(3.) of dying without issue as to chattels.

The English courts long since took a distinction between an ex ecutory devise of real and of personal estate, and held, that the words dying without issue made an estate-tail of real property, ye. that, in respect to personal property, which is transient and perishable, the testator could not have intended a general failure of issue, but issue at the death of the first taker. This distinction was raised by Lord Macclesfield, in Forth v. Chapman, (b) and supported afterwards by such names as Lord Hardwicke, Lord · Mansfield, and Lord Eldon. But the weight of other distinguished authorities, such as those of Lord Thurlow, Lord Loughborough,

and Sir William Grant, is brought to bear against such *282 distinction. There is such an array of opinion on each side, that it becomes difficult to ascertain the balance upon the mere point of authority; but the importance of uniformity in the construction of wills, relative to the disposition of real

the former. The rule is to save all that agrees with the statute. If, however, said Chancellor Walworth, in another case, a deed be declared void by statute, on account of some illegal or fraudulent provision therein, all the provisions of the deed must fall together. Rogers v. De Forest, 7 Paige, 277. Finally, in the Court of Errors, in Hone's Executors v. Van Schaick, 20 Wendell, 564, the same salutary principle, advanced by the judges of the Supreme Court, in Root v. Stuyvesant, was declared, and adopted, and settled in the last resort. A bequest in a will, in itself free from objection, and having no necessary connection with a trust adjudged void, was held to be valid, and a like principle had been established in Hawley v. James, 16 Wendell, 61, and was also established in Darling v. Rogers, in the Court of Errors, on appeal from chancery, 22 Wendell, 483. It is now considered to be the settled rule of law in New York, that the will of a testator is to be carried into effect, so far as that intention is consistent with the rules of law. That although some of the objects for which a trust is created, or some future interests limited upon a trust estate are illegal and void, yet if any of the purposes of the trust are valid, the legal title vests in the trustees during the continuance of such valid objects of the trust, provided the legal be not so mixed up with the illegal objects of the trust that the one cannot be sustained without giving effect to the other. Irving v. De Kay, 9 Paige, 521, 528.2

(b) 1 P. Wms. 663.

1 And see Jackson v. Kip, 2 Paine C. C. 366; Brearly v. Brearly, 1 Stockt. (N. J.) 21; Stekes v. Tilly, Ibid. 180; Wootton v. Redd's Ex'r, 12 Gratt. (Va.) 196; Walston v. White, 5 Md. 297.

2 Affirmed in the Court of Errors. S. C. 5 Denio, 646. Dupre v. Thompson, 4 Barb. (N. Y.) 280. Affirmed, 8 Barb. (N. Y.) 537.

In Savage v. Burnham, 17 N. Y. 561, some of the ulterior dispositions of the will were void, as too remote, and they were enclosed in the me trust with prior dispositions not too remote. It was held, in furtherance of the general intent of the testator, that the remote limitations might be cut off, and the valid ones allowed to stand.

property, has, in a great degree, prevailed over the distinction; though in bequests of personal property, the rule will, more readily than in devises of land, be made to yield to other expressions, or slight circumstances in the will, indicating an intention to confine the limitation to the event of the first taker dying without issue living at his death. The courts, according to Mr. Fearne, lay hold, with avidity, of any circumstance, however slight, and create almost imperceptible shades of distinction, to support limitations over of personal estates. (a) 1

(a) Fearne on Executory Devises, by Powell, 186, 239, 259. Doe v. Lyde, 1 Term Rep. 593. Dashiell v. Dashiell, 2 Harr. & Gill, 127. Eichelberger v. Barnetz, 17 Serg. & Rawle, 293. Doe ex dem. Cadogan v. Ewart, 7 Adol. & Ell. 636. The conflict of opinion, as to the solidity of the distinction in Forth v. Chapman, is very remarkable, and forms one of the most curious and embarrassing cases in the law, to those welldisciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke (2 Atk. 314). Lord Thurlow, (1 Bro. C. C. 188. 1 Vesey, 286). Lord Loughborough (3 Vesey, 99). Lord Alvanley (5 Ibid. 440). Lord Kenyon (3 Term Rep. 133. 7 Ibid. 595). Sir William Grant (17 Vesey, 479), and the Court of K. B., in 4 Maule & Selw. 62, are authorities against the distinction. Lord Hardwicke (2 Atk. 288. 2 Vesey, 180, 616). Lord Mansfield (Cowp. 410. Den v. Shenton, 2 Chitty, 662). Lord Eldon (9 Vesey, 203), and the House of Lords, in Keily v. Fowler (6 Bro. P. C. 309), are authorities for the distinction. As Lord Hardwicke has equally commended and equally condemned the distinction, without any kind of explanation, his authority may be considered as neutralized, in like manner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. In the case of Campbell v. Harding, 2 Russell & Mylne, 390, it was held at the Rolls, and afterwards by the chancellor on appeal, that where, by will, a sum of stock and also real estate were given to C., and in case of her death, without lawful issue, then over, she took an absolute interest in the stock, inasmuch as the bequest over, limited after a general failure of issue, was void. The old rule was re-asserted. The American cases, without adopting absolutely the distinction in Forth v. Chapman, are disposed to lay hold of slighter circumstances in bequests of chattels, than in devises of real estate, to tie up the generality of the expression dying without issue, and confine it to dying without issue living at the death of the party, in order to support the devise over; and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. 12. Newton v. Griffith, 1 Harr. & Gill, 111. Royall v. Eppes, 2 Munf. 479. Brummet v. Barber, 2 Hill (S. C.), 544, 545. Williams v. Turner, 10 Yerger, 287. Robards v. Jones, 4 Iredell (N. C.), 53. In Arnold v. Congreve, 1

1 Ladd v. Harvey, 1 Foster, 514. But such a discrimination is never made, where there is no expression or circumstance in the will, which the court can lay hold of as evincive of some intention in the testator that it should be a definite failure of issue. Edelen v. Middleton, 9 Gill, 161, where the cases are examined and explained. In Albee v. Carpenter, 12 Cush. 882, it is held, by the Supreme Court of Massachusetts, that any words which, in devise of real estate, will create an estate-tail, will, in a bequest of personal property, create an absolute interest, and that any remainder over is void. See, also, Parsons v Coke, 4 Drewry, 29.

283

*The New York Revised Statutes (a) have put an end to all semblance of any distinction in the contingent limitation of real and personal estates, by declaring that all the provisions relative to future estates should be construed to apply to limitations of chattels real, as well as to freehold estates; and that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance, and until the termination of not more than two lives in being at the date of the instrument containing the limitation or condition, or, if it be a will, in being at the death of the testator. In all other respects, limitations of future or contingent interests in personal property, are made subject to the rules prescribed in relation to future estates in land.

The same limitation under the English law, which would create an estate-tail if applied to real estates, would vest the whole interest absolutely in the first taker, if applied to chattels. (b) a

Tamlyn, 347, it was said by the Master of the Rolls to be now perfectly well settled, that there is no difference with respect to a limitation of freehold and personalty; and the rule was also declared in Zollicoffer v. Zollicoffer, 3 Batt. (N. C.) 438, on the ground of the presumed intention of the testator that executory limitations of land and chattels were to be construed alike, and to go over on the same event; and in this last case in North Carolina, the limitation over a devise of land and chattels was held good where the gift was to the children, and in case of either dying without lawful heirs of the body, his share to go to the survivors. In Mazyck v. Vanderhost, 1 Bailey Eq. 48, it was held that in a devise of real and personal estate to B., and to the heirs of her body, but if she should depart this life leaving no heirs of her body, then over, the word "leaving" restrained the otherwise indefinite failure of issue to the death of the first taker, and that the limitation over was good by way of executory devise as to the personal estate; 2 but was too remote and void as to the real estate, although both species of property were disposed of by the same words in the same clause of the will. This sanction of the case of Forth v. Chapman was in the Court of Appeals in South Carolina, in 1828, but the reporter, in an elaborate note annexed to the case, questions the reason, justice, and applicability of the rule to the jurisprudence in this country, and ably contends that the rule of construction which imputes a difference of intention to a testator in respect to his real and personal estate, when he devises both by the same words, ought to be abandoned. See the case of Moody v. Walker, 3 Ark. 147, to the same point, and that case maintains an able and elaborate discussion of the doctrine of executory devises.

(a) Vol. i. 724, sec. 23; vol. i. 773, secs. 1, 2. Vide supra, 271.

(b) Attorney-General v. Bayley, 2 Bro. C. C. 553. Knight v. Ellis, Ibid. 570. Lord

2 Usilton v. Usilton, 3 Md. Ch. Dec. 36. Flinn v. Davis, 18 Ala. 132.

1 Thomson v. Livingston, 4 Sandf. (N. Y.) 539. Amory v. Lord, 5 Selden (N. Y.) 403

2 Powell v. Glenn, 21 Ala. 458. A bequest of a legacy or a residue (of personal property]

And if the executory limitation, either of land or chattels, be too remote in its commencement, it is void, and cannot be helped by any subsequent event, or by any modification or restriction in the execution of it. The possibility, at its creation, that the event on which the executory limitation depends, may exceed, in point of time, the authorized period, is fatal to it; though there are cases in which the limitation over has been held too remote only pro tanto, or in relation to a branch of the disposition. (c)

*284

*IV. Of other matters relating to executory devises. When there is an executory devise of the real estate, and the freehold is not, in the mean time, disposed of, the inheritance descends to the testator's heir until the event happens. 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. (a) The same rule applies to an executory devise of the personal estate;

Chatham v. Tothill, 6 Bro. P. C. 450. Britton v. Twining, 3 Meriv. 176. Paterson v. Ellis, 11 Wendell, 259. See, also, supra, vol. ii. p. 354.

(c) Fearne on Executory Devises, 159, 160. Phipps v. Kelynge, Ibid. 84. A limitation to an unborn child for life is not good, unless the remainder vests in interest at the same time. A gift in remainder, expectant upon the death of unborn children, is too remote. 4 Russ. 311. In Hannan v. Osborn, 4 Paige, 336, there was a devise of real and personal estate to a sister and her children, with devise over, if she should die, and all her children, without leaving children. The sister had but one child at the making of the will and at the testator's death. It was held, that the sister took an estate for life, and the child a vested remainder in fee, subject to open and let in after-born children, but that the limitation over was void, as being too remote as to the after-born children. In that case the real and personal estate was held subject to the same rule, and the chancellor said that there was no difference in principle under the New York Revised Statutes on this subject, between the devise of real and personal estates, in respect to limitations over. See, also, Gott v. Cook, 7 Paige, 521, and Hone v. Van Schaick, 7 Paige, 222, to the same point.⭑

(a) Pay's case, Cro. Eliz. 878. Hayward v. Stillingfleet, 1 Atk. 422. Hopkins v. Hopkins, Cases temp. Talb. 44.

to J, and if he die in testator's lifetime, without children, to C., gives nothing to J.'s children by implication. Addison v. Busk, 11 Eng. L. & Eq. 304.

3 The estate must, by the terms of its creation, be restricted within the required limit, or it

is void. Tayloe v. Gould, 10 Barb. (N. Y.) 388-398.

4 Collin v. Collin, 1 Barb. Ch. 631. See cases cited in Dowing v. Wherrin, 19 N. Hamp. 89, 90. Savage v. Burnham, 17 N. Y. 561.

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. (b) These executory interests, whether in real or personal estates, like contingent remainders, may be assigned or devised,1 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. (c)

In the great case of Thellusson v. Woodford, (d) it was the declared doctrine, that there was no limited number of lives for the purpose of postponing the vesting of an executory 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. (e) * The purpose of accumulation was * 285 no objection to an executory devise, nor that the enjoyment of the subject was not given to the persons during whose lives it was to accumulate. The value of the thing was enlarged, but not the time. The accumulated profits arising prior to the happening 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, that all the real and personal estate of the testator should be converted into one common fund, to be vested in trustees in fee for the rents and profits to accumulate during all 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, and their issue, to receive the

(b) Chapman v. Blissett, Cases temp. Talb. 145. Duke of Bridgwater v. Egerton, 2 Vesey, 122.

(c) Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. 29. Fearne on Executory Devises, 529-535. New York Revised Statutes, vol. i. 725, sec. 35. 2 Saund. 388, k, note. See, also, the concluding part of the last Lecture.

(d) 4 Vesey, 227. 11 Ibid. 112, S. C.

(e) Lord Thurlow, in Robinson v. Hardcastle, 2 Bro. C. C. 30. Lord Eldon, in Thellusson v. Woodford, 11 Vesey, 145.

1 Thompson v. Hoop, 6 Ohio State, 480.