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male; and yet if Henry had married a second wife, and had issue a son by her, (the limitation in the settlement of 1711 being only [231] to the issue male of his then marriage,) that son, according to the construction put upon this will by the Court of King's Bench in Ireland, would have been deprived of the settled estate, though there was not a tittle in the will which favoured so harsh a construction. The first purpose for which the lands, either particularly named, or comprised under the general words, were given, was for the making an additional provision of £100 per ann. for the testator's wife, which was another clear proof of his having in view only the lands in possession; since the reversion could yield no profit during the life of Henry, and in case of his having a son who should attain 21, was every moment liable to be barred by such son as tenant in tail, and so could never make part of a fund destined for the wife's better support.

Admitting, however, that the reversion in fee did pass by the will, yet the plaintiff's lessors had no title to recover upon this verdict; since, for any thing which appeared to the contrary, the lands in question might already have been sold for payment of the testator's debts; but if they had not been sold, the lessors title thereto must be by way of executory devise, or by way of use; for they could not take by remainder, the devise being to Olivia Mervyn in fee, and a remainder cannot be limited upon a fee. Now they could not take by executory devise, it being after payment of debts indefinitely, and therefore void, as exceeding the compass of time allowed by law for the vesting of an executory devise; but allowing it to be good, it was only so as to Audley Mervyn the first devisee, and void as to every person after him; for as to them it could only take place after a general failure of issue, which has been adjudged to be too remote a contingency for an executory devise to take place upon; and even admitting the devises to the sous and daughters of Audley Mervyn the testator, to be all good executory devises, yet the lessors had no title to recover in this action; the jury not having found that the debts were paid, and that the lands in question remained unsold after they were paid; for no estate vested before the debts were paid, their payment being a condition precedent to its vesting. Neither could the lessors take by way of use, for the use was executed in Olivia the devisee in fee, and a use cannot be limited upon a use; but supposing the use did not execute in Olivia, yet it was void for uncertainty, being limited of such part of the lands as should remain unsold after payment of the debts; and at the testator's death, when the will took effect, it was quite uncertain what lands, or whether any, would remain unsold after the debts were satisfied: but if the use was not void for uncertainty, yet it was not executed; for the verdict not finding the debts to be paid, and that the lands in question remained unsold after such payment, the use limited to the lessors of the plaintiff still continued future and contingent, and consequently was not in esse; and the use not being in esse, was not executed by the statute 27 Hen. VIII, but remained future and contingent at common law; so that in whatever light the question was con-[232]-sidered the lessors of the plaintiff had no legal estate or title to recover in this ejectment; and therefore it was hoped, that the defendant would be permitted to hold the premises purchased of Henry Mervyn by his father, for a full and valuable consideration.

After hearing counsel on this writ of error, it was proposed and agreed, that the following question should be put to the Judges; viz. "Whether, according to the true construction of the will of Mr Audley Mervyn the father, the reversion in fee of his settled estate passed by the devise in his said will?" And the Lord Chief Baron of the Court of Exchequer having delivered their unanimous opinion, "that the reversion in fee of the said testator's settled estate did not pass by the devise in his said will;" it was ordered and adjudged, that the judgment of the Court of King's Bench in England, reversing the judgment of the Court of King's Bench in Ireland, should be affirmed; and that the record should be remitted, to the end such proceeding might be had thereupon, as if no such writ of error had been brought into the House and it was further ordered, that the plaintiff in error should pay to the defendant in error £10 for his costs in the house. (Jour. vol. 29. p. 671.)