EXECUTORY BEQUESTS,
Or other executory dispositions, See Heir looms, 413. EXECUTORY DEVISES,
An executory devise for the issue, is as strong as marriage articles, against the rule in Shelley's case: it is other- wise of an actual devise, 115. An executory devise, after all debts in- definitely paid, is too remote at law, but may be good as a trust in equity, 122.
See Remainders contingent, 237-8. Maxim, 267. Condition, 272.
Rule in Shelley's case, 276. Executory devise and not a remainder,
Executory devise being such, because a
preceding limitation could not operate as a remainder in tail, 303. Per verba de præsenti, 304. For life, vesting and making the subse- quent limitations contingent remain- ders, 305.
Giving a title to one person, and after
opening and admitting others, 315. n. f.
Executory devises, &c. with reference to Mogg v. Mogg, ib. Executory devises after a fee-simple
were in former ages unknown, 373. Not where, &c. See Remainders con- tingent, 374-5.
Executory devise, or remainder? See Limitations, 378.
See Heirs, 473. n. s. Executory devise, or contingent remain- der? 380.
See Future interest, 386. The definition commonly given, 381. See Future Estates, 381. n. a. 383. n. The part of Mr. Fearne's work on exe- cutory devises is referrible to all con- ditional limitations generally, 381. n. a. 3. The common definition of an executory devise is too general, 385. n. b. The strict definition :
Executory devises are contrary to the rules of limitation in con- veyances at common law, ib. This gives rise to two rules of construction:
1st. A future interest, capable of taking ef- fect as a contingent remainder, shall ne- ver take effect as an executory devise, ib. 2d. (Understood) a fu- ture interest, not ca- pable of taking ef fect as a contingent remainder, may take effect as an execu- tory devise if it falls within the limits prescribed for exe- cutory estates, ib.
Executory bequests,
Of lands or chattels real, 386. Of chattels personal, ib.
The definition such as it should strictly be, ib.
Are admitted only when the devise cannot take effect any other way, 387.
Do executory devises disturb the whole fee before limited in every case, or do the uses before limited open, in some cases, to let in the executory use? 389.
See Uses springing, 390.
Limitations, ib.
The purpose of the introduction of exe- cutory devises, 392. Distinguished from a fee upon a fee, ib.
See Remainders, 393-4-5. Limitations good as executory devises, See Limitations, 395, &c. See Remainders contingent, 397. Limitations, 398.
Generally distinguished into three kinds, 399.
Two relative to real estate, ib. 1st sort, To arise at a future time after a mesne departing with the whole fee-simple, 399.
The event may be certain or uncertain, ib. n. d. 2d sort, To arise at a future time without any mesne dis- position of the fee, 400.
The event may be certain
or uncertain, 399. n. d.
EXECUTORY DEVISES,
More extended description of the second sort, 400. The third sort relates to chattels,
Of these a devise over after a devise for life was void at common law, and the whole property vested in the devisee for life, 402.
Distinction taken between a devise of the use of a personal thing, and of the thing itself, ib.
Such limitations over are now held good in a will or by way of trust, ib.
See Freehold, 400. Executory devise, because a devise to a son (heir at law) and his heirs, &c. is inoperative as a devise, and the son takes by descent, 401. See Terms of years, 403.
at law, See Chattels real in equity, and personal, 404. Of chattels personal:
Distinction between a bequest of the use of a thing and of the thing itself, 405.
This distinction modified in certain cases, ib.
Yet in these cases the legatee for life was the executrix, 406.
The distinction removed entirely, ib. By the old rule of the court, a bill might be exhibited against the le- gatee for life to give security, &c. ib. The later practice is for an in- ventory to be signed by the devisee for life, &c. to be de- posited with the Master, &c. 407.
As to the degree or quality of the property acquired by the persons taking the limited or restricted interest for life, &c. ib. The essential difference between an exe- cutory devise and a contingent re- mainder, 418.
1st. In the subject or modes of such interests, 418.
2d. In the consequential natures or qualities of the estates when created, 418.
EXECUTORY Devises. After a devise in fee,
Whether barrable by fine and non- claim, ib. n. in mar.
An executory devise (after a devise in fee) is not barrable by recovery, un- less the executory devisee comes in as vouchee, 419.
An executory devise (after a devise to T. in fee) on T.'s death without issue living, W., passes only a collateral and mere possibility during the joint lives of T. and W., ib. Executory bequests in chattels are equal- ly secure as in real estates against the dispositions of the first devisees or legatees, &c. 421. Executory bequests in chattels,
Not destroyed by the merger of the
Nor by the fecffment or other for- feiture of the first devisee or le-
Nor by entry for the forfeiture, 423. May be discharged by release from the executory devisee unto the first taker, ib.
See Terms, 422, 423.
An executory devise or conditional limi- tation made upon an estate tail, may be barred by a recovery suffered by the tenant in tail, 423-4.
See Condition, 424. Their privilege, exempting them from being barred or destroyed, is the foun- dation of the rule against perpetuities,
429. Mr. Hargrave's statement of the princi- ples on which the limits against per- petuity were fixed, ib. n. f. May be to a devisee uncertain, till the very instant appointed for the rising of the executory estate, ib. May be unbarrable by fine or recovery, ib. Thus unbarrable and thus uncer-
tain would have been a shelter for a perpetuity if some limit had not been prescribed, ib.
This limit was fixed at law by the judges, ib.
The courts of equity followed the courts of law, ib. Statement of this rule against per- petuity, ib.
EXECUTORY DEVISES,
Executory bequests in chattels,
So far as they go, create a perpetuity or an estate unalienable, till, &c. 430. Of freehold estates:
By the time of vesting (as to the rule against perpetuity) is meant the time of vesting of the free- hold, and not the time of vesting in possession, 431.
An executory devise over (by the word remain) may determine a remainder in fee, without affecting the life estate, ib. n. g.
Are good, if to vest,
Within a life in being, 431-2.
Or within the compass of several lives in being, ib.
Or within a short time after, as twelve months, &c. 432.
Or within twenty-one years after a life in being, ib.
See Age of twenty-one years, 433. Carrying the whole interest, ib.
Devise to W. in fee, and if W. dies under age, then to T. in fee, and if T. dies under age, then to X. when he attains twenty-one. T. dies under age in W.'s life-time; then W. dies under age, and after X. attains twenty-one, ib.
Of money, &c. and bank stock, may be good by way of trust, for such of A.'s children as shall attain twenty-one, 434.
See Age of twenty-one years, ib. n. k. Two cases of great importance de- cided since the publication of Mr. Fearne's Essay.
1. Double allowance for the case of a posthumous son (leasehold for years, ib. n. l.
2. Accumulation during the lives of of several persons, and the lives and life of the survivors and survivor of them, &c. ib. See Accumulation, ib. 436. n. An executory devise, either of a real or
personal estate, which must, in the nature of the limitation, vest within twenty-one years after a life in being, is good, 437-8.
As to their limits, 439.
Mr. Hargrave's three arguments refer- red to; as to the
Introduction of executory devise, 434. n. l. 442 n.
Gradual settlement of its limits, 442. n.
Principles of law by which it is regulated, ib.
It was doubted whether the period of twenty-one years and a few months, after lives in being, was allowable, when it did not refer to the life of an infant, &c. ib.
This doubt is now removed by a late case, in which it was held, that, an executory devise is good, though not to take effect till the end of an absolute term of twenty-one years after a life in being, &c., without reference to the infancy of the person in- tended to take, 434. n. l. 443.
An executory devise of a real estate, To take effect after a dying with-
out heirs, or without issue, is void, because too remote, 444. Cannot be barred by fine, ib. n. a. The reason, ib.
Cannot (unless limited upon an estate tail) be barred by a re- covery, ib.
The reason, ib. Of personal estate,
Cannot be barred by the first taker, ib. See Tail, 444. n. a.
The limits of executory devises were settled by analogy to the case of strict entails, 444. n. a. 445. n.
Held void by Lord Northington, as too remote; and
So considered by Lord Thurlow, ib. Held good by Lord Loughborough,
on the ground of implying the words living at the testator's de- cease, the devise being in trust for payment of debts and lega- cies, in aid of the personal es- tate, ib.
See Implication, 450. n. b. In verbis de præsenti, to a person not in esse, 457.
Distinguished from conditional devises,
to take effect upon a contingent event, to be decided at or before the testa- tor's decease, 458. n. d. Distinction between an executory devise
to B.'s issue in tail void in its crea- ation, and such an executory devise which may become void in event only; viz.
In the former case, the devise over
is void as too remote, 458-9. In the latter case, the devise over is good as a remainder expectant on the estate tail, if that takes effect; and if it does not, then as an executory devise to take effect on B.'s decease, ib.
The same limitation may be a remain- der in one event, and an executory devise in another event, ib. The distinction between an executory limitation to a person not in esse when made per verba de presenti, and when made per verba de futuro, is no longer attended to, 459-60. Of personal estate, after a dying with- out issue generally, is also too re- mote, 460.
After a dying without heirs, is in gen- eral void, 466.
Exception in certain cases, where the devisee over is capable of being collateral heir to the first devisee, ib.
Further exception, where the limi-
tation over is to the heirs of the testator himself, if such heirs must also be heirs to the first devisee, 467.
Void, See Heirs, 467-8.
Executory devise over of a term in case A. should die before the expiration of the said term, not having issue of his body then living.
Held good, by referring the words, then living, to the time of the death, and not to the other words, before the expiration of the term, ib.
An executory devise over is good, if to take effect on a dying without issue within twenty-one years after a life in being, 470-71.
Of terms of years or other personal estates, 471-2.
The Court of Chancery has very > much inclined to lay hold of any words in a will to confine dying without issue to dying without issue living at the person's de- cease, ib.
See Legacies, ib. See Survivor, 472. Of personal estate, 473.
Then after her decease, construed immediately after her decease, though preceded by the words if she should die without issue, &c. ib.
Of a chattel interest, ib. n. s. Leaving no lawful heir, construed leaving no issue at the time of death, ib.
Of real estate, ib. 474. n.
Leaving no issue behind him, re- ferred to the decease, &c. ib. Of personal estate, 473, n. s. 475. n. If he has no such heirs, construed in default of heirs of the body, ib. Of chattels real, 473. n. s. 476. n. Leaving no heirs of the body, refer-
EXECUTORY DEVISES,
red to the decease, &c. 473. n. s. 476. n.
Executory devise of real estate, or re- mainder? ib.
Leaving no issue, construed as qualifying heirs, to heirs of the body, ib.
No distinction between a devise of the interest of money, and of the money itself, to one for life, 474-5.
Of real estate, 476.
The words dying without issue are generally construed in the general sense of the words, ib.
The same words, viz. dying without issue, taken in two different senses, being applied to both real and per- sonal estate, 476-7.
And this against Lord Kenyon's opinion, but not against Lord Eldon's opinion, 477. n. u. In case of the death of a person under age, and without leaving any law- ful issue, 477. Executory devise, or remainder? ib. Of personal estate, 478.
On a dying without heirs or issue, may be restrained as before men- tioned, whether the limitation to the first devisee or legatee is inde- finitely, or for life expressly, or to such legatee and his heirs, or heirs of his body, or issue or chil- dren, 478.
Distinction taken in some instances be- tween a limitation of a term by such words, as in the case of a real estate, would give an express estate tail; and a limitation of the same by such words, as in the case of a real estate, would only give an estate tail by im- plication, 479.
The grounds of this distinction,ib. Authorities directly overturning the distinction in both its points; viz. as well in respect to the va- lidity of the subsequent limita- tion over, as in regard to the whole not vesting in the first devisee or legatee, 481. On a dying without issue, See Sur- vivors, ib.
The expression dying without issue,
EXECUTORY DEVISES, Of personal estate,
cannot ex vi termini, be confined to a dying without issue living at the death of the first taker, 482. Of cows, horses and other personal es- tate to the testator's executors, on a dying without issue, to be by them distributed, construed to be on a dying without issue then living, ib.
Of personal estate, See Personal provi- sion, 483. Distinction, ib. Executory bequests of personal estate, See Distinction, ib.
Executory bequest, See Dying without issue, 484. n. z. 485-6-7. See Term of years, 488.
For life to one in esse, to take place after a dying without issue generally, may, it has been held, be good, ib. The reason, ib.
The soundness of this decision seems to be doubted, ib. in mar.
Of chattels, 490. n. a. 491. n. By words which would imply an es- tate tail in real property, ib. See Issue, 495.
Executory bequest, See Terms, ib. See Leases for lives, 495-6. To take effect at a period which exceeds, or appears to exceed the prescribed boundary, may be good, if created in leasehold for lives, or in leasehold for twenty-one years, See Conditional limitations, 500. n. e.
See Perpetuity, 502.
Whenever one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken, 503.
Explanation of this rule, ib. Questions frequently arise in prac- tice which turn on this point, 504. Yet a subsequent limitation may be so limited as to take effect either in default of the preceding limi- tation taking effect at all, or by way of remainder after it, if that should take effect, 506. Executory bequest after a bequest for life, See Terms of years, 504. Every executory devise is
Either a limitation after the freehold has been disposed of, &c.
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