estates. An executory devise is a limitation by
a future contingent interest in lands, contrary to the rules of limitation
of contingent estate is in conveyances at law. When the limitation by will
does not depart from those rules prescribed for the government of
contingent remainders, it is, in that case, a contingent remainder, and not
an executory devise. 4 Kent, Com. 257, 1 Edens R. 27, 8 T. R. 763.
2. An executory devise differs from a contingent remainder, in three
material points. 1. It needs no particular estate to precede and support
it, for example, a devise to A B, upon his marriage. 2. A fee may be
limited after a fee, as in the case of a devise of land to C D, in fee, and
if he dies without issue, or before the age of twenty-one, then to E F, in
fee. 3. A term for years may be limited over after a life estate created in
the same. 2 Bl. Com. 172, 173.
3. To prevent perpetuities, a rule has been adopted that the contingency
must happen during the time of a life or lives in being and twenty-one
years after, and the months allowed for gestation in order to reach beyond
the minority of a person not in esse at the time of making the executory
devise. 3 P. Wms. 258, 7 T. R. 100, 2 Bl. Com. 174, 7 Cranch, 456, 1 Gilm.
194, 2 Hayw. 375.
4. There are several kinds of executory devises, two relative to real
estate, and one in relation to personal estate.
5. - 1. When the devisor parts with his whole estate, but upon some
contingency, qualifies the disposition of it, and limits an estate on that
contingency. For example, when the testator devises to Peter for life,
remainder to Paul, in fee, provided that if James should within three
months after the death of Peter pay one hundred dollars to Paul, then to
James in fee, this is an executory devise to James, and if he dies during
the life of Peter, his heir may perform the condition. 10 Mod. 419, Prec.
in Ch. 486, 2 Binn. 532, 5 Binn. 252, 7 Cranch, 456, 6 Munf. 187, 1 Desaus.
137, 183, 4 Id. 340, 459, 5 Day, 517.
6. - 2. When the testator gives a future interest to arise upon a
contingency, but does not part with the fee in the meantime, as in the case
of a devise of the estate to the heirs of John after the death of John, or
a devise to John in fee, to take effect six months after the testators
death, or a devise to the daughter of John, who shall marry Robert within
fifteen, years. T. Raym. 82, 1 Salk. 226, 1 Lutw. 798.
7. - 3. The executory bequest of a chattel interest is good, even though
the ulterior legatee be not at the time in esse, and chattels so limited
are protected from the demands of creditors beyond the life of the first
taker, who cannot pledge them, nor dispose of them beyond his own life
interest in them. 2 Kent, Com. 285, 2 Serg. & Rawle, 59, l Desaus 271, 4
Desaus.340, 1 Bay, 78. But such a bequest, after an indefinite failure of
issue, is bad. See 2 Serg. & R. 62, Watk. Prin. Con. 112, 116, Harg. note,
1 Tho. Co. Litt. 595-6, 515-16. Vide, Com. Dig. Estates by Devise., N 16,
Fearne on Rem. 381, Cruises Dig. Index, h. t., 4 Kent, Com. 357 to 381, 2
Hill. Ab. c. 43, p. 533.
Source: Bouviers Law Dictionary 1856 Edition
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