Sidebilder
PDF
ePub
[blocks in formation]

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,

302.

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:

EXECUTORY Devises,

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.

EX

EXECUTORY DEVISES,

More extended description
of the second sort, 400.
The third sort relates to chattels,

401.

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.

Good

{

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.

EX

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

life interest, ib.

Nor by the fecffment or other for-
feiture of the first devisee or le-

gatee, ib.

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.

EX

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.

EX

EXECUTORY DEVISES,

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.

[blocks in formation]

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.

[merged small][ocr errors][merged small][merged small]

EX

EXECUTORY DEVISES,

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.

[blocks in formation]

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-

[blocks in formation]

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.

« ForrigeFortsett »