1833. CADELL v. PALMER. the correct limit. In Buckworth v. Thickell, 3 Bos. & Pull. 654. n., Lord Mansfield says, "I remember "the introduction of the rule which prescribes the "time in which executory devises must take effect "to be a life or lives in being, and twenty-one years afterwards." In Wilkinson v. South, 7 T. R. 558, Lord Kenyon says, "The rule respecting "executory devises is extremely well settled, and "a limitation by way of executory devise is good "if it may take place after a life or lives in being, "and within twenty-one years and the fraction of "another year afterwards." In Long v. Blackall, 7 T. R. 102., Lord Kenyon says, "The rules respecting executory devises "have conformed to the rules laid down in the con"struction of legal limitations, and the courts have "said that estates shall not be unalienable by exe"cutory devise for a longer time than is allowed by "the limitations of a common law conveyance. In marriage settlements, the estate may be limited "to the first and other sons of the marriage, in tail; " and until the person to whom the last remainder "is limited is of age, the estate is unalienable; in "conformity to that rule, the courts have said, so "far we will hold executory devises to be good;" and after referring to the Duke of Norfolk's Case, he concludes, "It is an established rule that an "executory devise is good, if it must necessarily happen within a life or lives in being, and "twenty-one years and the fraction of another year, allowing for the time of gestation." In Jee v. Audley, 1 Cox 325., Lord Kenyon M. R. says, "Limitations of personal estate "are void unless they necessarily vest, if at all, "within a life or lives in being, and twenty-one years or nine or ten months afterwards. This "has been sanctioned by the opinions of judges of "all times, from the Duke of Norfolk's Case to the “present time; it is grown reverend by age, and " is not now to be broken in upon." We would not wish the House to suppose that there are not expressions in other cases about the same period, from which it might be clearly collected that a minority was originally the foundation of the limit, and sufficient to raise some presumption that the limit of twenty-one years after a life in being was confined to cases in which there was such minority. But the manner in which the rule is expressed in the instances to which I have referred, as well as in text writers, appears to us to justify the conclusion that it was at length extended to the enlarged limit of a life or lives in being, and twentyone years afterwards. It is difficult to suppose that men of such discriminating minds, and so much in the habit of discrimination, should have laid down the rule as they did, without expressing minority as a qualification of the limit, particularly when, in many of the instances, they had minority before their eyes, had it not been their clear understanding that the rule of twenty-one years was general, without the qualification of minority. Blackstone J., in his Commentaries, puts as the limit of executory devise, "that the contingencies ought "to be such as may happen within a reasonable time, as within one or more lives in being, or "within a moderate term of years, for courts of justice will not indulge even wills so as to create 'perpetuity. The utmost length that has been "hitherto allowed for the contingency of an exe"cutory devise (of either kind) to happen in, is 1833. CADELL V. PALMER. "that of a life or lives in being, and twenty-one years afterwards, as when lands are devised to "such unborn, son of a feme covert as, shall first "attain twenty-one, and his heirs, the utmost length "of time that can happen before the estate can "vest, is the life of the mother, and the subsequent “infancy of her son; and this hath been decreed "to be a good executory devise. r 66 Mr. Fearne in his elaborate work upon Executory Devises, thus lays down the rule (p. 129.) ;-" An "executory devise to vest within a short time after "the period of a life in being is good, as in Lloyd "V. Carew (which he states), and Marks v. Marks. "The Courts, indeed, have gone so far as to admit "of executory devises limited to vest within twenty. "one years after the period of a life in being, as in "Stephens v. Stephens, Taylor v. Biddall, and Sab “barton v. Sabbarton," (all of which he states, and in all of which vesting was postponed on account of minority only, and then he draws this conclu. sion) so that, the law seems to be now settled "that an executory devise, either of real or per "sonal estate, which must, in the nature of the “limitation, vest within twenty-one years after the period, of a life in being is good, and this appears "to be the longest period yet allowed for (the) vesting of such estates." The instances put are all instances of minority only, in which the twenty-one years were allowed; but, by stating it generally as he did, he must have considered twenty-one years generally, independently of minority, as the rule. The same observation applies to Blackstone. That such was the understanding of Fearne may be collected from many other passages in his work, but from none more distinctly than in the third division of his 7 first chapter on Executory Devises, 7th Ed. p. 399 401, where, after having mentioned as the second sort of executory devises, those where the devisor gives a future estate to arise upon a contingency; without at present disposing of the fee, and after putting several instances, he concludes the division thus: And the case of a limitation to one for "life, and from and after the expiration of one day, or any other supposed period not exceeding "twenty-one years (we may suppose), next ensuing "his decease, then over to another, may be ad"duced as an instance of the case, for the latter "part of the extent to which I have opened the "second branch of the general distribution of "executory devises." In his third chapter, p. 470., he begins his eighth division with this position:"It is the same (i. e. an executory devise is not too remote), if the dying without issue be con"fined to the compass of twenty-one years after "the period of a life in being," and in the eighth division of chapter 4., p. 117., he says, "It seems "now to be settled that whatever number of limi"tations there may be after the first executory "devise of the whole interest, any one of them "that is so limited, that it must take effect, if “at all, within twenty-one years, the period of a life then in being may be good in event, if no "one of the preceding limitations, which would "carry the whole interest, happen to vest." The great and experienced editor, Mr. Butler, though he mentions what Lord Alvanley had said to the contrary in 4 Ves. 337., yet he gives extracts from what Mr. Hargrave (who agrees with Fearne) had said upon the subject, as if the inclination of his 1 } ( 1833. CADELL v. PALMER. 1833. CADELL บ. PALMER. opinion was that Mr. Fearne was right, and that |