share of such person will be held transmissible, either by will or descent. 19 13. And where the testator provides that the portion of his daughters shall be held in trust by his executors, or other persons appointed for that purpose, during the life of the daughters, and go to their children or issue, if any such they have at their decease, this is regarded as a qualification or limitation of the estate of such daughters only as leave children or issue, and will not affect the vested or transmissible character of the share of such daughters as die without leaving children or issue.20 14. And in Lassence v. Tierney,21 Lord Cottenham attempts to make the distinction clear by the inquiry, to which we have already alluded,22 whether the testator makes a clear gift to the legatees in the first instance, and then superadds a qualification to the mode of enjoyment, in which case, if the superadded qualification fails, or does not apply to all the legatees, those to whom it does not apply will hold their shares, relieved from the qualification, an absolute estate. But if the qualification as to the time and mode of the legatee receiving or enjoying the estate is part of the gift, and in the nature of a condition precedent, the gift fails unless the condition takes effect.22 19 Smither v. Willock, 9 Vesey, 233; Whittell v. Dudin, 2 J. & W. 279; Mayer v. Townsend, 3 Beav. 443; Tupper v. Tupper, 1 Kay & J. 665; Green v. Harvey, 1 Hare, 428; Gray v. Garman, 2 id. 268; Yearwood v. Yearwood, 9 Beav. 276; In re Bright's Trusts, 21 Beav. 67. Whittell v. Dudin, 2 J. & W. 279; Hulme v. Hulme, 9 Sim. 644. The Vice-Chancellor, Shadwell, here said, "By the first operative words, the testator makes an absolute gift to all his children by his second wife, who should be living when the youngest should attain twenty-one. He then superadds a direction for settling the shares of his daughters. The absolute gift remains except so far as the direction for settling the shares of his daughters has taken it away; and it is not taken away, in the case of a daughter dying without having children." 1 Mac. & G. 551. Ante, § 64. See also Billing v. Billing, 5 Sim. 232; Ring v. Hardwick, 2 Beav. 352; Winckworth v. Winckworth, 8 id. 576; Arnold v. Arnold, 16 Sim. 15. The rule in regard to this distinction is, that where the words of the will are explicit, they must be followed; but if there is doubt in that respect, it may be removed by resorting to other portions of the will.23 Thus, in Campbell Brownrigg,24 where the testator gave a sum of money to his daughter, directing that the interest only should be paid her during life, and in case she should marry and have children, the principal to be divided among such children, it was held, upon the construction of the whole will, the daughter having died without children, her personal representative, and not the residuary legatee of her father, was entitled to the fund. 16. And the same principle applies where the gift is absolute, except with the qualification of creating a power in the donee to appoint the same among his children, or others, and if that power fails to be put in exercise, the gift remains absolute.25 17. The essential quality of an executory devise, which gives it the great advantage in point of certainty over a contingent remainder, consists, as we have already intimated, in that the former is not liable to be defeated by the unexpected determination of the intervening estate, as where a forfeiture of that estate is created by any act of the owner, while contingent remainders are thus wholly defeated, the effect being the same as if the intervening estate had regularly expired before the time of vesting.26 404; Eaton v. Barker, 2 Coll. 124; Gurney v. Goggs, 25 Beav. 334; Corbett's Trusts, Johns. Eng. Ch. 591; Norman v. Kynaston, 7 Jur. N. s. 129. 23 Jackson v. Forbes, Taml. 88. * 1 Phill. 301. See also Gompertz v. Gompertz, 2 Phill. 107; Scawin v. Watson, 10 Beav. 200; Findon v. Findon, 1 DeG. & J. 380; Fullerton v. Martin, 1 Drew. & Sm. 31. 25 Keates v. Burton, 14 Vesey, 434; Mercer v. Hall, 4 Br. C. C. 326; Robinson v. Cleator, 15 Vesey, 526; 1 Jarman, 828. Pells v. Brown, Cro. Jac. 590. The power of the owner of the intervening estate to effect the destruction of a contingent remainder dependent upon it is now controlled by statute in England, and they take effect the same as execeutory devises, notwithstanding the forfeiture, surrender, or merger of the preced 18. It sometimes happens that an estate, which at the date of the will is made to operate as a contingent remainder, by reason of the creation of intervening estates to uphold it; and that the persons to whom these intervening estates were given die before the testator, thus producing a chasm between the death of the testator and the period of the remainder vesting, by which means the estate cannot come into effect as a remainder; in which event it is allowed to operate as an executory devise, there being no technical obstacle to such an estate taking effect in futuro, without the support of any intermediate estate.27 And an estate, which in one event happening after the death of the testator, would take effect as a contingent remainder, may by the happening of a different event, not anticipated perhaps, be construed as an executory devise, the courts feeling justified in adopting the construction which will most nearly effect the intention of the testator.28 19. And it is also settled, that an estate, which from the state of circumstances existing at the death of the testator can only operate as an executory devise may, by a change of circumstances, take effect as a remainder.29 20. An estate may be so framed as to take effect in one event as a contingent remainder, and in another as an executory ing estate, 8 & 9 Vic. c. 106, § 8. And before this statute the practice was common to provide that trustees might enter upon the estate upon the happening of any such forfeiture and thus save the interests of those entitled in remainder. 1 Jarman, 828. 1 Jarman, 829. See also Hopkins v. Hopkins, 1 Atk. 581; s. c. Cas. t. Talb. 44; s. c. 1 Vern. 268; Doe d. Scott v. Roach, 5 M. S. 482. 29 Hopkins v. Hopkins, supra; Doe d. Fonnereau v. Fonnereau, 2 Doug. 487. Doe d. Harris v. Howell, 10 B. & Cr. 191. But it is said, (1 Jarman, 831, ed. 1861, by the editors.) "That a limitation which has once operated as a contingent remainder can never, after the death of the testator, be changed into an executory devise." But unless the operation of the will has been fixed by judicial construction at some prior period, in such a manner as to bind the parties, we see no good reason to interpose any such technical rule in the way of doing justice. 1 Jarman, (ed. 1861,) 524, 525. devise engrafted on an alternative contingent remainder in fee. The case of Doe d. v. Selby,31 is sometimes quoted as an illustration of this rule, but it is not strictly of that character, but well calculated to illustrate the point. The precise point stated above is thus illustrated by Mr. Jarman. A devise to A for life, and if he shall die on the first of January, then, from one year afterwards to B in fee. But if A shall die on any other day, then immediately from the decease of A to B in fee. In the first event the limitation to B takes effect as an executory devise, and in the second, as a contingent remainder, so that his interest would be destructible or not, by the fact of A dying according to the one or other event.32 21. It has been made a question how far an executory devise, to arise out of a contingent remainder, will fail in consequence of the failure or destruction of the estate out of which it was to arise. And it seems to be conceded that it will not, so far as a general rule, and never, unless its essence were derived out of the estate, after which it is provided to take effect, in which case it evidently would fall with the estate, which could alone give it birth.33 22. Where both the executory devise and the contingent remainder in fee, upon failure of which the executory devise was to take effect, become vested in the same person, they do not merge but remain distinct, and the executory devise will pass to the heirs upon the failure of the remainder upon which it depended. Thus, where the testator gave his real and personal 30 1 Jarman, 881. 31 4 Dow. & R. 608; s. c. 2 B. & Cr. 926. 32 1 Jarman, 831. 33 1 Jarman, 833. See also Fearne Cont. Rem. 418, 423. And where an estate has been defeated, as a contingent remainder, by the failure of the intermediate estate, it may be allowed to operate by way of executory devise, in order to effectuate the intention of the testator. Thompson v. Hoop, 6 Ohio, N. s. 480. Thus where the testator devised his plantation to his wife, for life, remainder to his son, and the wife renounced the will, the estate over was allowed to take effect as an executory devise. Id., ante, § 64, pl. 66. estate to his wife, in trust for the maintenance and education of his daughter till she arrived at the age of twenty-one, and in case of her death before that time, to the wife in fee, it was held that the mother took an executory devise in fee, which, in the event of her dying before the daughter, would descend to the daughter, who was already seized of a defeasible estate in fee, contingent upon her dying before the age of twenty-one; but that the two estates will not merge, so that in the event of the daughter dying before she came of age, the executory devise in fee will pass to her heirs.34 23. An immediate estate in fee, defeasible upon the taking effect of an executory devise over, has, nevertheless, during its continuance, all the incidents of an absolute estate in fee-simple, such as dower, curtesy, &c., the devisee holding the estate in fee subject only to a possibility.35 But there are some exceptions to this rule, as to estates by curtesy, as where the executory devise over is in favor of the children of the wife, and consequently such children are not capable of inheriting the estate, which is indispensable to an estate by curtesy, the children taking the estate by purchase through the operation of the executory devise, and not by descent.36 The rule is the same in regard to dower, and with the same exceptions, it being equally requisite, in regard to this species of estate, as of the former, that the children of the marriage should be capable of inheriting the property. 87 24. There can be no remainder created in real and personal chattels. Every estate, therefore, in personal property, which is provided to take effect in futuro, whether preceded by a prior Goodtitle d. Vincent v. White, 15 East, 174; Same v. Same, 5 B. & P. 383; Goodwright v. Searle, 2 Wils. 20; Doe d. Andrews v. Hutton, 3 B. & P. 643. 35 1 Jarman, 833; Buckworth v. Thirkell, 3 B. & P. 652, in n. *Sumner v. Partridge, 2 Atk. 47; Barker v. Barker, 2 Sim. 249. Moody v. King, 2 Bing. 447; Goodenough v. Goodenough, 3 Pres. Abst. 372; Smith v. Spencer, 2 Jur. N. s. 778; 1 Jarman, 833. |