assigns for ever, 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. Though if an estate is given to one generally, with a power of disposal, it carries a fee, if it be to one for life in terms, it will not enlarge it to a fee, that there is a power of disposal of the reversion annexed to the estate given.2 Thus if one devise certain lands to her use, and to be at her disposal, it is a fee, although there be a devise over; but if it were for her use and maintenance, with a power of disposal, if she should require it, or deem it expedient to do so, with a devise over, it would give her a life-estate only, with a conditional power of disposal. And where it was given to a wife to dispose of in any way she saw fit during life, with remainder to J. S., it was held to be a good remainder, and that she could not defeat it by any act of hers. Nor does a power appended to an express estate for life enlarge it into a fee.5 But where it was given to A for life, or to dispose of as she should see fit, it was held to be a devise of a fee.6

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."

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 execu

1 McRee's Adm'rs v. Means, 34 Ala. 349, 372; ante, vol. 1, p. *54.

2 Jackson v. Robins, 16 Johns. 588; Flintham's Appeal, 11 S. & R. 19; Morris v. Phaler, 1 Watts, 390; Hess v. Hess, 5 Watts, 191; Smith v. Starr, 3 Whart. 62; Girard L. Ins. Co. v. Chambers, 46 Penn. St. 490.

Terry v. Wiggin, 47 N. Y. 512; Burleigh v. Clough, 52 N. H. 267, and a remainder over in such case would be good as a vested estate.

4 Edwards v. Gibbs, 39 Miss. 174; Rail v. Dotson, 14 Sm. & M. 176.

5 Andrews v. Brumfield, 32 Miss. 115.

6 Second Reformed Church v. Disbrow, 52 Penn. St. 219.

7 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; Andrews v. Roye, 12 Rich. 536.

tory devise depends, the husband would nevertheless be en titled to curtesy in the same.1

SECTION V.

EXECUTORY DEVISES OF CHATTEL INTERESTS.

1. Of devises of freehold interests in chattels.

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

8. 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.2

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 [*375] estate, any limitation over of the balance of such term, however long it might be, by the way of remainder, would be void. On the other hand, an estate of freehold could never be derived from an estate for years; and

*

16 Cruise, Dig. 374; ante, vol. 1, p. *131.

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

3 Burt. Real Prop. §§ 897, 946; Cooper v. Cooper, 1 Brev. 355; Duke of Nor folk's case, 3 Cas. in Ch. 33; Lewis, Perpet. 84; Fearne, Cont. Rem. 4, n. 401; 1 Jarm. Wills, 793, and Perkins' note.

when an estate for years came to one who had freehold in the same lands, the term, however long, was merged in the freehold, and became annihilated.1

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.2

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.3

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.*

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 way of executory devise; and this was done as early as the tenth of [*376] 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.5 *

*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 ir

1 1 Cruise, Dig. 229; Burt. Real Prop. § 897; ante, p. *290.

2 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.

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

* 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.

5 Fearne, Cont. Rem. 402, and Butler's note; Tissen v. Tissen, 1 P. Wins.

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 tes[*377] tator gave personal goods and chattels to be 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."

*

10. So, though the first taker under a devise be authorized to use and consume the property devised, and, to that extent,

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.

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; Smith v. Bell, 6 Peters, 68.

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, post, vol. 3, p. *622.

2 Attorney-General v. Hall, Fitzg. 314; Bull v. Kingston, 1 Meriv. 314.

8 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; Smith v. Bell, 6 Peters, 68.

42 Freem. Ch. 137.

5 Moffat v. Strong, 10 Johns. 12; Keene's Appeal, 64 Penn. 273.

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

11. If the gift to the first taker be absolute in its terms, any devise over will be void for repugnancy. And the same rule will be applied where the use only of the property is given, when, from the nature of the property, its use is its consumption. In this case it is construed to be an absolute gift. But, in all these cases, the test is the intention of the testator expressed in his will. It is by a reference to that that the character of the gift is determined.*

12. Most of the rules which apply to the first and second classes of executory devises apply also to the third. There is, however, a much stronger disposition to construe a failure of issue on which a limitation is made to depend, a definite failure having reference to the time of the death of the ancestor of such issue, in the case of devises of chattels and chattel interests, than of freeholds. And one reason for this has already been explained. As there can be no [*378] estate-tail of such chattel interests, and, consequently, no limitation over upon the failure of a line, whereby the intent of the testator can be carried out by construing the executory limitation as a remainder, if the limitation cannot be held to be on a definite failure of issue, it leaves the subject of the devise the absolute property of the first taker.5

13. Cases under the third class are within the rule against

1 Upwell v. Halsey, 1 P. Wms. 652; Surman v. Surman, 5 Madd. 123. See Rubey v. Barnett, 12 Mo. 1; Smith v. Bell, 6 Peters, 68.

2 Merrill v. Emery, 10 Pick. 507, 512.

8 Gillespie v. Miller, 5 Johns. Ch. 21; Randall v. Russell, 3 Meriv. 194; 1 Jarm. Wills, 793, n.

4 Smith ». Bell, 6 Pet. 69, where the subject is fully treated.

5 Burt. Real Prop. § 956; Watk. Conv. 200, and Coventry's note; Hall v. Priest, 6 Gray, 22; Kirkpatrick v. Kirkpatrick, 13 Ves. 484; Brouncker v. Bagot, 1 Meriv. 271; Fearne, Cont. Rem. 463, and Butler's note; Lewis, Perpet, 321; 6 Cruise, Dig. 396; Powell v. Brandon, 24 Miss. 343.