Therefore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life-eftate, before any of thofe remainders vest (2); the consequence of which is that he utterly defeats them all. As, if there be tenant for life, with remainder to his eldeft fon unborn in tail, and the tenant for life, before any fon is born, furrenders his life-eftate, he by that means. defeats the remainder in tail to his fon: for his fon not being in effe, when the particular eftate determined, the remainder could not then veft; and, as it could not veft then, by the rules before laid down, it never can veft at all. In thefe cafes therefore it is neceffary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his eftate for life determines otherwife than by his death, the eftate of the truftees, for the refidue of his natural life, will then take effect, and become a particular estate in poffeffion, [ 172 ] fufficient to fupport the remainders depending in contingency. This method is faid to have been invented by fir Orlando Bridgman, fir Geoffrey Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to fecure in family fettlements a provifion for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life; and when, after the restoration, those gentlemen came to fill the firft offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use (3).

d See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.

(2) But a conveyance of a greater eftate than he has by bargain. and fale, or by leafe and release, is no forfeiture, and will not defeat a contingent remainder. 2 Leo. 60. 3 Mod. 151.

(3) We have seen before, in chapter vii. that, in a grant of a fee-fimple to A, it is neceffary to give it to A and his heirs; of a fee-tail, to A and the heirs of his body; and that a grant to A, without

03

1

THUS the student will obferve how much nicety is required in creating and fecuring a remainder; and I trust he will

without any additional words, gives him only an eftate for life. Hence the word heirs in the first cafe, and the words heirs of the body in the fecond, are faid to be words of limitation, because they limit or describe what intereft A takes by the grant, viz. in one cafe, a fee-fimple, in the other, a fee-tail: and the heirs in both inftances take no intereft any farther than as the ancestor may permit the estate to defcend to them. But if a remainder is granted, or estate devised to the heirs of A, where no estate of freehold is at the fame time given to A, the heir of A cannot take by defcent from A; but he takes by purchase, under the grant, in the fame manner as if the eftate had been given to him by his proper name. Here the word heirs is called a word of purchase. Having premifed the diftinction between words of limitation and words of purchase, I may obferve, that the much-talked-of rule in Shelly's cafe, 1 Co. 104. is this, viz, "when the ancestor, by "any gift or conveyance, takes an estate of freehold, and in the "fame gift or conveyance an eftate is limited, either mediately "or immediately, to his heirs in fee or in tail, that always in fuch "cafes the heirs are words of limitation, and not words of pur"chafe:" and the remainder is faid to be executed in the anceftor, where there is no intermediate eftate; or vefted, when an eftate for life or in tail intervenes.

As if an eftate be given to A for life, and after his death, to the heirs of his body; this remainder is executed in A, or it unites with his eftate for life; and the effect is the fame as if the estate had at once been given to A and the heirs of his body; which expreffion limits an estate tail to A, and the iffue have no indefeafible intereft conveyed to them, but can only take by descent from A. So alfo if an estate be given to A for life, with remainder to B for life or in tail, remainder to the heirs, or the heirs of the body, of A-A takes an eftate for life, in this cafe, with a vested remainder in fee or in tail; and his heir under this grant can only take by defcent at his death. Fearne, 21. But when the eftate for life, and the remainder in tail or in fee unite and coalefce, and heirs is a word of limitation, the two eftates must be created by the fame instrument, and must be either both legal, or both truft eftates. Doug. 490. 2 T. R. 444. The rule with regard to the execution or coalition of fuch eftates feems now to be the fame in equitable

as

in fome measure Tee the general reafons, upon which this nicety is founded. It were endless to attempt to enter upon

as in legal estates. 1 Bro. 206. And in all these cafes where a perfon has an estate tail, or a vested remainder in tail, he can cut off the expectations or inheritance of his iffue, by a fine, or a recovery. Doug. 323. In order therefore to fecure a certain provifion for children, the method was invented of granting the estate to the father for life, and, after his death, to his first and other fons in tail; for the words fon or daughter were held to be words of purchase, and the remainder to them did not, like the remainder to heirs, unite with the prior eftate of freehold. But if the fon was unborn, the remainder was contingent, and might have been defeated by the alienation of the father by feoffment, fine, or recovery to prevent this, it was neceffary to interpofe trustees, to whom the estate is given upon fuch a determination of the life-eftate, and in whom it refts, till the contingent estate, if at all, comes into existence; and thus they are faid to support and preferve the contingent remainders. This is called a ftrict fettlement, and is the only mode (executory devifes excepted) by which a certain and indefeafible provifion can be fecured to an unborn child. But in the cafe of articles or covenants before marriage, for making a fettlement upon the husband and wife, and their offspring, if there be a limitation to the parents for life, with a remainder. to the heirs of their bodies, the latter words are generally confi dered as words of purchase, and not of limitation; and a court of equity will decree the articles to be executed in ftri& fettlement. See Fearne, 124, and examples there cited. It being the great object of fuch fettlements to fecure fortunes for the iffue of the marriage, it would be ufelefs to give the parents an eftate tail, of which they would almoft immediately have the abfolute difpofal. And therefore the courts of equity will decree the eftate to be settled upon the parent or parents for life; and upon the determination of that eftate by forfeiture, to truftees to fupport contingent remainders for their lives; and after their decease, to the first and other fons fucceffively in tail, with remainder to all the daughters. in tail as tenants in common, with fubfequent remainders or provifions according to the occafions and intentions of the parties. In these strict settlements, the estate is unalienable till the first fon attains the age of 21, who, if his father is dead, has then, as Tenant in tail, full power over the eftate; or if his father is living,

the particular fubtilties and refinements, into which this doctrine, by the variety of cafes which have occurred in the courfe of many centuries, has been fpun out and fubdivided: neither are they confonant to the defign of these elementary difquifitions. I must not however omit, that in devises by last will and teftament, (which, being often drawn up when the party is inops confilii, are always more favoured in conftruction than formal deeds, which are prefumed to be made with great caution, fore-thought, and advice) in these devises, I fay, remainders may be created in fome measure contrary to the rules before laid down: though our lawyers will not

he then can bar his own iffue by a fine, independent of the father. Cruife, 161. But the father, and the fon at that age, can cut off all the fubfequent limitations, and difpofe of the estate in any manner they please by joining in a common recovery. This is the origin of the vulgar error, that a tenant of an eftate-tail must have the confent of his eldest fon to enable him to cut off the intail; for that is neceffary where the father has only a life-eftate, and his eldest fon has the remainder in tail. But there is no method whatever of fecuring an eftate to the grandchildren of a perfon, who is without children at the time of the fettlement; for the law will not permit a perpetuity; and lord Thurlow has defined a perpetuity to be any extenfion of an eftate beyond a life in being, "and 21 years after." 2 Bro. 30. See n. 4. Hence, where in a settlement the father has a power to appoint an estate to or amongst his children, he cannot afterwards give this to his children in strict fettlement, or give any of his fons an eflate for life, with a remainder in tail to his eldest fon; for if he could do this, a perpetuity would be created by the original fettlement. 2 T. R. 241.

"

The ftudent, who wishes to obtain a clear and comprehenfive knowledge of this abftrufe branch of legal learning, cannot beflow too great attention upon Mr. Fearne's treatise upon Contingent Remainders and Executory Devifes, where it is learnedly and perfpicuously difcuffed and methodized. I have thought it proper to felect and to fubjoin here thefe important, though common, diftinctions, as in innumerable inflances, from the ignorance of the perfons employed, family fettlements, particularly in wills, have proved abortive, and the intentions of parents and teftators have been unhappily disappointed.

allow fuch difpofitions to be strictly remainders; but call them by another name, that of executory devifes, or devifes hereafter to be executed.

AN executory devise of lands is such a difpofition of them by will, that thereby no eftate vefts at the death of the devifor, but only on fome future contingency. It differs from a remainder in three very material points:

1. That it needs not

any particular eftate to fupport it. 2. That by it a fee- [ 173 fimple or other less eftate, may be limited after a fee-fimple. 3. That by this means a remainder may be limited of a chattel intereft, after a particular eftate for life created in the fame.

1. THE first cafe happens when a man devifes a future eftate to arise upon a contingency; and, till that contingency happens, does not difpofe of the fee-fimple, but leaves it to defcend to his heir at law. As if one devifes land to a feme fole and her heirs, upon her day of marriage: here is in effect a contingent remainder without any particular eftate to fupport it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devife. For, fince by a devife a freehold may pafs without corporal tradition or livery of feifin, (as it must do, if it paffes at all) therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cafes, is the neceffity of actual feisin, which always operates in praefenti. And, fince it may thus commence in futuro, there is no need of a particular estate to fupport it; the only ufe of which is to make the remainder, by it's unity with the particular eftate, a prefent interest. And hence alfo it follows, that fuch an executory devife, not being a prefent intereft, cannot be barred by a recovery, fuffered before it commences.

2. By executory devise a fee, or other less eftate, may be limited after a fee. And this happens where a devisor devises his whole eftate in fee, but limits a remainder thereon to f Cro. Jac, 593.

e1 Sid. 153.

commence