Harg. n. (5) to Co. Litt. 20, a. Fearne, E. D. passim. heritance shall descend to the right heirs of the testator.* Remainders (or at least what we may here call remainders) of chattels, either real or personal, may be limited by executory devise, so they be limited to a person or persons in being, or to vest within twenty-one years after the death of a person or persons in being; but if the reVide ante, c. 2. mainder be such as, if it were of freehold property, would amount to an express entail, it shall rest in the person in whom it so vests, and be at * And although the executory devise is dependent on the arrival of a future period only, and not on a contingent event, so that the executory devise is sure to take effect on the day appointed, yet the heir will take the whole fee in the interim, and not merely a term, bounded by the ascertained continuance of his estate. Thus, if A. devised land to C. and his heirs from the 1st day of January next after the testator's decease, the fee will descend to the heir at law of A. till the 1st day of January, when the executory devise will operate, 3 T. R. 88. 93. and carry the fee simple to C. in possession. Till the arrival of the day, C. has not any estate in the land, [although he has an interest transferrable and devisable.] In the language of Mr. Butler, “he has not an estate in possession, as he has not a right of present enjoyment; he has not an interest in remainder, as the limitation to him depends on the estate in fee simple which descends to A.'s heir; he has not a contingent interest, as he is a person in being and ascertained, and the event on which the limitation to him depends is certain; and he has not a vested estate, as the whole fee is vested in A. or his heirs. He has, therefore, no estate; the limitation being executory, and conferring on him and his heirs a certain fixed right to an estate in possession at a future period. Butl. Fearne, 1. [7 & 8 Vict. such person's disposal, or go to his representative on his death.* This passage requires some qualification. If freehold property be devised to "A. and his heirs; but if he shall die without leaving issue, then to B. and his heirs," the words "without leaving issue," have been held to mean an indefinite failure of issue, and of consequence to create an estate tail in A., with remainder to B. in fee. But the same words as to leaseholds have been construed to mean a failure of issue living at the death of the legatee; and, therefore, a bequest of leasehold property held for a long term of years, to" A. for ever; but if he shall die without leaving issue, then to B.," gives A. the entire interest in the term, subject to an executory devise over in favour of B., dependent on the event of A.'s dying without issue living at the time of his death. In devises of terms for years or other personal estate, the Courts were much inclined to lay hold of any words in the will, to confine the generality of the expression dying without issue, to dying without issue living at the time of the legatee's decease. But with respect to freeholds the rule was just the reverse. Shapland v. Smith, 1 Bro. Cha. Ca. 75. Hodgeson v. Bussey, 2 Atk. 89. Wilkinson v. South, 7 T. R. 555. Britton v. Twining, 3 Meriv. 183. [Kinch v. Ward, 2 Sim. & Stu. 409. Fearne's C. R. 471, et seq. See 2 Roper's Leg. 445, ed. 1828. But now in all wills made on or after the 1st January, 1838, by the statute 1 Vict. c. 26, the rule above-mentioned, as applied to bequests of leasehold and other personal estate, is made the rule of construction in regard to devises of real estate. The words of the 29th section are as follow, that in any devise or bequest of real or personal estate the words "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of Fearne, E. D. 418. As a general rule an executory devise cannot be barred or destroyed by any act of the person taking the preceding fee.* issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a preceding gift, being, without any implication arising from such words, a limitation of an estate tail to such person or issue, or otherwise: provided that this act shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born, or if there shall be no issue who shall live to attain the age, or otherwise answer the description required for obtaining a vested estate, by a preceding gift to such issue.' The student will observe, that the rules of construction prescribed by the act, ss. 28, 29, make a very material alteration in the quantity and value, not only of the estate of the first devisee, but also in that of the person entitled under the executory devise over: thus, if the devise were to A. generally, or to A. and his heirs, and if he dies without issue to B., or to B. and his heirs, under the old rule of construction, A. took an estate tail, and with it, the power of acquiring the absolute ownership by barring B.'s remainder, whether for life or in fee: but now by the sect. 28, the devise to A. without words of limitation carries the fee and by sect. 29, above cited, the devise over gives a fee to B. to take effect in the event of A. dying without leaving issue, living at his death, an executory devise, which is indefeasible by 4.] * If the preceding fee be an estate tail, the tenant in tail may destroy the executory devise and all remainders over. Pig. Rec. 130, 134, Cov. Rec. 176. The consequence is, that an executory devise limited to take effect on an indefinite failure of issue under the preceding estate tail is not too remote, [for it is limited to take effect within the compass of 547. But the person entitled to the executory estate Ferne, E. D. may bar his own claim by release to the first taker in possession or [he may by the 7 & 8 Vict. c. 76, s. 5, convey it to a stranger; previously to that statute he might have,] assigned it in equity for a valuable consideration; and as to lands in Ireland, he might have conveyed it at law, as if it were vested in possession. He may also devise it. So if the person entitled to the executory estate came in as a vouchee on a common recovery or levied a fine, [previously to the statutes 3 & 4 W. 4, c. 74, and 4 & 5 Ib. c. 92,] he was barred by estoppel.* the estate tail, or eo instanti that it determines; and at any time before the happening of the event, on which the executory devise is to take effect, it is barrable by a deed of disposition under the 3 & 4 W. 4, c. 74, and 4 & 5 Ib. c. 92, as it was previously to those acts barrable by recovery; but where an executory devise, limited after a general failure of issue, is collateral to and independent of any previous estate tail, the executory devise over would be void. Lanesborough v. Fox, Ca. tem. Talb. 262, 4 Cru. Dig. 349, ed. 4, [unless under the 1 & 2 Vict. c. 26, a similar devise might be construed to be limited on a failure of issue living at the decease of the person, the failure of whose issue is contemplated.] 4 & 5 W 4, Supra, p. 193. c. 92, s. 22. * On a devise to "A. and his heirs, and if he die without Fearne, E. D. 419. 423. issue in the lifetime of C., then to C. and his heirs," if A. entered and suffered a common recovery without vouching C., the executory devise to C. was not barred by the recovery. Cro. Jac. 592. It will be observed, that this is an executory devise expectant on an estate in fee, and could not, therefore, be barred by the recovery of A. alone, as it might have been, if the limitation to A. had been to his issue, instead of to his CHAP. XV. Fearne, C. R. 9. 414. Sand. OF A CONDITIONAL LIMITATION. A REMAINDER is to commence when the par A Uses, 182, &c. ticular estate is, from its very nature, to determine; it is, as it were, a continuance of the same estate; it is a part of the same whole. conditional limitation is not a continuance of the estate first limited, but is entirely a different and separate estate. It is not to commence on the determination of the first, but the first is to determine when the latter commences. It is the commencement of the latter which rescinds and destroys the former; and not the ceasing of the former which gives existence to the last. The particular estate and remainders are, in fact, as the very terms imply, but one and the same estate. The estate first [limited], and the conditional limitations, are separate and distinct estates.* * Between a condition and a conditional limitation there is this difference: a condition respects the destruction and determination of an estate; a conditional limitation relates to the commencement of a new one. A condition brings the estate back to the grantor or his heirs; a conditional limitation carries it over to a stranger. Breach of a con |