devise to be future and executory in favor of whoever may be the heirs of J. S. at his death, or of A. B.'s son, whenever born, if from any circumstances, however slight, the will admits of that construction.1 So where a devisor gave an estate by his will to his wife for life, remainder to his two children, and both wife and children were slaves. In his will he directed his executors to purchase the freedom of his children. His wife died during his life. It was held, 1st, that upon his death, the remainder dependent upon his wife's death, took effect, but for the incapacity in the devisees to take by reason of being slaves; 2d, that when the executor had complied with the directions in the will by redeeming them to freedom, the children took as executory devisees under the will. And where the devise was to a wife for life, with a remainder from and after her death, contingent in its terms, and she declined to accept the devise, it was held, that the devise over took effect as an executory devise. So where the devise was to a wife for life, with remainder over, and she waived the devise and took her dower, the devise over took effect at once, as if no prior estate had been limited, though it hardly need be observed, that it was not to illustrate an executory devise, but the effect given by law where a prior devise fails, to a subsequent one, that the cases mentioned below are cited here.1

11. If one in possession of lands, in which another has an interest, as an executory devisee, undertakes to commit malicious or unreasonable waste, equity will interpose in favor of such devisee to prevent its commission.5

12. There is one class of cases where, though there be a devise in form, that is, a limitation over after a preceding estate, it may be inoperative and void, by reason of the first estate being constructively an absolute fee. The question in such cases grows out of the character of the first estate, that is, whether it is determinable or not. The test usually applied in such cases is whether or not the first taker has the right and power of absolute disposal of the estate. If he has, it is construed to be an unqualified gift to him, and the de

1 6 Cruise, Dig. 422; Goodright v. Cornish, 1 Salk. 226; Doe v. Carleton, 1 Wils. 225; Fearne, Cont. Rem. 537; Harris v. Barnes, 4 Burr. 2157.

2 Darcus v. Crump, 6 B. Mon. 365.

3 Thompson v. Hoop, 6 Ohio, St. 480.

♦ Yeaton v. Roberts, 8 Foster (N. H.), 465, 468; Holderby v. Walker, 3 Jones, Eq.

46; 1 Jarm. Wills, 513.

5 Robinson v. Litton, 3 Atk. 209.

vise over will be void. Thus, a devise of certain lands to one's son A and his heirs and assigns forever, with this clause, "It is my will that if my son A shall die and leave no lawful heirs, what estate he shall leave, to be equally divided between J. and N., to them and their heirs forever." In terms, this is an executory devise to J. and N., expectant upon A's dying without lawful heirs. But as the latter clause limits this to only what A "shall leave," it implies that he may, if he please, use or dispose of the whole, and there[*374] *fore what he leaves, if any thing, is his own, and not something in which the testator had a reversionary interest.1 But a devise to A. B., to his heirs and assigns forever, to his use, behoof, and benefit in fee-simple, but should he die without issue, it is my wish and will he should give it to J. S., was held a good executory devise to J. S.2

13. But if in a case like that above supposed, the power of disposal in the first taker is merely a technical power of appointment, and not a right to dispose of the estate as his own property, a limitation over as an executory devise, may be good, though, if such power were executed, it might leave nothing to pass by the devise

over.3

14. It may be added, that if a feme covert is seised of a feesimple, and there is an executory devise over, and the estate is defeated by the happening of the event on which the executory devise depends, the husband would nevertheless be entitled to curtesy in the same.4.

1 Ide v. Ide, 5 Mass. 500; Attorney-General v. Hall, Fitzg. 314; Burbank v. Whitney, 24 Pick. 146; Ramsdell v. Ramsdell, 21 Me. 288; Pickering v. Langdon, 22 Me. 413; Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 15 Johns. 169, s. c. 16 Johns. 568; 1 Jarm. Wills, Perk. ed. 792, n.; Hall v. Robinson, 3 Jones, Eq. 348; McRee's Adm'rs v. Means, 34 Ala. 349, 372; Ross v. Ross, Jac. & Walk. 154; Bourn v. Gibbs, 1 Russ. & M. 615; Newland v. Newland, 1 Jones, L. 463.

2 McRee's Adm'rs v. Means, sup.

8 Tomlinson v. Dighton, 1 P. Wms. 171; Lerned v. Bridge, 17 Pick. 339; Rubey v. Barnett, 12 Mo. 1; Reid v. Shergold, 10 Ves. 370.

6 Cruise, Dig. 374; ante, Vol. I. p. *131.

SECTION V.

1.

EXECUTORY DEVISES OF CHATTEL INTERESTS.

Of devises of freehold interests in chattels..

2. Limitation of a chattel as a freehold, void at common law.

3. Devise of a term during life, carried the entire term.

4. There can be no estate tail of a chattel.

5. Devise to one and the heirs of his body is an entire property.

6.

Devise of a term for life with remainder, when good.

7. Devise of the use, the same as of the thing itself.

8. The nature of the use often defines the estate intended.

9. Devise of personalty may be for life, with remainder.

10. Devise of personalty for subsistence of devisee.

11. If devise is absolute, a devise over is void.

12. Same rules apply to the third, as to the first and second classes.
13. Rule as to perpetuities, the same.

14. Executory devise good, though to a person unknown.

1. The third class of executory devises is of such as relate to personal estate and to chattel interests in lands, and as arise from giving to these the qualities of freeholds and estates of inheritance in lands.1

2. In the theory of the law, and by the definition of estates, a freehold was deemed of a higher and more comprehensive nature than a term for years, and, consequently, if there is a limitation of a term for years to one for life, or for such indefinite period of time as would constitute a freehold estate, any limitation [*375], over of the balance of such term, however long it might be, by the way of remainder, would be void.2 On the other hand, an estate of freehold could never be derived from an estate for years, and when an estate for years came to one who had a freehold in the same lands, the term, however long, was merged in the freehold, and became annihilated.3

1 Watk. Conv. 42, Morley's note; Fearne, Cont. Rem. 401; Burt. Real Prop.. 946.

* Burt. Real Prop.. §§ 897, 946; Cooper v. Cooper, 1 Brev. 355; Duke of Norfolk's case, 3 Cas. in Ch. 33; Lewis, Perpet. 84; Fearne, Cont. Rem. 4, n. 401; 1 Jarm. Wills, 793, and Perkins' note.

31 Cruise, Dig. 229; Burt. Real Prop. § 897; ante, p. *290.

3. The consequence of these doctrines was, that, by the common law, a devise of a term to one during his life, was a disposition of the entire term. Nothing was supposed to be left that could pass, and therefore there could be no limitation over of a term for years in remainder after an estate for life or any freehold estate in the term.1

4. Another peculiarity in respect to chattel interests in lands, as well as personal estates generally, is, that there can be no estate tail predicated of them. The statute de donis applies only to tenements, that is, something of which tenure, in the feudal sense, can be predicated, and not to chattel interests or chattels themselves.2

5. And the consequence of this is, that if one devises to another a chattel interest to him and the heirs of his body, it is a devise of an absolute estate, or gift of the entire property.3

6. The legal inferences to be drawn from these several principles and propositions are, that upon a devise of a term for life, a devise over of a remainder of such term, or with a remainder over after a devise to one in tail, would be void. But, in order to carry out the intention of testator, such limitations were allowed, by the [*376] way of executory devise; and this was "done as early as

the tenth of Elizabeth. And now every future bequest of personal property, whether it be or be not preceded by a prior bequest, or be limited on a certain or uncertain event, is an executory bequest, and falls under the rules by which that mode of limitation is regulated.*

*NOTE. The analogy between this class of executory devises and that where a fee is limited after another fee, is obvious, when it is considered that in both cases it is the limitation of an estate to one, when in terms the whole estate had, according to the rules of the common law, been already given to another.

1 Tissen v. Tissen, 1 P. Wms. 500; Burt. Real Prop. § 946; 1 Jarm. Wills, Perk. ed. 893, n.; Manning's case, 8 Rep. 95; 4 Kent, Com. 269.

"Fearne, Cont. Rem. 461, 463; Burt. Real Prop. § 948; Lovies' case, 10 Rep. 87; Lewis, Perpet. 318; Seal v. Seal, Prec. in Chanc. 421.

8 Burt. Real Prop. § 948; Fearne, Cont. Rem. 463, and Butler's note 2 Rop. Leg. 2d ed. 393; Leventhorpe v. Ashbie, 1 Rolle, Abr. 831; Tud. Lead. Cas. 701; Doe v. Lyde, 1 T. R. 593; Powell v. Glenn, 21 Ala. 458.

4 Fearne, Cont. Rem. 402, and Butler's note; Tissen v. Tissen, 1 P. Wms. 500; Manning's case, 8 Rep. 95; 2 Prest. Abst. 4; 2 Bl. Com. 174; Duke of Norfolk's case, 3 Cas. in Chanc. 33.

7. And the distinction that once prevailed between the devise of the use of a chattel interest, and the devise of such interest itself, is now practically exploded, although executory devises are sustained upon a theoretical idea, akin to such a distinction.1

8. But the nature of the use intended by the devise to be made of the property devised, may have the effect to define the estate or property which the devisor gives by such devise. As in the cases above cited, where the devise over of property was held void, because the first taker, by the terms of the gift, was to have the absolute and entire disposal of it.2

9. According to what is now a well-settled doctrine, a devise of a personal thing, like money, may be made to one for life, with a remainder over which will be good as an executory devise. Thus, a limitation upon a devise to a daughter of £500, so that if she died under thirty years of age unmarried, the same should be divided between three others, was held a good limitation to the three.* So where a testator gave personal goods *and chattels to be [*377] divided among his six children, and, if any of his sons died without lawful issue, his or their parts to be divided among the survivors, unless he or they so dying should leave a wife behind, in which case she was to have a certain part, and only the remainder was to be divided, it was held that the limitations over were good as executory devises.5

10. So, though the first taker under a devise be authorized to use and consume the property devised, and, to that extent, may be said to have the disposal of it, yet, if it be given for the purpose of the subsistence, for instance, of the devisee, as where provision is thereby made for the donor's wife, the right to make use of the property for that purpose, is in the nature of a power, rather than an ownership, and a devise over of what the first devisee shall leave, will be good as an executory devise."

1 Lewis, Perpet. 85, 87; Gillespie v. Miller, 5 Johns. Ch. 21; Merrill v. Emery, 10 Pick. 507, 511; 1 Jarm. Wills, 994, n.; 4 Kent, Com. 269; Lampet's case, 10 Rep. 46; Upwell v. Halsey, 1 P. Wms. 651; Fearne, Cont. Rem. 407.

2 Attorney-General v. Hall, Fitzg. 314.

* Upwell v. Halsey, 1 P. Wms. 651; Merrill v. Emery, 10 Pick. 507, 511; Gillespie v. Miller, 5 Johns. Ch. 21; 1 Jarm. Wills, Perk. ed. 665, n.; Maulding v. Scott, 13 Ark. 88.

42 Freem. Ch. 137.

5 Moffat v. Strong, 10 Johns. 12.

6 Upwell v. Halsey, 1 P. Wms. 652; Surman v. Surman, 5 Madd. 123. See Ruqey v. Barnett, 12 Mo. 1.