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may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall be under the age of twenty-one years. Every future estate is declared to be void in its creation, which suspends the absolute power of alienation for a longer period than is above prescribed. The New-York sta tute has, in effect, destroyed all distinction between con tingent remainders and executory devises. They are equally future or expectant estates, subject to the same provisions, and may be equally created by grant, or by will. The statute allows a freehold estate, as well as a chattel real, to be created to commence at a future day, and an estate for life to be created in a term for years, and a remainder limited thereon, and a remainder of a freehold or chattel real, either contingent or vested, to be created expectant on the determination of a term for years, and a fee to be limited on a fee, upon a contingency. There does not appear, therefore, to be any real distinction lest subsisting between contingent remainders and executory devises. They are so perfectly assimilated, that the latter may be considered as reduced substantially to the same class, and they both come under the general denomination of expectant estates. Every species of future limitation is brought within the same definition and control. Uses being also abolished by the same code, all expectant estates in the shape of springing, shifting, or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders, and subject precisely to the same rules. What I shall say hereafter, in the course of the present lecture, on the subject of executory devises, will have reference to the English law, as it existed in this state prior to the late revision, and as it still generally exists in the other states of the Union.
a N. Y. Revised Statutes, vol. i. 724. sec. 24. & Ibid. vol. i. 727. sec. 45. cWe may not be able to calculate with certainty upon the future operation of the changes which have been recently made in the doc
(3.) Of executory devises limited upon a failure of heirs or issue.
If an kecutory devise be limited to take effect after a dying bithout heirs, or without issue, the limitation is held to void, because the contingency is too remote, as it is ng to take place until after an indefinite failure of issue. Nothing is more common, in cases upon devises, than the failure of the contingent devise, from the want of a particular estate to support it as a remainder, or by reason or its being too remote, after a general failure of issue, to be admitted as good by way of executory devise. If the tes
trine of expectant estates by the New-York revised code of statute law. But the first impression is, that these innovations will be found to be judicious and beneficial. It appears to be wise to abolish the technical distinctions between contingent remainders, springing or secondary uses, and executory devises, for they serve greatly to perplex and obscure the subject. It contributes to the simplicity, and uniformity, and certainty of the law, to bring those various executory interests nearer together, and resolve them into a few plain principles. It is convenient and just that all expectant estates should be rendered equally secure from destruction by means not within the intention of the settlement, and that they should all be controlled by the same salutary rules of limitation. Some of the alterations are not material, and it is doubtful whether confining future estates to two lives in being, was called for by any necessity or policy, since the candles were all lighted at the same time, let the lives be as numerous as caprice should dictate. It was a power not exposed to much abuse, and, in the case of children, it might be very desirable and proper that the father should have it in his power to grant life estates in his paternal inheritance to all his children in succession. The propriety of limiting the number of lives was much discussed recently before the English Real Property Commissioners. The objection to a large number of lives is, that it increases the chance of keeping the estate locked up from circulation to the most extended limit of human life; and very respectable opinions are in favour of a restriction to the extent of two or three lives only, besides the lives of the parties in interest, or to whom life estates may be given. The New-York statute has carried the restriction too far.
tator meant that the limitation over was to take effect on failure of issue living at the time of the death of the person named as the first taker, then the contingency determines at his death, and no rule of law is broken, and the executory devise is sustained. The difficult and vexed question which has so often been discussed by the courts is, whether the testator, by the words dying without issue, or by words of similar import, and with or without additional expressions, meant a dying without issue living at the time of the death of the first taker, or whether he meant a general or indefinite failure of issue. Almost every case on wills, with remainders over, that has occurred within the last two centuries, alludes, by the use of such expressions, to the failure of issue, either definitely or indefinitely.
A definite failure of issue is when a precise time is fixed by the fill for the failure of issue, as in the case of a devise to A., byt if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition the very converse of the other, and means a failure of issue, whenever it shall happen, sooner or later, without any fixed, certain, or definite period within which it must happen. It means the period when the issue, or descendants of the first taker, shall become extinct, without reference to any particular time, or any particular event; and an executory devise, upon such an indefinite failure of issue, is void, because it might tie up property for generations. A devise in fee, with remainder over upon an indefinite failure of issue, is an estate tail, and in order to support the remainder over as an executory devise, and to get rid of the limitation as an estate tail, the courts have frequently laid hold of slender circumstances in the will, to elude or escape the authority of adjudged cases. The idea that testators mean by a limitation over upon the event of the first taker dying without issue, the failure of issue living at his death, is a very prevalent one, but it is probable that, in most instances, testators have no precise meaning on the subject, other than that the estate is to go over if the
first taker has no posterity to enjoy it. If the question was to be put to a testator, whether he meant by his will, that if his son, the first taker, should die leaving issue, and that issue should become extinct in a month, or a year afterwards, the remainder over should not take effect, he would, probably, in most cases, answer in the negative. In the case of a remainder over upon the event of the first devisee dying without lawful issue, Lord Thurlow, following the whole current of cases, held the limitation over too remote, and observed, that he rather thought the testator meant the remainder persons to take whenever there should be a failure of issue of the first taker. Lord Macclesfield declared, that even the technical rule was created for the purpose of supporting the testator's intention. If, says he, lands be devised to A., and if he dies without issue, then to B., this gives an estate tail to the issue of the devisee. And this construction, he observes, “is contrary to the natural import of the expression, and made purely to comply with the intention of the testator, which seems to be, that the land devised should go to the issue, and their issue, to all generations.” So, in Tenny v. Agar, the devise was to the son and daughter in fee, but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Lord Ellenborough said, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over was, consequently, void. The same construction of the testator's real intention was given to a will in Bells v. Gillespie, a where there was a devise to the sons, and if either should die without lawful issue, his part to be divided
a Jeffery v. Sprigge, 1 Cox's Cases, 62.
among the survivors. Mr. Justice Carr declared, that the testator meant that the land given to each son should be enjoyed by the family of that son, so long as any branch of it remained. He did not mean to say, “ you have the land of C. if he has no child living at his death, but if he leave a child you shall not have it, though the child dies the next hour.” A father, as he justly observed, is not prompted by such motives.
The opinions of these distinguished judges would seem to prove, that if the rule of law depended upon the real | fact of intention, that intention would still be open to dis
cussion, and depend very much upon other circumstances Jand expressions in the will, in addition to the usual words.
The series of cases in the English law have been uniform from the time of the Year Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over if the devisee dies without issue, or heirs of the body, is a fee cut down to an estate tail, and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue. The general course of American authorities would seem to be to the same effect, and the settled English rule of construction is considered to be equally the settled rule of law in this country; though, perhaps, it is not deemed U
a The number of cases in which that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratification of the curiosity of the student. Assize, 35 Edw. III. pl. 14. Sonday's case, 9 Co. 127. King v. Rumbail, Cro. Jac. 448. Chadock v. Cowly, ibid. 695. Holmes v. Meynel, T. Raym. 452. Forth v. Chapman, 1 P. Wms. 663. Brice v. Smith, Willes' Rep. 1. Hope v. Taylor, 1 Burr. Rep. 268. Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Doe v. Fonnereau, Doug. Rep. 504. Denn v. Slater, 5 Term Rep. 395. Doe v. Rivers, 7 Term Rep. 276. Doe v. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 East's Rep. 253. Romilly V. James. 6 Taunt. Rep. 263. Bartow v. Salter, 17 Vesey's Rep. 479.