estate in some other one or not, must be created by way of executory devise.38 It is in this way that a bequest of a term for years, after an estate for life, is made to take effect. And it is now clear that personal property may be subjected to the same modifications of ownership as real estate, by way of executory devise.40

25. As already stated, courts of equity will lend their aid, during the continuance of an intermediate estate in chattels, in favor of the party entitled in remainder, by requiring the party holding the present interest to furnish an inventory. And after the termination of the prior estates, equity will decree a specific surrender of the particular chattels, where they are of

38 1 Jarman, 834.

Horton v. Horton, Cro. Jac. 74; Woodcock v. Woodcock, Cro. Eliz. 795. It was formerly contended that a bequest of any chattel estate for life carried the whole estate, but it was finally held that the estate in remainder might take effect as an executory devise. Manning's Case, 8 Co. Rep. 94 b; Doswell v. Earle, 12 Vesey, 473; Theobalds v. Duffoy, 9 Mod. 102; Mallet v. Sackford, 8 Vin. Ab. 89, pl. 5; Lampet's Case, 10 Co. Rep. 46; Bendall v. Summerset, 5 Burr. 2608.

40 Martin v. Long, 2 Vern. 151; Johnson v. Castle, 8 Vin. Ab. 104, pl. 2; Hoare v. Parker, 2 T. R. 376. This rule is clearly established in most of the American states. 2 Kent, Comm. 352, 353; Moffat v. Strong, 10 Johns. 12; Westcott v. Cady, 5 Johns. Ch. 334; Griggs v. Dodge, 2 Day, 28; Taber v. Packwood, id. 52; Scott v. Price, 2 S. & R. 59; Deihl v. King, 6 id. 29; Rogers v. Ross, 4 Johns. Ch. 388; Kelso v. Dickey, 7 W. & S. 279; Marston v. Carter, 12 N. H. R. 159; Robards v. Jones, 4 Ired. 53; French v. Hatch, 8 Fost. 331; Ladd v. Harvey, 1 Fost. 514. A bequest of money for life and then over, gives only the interest to the first taker. Field v. Hitchcock, 17 Pick. 182; Betty v. Moore, 1 Dana, 235; Rathbone v. Dyckman, 3 Paige, 9; Jones v. Sothoron, 10 Gill & J. 187; Dashiell v. Dashiell, 2 Har. & Gill. 127; Homer v. Shelton, 2 Met. 194.

A remainder in lands devised to sons of the tenant for life will vest at the decease of the testator in the class as then existing. Dingley v. Dingley, 5 Mass. R. 535. But in case of the birth of other children thereafter, it will have the effect to open the vesting and admit the after-born children. But this latter rule will not apply to the devise of chattels. Id. Per Parsons, Ch. J. 1 Br. C. C. 274; 1 Jarman, 835; ante, §§ 49, 32, et seq.

such a nature that the loss cannot be compensated in damages, as family plate, pictures, &c.42

26. In Foley v. Burnell,41 Lord Thurlow discusses the question of the rights of a tenant for life of personal chattels, such as plate, which is bequeathed with a house, as an heir-loom, to be used by the successive occupants of the house, and which being removed to town was levied upon by the creditors of one of the successive tenants for life, whose estate was then in being; and his lordship also here considers the question of the rights of creditors. It is said that the old rule of requiring security from the tenant for life is abolished, and so are all the latter cases. It is here laid down as clear law that where the bequest is in trust for the use of another the creditors of the cestui que use can acquire no interest.43 And if they may take the use of a tenant for life where no trustee is interposed, it is only for the term of the debtor, and in the mean time such creditor becomes a trustee for him entitled in remainder. Lord Thurlow here said, upon the proposition that the creditor ought not to be allowed to sell: "I had gone the length of persuading myself that this was the justice of the case, upon the authority of Trafford v. Trafford.45

12

Pusey v. Pusey, 1 Vern. 273; 3 P. Wms. 389; Fells v. Read, 3 Vesey, 70; Lloyd v. Loaring, 6 Vesey, 773; Lowther v. Lowther, 13 Vesey, 95; Earl of Macclesfield v. Davis, 3 V. & B. 16.

43 Earl of Shaftesbury v. Russell, 1 B. & Cr. 666; Cadogan v. Kennett, 2 Cowp. 432.

# 1 Jarman, 835. After the expiration of the debtor's term the creditor is liable in trover for the chattels, unless he surrender them in good condition.

3 Atk. 347. Some of the American states have required the tenant for life of chattels to give security for the preservation of the estate where there is danger that the property will be either wasted, secreted, or removed. Langworthy v. Chadwick, 13 Conn. R. 42, 46; Hudson v. Wadsworth, 8 Conn. R. 348. The same rule was followed in Homer v. Shelton, 2 Met. 194, 205, 206; Mortimer v. Moffatt, 4 Hen. & Munf. 503; Gardner v. Harden, 2 McCords Ch. 32; Smith v. Daniel, id. 143; Merril v. Johnson, 1 Yerg. 71; Henderson v. Vaulx, 10 Yerg. 30; Evans v. Iglehart, 6 Gill & J. 171; Covenhoven v. Shuler, 2 Paige, 122, 123; Sutton v. Craddock, 1 Ired. Eq. 134; French v. Hatch, 8 Fost.

27. As personal estate is allowed to be held by successive owners it is liable to all the objections against perpetuities.46

28. If personal chattels are of a perishable character it was long doubted what would be the effect of limiting successive estates in them. But in Randall v. Russell, Sir William Grant, M. R., said: "There cannot be a limitation over after a life interest in such articles." But it is here held that if such property be included in a residuary bequest it must be converted into money and invested for the benefit of the estate in remainder, and only the interest enjoyed by the tenant for life.47

29. The subject of executory devises has been considerably discussed in many of the American states, and the rules of the English law have been universally followed, or intended to be, so far as we know; and where that has not been the case either from statutory provisions or local usage, or from con

331. And in a late case in Pennsylvania, (Bedford's Appeal, 40 Penn. St. 18, 23.) it is treated as the settled practice of the courts of that state for the Orphans' Court to direct the tenant for life of personalty to give such security to the executor, upon receiving the property, "as in the judgment of that court shall sufficiently secure the interests of those entitled in remainder. The statute of this state prohibits the payment to the primary legatee without security. But this statute does not extend to a case where the bequest is of a sum of money, "both principal and interest, (if she needs it,) during her lifetime, after which it is to be disposed of in like manner as the residue of my estate." Green's Appeal, 42 Penn. St. 25.

46 1 Jarman, 835.

Ante, § 49, pl. 28, 29; Randall v. Russell, 3 Mer. 190, 194, 195. See also Andrew v. Andrew, 1 Coll. 686; Bryant v. Easterson, 5 Jur. N. s. 166. The rule has been sometimes questioned. Porter v. Tournay, 3 Vesey, 314. And it has been held not applicable to farming tools. Groves v. Wright, 2 Kay & J. 347; nor to wearing apparel; Hall's Will, 1 Jur. N. s. 974. The same rule prevails in some of the American states. Evans v. Iglehart, 6 Gill & J. 171; Henderson v. Vaulx, 10 Yerg. 30; Merrill v. Emery, 10 Pick. 507; German v. German, 27 Penn. St. 116. If not specifically given but generally, as goods and chattels, the tenant for life is bound to convert them into money and save the principal for the one entitled in remainder. Patterson v. Devlin, 1 McM. (Eq.) 459.

struction of the particular devise, such cases will not be regarded as of authority beyond the particular jurisdiction. The distinction between estates in remainder and by way of executory devise is very clearly pointed out by Shaw, Ch. J., in Nightingale v. Burrell,48 and in full coincidence with what we have before stated. The question is again discussed by the court, Bigelow, J., in Hall v. Priest,49 with similar results.

30. The question of remoteness in an executory devise is learnedly and lucidly discussed by the judge last named, in the case of The Church in Brattle Square v. Grant,50 and the conclusion arrived at, that where the limitation by way of executory devise is such that it may possibly not take effect within the term of a life or lives in being at the death of the testator, and twenty-one years (adding in case of a child then in ventre sa mere the usual fraction of a year) afterwards, is void, as too remote, and tending to create a perpetuity; and that in such case, the limitation over being void for remoteness, the estate vests absolutely in the first taker.

31. It is clear that an executory devise, to take effect after the indefinite failure of issue, is void for remoteness, and hence courts are astute, sometimes, to devise some construction which shall restrain the failure of issue to the term of limitation allowed.51 But an executory devise over, upon the decease

* 15 Pick. 104, 110. The important practical distinction between these two species of estate, that a contingent remainder is barred by a common recovery, or in Massachusetts and some other states by a conveyance by deed, and that an executory devise is not so barred, is here clearly presented.

96 Gray, 18, 20, 21.

503 Gray, 142. See also the opinion of Wilde, J., in Holm v. Low, 4 Met. 190; Ferson v. Dodge, 23 Pick. 287; Ide v. Ide, 5 Mass. R. 500, 502; Annable v. Patch, 3 Pick. 360.

51 Randolph v. Wendel, 4 Sneed, 646; Bramlet v. Bates, 1 Sneed, 554; Tongue v. Nutwell, 13 Md. R. 415; Black v. McAulay, Jones, Law, 375; Jordan v. Roach, 32 Miss. R. 481. The question of remoteness is here discussed somewhat upon general principles. See also Gray v. Bridgeforth, 33 Miss. R. 312; Chism v. Williams, 29 Mo. R. 288; Jones v. Miller, 13 Ind. R.

of the tenant for life, without issue living at the time of his death, is good.52 And it is not allowable to make an executory devise dependent upon an indefinite failure of issue in an estate-tail.53

32. The general rule that executory devises may be made to take effect in futuro, without an intermediate estate to uphold them, is recognized in most of the American states, the fee in the mean time remaining in the heir of the devisor.54 If there is anything in the devise to show that it was not intended to take effect in presenti, and it comes within the legal limits as to remoteness, it may take effect as an executory devise.55

337; Jackson v. Billinger, 16 Johns. 368; Miller v. Macomb, 26 Wend. 229, affirming s. c. 9 Paige, 265. The reason of the rule stated in the text, viz. that as an indefinite failure of issue may not occur within the allowed limitation of an executory devise it is therefore void, is discussed in several New York cases. 2 Abbott's Dig. Tit. Devise, pl. 164, 166; Van Vechten v. Pearson, 5 Paige, 512; Van Vechten v. Van Vechten, 8 Paige, 104; Lorillard v. Coster, 5 id. 172; Hawley v. James, id. 318; s. c. 16 Wend. 61; Hone v. Van Schaick, 20 Wend. 564; Fisk v. Keene, 35 Me. R. 349.

And in a late case in Pennsylvania, (Bedford's Appeal, 40 Penn. St. 18,) the question of bequests over upon the indefinite failure of issue is discussed, and it is said that "slight circumstances are laid hold of, as sufficient to indicate an intention that a limitation over on death without issue, shall take effect at a definite time, to wit, on the death of the first taker. This distinction is as firmly maintained in this state as in England, and it is a distinction, the object of which is to effect the testator's purpose. Deihl v. King, 6 S. & R. 29; Eichelbergher v. Barnetz, 17 id. 293. It has often been held that a limitation over by will to survivors or persons in being after the death of the first taker without issue, raises a strong presumption that the testator did not contemplate an indefinite failure of issue. Johnson v. Currin, 10 Penn. St. 498. 52 Bradhurst v. Bradhurst, 1 Paige, 331; Rathbone v. Dyckman, 3 Paige, 9; Heard v. Horton, 1 Denio, 165. See also Hill v. Hill, 4 Barb. 419. This and the affiliated questions upon the subject of executory devises is very extensively discussed in Miller v. Emans, 19 N. Y. Ct. App. 384, and the rule of the text vindicated. See also Chrystie v. Phyfe, id. 344.

See chapter on Perpetuities.

Nightingale v. Burrell, 15 Pick. 104, 111; Miller v. Chittenden, 4 Iowa

R. 252.

65 Miller v. Chittenden, 4 Iowa R. 252.