Jones v. Morgan, ante, § 25. 33. In another case, which has been stated in this chapter, the Judges of the Court of K. B. appear, from their certificate, to have been of opinion, that if a second marriage was in the contemplation of the testator, then an estate tail was raised by implication to the sons of that marriage, and therefore that the devise over was good, as a remainder expectant on the determination of that estate tail. UPON over of a PON the first introduction of long terms for A Bequest years, it was held that if a term for years was Term for given to a person for life, with a remainder over, the Years is now bequest of the remainder was void; because an estate good. for life being of greater estimation in the eye of the law than the longest term for years, it was concluded that the limitation of a term for years to a person for life was a complete disposition of it, and therefore nothing remained to be given over. Another reason for this doctrine was, that the possibility of a Welcden v. Manning's term's continuing longer than the life of the person to whom it was first bequeathed, was not such an interest as by the rules of law could be limited over. 2. A distinction was formerly made between a bequest of the use of a personal thing, and of the thing itself; and in the former case the devise over was good. When long and beneficial terms for years came into general use, the convenience of families required that they might be settled in the same manner as freehold estates; it was therefore fully settled in the reign of Queen Elizabeth, that a bequest of the residue of a term for years, after a previous disposition of it for life, was good; and this doctrine was confirmed by the two following determinations. 3. Edward Manning being possessed of the moiety of a mill for the term of fifty years, made his will in writing, and thereby devised his indenture and lease of the said mill, and all the years therein to come, to Mathew Manning, after the death of Mary Manning his wife; which mill, his will was, that Mary his wife should enjoy during her life, conditionally that the said Mathew Manning should not devise, sell, or give the said lease, but leave it wholly to John his son. It was resolved by Lord Coke and the other Judges that the devise to Mathew Manning was good: that he took it not by way of remainder, but by way of executory devise; and that there was no difference when one devised his term for life, the remainder over, and when a man devised the land, or his lease or farm, or the use, or occupation, or profits of his land; for in a will, the intent and meaning of the devisor was to be observed, and the law would make construction of the words to satisfy his intent, and to put them into such order and course that his will should take effect; and always the intention of the devisor expressed in his will was the best expositor, director, and disposer of his words; and when a man devised his lease to one for life, it was as much as to say, he should have so many of the years as he should live, and that if he died within the term, another should have it for the residue of the years; and although at the beginning it was uncertain how many years he should live, yet when he died, it was certain how many years he had lived, and for how many years the other should have it; and so by a subsequent act all was made certain. Case, 10 Rep. 46. 4. J. Morris being possessed of a house for the Lampet's term of 500 years, devised it to his father for the term of his natural life, and after his decease the remainder of the said house to Elizabeth the sister of the testator, and to the heirs of the body of the said Elizabeth. And also a similar De Upon the question whether this executory devise, after the death of the testator's father, was good, when the term itself, and not the use or occupation of it for life, was devised to the first devisee for life, it was resolved, that in such case also the executory devise over was good, and that the assent of the executor to the first devisee should enure to the other. 5. The same necessity which induced the Judges to allow of executory bequests of terms for years, claration o required that similar limitations should be allowed Trust of a in deeds by which the trusts of terms for years 1 Burr. 284. were declared. Thus, Lord Mansfield has said, "When long and beneficial terms came in use, the convenience of families required that they might be settled upon a child after the death of a parent; such limitations were soon allowed to be created by will, and the old objections were removed by VOL. VI. Kk Term. 1 Vern. 235. Though to a Person not in esse or not changing the name from remainders to executory devises. The same reason required that such limitations might be created by deed, as, for instance, marriage settlements, to answer the agreement of parties and exigencies of families." For these reasons it was settled in the reign of King Charles II. that the limitations of the trust of a term should be governed and guided by the same rules in equity, as the devise of a term was at law; and that such limitations as would be good in one case, would be so in the other, and e converso. 6. Although the person to whom a term for years is bequeathed over, after a previous disposition of it ascertained. to another for life, be not in esse, or not ascertained, still the bequest over will be good. Cotton v. 1 Roll. Ab. 612. 1 Ab. Eq.191. ante, c. 11. $ 80. 7. A termor for years devised the term to his wife for eighteen years, and after to his eldest son for life, and after to the eldest issue male of that son for life. any It was held, that although the eldest son had not issue male at the time of the devise and death of the testator, yet that if he had issue male at his death, such issue male should have it, as an executory devise; for that, notwithstanding its being a contingency upon a contingency, and the issue not being in esse at the time of the devise, yet inasmuch as it was limited to the son but for life, it was good, and all one with Manning's case. 8. Although a bequest of a term for years to a person and the heirs of his body vests the entire and absolute property of the term in him, if not restrained by subsequent words, yet if a bequest over of it is Duke of Nor. made, which is within the rules established for prefolk's Case, venting perpetuities, it will be supported as an executory devise. infra. |