the birth of such son, the freehold will vest in him; or, upon the death of such person without any son, it must vest somewhere else, subject only in either case to the preceding term. Gore vs. Gore, 2 P. Wms., 28. When an estate is devised to a person upon an event, which is too remote; a devise over, depending on the same event, is also void. Proctor vs. Bishop of Bath, 2 Hen. Bl., 358; Earl of Chatham vs. Tothill, 6 Bro. P. C., 451; 1 Ves., 134. So a devise after failure of the issue or heirs of A., where no estate-tail is already vested or given by the express words of the will, or arises by implication, to such issue or heirs, is void in its creation; for if A. should have heirs or issue, they might last for ever; and, while they did, there would be nobody who could bar the estate thus devised, so that a perpetuity would be created. Dougl., 506, n. Wright vs. Hammond, 8 Vin. Ab., 110.; 1 Stra, 427 Lanesborough vs. Fox, 3 Bro. P. C., 130; Goodman vs. Goodright, 1 Bl. Rep., 188; Dougl., 507. But though in general a devise after a general failure of heirs or issue, is void, yet this rule admits of some exceptions: As, 1st, where a person who is entitled to a reversion expectant on the determination of an estate-tail, devises the lands to another, after failure of issue of the tenant in tail; this is held to be an immediate devise of the reversion, and therefore good. Badger vs. Lloyd, 1 Ld. Raym., 523; 1 Salk., 232; Fearn. Ex. Dev., 326; Jones vs. Morgan, 3 Bro. P. C., 322; Lytton vs. Lytton, 4 Bro. C. C., 441. 2d. A devise in default of issue of the devisor: which has been construed to be a conditional devise, to take effect at the death of the testator, and has therefore been held not to be executory. Willington vs. Willington, 1 Bl. Rep., 645; French vs. Cadell, 3 Bro. P. C.,

257. 3d. A devise over for life, to a person in esse, to take place on failure of issue of the first devisee, may be good; because, the future limitation being only for the life of a person in esse, it must necessarily take place during that life, or not at all: and therefore the failure of issue, in that case, is confined to the compass of a life in being. Fearn. Ex. Dev., 279; Doe vs. Lyde, 1 T. R., 593. 4th. Where an estate-tail is raised by implication, in the person, on the failure of whose heirs or issue the estate is devised over: in which case the second devise is supported as a remainder, expectant on the determination of such prior estatetail. Walter vs. Drew, Com. Rep., 372; Jones vs. Morgan, supra; Ante, vol. 1, p. 547, 8 n. (N).

"3d. With respect to executory devises of terms for years:-A bequest over of a term for years, after a previous disposition for life, was formerly void; because, an estate for life being of greater estimation in the eye of the law than the longest term for years, it was concluded, that the limitation of a term for years, to a person for life, was a complete disposition of it; and it was also considered that the possibility of a term's continuing longer than the life of the person, to whom it was first bequeathed, was not such an interest as by the rules of law could be limited over. 1 Burr., 284. But such bequest is now good. 6 Cru. Dig., 476, 477; Matthew Manning's case, 8 Co., 95; Lampet's case, 10 Co., 46. And in like manner a similar declaration of a trust of a term, is good. 1 Burr., 284; 1 Vern., 235. And though to a person not in esse, or not ascertained. Cotton vs. Heath, 1 Rol. Abr., 612; 1 Ab. Eq., 191. Although a devise of a term for years to a person and the heirs of his body, vests the entire and absolute property of the term in him, if not restrained

Vol. VI.-7.

by subsequent words; yet, if a devise over of it is made, which is within the rules established for preventing perpetuities, it will be supported as an executory devise. And the devisee for life cannot bar the devise over; nor will any subsequent union of the freehold or inheritance, with the interest so given to the first devisee, or a feoffment, or other act of forfeiture, by such first devisee, extinguish or affect the interest of the ulterior devisee. Fearn. Ex. Dev., 55; Hamington vs. Rudyard, cited 10 Rep., 52 a; Cotton vs. Heath, supra. But an executory bequest of a term for years, as well as executory devises of estates of inheritance, must vest within the compass of a life or lives in being, and twenty-one years and some months after. Therefore where a term for years is given over, after a general and indefinite failure of issue, it is void, as being too remote. Burford vs. Lee, 2 Freem., 210; Love vs. Windham, 1 Mod. 50. And such limitations cannot be supported as remainders. 6 Cru. Dig., 481. But where there are words to restrain the failure of issue to a life or lives in being, and twenty-one years and some months after, it is good. Duke of Norfolk's case, 3 Ch. Ca., 1; Pollexf. 223; Lamb vs. Archer, 1 Salk., 225; Fletcher's case, 1 Ab. Eq., 193; Long vs. Blackall, 7 T. R., 100. And the court of chancery has very much inclined to lay hold of any words in a will, to restrain the generality of the words "dying without issue," and confine them to dying without issue living at the time of the person's decease, in order to support the intention of the testator; by which construction the devise over becomes valid, being confined to the period of a life in being. Torget vs. Gount, 1 P. Wms., 432; Forth vs. Chapman, 1 P. Wms., 663; Atkinson vs. Hutchinson, 3 P. Wms.,

258; Goodtitle vs. Pegden, 2 T. R., 720; Wilkinson vs. South, 7 T. R., 555. But, in devises of terms, there is no distinction between words giving an express estate-tail, or by implication, Fearn. Ex. Dev., 233; 1 P. Wms., 433; 3 P. Wms., 268; nor between a devise to one for life expressly, and if he die without issue, remainder over; or to one indefinitely, and if he die without issue, remainder over. Love vs. Windham, supra; Clare vs. Clare, Forrest, 21; Fearn. Ex. Dev., 275. An executory devise of a term for life to a person in esse, to take place upon a dying without issue of another, is good; because, the future limitation being only for the life of a person in esse, it must necessarily take place during the life or not at all; and therefore the failure of issue is, in that case, confined to the compass of a life in being. Oakes vs. Chalfont, Pollexf. 38; Et vid., 3 Atk., 449; Doe vs. Lyde, 1 T. R., 593.

"With regard to executory devises in general, it may be further observed, that, where one limitation of a devise is executory, all the subsequent ones are so likewise. Fearn. Ex. Dev., 334; Carth., 310; Gore vs. Gore, 2 P. Wms., 28. A preceding executory limitation may, however, be uncertain and contingent; when a subsequent one, though to take effect in future, may not be uncertain or conditional (otherwise than in respect of the possibility of its expiration before the former vests or fails); but may be so limited as to take effect either in default of the preceding limitatation taking effect at all, or by way of remainder after it, if that should take effect. In either of those cases it must vest at the time appointed for the preceding limitation to vest; for, should the preceding limitation fail of taking effect, the subsequent one will then vest in possession, should the preceding take effect, the

subsequent one will at the same time vest in interest as a remainder upon the preceding one, and then become liable to the same modes of destruction, to which other remainders of the same kind are subject. Brownsword vs. Edwards, 2 Ves., 243; Southby vs. Stonehouse, 2 Ves., 610. A distinction must, however, be made between cases of this nature, and the case where a testator devised to B., his son and heir; and if he died before twenty-one, and without issue of his body, then living, the remainder over, &c. B. survived the twenty-one years, and then sold the lands and died; and it was held, that he had a fee-simple immediately; for the estate-tail was limited to arise upon a contingency subsequent. Collinson vs. Wright, 1 Sid., 148. And also, where a person devised lands to his wife till his son came of age; and then that his son should have the land to him and his heirs; and if he died without issue before his said age, then to his daughter and her heirs; this was held to be a good executory devise to the daughter, if the contingency happened; and if he lived to twenty-one, though he after died without issue, or left issue though he died before twenty-one; yet the daughter was not to have the land, because he was to die without issue and before twenty-one, or else the daughter could not take. Et vid. acc. Eastman vs. Baker, 1 Taunt., 174. It is observable, that, in the two cases which have been last stated, the devise to the son was in fee, so as not to admit a regular remainder after it: whereas in that of Brownsword vs. Edwards, the first devise was in tail, upon which Lord Hardwicke laid so much. stress as to say, that had the devise been to B. and his heirs, the construction he gave could not, he believed, be made; for where there was such a contingent