For other observations on this point, reference must be made to Loddington and Kime, and other cases cited in the progress of this Essay. And the same gift may be a remainder in one event, and an executory devise in another event (b), or, in reference to another estate; as in the instance of a gift by will or by limitation of use to A for life, and after his death, to the first, being an unborn, son of A, in fee; and in case there should not be any such son, or if such son should be born, and die under twentyone, then to B; the gift to B is an alternate remainder, in reference to the life estate of A, and is liable to destruction while it remains in contingency. The moment the remainder vests in the son of A, the gift to B becomes, in reference to this son, an executory devise or springing use, and will be incapable of destruction by A, or by his son. A point common to all limitations of remainders, either by deed or will, and either by the rules of the common law, or under limitations of use, is, that no person, or class of persons, can take under a remainder, unless such person, or class of persons, come in esse; or, being in esse, shall be capable of taking vested interests, before the determination of the prior particular estates by which the remainder is supported (c). (b) Doe v. Burnsall, 6 T. R. 30. Under this rule, contrasted with the rules which prevail with reference to executory devises, a will or a deed of uses may present the singular result, that under different gifts in the same will, by the same terms, by reason of the different rules, and the relative situation of the remainders, nine, or any other number of children, may take under one gift; six, or any other number of children, under another gift; and four, or any other number of children, under another gift. This result occurred in the case of Mogg v. Mogg (d). The qualities of estates, as they are of freehold, and not of freehold, essentially mark the time of continuance, and will be discussed at large in a separate chapter of this Treatise. A general estate receives that name from comprising all the time which may subsist in any subject of property, and from conferring a right of succession on the heirs in every degree and in every line (e); and to distinguish it from A qualified estate, which confines the time to heirs of a particular description; and also from A particular estate, which gives only a portion of the time of a general estate. An estate in fee simple is a general estate; an estate to a man and his heirs, on the part of his father, is a qualified estate; and all other estates, except determinable fees, as they are (d) 1 Mer. 654. (e) Noy, Ten. 69. for a portion of time, in reference to time generally and indefinitely, are particular estates. Every particular estate is necessarily a determinable one; at least in the nature of things it will determine when it has completed the measure of its time; and particular estates may cease by effluxion of time, or an end may be put to them by merger, surrender, &c. Estates have generally been divided into estates 1. Vested, 2. Contingent. And from the writings of the most esteemed authors it may be collected, that they were of opinion, that the terms vested and contingent embraced all the variety of estates, &c. so that every estate, more accurately every interest, was either vested or contingent (ee). The terms vested and contingent are no doubt applicable to the circumstances under which estates are, on the one hand, to confer a right of present or future enjoyment, and, on the other hand, a future right of future enjoyment. But it is submitted, that these terms are not sufficiently extensive to distinguish all the classes of estates. On a minute examination of the subject it will be found, that interests necessarily require the further division into interests 1. Executed, 2. Executory. (ce) Fearne, 1. The difference between interests executed and executory, vested and contingent, are: An estate executed is when there is a present and immediate right of present or future enjoy ment. In this sense the term applies to vested estates, as distinguished from interests in contingency. In another sense, it applies to the time of enjoyment; and in that sense, an estate is said to be executed, when it confers a present right of present enjoyment. Every estate which is executed, necessarily gives a vested interest. Whether the estate be executed in possession, or merely in interest, and not in possession, will depend on the cir-` cumstances of its conferring a right of present or future enjoyment. When the right of enjoyment in possession is to arise at a future period, the estate is executed only; that is, merely vested, in point of interest: and when the right of immediate enjoyment is annexed to the estate, then only is the 'estate executed in possession. An executory interest, according to the legal application of the term, may be vested or contingent, or it may be of neither description, but of a peculiar nature, as an executory interest by devise, or by springing or shifting use, to commence at a time or on an event which certainly will happen, or a term to commence from a future time, generally called an interesse termini. Thus, all contingent interests are executory; and a vested estate may be executory, as far as relates to the possession, at the same time that it is clearly vested in point of interest. Again, an interest by executory devise, shifting use, &c. while it continues executory, and does not depend for effect on a contingent event, is neither vested nor contingent. The interest which it passes is not present, so that it may be granted, and therefore the estate is not vested. It does not give a right to arise on a contingency, and for that reason it is not contingent. Also, an interesse termini, not depending on a contingency, is of a particular description, so as not to be either vested or contingent. These interests arise by contract for the possession, and not by regular and ordinary limitation of freehold interests; and as the reason by which, interests of a freehold quality were regulated by the common law of this country, does not apply to interests of a chattel quality, as terms of years; these future or executory interests are assignable. An interest which is executory may give a fixed or contingent interest. In reference to the possession, an interest of this sort does, from its peculiar nature, confer a right of future enjoyment. The difference, to bring it to a point, is, that all executory interests are not contingent, and all contingent interests are executory. For this rea |