments) to an indefinite time, there is no security for the satisfaction or determina- tion of the trust within the allowed limits of remoteness. ig) See Pou'eU'% n. to F. Ex. Dev. 282- 299. 024 MMITATIOXS AFTKU TRUSTS [ciIAP. XXX. Limitations in tjuestion void as too remote. Difference between limitations It seems certain, therefore, that, if the trust for payment of debts be considered as creating a contingency, whereby the period at which the subsequent fee is to take effect in defeaz- ance of the fee vested in the trustees, must be ascertained, that j)eriod is Ualile to the objection of being too remote ; because the event of a general discharge of debts, and, con- sequently, the commencement of the future interest, being indefinite, it is uncertain, in point of time, whether it may not exceed the limits allowed by law for the creation of executory estates. (A) And, treating the question as one of the validity of the ulterior limitation as a legal Executory devise or Shifting Use, it is plain, that this is the only light in which the contingency in question can be regarded. For, (i) although it be true, that there is nothing more to confine the effect of the words, "from and after," or, " when," &c., in construction, to the time of the actual possessory enjoyment of the interest introduced by them, than there is in the common limitation of an estate to a man, for life, and from and after his decease, then, to another, &c. ; and that such words only denote the order or course of the several interests connected by them, expressing the priority or ])reference of the antecedent, and the poste- riority or subjection of the subsequent, in point of usufruc- tuary prevalence or effect, without })reventing the latter from a concurrent operation, in attaching immediately as vested and transferrible interests in a present subsisting fund ; yet, it is undeniable, that such reasonings do not go to the point of the capacity of the future limitation to take effect as a legal executory estate, the which can only be regarded in respect to the period or event whereat or whereon it is to arise, without reference to any immediate or anterior usufructuary vesting or enjoyment. Perhaps, no question could ever have been entertained upon this point, but for the important difference observable (A) PoweW% n. to F. Ex. Dcv. 296. (?) PoweWn n. to F. Ex. Dev. 299. SECT. I.] FOR PAYMENT OF DEBTS. 625 between executory estates, engrafted on a limitation in fee depending on for payment of debts, and similar estates limited upon a pure facdon of debts absolute continp-ency, either personal to the first taker, or ^^!^ *^°^® V* " •' ' ^ ' arise on other not. In the former case, a notion is apt to obtain, that the contingencies, debts must, at some period or other, be paid, and that, in the mean time, as to the whole property, subject to their satisfaction, and afterwards, as to that portion remaining, the person entitled under the future limitation is virtually the owner. In the other case, however, until the happen- ing of the contingency, it cannot be predicated, that the executory limitation will ever take effect at all, and there seems, therefore, a more palpable and tangible necessity for restricting it to proper bounds. But still, strict rule and just analogy do not admit of our regarding the legal opera- tion of the future limitation, in either of these cases, apart from the event on which it is expressed to arise, although, from the nature of one of them, it may happen, that the object of the future limitation is virtually entitled prior to the defeazance of the first estate. And the rule, here insisted upon, seems to hold equally, whether cir- although the quantum or amount of the debts be ascertained '^^^'^ heing and specified. For, as it has been properly said, {k) it is not ascertained the unascertained quantum of the charge, that renders the affects the limitation after payment of debts too remote, as an ex- ecutory or future interest, but the indefiniteness of the period or time of payment, (that is, of the commencement of the future interest,) that prevents its taking effect. The specification of the debts to be discharged advances not a step towards limiting the period of their being raised and paid : that remains equally unlimited and indefinite, whether the debts be ascertained, or not, and may equally, in point of time, exceed the period allowed by law for executory estates, and, consequently, is equally liable to the objection of remoteness. ih) Powelfs n. to F. Ex. Dev. 296, 297. S S 626 I.IMITA'I'IONS AFTEU TIIUSTS [ciIAP. XXX. Tlio inipossibilitv of a limitation after a trust for n;oneral payment of debts taking effect as a valid legal executory es- tate being thus, in point of principle, established, it remains to l)e seen, whether such limitations can be regarded as creatinti; present trusts in equity, to take effect subject to the general charg(^ t)f debts. To comprehend clearly the position of this question, it may be useful, to recall to mind the fact, that the complete ownership of land involves in our laws, first, the estate in the land itself, and, next, the right to take the profits ; or, according to more technical phraseology, the legal estate, and the use or beneficial enjoyment. (/) When the legal estate is vested in one person, and the beneficial enjoyment belongs to another, they have distinct and separate estates or interests ; l)ut those interests are, nevertheless, concurrent, and vest at the same moment. Where the legal estate is vested in trust, it is a rule of equity, that so much of the trust as is not disposed of remains in the alienor, as part of his former estate. It follows, therefore, that a conveyance or devise to trustees and their heirs, to pay debts, or to them, to sell and pay debts, passes the whole estate in law to the trustee, and part only of the trust ; that is, the trust to the extent of the particular purpose mentioned : and the residue of the trust will revert to the grantor, or the representatives of the devisor. This residue of the trust may, hoAvever, be dis- posed of, and the parties, in whose favor such disi)osition is made, will, in equity, be deemed the real owners, and may, at any time, come into Court, and desire the surplus of the estate, after satisfaction of the debts, to be conveyed to them. Upon the same principle, in the case of tenns created bv the owner of the inheritance for particular pur- poses, so much of the trust as is undisposed of results to the proprietor of the inheritance, and constitutes a part of that inheritance. The beneficial trust, it will be observed, is not (0 Sec Poweirs n. to F. Ex. Dev. 287, et acq. SECT. I.] FOR PAYMENT OF DEBTS. 627 to wait, for its taking effect, until the satisfaction of the debts to be paid, but confers a present subsisting interest in posses- sion, subject only to the execution of a trust prior in the order of dispositions, but not precedent in point of time. There being, therefore, a portion of the trust or beneficial owner- ship capable of immediate disposition, it is matter of no moment, what is the character of the trust which is to be satisfied before that portion can be ascertained, as that affects merely the question of the quantum of estate to be ulti- mately enjoyed by the beneficial owner, and not, of the time or period of its taking effect. It seems clear, therefore, that, assuming limitations after a trust for payment of debts, em- bracing the fee-simple, to be void, as giving legal executory estates, they are valid, as present trusts in equity, waiting, as to the fuller ascertainment of the quantum of estate to be affected by them, until the performance of an act extrinsic to such limitations, although connected with another con- current trust. Thus much, in point oi principle and analogy. The little Case of authority to be adduced will be found confirmatory of the f Xtr ^' suggestions of theory and rule. In Bagshaw v. Spencer, {m) a testator devised all his manors, lands, &c., to trustees, and their heirs, upon trust, that they should, out of the lands, &c., by the rents, issues, and profits, or by sale or mortgage of the whole, or so much as should be necessary, raise money for the payment of his debts, legacies, and funeral ' expenses, and then, as to one moiety, upon trust for and to the use of his nephew, T. B., for life, with remainders-over. Questions arising as to the construction of different limita- tions in the will, an incidental point was, whether the limi- tations, subsequent to the trust for payment of debts, (which, it was held, carried the whole fee to the trustees,) might be good by Executory devise. Lord Chancellor Hardwicke said, that the devisee could not lake a legal estate by Execu- (;«) 1 Ves. sr. 154. ss2 628 LIMITATION.^ AFTF.U TRUSTS [ciIAP. XXX. torv -devise, for that it zvas too remote, being after all debts indcliiiitely be paid, jv/iich might, In point of time, exceed a life or lives in being, or any other period alloioed by law : but his lordship took another view of the case, which sliowed, that, even snpposing the limitation was a good devise in law, the result would be equally unfavorable to the party insisting on its validity as a legal executory estate. The opinion of Lord Ilardwicke, therefore, cannot be treated as an express adjudication upon the point in question, although it is, doubtless, entided to all the weight which attaches to the observations of so profound an equity judge. Case of In the case of Sfronq v. Teatt, (n) a testator devised to Strong r.Teatt. , . ^ , , , . • , i his Wife and her heirs, certain real estate, to the use, intent, and purpose, that his said wife should receive, out of the lands, a yearly rent-charge, for her life, and to the further use and purpose, that his said wife might, by sale of such of the said lands thereby to her devised as should be necessary, raise so much money as might be sufficient to pay off and discharge such of the said debts as should not be paid off and discharged out of his personal estate ; and as to so much of the said lands and tenements as should remain unsold, to the use of the testator's son, A. M., for his life, and after his death, to the uses therein mentioned. Ejectment being brought, by persons claiming under some of the devises, against a i)arty deriving title under a conveyance from the testator's heir, a chief question was, whether certain property passed under the will, and, as incidental to that, another point which arose was, whether the devisees took legal estates. The Court of B. R., in Ireland, having held, that the property in question was included in the will, also deci- ded, that the uses were legal estates executed, subject to a charge for the payment of the testator's debts, (if any there were,) and a power in his widow to sell, for that purpose; and were good at law, though devised after an indefinite (n) 2 Burr. 910. SECT. I.] FOR PAYMENT OF DEBT?. 629 payment of such of the testator's debts as should not be dis- charged by his personal estate. A writ of error being brought in B. R., in England, it is stated to have been elaborately argued, upon the question, whether the parties bringing the ejectment had any legal estate : it being con- tended, on the part of the defendant in ejectment, that the widow took the legal fee, which descended, it was said, to her eldest son and heir, under the conveyance from whom the defendant claimed ; or that, if she did not, the devises thereof after payment of debts generally were executory and • too remote. The judgment of the Court in Ireland was re- versed upon the point as to the property in question passing by the will, and it, therefore, became unnecessary to con- sider the question of the nature of the estates taken by the devisees. Lord Mansfield, C. J., however, took occasion to draw a distinction between the case under consideration and that of Bagshaio v. Spencer, before stated, which had been cited in the course of the argument, in opposition to the legal right of the claimants under the will, observing that, in the latter case, it was not necessary to decide on the nature of tlie estates taken by the devisees, as, even should it be held, that they took valid legal estates, such a construc- tion would not, under the particular circumstances of that case, assist the title of those by whom it was urged. His lordship, also, observed, that, though he gave no sort of opinion upon the case before him, as to this point, it might be worth considering, whether the devise were not upon a double contingency : viz., if there should be debts, then, the testator's wife to have the estate for payment of them : if no debts, then, those in remainder to take. A further writ of error was brought in the House of Lords : but their lord- ships confined the counsel, to speak to the point of the estates in question being intended to pass by the devise, and, the judges being of opinion in the negative, the judgment of reversal was affirmed, without any discussion upon the question of the nature of the interests limited to the devisees. 630 I^OIITATIONS AFTER TRUSTS [ciIAP. XXX. The bearing ol Lord Manajicld's observation in this case, as it has been properly remarked, (o) is sufficient to show, that the (Courts would be strongly inclined to support limitations after a trust for payment of debts on any admissible ground. It is, also, to be observed, that the reversal of the judgment of the Irish court did not diminish or affect the authority of its opinion, in respect to the operation of the limitations in the will after payment of debts. Caseofj««t.vv. In another case, the trust-estate hmited for payment of Say and Seal. ^^^^^^ ^^^^^ ^^-^^^ ^^ l^^ confiued to a life in being, and there was, therefore, no objection to the subsequent limitations creating legal interests ; as, it was decided, they did. The case alluded to is that of lady Jones v. lord Say and Seal, (/)) where a testatrix devised certain real estates, to trustees, and their heirs, upon trust and in confidence, in the first place, out of the rents and profits thereof, to pay the several lega- cies, devises, and bequests, thereinafter mentioned, and, then, (after giving several annuities for life,) she appointed her trustees to pay all the rest and residue of the rents and profits of the premises, into the proper hands of her daughter, C. F., or as she, by any writing, &c., should appoint, for and during the term of her natural life ; and after her, (the said daughter's) decease, the trustees to stand seised of the premises, to the use of the heirs of the body of the said dauo-hter, C. F., severally and successively, as therein men- tioned, with remainders-over. A question arising upon a recovery suffered by C. F. and her husband, it was to be decided, whether the limitations to the former, for life, and after her decease, to the heirs of her body, were of such a character, as to unite under the Rule in Shelley^ case. Lord Chancellor King held, that the use was executed in the trustees and their heirs for the life of C. F., and that she had only a trust in the surplus rents and profits, during her life ; but that, by the subsequent Avords, viz., (o) Po«f//'s n. to F. Ex. Dcv. 297. (/>) 2 Bro. Pari. Ca. 4.'i8. SECT. I.J FOR PAYMENT OF DE15TS. 631 that the trustees should stand seised to the use of the heirs of the body of C. F., subject to the payment of the annui- ties, &c., the uses were executed in the persons entitled to take by virtue thereof, chargeable with the payment of the annuities, and, therefore, that those different interests could not unite, so as to create an estate-tail, by operation of law, in the ancestor. No question of remoteness, it will be per- ceived, arose in this case ; but it may, perhaps, be con- sidered, as indicating a disposition, to limit the duration of the estate of trustees for particular purposes, and to give effect to ulterior limitations as legal interests, when an inten- tion appears in favor of the latter construction, and violence is not thereby done to the proper effect of the limitation to the trustees, as necessarily excluding such a construction. Again, in another case, {q) a testator, having, upon the marriage of his daughters, demised an estate, to trustees, upon trusts for raising certain sums, which were settled upon the daughters and their children, by his will, after charging the estate with other sums, to be settled upon the same trusts, with portions for sons, and with a further sum, in discharge of a mortgage of another estate, devised it unto and to the use of other trustees, upon trust, from time to time, to receive the rents and profits, and to invest the same in the purchase of stock, so as to accumulate and form a fund for the payment of the aforcsiiid charges ; " and after the same should have been fully raised and paid," in trust, U) stand possessed of the property, upon the trusts in the will mentioned. A bill was filed by the testator's heir, for the purpose of disputing the validity of the dispositions in the will ; and, after argument, Graham, B., sitting for Sir Thomas Plumer, M. R., observed, as follows : — " It has been contended, that the plaintiff is entitled as heir-at-law, be- cause there is a trust for certain accumulations which look to an indefinite period, and no interest is given to any (7) Bacuu V. Proctor, 1 Turn. & Russ. 31. And see 1 Jaim. Pow. Dov, 419. 632 LIMITATIONS AFTER TRUSTS [ciIAP. XXX. The question, whether a devise in fee for payment of debts ean be construed as a charge merely upon the property, con- sidered. person till after the accumulation is determined. That is not my view of the case : my opinion is, that the testator's intention was. simply, to provide a fund for some specific debts and charges, and, then, that the persons entitled should take, lie had no intention of suspending the beneficial interest, in the meantime till the debts and charges should be paid. All the authorities show, that, where an estate is given to trustees to [)ay debts, and then to a person desig- nated, the person designated takes at once subject to the debts." In this case, it will be observed, there could be no question, as to the limitations, subsequent to the trust for paying off the charges, passing valid legal executory estates, since it was clear, that the testator intended the legal fee still to reside in the trustees, or, at least, that he did not expressly limit it over after the satisfaction of the first trust. But the case is, nevertheless, valuable, as showing the dis- position of the Courts, to treat provisions for debts as, in fact, mere charges upon the property out of which they are made. These authorities give rise to two or three reflections, which, it seems necessary to introduce, in order to the com- pleteness of our inquiries on this head. 1st. The opinion of the Irish Court of B. R., in the case o{ Strong V. Teatt, above noticed, and the decision in Bacon V. Proctor, suggest the point, as to a trust for payment of debts, though ostensibly carrying a fee to the trustees, being regarded in the light of a charge only upon the property, with ajwiver of sale in the trustees for satisfaction of the debts. It is certainly true, that, so regarded, there would be no ob- jection to the limitations subject to the charge, on the score of remoteness, as, upon that construction, they take effect at once, although liable to be set aside by an exercise of the power, as in the ordinary case of an immediate devise, subject to a charge of debts. But the objection to this constrnctioa consists in its total disregard of the form and proper legal eflect of the limitation to the trustees : the one being a SEOT. I.] FOR PAYMENT OF BEBTS'. 633 direct gift of the estate ; and the other vesting the entii-e ownership of the property in the trustees, without reference to the purpose intended to be effected by the Umitation. Doubtless, the construction of a charge, with an accompany- ing power, fully answers the object of the gift, as, thereby, every thing can be effected, which is contemplated by a direct limitation of the estate. But, it seems a great stretch of the judicial functions, to disregard the established rules of law, from what is, at best, but an equitable though laud- able consideration of the real designs of the author of the limitations, by sustaining and harmonizing his general dis- positive scheme. Nor, when the case of Strong v. Teatt is closely considered, can it be said to form any direct autho- rity for the construction under consideration. The wording of the limitations, in that case, was of a peculiar character, and abundantly sufficient to warrant a Court of law, anxious to uphold a testator's dispositions, in putting the construc- tion upon them there adopted. There was no devise of the use to the trustee, except in regard to or in connexion with the particular purposes which the testator had in view in the limitation to her, and then, only as to such of the devised property as it should be necessary to dispose of, in order to answer such purposes. As to the residue of the propei'ty, in respect to which no use had been declared, the testator proceeded to limit uses ; and it is observable, that the very same words (" to the use intent and purpose,") by which the testator reserved an annuity for the trustee, who was his widow, he used in declaring the trust or power of sale, being words, frequently in use for limiting or reserving estates or interests not embracing the whole fee, or not extending to the fee of the whole property devised. Strong v. Teatt, therefore, cannot be treated as an authority in favor of any such principle of construction as that suggested, in the case of limitations of less ambiguous import, and possessing more of the character of an express devise of the estate. We have already seen, that the peculiar nature of the devise in Bacon v. Proctor, does not admit of that case being adduced 634 LIMITATIONS AFTEIl THUSTS [CIIAP. XXX. iis an adjudication favorable to the construction under consideration. Perhaps, some countenance is afforded to the doctrine by the case of Hawker v. Hawker, (r) in which, a testator by his will devised all his real estates in several parishes, to trustees, their heirs and assigns for ever, upon trust, as soon as convenient, after his decease, to sell his estate at IL, and, with the money produced by the sale, to pay his debts ; and, in case the fund should not be sufiicient, then, as to his estate at F., upon trust, to sell that also, in order to make good the deficiency ; but in case it should not be necessary, then, as to his estate at F., and his other remaining estates, in trust, to receive the rents and ])rofils, till his daughter came of age, and, then, to pay suth of the rents and })rofits as had not been apphed to her maintenance and education, together with the surplus money arising from the sale of his estate at F., if it should be sold, to his daughter, upon coming of age, and, from that period, to the use of the trustees, for the life of his daughter, and after her death, to the use of her children ; and by a codicil to his will, in which the testator made an alteration as to the trustees, he devised to the new trustees therein named, and to the survivors and survivor of them, and the heirs of such survivor, " such estates as aforesaid, in trust as aforesaid." The estate at II., when sold, proved sufficient to pay the tes- tator's debts. On a case from Chancery, it was held, in B. R., that the trustees, and the survivors and survivor of them, and the heirs of the survivor, took only an interest for the life of the daughter, in the remaining estates at F. and elsewhere. The line of argument adopted at the bar, and which must be presumed to have influenced the Court, was, that the words in the will, as to the sale of F., were conditional, as the testator only directed a sale, in case the estate at II. should not })rove sufficient; and that he ex- pressly contemplated the jirobability of no such necessity (r; 3 B. N- Aid 537, SECT. I.] FOR PAYMENT OF DEBTS, 635 existing; and, therefore, in the event of its not being required, gave the property to the same uses as the other estates ; and that, until the necessity arose, the estate should pass to the persons, for whom the uses were declared ; a power of sale only immediately vesting in the trustees, as in the case of a devise, that land should be sold by executors. This, it will be ob- served, was not an adjudication upon the simple question, whether every devise in trust for payment of debts creates any thing more than a charge, with a power to sell, but, whether the difference in the trusts declared of the estate at F., from those expressed as to the H. estate, was not such as to render it clear, the testator intended, in regard to the former, to invest the trustees with a power only. The real question would have occurred for consideration, had a sale not taken place, or had not been necessary, of the estate at H. But the decision, doubtless, evinces a disposition, to construe trusts of this kind, rather, in the light of powers or authori- ties, than, of express limitations of the estate. And, if the fact, that the trust for sale of the F. estate was made con- tingent on the circumstance of a necessity existing for its exercise, had any weight with the Court, it becomes a serious question, whether every trust for sale for payment of debts may not be so considered, for all such trusts arc created only as auxiliary to the personal estate, and are also intended to affect the property subject to them, only so far as the fulfilment of that office may require. But, too much reliance cannot be placed upon this conjecture, the reasons for the opinion of the Court not being given. In fine, it must be admitted, that, besides the deficiency The doctrine, , . , , . . • ' j^i 1 ^ ^ that a devise in in authority, the doctrine in question is attended by so fee for pay- much of theoretical difficulty, that nothing but an exclusive ™^o"„\ °'!^*^''^*^ reo;ard for convenience could ever induce a Court of law to charge, " ^ , insupportable. give it the sanction of a settled rule. 2. The above-quoted observation of lord Mansfield, in Whether limi- p ,-, ,Ti 1 • 1 tations in the case oi Strong v. leatt, suggests tlie (juestion, as to hov^^ question can far trusts for payment of debts and gifts subject to them may ^g ^^"s with be regarded in the light of limitations on douljle contingencies: flouble con. " tingcncics. 636 LIMITATION'S AFTKU TRUSTS [cilAP. XXX. as, if there are any deljts, or, in case of a deficiency of personal assets to discharge debts, to the trustee ; if no debts, or if no deficiency of assets, then, to the persons who are to take beneficially. Such a construction has the advantage of not being at variance with any established rule of law, as is (appa- rently) that just disposed of. But it seems inadequate for any effective check to the stringent operation of the perpetuity- rule upon the class of limitations under consideration. For, how could the alternative of there being no debts, be said to be realized, if there were any, the smallest, unsatisfied obligation, embraced by the provision ? And if the other alternative have any effect, however inconsiderable, where is the preventive of the violation of the Rule against Per- petuities, so far as respects the validity of the ulterior limi- tations, as passing legal estates ? or, if the contingency were a deficiency of personal estate, would not the smallest in- adequacy suffice to give effect to the provision for debts, and, therefore, to leave in full force the operation of the perpe- tuity-rule, as to the legal effect of the ulterior limitations ? : although, by the construction in (question, they might take efiect as legal estates, if there should be a sufficiency of assets ; and that, (as it should seem) without regard to such fact being ascertained immediately on the decease of the testator. This doctrine, Thcsc Considerations show, that the construction of a pro- if sustainable, ..„,,,. i i- • • i i i an insuiHcicnt vision for debts being merely a limitation on a double contin- obJcaLn^of gency , would but palliate the inconvenience of the strict rule, remoteness of -^yi^Jcli Otherwise denies validity to the ulterior limitations limitationsafter "^ devises in fee as legal cxccutory cstatcs. As before observed, however, debts.^""'^" ° so far as it may serve that end, there seems no antecedent objection to it, upon the ground of any rule of law : the con- tingency contemplated is one which must be ascertained (either in fact, or by eventual relation,) at the death of the testator; and it must, according as it happens or not, at that time give effect to or intercept the limitations subsequent to the provision for debts, as valid estates at law. Hut, it will be remembered, that this view is entirely conjectural. SECT. I.] FOR PAYMENT OF DEBTS. 637 and destitute of any considerable judicial sanction ; although it is recommended by that manifest convenience, to which, the present temper of our Courts is not indisposed to give attention. 3. A third observation occurs with respect to this class of Circumstance ... of realty being limitations, not immediately connected with the authorities rendered which have been noticed. It is, that the character of a charge ^^^^n ^^^^^^ ^ or trust for payment of debts on real estate is much altered, J?"!^^ *." ^''^'^* i -^ limitations and its importance diminished, by the statute, 3 & 4 Gul. 4, subsequent to 111 r 1 provisions for c. 104, rendering the freehold and copyhold estates ot de- their satisfac- ceased persons, assets for the payment of their debts of *'*^"" every description. An argument might be derived from this change of the law, to the effect, that, since all debts are legally payable out of real estate, any trust or provision for their satisfaction is, in fact, nugatory, so far as the liabi- lity of such estate to those debts is concerned; that every devise of property, although not expressly referring to or providing for debts, is, in reality, subject to their discharge, by mere operation of law, and cannot, therefore, have com- plete effect, until that discharge takes place; and that, consequently, to render a limitation void, as an estate at law, for remoteness, by reason of its being expressly post- poned to a provision for debts embracing the fee-simple, is to retain the shadow of a distinction, while the substance no longer exists. There seems much weight in these considerations ; though But this no it may, perhaps, be doubted, whether they are, at best, of arence. computation is to be made from the death of the testator. Section III. Limitations of personal chattels to go or descend as heir- looms, with real estate entailed in strict settlement. In order to a clear conception of the nature of the limita- Explanation tions here alluded to, the student must be apprised, that, on these limita^ ° settlements of family-estates, in the usual mode of entail, it *'°"^' not unfrequently happens, that there are certain chattels personal, such as, furniture, plate, pictures, &c., previously held with the property, which, it is desired, should be trans- mitted and enjoyed togetherwith the settled estates, as appur- tenant to these. To effect this purpose, it is sometimes pro- vided, by a clause in the settlement, that these articles shall be held by the trustees, to whom they are limited, in trust for the persons for the time being entitled under the limita- tions of the real estate, or, according to technical phraseology, as heir-looms. Under such a trust, it is plain, the chattels vest absolutely in the person first becoming tenant in tail by virtue of the settlement ; {u) that, as has been before (m) Foley v. Burnell, 1 Bro. C. C. Carr v. lord Errol, 14 Ves. 478. 274. Vaughan v. Bursleni, 3 ib. 10 T T 2 G44 LIMITATIONS! OF CHATTELS [OUAP. XXX. Intention generally is, that chattels shall not vest ahsolutfly in tenant in tail dying un- der twenty- one without issue. Effect of, " as observed, being always the effect of a limitation of person- alty, directly or indirectly by words which would create an estate-tail in realty. Upon the assumption, therefore, that the limitations of the settled estates arc valid, there can be no objection, in point of remoteness, to gifts of chattels of the kind supposed. And it is to be observed, that, although the trust be, for the persons for the time being m possession, under the limi- tations of the realty, the title of the tenant in tail, to the absolute interest in the chattels, will, not depend on his actually coming into j)ossession of the property, by surviving prior tenants for life ; for, as lord Loughborough once re- marked, (r) if the chattels do not vest, in the case of an infant tenant in tail dying before his estate becomes posses- sory, neither can they, in that of a son attaining twenty- one in the life of the tenant for life ; and the testator or settlor could have had no idea of a case, in which the real estate might be sold, and yet the chattels remain. But, it is generally desired, that no tenant in tail shall ac(pnre the absolute interest in the chattels, unless he lives to enjoy full power over the settled estates, or his remainder in tail therein, (which is not the case until his attainment of the age of twenty-one,) or unless he dies, without acquiring that power, leaving issue inheritable to the entail. The consequence of not providing for the contingency of the tenant in tail not attaining twenty-one, or of his death under twenty-one without issue, is, that the enjoyment of the settled property and the accompanying chattels may be severed at an unnecessarily early period ; as, supposing the chattels to be absolutely vested in the tenant in tail on his birth, they will belong to his personal representative after his death, (without reference to his leaving issue surviving, , or not,) who will, in all probability, be a person unconnected with the succession to the landed property. To meet this contingency, it is frequently provided, that («) In Foley v. Burnell, ubi supra. SECT. III.] - AS HEIR-LOOMS. - 645 the chattels shall, as far as the rules of ^ law and equitij ivill far as the rules permit, be held upon the same trusts as those declared of equity will the setded property. By virtue of this provision, a setdc- fh^p'urpote ment of the chattels, similar to that of the real estate, may be effectuated, though not to the full extent permitted by the Rule against Perpetuities, yet, so as to carry out the in- tention of linking together the real and personal estate, to a convenient extent allowed by law. (w) It follows, therefore, that, in the event of the death of the first tenant in tail under twenty-one ivithout leaving issue, the property will go over to the next succeeding tenant in tail, and, so on, to the others, till one of them attains twenty-one, or dies under that age leaving issue ; as the event of a tenant in tail living to the age of twenty-one can never, according to the usual mode of settlements, exceed the period of lives in being and twenty- one years ; although, of course, if, by reason of the parent of the tenant in tail being unborn, or otherwise, the birth of such tenant in tail may be postponed beyond a life in being, no limitation, to take effect in the event of his not attainjpg majority, can be allowed. It has, indeed, been said, {x) that chattels, directed to go as heir-looms with an estate, ^' as far as the rules of law and equity will permit," vest in the first tenant in tail who comes in esse ; but the manifest intent and just effect of those words, and the general usage and opinions of prac- titioners, alike lead to a contrary conclusion. To avoid doubt upon this point, an express provision is Express pro- not uncommonly met with, to the effect, that the chattels chattel's ^iTall shall not, for the purpose of transmission to representatives, "''* Y'^^*', . ^ ^ ^ ' absolutely in vest absolutely in any person made tenant in tail by purchase tenant in tail of the settled estates, unless or until su<;h ferso^i shall attain the attain twenty- age of twenty-one years, or die under that age leaving issue in- ^^Q^xlmt ase heritable to the entail. This provision, it is manifest, offers leaving issue. (w) See Newcastle v. Lincoln, 12 5 Madd. 337. Ves. 218; Southampton y. Hertford, (x) See Vaughan v. Burslem, ttbi 2 Vc5. 55 B. 63 ; Gower v. Grosvenor, supra ; Lewin on Trusts, 72. (un LIMITATIONS OF CHATTELS [fllAP. XX.V. Limitations of chattels to go as heir-looms, which are partially ex- posed to objection of remoteness. no violation to the Rule against Perpetuities, as connected with the ordinary series of limitations in settlements, for, as the children of persons in esse are generally made tenants in tail, any limitation, contemplating the contingency of their deaths under twenty-one, must be valid ; although, as was above noticed, if the tenants in tail will not necessarily be born (if at all) at the expiration of lives in being, any limi- tation, providing for the event of their deaths under twenty- one, must be void, as too remote. It will be observed, that this provision merely meets the case of a tenant in tail, bt/ purchase, dying under twenty- one, and not, of such a contingency happening with respect to an heir in tail, claiming under a tenant in tail having or pot having attained twenty-one ; and in the event, there- fore, of such tenant in tail by purchase dying under twenty- one, leaving issue, the chattels would vest absolutely in the heir in tail, although he might die in his minority : and it is needless to observe, that any provision, applicable to the case of a tenant in tail, by descent, dying under twenty-one, would be void, as too remote, that contingency not neces- sarily happening, if at all, within the prescribed limits. Thus far, we have considered the modes in which chattels personal may be limited as heir-looms, without any contra- vention of the provisions of the perpetuity-rule. Resort has, at times, however, been had to this kind of settlement of chattels, in apparent reference to the legally established distinctions with respect to it, but in a manner to occasion an infringement of the Rule against Perpetuities. The most frequent instances of attempts of this kind are to be found in those cases, where it is desired to limit plate, &c., so that it may attend the descent of a title or dignity, and may be enjoyed in succession by the inheritors of it. In such cases, it seems, that the operation of the pcrpotuity-rule is not, wholly to vitiate the trust declared of the chattels, as in the case of a class of persons taking concurrently ; where, if the gift be bad as to some, on the ground of perpetuity, it is void SECT. III.] AS HEIU-LOOMS. 647 as to all, since it is impossible to determine, what shares, those members of the class, as to whom the gift might have been good, are to take ; but the effect of remoteness attaching to any of the remoter links in a chain of successive trusts, of the class under consideration, is, for the most part, to invali- date all subsequent to the first, which takes effect ; as it must necessarily happen, that the person firet becoming interested is a valid object of the limitation, or it would be void ab initio. Thus, in the case of lord Deerhurst v. duke of St. At- Case of bans, (i/) formerly noticed, {z) lord V. bequeathed to trus- Coverury. tees, all his household goods, furniture, pictures, books, linen, &c., u})0n trust for his wife, for her life, and after her death, for his son, A. B., for his life, and upon the decease of the survivor of the wife and son, in trust for such person as should from time to time be lord V., it being the testator's will, that the goods, &c., after the decease of his wife, should, from time to time, go and be held and enjoyed with the title of the family, as far as the rules of law and equity would permit. The title of lord V. descended on the testa- tor's son, A. B., on whose death, it devolved upon his son, (who was living at the decease of the testator,) and upon the death of the grandson, it descended to the testator's great- grandson, who was born after the testator's decease. A dispute as to the title to the chattels arose, between the personal representatives of the grandson and those of the great-grandson. Sir /. Leach, V. C, held, that, as, by the rules of law of equity, every person living at the death of the testator, who should become a lord V., might be limited to the use and enjoyment only, with remainder to the next successor, the son and grandson of the testator were limited to the use and enjoyment only ; but that the great-grandson, not being in esse at the testator's death, took an absolute in- terest, which was vested in his personal representative. The (y) 5 Madd. 232; S. C. sub mm. Bligh, N. S., 547. Tolkmache v. carl of Coventry, 8 (z) Vide supra, \^. 467. C48 IMITATIONS OF CHATTELS [cHAP. XXX. case coming ultimately l)ctbrc the House of Lords, it was held, that it was not allowable to rely upon the fact of the individual, who first became entitled under the limitation for the lord V. for the time being, happening to be a person in esse at the death of the testator, and, that, as the event might have been otherwise, no ulterior gift to the succeeding lord V. could be valid, and, consequently, that the grandson became absolutely entitled to the chattels. Observations In this casc, it will be perceived, that the words, " as far XL v!''*" as the rules of law and equity would permit," could not be Cocentnj. allowed their usual effect, of validating the trust of the chattels to a reasonable extent permitted by law, as there were no antecedent limitations, in favor of persons expressly defined, within the range of perpetuity, in reference to which, the trust might take effect, in the event of the deaths of any of the individuals first taking under it, within the prescribed limits of remoteness. As Lord Brougham remarked, on the appeal, — " A limitation to be supported, must be definite and certain to the man, or to the peer as an individual : it is not allowable to contend that, at one time and for one purpose, it is to the man, and, for another time and purpose, to the peer : the estate must be certain, so as within the time to vest in the person described, either in his natural or in his politic capacity ; in the politic capacity, there was no such lord V. in esse, in whom the estate would within that time certainly vest." The rules of law and equity did not permit the limitation of the chattels to take effect in favor of any other than the person first answering the de- scription of lord v., as it was not certain, that the next suc- cessor to the title would be an individual capable of taking within the limits of the Rule against Perpetuities; but, as to the ^cx^on first taking, or answering the description requi- site to take, under the gift to the successive inheritors of the dignity, it was clear, that he would be capable, inasmuch as, if there Avcre any succession at all to the barony, such per- son would be ascertained at the decease of the survivor of SECT. III.] AS IIEIR-LOOMS. 649 the testator's wife and son, (to whom express Hfe-Intcrests were previously limited) when the hmitation in question was to take effect. When, however, the gift in favor of the line of inheritors to the title, is not preceded by any express limitation to persons in esse, but constitutes the first or only disposition, there seems to be considerable ground for supposing, that the absolute interest will not vest in the first taker, but that the intention will be strictly effectuated, as regards such person, by confining him to a life-interest, and allowing the absolute ownership to pass to the next successor; who must, neces- sarily, be a valid object of gift, since he will take on the decease of a person who (upon the hypothesis) is in esse, (a) Another and somewhat different instance of a remote Case of trust of chattels to descend as heir-looms occurred in the illllZ'L''' recent case of Ibbetson v. Ihhetson, (b) where a testator devised his reversion in fee, expectant on his decease without issue male, in a mansion-house and estates at D., to his brother, Sir C. I., for life, with remainder, to trustees, to preserve contingent remainders, with remainder, to the first son of the said Sir C. L, in tail-male, with divers remainders-over ; and the testator bequeathed to trustees, all his plate, pic- tures, books, and household furniture, in and about his said mansion-house at D., upon trust, to permit the same to be used and enjoyed by the person and persons who for the time being should be entitled to the possession of his man- sion, under or by virtue of the settlement made upon his marriage, or of the limitations contained in his will, until a tenant in tail of the age of twenty-one years should be in possession of his mansion-house; and, then, the plate, pic- tures, &c., were to go and belong to such tenant in tail. After the decease of Sir C. I., a bill was filed against his eldest son and the personal representatives of the testator, charging, that the trust declared by the will of the plate, (a) Vide Bacon v. Proctor, 1 Turn. that case, supra, p. 472. & Russ. 31 ; and observations upon (b) 10 Sim. 495. 650 LIMITATIONS OK CHATTELS [ciIAP. XXX. pictures. Sec, in and about the mansion-house at U., were void for remoteness, and that the chattels, therefore, constituted part of the testator's residuary personal estate, and ought to be applied to the payment of his debts. It was insisted, in support of the bequest, that the limitation was necessarily divisible into two parts, and that, though a gift to the first person, who should be tenant in tail in possession and attain twenty- one, might be void for remoteness, yet, that the disposition of the property during the intervening period, to the person for the time Ijeing in possession of the mansion-house, was valid, and that, if the existence of the tenant in tail, and his attainment of twenty-one, were events too remote for the law to contem])late, then, the gift of the property until those events happened, was equivalent to a gift forever. Itwas, also, said, that a limitation of chattels, to be enjoyed by the suc- cessive occu})ants of settled estates, was one, which, though not capable of having full effect given to it, would be executed gy-pres ; upon which construction, the property is given to the first tenant for life, and then, to the first tenant in tail absolutely. It was, further, urged, in favor of the disposition of the chattels contained in the will, that, where there is a trust in favor of a class of persons who are to take successively, the individuals of that class will take, unless there miglit have been in the series of limitations, other persons who might have come in before them, and with respect to whom, the limitation w^ould have been too re- mote; which was not the position of the eldest son of Sir C. I. Sir L. Shachvell, however, after remarking upon the absence of any qualifying words, such as, " as far as the rules of law and equity will permit," said, that the trust was so expressed, that, if it were literally carried into effect, it might have happened, that no tenant in tail of the age of twenty-one years might have come into possession for two centuries, and, consequently, that the absolute interest would not have vested during that time ; and the fact, that a tenant in tail of the age of twenty-one years had actually become pos- SECT. III.] AS HEIR-LOOMS. 651 sessed of the mansion-house, within the space of twenty-one years from the death of the testator, was immaterial, as the gift must have been so hmited as, of necessity, to vest the absolute interest in some one within the period allowed by law : and the learned judge decided, that, so far as the gift was framed to take effect after the death of Sir C. I., it was void ; although, whether it was good, as a gift to him for life only, and void, as a gift in remainder after his death, or, whether it might be construed as a gift absolutely to Sir C. I., it was not necessary to decide, as Sir C. I. was residuary legatee. By the decree, it was declared, that the plate, pictures, &c., fell into the testator's residuary personal estate, after the decease of Sir C. I. ; which, of course, amounted to a decision, that the chattels vested in Sir C. L, under the bequest to the persons for the time being in pos- session of the mansion-house, for his hfe only. This decision was affirmed by Lord Cottenham, C, on appeal. Here, it will be observed, the chattels were to be en- Observations joyed by the successive occupiers of the settled property, "I'/iftetson!"" until a tenant in tail should attain twenty-one, and as the contingency was not confined to persons made tenants in tail by purchase, but equally contemplated the attainment of the specified age by any heir in tail, the ulterior gift was, clearly, too remote. As, however, that event was not inseparably connected with the intermediate trust, for the persons for the time being in possession of the settled estate, it was not an unavoidable alternative, to hold the trust entirely invalidated by the remoteness which attached to the con- tingency that limited its duration. But, further, there was no necessity to reject the limitation, so far as it was in- tended to take effect in favor of valid objects of gift ; and it is in this light, that the apparent disinclination of the Court, to support the Hmitation to any greater extent than that of its passing a life-interest to the person first answer- ing the description, is somewhat inexplicable. It cannot be said, that there would have been any substantial objection to a construction, carrying the property to the 652 LIMITATIONS OF CHATTELS [CHAP. XXX. individual secondlij becoming cntillcd after the testator's death, (that is, the eldest son of Sir C. I.,) seeing that he must so succeed, if at all, at the decease of a j^arson neces- sarihj in esse when the will took effect. And it seems ccjually clear, that such second taker might have been held to be entitled to the absolute interest^ inasmuch as, when there is a limitation, which, standing alone, would so operate, cir- cumscribed by an event of too remote contemplation, that limitation must, (as it would appear,) be construed irrespec- tively of the invalid ulterior gift, — in the same manner, in fact, as if it had been absolute and unlimited in point of duration, or independent of any future contingency. And upon this reason, it is plain, that, even were it considered im- possible to carry any interest in the property to the person secondly answering the description, the absolute interest be- longed to the first taker, although the Court seemed unwilling to express an opinion favorable to that construction, (bb) Case of A case remains to be noticed, which, on the first impres- TnM^rd^ siou, it secms difficult to reconcile with the principle of some of the decisions we have mentioned: it is that of Tr afford v. Tr afford, (c) before Lord Harduncke,\vhcxc S.T., after devising all his manors, &c., to several persons, and their respective issue, in strict settlement, bequeathed all his plate, books, pictures, and household goods, to such male })erson, when he should attain twenty-one, who should then be entitled to the trust in possession of his real estates before devised; and the testator directed, that, till such male person should attain twenty-one, the said plate, books, &c., should be kept at 1),, (one of the estates devised,) and be used in the mean time by such male person residing there; it being the testator's desire, that the said plate, books, &c., mighty in the nature of heir-looms, go ivith the said estate, and be used therewith, as long as the laivs of this realm would permit. It was contended, on the one hand, (hb) These observations are in every stated, supra, p. 473. respect of equal force in reference to (c) 3 Atk. 347. the case of Kerr v. lord Dunyannon, SECT. III.] AS HEIR-LOOM?. 653 on behalf of an infant tenant in tail, that the chattels ought to go as heir-looms, as far as by law they might ; while, on the other, it was urged, (as it would seem, by a tenant for hfe, or his representatives,) that the chattels should vest in the first taker, whether tenant for life, or tenant in tail, and that he should have the absolute property at twenty-one. The Lord Chancellor held, that the first part of the bequest applied to a person entitled to the inheritance attaining twenty-one, and not, to a male person being tenant for life merely ; and decreed, that the chattels should go as heir- looms with the real estate, as far as by the rules of law and equity they might, and that the plaintiff, tenant in tail, would be entitled to the property thereof, in case he should attain the age of twenty-one years. The distinction, between this case and that of Ihhetson Observations V. Ibbefson, consists in the circumstance, that the trusts ^^Traf^rd^ declared of the chattels, in the former case, were, substan- tially, a limitation of them to go as heir-looms, as long as the rules of law would permit, while, in the latter, there was an absolute limitation of them until some tenant in tail should attain twenty-one. And, if it be said, that, the bequest in Trafford v. Traffordi to the first male person in possession who should attain twenty-one, being connected with the direction, that the chattels should go as heir-looms, the limitation was the same with that in Ihhetson v. Ihhetson, it may be answered, that there was wanting in the latter case, that declaration of the testator's intention with respect to the bequest, which, in the former, effectually served to control any tendency to remoteness. It will be observed, moreover, that the Court did not declare, that the suspen- sion of the vesting of the chattels would, in all events, be good, until some tenant in tail should attain twenty-one, but, merely, that the claiming tenant in tail would be so entitled, in the event of his attaining that age : and, doubtless, had he died under twenty-one without issue, the limitation would have carried the chattels to the next tenant in tail, by purchase. 654 LIMITATIONS OF CHATTELS [chap. XXX. Tho doctrine, that limitations of chattels to successive takers of rciilty may be Lord Ehloti's strictures upon Traffnrd v. Trafford. who should attain twcnty-onc, or die under that age leaving issue ; although, of course, the vesting in an heir in tail could not be suspended until his attainment of majority. Notwithstanding these considerations, however, it may, perhaps, be deemed questionable, whether the decision in Trafford v. Trafford could, at this day, be supported, to its full extent, {d) It remains, to remark upon a doctrine of construction, in reference to cases of bequests of chattels to go as heir-looms, suggested by Sir John Leach, in the before-cited case of lord Deerhurst v. duke o^ St. Alhans, where that learned judge ob- ((/) liord Eldon thus remarked upon the decision in this case, on de- livering his sentiments, in the House of Lords, in the case of lady Lincoln V. duke of Newcastle, 12 Ves. 232, (stated and observed upon, supra, pp. 580, 581) : — " Upon that case, which is very material, another observation arises, that I never could displace ; forming to it, as an authority, a con- siderable objection, that has never been answered. The words arc not, ' issue male,' but, ' such male person.' First, that was clearly an executory trust; next, the limitation was, ex- pressly, when the party should be twenty-one ; and not only that ; but it was, to the person entitled to the trust in possession. One question was, whether the tenant for life at the age of twenty- one would take. To that, it was answered, very satisfac- torily, that could not be ; as the tes- tator, having created interests, in the nature of heir-looms, in those chattels, must have intended those terms to apply to such persons as would take heir-looms ; that is, those who would take estates of inheritance ; and, therefore, the tenant in tail, before the age of twenty-one, would not be entitled to have that property given to him. The report in Atkyns is not correct, representing Lord Hardwicke to state himself to have decreed in Gower v. Grosvenor, when no deci- sion of this point was made in that case. But his lordship is represented to state his opinion, that it amounted to a direction to settle ; and, in this, the report is correct. This seems to have escaped Lord Hardwicke^?. mind. If the limitation had been to such son, at the age of twenty-one, as would be entitled to the trust in possession of the real estates, as the son must attain the age of twenty-one within twenty-one years after the expiration of the life of his father, allowing the period of gestation, that limitation would be within the limits permitted to Executory devises. But the words are, * such male person.' A son might die during tho life of his father, under the age of twenty-one, leaving a son, who might not attain the age of twenty-one for a consider- able time ; and who, also, might die under twenty-one, leaving a son ; who might be the first person, attaining the age of twenty-one, and entitled to the trust in possession. A con- siderable question, therefore, in that case, totally overlooked, was, whe- ther the limitation, taken altogether, was not wholly too remote." SECT. Til.] AS IIEIR-LOOMS. 655 served as follows (e) : — " I think, no person can take under good as to all ,••11 .f. . , . . , 1 , persons in the a description by class, it, prior to him in that class, there line, prior to might have been persons, with respect to whom that limita- ^ould not be tion might have been too remote : he may take by class, if objects too . ... remote, prior to him there could not, by any possibility, have been examined and any person, with respect to whom that limitation would have been too remote." This doctrine is not noticed, as now posses- sing any claim to a binding rule of construction, for it was practically overruled by the decision of the House of Lords, in the very case in reference to which it was mentioned, and, also, by the decision in Ihhetson v. Ihbetson. The effect, it will be perceived, of such a doctrine, is, to enable a de- scendant, however remote, of a tenant in tail, actually be- coming cajjable tvithin the allotved period., to take under a limitation to successive occupiers, and to vitiate subsequent limitations to collaterals or strangers, which are to wait for effect till the failure of issue of the prior tenant in tail, although to persons in esse : for, upon the former hypothesis, there could have been no prior person, with respect to whom the limitation would be too remote ; while, upon the latter, there might have been such a person, as the whole line of issue of the prior legatee were to fail, before the succeeding one was to take. But, it is clear, that, in both such cases, this doctrine operates in contravention of settled principles. As to the first, it is a well-established rule, that regard cannot be had to actual events : the objects of a limitation must be such as will 7iecessarily take, if at all, within the prescribed period : and, in respect to the other supposed case, we have seen it to be a doctrine of law, that, either, by the words, " as far as the rules of law and equity will permit," or, by an express provision, the vesting of chattels may (as settle- ments are usually framed) be suspended, as regards any number of successive tenants in tail, by purchase, until the attainment, by some one of them, of twenty-one, or until his (e) 5 Madd. 271. 656 LIMITATIONS OF CHATTKLS AS IIEIR-LOOMS. [CIIAP. XXX. death under that ap;c leaving issue ; and that, upon the happening of such a contingency with respect to the first tenant in tail, the next in succession may take, although, prior to him in the order of limitations, there might have been persons {ex. gr., issue of unborn issue of the tenant in tail,) who miffht have come in or succeeded before or instead of him, and with respect to whom, a direct gift would have been too remote. The doctrine, therefore, though plausible and recommended by its apparent simplicity, is unsustainable, as being at variance with both principle and authority. 657 CHAPTER XXXI. OF THE CONSEQUENCES OF REMOTENESS IN LIMITATIONS, UNDER THE RULE AGAINST PERPETUITIES. Having hitherto discoursed on the general operation of the Rule against Perpetuities, as it respects the various kinds of limitations of future interests in real and personal property, it may be proper, summarily to consider the immediate effects or consequences attending the remoteness of limitations ; although it has unavoidably occurred, that this consequen- tial operation of the Rule has constantly presented itself, in the course of our inquiries as to the particular classes of limitations within the scope of its influence. The effects of remoteness in a limitation may be consi- dered; 1st, As to the prior limitations; 2dly, As to the objects of the void gift ; and, 3dly, As to the subsequent limitations. 1st, As to the prior limitations. The invalidity of a limi- Remoteness „ , ,, . .p , , in limitations tation on account oi remoteness places all prior girts in the as it affects same situation, as if it had been entirely omitted from the P"""^ ^^ '^' dispositive scheme. A gift of the fee -simple, therefore, or of the entire interest, subject to an executory limitation which is too remote, takes effect, as though it had been originally limited absolutely, or free from any divesting gift. A limi- tation of a life-estate, or other partial interest, with a re- mainder expectant upon it which is void for remoteness, of course, remains in statu quo prius ; neither receiving en- argement, nor sufferino; diminution. And the like holds U U 658 CONSEQUENCES OF REMOTENESS [CIIAP. XXXI. with respect to executory limitations, not operating to divest ■ previous partial estates, but expressed to take effect at some period subsequent to their determination : the limited inte- rest remains as originally created, both as to character and extent, without reference to the manner of the devolution of the property after its expiration. As respects the class of remote limitations which are not ]ireceded by any express gift, either by way of particular-estate, or of an estate or interest to be divested, the effect is, simply, so far as concerns such remote executory limitation, to leave the subject-mat- ter of the gift exactly in the same position, as if no disposi- tion of it had ever been made. And in those cases, where, if the executory limitation were valid, it would have the effect of controlling or direct- ing the construction of a prior gift, or of raising an estate by implication, it need hardly be observed, the remoteness of such limitation deprives it of all possible influence upon the preceding gift. This observation, however, must be understood with the qualification of its inapplicability to cases within the range of the doctrine of qy-pres, and also to the case of a gift of successive estates, to a line or class of pei'sons extending to objects too remote, the general scope and intention of which the Courts have sometimes consi- dered themselves at liberty to regard, in order, if possible, to vest in the person first representing the line or class, an estate, commensurate with that intended to be taken by the several members of it in succession, although not of a mode of devolution which will carry it to those persons, in a due order of right, jier formam doni. The rule in question is, also, clearly inapplicable to the case of limitations of per- sonalty, to take effect on an indefinite failure of issue of a prior taker, which, while they arc in themselves too remote, yet, have the effect (as was formerly seen, at length,) of enlarging the interest of the ancestor, where that interest is not itself coextensive with the absolute property. It must, further, be noticed, that, under the head of limi- CHAP. XXXI.] IN LIMITATIONS. G59 tations anterior to gifts void for remoteness, are to be classed, limitations, in themselves valid, made subject to independent trusts or restrictions engrafted upon them which are too remote : ex. gr., trusts for accumulation of income wholly void under the Rule against Perpetuities, — such, in fact, as occurred in the before-cited cases of lord Southampton v. marquis of Hertford, and Marshall v. Holloiuay : these remote trusts do not affect the limitations of the proj^erty, which remain as though none such had ever been declared. 2ndly, The distinctions, with respect to the consequences Remoteness in of remoteness in a limitation, as to the objects of it, may be ^ limitation, m recounted with little of difficulty. The primary rule is, as the objects of it, has been often remarked, that, if the objection of remoteness attaches, according to events at the time of the instrument, by which the limitation is created, taking effect, no events subsequent to that period will enable the donee to take, and he is, consequently, for ever debarred from any benefit under the gift. Another rule, formerly also cbsei'ved upon, is that, in the case of a gift to a class of persons concurrently, remoteness in some of the objects affects the gift with that objection in respect of all, and the whole, therefore, fails ; and this, as in the previous case, without regard to the course of subsequent events ; nay, even though all the objects actually become capable within the prescribed period. It will be remembered, however, that this rule does not hold, when the shares of the valid objects are separate and capable of being ascertained distinctly from those of the portion of the class which is too remote, and no uncertainty is thrown over the proportionate shares of the former, by reason of the unascertained number of members of the latter. But, with respect to limitations to a class of persons successively, it has been seen, that so many of the individual gifts will be valid, as are made in favor of persons who will necessarily take, if at all, within the required limits, and that such as are made to persons, of whom this cannot be predicated, will be too remote. As a consequence of this rule, it will u u 2 660 CONSEQUENCES OF REMOTENESS [cHAP. XXXI. occur to tlic reader's recollection, that, where the scries of gifts are limited to a line or class of unascertained persons, as, successors to a title or dignity, the limitation is, generally speaking, void as to all the persons answering the required description subsequent to the first (whether they be in esse at the creation of the gifts, or not) : but that, in the case of successive limitations to a class of persons, who, though not named or specifically pointed out, must be capable within the proper period, as, for example, successive occupiers of another settled estate, (the settlement of which is, of course, here assumed to be free from objection, on the point of remoteness,) the gifts are valid: as to real estate, for the whole extent of the limitations comprised in the referential trust ; and, as to personal estate, to the extent of giving it to the successive tenants for life, and vesting the absolute inte- rest in the first tenant in tail ; or, even, of suspending such vesting, until the attainment by the tenant in tail of his age of twenty-one, or his death under that age leaving issue, if the trust provides for the existing limitations being fol- lowed, " as far as the rules of law and equity will pci'mit." Effects of 3dlv, The remaining branch of the subject of the conse- Sudon^upon qucutial operation of the Rule against Perpetuities, is, the posterior gifts, ^^ff^,^^^^ ^f rcmotcness in a gift, as to subsequent or posterior limitations. The general rule upon this point is, that all gifts, limited to take effect after or on failure or determina- tion of a prior limitation, which is too remote, are affected by such invalidity, and are, consequently, void for remote- ness, likewise. This doctrine holds, too, although the objects of the prior remote gift never come into existence, or their interests never vest, and although, also, the subsequent limi- tation is made to a person, in esse at the time of the creation of the gift, and, therefore, per se, capable of taking. (/) This inflexible rule, so far as it respects remainders, results from the consideration, that the law regards limitations made to take (/) 2 Sugd. Pow. 73. 1 Jarm. Wills, 242. CHAP. XXXI.] IN LIMITATIONS. 661 effect in an order of priority and posteriority, as gifts which are to arise in the order of their hmitation, and which, there- fore, it must be presumed, in the absence of antecedent proof, will actually so arise. As to limitations which operate to divest preceding gifts, or are limited to take effect in case of the non-existence, or non-vesting of the interests, of the objects of a prior gift eanying the whole interest, the extension of any remoteness in the preceding limi- tation to that expectant upon it, without reference to the validity of the latter, taken per se, rests upon the simple ground, that, operating to defeat, or take effect on failure of, a gift which is too remote, it is necessarily affected by the invalidity which attaches to the prior limitation. This latter doctrine must not, however, be applied to the case of a general divesting or shifting limitation, extending over a whole scries of gifts, one or more of which may happen to be too remote ; as the shifting clause has no necessary or im- mediate connexion with the remote gift or gifts ; and it will, therefore, be valid and take effect, on the happening of the specified event, as to such of the limitations as are not too remote. But the general rule, that gifts postponed to remote limi- If ulterior tations are, also, void for remoteness, is subject to one ex- properly ception : and this is, that, if it be provided, that the event, restricted it is on which the subsequent limitation is to take effect, shall circumstance of DrGCGtlin"* happen within the period prescribed by law, or, if the event gift being too be such, that it must necessarily so happen, if at all, the ^^"^^ ^" limitation will arise on the specified event, or, in the former case? on its happening within the prescribed period, notwithstanding the remoteness of the preceding gift. An instance of a limitation of this kind occurred in the case of Beard v. JVestcott, (g) formerly noticed at length, where, it will be remembered, a testator gave an estate, to his grand- son, J. J. B., and his assigns, for the term of ninety-nine years, if he should so long live, and after his decease, to the first son of the body of J. J. B., and his assigns, for the like iff) 5 Taunt. 393. 662 CONSEQUENCES OF REMOTENESS, &C. [CIIAP. XXXI. term of ninety-nine years, if he should so long live, and, SO on, in tail-male, to the issue of such first son lawfully issuing, for ever, and for want and in default of such issue of such first son, then, to the second, &c., sons of J. J. B., in like manner: "and if there should be no issue male of the same J. J. B., nor issue of such issue male at the time of his death, or, in case there should be such issue male at that time, and they should all die, before they should respectively attain the respective ages of twenty-one years, without lawful issue male," then, there were similar limita- tions to J. B., and his sons, and issue male, with divers gifts-over. The judges of the Court of C. B. certified, on a case from (chancery, that the limitations to J. J. B., and his first son, were valid ; that the gift to the issue of such first spn was bad, as too remote, and that, therefore, the limitation to the second and other sons of J. J. B., on failure of issue of his first son, were, also, too remote, as being given to take effect generally on the determination of a prior remote gift : but that the limitation in favor of J. B. was valid, and would take effect, in the event of their being no son of J. J. B., nor issue male of any such son living at the death of J. J. B., or, there being such issue male, in the event of their respectively dying under twenty-one without issue male; on the ground, as Sir Edward Sugden re- marks, (/<) that the gift-over was to take effect within the pompass of twenty-one years after a life in being. It is clear, however, that, in order to a limitation subsequent to a remote gift being protected by the exception in question, the fact of its being made to take effect within the proper period, irrespectively of the time limited for the preceding gift to arise, must be certain and explicit ; for, it is unde- niable, the prima facie presumption is, that every gift, postponed to a limitation bad as too remote, is, likewise, void for remoteness. (h) Sugd. Gilb. Uses & Tr. 272, n. 663 CHAPTER XXXII. OF LIMITATIONS EXEMPT FROM THE OPERATION OF THE RULE AGAINST PERPETUITIES. It devolves, to point out certain estates and interests which do not fall within the scope of the reasoning on which the provisions of the Rule against Perpetuities rest. When, either, from circumstances extrinsic to a limita- tion, or, from the character of its subject-matter, a sufficient guarantee exists against any violation of the spirit of the laws for prevention of remoteness, their force and applica- bility, with respect to any such limitation, cease, so far as concerns the necessity for expressly confining it to the period prescribed by law. This consideration seems to apply to the three following classes of limitations, here proposed to be inquired into ; namely, 1st, Limitations, executory or by way of remainder, alter or in derogation of estates- tail; 2ndly, Limitations, whose subject-matter is of limited endurance; and, Srdly, Limitations in mortmain, and to charitable uses. \st, As to limitatio'iis expectant or engrafted upon \. Limitations estates-tail Allusion has been already made, on several tail^gencraTly occasions, to the rule of law, which exempts limitations "^-^ectionof after or expectant upon estates-tail previously limited, from remoteness. the application of the Rule against Perpetuities : but, as this doctrine is of much practical importance, it seems to demand a distinct consideration. G6-4 LIMITATIONS AFTER ESTATES-TAIL. [cUAP. XXXH. It will be remembered, that the origin of the restrictions imposed upon the creation of future interests in property, was, the estabhshment of the doctrine, that Hmitations by way of Executory devise and bequest and Springing and Shift- ing Use, were not barrable or destructible by the owners of prior interests : that exemption originating in the determi- nation, that a common recovery suffered by a tenant in fee- simple was of no force, to operate upon or affect future contingent interests limited out of the fee. (i) Hence arises, then, the important distinction between an estate-tail and a fee-simple, in regard to the destructibility of future execir- tory interests limited after or engrafted upon each. We have before seen, that a common recovery was (till recently) not only the appropriate mode of assurance for a tenant in tail, but that the right to suffer such recovery w^as so in- herent in the estate-tail itself, that the law would not admit of any encroachment upon it, whether in the shape of con- ditional limitation, proviso, or otherwise, (k) And this rule now holds to an equal extent, with regard to the en- rolled assurance substituted in the place of the connnon recovery. The operation of this recovery was, and that of the enrolled assurance is, so extensive, that no limitation, of whatever character, expectant or engrafted upon the estate-tail, can evade the destruction which awaits it, as a consequence of the acquisition of the fee -simple by the tenant in tail. This destructibility it is, which deprives a limitation after 'a preceding estate-tail, of all dangerous tendency to a perpetuity, however remote the event on which it is limited to take effect, abstractedly considered. Nor is it any answer to this reasoning, to say, that the tenant in tail may not avail himself of this his inalienable right to bar the estate-tail and remainders and executory limitations- over, and that, in that case, future interests may arise, with- out reference to the expiration of the period fixed by the (i) Vide supra, i>p. 12.J — 138. (k) FjV/c SK/»rrt, pp. 44— 48. CHAP. XXXII.] LIMITATIONS AFTER ESTATES-TAIL. 665 Rule for prevention of Perpetuities. True it is, that such a consequence may follow : the estate-tail having en- dured for a centur}', without having been subjected to the exercise of the owner's right to destroy it, may eventually be determined, by force of a limitation engrafted upon it, which, taken by itself, would certainly have been too remote, ab initio. But something similar may be predicated of every fee-simple estate : it may be transmitted from the first purchaser, through a long line of heirs, without being ever made the subject of a sale, or, even, of a loan transaction ; and in such case, it is obvious, that, practically, the result, as far as concerns all but the immediate owners, is in no way different from what would have been experienced, had the property been originally tied up so as to be inalienable for a similar period, and such restriction had been allowable. It is the circumstance of the estate being or not being alienable, discharged from the future executory interests created out of it, that decides the question of the tendency of the latter to a perpetuity : if they are destructible, their existence is no clog upon the free circulation of the pro- perty, and there is, consequently, no semblance of a perpe- tuity, however remote the events on which they depend ; if they are not destructible, it is not alone the possibility of their ever taking effect in possession, that induces a transgres- sion of the law of perpetuity, (such interests as are destructible having also that chance, although the events that give them effect be ever so remote,) but, rather, the certainty, that, whatever the transactions which take place with respect to the precedent interest, the executory limitations will arise on the happening of the specified contingencies. The most frequently-occurring instances of the operation Illustration of of the rule under consideration are those, afforded both by limTtaTio'ns after testamentary dispositions and settlements by deed, in which estates-tail •^ ^ .... . . cannot be too the estate of the tenant in tail is subjected to a conditional remote, limitation, divesting that estate, in the event of the tenant in tail, or his issue successively entitled under the entail. 666 LIMITATIONS AFTER ESTATES-TAIL, [cUAP. XXXII. neglecting or refusing to assume and continuing to use a l)articular name, or to bear certain arms (generally being those of the testator or settlor) ; or in the event of certain specified property devolving at any future time, on the tenant in tail, or his issue inheritable to the entail. These arc provisions, it will be observed, not of the character of remainders, or limitations of reversionary interests expectant upon the natural determination of the estate-tail, but they possess every essential characteristic of Executory devises and Shifting Uses, under one of which classes they, consequently, rank, according as the instrument by which they are created is, either, a will, or, a deed. Engrafted upon an estate in fee-simple, either of "these limitations would be void, unless the events contemplated by each, (the non-user of the name and arms, in the one case, and the devolution of the estate, in the other,) were expressly confined to happen within the period of lives in being and twenty-one years afterwards, or twenty-one years, simply. But, as a recovery or its sub- stitute suffered or executed by the tenant in tail, or his issue, will at any time defeat these conditional limitations, together with all others, of whatever character, limited after or engrafted upon the estate-tail, there is no greater tendency to a perpetuity in them, than, in an ordinary remainder expect- ant upon the regular determination of the estate-tail, and there is, therefore, no necessity to confine the happening of the specified events, to the allowed period of remoteness. The reverse, was, indeed, the rule generally obserA'ed in practice, a century since, but the more settled state of the law of perpetuity of late years, and the better acquaintance with its principles, have long cast the shade of desuetude over this abundans cautela of legal draughtsmen. Rule equally And this rule of law is of equal applicability to executory mftsTfter*" limitations engrafted upon estates-tail which, though not future estates- yostcd at oncc, will become so, if at all, within the compass of tail to vest . within legal hvcs iu bciug and twenty-one years beyond ; because, imme- ''""^ * diately that vesting happens, the estate-tail and all the CHAP. XXXII.] LIMITATIONS AFTER ESTATES-TAIL. ulterior limitations arc as much in the power of the tenant in tail, as if the entail vested forthwith ; and if the tenant in tail has full dominion over the property within the period of time mentioned, all objection to any ulterior limitations on the ground of remoteness, ceases. Indeed, instances of these classes of limitations most frequently occur, in respect to estates-tail, the acquisition of full power over which may, possibly, be postponed, until the lapse of nearly the maxi- mum period of perpetuity referred to. E, G., if property be limited (as in the ordinary case of marriage-settlements,) to A., for life, with remainder, to B., his wife, for life, with remainder, to trustees, to support the contingent remainders, with remainder, to the first and other sons of A. and B., successively in tail, with remainders-over ; and a proviso be superadded, that, in the event of a particular estate devolving upon the eldest or other son for the time being in posses- sion under the limitations, by virtue of some prior settle- ment, then the property settled shall go over to the second or other son next entitled in tail under the limitations, as if such first or other son so acquiring the other estate, w^ere dead without issue : here, it may happen, that, by the death of A., leaving B., his wife, enceinte with a second son, and by her death soon after the birth of such son, the eldest may not attain his majority, until the expiration of twenty years from the decease of the survivor of the lives in being named ; and until he so attains his majority, it is manifest, that he has not the legal capacity to destroy the shifting use, in favor of his younger brother, by barring his estate- tail. Of course, in such a case, it may happen, that the de volution of the second estate takes place during the infancy of the eldest son, and that, therefore, the shifting use has effect ; but it is observable, that it can never have any other operation than such as the eldest son himself (by abstain- ing from docking his estate-tail,) may give it, except during the very period of time, for which, the rule of law allows 667 668 LIMITATIONS AFTER ESTATES-TAIL, [ciIAP. XXXIL Reference to doctrine allowing de- vises of reversions expectant on estates- tail. If term of years precedent to estate-tail, but trusts thereof to arise on its deter- mination, latter void for remoteness. the vesting: of the absolute interest in and uncontrolled power over property, to be suspended. We have before seen, (/) that the law allows the devise or settlement of a reversion expectant upon an estate-tail, provided the failure of issue referred to, as the event on which it is to take effect, be a default of such issue only as are inheritable to the existing entail. The legality of the disposition of such reversions takes its rise from the prin- ciple at present under consideration ; namely, the liability of the reversion, and, consequently, of all estates and in- terests derived out of it, to destruction by the disentailing assurance of the tenant in tail. Whether a disposition of a reversion, expressed to take effect upon the failure of a more restricted line of issue, than such as are entitled under the subsisting estate-tail, (as, for example, issue male instead of issue generally,) but a failure, nevertheless, too remote in itself, as being indefinite, be valid, has never, to the writer's knowledge, been determined. As it is clear, that such a disposition could not operate to curtail or derogate from the estate-tail, but could only take effect as a contingent ex- ecutory limitation, to arise in the event of the failure of issue inheritable to the entail, and the failure of the more limited line of issue, being coincident, it may, perhaps, seem, that such a disposition would be protected, as affecting the existing reversion, although not strictly capable of operating as a devise or settlement of it. (in) It sometimes happens, that, while an estate (as, for in- stance, a term of years,) is precedent to the estate-tail, and cannot, therefore, be barred or destroyed by any assurance of the tenant in tail, the trusts declared of or upon such estate are ulterior to the estate-tail, that is, are postponed until the failure of issue entitled under the entail. In such a case, as the trusts depend on an estate anterior to the (/) Vide supra, p. 253, (w) Vide supra, pp. 265, 266, CHAP. XXXII.] LIMITATIONS AFTER ESTATES-TAIL. 669 estate-tail, they cannot be defeated by any act of the tenant in tail, in like manner, as the estate out of which they are to take effect cannot be destroyed by him ; and, being so exempt from the power of the tenant in tail, those trusts are exposed to the full force of the Rule against Perpetui- ties, which declares them void, as limited to arise upon an indefinite failure of issue. Thus, in a recent case, {n) a testator devised certain estates, to trustees, for a term of five-hundred years, upon the trusts after-mentioned ; and he then devised one of the estates, subject to the term, to A., for life, with remainder, to his first and other sons, succes- sively in tail, remainder, to his daughters in tail, with re- mainder, to B,, and his sons and daughters, in like manner ; and he then devised the other estate, to B., and his sons and daughters, in a similar manner, in tail, with remainder, to A., and his sons and daughters, in like manner ; and the testator declared, that the term of five-hundred years was to be held, in trust (among other purposes) to raise portions for C. and D., payable at twenty-one, and further portions, in case either A. or B. should die without issue, whereby the survivor of them would become entitled to the two estates. The estates having centered in the issue of B., by the death of A. without issue ; Lord Langdale, M. R., held, that, as the additional charges were to take effect upon a failure of issue, and, at the same time, could not be baiTed, the trusts of the term for raising the further portions, were void. It has been sometimes supposed, that there is one ex- when execu- ception to the general rule, which validates executory limi- no7comi"^t'°d tations after or upon a previous estate-tail. And the immediately • 1 1 ^ 1 • 1 ^^^^ determi- exception is said to be of this character: that where the ex- nation of estate- ecutory limitation itself cannot vest until after the determi- protected by nation of the estate-tail, supposing such estate naturally to '""'^ under expire, and not to be ban*ed, or, where the limitation is to take effect on a contingency, possibly unconnected with the (») Case V, Drosier, 2 Keen, 764, C70 LIMITATIONS^ AFTER ESTATES-TAIL. [CIIAP. XXXII. determination of the preceding estate-tail, as an event which mmj not happen till after its expiration, — that, in such cases, — the executory Umitation must be rejected, as void under the Rule against Perpetuities, notwithstanding its liabihty to destruction by the tenant in tail, (o) Of the former branch of this exception, an instance may be sup- posed, in the case of a limitation to A., and the heirs of his body, and on default of issue of A., and after the expiration of two years from the time of such ftiilure, to B. Of the latter, an illustration is afforded, by supposing a devise of land, to A., in tail, and as soon as a certain tree is cut down, the land to go over to B., and his heirs. In this latter case, if, after the lapse of a long space of time, A.'s estate-tail be spent, and the tree be still standing, the land must, until the tree is felled, descend to the heir of the testator ; the conse- quence of which would be, that the heir would take a fee- simple, subject to an executory limitation-over, which might possibly not have effect until a very remote period. The argument is, as to both these classes, that an executory limitation after an estate-tail, unconfined as to the time of its taking effect, is only held good, where it is to vest, either, upon the natural expiration of a preceding estate-tail in a particular manner, or, upon the determination of that estate, before its natural expiration, on the happening of a stated event. And, certainly, there seems to be no principle, which demands the extension of the doctrine, exempting limitations after estates-tail from the restrictions of the Rule against Pei'petuities, to limitations extra, and entirely inde- pendent of, the estate-tail, or its determination : the limits of the estate-tail ought jjroperly to be considered, as the only period within or at the expiration of which the executory limitation shall take effect, inasmuch as it is the only period during which it can be barred. Nor is the mere possibility, that, in the case put to illustrate («) 1 Jarm. Pow. Dev. 408,409,n. CHAP. XXXir.] LIMITATIONS AFTER ESTATES-TAIL. 671 the second branch of the exception, the happening of the contingency may precede the actual expiration of the estate-tail, sufficient to connect the limitation depending upon that contingency with the estate-tail, so as to induce the application of the rule under consideration : to satisfy such a requirement, there must be a certainty, that, until the time fixed for the executory limitation to vest, it will be destructible. Thus, it has been well said, ( p) — " The material distinction is, that, where the executory devise is immediately dependent on the estate- tail, the power of defeating it by a common recovery subsists during the ivhole period that the devise continues in its executory state, so that at no period, unless from the personal incapacity of the tenants in tail, on account of minority, or otherwise, does the executory devise exist in an indestructible state : but, on the other hand, where there is an intermediate period, however short, between the determination of the estate-tail, and the vesting of the ex- ecutory devise, for that period the executory devise is incapable of being destroyed, and is, therefore, exposed to all the mischiefs of perpetuities." Mr. Sanders, in his Essay on Uses and Trusts, (g) has supplied an authority, in some measure applicable to the question under consideration ; although it is not expressly cited by him, as establishing any such distinction as that here referred to. The case, (r) which is unreported, and arose in Ireland, is thus stated : an estate having been settled by will to uses in strict settle- ment, a rent- charge was limited to arise after the failure of issue of a person not taking any estate in the property settled: and, upon argument, it was determined, by the Court of B. R., in Ireland, that the limitation of the rent- charge was void, as being too remote. This case certainly affords some countenance to the doctrine ; and, on the whole, as the latter seems accordant with principle, it must be con- (/)) I Jarm. Pow. Dev. 409, n. (r) Harlopp v. \oxACarbery, 1819. {q) Vol. i, p. 197. 672 LIMITATIONS AFTRU ESTATES-TAIL. [CIIAP. XXXn. sidercd as possessing strong claims to recognition as a rnle of law. r'T'v ^^ seems to be a question, however, whether the conse- doctrinc quence of the doctrine be, wholly to invalidate the executory invalidates ..... . i r ^ i remote cxecu- hmitations in question, or, only so lar as they may be after'cstates""^ capable of arising after the expiration of the period during *^''- which they are destructible, that is, after the determination of the estate-tail. The result of the latter of these hy- potheses would be, that the limitation would be valid, and might take effect, in the event of the happening of the con- tingency prior to the exhaustion of the estate-tail, without any act having been done to bar that estate. And seeing that such interests are destructible by the disentailing assurance of the tenant in tail, (equally with all other executory limitations,) while his estate subsists, (s) there seems to be no sufficient reason for denying validity to them, so far as respects their capability of taking effect at the natural termination of the entail. Powers, to be q^j^^ principle, which exempts limitations after an estate- excrcised with i i ^ i consent of tail from all objection as to remoteness, (as we have formerly not void for ' sccn,) is equally applicable to powers of sale, exchange, up™n'sTm(f' partition, enfranchisemont, and the like, to be exercised principle as [^y trustees, with the consent of the tenant for life, or the that validating ... indefinite tenant in tail in possession. These powers, not being ^xecu cry cxerciscable without the concurrence of the persons bene- ficially entitled, arc manifestly destructible, by any act of the tenant in tail which would defeat remainders and ex- ecutory limitations ; and such destructibility, consequently, removes all tendency to a perpetuity, to which the indefi- nitcness of the powers might have given rise. The state of the law with respect to powers, to be exercised generally without reference to the consent of beneficial owners, and uncircumscribcd in regard to the time of their execution, has been noticed on a pre vious occasion. (0 ) Jarm. Pow. Dev. 409, n. CUAP. XXXII.j LIMITATIONS OF LIFE-ESTATES. 673 2. A second class of limitations which, it has been 2. Limitations generally supposed, (t) are exempted from the operation of confimlcr^ ^ our laws against remoteness, consists of those, the nature of '^"'"^"on. whose subject-matter is such as to render it necessary (it is said) for them to take effect, if at all, within the period prescribed by the Rule for prevention of Peipetuities, and which, therefore, in themselves, preclude any question of remoteness. Thus, let it be supposed, that A., being tenant under a freehold lease for three lives, devises the property of which he is lessee, after the death of B. without issue, to C. Taking the event, and the limitation expectant upon it, abstractedly, or dissociated from the nature and circum- stances of the estate, the former is, unquestionably, too remote, and the latter, therefore, void. But, considering them in reference to or in connexion with the peculiar character of the subject of the gift, the applicability of the same rule seems, at least, doubtful. The arguments to be urged in favor of this supposed Mr. Butler's exception have been so luminously stated by Mr. Butler, [hk subject" that no apology can be necessary for their insertion in this place, in order to the better comprehension of the sub- ject. " It sometimes happens," writes that learned gentle- man, {u) " that executory uses or trusts, limited to take effect at a period which exceeds the boundary of such executory limitations, are created in estates or interests, the extent or duration of which estates or interests does not exceed that boundary, as in leases for three lives, or twenty- one years. In all such ulterior limitations, the nature of the case appears to make it necessary, that the clause introducing them must be understood to be accompanied with a trust or implied condition, that the event on which it is to take effect, shall happen within the term or duration of the estate or interest in which the use or trust is created : (f) See Prior on " Lsue," 103. (w) Note to F. C. K. 500. X X 074 LIMITATIONS OF TJFE ANT> [ciIAP. XXXIL and on tliis supposition sucli secondary limitations may be saved. If fee-simple lands are conveyed to A., and his heii"s, and if A. shall have no son who shall attain the age of twenty-four years, to B., in fee ; or if a monied fund be directed to be held in trust for A., his executors and ad- ministrators, and if A. shall have no son who attains the age of twenty-four years, in trust for 15. ; in each case, the Hmitation to B. will be void for its remoteness, as in each case, the event on which it is limited to take effect must not necessarily take ])lacc, or become incapable of taking place, at the expiration of a life or lives in being and twenty-one years, a requisite, as we have seen, essential to the legal validity of such executory limitations. Now, if a leasehold for three lives be conveyed to A., and his heirs, and if he shall have no son who attains the age of twenty- four years, to B., and his heirs, or if a leasehold for twenty- one years be directed to be held in trust for A., his exe- cutors and administratoi"s, and if ho shall have no son who attains the age of twenty-four years, in trust for B., his executors, administrators, and assigns, in each case, the limitation to B. may, at first view, appear to be liable to the same objection of remoteness ; but, it must be observed, that the lives which, in the first case, and the years which, in the second, form the term for which the property is held, are within the legal boundary. Now, the limitation-over cannot be understood, as meant to have any operation, except on the supposition, that the event on which it de- pends, will take effect during the continuance of the term. This seems to make it necessary to connect the continuance of the lives or years with the ulterior limitation, so as to incorporate their continuance into and make it a part of the event, on which the ulterior limitation is to arise. If fee- simple lands were limited to A., his heirs and assigns, or a monied fund were limited to A., his executors and admi- nistrators, with a limitation-over to B., if, during the lives of three })ersons in being, or the lives or life of the survivors CHAP. XXXII.] OTHER PARTIAL ESTATES. 675 or survivor of them, or during the actual term of twenty-one years, no son of A. should attain the age of twenty-four years, there is no doubt, that the Umitation-over to B. would be legally valid. Now, the limitation-over in the cases suggested will be the same, if the continuance of the lives or years, for which the land is held, be considered as incor- porated into, and making a part of, the event introducing the ulterior limitation, in the manner proposed. The clause introducing that limitation must then be understood, in the same manner, as if it had been thus expressed : ' And in case, during the lives of the three persons for whose lives the lease is held, or during the lives or life of the sur- vivors or survivor of them, (or during the term of twenty- one years, as the case may be,) A. shall die, and no son shall, within that period, attain the age of twenty-four years, then and in that case, the lands shall go and remain to B.' It seems clear, that, in the cases we are speaking of, a limi- tation-over, introduced in these words, would be free from objection. The question, therefore, is, whether, in the words usually introducing such ulterior limitations, the supposed words must not be implied. The rule of inter- pretation, qtiod necessmio suhijitelligitur no7i deest, is cer- tainly in favor of their implication." These remarks, it is to be observed, are applicable to every species of limitation to which the Rule against Perpetuities extends, and the question discussed in them is one which must be decided alike in regard to all such limitations. The little authority to be found, bearing upon this subject, The authori- seems, until recently, to have been of a conflicting character. upon*the"poinT. Thus, in an old case, (v) where A., possessed of a term of Detail of these, ninety-nine years, determinable upon three lives, devised the lease, to his wife, for life, and after her decease, to N., his son, for life, and if N. should die without issue, then, to B. ; it was held, that the limitation to B. was void, for (r) Love v. Wyndham, 1 Vcntr. 79 ; 1 Lev. 290. X X 2 07'J LIMITATIONS OF l.IFF. AND [clIAT. XXXII. that the rcnialmlcr of a term could not iu-[K-n(l on a jiossi- bility so remote as an indefinite faihnc of issue. Here, wo perceive, a hmitation of ])ropcrty htld under a lease for lives, after a general faihire of issue, was deemed ecjually invalid with a similar limitation of land held in fee-simple; although, perhaps, little importance is to be attached to the decision; as the attention of the Court was not drawn to the distinction nnder consideration, and the notions preva- lent on the general subject of Perpetuity were by no means characterized by precisencss. The next case («•) to be noticed is one in which the question directly arose, and was, to a certain degree, dis- cussed ; although, as the case went off on another point, no judicial opinion was pronounced upon it. Lady C, being jointress for life of an estate, demised it to trustees, for ninety-nine years, if she should so long live, in trust for herself, during her widowhood, and after her marriage, then, in trust for J. S. C, lier second son, and the heii-s of his body, and if he died without issue, then, in trust for L. S. ('., her next son : J. S. C^. died without issue : and, upon the question, whether the trust of the term should go to his mother, as administrati'ix to him, or to the next son in remainder, it was contended, that the only reason, why the trust of a term could not be limited to one and the heirs of his body, with remainder-over, was, because this would make a perpetuity, but here would be no perpetuity, in reo-ard that the whole term was to determine whenever lady C should die, just as if she had made a lease of her jointure-lands, to a trustee, for ninety-nine years, if she should so long live, in trust for A., and the heirs of his body, but if A. should die without heirs of his body, living lady i.\ then, to B., which limitation had been good. The reporter adds, — ^' idea qua'rc, though it seems rather to be a good limitation of the trust, and within the reason («•) King V. Cotton, 2 P. Wms. 676. CHAP. XXXII.] OTIIEU PARTIAL KSTATES. <^7 7 of the duke of Norfolk's case ; and tho several other subse- quent resohitions grounded thereupon." In another case, (.r) a testator, being seised of an estate for three lives in the property in question, devised it to his daughter, M. M., for life, remainder, to her issue male, and for want of such, remainder, to L. One of the questions being, whether the remainder to L. was good, it was held, by Lord Chancellor Talbot, in the affirmative ; his lordship observing, that there could be no danger ofa perpetuity ; for all these estates would determine lied, that the arj2;uinent, that, even if the limitations in the will could be go(xl, they were an evasion of the law, and a fraud on the rule, was a solecism ; for that it was absurd to say, that there was a rule of law which permitted the suspension of property during a given period, and that it was an evasion of the law to conform to the rule : nothing, which was consistent with the rule, could be a fraud on the rule. The Vice-Chancellor decided in favor of the validity of the limitations, to take effect out of the inheritance, after the determination of the terms; but it does not appear, that his honor made any obsen'ations, directly to the point of the legality of the trusts limited during the terms ; thereby tacitly affirming the soundness of the whole of the testator's dis[)ositive scheme, of which, the limitations of the terms formed no insignificant portion. Decided cases, The result of these cases, it is conceived, is, upon the on the whole, ii/. ii ii- ^ • ^ • favorable to whole, favorablc to the doctrme under consideration ; un- the doctrine. |^gg^ indeed, any distinction is to be taken between limita- tions out of leases for lives, or for years determinable on lives, and trusts of terms created in estates of inheritance, similar to those in Bengough v. Edridge ; a distinction, for which, it should seem, no very influential reason is to be assigned. Opinions of In addition to this sup]iort from authority, it may be the suwr °" noticed, that, besides mr. Butler, and mr. Pcero IVilliams, the doctrine has received the assent of other writers on the law of real property, of the first repute. Thus, mr. Fearnc (c) seems to i)e of opinion, that a limitation upon a failure of issue, of an estate held for a term determinable on a life in being, is good ; as appears by his short parenthetical obser- (c) (". 11. '18'J. GHAP. XXXri.] OTHER PAUTIAL ESTATES. 681 vation, on quoting the remark of nir. Peeve Williams, above cited. And nir. Preston, (d) also, lays it down as a rule, (though, he admits, " not fully and deliberately settled,") that, " if from the nature of the property, the interest cannot be too remote, a limitation-over will be good, in whatever Avords it shall be expressed." The Real Property Commis- sioner's, again, (e) alluding to the case of Bengough v. JLd- ridge, seem to admit the doctrine under consideration, (at least, as respects limited estates of the kind which occurred in that case,) for they remark, that, " although a limitation to the son of an unborn son, if considered by itself, would have been bad, yet, when it came to be taken as covering a portion only of the main period assigned for the suspension of the estate, it was held good ; for, as the whole period did not exceed lives in being and twenty-one years afterwards, there was no perpetuity ; and, if there was no perpetuity in the whole, there could be none in the part." And, so, also, mr. Janrian,{f) speaking of a devise, (ordinarily too re- mote) which, from the nature of the subject of gift, as in the case of a life-estate, can never be extended beyond the period allowed by the rule of law, admits, that " much ar- gument might be advanced in favor of the validity of such a limitation." Thus supported, the doctrine in question has, perhaps, some claim to consideration, as a principle of law ; although the want of authority adequate to the necessities of the case, coupled with the existence of an old decision supporting a different conclusion, and a few theoretical difficulties, not as yet adjudged to be other than insuperable, forbid our treating it as a clear or settled rule. Of these difficulties, the first (regarding leases, strictly so The liifficulty called,) is that presented by the tenant-right of renewal, fn^thc"rase of which is considered to exist in respect to a large portion of '•'«'*«'% '^y the _ " ^ tenant-right ])roperty held under leases for lives, or for years deter- of renewal. (d) 2 Essay on Abst. 102. (/) 1 Pow. Dev. 405, n. (e) 3 Rep. 33. 682 LIMITATIONS OF LIFE AND [cilAP. XXXII. nilna])lc on lives. This tcyiant-right operates, in equity, as a kind of connecting link between every successive lease, or, as it has been better said, {(j) is the author or moving cause of every fresh lease ; and it is, therefore, bound, in equity, by every disposition or settlement of the existing lease, to which it is attached. And where die lessor is bound to renew, the tenant has a right which may be transferred or setded at laio. As, under such leases, conse- quently, the tenant has an interest beyond his subsisting term, it deserves consideration, whether the reason of the alleged exception from the rule, that executory limitations must be confined to arise within the legal limits of remote- ness, grounded on the limited duration of the subject of the gift, be not, to a considerable extent, if not, entirely, taken aw^ay. Nay, it may, even, be further said, that, whether there be any obligation to renew, or any tenant-right of renewal, or not, if the existing lease be actually renewed, all ground for restricting the application of the Rule against Perpetui- ties is removed, as the new or substituted lease is affected by all the limitations and trusts to which the old lease was subject. Certain it is, that lives, not in esse at the date of the settlement or devise of the existing lease, may after- wards be made the cestuis que vies of the new lease ; and, if such be the case, there seems no reason for supporting a remote limitation of property held under renewable leases, in reference to the question of its tendency to a perpetuity, which will not be found to be equally applicable to similar limitations of lands held in fee-simple. It nuist be observed, that mr. Butler {h) suggests this question of the existence of a tenant-right of renewal, as, possibly, affecting or qualifying his conclusions upon the general subject; wliile mr. Preston {i) considers, that the limitation of an estate held for lives, or for years deter- (ff) Cov. Conv. Ev. 153. (.t) 2 Essay on Abst. 1G3. (A) Note to F. C. R. 002. CHAP. XXXII.] OTHER PARTIAL ESTATES. niiiiablc on lives, will not, on account of the existence of a right of renewal, or a tenant-right, be too remote, and void, when such a limitation would otherwise be protected by the doctrine, grounded on the limited term or nature of the subject of the gift. The Real Properti/ Commis- sioners, (k) again, observe, in reference to leases for lives, that, " such leases being ordinarily renewable, setdements of them are, in truth, not settlements of a limited interest." It may deserve consideration, whether the objection, pre- sented by this tenant-right of renewal, to an exemption of leases for lives or for years determinable on lives, from the operation of the Rule against Perpetuities, (supposing the ex- istence of any real objection,) might not be obviated, by hold- ing, that all limitations of such leases, however in themselves remote, are valid, if the contingencies on which they depend, happen during the existence of the cestuis que vies ; in other words, by confining the protection afforded in the limited nature of the estate, to the time of the actual duration of such estate, and treating the limitations, so far as they affect or take effect out of any renewed lease, in the same manner, as if declared of an estate in fee-simple. Perhaps, however, any suggestion of this kind is rather of legislative, than judicial or professional cognizance, (l) (A) 3 Rep. 39. tions, in the foregoing extract from (/) The following arc the observa- the note to Fmrne, as intended to tions of a writer who assails mr. operate by way of trust or use, since, Butler's position and arguments, otherwise, the limitation to B. and his quoted, su;7m,p. 673, e' the conclusioii, that estates /)2//- autre vie, and lease- similarityof holds for twentv-one years, are not within the principle of construction of j j ' r i tions are to arise, the existing lives form no boundary to the effectual operation of such limitations. If, therefore, the estate were limited in trust for A., for life, remainder to his first and other sons at twenty-one, remainder to B., and his heirs ; and all the lives were to drop during the existence of A., or during the mi- nority of his issue, and the trustees were to renew, such renewed lease would be subject to the trusts and limitations of the old ; and if the issue of A. were to die without doing any act to defeat the remainder, such li- mitation might take effect in the re- newed lease. " But, suppose the limitation to give A. a vested determinable fee ; thus, in trust for A. and his heirs, and if he shall have no son who shall attain the age of twenty-one years, then for B. and his heirs. There can be no objection, in point of per- petuity, to such a limitation. Does any objection arise out of the nature or quality of the property ? Is not the renewed estate considered as a continuation or extension of the old ? As the old estate still in being ; as a graft on the old ; as a part of the an- cient interest ? Can it be contended, that A. has the absolute power of dis- position, in the same manner, as though the limitation had been to him and the heirs or issue of his body ? "It is unquestionable, that if the limitation to A. had given him aquasi- cstatc-tail, instead of a determinable fee, he would have had the powertobar or destroy the ulterior limitation, even without the concurrence of the trus- tees : and, ihcrcfore, any ulterior limi- tation, although not referring in the slightest degree to the rule against perpetuity would be good. But if the limitation had been in a will, so as to cause it to operate after the manner of an Executory devise, it would be secure against the disposition of A. ; and as a limitation of this nature, in a deed, is similar to what an executory devise is in a will, it appears, that the limitation to B. would not be in the hands, or absolute power of A. In corroboration hereof, I may be per- mitted to observe, that by putting the case, Mr. Butler seems to admit the validity of the limitation, exclusive of the effect the rule against perpetuity might be supposed to have on that to B., as it stands in the note to Fearne. " Presuming, therefore, upon the validity of the limitation to B. and his heirs, in the case suggested herein, and that A. has not the absolute power over it ; the consequence of the trust is, as above stated, that were the trustee to renew, the estate would still be liable to the old trust to B. And that being once established, it is clear, that a trust seeking to postpone the vesting of an ulterior limitation, which the first taker cannot destroy, until the determination of an event, which may not take effect earlier than twenty-four years from a life in being, is void. " But, suppose the trustee, before renewal, to convey the legal estate to A., and he, being so possessed of the egal estate, were to renew, and then to convey the premises to C. and his heirs ; and afterwards to die having no son who attained the ago of twenty- four years ; could 1$. or his heirs, standing in the situation of |)artics, clanning under a limitation ailmitlcd CHAP. XXXIl.] OTHER PAUTIAI. ESTATES. 685 the Uius aa.alnst remoteness, arises from the reflection, that, gifts of fec- *" ..... PI simple estates, m all ordinary cases of construction, limitations oi these and of estates estates are held to operate in a manner strictly analogous to /'"'"""'''^ '-""'• the like limitations of fee -simple estates ; whence, it seems to follow, that, for all practical purposes, the difference in the nature of the two estates is not to be regarded. This argument was well put by Sir Edward Sugden, at the bar, on the discussion of the above-noticed case of Ben- gougli V. Edridge (m) : — " Suppose an estate held for lives were granted to A. and the heirs of his body, and, for want of such issue, to B. and the heirs of his body; could it be contended, that the words, ' for want of such issue,' ought to be confined to a failure of issue during the lives, and that, therefore, A. did not take a jwa^i-estate-tail ? No; but, in strict analogy to the effect given to the same limitation out of a fee-simple estate, it would be held to give A. a quasi-estaie-taW. So, if a term of ninety-nine years, determinable on the dropping of a life, is granted to a person and the heirs of his body, the grantee takes the entire to be illegal, be heard in a Court of equity, to charge the trustees with a breach of trust, or the estate in the hands of C. ? Upon this question, I do not feel myself called upon to say any thing, and would certainly wish to be silent. " Still it may said, that the fore- going instances are where the estate was conveyed to trustees, and that it is only in the case of a trust, or of per- sons who fill the character of trustees, that a Court of equity will interpose, and fix the renewed lease with the old limitations ; and that, therefore, where such an estate is devised to A. and his heirs, and if he shall have no son who shall live to attain the age of twenty-four years, to B. and his heirs, such limitation to B. is good, because it must take effect, if at all, during the then existing lives ; or, in other words, because the Court of Chancery will not fetter the renewed lease with the executory limitation to B. " Certainly, with one exception, all the cases I have found, and which I believe are to be found in the books, where the renewed lease has been subjected to the limitations of the old, are of a renewal by mortga- gee, executor, trustee, guardian, ten- ant for life, and one who has only a partial interest. But I misconstrue a late case, (^Hardman v. Johnson, 3 Mer. 347,) if it does not go a great way towards determining, that the Court would fix the renewed lease, in the case last suggested, with the ulterior executory limitation ; and, if so, it follows, that such limitation must be bounded by a reference to the rule against perpetuity." (m) 1 Sim. 225. G8G LIMITATIONS OF LIFE-ESTATES. [cilAP. XXXIL interest, for this reason, because tlie same limitation, out of an estate in fee-simple, would have given an estate-tail ; and, therefore, the law, as it docs not allow of such an estate in a chattel, would give an interest, as nearly as possible to the same extent, for the sake of effectuating the intention. Consequently, the limitations, out of these terms," (meaning the limitations in the case under discussion) " must be governed by precisely the same rules, as limita- tions out of the fee-simple are ; and, therefore, they are void," This reasoning would be irresistible, were it not for the important consideration, that questions of remoteness are sici generis, and not capable of being assimilated to ordinary cases of construction, and that their very peculi- arity, is that which meets and answers to the distinction, between estates held for lives or for a limited term of years, and estates in fee-simple. Time and duration are the elements which enter into a question of remoteness, and they constitute, also, the essential ingredients in the difference between the two classes of estates referred to. It may well enough be conceived, therefore, that a similarity in the ordinary rules of construction should obtain, while, at the same time, there might be a marked distinction, in respect to the applicability of the Rule against Perpetuities, arising from the circumstance of the nature and duration of one of the estates not admitting of any real violation of that Rule, whatever the character of any particular limitation or series of limitations, abstractedly considered. No settled Upon the whole, we may observe, that, although this rule yet arrived g^j^jg^^j. jg ^^^^ q^q gQ clear, as to be closcd against all doubt and controversy, the weight of authority and argument greatly preponderates in favor of the exemption of limita- tions of life and other partial interests from the restrictions of the perpetuity-rule ; and, if only a valid distinction could be maintained, between terms and interests (not ex- ceeding the allowed period) expressly limited as part of a general scheme of settlement, and renewable leases for lives CHAP. XXXir.] ALIENATIONS IN MORTMAIN. 687 or years determinable with lives, it might be laid down, that, in regard to the former, no reasonable question could be entertained, as to the validity of the limitations taking effect out of them. It is almost superfluous to remark, that the supposed rule Terms not dc- ^ . i-i 1 1 1 -I'l terminable with of exemption, which we have been here considering, has no u^gg n^t application whatever to terms for years, not determinable on ^^^^"jft^^Pf "f lives, of longer (unexpired) duration than twenty-one years ; for more than 111, 1 r twenty-one because, though the term be only one ot twenty-one years years. and ten days, as it is not circumscribed by the life or lives of any person or persons in existence, it is not confined within the boundary of perpetuity ; and, therefore, limita- tions of it must be observant of the same restrictive laws, as are imposed on the creation of future interests in property held in fee-simple. 3. The third class oflimitations which calls for attention, in 3. Alienation . p 1 Ti 1 • T) '" mortmain. connexion with the exceptions irom the Kiile against rer- petuities, is that technically termed, alienations in mortmain^ and to charitable uses. Alienation in mortmain, in mortud manuy in its primary signification, is an alienation of lands or tenements, to any corporation, sole or aggregate, ecclesiastical or temporal (/?) ; the consequence of which, in former times, was, that, by allowing lands to become vested in objects endued with perpetuity of duration, the lords were deprived of escheats, and other feodal profits, (o) and the general policy of the Common law, Avhich favored the free circulation of property, was frustrated ; although, it is true, that, at the Common law, the power of purchasing lands was an incident to every corporation. ( p) Against such alienations, therefore, the efforts of the Always dis- English legislature have been, from a very early period, •= more or less effectively, directed ; Magna Charta itself containing an express prohibition, disallowing the " giving («) 2 Bl. Com. 268. ( p) Shelf. Mortm. and Char. Uses, (o) 1 Jarm. Wills, 58. 27. 688 AMKNATIONS IN .MOKTMAIX. [cHAP. XXXII. Allowed under license from the Crown. Tendency of such aliena- tions to create a perpetuity. hi'.uls to ivligious houses ;" under which term, most of the corporate bodies were then comprehended. It may suffice here to observe, that it is now absolutely impossible for any corporation, spiritual or secular, (with some special exceptions allowed by the legislature, and hereafter noticed,) to acquire (either by purchase or gift) real property of any description, without, either, a general license from the Crown, enabling it to hold lands in mort- main, or, a special license, in reference to any particular acquisition. All corporations, therefore, now possessing such property, (except in the case of spiritual corpora- tions at the Common law, such as, bishops, parsons, &c.,) either were, on their original creation, empowered to hold in mortmain, or, have since obtained such a power from the Crown. And, accordingly, in the present day, many of the new corporate bodies, which are from time to time created, are expressly enabled, by their act of incorporation, or by charter, to take and hold, to them and their successors, lands, tenements, and hereditaments. Where bodies corporate thus hold lands in mortmain, there is, clearly, to all intents and purposes, a settlement in perpetuity of such lands, since it seldom happens, that cor- porations are led to make, or, with fidelity to the corporate interests, can make, absolute dispositions of their realty ; and, as regards ecclesiastical and eleemosynary corporations, (as bishops, rectors, masters of hospitals, &c.,) there is an absolute incapacity on their part, so to do ; at least, without consents, which, it is either not the interest or the duty of the parties with w^hom they rest, to grant. And, accordingly, as it has been well observed, {q) " the laws now in force, prohibiting corporations from holding lands, without license in mortmain, are founded upon the same policy as the Rule against Perpetuities — to prevent lands from being withdrawn from commerce and rendered unalienable." (7) Shelf. Mortm. and Char. Uses, 2. CHAP. XXXII. ] ALIENATIONS TO CHARITABLE USES. C89 But, the term, mortmain, as its derivation signifies, is not Alienation to . charitable uses, necessarily conhneu to the landed possessions oi corpora- of a similar tions ; it equally applies to all property, that, from the *^ *'"*^*^''- nature of the purposes to which it is devoted, or the character of the ownership to which it is subjected, is, for every practical purpose, in a dead or luiserviceable hand, (r) This, it is obvious, is the characteristic of alienations to charitable uses : it is in the very nature of such dispositions, to withdraw the subject of them from every kind of circu- lation, since a contrary course defeats their manifest object, viz., the sustentation of the charitable or religious institu- tions, or the carrying out in continuity of the benevolent purposes and designs, in favor of which they are made. Any disposition incompatible with this chief end is a breach of duty, on the part of the person or body entrusted with the office of giving it effect, and, as such, is relieved against by our Courts of equity. Land thus dedicated to the service of charity and religion is, therefore, practically in- alienable. Upon alienations of this kind, little restraint was imposed Necessity for until the reign of George the Second. At that period, as such^allena-*^" Sir William Blackstone remarks, {s) it was apprehended, **°"^- that persons on their death-beds might make large and im- provident dispositions, even for these good purposes, and defeat the political ends of the statutes of mortmain ; and, in the apt words of Mr. Jarman, {t) it appears to have been considered, that this disposition would be sufficiently coun- teracted, by preventing persons from aliening more of their lands than they chose to part with in their lifetime ; the supposition evidently being, that men were in little danger of being perniciously generous at the sacrifice of their own personal enjoyment, and when uninfluenced by the near prospect of death. The result of these considerations, therefore, was the This effected (»•) Burt. Elem. Comp. 78. (0 1 Treat. Wills, 198. (s) 2 BI. Com. -273. Y Y 690 ALIENATIONS TO ClIAUITAULE USES. [CHAP. XXXII. by 9 Geo. 2, statute 9 Gco. 2, c. 36, commonly, though erroneously, (u) *^' ^^' called the mortmain act, which, rejecting surplusage, enacted as follows : — " No manors, lands, &c., nor any sum of money to be laid out in the purchase of lands, shall be given or settled to or upon any person or persons, bodies politic, or corporate, or otherwise, for any estate or interest whatsoever, or any ways charged or incumbered in trust or for the benefit of any charitable uses whatsoever, unless such gift or setdemcnt be made by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months, at least, before the death of the donor or grantor, and be enrolled in the Court of Chancery, within six calendar months after the execution thereof, and unless stocks in the public funds be transferred six calendar months before the death of the donor or grantor, and unless the same be made to take effect in possession for the charitable use intended, immediately from the making thereof, and be without any power of revocation, reserva- tion, or Umitation, for the benefit of the donor or grantor ; proviso, that nothing shall extend or be construed to extend to any purchaser of any estate or interest in lands, or any transfer of any stock, to be made bond Jide for a valuable consideration actually paid before the making such convey- ance or transfer, without fraud or collusion." The act then provided, that all grants, settlements, &c., to or in trust for any charitable uses, made in any other manner than thereby directed, should be void ; except when so made in favor of either of the two universities, or any of the colleges therein, or the colleges of Eton, Winchester, and West- minster : and that the act should not extend to the grant or settlement of any estate within Scotland. It will be observed, therefore, that this act wholly pre- cludes all testamentary charitable provisions, out of real estate or chattels savouring of the realty, and imposes re- («) See Shelf. Mortm. and Char. Uses, 21. CHAP. XXXII.] ALIENATIONS TO CIIARIT.iBLE USES. C9l striciions on like provisions by instruments inter vivos. By this statute it is, that all charitable dispositions are now regulated and governed. In carrying out and putting a construction upon this Spirit of this enactment of the legislature, the judges have given the aidedT"th widest possible scope to its operation, and have been even judicature, astute to discover arguments, whereby cases seemingly extra both the letter and spirit of the statute might be brought within it. " Never," says a learned writer, {v) " was the spirit of any legislative enactment more vigorously and zealously seconded by the judicature, than the statute of the 9th of George the 2nd." It would be impossible, within any reasonable space, to present an intelligible view of the various distinctions that constitute the superstructure of which this enactment forms the basis ; nor would any such endeavour, if made, be more germane to the subject of this Treatise, than unnecessary, as a vain attempt to discover novelty in regions already well trodden and explored by travellers of observation, industry, and research, (w) The mortmain act does not extend to Ireland ; nor is It is confined there any other act, either of the Irish or united legislature, ° "g »" • of a similar character, applicable to that part of the kingdom. The British colonies, also, are not embraced by the provisions of the statute ; and none of them apj^ear to have any peculiar law of their own for restricting or regulating dispositions in pios usus. In fact, as Sir William Grant has forcibly ob- served, {x) " in its causes, its objects, its provisions, its qualifications, and its exceptions, it is a law wholly English, calculated for purposes of local policy, complicated with local establishments, and incapable, without great incon- («) 1 Jarm. Wills, 211. — 219; Highmore on Mortmain. (w) See Mr. Shelford's elaborate (x) In Attorney- Gerierul\. Stewart, Treatise on the law of Mortmain and 2 Mer. 164, Charitable Uses; 1 Jami. Wills, 192 Y Y 2 692 ATJENATIONS TO CHARITABLE USES. [CHAP. XXXII. gniity in the effect, of being transferred, as it stands, into the code of any other country." Questionable Whether, indeed, the operation of this stringent law be character of its r. • i i i • /• present policy, now of a beneficial character, may admit oi grave question ; and the expediency or even necessity of frequent ex- emptions from its operation, has been expressly admitted by the legislature, on a variety of occasions, when it has passed enactments, (presently alluded to) in favor of charitable and religious projects, to the reasonable success of each and all of which, upro tanto inroad upon the integrity of the mortmain act, has been by it deemed auxiliary, if not, indispensable. Upon this subject, the writer ventures to express his humble but cordial concurrence in the just, en- larged, generous, and humane observations of the author of the Treatise on Wills, (y) in reference to the present policy of the statute of mortmain. But, into this question, it does not appertain to our present purpose, further to enter. Charitable Charitable uses are of almost infinite variety, as well upon antecedent presumption, as by legal adjudication. The preamble to a statute in the reign of Elizabeth, (43 Eliz. c. 4,) passed for remedying abuses in the administration of charity-estates and funds, mentions the following, as among the charitable objects which were then recognised: — " For relief of aged, impotent, and poor people ; for maintenance of sick and maimed soldiers and mariners, schools of learning, free schools, and scholars in universities ; for repair of bridges, ports, havens, causeways, churches, sea-banks, and highways ; for education and preferment of orphans ; for relief, stock, and maintenance of houses of correction ; for marriages of poor maids ; for supportation, aid, and help of young tradesmen, handicraftsmen, and persons decayed; for relief or redemption of prisoners or captives ; and for aid or ease of any poor inhabitants, concerning payment of (y) Vol. i. pp. 211,212, 213, n. CHAP. XXXIT.] ALIENATIONS TO CHARITABLE USES. 693 fifteens, setting out of soldiers, and other taxes." To this copious list, a learned writer's researches (2) have added the following enumeration: — " Gifts for the erection of water- works for the use of the inhabitants of a town, or to be applied to the * good ' of a place, or for the general improve- ment of a town, or for the establishment of a life-boat, or of a botanical garden, to the trustees and for the benefit of the British Museum, to the widows and orphans or the poor inhabitants of a parish, (which is held to apply to those not receiving parochial relief,) or to the churchwardens in aid of the poors rate, or the widows and children of seamen belonging to a port, and gifts for the promotion of religion, in whatever terms expressed." These, of coui-se, afford in- stances only, capable of being indefinitely extended, of the various forms and features which charitable dispositions may be made to assume ; — a variety, indeed, whose extent owns no other limits than such as alike bind (not alone the sober and chastened indulgence of a benevolent inclination, but likewise,) the dictates of fancy or caprice, or the wander- ings (it may be) of a feverish imagination : and how great the latitude to be allowed to theses it were unnecessary to detain the reader with inquiring. But, content with thus bestowing a transient notice on some of the various kinds of charitable dispositions, of which instances are afforded in our judicial records, it will be proper to proceed to consider more particularly, one species of limitations, (and that, of late, not an uncommon one,) which has been, sometimes, and, indeed, the writer believes, generally, supposed to take rank under the doctrine of charitable uses ; but, concerning whose connexion with that doctrine, serious questions seem to arise ; and which, there- fore, in the alternative of their dissociation from it, appear exposed to the objection of operating an infringement on the laws against remoteness. iz) Sc€ 1 Jarm. Wills, \m. And see Shelf. Char, t^scs, 58—82. 094 ALIENATIONS TO CIIAUITABLE USES. [CHAP. XXXII. Of settlements The dispositions alluded to occur, where advowsons or S'n t?iIsTto°"^' perpetual rights of presentation are vested in a number of present incum- persons, in Irust, from time to time, as vacancies occur, to bents, as ' . i n • i i vacancies present to the cures, such spiritual persons as shall, either, be kcumbems elected by the trustees, according to some standard of byEusTet, qualification (in point of doctrinal belief) fixed by the or appointed deed, or at their own discretion, or, as shall be appointed by by parishioners. . , . . rn i the inhabitants of the parishes m question, lo these trusts, are usually added provisions for securing a regular and constant succession of a body of persons to carry out the intentions of the settlor ; and, when the object is, the appointment of clerks of a particular school of theology, or, even, (it may be) merely of such as arc zealously attached to the doctrines and constitution of the Church, regulations are prescribed, securing a similar conformity of opinion on the part of the individuals in whom the patronage is vested. Another feature occasionally assumed by these trusts, is that of their being declared of advowsons directed to he purchased with funds provided or bequeathed for the purpose, and which, when purchased, are to be conveyed to the persons and for the purposes prescribed. By these pro- Now, the first observation which occurs with respect to visions, advow- provision of this kind, is, that, by virtue of it, a settlement sons perpetu- " i' " j ? 7 j ally locked up. i^i perpetuity of the advowson is effected. A disposition for money or otherwise by the trustees at any time would be a breach of trust, {a) The advowson is, therefore, supposing these trusts good, for ever locked up ; or its transfer, dis- charged of the ol)ligations of the trust, absolutely precluded. Such provisions, consequently, (unless with any recognised class of exemptions,) on the first view, contravene the laws against perpetuity ; for (as we shall presently see) there can be little doubt, that advowsons are a species of property, the disposal of which must be observant of those laws. Whether good Are thcsc settlements, then, embraced by the exception (a) !*ei' ruliu \. Allornci/- General, 7 Bro. Pari. Ca. 2-['J. CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. fi9.5 from the Rule against Perpetuities, in favor of eharitable as gifts to uses ? Are they, in any sense of the term, dispositions in \^^ ^ ^ . 2Jios usus ? And, here, it may be remarked, there can be no cpiestion, Advowsons that advowsons may t)roperly be made the subject of cha- 'niiybc limited ^ I I J J in ptos usus. ritable gifts, (aa) Their susceptibiHty of transfers for such purposes has often been judicially recognised ; although, as we shall presently have occasion to observe, the Courts have established a rule relative to charitable dispositions of advowsons, which has an important bearing upon the question under consideration. To arrive at a proper conclusion upon the question of Nature of the charitable character of the dispositions under consider- P^°P'^'"*>' '" r advowsons ation, it is necessary, accurately to define the nature of that considered. incorporeal hereditament denominated an advowson. The property in such an hereditament consists only in the right to present a duly-qualified clerk to the bishop, on every vacancy in the cure, by death, cession, deprivation, or otherwise. That right is, at the same time, a duty, for the due and punctual discharge of which, the ecclesiastical polity and municipal laws of the kingdom have provided, by vesting in the ecclesiastical head of the diocese, a right of presentation or collation by lapse, at the expiration of a limited period ; and, again, in his spiritual superior, at the end of a further period ; and, ultimately, in the sovereign, as the temporal head of the (Church. The inhabitants of every parish, therefore, are legally entitled to be at all times su[)plied with a spiritual overseer ; and, of this right, the correlative is, a dutT/ or trust on the part of the patron, whether layman, bishop, archbishop, or the Crown, (b) It follows, that performance of this duty, or satisfaction of Trusts in this trust, can, in no case, be a charitable act, either as gusTahmbkas (aa) See Attorney- General v. Ward, vowson is a trust and duty, as well as 7 Law Journ. Chang. 115. arightof presentation to the benefice," (Jb) "A trust, a right, a patronage, per Lord Eldon, 10 Ves. 338 : and see, for benejit of the parish," per l^ord for similar sentiments, 2 Russ. 109; Hardwkke, I Vcs. sr. 415. "Ad- and also Burt. Elem. Comp. 413, 4 N. 696 ALIENATIONS TO CIIAIUTABLE USIOS. [cHAP. XXXII. gifts to charitable uses. Nor analogous to any of the charitable objects specified in 43 Eliz. regards the parish, the Church, or the Priesthood; and provision for the regular appointment or sujiply of the per- sonce impersonatce cannot, consequently, be a disposition or settlement in pios usus. The essence of charity is volun- tariness and benevolence ; and these are wholly incompatible with legal restraint or obligation. The provisions under consideration give or secure nothing beyond that which the professed objects of them (the parishioners) are already en- titled to by law ; and it is impossible, therefore, to declare them charitable. In fact, these trusts are not charitable, because they merely provide for the exercise of that right which constitutes the subject-matter of the disposition. And this point seems no less certain, with reference to the particular terms of the 43 Eliz. c. 4, than to the abstract nature of charity. It is, clearly, vain, to attempt the support of the settlements in question, as gifts for the good of the Church in the parishes embraced by them, inasmuch as no benefit thereby accrues to such parishes, of which, in default of them, they would be deprived. It is true, it has been laid down, {bh) that the grant of an advowson, " upon condition that, so often as the church shall be void, a poor scholar of a particular college shall be preferred," is a charitable gift ; but such a disposition is charitable, not on account of its providing for the supply of ministers to the void church, but as a trust for the benefit of poor or ill-» beneficed clergy ; in which light, it is clearly sustainable, as analogous to many of the charitable gifts specified in the 43 Eliz. But, in addition to all this, the point seems plain, upon the simple consideration^ that, in these cases, there is no property to be disposed of in pios usus ; and if there be no property, it is impossible to say, there can be any charitablq gift. In support of the conclusion from these sentiments, are to be adduced the opinions of several eminent judges. ^bb) Duke C'h.u. Uses, 1I3< CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. 697 In the case of Attorney-G eneral v. Parker, (c) the im- Opinions of propriate rectory of C. had been vested in trustees, for the ^i^ke and use and benefit of the parishioners and inhabitants, for ever: ^}!f'"! ^^.^'^' ^ ^ able to this there was also a perpetual curacy, with a pension of 4/. a conclusion. year, which had been formerly chargeable (together with the duty of appointing a curate) upon the owners of the rectory. An election of a minister by the parishioners having taken place, an information was brought by the Attorney-General, (at the relation, doubtless, of some one or more of the parishioners,) for the purpose of setting aside the election, on the ground of certain alleged irregularities, and also of providing for the general right of election. Lord Hardivicke having disposed of the objections raised to the election, proceeded to observe as follows : — " As to the question, whether the court ought not to make a decree to settle the right, for that, being a charitable use, the information should not be dismissed: the general rule is so, but does not hold here ; for nothing is a chargeable use here, but the pension, which is not in question." In the case oi Attorney-General v. Forster, (d) another information was filed by the Attorney-General, at the relation of several parishioners of the same parish of C, for the purpose of having an election then recently had of the defendant, as curate of the parish, declared void, on the ground of certain alleged irregularities in the admission of persons to vote in the election ; and also praying an in- junction against the licensing of the defendant. In the course of his judgment on the motion for the injunction (which was refused). Lord Chancellor Eldon thus referred to the decision in Attorney-General y. Parker, and the grounds of it : — " Lord Hardwicke, not according to his usage to put down the short principle that governed him, has said only, that he dismissed the information with costs. But the passages, appearing to be his notes of the argument, (e) 1 Vcs. sr. -13 ; 3 Atk. 57t). (d) 10 Ves. 335. 698 ALIENATIONS TO CHARITABLE USES. [CHAP. XXXII. sliow his opinion, that it was difficult, if not, impossible, to hold, that the information teas a due proceeding ; for he thought, the only object of an information by the Attorney- General was, to secure the revenue of the curate, who was to do the duty, viz., the stipend between 3/. and 4/. ; and as to the nomination by the trustees to the bishop, &c., it tvas all a private stiit : as if there had been trustees of an advowson or any other preferment : the cestuis que trust calling upon them to exercise the legal right in them, according to the trust : and I doubt, whether the information was not dis- missed upon that principle, as much as upon any other; when it was found, that the election could not be disturbed." At a subsequent period, the cause came on to be heard under the na.vaeo't Attorney-General v. Newcombe,{e)\vhcn Lord Eldon pressed upon the counsel, the objection, (noticed by him on the previous occasion,) that the Attorney- General could not maintain the information. It was con- tended for the relators, that this might be considered in the nature of a charity, and, therefore, the subject of an infor- mation, as a provision securing to the parishioners the benefits of religion, and providing for the selection of the most proper person to do the duty of minister of the parish. On the other hand, it was said, that the effect of the original transaction was, an agreement by a number of private individuals, to purchase the hving, and thereby to gain a right of nomination to the per^^etual curacy : that no distinction as to the jurisdiction could arise from the number of individuals becoming proprietors of the living : and that, if the Attorney-General might interpose, he would have the same right, supposing the number to be five or even two, in the case of a dispute between them. Lord Eldn7i Siild: — "When it shall have been ascertained, who arc the ])crsons described in this deed as parishioners and inhabitants, in whose persons is constituted the cha- (e) H Vcs. 1. CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. "^" meter of cestuis qtie trust entitled to the beneficial interest, by nominating the curates, those persons, like other cestuis que trust, have the right to call on the trustees in this Court ; and it is merely the ordinary case of a cestuis que trust of an advowson calling upon a trustee to present upon his nomination. The curate, when nominated, is en- titled to the stipend ; and Lord Hardwickes opinion is clear, that, as far as the title to that liquidated stipend is in question, it is in the nature of a charity ; with regard to which, there is a right in the Attorney-General to sue. There is an intimation in Vesey, and the fact is unques- tionable, upon Lord Hardwicke'& note, that his lordship had considerable doubt, whether, regarding the parishioners and inhabitants, whoever answer that description, as cestuis que trust of this rectory, having the right to nominate the curate, that is a title so much in the nature of a charity, that the party would have a right to sue in the name of the Attorney-General." Again, — " What Lord Hardivicke would have done, if he had thought that election invalid, I know not : but he has left evidence, that he had very considerable doubt, whether he could have dealt with the question, as to the right of election, upon the ground of the information ; and I think, there may be found in many cases, reason to conclude, that Lord Hardwicke would have hesitated long, before he would have executed this as a charity." His lordship then proceeded to consider the case, upon the footing, either, of a private right, or, of a public charity, and dismissed the information with costs. Li the recent case of Attorney-General v. Cumi^ig, (/) And,apparent- the advowson of the vicarage of another parish of C. had i\r^j_\^ ^.^ been vested in trustees, in trust, from time to time, to -^'■««> V. C. present such clerk to the vicarage, as the parishioners and the trustees should elect : new trustees were appointed, as occasion, and the terms of the original trust-deed, required : {f) -2 You. and Coll., N. C. C, 139. (00 ALIENATIONS TO CHAUITABI.E USES. [CIIAP. XXXII. Uncertain testimony of other autho- rities. and an election of a clerk having recently taken place, an information was filed, at the relation of the person elected, and two of the parishioners, against an unsuccessful candi- date, the trustees, and the bishop; praying, that the elec- tion might be declared valid, and that the trustees might be ordered to present, and the bishop to induct, and that the bishop might be restrained by injunction from instituting the clerical defendant. The injunction having been granted, and a motion to dissolve it refused, it was objected, in the argument on the hearing, that an information was not the proper mode of proceeding ; and Sir /. L. Knight Bruce, V. C, thus observed, as to this point : — " A doubt at least was suKffested during the argument, and had before occurred to my own mind, whether this was a proper case for an information. It is, however, an information and bill. The information and bill are severable ; and supposing it to be a case, in which the Court ought to act either upon infor- mation and bill, or upon information or bill, there could be no substantial difficulty in dealing with the record, on account, as I have said, of the severable nature of its two portions." " It is not necessary, therefore, to express any opinion, whether this is or is not a proper case for an in- formation and bill." The doubt here expressed by his honor, doubtless, had reference to the point, to which the abovc-tjuoted observations of Lord Eldon were directed. Notwithstanding, however, the unfavorable character of judicial sentiments in reference to the charitable nature of the trusts in question, cases are to be found in our reports, nearly similar, in which, jwints connected with their regu- lation, or with the election of ministers in pursuance of them, have presented themselves to the Courts, and in which, the mode of proceeding has been an information by the Attorney-General for the time being, or an information and bill, and in which, at the same time, no objection was taken, judicially or otherwise, to the correctness of the J'J CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. 701 course, {g) On the other hand, authorities are to be found, where questions, exactly the same, have been decided in private suits, without any hesitation as to the necessity for the concurrence of the officer of the Crown ; (h) and in one case, an objection raised, on the ground of the non-concur- rence of the Attorney-General, was expressly over-ruled, (i) Now, although it is true, that the joinder of the representative of the Crown, in the former cases, proceeded on the suppo- sition, that the subject, in behalf of which the relief and in- terference of the Court was sought, was a charity, (Jc) yet, as a bill is generally united with the information, the decision upon such a mode of proceeding, did not necessarily assume the propriety of the interference on the part of the officer of the parens patriae ; while the adjudication of questions connected with the settlements under consideration, in the latter of the classes of cases above-alluded to, in the absence of the Attorney-General, and without any objection being raised upon that ground, obviously pre-supposed the validity of such proceedings, without the concurrence of the repre- sentative of the Crown. The result, therefore, of investigation of judicial records But general result decided- upon this subject, is, unquestionably, confirmatory of the \y unfavorable conclusions to which we were led upon theory and prin- characte?of^ (.jplg^ these trusts. Before dismissing this part of the subject, it may be observed, that, when advowsons are ordinarily made the subject of charitable dispositions, our Courts of equity require the trustees to make such profit of the right of presentation (for the benefit of the charity) as is permitted by law. (/) This rule is, obviously, indicative of a general notion as to the proper character of charitable trusts, in no ig) Attorney. General V. Scott, 1 (») 14 Ves. 19. Ves. sr. 413. Attorney General \. {k) J\xAgraGni m Attorney- General Rutter, 2 Russ. 101 , n. v. Breton, 2 Ves, sr. 426. (A) Fearon v. Wehh, 14 Ves. 13. (/) See Shelf. Mortm. and Char. EdenhoTOugh v. Archbishop of Canter' Uses, 716. bury, 2 Russ. 93. 702 AT.IENATIONS TO CHARITABLE I'SES. [ciIAP. XXXII. way favorable to tlie including therein the provisions in (juestion, inasmuch as, from the nature of the case, any such rule is wholly inapplicable to them. Notwithstanding the utter want of any solid ground for construing the trusts under consideration as charitable, the writer believes, that such an opinion is entertained among some practitioners, inasmuch as deeds creating those trusts have, under advice, been sometimes executed, with the for- malities prescribed by the statute, 9 Geo. 2, c. 36. Pro- bably, however, the recommendation of this course has proceeded from that supererogatory caution with which, (perhaps, hajipily,) the practical details of every branch of our jurisprudence abound. Advowsons Having ascertained, that the provisions imder considera- rico<'nised as tion are not capable of being substantiated as dispositions m subjects of • i^gifg [i remains to be inquired, whether there are any commercial J ' i ' -^ dealing, and considerations of sufficient magnitude, to entitle them to within scope of • p i i • t» laws against exemption fi-om the operation oi the laws agamst rerpe- tuities. Advowsons are, most undoubtedly, recognised by our Courts of law and equity, as a proper subject of commercial dealing : as well, because actions and suits based upon that assumption are of constant occurrence; as, because advowsons are held to be real assets for payment of debts, (m) The legislature, also, in j)roviding for the sale of advowsons and other ecclesiastical patronage, held by municipal corpora- tions, on the occasion of their recent reform, has expressly sanctioned pecuniary traffic in this species of property. The Church, indeed, (in the writer's opinion) favors no such bartering with the patronage of her spiritual appoint- ments : with her, questionless, it partakes of the aggravated sin of simony. From laudable motives of policy, she may have parted with the right of nomination to her posts and cures, in consideration of the original endowment of (m) Burt. Elem. Comp. 413, 414. Ram on Assets, 153. perpetuities. CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. 7C3 tliem by laymen : but she still takes cognizance of the design and grand end of that patronage, and of the qualifications of those who are destined to promote them ; and, in that view, she condemns, as profane and sacrilegious, the transfer for money of the privilege of nominating to her offices. But, to retui-n, advowsons being legally transferrable by And primd sale, are clearly, so far, embraced by the laws, whose object {"ugts'in^^'^ °'^^' is to prevent undue restrictions upon the right of alienation, question m- , , . valid as and the trusts in question, consequently, as contravening creating a those laws, would be invalid. And, even, were not advow- ^^^^ " sons a recognised subject of transfer for pecuniary conside- ration, it should yet seem, that the right of gift and devise which would still be appurtenant to them, could not be legally infringed by dispositions, withdrawing them from every kind of transfer, alienation, or settlement, in all future time. These are the conclusions to which we are unavoidably led, anterior to any considerations that may arise, peculiar to the nature of the property in question. Whether there be any such, of sufficient weight to decide the validity of the dispositions under review, in reference to perpetuity, it will be proper shortly to inquire. But, lest any theoretical discussion of the point should be considered as possibly precluded, by the judicial recognition of these settlements, it must first be seen, how far this alternative is presented by the authorities. In the before-mentioned case of Attorney-G eneral v. The provisions Forster, Lord Eldon remarked : {n) — " Originally, indepen- srnct"ioned as dent of the decisions, I should have had considerable doubt, ^^ ^^^^ ^omx. whether the Court would have executed such a trust. Some of the cases of charitable dispositions come very near this; and the Court has thought, they could only be executed qy-pres ; and it would have been questionable, whether a parish could take it. But that is shut out by (m) 10 Ves. 340. 704 ALIENATIONS TO CHARITABLE USES. [cHAP. XXXII. decision." And, again, (o) — "Upon this case, it struck me at first, as a point of considerable doubt, whether the Court sliould execute such a trust. If it was unprejudiced by decision, that doubt might be maintained by strong argu- ment : but it is too late now even to state it ; for there is authority binding my judgment entirely upon that. I have looked through the notes of Lord Hardwicke, who appears not to have entertained any doubt, that he was bound to execute the trust." What was the exact character of the doubt, and what were the decisions, here alluded to by Lord Eldon, it is difficult to discover, from the report of his lordship's judg- ment in the case in question. That the former, however, did not contemplate any question of perpetuity, seems clear, from the connexion between the expression of the doubt, and the mention of the "parish taking it:" it appears, in fact, to have had regard, simply, to the capacity of such a body as that of the parishioners or inhabitants of a place, to take or be entrusted with the exercise of the right of patronage to the ecclesiastical benefice thereof. Whether this question referred to the indefiniteness of the body referred to, or to the want of any precedent or analogy, in the general ecclesiastical polity of the country, it is impos- sible to say. Most probably, however, this was the real ground of the doubt made by the learned lord ; as his lord- ship, as well as Lord Hardwicke, on several occasions, con- demned, in no very measured terms, popular parochial elections, (j?) The decisions to which I>ord Eldon referred, were, doubtless, some of those already mentioned in con- nexion with the question of the charitable nature of the provisions under consideration. Certain it is, that the Chancellor's remarks had no relation whatever to one class of these provisions, viz., those vesting advowsons in trus- tees, in trust, from time to time, to present clerks of their (o) 10 Ves. 342. 346, 347 ; 2 Russ. 104—110. (^p) Sec 1 Ves. sr. 414; 10 Ves. CHAP. XXXII.] ALIENATIONS TO CIIAUITABLE USES. 705 own selection ; and these, therefore, are entirely unaffected bj any inference derivable from Lord Eldons observations. In addition to the sanction, thus qualified and explained, of Lord Eldon, is to be adduced a similar expression of approval from Sir /. L. Knight Bruce, V. C, in the above- cited case of Jttorney-General v. Cuming, where that learned judge remarked (5^) : — "I quite accede to the obser- vation, which has been made, that this is a trust recognised by the law." This sentiment, doubtless, had reference merely to a view of the validity of the trusts in question, similar to that present to the mind of Lord Eldon, in the above-quoted observations. But, even supposing the support thus extended to them, incapable of being limited to any particular ground, it is clear, that that circumstance cannot be deemed of very con- siderable importance in reference to the point now under consideration; for, in none of the cases presenting instances of these provisions, was there any adverse claim by persons interested to establish their illegality : in all of them, the proceedings assumed the validity of settlements of advow- sons in perpetuity, and related solely to the practical carry- ing out of them, as between persons whose position and rights did not lead to any antecedent inquiry into their real nature and operation. The question is, therefore, still res Integra; and its consideration unprejudiced by authority. The first observation which occurs, is, that, although the Considerations law may not disallow the sale of advowsons, and may other- ^!^."'^.'".?/<^ '' ^ J ciiminisli or wise treat them as equally susceptible of settlement and remove . objections to transfer, with inheritances of a more substantial character, these settle- yet, that they are not strictly within the scope of the law Xows°ons in against Perpetuities ; the design of which is, to promote com- P*-''petuity. mercial prosperity, by facilitating the transfer of all property reasonably required for commercial circulation, dealing, and interchange ; which cannot be predicated of perpetual rights (9) 2 You. & Coll , N. C. C, of advowson in that case, Appendix, 158. Sec statement of trusts declared No. VI. Z Z 700 ATJKNATION!^ TO rTIARITART-E V9.FS. [cHAP. XXXII. of presentation. But, this is a consideration, which, if of any influence at all, goes to the whole question of the applical)ility of the Rule against Perpetuities to limitations of advowsons ; and, in that view, it, clearly, proves too much, since it has been long settled, that the devise of an advow- son to a person not necessarily capable within the pre- scribed period, is void for remoteness, (r) It may be observed, however, that this reflection is supported by the remark, formerly made, that an advowson is a public trust, the discharge of which constitutes the correlative right of the patron ; and to this, it might be added, that a duty or the discharge of a })ublic trust is not a property within the purview of the laws securing freedom of alienation. A reflection of a similar character is, that the right of ecclesiastical patronage (the alone element in this species of propert}') is regarded by the law, as imposing a permanent obligation, the person invested with which has, in the eye of the law, no interest nor existence, (quoad the advowson,) except in relation to the discharge, as occasion arises, of the public duty, wherein consists his property ; or, in other words, that the right of patronage is itself a continuity of office, the mode of succession to or acquisition of which is not matter of legal cognizance, so as there be an individual representing it, or the corresponding trust, whenever the period for its exercise or performance ai'rives. Or, the argu- ment may be dift'erently stated, as showing, that the law regards the office of patron only as an incident to the trust or duty, and docs not deem the right of patronage as itself a substantive property, the enjoyment of which is of any intrinsic value, or individual importance, apart from the object designed in the institution of patronage. To a theory of this kind, however, there is the same objection, as that noticed in reference to the previous hypothesis, namely, that it tends wholly to exempt advowsons from the operation (r) Proctor v. Bishop of Bath and served upon, supra, p. 465. Wells, 2 H. Bl. 358 ; stated and ob- CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. 707 of the laws against remoteness; a position, which is not sustainable, consistently with established decisions. A third consideration (of a different character) is, that the trusts, whose validity is in discussion, though of a nature, which, in regard to other kinds of property, would be exposed to objection, as rendering property unalienable, in fact and reality, only provide, by a perpetual succession of patrons, for the due and regular exercise of that right, or the discharge of that duty, in which alone the ownership of ecclesiastical patronage subsists: that, in fact, the right protected and created by law, and the provision made by the trust, are reciprocal and coextensive. This is an im- portant view of the question, and, at all events, clearly shows, that advow^sons are a species of property, sui generis, and that, in their connexion with the laws against Perpetuities, they are not to be violently assimilated to other descriptions of proprietary rights. The individual or combined weight of any or all of these But their considerations, it is impossible accurately to determine, in ^f hl"^ ^"^^ the absence of judicial guidance. The writer is unable to questionable, suggest any other grounds, which can assist the dispositions under observation, or, any, sufficiently potent to justify a conclusion in favor of their validity. The point is one, as far as respects adjudication, primce impressionis ; and although the trusts in question are, in the writer's opinion, unsustainable as charitable uses, and have an undoubted tendency (nay, themselves operate) to lock up the subject of them in all time, yet, the frequency of their occurrence, and the presumption derivable from judicial and profes- sional silence, would certainly favor the view of their vali- dity, should the point ever call for decision. Perhaps, however, the circumstance of the tacit recognition of these trusts may be found simply to illustrate the truth, that doc- trines may, for a long time, be generally received, even among learned bodies, which investigation and inquiry may demonstrate to be insupportable ; or, to borrow the w^ords of z z 2 708 ALIENATIONS TO CHARITABLE USES. [CIIAP. XXXIL Special exemptions from rigor of laws against grants in mortmain or to charitable uses, allowed by the Legijlature, The posses- sions of the Church not enihraced by th(! laws ])ro- \iding for the free circula- tion of pr(Ji)crty. an eminent Scotch judge, here may prove to be " another consequence of taking propositions for granted ; of going upon understandings which have never been canvassed." {s) To return to the general subject of mortmain and cha- ritable uses : — 'J'hc stringent restrictions upon alienations in mortmain and to charitable uses, have been remitted bj the Legislature, in favor of various religious institutions and objects, which it has lent its assistance to promote. Among the different purposes, for which the grant of lands has been thus permitted, may be mentioned, the erection of new churches, the building of school-houses and rooms, the enlargement of church-yards, the augmentation of small livings, the endowment of benefices with glebe or parson- age-houses, and the general purposes of the board of Go- vernors of Queen Anne's Bounty, and the Commissioners for building new churches. In addition to these, relaxation has also been granted, in favor of various charitable societies and institutions, {t) which it is unnecessary to particularize. It is only to be observed, that, in all these cases, the laws against Perpetuities are substantially superseded, since the exercise of the privilege conferred by the Legislature entirely withdraws the land alienated from commerce and circulation. It remains, to take notice of a certain description of pro- perty, of very great importance, to which the rules of law securing freedom of alienation, are clearly and entirely inapplicable ; the inalienability of which is, in fact, attri- butable to the Law itself, and forms as much a portion of its general policy, as the provisions against Perpetuities. The property in question is that constituting the possessions of the Church, and forming the endowments of her various dignities and cures. Wlicther in the nature of tithes or commutation rents'-charge, or land, pro])erty belonging to the (Church is in law for ever set apart to the use and benefit (a) Per Lord President Hope, quoted Sandf. Entail, 320, n. (0 See 1 Jarm. "Wills, '215, 216; Shelf. Mortm. and Char. Uses, 42 — 57. CHAP. XXXII.] ALIENATIONS TO CHARITABLE USES. 709 of those who minister in her service ; and its perpetual devolution in the same line of successors, is effectually se- cured by the rule of law, that the interest of each individual possessor is confined to his life, and his power of disposition equally limited. Property thus circumstanced presents a broad contrast to all the other territorial possessions of the kingdom ; for, while these are constantly experiencing changes of ownership, both in kind and extent, the former knows no other than class (spiritual) proprietors, and they never entitled to more than a contracted dominion. And it is unnecessary to remark, that the value and extent of property so abstracted from general circulation, for the sup- port of the Christian ministry, would now be much more considerable, had not the Church been unjustly and tyranni- cally despoiled of a fair portion of her possessions, at the ever-memorable aera of the Reformation. Whatever, how- ever, the (reasonable) proportion of national wealth thus withdrawn into the precincts of the Church, the exception, in its favor, from the general laws of property of the realm, is no less certain, than creditable to the religious faith and sincerity of the governing powers of the State. 710 CHAPTER XXXIII. OF PERPETUITIES ALLOWED OR CREATED BY ACT OF PARLIAMENT. At Common law, remainder or revcrson in Crown after estate- tail could not be barred by tenant in tail. As there is no rule or principle of law so universally expedient or just, but that superior reasons may demand the recognition of exceptions from its operation, so in past ages, it has been found advantageous to the public weal, that special laws should be established, and particular regu- lations adopted, whose scope and tendency exhibit a striking contrast to that grand feature in the jurisprudential polity of this country, which aims at promoting the circulation and commercial interchange of property of every descrip- tion. To a short consideration of the nature of these peculiar instances of Legislative interference, a few obser- vations must now be addressed. Prior to the statute De donis conditionalibus, if the king created a conditional fee, by a grant to a man and the heirs of his body, no reversion remained in the Crown, but, simply, a bare possibility of reverter; and if the donee had issue (whereby the condition was performed), and afterwards aliened, the king's possibility was barred, no less than that of a common person, (m) When the statute De donis had converted the possibility of reverter into a reversion, and when, subsequently, the force and validity of a common recovery, as an effectual bar of the estate-tail, with all remainders and reversions. ( h) Pig. Kcc. 'Co. Cru. Dig. lit. xxxvi., c. 13, b. 20. CHAP. XXXIII.] PERPETUITIES ( REATED, &C. 711 was established, the question aro-e, whether, in the case of a reversion in fee expectant on an estate-tail beinp; vested in the Crown, the destructive operation of the recovery could have place. And it was settled, that, by the pre- rogative of the Crown, the reversion, in such a case, could not be barred by a common recovery ; although the estate- tail itself, and all intermediate remainders, between it and the reversion, were destroyed : the recovery, in fact, created a kind of base-fee, determinable with the failure of the issue of the tenant in tail, either alone, or conjoined with the ex- tinction of the intermediate estates (accordingly as any such were or were not limited), {v) And when the interest of the Crown was in the nature of a remainder limited in a private grant, or accrued by forfeiture, it was ruled, that it was equally indestructible ; although, as well prior re- mainders, as all suhsequent estates, and the reversion, were absolutely barred by the recovery, (lo) A fine, also, levied by a tenant in tail, with an expectant reversion or remainder in the king, was (as it seems) deemed an effectual bar to the issue in tail, under the statute, 4 Hen. 7, c. 24 ; but such a fine derived no force under the statute, 32 Hen. 8, c. 36, (which first made fines direct legal bars of estates-tail,) for that statute expressly excepted from its operation, fines levied of lands, the re- version whereof was in the Crown, and provided, that they should have no greater efficacy, than previously to its passing. By the statute, 34 and 35 Hen. 8, c. 20, it was enacted, Statute 34 and that no feigned recovery, by assent of parties, against any IJq prollibking tenant in tail of any lands given by the Crown, whereof bar of cstate- , . tail remainders the remainder or reversion, at the time of such recovery or reversion, had, should be in the king, should bind the heirs in tail, tail granted " whether any voucher were had in such recovery, or not : '^^ a reward tor •^ J ' ' services, and but that, after the death of every such tenant in tail, the while re- («) Pig. Rec. 86, 87. Prest.Conv. Burt. Elera. Comp. 242. Rand. 19,146. 2 Cru. Fi. and Rec. 335, Perp. 184. 336; Dig. tit. xxxvi., c. 13, s. 20. {w) Prcst. Cunv. 19, 146. 712 PERPKTUITIES CHEATED DY [ciIAP. XXXIII. mainder or licirs 111 tail might enter and enjoy the lands according; to reversion in , ,. i- i •<> i "^ i i • i Crown. ^'ic form ot the gitt ; the recovery, or any otlier tlnng done or suffered by or against such tenant in tail, notwithstand- ing. In the preamble of this statute, mention was simply made of lands granted for " recompense of service ;" and it has, therefore, always been held applicable to estates-tail in such lands only, (.r) It is clear, however, that the statute e({iially embraces lands of the purchase or provision of the Crow77, if granted at the instance of the (^rown, and as a reward for services, (y) And it has been also adjutlged, that, b}' this statute, nofitie levied by a tenant in tail of the gift of the Crown, while the remainder or reversion is in the Crown, shall operate as a bar to the issue in tail, or shall affect the remainder or reversion of the Crown. (^) By the statute, 34 and 35 Hen. 8, then, all tenants in tail, by the gift or provision of the Crown, in reward of services, are precluded, while a remainder or reversion remains in the Crown, from barring or destroying, either by fine or recovery, the estate-tail, remainders, and re^^ version, or any of them. But, it must be noted, that this protection continues only so long as the remainder or re- version subsists in the Crown, for if it be granted to or become vested in a private person, the tenant in tail may immediately suffer a common recovery, or execute a dis- entailing assurance, and thereby acquire the fee-simple, {a) Where pro- At the present day, indeed, if the lands comprised in the anclonr'^os' Gstatc-tail form part of the ancient possessions of the Crown, ^c it is impossible for any alienation of them to take plac of se-sions of the it is impossible for any alienation of them to take place : Crown, its ... . remainder or the (]rown having bccn deprived, in the reign of Anne, of reversion cannot be ^"C powcr OT grautmg away such possessions; and, ni that alienated, and case, therefore, the property is absolutely and entirely un-^ (t) Dy. 32 ; 1 Sir W. Bl. 654. and authorities there cited ; and 1 1 Prest. Conv. 145. Prest. Conv. 221. (y) Pig. Rec.9i. 1 Prest. Conv. (n) Pig. Rec. 88. 1 Prest. Conv. 145. 18,145. {z) Sec I ( ru. ri. & Ilcc. 312, CHAP. XXXIII.] ACT OF PARLIAMENT. 713 disposable, without resort to the aid of Parliament. When, perpetuity of ^ • J 1 entail created. however, the Crown is only entitled to a remainder, under a grant from a subject in the instrument creating the estate- tail, it does not seem, that the alienation of that interest (cither to a stranger, or to the tenant in tail,) is precluded, since, on the hypothesis, it does not subsist in any portion of the hereditary possessions of the Crown. In such case, consequently, it is in the power of the Crown, by depriving itself of the remainder, to withdraw "the property (and, therefore, the interests of the issue, and the intermediate remainders,) from the protection afforded by the 34 and 35 lien. 8. Although the statute of Hen. 8 is confined to estates-tail Common law . 1 . r • 1 prerogative of granted as a reward for or in consideration of services, and Crown not the prohibition against the bar of the heirs in tail and the (.ases°not ^" remainder-men applies only to such estates, yet, the old embraced by ^A . -^ . . 34&35Hen.8. Common law prerogative of the Crown still subsists, whereby every reversion or remainder, expectant on an estate-tail, vested in the Crown, (whether by direct grant or reser- vation, or by forfeiture or escheat,) is preserved from the operation of common recoveries and disentailing assurances, suffered and executed by the tenant in tail, (b) Such re- coveries and assurances will bar the issue and all ulterior estates limited to subjects ; and, in the case of the interest of the Crown being a remainder in tail, those estates (to- gether with the ultimate reversion) will be barred, whether precedent or subsequent to the remainder of the Crown, (c) It is to be observed, that all estates and interests carved , out of a reversion in the Crown are protected by the statute of Hen. 8, so long as the ultimate fee remains in the Crown : (d) but, on the other hand, an estate for life or years granted to the Crown, out of a reversion originally reserved to a private person, is not such an interest as will (6) Pig. Rec. 86, 87. 1 Prest. (c) 1 Prest. Conv. 146. Conv. 19, 146. Burt. Elcm. Comp. {d) 1 Prest. Conv. 18, 19. 242. 714 PEUrETUiriKS CUKATEI) BY [ciIAP. XXXIII. Provisions of 34 A; '.V) Hen. 8, not allowed to 1)0 tViuulu- lently resorted to, in order to create unbar- rable entail. Provisions of 34 &. 35 Hon. 8, not aflFeeted by 3 & 4 Gul. 4, c. 74. But Common law jtreroga- tivc of the preclude the tenant in tail from barring }iis estate-tail, and all the reniaindcrs and the reversion (including, of course, the interest of the Crown), (e) It has been wisely determined, that the provisions of the statute of lien. 8 shall not be resorted to, for the mere purpose of indirectly creating unbarrable estates-tail, and thereby raising a perpetuity. Therefore, where a person conveyed lands to the Crown, with an intent that the Crown should reconvey to the same person in tail, reserving the ultimate reversion to the Crown, it was held, that such an estate-tail would not be within the protection of the statute, (ee) It is, of course, clear, that, in the case of a remainder or reversion vested in the (^rown, expectant on an estate-tail not granted for services, the tenant in tail may levy a fine, which will be attended by the like effect, as in all other cases; viz., the creating a base-fee determinable with the failure of issue of the tenant in tail. And the same may be declared of an enrolled assurance executed by a tenant in tail in remainder, under the statute for abolishing fines and recoveries. A serious question, in reference to the subject before us, arises upon the provisions of the statute, 3 & 4 Gul. 4, c. 74, for facilitating the barring of estates-tail. By the 18th sec- tion of that act, it is provided, that the general power of disposition thereby granted to tenants in tail, shall not extend to tenants of estates-tail, who, by the statute, 34 and 35 lien. 8, or by any other act, are restrained from barring their estates-tail. So far, consequently, as respects the protection thrown over estates-tail, with the ulterior re- mainders and reversion, by the statute of lien. 8, it is clear, the recent disentailing act effects no alteration in the law. But, it will be observed, the ordinary yirerogative of the Crown, in reference to reversions on estates-tail not granted (c) Pig. Ree. 8f!, B!J. earl of Dcrht/, Pig. Ree. 201; 11 (ee) Johnson d. earl of .Imjkuvu v. 3Iod. 304 ; 2 Show. 104. CHAP. XXXIII.] ACT OF PARLIAMENT. "15 for services, or to remainders or reversions derived by the Crown not , , excepted from Crown under private grants, or by forfeiture, did not and operation of does not arise under any statute, but is of Common law gtatutir '"""^ origin solely. If regard be had, therefore, to the terms of the above-mentioned provision in the recent statute, it should seem, that the ancient privilege of the Crown, in cases not provided for by the statute of Hen. 8, is wholly taken away : and this conclusion is strongly supported by the fact, that the general enabling clause in the act expressly mentions " the King's most excellent majesty, his heirs and succes- sors," among those, against whom the power of disposition thereby conferred should be operative ; which satisfies the general rule of law, that the Crown must be particularly named in an act of Parliament, in order to be bound by it. The object and intention of the statute, 34 and 35 Hen. 8, object and it has been well said, (/) is the perpetuation in families, of 3"4^&*3™ '^ those estates which were given or procured to be given to H*^"- ^• them by the Crown, as a reward for some eminent services, that they might be a perpetual testimony of the munificence of the Crown, and an inducement to those families, to per- severe in that loyalty which was the original cause of the gift. And to this, it may be added, that the preamble of the statute shows plainly, that one purpose of the enact- ment was, the maintenance in respectability and comfort, not alone of the immediate objects of the grant, but also of the posterity of those who are rewarded for signal services rendered to the State, so that the recompense may be more substantial and permanent. In some respects similar to the statute, 84 and 35 Hen. 8, Legislative and the perpetuity of settlement eifected by it, are those estates L national provisions for particular distinguished individuals, |^^°^."^ and their descendants, with which the Crown and Parlia- Marihornvrjh , Till- ^"'^ Wdliny- ment have sometimes honorably rewarded the achievements ton. of bravery, and the exploits of patriotism. It has been (^■) Sec I Cru. Fi. and Ilcc. 320. 716 PERPETUITIES CHEATED, &C. [ciIAP. XXXIII. justly said, {g) that, " since the age has lost the fire of chivalry, or virtue has been more duly rewarded, the stimulus of visible magnificence has been a favorite policy, or its riches have been deemed the just reward of merit." With one instance of this kind, almost all are familiar, — that, namely, of the Legislative {h) settlement of the estates of Blenheim, upon the famous Duke of Marlborough and his posterity, subject to a prohibition against the performance of any act, to unfetter the entail, or to withdraw the estates from the strict line of devolution pointed out by the statutes creating the settlement. To this day, the provision thus made for the family of Marlborough has been maintained in all its integrity, (excepting the occasional conferring of special powers, in order to needful reparations, &c.,) as well by the Legislature, as by the judicial interpretation of the statutes granting it. Another public recognition of eminent services, closely resembling the one just mentioned, is that afforded by the settlement of estates in perpetuity, upon the Duke of Wel- lington and his descendants, subject to restrictions similar to those imposed in the case of the Marlborough provision, accompanied by others, equally stringent, in reference to the mode and extent of enjoyment of the property by the successive inheritors of the title and estates, {i) The beneficial character of these variations from the general spirit and provisions of the laws of property, can be questioned, as little as the extraordinary merits of the individuals, in whose favor, and in favor of whose families, they were made ; and, in reference to their general bearing upon the subject of this Treatise, it may be said, exceplio probat regulam. {g) Rand. Pcrp. 176. («) See statutes, 41 Geo. 3,c. 59; (A) Sec statutes, 3 & 4 Anne, c. 42 Geo. 3, c. 113; 54 Geo. 3, c. 6 ; 5 Anne, c. 3 ; 5 Anne, c. 4. 161. 717 CHAPTER XXXIV. OF THE LAW OF SCOTLAND AS IT RELATES TO PEBPETUITIES. Between the laws of England and Scotland, as respects the subject of Perpetuities, there is a most extensive diffe- rence, almost amounting to utter contrariety. In a former part of this Treatise, it was seen, that the Observations as commercial activity which arose at an early period of the laJ's™! '^^^^ ° history of Eny-land, and the exercise of knowledge and of al'enation in •J ^ ^ c Scotland, art which resulted from it, added to the influence of the commons, and, in proportion, diminished the aristocratic power. The effect was soon visible in an inroad upon the feodal system, as respects the laws of alienation which pre- vailed under it. But, in Scotland, where the same improve- ments were not so rapidly disseminated, it was much longer before the restraints of that system were even partially re- moved, {k) It has been well observed by an elegant writer, (/) that the liberal opinions consequent on the increase of wealth, and on the rise of the middling orders into rank and power, did not find their way so early into that kingdom. Scotland did not possess those local advantages, nor that vigour of enterprise, which led to an early collision between the Enirlish and the nations of the south, and enriched them, not merely with the productions of other regions, but with (A) Sandf. Entail, 30. (/) Sandf. Entail, 32. 718 LAW OF SCOTLAND IN [CIIAP. XXXIV. They permit at present day the strictest unbarrablo entail tliat can be made. 1 . Entail by simple desti- nation. a knowledge of the free institutions, and a love of the liberty of action, which, after a long period of human degra- dation, again appeared in those states, whose power and fame were founded on their conniiercial })rosperity. The influence of the principles of feodalism upon the laws of alienation and settlement in Scotland, is still great ; and the enlarged notions of commercial freedom which have long prevailed in this island, have never found their way into the jm-isprudential polity of its northern neighbour. This has been the source of frequent and just regret, on the part of very many eminent laAvyers and statesmen of that country ; and as much leniency and liberality have been introduced by the judicature, into the practical working of the system of entails in Scotland, as it is capable of. But still, it may be affirmed, that, by virtue of the Scotch system of entails, (one, too, recogni/x^d by and based upon Statute,) lands in that country may be tied up in a perpetuity of settle- ment, to an indefinite extent, and the parties successively taking under it be wholly precluded from exercising any of those rights (of alienation, pledge, leasing, &c.,) in which the ownership of heritable property really and substantially consists. The settlor has but to comply with the provisions of the law, in explicitly declaring his intention, and suffi- ciently guarding and giving effect to it, and his property may be enchained in a series or succession of entails, to which there are no limits, less extensive than his ability to select objects for his dispositive scheme. To confirm these general remarks, it may be well, briefly to state the principal features of the system of entails, which prevails in Scotland. 1. The most unfettered of Scotch entails much resembles the simple estate-tail in England. It is called an entail by simple destination, the effect of which is, to vest the property in the various substitutes, (that is, the grantees or donees,) according to the order of succession pointed out in the CHAP. XXXIV.] RELATION TO PERPETUITIES, 719 entail, as long as no alienation is made by any of the heirs of entail succeeding to the estate ; but, as each such heir of entail is in law a fee-simple owner, he may alienate the lands, or alter the mode of succession, at his discretion, (w) When these entails by simple destination contain (as is sometimes the case,) a clause of return to the grantor and his heirs, on failure of the grantees, the land may still be alienated for valuable or pecuniary consideration (or, to observe technical phraseology, for an onerous cause). In reference, however, to gratuitous (or, as the expression would here be, voluntary,) alienation by the disponees taking under the settlement, the right to make such a gratuitous disposition, in prejudice of the clause of return, will depend on the character of the original settlement. If that be gratuitous, the clause of return is held to be a con- dition of the grant, and the grantor and his heirs cannot be gratuitously disappointed : if, however, the original settle- ment be onerous, (that is, granted in fulfilment of any antecedent legal obligation,) the clause of return may be defeated gratuitously. 2. A mode of settlement, more stringent than the last- 2. Entail with proliibi- mentioned, is that called entail with iprohibitory clauses, tory clauses. which declare that it shall not be lawful for the heirs of entail to contract debt, alienate the property, or alter the destination, or do any other act whereby the lands may be affected. (») This entail precludes any of the grantees from making a gratuitous disposition, by which the substi- tutes or heirs of entail who are to succeed after them, can be disappointed of the succession ; and, in case of any such being made, the latter may set it aside, as done to their pre- judice. But any of the disponees may, notwithstanding the prohibitory clauses, charge the estates with debts, and alienate them for an onerous cause, and so free the property (m) Sandf. Entail, 44, 45. («) Sandf. Entail, 101—114. 720 I'AW OF SCOTLAND IN [c'HAP. XXXIV. from the fetters of the entail ; and, in that case, they will not be under any personal oblioation, to exonerate or purge the estate from the debts, or (in the ease of sale) to pay to the heire of entail or substitutes, the value of the estate sold, for the purpose of investment in the purchase of property to be settled in accordance with the original entail : the heir in possession, in fact, is not under the necessity of transmitting the estate to the heirs of entail, according to the intention of the original disponer or settlor. Thus far, consecjuently, we perceive, that, although, in the case of entails with prohibitory clauses, the power of dispo- sition possessed by the grantees, is by no means equal to that legally secured to tenants in tail and other donees in Eng- land, yet, neither such entails, nor entails by simple desti- nation, operate in entire exclusion of the right of alienation and pledge. The true genius, however, of the Scotch sys- tem of settlements still remains to be exhibited in, 3. Entail with 3. The third kind of entail, which is that technically ni'Xdv^e''^ termed, entail with irritant and resolutive clauses ; {o) a clauses. specics of settlement, which owes its origin to an express enactment of the Scotch Legislature, made in the year 1685 ; and which must satisfy even the most exalted and extravagant views, as to the extent of prospective control over property consequent on absolute ownership. The superior strictness of this mode of entail consists in the circumstance, that the prohibitions which constitute the distinguishing feature of the entail last-mentioned, are ac- companied by two clauses ; one irritating (as the expression is) or annulling acts or deeds granted or done in contravention of the prohibitory clauses of the entail, (that is, the contract- ing debt upon, or selling, alienating, or altering the mode of succession to, the property,) by declaring, that they shall be null and void ; and the other resolving the right of the heir (o) Sandf. Entail, 117—139. CHAP. XXXIV.] RELATION TO PERPETUITIES. 721 who contravenes, or, in other words, declaring his right to be forfeited, upon his doing or granting any act or deed contrary to the prohibitions in the entail, and by which the course of succession may be frustrated or prejudged. The force of these clauses is derived from the above-mentioned statute, and they are as much a recognised portion of the entail as the simple destination itself. But it is absolutely necessary, that both the irritant and resolutive clauses should occur in the settlement, or the prohibitions will not be effectual ; and the latter will merely, therefore, have the limitedforce of the entail with prohibitory clauses before-men- tioned. In giving effect to these prohibitory and accompany- ing clauses, the Courts have refused to raise any implication or inference, so as to extend them beyond their express terms ; but have, rather, desired, by means of such defects, to free the heirs from the fetters of the entail, in regard to acts not directly prohibited by them. In the nature and tendency of these irritant and resolutive clauses, the learned reader will discover a very strong resemblance to the modes of settlement formerly attempted in this country, after the force of common recoveries was established, for the purpose of precluding resort to that mode of unfettering entails ; and which, it will be remembered, were (after a period of doubt and discussion) finally ad- judged void and illegal, in the reign of Elizabeth. The marked difference between the two systems of law, upon the subject of alienation, in nothing appears more strongly than in this, (p) ( p) Lord Coke has thus quaintly and new found perpetuities — a mon- recorded his gratification, at the fate strous brood, carved out of mere in». which these attempts at the creation vention, and never known to the an- of perpetuities met with in England : cient sages of the law. I say mon- (Pref. to Rep.) — " Thus have I pub- strous, for that the naturalist saith, lished in Mary Partington's case, for ' Quod monstra generatitur corrup- the general good both of prince and tionem alicujus principii ,- ' and yet I country, the honorable funeral of fond say honorable, because those vermin AAA 722 LAW OF SCOTLAND IN [cHAP. XXXIV. Superiority of The incomparable siuicriority of the principles of the English real ^ ,- , , '„ ,. . , ^^ , ^ ^ ^ properly rvnglish hiws ot alienation and settlement, over those, the prevak-iu in "' principal features of w'hich have been here glanced at, has Scotland. been thus, in effect, eloquently pourtrayed by a writer, all whose prejudices and associations must have inclined him to a preference of the Scotch system. " The history of entails," writes mr. Scmdford, (q) "in the different nations where they were introduced, shows, that the disadvantages arising from them were, at a more advanced period of civi- lization, invariably considered, by the greatest legal philo- sophers, as counterbalancing their good effects, and as destructive of greater interests than those which they pre- served. They are defended on the ground, that they main- tain the ]")crmanence of noble families, and prevent the decay of aristocratic influence. The example of England might at once be quoted as a sufficient answer to this argu- ment. Families exist there, notwithstanding the freedom of property, over whom centuries have rolled, and still found undiminished in hereditary wealth, in honor, or in rank. But, even if the argument were conclusive, it may at least be doubted, whether the accumulation of overgrown pro- perty, in one branch of a family, to the impoverishment of the rest, and the check to agricultural improvement, which the restraints on the proprietor invariably occasion, do not more retard the progress of a rising nation, than the per- manence of individual wealth aids its prosperity. The failure of a few great families — the decline of one landed proprietor, and the rise of another — are not events that can affect the general system of society, or ought ever to engage the attention of a nation. It is of little consequence to the have crept into many honorable holds and inheritances were set at families. At whose solemn funeral liberty, and many and manifold in- I was present, and accompanied the convencics to the head, and all the dead to the grave of oblivion ; but members of the commonwealth, there- mourned not, for that the common- by avoided." wealth rejoiced, that fettered free- ( extended. after one life in being. PVom that time the progress of these [I.] APl'ENDIX. ix novelties in the law has been slow ; but still, by almost impercep- tible degrees, the known limits have been extended from one life to two or more lives, and ultimately to twenty-eight lives and the life of the survivor, and, after the decease of the survivor, to a gross term of twenty-one years ; and upon the same principle the period may be extended to any number of lives, for the reason which the judges have given for sanctioning the extension of the number of lives in being, is, that the lives are wearing away at the same time, or, as it has been expressed, " all the candles are burn- ing at once." Settlements of leasehold estates for lives do not at first view Settlement of appear to be within the scope of the rule ; for they do not seem y^^^ ° ^ °y to be subject to the inconveniences attending restricted alienation, within the since the lease, ending with a life or lives in being, the death of the surviving life is a determination of the settlement ; yet it is mani- fest, that when the lease is renewable, either under an express covenant, or by custom, or where it is in fact from time to time renewed, the expiration of the original lease for lives is merely nominal. It may substantially amount to a settlement, if not of the fee-simple, at least of an interest, which may exceed the boundary of perpetiaity. Questions frequently arise, whether powers operating as con- Powers the tingent and springing uses, are, from the generality of the words j" ^^f ° creating the powers, within the limits of the rule. It may be proper to state some remarks upon the nature and extent of these powers, for they frequently occur in practice, and, in respect to most of them, doubts are entertained. If an estate were settled to the use of A. B. and his heirs, with 1. Use to A. a power of sale, or revocation, reserved to C. D. and his heirs, ^" ^^^' ^„'*^ ^ power ot without requiring the consent of A. B., or the person, for the time revocation to beinec, entitled to the beneficial ownership, to the exercise of the ^-.^^^^I'ls °' _ ^ heirs, power, this would have a direct tendency to a perpetuity, and would, it is conceived, according to the present state of the law, be void ; but we are not aware that it has been so expressly determined. On the contrary, if an estate be limited to the use of A. B. and o. Use to A. his heirs, with a power reserved to C. D. and E. F., and the sur- '" ^^^' ^^'^^ „ , 1 1 • 1 • n , . , , power of vivor of them, and his heirs, to sell or exchange, with the consent revocation to of A. B., or the persons for the time being entitled to the owner- ^'■ustees, with . consent of the ship, there seems to be no ground for considering this objection- person entitled. able, on account of its tending to a perpetuity ; for the convey- VIM'LNDIX. [I.] 3. Use to A, for life, with rcmaiiiikTs in strict settle- ment, with power of revocation to third porsDHs to be executed with consent. 4. Use to A. B. for 1000 years, remainder to C. D. in fee, with power to C. D. and his heirs to revoke the term. 5. Use in a marriage- settlement to trustees for 1000 years preceding all other limitation?, but for a purpose con- nected with them. ance of the estate by the person entitled to the ownership would, in effect, destroy the power, as he could not afterwards consent to the exercise of the power ; that is to say, he could not defeat his own act or conveyance by a subsequent exercise of his power. Upon the same principle, if an estate limited to the use of A. H., for life, with remainder (in the usual way of settlements) to the use of the first and other sons successively in tail, with remainders-over of a similar nature, with the ultimate remainder to C. D. in fee-simple, with a power of revocation reserved to some other person, but not to be exercised without the consent of A. B., or the person entitled to the freehold cr inheritance, this power seems not to be against the rule of perpetuity, for a recovery by the first tenant in tail, in possession, or a common conveyance, after the determination of the preceding limitations, by the remainder-man in fee, would prevent any subsequent exercise of the power. But if an estate be limited to A. B, for a term of 1000 years, so as to vest the absolute legal and equitable interest in him, with remainder to C. D, and his heirs, and with a power reserved to the same C. D. and his heirs, to revoke or determine the term, there is reason to suppose this power would be void ; for the power might be exercised after the period fixed as the boundary for perpetuities. The case seems to be essentially different, where in the usual way of marriage-settlements, a term of years preceding all the other limitations is limited to trustees, for a particular purpose connected with the other limitations in the settlement, and usu- ally with a provision for the cesser of the term, when the purpose for which it was created has been effected (as a term either for securing a jointure, or for raising portions for younger children), subject to a power of sale and exchange, to be exercised only with the consent of the beneficial owner, and which power, if exercised, would, of course, overreach all the preceding limitations. This power can scarcely be said to have any tendency to a perpetuity as defeating the preceding term ; for, in the former case, the term must determine with the death of the jointress, and pay- ment of the arrears, if any, of the jointure, and in the latter, upon payment of the portions ; and if it be alleged, that the payment of the arrears of the jointure in the one case, and of the portions in the other, may protract the duration of the term beyond the limits of the restraint upon perpetuities, so as to render [I.] APPENDIX. Xi it in effect an absolute term, the proposition may be denied, because the mere circumstance that the arrears and portions may not be raised or paid for a period beyond a life or lives in being and twenty-one years afterwards, if they were (as they must be) necessarily raisable and payable within the term, or immediately on the expiration of it, does not render the trust for raising them void in equity ; and if the trust be not void in equity, how can the cesser of the term upon the same event be deemed too remote at law ? The rules of law and equity, so far as they concern per- petuities, do not, we apprehend, differ. From these observations, it may be inferred that the power in the case put is not void ah initio, by reason of its tendency to overreach a preceding term ; and if so, it cannot, as it is con- ceived, be void by the term afterwards becoming absolute by alienation, as by a sale for the purpose of raising the money secured by it. The exercise of the power cannot afterwards defeat the term made absolute by alienation, but the power may nevertheless be exercised in respect to the other limitations, but subject to the term ; as in the case where a tenant for life, whose consent is necessary to the exercise of a power, makes a lease, there the subsequent exercise of the power cannot overreach the lease. Supposing, however, that the term be in its creation absolute, or without any clause of cesser, yet, considering that it is a mere security for the payment of a sum of money, and that subject to that charge, and until the term is absolutely aliened for raising the money, the term is consolidated with the other limitations in the settlement, and attendant upon them, there seems to be no substantial objection to the power on the ground of perpetuity. With respect to springing and shifting uses, and executory Shifting uses devises, to take effect upon the neglect of using or continuing a "^P^"^<^"t on ' . . using name particular name, and using certain arms, or upon the accession of and arms. another estate, the rules limiting them within the bounds of perpetuity are well known, and do not call for any particular notice. A power of sale for raising money for payment of debts gene- Power of sale rally, does not seem to be within the reasons of the rule against (i|!bls^^"^^" perpetuities. Courts of Justice do not hold trusts, executory devises, or Executory springing uses, which tend to a perpetuity, valid to the extent of *'^'^^^' , ^•' the rule, and void only as to the excess, a doctrine which (as we tiallygood. APPENDIX, [!•] Common law interests not affected by the Statute of' Uses and Wills within the policy of the rule of perpetuity. 1. Terms of years to com- roenee in futuro. 2. Rents limited to commence in futuro. 3. Rights of entry for conditions broken. Devise to A. B., his heirs and assigns, on condition that he and they shall take and continue the name and arms. The absurd consequences which may result from such a condi- tion, if good. It is not a determinable or conditional fee. shall hereafter remark more fully) has been thought to occasion much hardship. The instances hitherto adduced in illustration of the law of perpetuity, are of interests springing out of the Statute of Uses and Wills, or deriving effect as executory trusts ; but there are interests, which, as they have remained interests at the Common law, and uninfluenced by the Statute of Uses, or by the doctrine of trusts or devises, have never been considered to be subject to the rules against perpetuity. We think it proper to make some observations on these interests, for we apprehend they are clearly within the policy, which the law has adopted with respect to perpetuties. 1st. As to terms of years, it has been already observed, that there was no limit by the Common law to their commencement. 2nd. As to Common law rents, they seem to be placed on the same footing as terms of years. 3rd. As to rights of entry upon conditions broken, they seeni not to be confined within the rule. The following case frequently occurs in practice, and as far as we know, has never been deter- mined ; an estate is devised to A. B., " his heirs and assigns," on condition that he and they should take, and continue to use the name and arms of C. D. This, if anything, is strictly a condition at the Common law, enabling the heir-at-law of the testator (in terms at least) at any future time to enter, in case A. I?, his heirs or assigns should refuse to take the name, and use the arms of C. D., although if there had been a devise to another in case he should refuse or neglect to take the name, or use the arms, it would have been an executory devise. Sometimes a condition of this kind has been considered void on account of the absurd eon- sequences to which it would lead. There are other views in which this case has been considered, independently of its absurdity or tendency to a perpetuity. Some have thought that the will passed a fee. simple, determinable upon the non-performance of the condition ; but it was not a deter- minable fee in the proper sense of the expression, if (as is perhaps the true state of the law on this subject) a determinable fee was an estate before the statute oi quia emptores, as upon a grant to A. B. and his heirs, so long as J. S. and his issue should live, in which case the donor retained in the nature of a right to an escheat, a reversionary interest which arose on the death of J. S., and the failure of his issue. But the statute oi quia emplores, by [I.] APPENDIX. XIU destroying the tenure between the donor and donee, in cases where the fee was granted subsequently to the statute, put an end to any right of reverter on such grants. Accordingly, it is said in 2 And. 138, to have been held in a case in the Book of Assizes, that if land be granted to one and his heirs, so long as J. S. or his heirs may enjoy the manor of D., the words " so long as, &c." are utterly vain and idle, and do not abridge the estate. Neither was it a fee- simple conditional at the Common law before the statute De donis, for such an estate was constituted by a gift or a conveyance to a man, and the heirs of his body. This was considered equivalent to a grant of the fee-simple upon which no remainder could be grafted, in the same manner as if the grant had been to A. and his heirs, if he had heirs of his body. The birth of issue was considered as a performance of the condition, which enabled the donee by alienation to destroy the right of reverter. The remedy for the recovery of land upon the reverter, was not by entry for a condition broken, but by a formedon in the reverter. The case put, therefore, was not a determinable fee, nor a fee- simple conditional at the Common law ; it was simply a condition, upon the breach of which the heir of the testator might re-enter. The rules relating to conditions seem to be coeval with our laws relating to Real Property ; and it is a singular circumstance, that a difficulty should now arise of defining the nature and extent of a condition of the kind above-mentioned. To every exchange at the Common law, an implied condition is Implied con- annexed, that if either of the parties exchanging be afterwards re-entry °upon evicted from the estate he has taken in exchange, owing to a an exchange, failure in the title of the other party, the party so evicted may re-enter on the estate which he originally gave in exchange for the one of which he has been deprived, and no period is fixed within which the re-entry is to be made. In cases where shifting uses are adopted as a substitute for the right of entry, they appear to be directly within the rule against perpetuities. There are some rights of entry under conditions, to which it Rights of may be safely concluded that the rule against perpetuities should '^"'■'^X "" ^^ not be applied, as where a perpetual rent-charge is granted, with quousque (as a power of entry for satisfying the rent when in arrear ; in such o'"^^*^"^'"^ case the right of entry is necessarily co-extensive with the rent, and must follow it. APPENDIX. [I.] Summary. Proposals for improving tlic law ; anil first as to the limits of the rule of perpetuity. Lives. Consideration whether the lives can be restricted to a given number. Sen Appendix to First Report on Heal Property, We have thus taken a review of those parts of the existing law relating to perpetuities, and those subjects connected with it, as to which we consider legislative enactment or declaration de- sirable. It will readily be admitted, that this is a subject of great importance, and great difficulty. We think it will not be denied, that the restrictions imposed by this doctrine of the Courts are both beneficial and reasonable in their general extent. There being, therefore, no question as to the propriety of continuing this branch of the Law of Real Property, we have considered whether any alteration can be usefully made in the details of the law itself, and especially whether it is expedient to retain, in all cases, that part of the rule which determines, that estates or interests created so as not necessarily to vest within the period allowed, shall be altogether void, or whether in certain instances, such estates or interests, although not necessarily to vest within the period, may be supported, if they shall in fact vest within some limited period. We have seen that the period of perpetuity, as the law now stands, embraces a life or lives in being, and some limited period of time beyond the duration of such lives. 1 . As to the lives. We have fully considered what restrictions (if any) can be imposed as to the number or quality of the lives to be taken. There can be little doubt that in some of the cases we have adverted to, the number of lives has been arbitrarily adopted, with the view to lengthen the period of strict settle- ments ; and this may be expected to be repeated as long as the law allows the assumption of an unlimited number of lives. Although it may be true, that a term for the lives of any number of persons is only a term for the one life of the survivor of them ; yet, practically, the greater the number of the lives, the longer will be the duration of time. If it were desired to assume the life of a person who should live to the age of one-hundred, there would be a greater chance of finding such a person amongst twenty- eight lives (the number taken in Bengough v. Edridge) than amongst three. We have, therefore, paid anxious attention to a suggestion made from several quarters, that the number of lives to be taken in any case should be restricted to three, or some other small number, but we have found insuperable difficulties in the way of such a regulation. There is no observation more import- ant to be borne in mind, than that parties dealing with their pro- perty should be allowed the utmost latitude which is not forbidden [1.1 Arrr;NDix. XV by public policy. That rule, as applied to the present subject, would make it proper to allow the use of all such lives (to what- ever number they might extend) as might be in any manner con- nected with the objects of the settlement, or the dropping of which might furnish the motives for any of its limitations. For instance, in settlements of large properties, subject to leases for lives,