BOOK II: commence on a future contingency. As if a man devises land to A and his heirs; but, if he dies before the age of twenty-one, then to B and his heirs: this remainder, though void in a deed, is good by way of executory devife 8. But, in both these species of executory devises, the contingencies ought to be fuch as may happen within a reasonable time; as within one or more life or lives in being, or within a mode[174] rate term of years; for courts of juftice will not indulge even wills, fo as to create a perpetuity, which the law abhors: because by perpetuities, (or the fettlement of an intereft, which fhall go in the fucceffion prefcribed, without any power of alienation) eftates are made incapable of anfwering those ends, of focial commerce, and providing for the fudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devife of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devifed to fuch unborn fon of a feme-covert, as fhall firft attain the age of twenty-one and his heirs; the utmost length of time that can happen before the estate can veft, is the life of the mother and the fubfequent infancy of her fon : and this hath been decreed to be a good executory devise * (4). k 3. By executory devife a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed: for by law the first grant of it, to a man for life, was a total difpofition of the whole term; a life eftate being efteemed of a higher and larger nature than any term of years'. And, at first, the (4) This limit was taken from the time in which an estate may be rendered unalienable by a frict fettlement. An executory devife to an unborn fon of a man may be fufpended a few months beyond the life of the father, and twenty-one years afterwards by a pofthumous birth. courts e rent; by special words: but by a general grant of the retion, the rent will pafs with it, as incident thereunto; gh by the grant of the rent generally, the reverfion will fs. The incident paffes by the grant of the principal, te converfo: for the maxim of law is, “acceferium men fid fequitur, fuum principale`.” Incidental rights of the reverfioner, and the refpec- lly in him, and never yet was nerfons as have any eftate in remain [177] tancy, after the death of others, ealments of their death .:3. that all perfons holden, fhall (u Jer made the. luced to the t or refufal, t... ⚫ perfon entitl *v. 407. .23. it is enacted hofe lives ication in BOOK II: commence on a future contingency. As if a man devises land to A and his heirs; but, if he dies before the age of twenty-one, then to B and his heirs: this remainder, though void in a deed, is good by way of executory devife 8. But, in both these species of executory devises, the contingencies ought to be fuch as may happen within a reasonable time; as within one or more life or lives in being, or within a mode[174] rate term of years; for courts of justice will not indulge even wills, fo as to create a perpetuity, which the law abhors: because by perpetuities, (or the fettlement of an intereft, which fhall go in the fucceffion prefcribed, without any power of alienation') eftates are made incapable of anfwering those ends, of focial commerce, and providing for the fudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devife of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards. As when lands are devifed to fuch unborn fon of a feme-covert, as fhall firft attain the age of twenty-one and his heirs; the utmoft length of time that can happen before the eftate can veft, is the life of the mother and the fubfequent infancy of her fon; and this hath been decreed to be a good executory devise * (4). 3. By executory devife a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed: for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life eftate being esteemed of a higher and larger nature than any term of years'. And, at first, the (4) This limit was taken from the time in which an estate may be rendered unalienable by a firict fettlement. An executory devife to an unborn fon of a man may be fufpended a few months beyond the life of the father, and twenty-one years afterwards by a pofthumous birth. courts courts were tender, even in the case of a will, of restraining the devifee for life from aliening the term; but only held, that in cafe he died without exerting that act of ownership, the remainder over fhould then take placem: for the restraint of the power of alienation, especially in very long terms, was introducing a fpecies of perpetuity. But, foon afterwards, it was held", that the devifec for life hath no power of aliening the term, fo as to bar the remainder-man: yet, in order to prevent the danger of perpetuities, it was fettled, that though fuch remainders may be limited to as many perfons fucceffively as the devisor thinks proper, yet they must all be in effe during the life of the first devifee; for then all the [175] candles are lighted and are confuming together, and the ultimate remainder is in reality only to that remainder-mán who happens to furvive the rest: and it was also settled, that fuch remainder may not be limited to take effect, unless upon fuch contingency as muft happen (if at all) during the life of the first devifee P (5). THUS much for fuch eftates in expectancy, as are created by the exprefs words of the parties themselves; the most intricate title in the law. There is yet another fpecies, which m Bro. tit. chatteles. 23. Dyer. 74. a Dyer. 358. 8 Rep. 96. OI Sid. 451. P Skin. 341. 3 P. Wins. 258. (5) It has long been fully fettled that a term for years, or any chattel intereft, may be given by an executory devife to an unborn child of a perfon in existence, when it attains the age of twenty-one ; and that the limits of executory devifes of real and perfonal property are precifely the fame. Fearne, 320. It is very common to bequeath chattel interefts to A and his iffue, and if he dies without iffue, to B. It feems now to be determined, that where the words are fuch as would have given A an eftate-tail in real property, in perfonal property the fubfequent limitations are void, and A has the abfolute intereft but if it appears from any clause or circumstance in the will, that the teftator intended to give it over only in cafe A had no iffue living at the time of his death, upon that event the subsequent limitation will be good as an executory devise. See Fearne, 371. and afes referred to in 3 Cox's P. Wms. 262. is created by the act and operation of the law itself, and this is called a reverfion. III. AN estate in reverfion is the refidue of an estate left in the grantor, to commence in poffeffion after the determination of fome particular eftate granted out by him. Sir Edward Coke describes a reverfion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reverfion of the fee is, without any special refervation, vested in the donor by act of law: and fo alfo the reverfion, after an estate for life, years, or at will, continues in the leffor. For the fee-fimple of all lands muft abide fomewhere; and if he, who was before poffeffed of the whole, carves out of it any fmaller eftate, and grants it away, whatever is not fo granted remains in him. A reversion is never therefore created by deed or writing, but arises from conftruction of law; a remainder can never be limited, unlefs by either deed or devife. But both are equally transferrable, when actually vefted, being both eftates in praefenti, though taking effect in futuro, THE doctrine of reverfions is plainly derived from the feodal conftitution. For, when a feud was granted to a man for life, or to him and his iffue male, rendering either rent, or other fervices; then, on his death or the failure of iffue male, the feud was determined and resulted back to the [176] lord or proprietor, to be again disposed of at his pleasure. And hence the ufual incidents to reversions are faid to be fealty and rent. When no rent is referved on the particular eftate, fealty however refults of course, as an incident quite infeparable, and may be demanded as a badge of tenure, or acknowlegement of fuperiority; being frequently the only evidence that the lands are holden at all. Where rent is referved, it is alfo incident; though not infeparably fo, to the reverfion. The rent may be granted away, referving the reverfion; and the reverfion may be granted away, referving 4 Co. Litt. 22. 1 Jakt. 142. $ Co. Litt. 143. the |