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(4.) Of other matters relating to executory devises.
Whey there is an executory devise of the real estate, and we freehold is not, in the mean tine, disposed of, the inbonitance descends to the testator's heir until the event odppens. So, where there is a preceding estate limited, with an executory devise over of the real estate, the intermediate profits between the determination of the first estate, and the vesting of the limitation over, will go to the heir at law, if not otherwise appropriated by the will." The same rule applies to an executory devise of the personal estate, and the intermediate profits, as well before the estate is to vest, as between the determination of the first estate, and the vesting of a subsequent limitation, will fall into the residuary personal estate. These executory interests, whether in real or personal estates, like contingent remainders, may be assigned or devised ; and they are transmissible to the representatives of the devisee, if he dies before the contingency happens; and they vest in the representatives, either of the real or personal estate, as the case may be, when the contingency does happen."
In the great case of Thellusson v. Woodford," it was the declared doctrine, that there was no limited number of lives for the purpose of postponing the vesting of an executofy interest. There might be an indefinite number of concurrent lives no way connected with the enjoyment of the estate, for, be there ever so many, there must be a survivor, and the limitation is only for the length of that life.
a Pay's Case, Cro. E. 878. Hayward v. Stillingfleet, 1 Atk. Rep. 422. Hopkins v. Hopkins, Cases temp. Talbot, 44.
8 Chapman v. Blissel, Cases temp. Talbot, 145. Duke of Bridgewater v. Egerton, 2 Vesey's Rep. 122.
c Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. Rep. 29. Fearne on Executory Devises, 529535. N. Y. Rеrised Statutes, vol. i. 725. sec. 35. Higden v. Williamson, Cases temp. Talbot, 131. 2 Saund. Rep. 388. k. note.
d 4 Vesey's Rep. 227.
The purpose of accumulation was no objection to an executory devise, nor that the enjoyment of the subject was noy given to the persons during whose lives it was to accuprulate. The value of the thing was enlarged, but not the time. The accumulated profits arising prior to the happen ing of the contingency, might all be reserved for the persons who were to take upon the contingent event, and if the limitation of the executory devise was for any number of lives in being, and a reasonable time for a posthumous child to be born, and twenty-one years thereafter, it was valid in law. The devise in that case was to trustees in fee during the lives of all the testator's sons, and of all the testator's grandsons born in his lifetime, or living at his death, or then in ventre' sa mere, for to receive the profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be conveyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. Thg testator's object was to protract the power of alienatigh by taking in lives of persons who were mere nominees without any correspondent interest. The property was thus tied up from alienation, and from enjoyment, for three generations, and when the period of distribution shall arrive, the accumulated increase of the estate will be enormous.
This is the most extraordinary instance upon record of calculating and unfeeling pride and vanity in a testator, disregarding the ease and comfort of his immediate de
a The testator died in 1797. He left three sons and three daughters, and half a million sterling, on an accumulating fund. If the limitation should extend to upwards of 100 years, as it may, the property will have amounted to upwards of one hundred millions sterling!
scendants, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity Such an iron-hearted scheme of settlement, by wit drawing property for so long a period, from all the uses and purposes of social life, was intolerable. It gave occaşion to the statute of 39 and 40 Geo. III. c. 98. prohibiting thereafter any person from settling or devising real or personal property, for the purpose of accumulation, by means of rents or profits, for a longer period than the life of the grantor or testator, or twenty-one years after his death, or during the minority of any person, who, under the deed or will directing the accumulation, would, if then of full age, be entitled to the rents and profits.
The New York Revised Statutesa have allowed the accumulation of rents and profits of real estate, for the benefit of one or more persons, by will or deed; but the accumulation must commence on the creation of the estate, out of which the rents and profits are to arise, and it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or if directed to commence at any time subsequent to the creation of the estate, it must commence within the time authorized by the statute for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and terminate at the expiration of such minority. If the direction for accumulation be for a longer time than during the minorities aforesaid, it shall be void for the excess of time; and all other directions for the accuinulation of the rents and profits of real estate are void. It is further provided, that whenever there is, by a valid limitation, a suspense of the power of alienation, and no provision made for the disposition, in the mean time, of the rents and profits, they shall belong to the persons presump tively entitled to the next eventual estate.
a N. Y. Revised Statutes, vol. i. 726. sec. 37-40.
The intermediate.rents and profits arising on an estate given by way of executory devise, will pass by a devise of all the residue of the estate. But if these are not devised, then they are thrown upon the heir for want of some other person to take them, and they attend the estate in its descent to the heir ; and it is a settled rule, that where there is an ex-V ecutory devise of a real estate, and the freehold is not, in the mean time, disposed of, the freehold and inheritance descend to the testator's heir at law. If the profits are bequeathed, and the land left, in the mean time, to descend to the heir until the contingent limitation takes effect, and no other person made trustee of the profits, the heir be. comes a trustee, and the rents and profits will accumulate in his hands for the benefit of the party under the will.
a Stephens v. Stephens, Cases temp. Talbot, 228.
6 Clarke v. Smith, 1 Lutu. 798. Hopkins v. Hopkins, Forrest, 44. Gibson v. Lord Mountfort, 1 Vesey's Rep. 485. Amb. 93. S. C.
€ Rogers v. Ross, 4 Johns, Ch. Rep. 388.