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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 59
Of Executory Devises

Ax executory devise is a limitation by will of a future contingent interest in lands, contrary to the rules of limitation of contingent estates in conveyances at law. If the limitation by will does not depart from those rules prescribed for the government of contingent remainders, it is, in that case, a contingent remainder, and not an executory devise.1 Lord Kenyon observed, in Doe v. Morgan,2 that the rule laid down by Lord Hale had uniformly prevailed without exception, that where a contingency was limited to depend on an estate of freehold, which was capable of supporting a remainder, it should never be construed to be an executory devise, but a contingent remainder.”

(1.) Of the history of executory devises.

The reason of the institution of executory devises was to support the will of the testator, for when it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then, out of indulgence to wills, held to be good as an executory devise. They are not mere possibilities, but certain and substantial interests and estates, and are put under such restraints only as have been deemed requisite to prevent the mischiefs of perpetuities, or the existence of estates that were unalienable.3

The history of executory devises presents an interesting view of the stable policy of the English common law, which abhorred perpetuities, and the determined spirit of the courts of justice to uphold that policy, and keep property free from the fetters of entailments, under whatever modification or form they might assume. Perpetuities, as applied to real estates, were conducive to the power and grandeur of ancient families, and gratifying to the pride of the aristocracy, but they were extremely disrelished by the nation at large, as being inconsistent with the free and unfettered enjoyment of property. “The reluctant spirit of English liberty,” said Lord Northington,4 “would not submit to the statute of entails, and Westminster Hall, siding with liberty, found means to evade it.” Common recoveries were introduced to bar estates tail, and then, on the other hand, provisoes and conditions not to alien with a cesser of the estate on any such attempt by the tenant, were introduced to recall perpetuities. The courts of law would not allow any such restraints by condition, upon the power of alienation, to be valid.5 Such perpetuities, said Lord Bacon,6 would bring in use the former inconveniences attached to entails, and he suggested that it was better for the sovereign and the subject, that men should be “in hazard of having their houses undone by unthrifty posterity, than to be tied to the stake by such perpetuities.”

Executory limitations were next resorted to, that men might attain the same object. Mr. Hargrave7 has gleaned from the oldest authorities a few imperfect samples of an executory devise; but this species of limitation may be considered as having arisen since the statutes of uses, and of wills. It was slowly and cautiously admitted prior to the leading case of Pells v. Brown.8 Springing uses of the inheritance furnished a precedent for similar limitations in the form of executory devises; and it was decided in Pells v. Brown, that a fee might be limited upon a fee by way of executory devise, and that such a limitation could not be barred by a common recovery.9 That case was silent as to executory bequests of chattels, and Mr. Justice Doderidge was opposed to the doctrine of the decision, and showed that he was haunted with the apprehension of reviving perpetuities under the shelter of an executory devise. The case, however, established the legality of an executory devise of the fee upon a contingency not exceeding one life, and that it could not be barred by a recovery. The same point was conceded by the court in Snowe v. Cutler;b and the limits of an executory devise were gradually enlarged and extended to several lives wearing out at the same time. Thus, in Goring v. Bickerstuffe,10 a limitation of a term from one to several persons in remainder in succession, was held to be good, and not tending to a perpetuity, if they were all alive together; for, as Ch. B. Hale observed in that case, all the candles were lighted together, and the whole period could not amount to more than the life of the last survivor.

The great case of the Duke of Norfolk,11 on the doctrine of perpetuities, was finally decided in 1685, and the three senior judges at law were associated with Lord Chancellor Nottingham. The question arose upon the trust of a term for years upon a settlement by deed, and it was whether a limitation over upon the contingency of A. dying without issue, was valid. The subject of executory devises was involved in the elaborate and powerful discussion in that case. The judges were exceedingly jealous of perpetuities, and would not allow limitations over upon an estate tail to be good; but the chancellor was of a different opinion, and he supported the settlement, and his opinion was affirmed in the House of Lords. While he admitted that a perpetuity was against the reason and policy of the law, he insisted, that future interests, springing and executory trusts, and remainders, that were to arise upon contingencies, if not too remote, were not within the reason of the objection, and were necessary to provide for the exigencies of families. The principle of that case was, that terms for years were, equally with inheritances, subject to executory devise, and to trusts of the same nature, and it led to the practice of a strict settlement of that species of property, by executory devise, to the extent of lives in being, and twenty-one years afterwards.

The doctrine of executory devises grew and enlarged, pari passu, in its application to terms for years, and to estates of inheritance. In Scatterwood v. Edge,12 the judges considered lives in being as the ultimatum of contingency in point of time, and they showed that they inherited the spirit of the old law against such limitations. Every executory devise was declared to be a perpetuity as far as it went, and rendered the estate unalienable during the period allowed for the contingency to happen, though all mankind should join in the conveyance.13 The question which arose about the same time, in Lloyd v. Carew,14 was, whether a limitation could be extended for one year beyond co-existing lives. The decision in Chancery was, that it could not, but the decree was reversed upon appeal, and the limitation, with that advance, allowed, though not without great efforts to prevent it, on the ground that perpetuities had latterly increased to the entanglement and ruin of families. Afterwards, in Luddington v. Kime,15 Powell, J. was of opinion, that a limitation by way of executory devise, might be extended beyond a life in esse, so as to include a posthumous son. But Ch. J. Treby was of a different opinion, and he held, that the time allowed for executory devises to take effect, ought not to be longer than the life of a person, according to Snow and Cutler’s case. At last, in Stephens v. Stephens, in 1736,16 the doctrine was finally settled and defined by precise limits. The addition of twenty-one years to lives in being, was held to be admissible, and that decision received the sanction of the Court of Chancery, and of the judges of the King’s Bench. A devise of lands in fee, to such unborn son of a feme covert as should first attain the age of twenty-one, was held to be good; for the utmost length of time that could happen before the estate would vest, was the life of the mother, and the subsequent infancy of the son.

Since that time, an executory devise of the inheritance to the extent of a life, or lives in being, and twenty-one years, and the fraction of another year, to reach the case of a posthumous child, has been uniformly allowed; and the same rule equally applies to chattel interests.17 And thus, notwithstanding the constant dread of perpetuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the convenience of such limitations in family settlements, has enabled them, after a struggle of nearly two centuries, to come triumphantly out of the contest. They have also become firmly established (though with some disabilities in New York, as we have already seen,18) as part of the system of our American testamentary jurisprudence.

(2.) Of the several kinds, and general qualities of executory devises.

There are two kinds of executory devises relative to real estate, and a third sort relative to personal estate.19 (1.) Where the devisor parts with his whole estate, but, upon some contingency, qualifies the disposition of it, and limits an estate on that contingency. Thus, if there be a devise to A. for life, remainder to B. in fee, provided, that if C. should, within three months after the death of A., pay 1000 dollars to B., then to C. in fee, this is an executory devise to C., and if he dies in the lifetime of A., his heir may perform the condition.20 (‘L.) Where the testator gives a future interest to arise upon a contingency, but does not part with the fee in the mean time; as in the case of a devise to the heirs of B., after the death of B., or a devise to B. in fee, to take effect six months after the testator’s death; or a devise to the daughter of B., who shall marry C. within fifteen years.21 (3.) At common law, as was observed in a former volume,22 if there was an executory bequest of personal property, as of a term for years to A. for life, and after his death to B., the ulterior limitation was void, and the whole property vested in A. There was, then, a distinction between the bequest of the use of a. chattel interest, and of the thing itself; but that distinction was afterwards exploded, and the doctrine is now settled, that ouch limitations over of chattels real or personal, in a will, or by way of trust, are good. The executory bequest is equally good, though the ulterior devisee be not at the time in esse;23 and chattels, so limited, are not subject to the demands of creditors beyond the life of the first taker, who cannot pledge them, nor dispose of them beyond his life interest therein.24

An executory devise differs from a remainder in three very material points. (1.) It need not any particular estate to precede and support it, as in the case of a devise in fee to A. upon his marriage. Here is a freehold limited to commence in futuro, which may be done by devise, because the freehold passes without livery of seizin, and until the contingency happens the fee passes, in the usual course of descent, to the heirs at law. (Z.) A fee may be limited after a fee, as in the case of a devise of land to B. in fee, and if he dies without issue, or before the age of twenty one, then to C. in fee. (3.) A term for years may be limited over, after a life estate created in the same. At law the grant of the term to a man for life, would have been a total disposition of the whole term.25 Nor can an executory devise or bequest be prevented or destroyed by any alteration whatsoever, in the estate out of which, or subsequently to which, it is limited.26 The executory interest is wholly exempted from the power of the first devisee or taker. If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over of the property which he, dying without heirs, should leave; or without selling or devising the same. In all such cases the remainder over is void as a remainder, because of the preceding fee, and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will.27 A valid executory devise cannot subsist under an absolute power of disposition in the first taker. When an executory devise is duly created, it is a species of entailed estate to the extent of the authorized period of limitation. It is a stable and unalienable interest, and the first taker has only the use of the land or chattel pending the contingency mentioned inn the will. The executory devise cannot be divested even by a feoffment;28 but the stability of these executory limitations is, nevertheless, to be understood with this single qualification, that if an executory devise or interest follows an estate tail, a common recovery, suffered by the tenant in tail before the condition occurred, will bar the estate depending
on that condition, for a common recovery bars all subsequent and conditional limitations.29 It is not so with a recovery suffered by a tenant in fee, for that will not bar an executory devise, as was decided in Pells v. Brown;30 and the reason of the distinction is, that the issue in tail is barred in respect of the recompense in value, which they are presumed to recover over against the vouchee, whereas the executory devisee is entitled to no part of the recompense, for that would go to the first taker, or person having the conditional fee.

We have seen, that an executory devise, either of real or personal estate, is good, if limited to vest within the compass of twenty-one years after a life or lives in being, and the contingency may depend on as many lives in being as the settlor pleases, for the whole period is no more than the life of the survivor. This rule of the English law has been restricted by the New York Revised Statutes,31 which will not allow the absolute power of alienation to be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate, except in the single case of a contingent remainder in fee, which may be created on a prior remainder in fee, to take effect in the event that the persons to whom the first remainder is limited, shall be under the age of twenty-one years. Every future estate is declared to be void in its creation, which suspends the absolute power of alienation for a longer period than is above prescribed. The New York statute has, in effect, destroyed all distinction between contingent remainders and executory devises. They are equally future or expectant estates, subject to the same provisions, and may be equally created by grant, or by will. The statute32 allows a freehold estate, as well as a chattel real, to be created to commence at a future day, and an estate for life to be created in a term for years, and a remainder limited thereon, and a remainder of a freehold or chattel real, either contingent or vested, to be created expectant on the determination of a term for years, and a fee to be limited on a fee, upon a contingency. There does not appear, therefore, to be any real distinction left subsisting between contingent remainders and executory devises. They are so perfectly assimilated, that the latter may be considered as reduced substantially to the same class, and they both come under the general denomination of expectant estates. Every species of future limitation is brought within the same definition and control. Uses being also abolished by the same code,33 all expectant estates in the shape of springing, shifting, or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders, and subject precisely to the same rules. What I shall say hereafter, in the course of the present lecture, on the subject of executory devises, will have reference to the English law, as it existed in this state prior to the late revision, and as it still generally exists in the other states of the Unions.34

(3.) Of executory devises limited upon a failure of heirs or issue.

It’ an executory devise be limited to take effect after a dying without heirs, or without issue, the limitation is held to be void, because the contingency is too remote, as it is not to take place until after an indefinite failure of issue. Nothing is more common, in cases upon devises, than the failure of the contingent devise, from the want of a particular estate to support it as a remainder, or by reason of its being too remote, after a general failure of issue, to be admitted as good by way of executory devise. If the testator meant that the limitation over was to take effect on failure of issue living at the time of the death of the person named as the first taker, then the contingency determines at his death, and no rule of law is broken, and the executory devise is sustained. The difficult and vexed question which has so often been discussed by the courts is, whether the testator, by the words dying without issue, or by words of similar import, and with or without additional expressions, meant a dying without issue living at the time of the death of the first taker, or whether he meant a general or indefinite failure of issue. Almost every case on wills, with remainders over, that has occurred within the last two centuries, alludes, by the use of such expressions, to the failure of issue, either definitely or indefinitely.

A definite failure of issue is when a precise time is fixed by the will for the failure of issue, as in the case of a devise to A., but if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition the very converse of the other, and means a failure of issue, whenever it shall happen, sooner or later, without any fixed, certain, or definite period within which it must happen. It means the period when the issue, or descendants of the first taker, shall become extinct, without reference to any particular time, or any particular event; and an executory devise, upon such an indefinite failure of issue, is void, because it might tie up property for generations. A devise in fee, with remainder over upon an indefinite failure of issue, is an estate tail, and in order to support the remainder over as an executory devise, and to get rid of the limitation as an estate tail, the courts have frequently laid hold of slender circumstances in the will, to elude or escape the authority of adjudged cases. The idea that testators mean by a limitation over upon the event of the first taker dying without issue, the failure of issue living at his death, is a very prevalent one, but it is probable that, in most instances, testators have no precise meaning on the subject, other than that the estate is to go over if the first taker has no posterity to enjoy it. If the question was to be put to a testator, whether he meant by his will, that if his son, the first taker, should die leaving issue, and that issue should become extinct in a month, or a year afterwards, the remainder over should not take effect, he would, probably, in most cases, answer in the negative. In the case of a remainder over upon the event of the first devisee dying without lawful issue, Lord Thurlow, following the whole current of cases, held the limitation over too remote, and observed, that he rather thought the testator meant the remainder persons to take whenever there should be a failure of issue of the first taker.35 Lord Macclesfield declared,36 that even the technical rule was created for the purpose of supporting the testator’s intention. If, says he, lands be devised to A., and if he dies without issue, then to B., this gives an estate tail to the issue of the devisee. And this construction, he observes, “is contrary to the natural import of the expression, and made purely to comply with the intention of the testator, which seems to be, that the land devised should go to the issue, and their issue, to all generations.” So, in Tenny v. Agar,37 the devise was to the son and daughter in fee, but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Lord Ellenborough said, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over was, consequently, void. The same construction of the testator’s real intention was given to a will in Bells v. Gillespie,38 where there was a devise to the sons, and if either should die without lawful issue, his part to be divided among the survivors. Mr. Justice Carr declared, that the testator meant that the land riven to each son should be enjoyed by the family of that son, so long as any branch of it remained. He did not mean to say, “you have the land of C. if he has no child living at his death, but if he leave a child you shall not have it, though the child dies the next hour.” A father, as he justly observed, is not prompted by such motives.

The opinions of these distinguished judges would seem to prove, that if the rule of law depended upon the real fact of intention, that intention would still be open to discussion, and depend very much upon other circumstances and expressions in the will, in addition to the usual words.

The series of cases in the English law have been uniform from the time of the Year Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over if the devisee dies without issue, or heirs of the body, is a fee cut down to an estate tail, and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue.39 The general course of American authorities would seem to be to the same effect, and the settled English rule of construction is considered to be equally the settled rule of law in this country; though, perhaps, it is not deemed of quite so stubborn a nature, and is more flexible, and more easily turned aside by the force of slight additional expressions in the will.40 The English rule has been adhered to, and has not been permitted, either in England or in this country, to be affected by such a variation in the words of the limitation over, as dying without leaving issue;41 nor, if the devise was to two or more persons, and if either should die without issue, the survivor should take.42 But if the limitation over was upon the first taker dying without issue living, it was held, so long ago as the case of Pells v. Brown,43 that the will meant issue living at the death of the first taker, and the limitation over was not too remote, but good as an executory devise. The same construction was given to a will when the limitation over was upon the event of the first taker dying without leaving issue behind him44 or where the will, in a bequest of personal estate only, was to two, and upon either dying without children, then to the survivor;45 or when the first taker should die and leave no issue, then to A. and B., who were in esse, or the survivor, and were to take life estates only;46 or when the first taker should happen to die, and leave no child or children.47

The disposition in this country has been equally strong, and, in some instances, much more effectual than that in the English courts, to break in upon the old immemorial construction on this subject, and to sustain the limitation over as an executory devise. In Morgan v. Morgan,48 the limitation over was upon dying without children, then over to the brothers of the first taker, and it was held to mean children living at the death of the first taker. So, in Den v. Schenck,49 the words creating the remainder over were, if any of the children should happen to die without any issue alive, such share to go to the survivors, and it was held to be good as an executory devise. The case of Anderson v. Jackson50 was discussed very elaborately in the courts in New York, and it was finally decided in the Court of Errors, that after a devise to the sons A. and B. in fee, the limitation that if either should die without lawful issue, his share was to go to the survivor, was good as an executory devise, because there was no estate tail created by these words, but the true construction was a failure of issue living at the death of the first taker.51

In Virginia, by statute, in 1819, the rule of construction of devises, as well as deeds, with contingent limitations depending upon the dying of a person without heirs, or without heirs of the body, or issue, or issue of the body, was declared to be, that the limitation should take effect on such dying without heirs or issue living at the time of the death of the first taker, or born within ten months thereafter. So, also, by the New York Revised Statutes;52 it is declared, that where a remainder in fee shall be limited upon any estate which would be adjudged a fee tail, according to the law of the state as it existed before the abolition of entails, the remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, without issue living at the time of his death. It is further declared, that when a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words heirs, or issue, shall be construed to mean heirs or issue living at the death of the person named as ancestor. It is, however, further provided,53 that where a future estate shall be limited to heirs, or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent; and if the future estate be depending on the contingency of the death of any person without heirs, or issue, or children, it shall be defeated by the death of the posthumous child. These provisions sweep away, at once, the whole mass of English and American adjudications on the meaning, force and effect of such limitations. The statute speaks peremptorily, and forces upon the courts the construction which it prescribes; and yet, perhaps, the next words, or next sentence in the will, might show a decided intention not to fix the period of the devisee’s death for the contingency to happen, and that the testator had reference to the extinction of the posterity of the devisee, though that event might not happen until long after the death of the first taker. And yet, after all, when we consider the endless discussions, and painful learning, and still more painful collisions of opinion, which have accompanied the history of this vexatious subject, it is impossible not to feel some relief, and to look even with some complacency at the final settlement, in any
way, of the litigious question by legislative enactment.54

The English courts long since took a distinction between an executory devise of real, and of personal estate, and held, that while the words dying without issue made an estate tail of real property, yet that, in respect to personal property, which was 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,55 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 any such 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 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.56

The New York Revised Statutes57 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 of 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.58 And if the executory limitation, either of lands 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 pra tanto, or in relation to a branch of the disposition.59

(4.) 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.60 The same rule applies to an executory devise of the personal estate, 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.61 These executory interests, whether in real or personal estates, like contingent remainders, may be assigned or devised; 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.62

In the great case of Thellusson v. Woodford,63 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. The purpose of accumulation was 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 to trustees in fee during 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 venire sa mere, for to receive the profits during all that time in trust, and to invest them from time to time in other real estates, and thus be adding income to principal. After the death of the last survivor of all the enumerated descendants, the estates were to be conveyed to those branches of the respective families of the sons who, at the end of the period, should answer the description of the heirs male of the respective bodies of the sons. The testator’s object was to protract the power of alienation by taking in lives of persons who were mere nominees without any correspondent interest. The property was thus tied up from alienation, and from enjoyment, for three generations, and when the period of distribution shall arrive, the accumulated increase of the estate will be enormous.64

This is the most extraordinary instance upon record of calculating and unfeeling pride and vanity in a testator, disregarding the ease and comfort of his immediate descendants, for the miserable satisfaction of enjoying in anticipation the wealth and aggrandizement of a distant posterity. Such an iron hearted scheme of settlement, by withdrawing property for so long a period, from all the uses and purposes of social life, was intolerable. It gave occasion to the statute of 39 and 40 Geo. III. c. 98. prohibiting thereafter any person from settling or devising real or personal property, for the purpose of accumulation, by means of rents or profits, for a longer period than the life of the grantor or testator, or twenty-one years after his death, or during the minority of any person, who, under the deed or will directing the accumulation, would, if then of full age, be entitled to the rents and profits.

The New York Revised Statutes65 have allowed the accumulating of rents and profits of real estate, for the benefit of one or more persons, by will or deed; but the accumulation must commence on the creation of the estate, out of which the rents and profits are to arise, and it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority; or if directed to commence at any time subsequent to the creation of the estate, it must commence within the time authorized by the statute for the vesting of future estates, and during the minority of the persons for whose benefit it is directed, and terminate at the expiration of such minority. If the direction for accumulation be for a longer time than during the minorities aforesaid, it shall be void for the excess of time; and all other directions for the accumulation of the rents and profits of real estate are void. It is further provided, that whenever there is, by a valid limitation, a suspense of the power of alienation, and no provision made for the disposition, in the mean time, of the rents and profits, they shall belong to the persons presumptively entitled to the next eventual estate.

The intermediate rents and profits arising on an estate given by way of executory devise, will pass by a devise of all the residue of the estate.66 But if these are not devised, then they are thrown upon the heir for want of some other person to take them, and they attend the estate in its descent to the heir; and it is a settled rule, that where there is an executory devise of a real estate, and the freehold is not, in the mean time, disposed of, the freehold and inheritance descend to the testator’s heir at law.67 If the profits are bequeathed, and the land left, in the mean time, to descend to the heir until the contingent limitation takes effect, and no other person made trustee of the profits, the heir becomes a trustee, and the rents and profits will accumulate in his hands for the benefit of the party under the will.68


NOTES

     1.    Carwardine v. Carwardine, 1 Eden’s Rep. 27
     2.    3 Term Rep. 763.
     3.    Lord Ch. J. Willes, in Goodtitle v. Wood, Willes’ Rep. 211.
     4.    Duke of Marlborough v. Earl Godolphin, 1 Eden’s Rep. 417.
     5.    Vide supra, p. 126.
     6.    Use of the Law, in Bacon’s Law Tracts, p. 145.
     7.    See his elaborate argument as counsel in the great case of Thellueson v. Woodford, 4 Vesey’s Rep. 249-264. Lord Ch. J. Bridgman, in the ease of Bate v. Amherst, (T. Raym. 82.) had, however, long preceded him in the research, for he insists, in that case, that executory devises were grounded upon the common law, and he refers to 49 Edw. III. 16. a. and 11 Hen. VI. 13. a. as evidence of it. Both of those cases are cited by Lord Coke, and the latter in 7 Co. 9. a. to prove that an infant in ventre sa mere, was, in many cases, “of consideration in the law.”
     8.    Cro. Jac. 590.
     9.    1 Lev. 135.
   10.    Pollex. Rep. 31. 1 Cases in Chancery, 4. 2 Freeman, 163. Lord Bridgman’s MS. Report of the case, cited by Mr. Hargrave in 4 Ves. Rep. 258.
   11.    3 Ch. Cas. 1. Pollex. Rep. 223. 2 Ch. Rep 229. ”
   12.    l Salk. Rep. 229. 12 Mod. Rep. 278.
   13.    This last observation of Mr. Justice Powell is supposed to be rather too strong; for the owner of the contingent fee, together with the executory devisee. may bar it by a common recovery, and it may be barred by fine by way of estoppel. But in those states where there are no fines or recoveries, the executory devise is a perpetuity as far as it goes.
   14.    Prec. in Ch. 72. Shower’s P. C. 137. S. C.
   15.    1 Lord Raym. 203.
   16.    2 Barnard, K. B. 375. Cases temp. Talbot, 228.
   17.    Atkinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. 174. Long v. Blackall, 7 Term Rep. 100.
   18.    Supra, p. 17.
   19.    This is the classification made by Powell, J. in Scatterwood v. Edge, 1 Salk. Rep. 229 and it has been followed by Mr. Fearne, Mr. Preston goes on to a greater subdivision, and he says there are six sorts of executory devise applicable to freehold interests, and two, at least, if not three sorts of executory bequests applicable to chattel interests. Preston on Abstracts of Title, vol. ii 124. I have chosen not to perplex the subject by divisions too refined and minute. The object in elementary discussions, according to the plan of these lectures, is to generalize as much possible.
   20.    Marks v. Marks, 10 Mod. Rep. 419. Prec. in Chan. 486.
   21.    Bate v. Amherst, T. Raym. 82. Lent v. Archer, 1 Salk. Rep. 226. Lord Ch. J. Treby, in Clarke v. Smith, 1 Lutw. 798.
   22.    Vol. ii. P. 285.
   23.    Cotton v. Heath, 1 Equ. Cas. Abr. 191. pl. 2.
   24.    Hoare v. Parker, 2 Term Rep. 376. Fearne on Executory Devices, 46.
   25.    2 Blacks. Com. 173, 174.
   26.    Pells v. Brown, Cro. Jac. 590. Fearne on Executory Devises, 46. 51-58.
   27.    Jackson v. Bull, 10 Johns. Rep. 19. Attorney General v. Hall, Fitzg. 314. Ide v. Ide, 5 Mass. Rep. 500. Jackson v. Robin, 16 Johns. Rep. 537.
   28.    Mullineux’s case, cited in Palm. 136.
   29.    Driver v. Edgar, Cowp. Rep. 379. Fearne, 66, 61. 107.
   30.    Cro. Jac, 590.
   31.    N.Y. Revised Statutes, vol. i. 728. sec. 14, 15, 16.
   32.    N.Y. Revised Statutes, vol. i. 724. sec. 24.
   33.    Ibid. vol. i. 727. sec. 45.
   34.    We may not be able to calculate with certainty upon the future operation of the changes which have been recently, made in the do trine of expectant estates by the New York revised code of statute law. But the first impression is, that these innovations will be found to be judicious and beneficial. It appears to be wise to abolish the technical distinctions between contingent remainders, springing or secondary uses, and executory devises, for they serve greatly to perplex and obscure the subject. It contributes to the simplicity, and uniformity, and certainty of the law, to bring those various executory interests nearer together, and resolve them into a few plain principles. It is convenient and just that all expectant estates should be rendered equally secure from destruction by means not within the intention of the settlement, and that they should all be controlled by the same salutary rules of limitation. Some of the alterations are not material, and it is doubtful whether confining future estates to two lives in being, was called for by any necessity or policy, since the candles were all lighted at the same time, let the lives be as numerous as caprice should dictate. It was a power not exposed to much abuse, and, in the case of children, it might be very desirable and proper that the father should have it in his power to grant life estates in his paternal inheritance to all his children in succession. The propriety of limiting the number of lives was much discussed recently before the English Real Property Commissioners. The objection to a large number of lives is, that it increases the chance of keeping the estate locked up from circulation to the most extended limit of human life; and very respectable opinions are in favor of a restriction to the extent of two or three lives only, besides the lives of the parties in interest, or to whom life estates maybe given. The New York statute has carried the restriction too far.
   35.    Jeffery v. Sprigge, 1 Cox’s Cases, 62.
   36.    Pleydell v. Pleydell, 1 P. Wins. 750.
   37.    12 East’s Rep. 253.
   38.    5 Randolph, 273.
   39.    The number of cases in which that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratification of the curiosity of the student. Assize, 35 Edw. III. pl. 14. Sonday’s case, 9 Co. 127. King v. Rumbail, Cro. Jac. 448. Chadock v. Cowly, ibid. 695. Holmes v. Meynel, T. Raym. 452. Forth v. Chapman, 1 P. Wms. 663. Brice v. Smith, Willes’ Rep. 1. Hope v. Taylor, 1 Burr. Rep. 268. Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Doe v. Fonnereau, Doug. Rep. 504. Denn v. Slater, 5 Term Rep. 355. Doe v. Rivers, 7 Term Rep. 276. Doe v. Ellis, 9 East’s Rep. 38.2. Tenny v. Agar, 12 East’s Rep. 253. Romilly v. James, 6 Taunt. Rep. 263. Bartow v. Salter, 17 Vesey’s Rep. 479.
   40.    For the strict effect of the rule, see Ide v. Ide, 5 Mass. Rep. 500. Dallam v. Dallam, 7 Harr. & Johns. 220. Newton v. Griffith, 1 Harr. & Gill, 111. Sydnor v. Sydnor, 2 Munf. 269. Carter v. Tyler, 1 Call, 143. Hill v. Burrow, 3 ibid. 342. Bells v. Gillespie, 5 Randolph, 273. Broaddus v. Turner, ibid. 308. Denn v. Wood, Cameron & Norw. Rep. 202. Cruger v. Hayward, 2 Dessauss. 94
   41.    Forth v. Chapman, 1 P. Wms. 663. Romilly v. James, 6 Taunt. Rep. 263. Daintry v. Daintry, 6 Term Rep. 307. Croly v. Croly, 1 Batty, 1. Carr v. Porter, 1 McCord’s Ch. Rep. 60. Newton v. Griffith, 1 Harr. & Gill, 111.
   42.    Chadock v. Cowly, Cro. Jac. 695. Newton v. Griffith, 1 Harr. & Gill, 111. Bells v. Gillespie, 5 Randolph, 273. Broaddus v. Turner, ibid. 308.
   43.    Cro.Jac.590.  
   44.    Porter v. Bradley, 3 Term Rep. 143.
   45.    Hughes v. Sayer, 1 P. Wms. 533.
   46.    Roe v. Jeffrey, 7 Term Rep. 489.
   47.    Doe v. Webber, 1 Barnw. & Ald. 713.
   48.    5 Day, 517.
   49.    3 Halsted’s Rep. 29.
   50.    16 Johns. Rep. 382.
   51.    The decision of Anderson v. Jackson rested entirely upon the word survivor. If that word will not support it, then it is an anomalous and unsound authority. The preceding words of the will, in that case, were those ordinary words creating an estate tail, as declared by all the authorities, ancient and modern, and without the instance of a single exception to the contrary, according to the remark of Lord Thurlow, and of Lord Mansfield. When that case was afterwards brought into review in Wilkes v. Lion, (2 Cowen’s Rep. 333.) it was declared, that the construction assumed by the court rested upon the effect to be given to the word survivor. The cases have already been referred to in which it has been often held, that the word survivor did not alter the settled construction of the words dying without issue; and there is no case in which it has been construed to alter them, unless there was a material auxiliary circumstance, as in Roe v. Jeffry, or the word survivor was coupled, not with issue, but with children, in reference to personal property, as in Hughes v. Sayer; or it was the case of dying without issue alive, as in Den v. Schenck. The case of Anderson v. Jackson was, therefore, a step taken in advance of all preceding authority, foreign and domestic, except that found in the court below, and it shifted and disturbed real property in the city of New York to a very distressing degree. The same question, under the same will, arose in the Circuit Court of the United States for the southern district of New York, and it was eventually decided in the Supreme Court of the United States (Jackson v. Chew, 12 Wheat. Rep. 153.) in the same way. But the court, without undertaking to settle the question upon the English law, constituting the prior common law of New York, decided it entirely upon the strength of the New York decisions, as being the local law of real property in the given case. This was leaving the merits of the question, independent of the local decision. untouched; and, therefore, the doctrine of the Supreme Court of the United States is of no authority beyond the particular case. If the same question had been brought up at the same term, on appeal from the Circuit Court of Virginia, in a case unaffected by statute, the decision must have been directly the reverse, because the rule of construction in that state, under like circumstances, is different. The local law of Virginia ought to be as decisive in the one case, as the local law of New York in the other. The testamentary dispositions in the cases above referred to, from 5 Randolph, agree, in all particulars, with the case in New York. The devise in each was to the sons, and if either should die without lawful issue, then over to the survivor, and the question was profoundly discussed, and decided in opposition to the New York decision, and with that decision full before the court. The federal jurisprudence concerning real property, under the operation of the rule of decision assumed by the Supreme Court of the United States, (and I do not well see how it could have been discreetly avoided,) may, however, in process of time, run the risk of becoming a system of incongruous materials, “crossly indented, and whimsically dovetailed.”
   52.    N.Y. Revised Statutes, vol. i. 722. sec. 4. Ibid. 724. sec. 22.
   53.    Ibid. p. 724. sec. 30, 31.
   54.    The great objection to legislative rules, and to all kinds of codification, when it runs into detail, is, that the rules are not malleable; they cannot accommodate to circumstances;-they are imperative; and such interference is the more questionable when a permanent, inflexible construction, is attempted to be prescribed even for the words used by a testator in his will. The noted observation of Lord Ch. J. Wilmot, naturally occurs, that “the statute is like a tyrant, where he comes he makes all void; but the common law is like a nursing father, and makes only void that part where the fault is, and preserves the rest.” The different bearings of the sections of the N.Y. Revised Statutes, vol. i. 748. sec. 2. and vol. i. 724. sec. 22. on this subject, present quite a contrariety of prescription. In the one, every instrument conveying an estate or interest, must be carried into effect according to the intent of the party, so far as that intent can be collected from the whole instrument, and is consistent with the rules of law. In the other, certain words shall be construed to mean heirs or issue living at the death of the person named as ancestor, when, perhaps, the other parts of the instrument would show clearly, that the words were not so meant; or when, perhaps, in a great majority of cases, without any further explanation, the testator, under a comprehensive view of the subject, never did so mean, and would have resented the imputation of such a construction.
   55.    1 P. Wms. 663.
   56.    Fearne on Executory Devises, by Powell, 186. 239. 259. Doe v. Lyde, 1 Term Rep. 593. Dashiell v. Dashiell, 2 Harr. & Gill, 127. 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 well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2.Atk. Rep. 314.) Lord Thurlow, (1 Bro. 188. 1 Ves. jr. 286.) Lord Loughborough, (3 Vesey’s Rep. 99.) Lord Alvanley, (5 Vesey’s Rep. 440.) Lord Kenyon, (3 Term Rep. 133. 7 Term Rep. 595.) Sir William Grant, (17 Vesey’s Rep. 479.) and the Court of K. B. in 4 Maule & Selw. 62. are authorities against the distinction. Lord Hardwicke, (2 Atk. Rep. 288. 2 Ves. Rep. 180. 616.) Lord Mansfield, (Cowp. Rep. 410.) Lord Eldon, (9 Ves. Rep. 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 mariner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. 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 sustain the limitation over, and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. Rep. 12. Newton v. Griffith, 1 Harr.& Gill, 111. Royall v. Eppes, 2 Munf. Rep. 479.
   57.    N.Y. Revised Statutes, vol. i. 724. sec. 23. vol. i. 773. sec. 1 and 2.
   58.    Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Lord Chatham v. Tothill, 6 Bro. P. C. 450. Britton v. Twining, 3 Merivale, 176.
   59.    Fearne on Executory Devises, 159, 160. Phipps v. Kelynge, ibid. 84.
   60.    Pay’s Case, Cro. E. 878. Hayward v. Stillingfleet, 1 Atk Rep. 422. Hopkins v. Hopkins, Cases temp. Talbot, 44
   61.    Chapman v. Blissel, Cases temp. Talbot, 145. Duke of Bridgewater v. Egerton, 2 Vesey’s Rep. 122.
   62.    Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. Rep. 29. Fearne on Executory Devises, 529-535. N.Y. Revised Statutes, vol. i. 725. sec. 35. Higden v. Williamson, Cases temp. Talbot, 131. 2 Saund. Rep. 388. k. note.
   63.    4 Vesey’s Rep. 227.
   64.    The testator died in 1797. He left three sons and three daughters, and half a million sterling, on an accumulating fund. If the limitation should extend to upwards of 100 years, as it may, the property will have amounted to upwards of one hundred millions sterling.
   65.    N.Y. Revised Statutes, vol. i. 726. sec. 37-40.
   66.    Stephens v. Stephens, Cases temp. Talbot, 228.
   67.    Clarke v. Smith, 1 Lutw. 798. Hopkins v. Hopkins, Forrest, 44.Gibson v. Lord Mountfort, 1 Vesey’s Rep. 485. Mb. 93. S.C.
   68.    Rogers v. Ross, 4 Johns. Ch. Rep. 388.