may be considered as reduced substantially to the same class; and they both come under the general denomination of expectant estates. Every species of future limitation is brought within the same definition and control. Uses being also abolished by the same code,a all expectant estates, in the shape of springing, shifting or secondary uses, created by conveyances to uses, are, in effect, become contingent remainders, and subject precisely to the same rules. What I shall say, hereafter, on the subject of executory devises, will have reference to the English law, as it existed in New-York prior to the late revision, and as it still exists in other states of the Union.b

New-York Revised Statutes, vol. i. 727. sec. 45.

We may not be able to calculate with certainty upon the future operation of the changes which have been recently made in the doctrine of expectant estates by the New-York revised code of statute law. But the first impression is, that these innovations will be found to be judicious and beneficial. It appears to be wise to abolish the technical distinction between contingent remainders, springing or secondary uses, and executory devises, for they serve greatly to perplex and obscure the subject. It contributes to the simplicity, uniformity and certainty of the law, to bring those various executory interests nearer together, and resolve them into a few plain principles. It is convenient and just, that all expectant estates should be rendered equally secure from destruction by means not within the intention of the settlement, and that they should all be controlled by the same salutary rules of limitation. Some of the alterations are not material, and it is doubtful whether confining future estates to two lives in being, was called for by any necessity or policy, since the candles were all lighted at the same time, let the lives be as numerous as caprice should dictate. It was a power not exposed to much abuse; and, in the case of children, it might be very desirable and proper that the father should have it in his power to grant life estates in his paternal inheritance to all his children in succession. The propriety of limiting the number of lives was much discussed recently, before the English Real Property Commissioners. The objection to a large number of lives is, that it increases the chance of keeping the estate locked up from circulation to the most extended limit of human life; and very respectable opinions are in favour of a restriction to the extent of two or three lives only, besides the lives of the parties in interest, or to whom life estates may be given.

In the case of Coster v. Lorillard, decided in the Court of Errors of New-York, in December, 1835, on appeal from Chancery, (5 Paige, 172. S. C. 14 Wendell's Rep. 265,) the limitation in the statute to the suspension of the power of alienation

trust during a minority is determined by the death of the minor before he attains his age, and therefore a trust during two minorities is valid. See, further, Morgan v. Masterton, 4 Sandf. S. C. R. 442.

Where a power in trust to lease suspends the but a power in trust to sell in such a case is valid.

alienation beyond the legal period, it is void; Haxtun v. Corse, 2 Barb. Ch. 506.

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*(2.) Of dying without issue, as to real estate. If an executory devise be limited to take effect after a dying without heirs, or without issue, or on failure of issue, or without leaving issue, the limitation is held to be void,

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beyond two lives in being was strictly sustained. The devise was to trustees in fee, in trust to receive the rents and profits, and pay over and divide the same equally between twelve nephews and nieces, and the survivors and survivor of them, during their lives respectively; and, after the deaths of all the testator's nephews and nieces, remainder in fee to the children of the twelve nephews and nieces living, and to the children of such as may then be dead per stirpes. The will would have been good under the English law, and under the law of New-York as it stood before the Revised Statutes of 1830, for that allowed real property to be rendered inalienable during the existence of a life, or any number of lives in being, and twenty-one years and nine mouths afterwards, or until the son of a tenant for life should attain his full age. But the New-York Revised Statutes, vol. i. 723. sec. 15, prohibited the suspension of the absolute power of alienation, by any limitation or condition whatever, for any longer period than two lives in being at the creation of the estate, and the prohibition applied to all estates, whether present or future. Here was an attempt to contravene the letter and the policy of the statute, for a sale by the trustees would have been in contravention of the trust, and therefore void. The New-York Revised Statutes, vol. i. 730. sec. 65. Nor could the nephews and nieces convey, for the whole estate in law and equity was in the trustees, subject only to the execution of the trust. New-York Revised Statutes, vol. i. 729. sec. 60. The nephews and nieces had no other right than a beneficial right in action to enforce in equity performance of the trust. The remainder-men, that is, the grand-nephews and nieces then in existence, could not convey, for who were to take in remainder was contingent, and could not be ascertained until the death of the survivor of the nephews and nieces. They had no present estate, and only a possibility. If they survived the twelve nephews and nieces, they took, and not otherwise. The estate given in remainder, therefore, suspended the power of alienation during the continuance of the twelve nephews and nieces, and by the force of the statute the remainder was held to be void, and the trust also void, as being in contravention of the statute and the estate (and which was stated in the case as amounting to three millions of dollars, and the rents and profits to upwards of eighty thousand dollars annually) descended to the heirs at law. It was therefore decided, that a devise in trust of an entire estate, to receive the rents or income thereof, and to distribute it among several cestui que trusts, could not be considered as a separate devise of the share of each cestui que trust, so as to protect the share of each as a tenant in common during his own life; and that as the trust was to endure for a longer period than two lives in being at the death of the testator, the whole devise in trust was void. This was the amount of the decree in the court of errors, and the discussions in the case, and the contrariety of views taken by the different members of the court, afford a striking illustration of the indiscretion and danger of disturbing and uprooting, as extensively as the revisers in their revised statutes have done, the old established doctrine of uses, trusts and powers, and which were, as Ch. J. Savage observed in that case, "subjects which baffled their powers of modification."

because the contingency is too remote, as it is not to take place until after an indefinite failure of issue. (1) Nothing is more common, in cases upon devises, than the failure of the contingent devise, from the want of a particular estate to support it as a remainder; or by reason of its being too remote, after a general failure of issue, to be admitted as good by way of executory devise. If the testator meant that the limitation over was to take effect on failure of issue living at the time of his death of the person named as the first taker, then the contingency determines at his death, and no rule of law is broken, and the executory devise is sustained. The difficult and vexed question which has so often been discussed by the courts is, whether the testator, by the words dying without issue, or by words of similar import, and with or without additional expressions, meant a dying without issue living at the time of the death of the first taker, or whether he meant a general or indefinite failure of issue. Almost every case on wills, *with remainders over, that has *274 occurred within the last two centuries, alludes, by the use of such expressions, to the failure of issue, either definitely or indefinitely.

A definite failure of issue is, when a precise time is fixed. by the will for the failure of issue, as in the case of a devise to A., but if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition the very converse of the other, and means a failure of issue, whenever it shall happen, sooner or later, without any fixed, certain or definite period, within which it must happen. It means the period when the issue, or descendants of the first taker, shall become extinct, and when there is no longer any issue of the issue of the grantee, without reference to any particular time, or any particular event; and an executory devise, upon such an indefinite failure of issue, is void, because it might tie up property for generations. (2) A devise in fee, with remainder over upon an indefinite failure of issue, is an estate-tail; and in order to support the remainder over as an

(1) But see Eby v. Eby, 5 Barr's R. 461, where it was held that the first devisee took an estate in fee.

(2) In Hall v. Chaffee, 14 N. Hamp. R. 215, the rules as to failure of issue are stated with uncommon perspicuity, and the opinions of the judges, though brief, are full, clear and instructive.

executory devise, and to get rid of the limitation as an estatetail, the courts have frequently laid hold of slender circumstances in the will, to elude or escape the authority of adjudged cases. The idea that testators mean by a limitation over upon the event of the first taker dying without issue, the failure of issue living at his death, is a very prevalent one, but it is probable that, in most instances, testators have no precise meaning on the subject, other than that the estate is to go over if the first taker has no posterity to enjoy it. If the question was to be put to a testator, whether he meant by his will, that if his son, the first taker, should die leaving issue, and that issue should become extinct in a month, or a year afterwards, the remainder over should not take effect, he would probably, in most cases, answer in the negative. In the case of a remainder over upon the event of the first devisee dying without lawful issue, Lord Thurlow, following the whole current of cases, held the limitation over too remote, and observed, that he rather thought the testator

meant the remainder persons to take whenever there *275 should be a failure of issue of the first taker.b Lord Macclesfield declared, that even the technical rule was created for the purpose of supporting the testator's intention. If, says he, lands be devised to A., and if he dies without issue, then to B., this gives an estate-tail to the issue of the devisee. And this construetion, he observes, "is contrary to the natural import of the expression, and made purely to comply with the intention of the testator, which seems

Where there was a devise to A. for life, with remainder to her child or children, if she should leave any, and if she should die and leave no lawful issue, then with remainder over; A. survived the testator and had one child, and she survived her child and was left a widow. It was held, that the devise to her children or issue was a contingent remainder in fee, and which, on the birth of a child, became a vested remainder in fee, subject to open and let in after-born children. Macomb v. Miller, 9 Paige Rep. 265. S. C. 226 Wendell, 29. If it had been an estate-tail in A. turned by our law into a fee-simple, the remainder over was not good by way of executory devise, because it was upon an indefinite failure of issue. King v. Burchell, 1 Eden Rep. 424. Doe v. Perryn, 3 Term, 484. Den v. Bagshaw, 6 Term, 512. Doe v. Elvy, 4 East, 313, and 1 Fearne, 141, 3d edit., referred to in that case. Dansey v. Griffith, 4 Maule & Selw. 61. Right v. Creber, 5 Barnw. & Cress. 866. Franklin v. Lay, 6 Madd. Ch. Rep. 161. Hannan v. Osborn, 4 Paige, 336.

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to be, that the land devised should go to the issue, and their issue, to all generations." So, in Tenny v. Agar,a the devise was to the son and daughter in fee; but if they should happen to die without having any child or issue lawfully begotten, then remainder over. Lord Ellenborough said, that nothing could be clearer than that the remainder-man was not intended by the testator to take any thing until the issue of the son and daughter were all extinct, and the remainder over was, consequently, void. The same construction of the testator's real intention was given to a will, in Bells v. Gillespie, where there was a devise to the sons, and if either should die without lawful issue, his part was to be divided among the survivors. Mr. Justice Carr declared, that the testator meant that the land given to each son should be enjoyed by the family of that son, so long as any branch of it remained. He did not mean to say, "you have the land of C. if he has no child living at his death, but if he leave a child you shall not have it, though the child dies the next hour." A father, as he justly observed, is not prompted by such motives.

The opinion of these distinguished judges would seem to prove, that if the rule of law depended upon the real fact of intention, that intention would still be open for discussion, and depend very much upon other circumstances *276 and expressions in the will, in addition to the usual words.

The series of cases in the English law have been uniform, from the time of the Year Books down to the present day, in the recognition of the rule of law, that a devise in fee, with a remainder over if the devisee dies without issues or heirs of the body, is a fee cut down to an estate-tail; and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue. The

12 East's Rep. 253.

5 Randolph's Rep. 273. Caskey v. Brewer, 17 Serg. & Rawle, 441. S. P. • The number of cases in which that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratification of the curiosity of the student. Assize, 35 Edw. III. pl. 14. Sonday's Case, 9 Co. 127. King v. Rumbail, Cro. Jac. 448. Chadock v. Cowly, ibid. 695. Holmes ▼. Meynel, T. Raym. 452. Forth v. Chapman, 1 P. Wms. 663. Brice v. Smith,