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the estate unalienable during the period allowed for the contingency to happen, though all mankind should join in the conveyance. The question which arose about the same time, in Lloyd v. Carew,b was, whether a limitation could be extended for one year beyond co-existing lives. The decision in Chancery was that it could not, but the decree was reversed upon appeal, and the limitation, with that advance, allowed, though not without great efforts to prevent it, on the ground that perpetuities had latterly increased to the entanglement and ruin of families. Afterwards, in | Luddington v. Kime, Powell, J. was of opinion, that a limitation by way of executory devise, might be extended beyond a life in esse, so as to include a posthumous son., But Ch. J. Treby was of a different opinion, and he held, that the time allowed for executory devises to take effect, ought not to be longer than the life of a person, according to Snow and Cutler's case. At last, in Stephens v. Stephens, in 1736,4 the doctrine was finally settled and defined by precise limits. The addition of twenty-one years to lives in being, was held to be admissible, and that deci sion received the sanction of the Court of Chancery, and of the judges of the King's Bench. A devise of lands in fee, to such unborn son of a feme covert as should first attain the age of twenty-one, was held to be good ; for the utmost length of time that could happen before the estate would vest, was the life of the mother, and the subsequent þinfancy of the son. Since that time, an executory devise
:a This last observation of Mr. Justice Powell is supposed to be rather too strong; for the owner of the contingent fee, together with the executory devisee. may bar it by a common recovery, and it may be barred by fine by way of estoppel. But in those states where there are no fines or recoveries, the executory devise is a perpetuity as far as it goes.
6 Prec. in Ch. 72. Shower's P. C. 137. S. C.
of the inheritance to the extent of a life, or lives in being, and twenty-one years, and the fraction of another year, to reach the case of a posthumous child, has been uniformly allowed; and the same rule equally applies to chattel inte rests. And thus, notwithstanding the constant dread of perpetuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the convenience of such limitations in famiy settlements, has enabled them, after a struggle of nearly two centuries, to come triumphantly out of the contest. They have also become firmly established (though with some disabilities in New York, as we have already seen,') as part of the system of our American testamentary jurisprudence.
**. (2.) Of the several kinds, and general qualities of executory devises.
There are two kinds of executory devises relative to real estate, and a third sort relative to personal estate. (1. Where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency. Thus, if there be a devise to A. for life, remainder to B. in fee, provided, that if C. should, within three months after the death of A., pay
a Atkinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. 174. Long v. Blackall, 7 Term Rep. 100.
6 Supra, p. 17.
c This is the classification made by Powell, J. in Scatterwood v. Edge, 1 Salk. Rep. 229. and it has been followed by Mr. Fearne. Mr. Preston goes on to a greater subdivision, and he says there are six sorts of executory devise applicable to freehold interests, and two, at least, if not three sorts of executory bequests applicable to chattel interests. Preston on Abstracts of Title, vol. ii 124. I have chosen not to perplex the subject by divisions too refined and minute. The object in elementary discussions, according to the plan of these lectures, is to generalize as much possible.
1000 dollars to B., then to C. in fee, this is an executory devise to C., and if he dies in the lifetime of A., his heir may perform the condition. (2. Where the testator gives a future interest to arise upon a contingency, but does not part with the fee in the mean time; as in the case of a devise to the heirs of B., after the death of B., or a devise to B. in fee, to take effect six months after the testator's death; or a devise to the daughter of B., who shall marry C. within fifteen years. (3.) At common law, as was observed in a former volume, if there was an executory bequest of personal property, as of a term for years to A. for life, and after his death to B., the ulterior limitation was void, and the whole property vested in A. There was, then, a distinction between the bequest of the use of a chatte! interest, and of the thing itself; but that distinction was afterwards exploded, and the doctrine is now settled, that such limitations over of chattels real or personat, in a will, or by way of trust, are good. The executory bequest is equally good though the ulterior devisee be not at the time in esse ;d and chattels, so limited, are not subject to the demands of creditors beyond the life of the first taker, who cannot pledge them, nor dispose of them beyond his life interest therein.e
An executory devise differs from a remainder in three very material points. (1.) It need not any particular estate to precede and support it, as in the case of a devise in fee to A. upon his marriage. Here is a freehold limited to commence in futuro, which may be done by devise, because the freehold passes without livery of seisin, and until the contingency happens the fee passes, in the usual course of descent, to the heirs at law. (2.) A fee may be limited after a fee, as in the case of a devise of land to B. in fee, and if he dies without issue, or before the age of twentyone, then to C. in fee. (3.) A term for years may be limited over, after a life estate created in the same. At law the grant of the term to a man for life, would have been a total disposition of the whole term. Nor can an executory devise or bequest be prevented or destroyed by any alteration whatsoever, in the estate out of which, or subsequently to which, it is limited. The executory interest is wholly exempted from the power of the first devisee or taker. If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave; or without selling or devising the same. In all such cases the remainder over is void as a remainder, because of the preceding fee, and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will. A valid executory devise cannot subsist under an absolute power ol disposition in the first taker. When an executory devise is duly created, it is a species or entailed estate to the extent of the authorized
a Marks v. Marks, i0 Mod. Rep. 419. Prec. in Chan. 486.
6 Bate v. Amherst, T. Raym. 82. Lent v. Archer, 1 Salle. Rep. 226. Lord Ch. J. Treby, in Clarke v. Smith, 1 Lutro. 798.
c Vol. ii. p. 285.
e Hoare v. Parker, 2 Term Rep. 376. Fearne on Esecutory Dedises, 46.
a 2 Blacks. Com. 173, 174.
8 Pells v. Brown, Cro. Jac. 590.' Fearne on Executory Devises, 46. 51-58.
c Jackson v. Bull, 10 Johns. Rep. 19. Attorney General v. Hall, Fitzg. 314. Ide v. Ide, 5 Mass. Rep. 500. Jackson v. Robin, 16 Johns. Rep. 537.
period of limitation. It is a stable and unalienable interest, and the first taker has only the use of the land or chattel pending the contingency mentioned in the will. The executory devise cannot be devested even by a feoffment;" but the stability of these executory limitations is, nevertheless, to be understood with this single qualification, that if an executory devise or interest follows an estate tail. a common recovery, suffered by the tenant in tail before the condition occurred, will bar the estate depending on that condition, for a common recovery bars all subsequent and conditional limitations. It is not so with a recovery suffered by a tenant in fee, for that will not bar an executory devise, as was decided in Pells v. Brown ;c and the reason of the distinction is, that the issue in tail is barred in respect of the recompense in value, which they are presumed to recover over against the vouchee, whereas the executory devisee is entitled to no part of the recompense, for that would go to the first taker, or person having the conditional fee.
We have seen, that an executory devise, either of real or pgtsonal estate, is good, if limited to vest within the con pass of twenty-one years after a life or lives in being, and the contingency may depend on as many lives in being * the settlor pleases, for the whole period is no more than the life of the survivor. This rule of the English law has been restricted by the New York Revised Statutes,' which will not allow the absolute power of alienation to be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case of a contingent remainder in fee, which
a Mullineux's case, cited in Palm. 136,