esse after the death of the son; an exclusion which was contrary to the intention, but grounded on the fact, that they were not in esse at the determination of the prior estate, and for that reason, were incapable of taking under the remainder.

Hence the determination in Mogg and Mogg, is, that all the children who were to take under and by way of remainder, and who were not in esse at the determination of the prior estate, were excluded, and the remainder was retained by those children alone who were capable before the prior particular estate determined; while all the children were capable under the gift by executory devise, at whatever time they

should be born.

Thus the same will, and similar expressions in that will, received different determinations, on account of different rules of law applicable to the different gifts.

On the third branch of the rule, it has been determined, that a feoffment to one man and his heirs, to hold on every Monday; to another man and his heirs, to hold on every Tuesday, &c. is void (r),

And more generally that a grant of lands (s) or any incorporeal hereditament already created, for an estate of freehold, where the estate is to be suspended for some part of the time, (as during the infancy of the heir after the death

(r) 1 Rep. 87. As to Uses, Mo. 632. by Walmsley.
(s) 1 Rep. 87; Shep. Touch. 127; 1 Cruise's Dig. 9.

of his ancestor) is, as to the limitation or condition to cease the estate, repugnant to the policy of the law, and therefore void.

This branch of the rule does not extend to a grant of a rent, or common, or other incorporeal hereditament (t), on the creation thereof, de novo, that is, in the first instance. A clause for suspension of the estate, would, if inserted in such original grant, be good, and have the desired effect.

The principal authority for this conclusion, is the case in 22 Edw. III. 19 a b.; and the principle and doctrine of that case have been established by more modern determinations.

The case at large, as reported in the Year Books, will best show the ground of the decision.

In dower by Sibil, who was the wife of John Everwicke, of 261. of rent against the prior of Bridlington, Mombrie pleaded, that, in the time of Edward, the grandfather, one John and his wife acknowledged the tenements, out of which the rent is issuing, to the predecessor of the prior, and to his successors, &c. for which acknowledgment the predecessor, by the same fine, granted the rent to the said John the conusor and A his wife, and to the heirs of the wife, upon this condition, that as often as the heirs of the feme should be within age, the

(t) Brook, Judgm. pl. 41; Shep. Touch. 127; 24 Edw. III. 29 a b; 1 Ch. Cas. 214.

age;

prior and his successors should be quit of the rent until the heirs should attain their full and that when they should be of full age, then the prior and his successors should pay : and he showed the means by which the rent descended to the husband of the demandant; and that one F, his son and heir, was then under age, and demanded judgment, if at that time, during the nonage of the heir, the demandant was dowable and he produced a record in the time of Edward, the grandfather, by which it was awarded, that a feme in such case should have judgment to recover; but that there should be a cesser of execution during the nonage of the

heir.

And in Trinity term, 24 Edw. III. 29 b. it was awarded, that the feme should recover her dower, and that there should be a cesser of execution until the full age of the heir of the husband; and it was said by the whole Court, that when the heir was of full age, and the feme endowed, and the heir died, and his heir was within age, the rent of the feme for the time, (meaning the minority of the heir for the time being) should cease.

The necessary conclusion is, that the estate, in point of beneficial interest, was suspended during the minority of the heir, and yet the estate had continuance to some purposes.

The case is very different from those in which an estate already subsisting, is granted with a

limitation, which makes the right to the freehold depend on an event, or on the lapse of time, or attempts to leave it suspended; for under limitations in these terms, there is not any tenant of the freehold, because there is not any estate of freehold in existence.

From this consideration of the difference of the several cases, it will be proper to distintinguish them. For this purpose, it is to be observed, that in one case, the suspension seems to apply to the right of possession; and in the other case, to the estate; and then the several cases are not within a parity of reason.

To establish this distinction, would supersede many of the grounds of argument offered in a future page, as the reason for allowing grants de novo of rents, &c. to be good.

The arguments advanced and reasons assigned, are those by which the courts of justice seem to have been influenced; and though the authority from which they are deduced, does not appear to warrant them, it would, at this day, be presumptuous to pass them over in silence.

From the several branches of the rule, it clearly appears, that the law will not, by any means, nor in any case, allow the estate of the immediate freehold to be in abeyance: by abeyance is to be understood expectancy, or the waiting for any event, however near, or the lapse of any time, however short; and though it be for a day only, (u) to vest in estate (2) 2 Wils. 166; Plowd. 25.

the interest which is given in a subject already existing.

This may appear to be a rule (x) of great strictness indeed, the object to which it is directed, might have been attained by adopting the construction made on devises by will; but, consistently with the notion the law entertains of the effects of its mode of assurance, and in particular of livery; and for the sake of notoriety of every change of tenant, so important to lords and to the public, when the system of feudal tenures was in full operation; it was required by good policy, and the general convenience of society, that the rule should be adopted; and an adherence to it was of the utmost importance to the rights of lords, in respect of the feudal services, and to the public, in respect of the remedies by real action.

The distinction between estates in land or rents or other incorporeal hereditaments already created, and estates in rents or other incorporeal hereditaments on their creation de novo, illustrates the doctrine, and shows its application; and with the observations to be offered on the reason of the difference, demonstrates, beyond all contradiction, that the rule is not so much of positive institution, without any foundation in reason, or reference to principle, as the necessary consequence of that leading maxim of the law, that a particular mischief is rather to be endured, than a general inconvenience introduced.

(x) Butler on 1 Inst. 216 a; 1 Inst. 217 a.