comprehensive view of this abstruse learning; generally considered difficult, but easy to be understood, if care be taken to lay a proper foundation for pursuing this branch of the law through all its niceties. The caution to be observed in studying the more abstruse parts of the law, is, in the first place, to obtain a correct knowledge of the nature of these special and peculiar interests; to collect the more correct definitions; to ascertain the circumstances by which these interests are to be distinguished from other interests apparently the same, but substantially different; to discover the properties of the different interests; the nature of the ownership they confer; the means by which they may give a complete title, or eventually fail of effect, may be destroyed, or defeated, and by what means they may be aliened, barred, or bound at law, or in equity.. In his Essay on Executory Devises, Mr. Fearne has distinguished three sorts of interests of this description. To these six others may be added. The three species of executory devise, &c. stated and exemplified by Mr. Fearne, are, 1st, Where the devisor departs with his whole fee-simple; but, upon some contingency, qualifies that disposition, and limits an estate on that contingency od zobud 2dly. Where the devisor gives a future estate [read, interest] fo arise either upon contingency, or at a time certain, but does not depart with the fee at present, or limit any immediate freehold: 3dly, Where a term for years, or any personal estate, is devised to one for life, with remainder [read, a limitation] over. Two of these varieties are proper to estates of freehold; the other embraces chattel-real estates, and personal property. It seems, however, that there are six sorts of executory devise applicable to freehold interests, and two, at least, if not three, sorts of executory bequest applicable to chattel-real interests, and personal property. 1st. Pells v. Brown fully proves the first sort of devises noticed by Mr. Fearne : In that case the testator parted with his whole fee-simple; but upon some contingency the devise was to the testator's wife for life, remainder to C his second son, in fee, provided, if D his third son should pay 5007. within three months after his wife's death to C, his executors, &c. then the testator devised the lands to D, and his heirs. This gift qualified the first disposition, and limited an interest on a contingency. No other remark is necessary on this case: Marks v. Marks (n) is open to the observation, that the devise to D was executory only so far as related to the estate of C. It did not extend to defeat the prior estate limited to the wife for her life; and it was executory, because it (n) 10 Mod. 420. was to take effect eventually, and in derogation and abridgment of an estate in fee. In reference to that estate it could not be a remainder, since it did not, and indeed could not, depend on the determination of the estate for life, because the estate for life was to determine before the gift to D was to confer a vested interest. 2dly. When the testator gives a future interest of freehold, to arise either on a contingency, or at a time certain, but does not depart with the fee at present, or limit any immediate freehold, this interest must be void, or operate as an executory devise. This is clear. A single substantive devise to the heir of I. S, or to the first son of I. S, when he shall have one, is a devise of this description. The devise is future, because at the testator's death there is no person who can take immediately under this devise; and when lands are devised to I. S, for five years from next Michaelmas, remainder to B in fee; and the testator dies before Michaelmas, then the devise to B is future; for although the remainder is limited to a person already in existence, and without any words of contingency, and is immediately expectant on the term; yet since the term is limited to commence from a future period, to happen after the testator's decease, and since the term is not tested, and since an interest only, and not an estate, is acquired in the land; the 763 remainder in fee cannot be vested while the term remains future and executory. for years At the common law, such a limitation to B by deed would have been void (o). In its creation the limitation to B is a freehold, to commence in interest or estate at a future time. And since the term for years cannot vest immediately, the remainder to B must remain future and executory, till the term becomes a present and immediate interest. These determinations all depend on principles of the common law relating to the freehold, and the necessity of avoiding an abeyance of the freehold. At this day they may be accounted rigid in the extreme. It may be urged too, that all the ends of justice would be perfectly answered, by giving the ownership and interest to the heir at law, for the limited period, during which the possession might otherwise be vacant; and measuring the extent and denomination of his interest by that time. In some cases this is done in the construction of wills, and of uses in conveyances to serve the uses; and more especially in uses to arise on the scisin of the author of the uses, Roe v. Tranmer (p); Doe v. Whittingham (q). In the construction of deeds, and of surrenders of copyhold lands, being assurances which owe their whole force to the common law, this is (o) Litt. § 350, Buckler's case, 2 Rep. 55. (p) 2 Wils. Rep. 15. (q) 4 Taunton 23 never done. The few instances in which it is done, even in the construction of wills, are those only in which the heir at law may, consistently with the testator's general intention, take an estate for the exact period of his life, or for the exact time of an estate tail; or an estate arises to a wife for life, by reason of a gift to the heir after her death; and in those cases, the estates for life, or in tail, are taken by implication of law for the advancement of the testator's general intention, Walter v. Drew (r), and Wealthy v. Bosville (s), are instances of the heir's taking an estate tail under those circumstances. The case of Pybus v. Mitford (t), may be adduced as an authority for an estate for life arising by implication. All the cases, however, require that the testator, in making the arrangement and disposition of his property, should have left those vacancies of right of enjoyment which are exactly correspondent with estates for life or in tail, and allow of their being implied as existing in his intention. When the time of which no disposition is made, is for days, or for years, [Gardner v. Sheldon (u),] or till there shall be a failure of the issue of any stranger, or any other person, in all these cases, the heir at law does not take any estate by implication; and, except in a few (r) Com. Rep. 372. (t) 1 Ventr. 372. (s) Rep. T. Hardw. 258. |