pay the debts, so nothing descended in the mean time, or DEVISE. vested". But where one devised all his lands unto A. and his heirs, to the use of B. and his heirs, for payment of his debts, and afterwards in trust for C. and the heirs of her body, remainder to D. and his right heirs, upon condition that he should marry C, the condition was held to be subsequent; for the precedent limitation was an estate-tail in possession, and there was no reason to conclude but that, as to the remainder likewise, it was the testator's intent to have it vest immediately in D. The limitation was immediate, although the condition on which it depended was subsequent. So, if one devise his real estate to A. and his heirs, upon express condition, that within three months after his decease, he shall execute and deliver to B. a general release of all demands which he may claim of his estate, or any part thereof, for what cause soever; this will operate as a condition subsequent, and the estate will vest in A. to be defeated or not, according to what happens afterwards". Estates in hereditaments, created by devise, may be either vested or contingent. An estate vested, is where there is an immediate right of present or future enjoyment, in which view of them, estates are either vested in interest or in possession. Where there is a right of present enjoyment, the estate is said to vest in possession. As, if a devise be to A. for life, remainder to B. in tail; A. dies; B.'s estate immediately vests in possession. But where there is only a present fixed right of future enjoyment, an estate is said to vest in interest. As, if a devise be to A. for life, remainder to B. in tail, here B.'s estate, from the very instant of its limitation, is capable of taking effect "Bertie v. Falkland, 2 Vern. 340. * John Robinson v. Comyns, Rep. temp. Talbot, 165. VOL. V. ▾ See Avelyn v. Ward, 1 z Fearne Cont. Rem. 1. Vested and contingent estates. DEVISE. in possession, and B. has a right to enjoy it if the possession fall by the death of A. But until that event happens, B. has no right to the possession: until then, therefore, it is vested in interest only. And such an estate vested in interest, may be either absolutely vested, or vested in suspense; as, if a remainder be limited in trust for such child or children of T. M. on the body of J. S. lawfully to be begotten, in such manner, &c. as T. M. and J. S. shall by deed, &c. appoint, and for want of such appointment, then, &c. to all and every the children, &c. share and share alike. This remainder vests in interest in suspense, until the father's death, in such children as come in esse, liable to be varied as to the quantum of the proportions as they arise, and subject to be divested by appointment. A contingent estate, as we have before mentioned, is where a right is to accrue upon an event which is dubious and uncertaind. We have seen that, from the nature of the interest in lands, tenements and hereditaments, recognized by the municipal laws of this country, no remainder can be limited to take effect after or rest upon any estate in fee-simple; because a fee-simple exhausting all the interest that a donor has, when the whole is granted there can be no remainder. But although the law will not recognize a remainder to take effect after the expiration of a fee, yet, by way of indulgence to a man's last will and testament, and in favour of the intention of devisors, where otherwise the words of a will would be void, it permits, under certain restrictions, a fee or other estate to be substituted as an alternative, in the place of a fee before limited, provided the substitution be to take effect within a reasonable period of time. Devises of this nature are called executory, b Fearne Cont. Rem. 1. d Fearne Cont. Rem. 2. с 10 Rep. 95; 1 Inst. 18; Dyer, 33. because the estates thereby limited to take place, by way of substitution, have no present existence in consideration of law, but merely a capacity of existence, and of being executed, i. e. taking effect when the contingency upon which they are limited occurs. Thus, a devise of lands to a man's wife for life, remainder to C. his second son, in fee; provided, that if D. his third son, should, within three months after the wife's death, pay 500l. to C. his executors, &c. then the lands to go to D. and his heirs, is good as an executory devise. So it is if A. devise to B. his son and his heirs for ever, and if he die without issue, living A. then C. to have those lands to him and his heirs for ever. In the former case, C. took a vested fee-simple; and the limitation to D. was good as an executory devise, to take effect if D. paid the 500l. within the time limited. And, in the latter case, B. took a vested fee-simple; and the limitation over to C. was an executory devise, to take effect on B.'s dying without issue in the life-time of A. If there be a particular estate with a remainder so limited, the happening of the condition will not destroy the particular estate. As, if A. devise land to B. for life, remainder to C. in fee; provided, that if A.'s wife, being enseint, should be delivered of a son, then the lands shall remain to him in fee; and A. die, and a son be born. In such case, this proviso will not destroy the estate of B. but of C. only1. It is necessary, in considering these cases, to observe the distinction between the words, "and if he die without issue," (used with reference to the first devisee) standing alone, and the words "if he die without issue, living A.” or the like, or, " before A. arrive at twenty-one years of age," &c. so used; for the former words operate only as f Cro. Jac. 592. Marks v. Marks, 10 Mod. 420; S. C. Strange, 129. Pell v. Brown, Cro. Jac. 590; 1 Eq. Ca. Abr. 187; i DEVISE. DEVISE. an explanation of the testator's intent who shall succeed, namely, issue of his body; and whensoever the devisee dies without issue, the land will remain over. But the latter words qualify the preceding estates with a collateral determination, give effect to a conditional limitation to another, if such an event happen, and operate as a complete defeasance of the first fee upon that event, but by no means tend, independent of such event, to abridge or narrow the extent of the estate first limited, or to reduce it from a fee-simple to an estate-tail; because the latter clause, "if he die without issue," is not absolute and indefinite, whensoever he die without issue, but it is with a contingency, "if he die without issue, living A." or "before A. come to twenty-one years of age;" for the first devisee may survive A. or have issue alive at the time of his own death, living A. in the one case, or survive A.'s arriving at the age of twenty-one years, in the other, in which cases the first estate shall not be abridged, but shall only be abridged if the first devisee die without issue, living A. or before A. come to twenty-one years of age *. Thus, where the manor of E. was holden by knight's service, and A. the ancestor, &c. by his will devised the whole manor to his wife, until his son and heir should come to the age of twenty-four years, and that when his son arrived at the age of twenty-four years, his wife should have the third part thereof for her life, and his son should have the residue; and that if his son should die before he came of the age of twenty-four years without heirs of his body, the land should remain to B'. The devisor died; the son came to the age of twenty-four years; and the question was, whether the son had an estate in tail, for then for two parts he was not in by descent. And Dyer and Manwood were of opinion, that here was not any estate in tail; for no tail should * Allen v. Rivington, 1 Sid. 445; Dyer, 354; Pell v. Brown, 2 Cro. 590. 64. Hinde v. Lyon, 3 Leon. rise unless the son had died before his full age, and therefore the tail should never take effect, and the fee-simple did descend and remain in the son, unless that he died before the age of twenty-four years, in which case the estate would then have vested with the remainder over; but the son having attained to that age, he had the fee by descent of the entire manor. So in the case of Collinson v. Wright, where the testator devised land to his son and heir, and if he died before his age of twenty-one years, and without issue of his body then living, then the remainder over; the son survived twenty-one years, and then sold the land, and died". And the question was, If the sale was good? which depended npon whether the son was seised in fee or in tail; and it was held, that he had fee immediately; for the estate-tail was limited to commence upon a subsequent contingency. . Again, there is a distinction between the before mentioned cases, and cases where the first limitation is in tail and not in fee"; as if the limitation be to J. S. and the heirs of his body in fee, and that, if J. S. shall die, living A. then the land shall remain over to J. N. and his heirs, or to J. N. and the heirs of his body; that shall not abridge, qualify or restrain the preceding devise, or make the estate-tail conditional, but inasmuch as there will remain a further estate or interest, by way of remainder, to be disposed of to take effect on the determination of the estate-tail; such words will be construed as a conditional disposition of such remainder, that is, a disposition, by which, if J. S. dies, living A. at the time of his death, J. N. will become entitled to such remainder; but if J. S. leave issue at the time of his death, and that issue happens several years afterwards to fail, then J. N. will have no "Collinson v. Wright, 1 Sid. 148; Clache's case, Dy. 330, 331, 354, a; Chadock and Cowley's case, 2 Cro. 695. n Spalding v. Spalding, DEVISE. |