Redoubt and Redoubt, Vin. Abr. tit. Devife, (Q. a.) C. 18.

Where there is no devife antecedent, the first fon of the wife cannot take by way of remainder. Right and Hammond &al', in B. R. Comyns's Rep. 232.`

* A limitation to one, to take and enjoy the profits of an estate during his life, and after his decease to the heirs-male of his body, would make an estate-tail where nothing appears which explains the teftator's intention to the contrary, otherwife not. In C. B, White and Collins, ibid, 289.

*A devife that if W. the eldeft fon of the teftator fhould happen to die without iffue, that then, and not otherwife, after W.'s death, he devised it over to his fon R. and his heirs, -Held that W. took an estate-tail by implication. C. B. Walter and Drew & al Comyns's Rep. 327.

*

7. S. devifed lands to B. for life, and after his decease to the heirs-males of the body of the faid B. lawfully to be begotten, and his heirs for ever; but if B. fhould die without fuch heir-male, then he devised them over; this is an estate-tail in B.In B. R. Goodright and Pullyn & al, 2 Ld. Raym. 1437. Vide 2 Vol. Abr Eq. 315.

*An eftate was devised to two fifters and their heirs, and that if they (who were the tef tator's daughter's) should die without heirs, then the teftator gave his eftate to his brother T.-The court feemed to be of opinion, that this was an eftate-tail in the two daugh

ters,

ters, but adjourned. In C. B. Anon. 2 Abr. Eq. 315. C. 27.

Devife to A. and his heirs lawfully begotten, that is to fay. to his firft, fecond, &c. fons fucceffively, &c. gives A. but an eftate for life. Davis and Low, 2 Ld. Raym. 1561. Vide 2 Abr. Eq. 316.

* I devise my lands to A. for life, and after his decease, remainder to the heirs-male of the body of A. and to the heirs-males of fuch iffue-male.The C. 7. was of opinion, that these words conveyed an estatetgil, to A. Burnet and Coby, 1 Barnard Rep. in B. R. 367.

* If an eftate be given to a man and his heirs, and if he died without iffue, remainder over; these words are explanatory of the word heirs, and make an eftate-tail. In C, B. Brice and Smith, Comyns's Rep. 539.

*Teftator devifed lands to A. for life, remainder to trustees to preferve contingent remainders during the life of 4. remainder to the heirs of the body of Athis is an eftate-tail. Coulson and Coulson, 2 Vol. Abr. Eq. 318, C. 34.

Devife of an eftate-tail. Annaly 160.

1

Black. Com.

2 V. 173, 334.

4th. Of executory devifes, contingent remain ders, and cross remainders.

A

N executory devife is a future interest which cannot veft at the death of the teftator, but depends on fome contingency, Abr. 186, and which muft happen before it can veft.

1 Eq. Caf.

Jacob's Dia. Jaft edit.

As if A. devifes that after his fon paid 10l. to his executors, he fhould have his term; this is a good devife of the term; or, if the devise had been to his son after the death of B. this had been good to vest the remainder of the term in the fon, when the contingency happened;-and this is, in effect, the judgment in Manning's cafe; where a term of fifty years was devised to B. after the death of C. and C. fhould have it during his life; it was adjudged, that this was a good devife of as much of the term as remained after the death of C.

The great queftion in these cafes was,Whether the difpofition of the term to C. during his life, was not fuch a total difpofition of it, that no remainder could be limited over and as thefe executory remainders feem to deftroy the former rules, (viz. that no eftate can be devised, but fuch as can be made by conveyance in the life of the party,) we will inquire how they came to be establifhed against them.-It has been long allowed in chancery to fettle terms in trust, with remainders

remainders over, which were to arise on contingencies; for they thought it very fevere, and against natural juftice, fince a man hath as abfolute a power over his leafe, as he who hath an inheritance, has over it, that he should be difabled from fettling his lease, as he might his inheritance, to make provision for his family, and the contingencies of it, which were in his view; but the courts of law, (where the devifes as well as other conveyances were examined,) did not fo readily admit of such executory remainders of terms, because it directly thwarted the rules of law; for which reason

all the judges, in the fixth of Edward 6. Not. Arge 9. delivered their opinions, that if a term for Dyer 74. a. years be devifed to one, provided that if the devifee die, living 7. S. then to go to 7. S.-that remainder was abfolutely void, -becaufe fuch a chattel intereft of a term for years is lefs than a term for life; there

fore the law will endure no limitation over. Co. Lit. 46. a But the courts were not long governed Dyer 358. b. by this judgment; for tho' it might have Not. Arg. 9, been reasonable (before the reign of Hen. 10. 8.) when terms for years were very fhort, and lefs regarded than freehold eftates, because they were under the power of the freeholders;-yet when the leffees found their terms fecured to them by ftat. 21. Hen. 8. cap. 15. (which impowered them to fal-. fify all recoveries had against the tenant of the freehold, on feigned titles,) they began to fwell their terms beyond the compafs of a life; and the judges, in 19 Eliz. allowed of thefe executory remainders of terms by devifes,

E 2

devifes, as they had before by way of trust, that men might difpofe, and fettle them, to anfwer the common conveniencies of life.

Then the chancery, (the better to fix them in it,) allowed of bills by the remainder man, to compell the devifee of the particular eftate to put in fecurity, that he in remainder fhould enjoy it according to the limitation ;-but, this multiplying chancery fuits, they refolved, that there was no need of that way, but that the devisee of to Coke 47. a. the particular eftate fhould not have power to bar the remainder man; fo that the law has been long fettled, that executory devifes are good, if the contingency is to happen within one life or two WHICH ARE IN BEING, for there can be no tendency to a perpetuity in that cafe, because the lives will wear

52

b.

1 Sid. 451.

out.

Cro. Fac. 198. If termor devises his term to A. for life, 1 Ro. Ab.610. the remainder to another, tho' A. hath the Cro. Eliz. 9. whole term in him during his life, and so no remainder can be limited over at common law, yet it is good by way of executory devife.

1 Ro. Ab.612.

If termor devises his term to B. for life, and after to C. his fon, then to the eldest iffue-male of C. for life,-tho' C. hath no iffue-male at the time of the devife, nor at the death of the devifor, yet if he hath iffue at the time of his death, it fhall take the remainder by way of executory devife; for tho' it be a contingency upon a contingency, yet being limited to fall out in a life or two, which muft wear out in a life or two, it was adjudged good.

A. poffeffed