LECTURE LX. OF EXECUTORY DEVISES. AN executory devise is a limitation by will of a future contingent interest in lands, contrary to the rules of limitation of contingent estates in conveyances at law. If the limitation by will does not depart from those rules prescribed for the government of contingent remainders, it is, in that case, a contingent remainder, and not an executory devise." Lord Kenyon observed, in Doe v. Morgan, that the rule laid down by Lord Hale had uniformly prevailed without exception, that "where a contingency was limited to depend on an estate of freehold, which was capable of supporting a remainder, it should never be construed to be an executory devise, but a contingent remainder." b I. Of the history of executory devises. The reason of the institution of executory devises was to support the will of the testator; for when it was evident that he intended a contingent remainder, and when it could not operate as such by the rules of law, the limitation was then, out of indulgence to wills, held to be good as an executory devise. They are not mere possibilities, but certain and substantial interests and estates, and are put under such restraints only as have been deemed requisite to prevent the mischiefs of perpetuities, or the existence of estates that were unalienable.c The history of executory devises presents an interesting view of the stable policy of the English common law, which ■ Carwadine v. Carwadine, 1 Eden's Rep. 27. b 3 Term Rep. 763. • Lord Ch. J. Willes, in Goodtitle v. Wood, Willes' Rep. 211. abhorred perpetuities, and the determined spirit of the courts of justice to uphold that policy, and keep property free from the fetters of entailments, under whatever modification or form they might assume. Perpetuities, as applied to real estates, were conducive to the power and grandeur of ancient families, and gratifying to the pride of the aristocracy; but they were extremely disrelished, by the nation at large, as being inconsistent with the free and unfettered enjoyment of property. "The reluctant spirit of English liberty," said Lord Northington, a "would not submit to the statute of entails; and Westminster Hall, siding with liberty, found means to evade it." Common recoveries were introduced to bar estates tail; and then, on the other hand, provisoes and conditions not to alien with a cesser of the estate on any such attempt by the tenant, were introduced to recall perpetuities. The courts of law would not allow any such restraints by condition, upon the power of alienation, to be valid. Such perpetuities, said Lord Bacon, would bring in use the former inconveniences attached to entail; and he suggested that it was better for the sovereign and the subject, that men should be "in hazard of having their houses undone by unthrifty posterity, than be tied to the stake by such perpetuities." Executory limitations were next resorted to, that men might attain the same object. Mr. Hargraved has gleaned *265 *from the oldest authorities a few imperfect samples of an executory devise; but this species of limitation may be considered as having arisen since the statutes of uses and of wills. It was slowly and cautiously admitted, prior to the leading case of Pells v. Brown. Springing uses of the inheritance furnished a precedent for similar limitations in • Duke of Marlborough v. Earl Godolphin, 1 Eden's Rep. 417. b Vide supra, p. 131. • Use of the law in Bacon's Law Tracts, 145. See his elaborate argument as counsel in the great case of Thelluson v. Woodford, 4 Ves. 249-264. Lord Ch. J. Bridgman, in the case of Bate v. Amherst, T. Raym. 82, bad, however, long preceded him in the research; for he insists, in that case, that executory devises were grounded upon the common law, and he refers to 49 Edw. III. 16. a., and Hen. VI. 18. a., as evidence of it. Both of those cases are cited by Lord Coke, and the latter in 7 Co., 9. a., to prove that an infant en ventre sa mere, was, in many cases, "of consideration in the law." • 1 Cro. Jac. 590. the form of executory devises; and it was decided in Pells v. Brown, that a fee might be limited upon a fee by way of executory devise, and that such a limitation could not be barred by a common recovery. That case was silent as to executory bequests of chattels; and Mr. Justice Dodridge was opposed to the doctrine of the decision, and showed that he was haunted with the apprehension of reviving perpetuities under the shelter of an executory devise. The case, however, established the legality of an executory devise of the fee upon a contingency not exceeding one life, and that it could not be barred by a recovery. The same point was conceded by the court in Snowe v. Cutler ;a and the limits of an executory devise were gradually enlarged, and extended to several lives wearing out at the same time. Thus, in Goring v. Bickerstaffe, a limitation of a term from one to several persons in remainder in succession, was held to be good, and not tending to a perpetuity, if they were all alive together; for, as Ch. B. Hale observed in that case, all the candles were lighted together, and the whole period could not amount to more than the life of the last survivor. c The great case of the Duke of Norfolk, on the doctrine of perpetuities, was finally decided in 1685, and *266 the three senior judges at law were associated with Lord Chancellor Nottingham. The question arose upon the trust of a term for years upon a settlement by deed, and it was, whether a limitation over upon the contingency of A. dying without issue, was valid. The subject of executory devises was involved in the elaborate and powerful discussion in that case. The judges were exceedingly jealous of perpetuities, and would not allow limitations over upon an estate tail to be good; but the chancellor was of a different opinion, and he supported the settlement, and his opinion was affirmed in the house of lords. While he admitted that a perpetuity was against the reason and policy of the law, he insisted that future interests, springing and executory trusts, and remainders, that were to arise upon contingencies, if not too remote, ■ 1 Lev. 135. Pollex. Rep. 31. 1 Cases in Chancery, 4. 2 Freeman, 163. Lord Bridgman's MS. report of the case, cited by Mr. Hargrave, in 4 Ves. Rep. 258. 3 Ch. Cas. Poller. Rep. 223. 2 Ch. Rep. 229. were not within the reason of the objection, and were necessary to provide for the exigencies of families. The principle of that case was, that terms for years were, equally with inheritances, subject to executory devise, and to trusts of the same nature; and it led to the practice of a strict settlement of that species of property, by executory devise, to the extent of lives in being, and twenty-one years afterwards. The doctrine of executory devises grew and enlarged, pari passu, in its application to terms for years, and to estates of inheritance. In Scatterwood v. Edge, the judges considered lives in being as the ultimatum of contingency in point of time; and they showed that they inherited the spirit of the old law against such limitations. Every executory devise was declared to be a perpetuity as far as it went, and rendered the estate unalienable during the period allowed for the contingency to happen, a though all mankind should join in the conveyance.b *267 The question which arose about the same time in Lloyd v. Carew, was, whether a limitation could be extended for one year beyond co-existing lives. The decision in chancery was, that it could not; but the decree was reversed upon appeal, and the limitation with that advance, allowed, though not without great efforts to prevent it, on the ground that perpetuities had latterly increased to the entanglement and ruin of families. Afterwards, in Luddington v. Kime, Powell, J., was of opinion, that a limitation, by way of executory devise, might be extended beyond a life in esse, so as to include a posthumous son. But Ch. J. Treby was of a different opinion, and he held, that the time allowed for executory devises to take effect, ought not to be longer than the life of one person then in being, according to Snowe and Cutler's Case. At last, in Stephens v. Stephens, in 1736,e the doc 1 Salk. Rep. 229. 12 Mod. Rep. 278. This last observation of Mr. Justice Powell is supposed to be rather too strong; for the owner of the contingent fee, together with the executory devisee, may bar it by a common recovery, and it may be barred by fine by way of estoppel. But in those states where there are no fines or recoveries, the executory devise is a perpetuity as far as it goes. Fearne on Executory Devises, by Powell, 56. • Prec. in Ch. 72. Shower's P. C. 137. S. C. 419. S. P. Thelluson v. Woodford, 4 Vesey, 227. d 1 Lord Raym. 203. • 2 Barnard, K. B. 375. Cases temp. Talb. 228. Marks v. Marks, 10 Mod. Rep. 11 Ibid. 112. trine was finally settled and defined by precise limits. The addition of twenty-one years to a life or lives in being, was held to be admissible; and that decision received the sanction of the court of chancery, and of the judges of the king's bench. A devise of lands in fee, to such unborn son of a feme covert as should first attain the age of twenty-one, was held to be good; for the utmost length of time that could happen before the estate would vest, was the life of the mother, and the subsequent infancy of the son. Since that time, an executory devise of the inheritance to the extent of a life, or lives in being, and twenty-one years, and the fraction of another year, to reach the case of a posthumous child, has been uniformly allowed; and the same rule equally applies to chattel inter And thus, notwithstanding the constant dread of perpetuities, and the jealousy of executory devises, as being an irregular and limited species of entail, a sense of the *convenience of such limitations in family settlements, *268 has enabled them, after a struggle of nearly two centuries, to come triumphantly out of the contest. They have also become firmly established (though with some disabilities, in New-York, as we have already seenb) as part of the system of our American testamentary jurisprudence.c II. Of the several kinds, and general qualities of executory devises. There are two kinds of executory devises relative to real es Atkinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. 174. Long v. Blackall, 7 Term Rep. 100. Cadell v. Palmer, 1 Clark & Finnelly, 373. 10 Bingham, 140. S. C. In this last case, it was decided in the House of Lords, in accordance with the opinion of the twelve judges, that a limitation by way of executory devise is valid, though it is not to take effect until after the determination of a life or lives in being, and a term of twenty-one years afterwards as a term in gross without reference to the infancy of any person who is to take under such limitation. Supra, p. 17. • Though the Code Napoleon has abolished all perpetuities and substitutions, (as see supra, p. 21,) yet the convenience and policy of giving some reasonable effect to the will of the testator, even on the subject of fidei commissa, has prevailed. There are fidei commissa, and substitutions, which are held not to be prohibited; and it is declared to be the spirit of the existing jurisprudence of France, not to annul a testamentary disposition made under the code, except it necessarily presents a substitution, and cannot receive any other construction. Toullier, tome |