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2. An estate to take effect in possession, after another, may vest at the
same time with the other
3. Estates to take effect after an estate tail, and the indefinite failure of
issue, void.
4. If the estate over vests at the decease of the testator, it will not be
avoided by remoteness of possession .
5. Contingent, as opposed to vested interest, implies doubt whether the
estate over attaches
6. If the contingency is sure to occur, the estate may be regarded as a
vested one
!
8. Devises during widowhood, or life, so construed as to carry intention
into effect
596
9. The true definition of such estate is for life, if the devisee remain sole
10. Sir W. Page Wood's exposition of the rule
11. But if it appear that the estate over was only to take effect upon mar-
riage, that construction will be maintained
597
12. The same construction applied to estates dependent upon bankruptcy
or insolvency
13. Estates carved out for the benefit of devisee in remainder, both vest
14. The courts have been ingenious, in construing remainders, as contem-
poraneous with determination of prior estate
598
15. The same rule of construction prevails, where the estates are not for
same person
16. Other cases where the limitation is liberally construed, in favor of the
one entitled in remainder. Comparison of cases
599
17. Summary of the cases stated by Sir W. Page Wood, Vice-Chancellor
18. Further illustration of the subject
19. The intervention of trustees will make no difference. Further restric-
tions upon vesting
604
20. Where the devise limits the vesting, in terms, or there is an equivalent
provision, it prevails
21. A devise over may favor the vesting of the prior estate, or it may have
a contrary effect
22. The case of Festing v. Allen stated and commented upon.
606
607
23. The important point is, whether the contingency is made part of the
character of the devisee
608
24. The same distinction illustrated by other cases
25. The case of Stead v. Platt stated, where the devise itself was in terms
dependent upon the devisee's attaining a certain age.
609
26. The present inclination of the English courts in favor of vesting. Case
stated
27. The rule as laid down by Vice-Chancellor Knight Bruce. Equitable
estate vests
611
28. Vice-Chancellor Stewart's opinion in favor of immediate vesting
29. Words of contingency, as applied to persons and things, should have
same construction
30. Inclination to hold all estates vested. Old refinements abandoned
31. Where the intermediate interest is given to the same donee the estate
32. The accumulation of interest will not defer the vesting. But some
cases hold otherwise.
PAGE
612
613
33. Sir William Grant construed all similar gifts in favor of vesting
34. The devise of a residue is indicative of an intention to vest the interest
presently
35. Where a vested estate is clearly given, it will not be cut down by vague
words of qualification
616
36. If the estate over is given to all testator's children it is favorable to
vesting.
617
37. Postponement to accommodate the estates indicates an intention to
38. The form of the gift is often held decisive of the question of vesting.
Review of the cases showing this is not now favored
39. The general rule, in regard to a devise over to a class, is that it is con-
tingent, but the children of the first donee seem an exception
40. But any provision in regard to a single member of the class will be
applied to the whole
41. Clear gift not affected by reference to other provisions, but doubtful
one may be
622
42. Gift to the individuals of a class, or all but certain exceptions, creates
vested interests
43. But if made to such children as reach a certain age, there is no room
for construction .
623
44. Where a residue is given to a class, and consists of reversionary prop-
erty, it vests at once
45. The time of vesting is generally deferred to the time of payment
46. But gift to all of a class, as or when they attain certain age, creates
vested interest.
624
625
47. Real and personal estate in same bequest receive same construction in
48. The later English cases hold all bequests of residue vested, under given
(3.) To render an estate contingent, clear language or necessary
construction indispensable
51. All estates devisable, or descendible, where there is any present inter-
est, if contingent
52. The rule illustrated by Vice-Chancellor Wigram, in Leaming v. Sher-
PAOE
627
53. Distinction between referring to a class, and to the individuals com-
prising it
628
54. The American cases are numerous, but follow the lead of the English
55. The leading case in Massachusetts is Furness v. Fox. Courts favor
629
631
56. In New York courts hold the estate vested unless clearly contingent
57. The point which determines that fact is, whether time is of the sub-
stance of the gift
58. Numerous cases stated in illustration of the principle
59. The general rule that legacies charged on land lapse by the death of
legatee before the time of payment, not applicable to cases of post-
ponement for benefit of estate
631.
632
633
60. But an estate in remainder which is clearly contingent will be so held,
however inconvenient
61. The law of Pennsylvania conforms to the above rules. Numerous cases
stated.
634
62. The same is true in the State of New Hampshire. Late cases stated
63. The rule in Virginia stated. Cases illustrating the rule
637
638
64. The cases in Florida and Georgia follow the rules of the English law
65. The rule seems to favor contingency in Alabama. But not in Tennes-
see and Delaware.
66. Estates in remainder dependent upon the life-estate of the widow, take
effect when she waives the provision of will.
640
67. Case stated illustrating the rule upon this subject in Tennessee
68. The construction in Connecticut favors vested remainders
641
69. Contingent interests in remainder, or of executory devise, transmissible
in Ohio
EXECUTORY DEVISES AND BEQUESTS, AND THOSE IN REMAINDER.
1. An executory devise is a limitation over, which cannot operate by way
of remainder
2. If the estate can take effect as a remainder it shall
3. An estate in remainder must be upheld by another estate less than a fee
643
4. Such estate must continue until the vesting of that in remainder
5. Remainder cannot be upheld by a chattel interest; or take effect in
futuro
6. Where the life-estate terminates on condition, the estate over becomes
an executory devise
7. And where the intermediate estate is a conditional fee, that over is an
executory devise
8. Where the executory devise fails by lapse or remoteness, the first taker
holds absolutely
9. The case of Jackson v. Noble discussed at length
n. 16. Explanation of the grounds of the decision in the different courts
10. The first taker holds the entire estate, where such appears to be the
intent of testator
645
646
647
.
11. Bequest to widow for life, and then to children, creates vested interest
in children
648
12. And where the estate over is to go to issue, if there be no issue, it is
not defeated
13. And where a bequest for daughters is held in trust for their issue, this
will not affect the estate of those who die without issue
649
14. Lord Cottenham's illustration of the point in Lassence v. Tierney
15. Where the words of the will are ambiguous, may be explained by con-
text
650
16. So the gift remains absolute upon failure to exercise a power of appoint-
17. Executory devises not defeated by forfeiture or failure of intermediate
18. A change in the intervening estates converts a remainder into an execu-
tory devise
651
19. And an estate may change from an executory devise to a remainder
20. Estate may be so framed as to take effect as one or the other in differ-
ent events
21. An executory devise not defeated by failure of estate out of which it
arises
22. Where the executory devise and contingent remainder vest in the same
person, they do not merge
23. An estate in fee defeasible by a possible estate over is subject to curtesy
and dower
653
24. Personalty may go to successive owners of executory devise, but not by
remainder
25. Equity will require the tenant for life to furnish inventory; will decree
surrender
26. The rights of tenants for life and those entitled in remainder further
explained
655
27. The law against perpetuities applies to personal estates in succession
28. Successive estates cannot exist in chattels of a perishable character,
unless in residue
656
29. The law of executory devises the same as at-common law, in the Ameri-
can States
30. So also in regard to remoteness, and the effect of estate over being void
31. It is clear that an executory devise, after indefinite failure of issue, is
657
32. An executory devise may take effect in futuro, without an intermediate
estate
658
33. An executory devise over cannot be limited upon absolute devise to the
34. But if the first devise lapses the devise over will take effect
659
3. Where condition is in the nature of a consideration, it is held precedent
4. Estates dependent upon marriage held upon precedent conditions
5. Where condition depends upon time, the day of the decease is excluded
6. Conditions that devisee do a particular act, or abstain, held precedent
7. The American cases mantain the same distinctions. All the particulars
to be performed
662
663
8. Conditions precedent, which fail of performance, defeat the estate
9. But conditions subsequent, becoming impossible or illegal, do not defeat
the estate
10. And where the estate over depends upon a condition precedent, which
fails, that estate fails
664
11. But conditions subsequent failing, do not always defeat the estate over
12. Where the estate is personal, no distinction between conditions prece-
dent and subsequent .
665
13. Conditions repugnant to the estate are void
14. Devises in fee incumbered by conditions against alienation or use of
666
15. Distinction between arbitrary restrictions and those for the benefit of
16. Bequests of personalty affected the same as those of realty, by conditions
against use or alienation
17. Bequests with a provision against the claim of creditors not favored
667