In Wellington v. Wellington (h), the testator devised in these terms: "Item, in default of issue of my own body, I give, devise, and bequeath," &c.; he then gave all his estates in several counties unto John Arrowsmith and James Simmons, and their heirs, in trust, to pay out of the rents, issues, and profits, unto his sister, Elizabeth Wellington, an annuity of 100l. per annum, during such time and until his just debts, funeral expenses, and legacies (other than annuities), should be fully paid and satisfied; and also an annuity of 407. per annum to a servant, Sarah Vollier: then he gave another annuity and several legacies: then immediately from and after such time as all his just debts, funeral expenses, and the legacies given by his will (other than annuities), should be fully paid and satisfied by the said trustees, from and out of the rents and profits of his said estates, and subject to the two annuities before given to the said Sarah Vollier and Jane Wellington, he and devised all his estates to his sister Elizabeth Wellington for life; afterwards to the said trustees, to preserve contingent remainders; and after her decease, to the use of James Wellington, the second son of his said sister Elizabeth, for life; then to the use of the trustees during his life; and after his death, then to the use of his first and other sons in strict settlement, with remainders over.

gave

The said testator, at the time of making his

(h) 4 Burr. 2165; 1 Sir W. Black. 645.

will, and at the time of his death, was seised in fee of the premises devised by him to the said John Arrowsmith and James Simmons, in default of issue of his own body, and died a bachelor, leaving the said Elizabeth Wellington and Jane Collins, wife of Thomas Collins, his sisters and co-heirs. The said trustees accepted the trusts.

On a case from the Court of Chancery, for the opinion of the B. R. the question was, whether the said John Arrowsmith and James Simmons, the trustees in the said will, took any, and what estate, under the said will. And after hearing arguments on both sides, the Court certified, that John Arrowsmith and James Simmons took a fee, determinable when the purpose of paying the testator's debts, legacies, and funeral expenses, out of the rents, issues, and profits of the devised premises, in aid of the personal estate, should be performed.

Lethulier v. Tracy, will be stated in the next page. In cases of this description, it would have been far more consistent with principle to have decided, that the trustees had the fee-simple at law, subject to trusts in equity, for the persons who were beneficially interested; or (as was done by the Court of King's Bench, in Goodtitle v. Whitby) (i), that the trustees had chattel interests till debts paid, with vested remainders after and expectant on these interests.

According to Mr. Fearne, "a contingent de(i) 1 Burr. 228.

;

terminable fee, devised in trust for some special purposes only, will not prevent a subsequent limitation to one in esse from being vested as where A devised lands to his daughter for life (j); remainder to trustees [for her life,] to support contingent remainders; remainder to her first and other sons successively in tail: and if his daughter should depart this life without issue of her body living at her death, then he devised the lands to trustees and their heirs, until his cousin N should attain his age of twenty-one years, upon certain trusts, &c. Item, he gave and devised the lands to his cousin N after he should have attained his age of twenty-one years, for the term of his life; remainder to trustees [for his life], to support contingent remainders; remainder to the first and other sons of N successively in tail, &c.; and in default of such issue, or in case N should die before twenty-one, and without issue, remainder over. Lord Hardwicke held, that the contingency of the daughter's dying without issue living at her death, affected only the estate limited to trustees, until N should attain twentyone; and this limitation to trustees was not an absolute fee, as was contended, but a determinable fee that the estate limited to N was only contingent until he should attain twentyone, and this contingency extended to none of the subsequent estates, and therefore the remainders over to persons in esse, were vested. (j) Lethulier v. Tracy, 3 Atk. 728.

In order to bring a case within the influence of this authority, four circumstances must

concur:

The fee must

1st, Be contingent ;

2d, Determinable; and, it is apprehended, determinable in a small compass of

time;

3d, Devised by will;

4th, The devise must be for some particular

purpose, to be answered in a small compass of time; and the fee which is devised, must be limited to cease, when for which it is limited, shall

the purpose

be answered.

It is also understood, that in the case of Tracy v. Lethulier, (the authority for this point,) the devise to N took effect under the learning of executory devises, as a devise to commence at a future period, independent of any estate of freehold previously limited, and not as a remainder, although the estate limited to the trustees was to take effect as a remainder.

Indeed, the judgment in the case of Lethulier v. Tracy, is expressed in language which leaves the effect of that judgment in great obscurity.

It is clear, that the daughter took an estate for life, with remainder to her first son in tail, remainder to her second and other sons in tail general, remainder to her daughters as tenants in tail.

The next limitation was in favour of the trustees and their heirs, on the contingency that the daughter should die without issue living at her death; and the construction of this contingency was, that she should die without such issue, and during the minority of Sir Henry Nelthorpe, who was to take beneficially under the subsequent limitations.

From the language in which this gift to the trustees was introduced, and from the nature of the limitation to them, their estate was contingent, and was a contingent remainder in fee, because it was limited to them and their heirs. A consequence flowing from the circumstance of their taking a fee, was, that all the limitations over, as far as they were to confer legal estates, were necessarily contingent, till it was ascertained that this remainder in fee could not vest, or till the fee was determined by Sir Henry Nelthorpe's attaining his age of twenty-one years.

On the determination of this fee, or after it was ascertained that it could never vest in interest, the limitations over were capable of effect. They were to take place as executory devises, as far as concerned the fee devised to the trustees; and as remainders, as far as related to the previous limitations in favour of the daughter and her children.

These observations must be confined to the legal estate; for though it had happened that the fee of the trustees had become absolute by the death of Sir Henry Nelthorpe under twenty