6. Although it has been remarked, that powers are more frequently made use of in arranging family settlements than for any other purpose, it is not proposed to pursue this subject into its detail, and it is simply necessary to add, that the powers most usually found in modern deeds of settlement, are those of raising a jointure in favor of a wife out of lands held by a tenant for life only, to lease lands by the donee of the power beyond the period of his own estate, and powers of sale and exchange of the lands settled in such deeds of settlement.1 1 Cruise, Dig. Deed, ch. 14, 15, 16, where the subjects are fully treated of. The reader is also referred to the Appendix for a form of a modern deed of settlement. SECT. 3. SECT. 4. Limitations upon Failure, &c., when Remainders or otherwise. 3. Of the analogy between executory devises, &c., and remainders. 4, 5, 6. Of the origin and introduction of such devises. 7. Of the classes into which they are divided. 8. First, where one fee is limited after another fee. 9. Second, where a freehold is limited in futuro. 10. How devisor's interest is affected in the first and second classes. 10a. Mr. Smith's seventh class of executory limitations. 11. Mr. Preston's sixth class explained and applied. 12. Future estates, as construed by remainders, rather than executory devises. 13. Principle does not apply to the second class of devises. 14. Rules to distinguish between executory devises and remainders. 14 a. Limitations, both remainders and executory devises. 15. When a limitation over upon dying without issue is a remainder. 16. When a contingent remainder may be changed into an executory devise. 18. How far a limitation may be certain, after one that is uncertain. 19. Effect on a subsequent limitation of a preceding one, not a condition. 20. Effect upon subsequent limitations, of a prior one carrying the whole interest. 21. Case of Lion v. Burtis, 20 Johns. 483. 22. Law as to "dying without issue," &c., being a general failure of issue. 23. Distinguishing characteristics of devises and remainders. 24. Of the respective destructibility of the two. 25. Limitation by devise after a previous estate which fails. 26. Executory devises, not alienable, tend to perpetuities. 1. THERE is a class of interests well known to the law, which partake so much of the character of the executory interests created by deeds under the statute of uses, as well as of remainders, that it seems proper to treat of them next in order, in the arrangement of the topics of this treatise, and these are what are called Executory Devises. It is not proposed to speak at present of wills and testaments, by which alone they may be created, but of the nature, character, and incidents of the interest in lands embraced under the generic term above mentioned. An executory devise is defined by Blackstone to be "such a disposition of lands by will that thereby no estate vests at the death of the devisor, but only on some future contingency." While Mr. Fearne, objecting that this was broad enough to embrace contingent remainders created by wills, which the law distinguishes from executory devises in many respects, [*341] defines an executory devise so far as it embraces *lands, as "such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law."1 2. Before the nature of an executory devise was settled, there was a long struggle in the courts, which is referred to in Jones v. Roe, where it was finally held, that it was a something which might be assigned or released, and would descend and might be devised; that, though not in all cases properly an estate, it was not embraced in the category of naked possibilities, such as that of an heir expectant to the estate of his ancestor, but was an interest in land. The language of Willes, Ch. J. is quoted with approbation, who says: "executory devises are not naked possibilities, but are in the nature 1 2 Bl. Com. 172; Fearne, Cont. Rem. 386, and Butler's note; 1 Jarm. Wills, 798; Lewis, Perpet. 74; Purefoy v. Rogers, 2 Wms. Saund. 388, note; McRee's Adm❜rs v. Means, 34 Ala. 349, in the Alabama Code, remainder includes executory devises. of contingent remainders; " and another judge refers to them as "a possibility accompanied with an interest." 1 But the power of alienation, devise, &c., above spoken of, must be understood to be limited to cases where the party who is to take, is an ascertained person.2 3. Much of the learning of executory devises consists in applying rules which discriminate between them and contingent remainders, while most of the doctrine relating to springing and shifting uses is identical with that of executory devises, with this distinction, that by an executory devise the freehold itself is transferred to the future devisee substantively, without any reference to the statute of uses.3 4. It is stated in the above case of Jones v. Roe, that executory devises took their rise in the time of Elizabeth. But to understand their history fully, it is necessary again to refer to the doctrine of uses, whereby, before the statute of Henry VIII. upon the subject, the owners of lands, though not able to devise them by the common law, could do so by conveying the land to a feoffee to such uses as the feoffor should appoint by his last will. The [*342] will operated upon the use, and was enforced then through the agency of chancery.5 5. Besides this mode, there were localities where people were allowed by custom, to devise their lands, and courts readily lent their aid to carry such devises into effect. The earliest instance, it is supposed, in which it was allowed to a testator to create an executory interest by will, was where he directed his executor to sell his lands, and the courts sustained it as the execution of a power which divested the heir of his estate, and passed it to a purchaser. Littleton spoke of it as a custom to do this, "to distribute for his soul."6 The Statute, 21 Hen. VIII. ch. 4, recognized this as a valid power, giving authority to such executors as accept the trust to execute it, though some of them declined it. 6. The statute of uses, 27 Hen. VIII. ch. 10, put an end to all devises of lands till the enactment of the Statute of Wills, 32 Hen. VIII. ch. 1, a. D. 1542, authorized the holders of socage lands to 1 Jones v. Roe, 3 T. R. 88-98; Wilson, Uses, 157. 2 Wilson, Uses, 159. See post, p. *357. 1 Spence, Eq. Jur. 471; Lewis, Perpet. 72; Wms. Real Prop. 259. Jones v. Roe, 3 T. R. 95. 6 Lit. 169; Wms. Real Prop. 258; Lewis, Perpet. 76. 5 Wms. Real Prop. 257. devise them by a last will and testament. In construing this statute, courts adopted the more liberal rules which chancery had before applied to the former devises, expounding them by the intention of the testators if possible, rather on the particular circumstances of each will, than by any general rules of positive law. And acting in analogy to what had been adopted as the rule of chancery in respect to devises of uses, as well as the rules which courts of law had applied in case of customary devises, the courts sanctioned the validity of devises of future estates of freehold, as well as sales made by executors when authorized by the wills under which they acted, or where lands were devised to executors to be sold, although at common law such executory devises would have been void.2 Regarding them historically, it would seem that they must have been of gradual introduction and growth as a settled and defined portion of the English law for though it was stated by Lord Kenyon, in [*343] *Jones v. Roe, that they took their rise in the time of Elizabeth, it was said by the same judge, in Doe v. Morgan,1 that being found of general utility, they were established in the time of Charles I. And in the argument of Thellusson's case (1798), Mr. Hargrave states that "executory devise was not regularly admitted till about two centuries ago." But Mr. Lewis refers to cases in which the doctrine was recognized at a period anterior to that. Still, the law upon the subject, especially the indestructibility of executory devises, does not seem to have been settled until the case of Pells v. Brown,5 in 1619, though courts had often recognized as valid, devises of estates of freehold to commence in futuro. Nor was the law in relation to them fully settled till the Duke of Norfolk's case in 1695. And finally, Lord Mansfield declared that he remembered the introduction of the rule which prescribes the time in which executory devises must take effect, to be for the period of a life or lives in being, and twenty-one years afterwards.8. 11 Spence, Eq. Jur. 470; 2 Bl. Com. 382. 2 Lewis, Perpet. 78, 79; Wms. Real Prop. 259; 1 Spence, Eq. Jur. 470; Wilson, Uses, 56. 8 Jones v. Roe, 3 T. R. 95. 5 Pells v. Brown, Cro. Jac. 590. Doe v. Morgan, 3 T. R. 765. Fearne, Cont. Rem. 429, note; Lewis, Perpet. 80-82, 131; Thellusson v. Wood ford, 1 Bos. & P. N. R. 357. 7 Wms. Real Prop. 262, and note. 8 Buckworth v. Thirkell, 3 B. & P. 652, n.; Cadell v. Palmer, 10 Bing. 140; s. c. 1 Clark & F. 372. |