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limitation, he did not know that the court had changed the word “heirs” into “heirs of the body," to make it so throughout. Fearn. Ex. Dev., 6th ed., 389-392. With respect to this class of

cases,

it
may

be remarked, that a devise to the heir at law in fee, with an executory devise over in case he does not attain twenty-one years of age, does not alter the quality of the estate, which he would otherwise have taken as heir; but he takes by descent, and not by purchase; and the defeasibility of the estate, upon the happening of the event which was contemplated by the will, makes no difference. Doe, d. Pratt vs. Timons, 1 Barn. & A., 350; Et vid. Chaplin vs. Leroux, 56 Geo., 3, cited ibid., 541; Buckworth vs. Thirkell, 3 Bos. & P., 652, n.

The subject of executory devisees was thus discussed by the Court in the case of Hopkins vs. Hop

12 ܙܙ

kins : 13

"Two questions have been made upon this will; the first is, whether this limitation to the first and every other son of John Hopkins can now take effect as an executory devise, or whether it shall be taken as a contingent remainder, and consequently void for want of a particular estate to support it, by reason of Samuel's death in the testator's lifetime, and that John Hopkins had no son in esse at the testator's death, in whom the remainder might vest. The next question is, in case the limitation be taken as an executory devise, what is to become of the rents and profits of this estate until John Hopkins has a son. As to the first, I think it impossible to cite any authorities in point. None have been cited. It seems to be allowed, that if things had stood at the testator's death as they did at the time of the making of the will, the limitation in question would have been a remainder by reason of Samuel's estate, which would have supported it; so is the case of Purefoy vs. Rogers, 2 Saund., 380, 388, and limitations of this kind are never construed to be executory devises, but where they cannot take effect as remainders. So, on the other hand, it is likewise clear, that had there been no such limitation to Samuel and his sons, the limitation must have been a good executory devise, there being no antecedent estate to support it; and consequently not able to inure as a remainder; so that it must be the intervening accident of Samuel's death in the testator's lifetime, upon which this point must depend. And as to that, I am of opinion, that the time of making the will is principally to be regarded in respect to the testator's intent. If an infant or feme covert make a will, and do not act either at full age or after the coverture determined, to revoke this will, yet the will is void; because the time of making is principally to be considered; and the law judges them incapable of disposing by will at those times. The same reason holds in the case of a devise of all the lands which a man has or shall have at the time of his death, no afterpurchased lands shall pass without a republication; which was the case of Bunter vs. Cook, 1 Salk., 237, because the time of the will made is chiefly to be regarded. Indeed, it is possible that subsequent things may happen to alter the testator's intent; but unless that alteration be declared, no court can take notice of his private intent, not manifested by any revocation of the former; though these subsequent accidents may, and must in many cases, have an operation upon the will; as in the case of Fuller vs.

19 Note to Thomas' Edition of Coke's

Institute (1836).

13 Reported Cas. Temp. Talb. 44

1734.

Fuller, Cro. Eliz., 422, and Hutton and Simpson, Vern., 722. And in the Lord Landsdown's Case, the first limitation did not expire by effluxion of time, but by the intervening alteration of things between the time of the will made and the testator's death; and the words there, for want of such issue, were not construed to create another estate-tail to postpone the limitation, but only to covert the second estate to the precedent limitation. So, we see, that in these cases, the method of the courts is not to set aside the intent because it cannot take effect so fully as the testator desired; but to let it work as far as it can. And if, in this case, we consider it as an executory devise, the intent will be served in case John Hopkins has a second son; but if it is taken as a remainder, the intent plainly appearing that a second son of John Hopkins should take, is quite destroyed; there being no precedent estate to support it as a remainder. The very being of executory devises shows a strong inclination, both in the courts of law and equity, to support the testator's intent, as far as possible; and though they be not of ancient date, yet they are of the same nature with springing uses, which are as old as uses themselves. I can see no difference between this case and the others of like nature, that have been adjudged. And if such a construction may be made consistently with the rules of law, and agreeable to the testator's intent, it would be very hard not to suffer it to prevail. In Pay's Case, Cro. Eliz., 878, had the testator lived to Michaelmas, the limitation had been a remainder; and if a remainder in its first creation does, by any subsequent accident become an executory devise, why should it not be good here, upon the authority of that case, whereby the testator's death before Michaelmas, what would otherwise have been a remainder was held to be good by way of executory devise? I think, that in this case the limitation would operate as an executory devise, if it was of a legal estate; and therefore shall do so as a trust, the rules being the same.

“The next question is, what is to become of the rents and profits in case this be taken to be an executory devise, until the birth of a son to John Hopkins? And this must depend upon the wording of the proviso. The words are, 'That none of the persons to whom the estates are limited shall be in the actual possession and enjoyment of the rents and profits until they shall respectively attain the age of twenty-one; and that in the meantime the trustees shall make such allowance thereout as they shall think suitable; and then he wills, that the overplus of such rents and profits do go to such persons as shall be entitled unto, and come to the actual possession of his estate,' etc. By which words, none are affected but such as are to come to the estate under the limitations. It restrains them from having anything to do with the estate till they attain the age of twenty-one, and provides the surplus (beyond their allowance) to be laid up for them; but here is no provision made, what shall become of those rents and profits until a son be born. The words in the meantime have been differently construed; and it was said, that there was no certain terminus a quo, from whence they should begin. Had Samuel lived, the terminus must have been from the time of the limitation taking place; and so it must be toties quoties and come to be entitled to this estate under the several limitations; but until somebody is in ease to take under this executory devise, the rents and profits must be looked upon as a residue undisposed of and consequently must descend upon the heir-at-law; the case being the same where the whole legal estate is given to the trustees, and but part of the trust disposed of, as in this case; and where but part of the legal estate is given away, and so the residue undisposed of, the legal estate descends upon the heir-at-law. So it was held by the Lord King in the case of Lord and Lady Hertford vs. Lord Weymouth; which shows that equity follows the law."

SECTION 63. TITLES BY OPERATION OF LAW.

There are a number of cases where the title to land comes to a person as a result of the operation of law. Such cases are divided into three general classes as follows: (1) those arising from natural causes; (2) those arising from civil or political relations, and (3) those arising from public policy. SECTION 64. TITLES ARISING FROM NATURAL CAUSES.

Title is said to arise from natural causes in the cases of accretion and reliction. Accretion is the increase of land caused by gradual and imperceptible additions thereto caused by the washing of the sea or adjacent stream. Reliction is the gradual subsidence of waters leaving dry land where there had formerly been water. The land created either by accretion or reliction belongs to the adjacent owner.

The sudden removal or deposit of land by the perceptible action of water is called avulsion. The title to land cannot be changed or created by avulsion. SECTION 65. TITLES ARISING FROM CIVIL OR POLIT

ICAL RELATIONS. Under this division are included the subjects of eminent domain, escheat, confiscation, and forfeiture.

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