Page:The English Reports v1 1900.pdf/1379

out such remainder being created at the same time with that particular estate; now here, the testator, without limiting any precedent particular estate to any person certain, put off or prolonged the vesting of this reversion, to a remote or distant day; for his words were,

In case my said two sons now living, or any other son or sons of mine lawfully begotten, hereafter to be born, shall die without issue male, etc. and in such case if it shall so happen, I give and devise the remainder of all, etc. to my brother Thomas Morgan, for his life, etc.

Now these words vest no present estate at all in any person certain; they say, indeed, that in case all the testator's sons, born or to be born, shall die without issue male, the brother Thomas and his sons shall have the lands; but who shall have them in the meantime If the testator has omitted to ascertain who shall be the immediate taker, here will be a remainder created without a particular estate, which if the old [350] rules of law are to be adhered to, will be an incurable defect, and it will not be possible to support this limitation by way of remainder.

The other way of giving legal effect to the disposition made by this clause of this reversion in fee, is to consider it as an executory devise, where no precedent particular estate is required to support it. It is sufficient, though it be a future devise, if the future estate thereby given, is made to take effect within the compass of a life or lives in being, and the space of 21 years afterwards; for this period of time, the law will permit landed property to be unalienable; but if the devise be not made to take effect till a general failure of issue of any person or persons, there the law will not permit such landed property to be withheld for so long, because a failure of issue may not happen till after the 10th, 12th, or 20th generation, or even till later.

It might be said, that there is a way of making good this devise of the reversion in fee, by way of remainder; if we suppose that there are precedent particular estates of inheritance necessarily implied in the devise, which may operate as particular estates for supporting it by way of remainder: i.e. that all future sons of the testator by any after-taken wife, should necessarily take estates tail after those limited by the marriage settlement, precedent to the taking effect of the remainder, to the brother Thomas and his sons.

But it was insisted, that the admitting such an implication was contrary to the most established rules and maxims. If there is a devise to A. B. indefinitely, or to A. B. for life expressly, and then follow in the same instrument words which say, that if the said A. B. dies without issue of his body, the lands shall go over to J. S. there A. B. the first devisee, shall take an estate tail by necessary implication, because in both cases he has a precedent estate for life, and then the subsequent words enlarge that estate to an estate tail; but if there are no other words in a devise, save only, that if A. B. a stranger, dies without issue of his body, J. S. shall have the lands, there A. B. shall take nothing at all by the devise; for the will carries no expression from whence necessarily to infer, that A. B. shall take any estate or interest in the land whatever; and then this is a devise after a general failure of issue of a stranger, which cannot be made good either by way of remainder, or executory devise, and so it is void. Admit, for argument sake, that where A. is under a former settlement tenant in tail, with remainder to B. in tail, with the remainder to C. in tail, with the ultimate reversion in fee to the said A. there if A. devises, that in case neither be himself, nor B. nor C. shall have any issue male, the land shall go over to J. S. and his heirs, this will be a devise of the reversion upon the failure of issue male of the testator, and of B. and and C. Be it so; this will not warrant the going further, and asserting, that if in this case A. the testator should devise, that if he himself, and the said B. and C. and likewise D. and E, two strangers, [351] should all die without issue male, then the lands should go over to J. S. and his heirs, that would give estates tail by implication to D. and E. the words "if D. and E. die without issue," only denote the event upon which J. S. is to have the lands; and if you go farther, and say, that they tacitly imply that D. and E. are first to have estates tail in the lands, it is contrary to all the rules; which expressly say, that under the bare words, if such a one and such a one, being strangers, shall die without issue, any one else shall have the lands, no estate at all shall arise by implication to the person whose issue is so supposed to fail; there must be some precedent estate capable of being enlarged, otherwise these words will give nothing at all to such strangers.—In the present case, the words were as general as any words under any supposition could possibly be,

In case my said two sons now living, or any other