of executory fees in devises, and conveyances to uses, But it was said that a lease for years, which was but a chattel, would not bear a contingent limitation, on account of its meanness. As to this point, the differ ence between a chattel and an inheritance was a differ ence only in words, and not in reason; for the owner of a lease had as absolute a power over it, as a person who was seised in fee had over the inheritance. If a springing trust of a term was not allowed, as well as a springing use of an inheritance, men possessed of terms for years would not be capable of making that provision for their families which the laws of every country ought to support. Suppose a man possessed of no other property than a long term for years, should, on the marriage of his son, assign the term to trustees, in trust for himself and his executors, till the marriage took effect; and from the solemnization of the marriage to the son for life, remainder to his wife for life, &c.; this would not be a void limitation in a marriage settlement. And if this springing trust, to arise on the contingency of a marriage was good, why should not the springing trust in the present case be equally good. If the estate had been limited to Henry Howard and the heirs male of his body, until the death of Thomas Lord Maltravers without issue generally, and then to Charles, the limitation would certainly have been void; but the addition of the words " If Thomas Lord Maltravers die without issue in the lifetime of Henry," entirely altered the case; as the event on which the term was limited over was thereby circumscribed to the period of a life then in being; and as a chattel interest would bear a remainder over, where there was no danger of a perpetuity, it must of course bear a remainder over upon a contingency which must inevitably happen during the existence of a life in being. The principal authority against the plaintiff was the Child v. Bayley, case of Child v. Bayley. "That case was variously re- Cro. Ja. 459, ported; the true state was thus :-A term of 76 years was devised by a person to his wife for life, then to his son William and his assigns for all the rest of the term; provided that if William died without issue then living, the term should go over to Thomas; which he agreed was the same as the then present case. The remainder to Thomas was held to be void in its creation; but the resolution in that case went upon several reasons which were not to be found in this case; and besides, that case had been contradicted since. Saunders, In a subsequent case the trust of a long term was Wood v. limited to the father for 60 years, if he should so Pollexf. 35, long live, then to the mother in the same manner, then to John the son, and his executors, if he survived his father and mother; and if he died in their lifetime, having issue, then to his issue; but if he died in the lifetime of his father and mother without issue, then remainder over to his brother. John died without issue, in the lifetime of his father and mother; and the question was, whether the limitation over to the brother was good. It was resolved by Lord Keeper Bridgeman, assisted by Twisden and Rainsford, Justices, that the limitation over to the brother was good; as the contingency on which it was to take place must happen during the existence of two lives then in being. Thus it appeared that Sir Orlando Bridgeman, who drew the deeds in this case, continued of the same opinion that he was of when a conveyancer. Carth. 266. Fletcher's Case, It was decreed that the limitation over to Charles Howard was good. Upon a bill of review, this decree was reversed by Lord Keeper North; but an appeal being brought in the House of Lords, the decree of reversal was reversed, and Lord Nottingham's decree finally established. 22. Upon a special verdict the case was thus: A. devised a long term for years to his son B. and the heirs male of his body, and if he died without issue, living his mother, then that it should go over to his son C. The contingency happened and it was resolved that the devise over to C. was good, upon the reason and authority of the Duke of Norfolk's case. In another report of this case it is said the Court, without any difficulty, held it a good limitation, by way of executory devise, to C.; and that it did not tend to a perpetuity, as was suggested; and denied the case of Child v. Bayley, but said that the established law in cases of this nature was according to the resolution in the Duke of Norfolk's case. 23. A person devised a term for years to his wife 1 Ab. Eq.193. for life, and after her death to B. F. for her life, and after her death to T. F. and his children, and then devised in these words :-" And if it shall happen that the said T. F. do die before the expiration of the said term, not having issue of his body then living," then to go over to the plaintiffs, for the residue of the term. Long v. 7 Term R. This bequest was held good, the failure of issue being confined to the life of T. F. 24. In a case sent from the Court of Chancery for the opinion of the Court of K. B., it was stated; that years, George Blackall being possessed of a term for devised it, after the death of his wife, to the child with which the testator's wife was then ensient; in case it should be a son, during his life; and after his decease, then to such issue male, or the descendants of such issue male of such child, as at the time of his death should be his heir at law and in case that at the time of the death of such child there should be no such issue male, nor any descendants of such issue male, then living; or in case such child should not be a son; then he bequeathed the same to Philippa Long, her executors, &c. The wife of the testator was ensient at the time of making the will, and when the testator died; and had a son, who died without issue. The question directed by the Chancellor was, whether the limitation to Philippa Long was good. Lord Kenyon said, the rules respecting executory devises had conformed to the rules laid down in the construction of legal limitations; and the Courts had said, that the estate should not be unalienable by executory devises, for a longer time than was allowed by the limitations of a common law conveyance. In marriage settlements the estate might be limited to the first and other sons of the marriage in tail; and until the person to whom the first remainder was limited was of age, the estate was unalienable, In conformity to that rule, courts of law have said,-So far we will allow executory devises to be good. To support this decision he could refer to many others; but it was sufficient to mention the Duke of Norfolk's case, in which all the learning on this head was gone into; and from that time every Judge had acquiesced in that decision. It was an established rule that an executory devise was good, if it must necessarily Thelusson v. Thelusson, infra, c. 20. The Words, "dying with out Issue", sometimes restrained to the Death of a Person in esse. Target v. 1 P. Wms. happen within a life or lives in being, and 21 years and the fraction of another year, allowing for the time of gestation. Mr. J. Lawrence said, the devise over in this case must take effect, if at all, after a life which must be in being within nine months after the devisor's death. The Judges certified that the limitation to Philippa Long was good. 25. It is observable that this case began with a devise to a posthumous child for life, with a limitation over, upon failure of issue of his body at his death, which of course would include an heir male then in ventre sa mere: for as the devise began with an allowance for the birth of a posthumous child, and also might conclude with it, the time might be claimed twice over; and so the time allowed for the birth of a posthumous child, after lives in being, and 21 years, might be enlarged to two periods of gestation. But this determination has been confirmed after great deliberation in a subsequent case, which will be stated hereafter. 26. In the case of executory bequests of terms for years, the Court of Chancery has very much inclined to lay hold of any words in a will to restrain the generality of the words, dying without issue, and confine them to dying without issue living at the time of the person's decease, in order to support the intention of the testator; for by this construction the devise over becomes valid, being confined to the period of a life in being. 27. One possessed of a term for years, bequeathed it by his will to his son Henry for life, and no longer; and after his decease, to such of the issue of the said Henry, as Henry by his will should appoint; and in |