testator had said it should go to the survivors for their lives it might have been contended that it survived to the last." SECTION IV. Of absolute and qualified Interests. In a devise of real property words of limitation must be added to give more than an estate for life: in the case of personalty words of qualification are required to restrain the extent and duration of interest. Thus in a devise of freehold and leasehold to A. and B. during their joint lives, and to the survivor of them; the survivor takes the absolute interest in the leasehold, but a life estate only in the freehold." Originally there could be no limitation over of a chattel, and a gift for life carried the absolute interest. This seems now the better opinion as to In the Mall; those articles of which the use consists in the conWill kan sumption; and that of these a gift for life is a gift Ns.qqu.r. of the property; unless included in a residuary bequest for life; for then they are to be sold, and the interest enjoyed by the tenant for life. With this exception it is settled that a limitation over after a bequest for life, or for a determinate number of years, of personal property is good, if limited to take place within the time the law allows in the case 534. Vandergucht v. Blake, 2 Ves. J. Awse v. Melhuish, 1 Bro. 519; e Fearne, Cont. Rem. 402, 6th ed. Warner v. Borsley, 2 Ch. Rep. 151. a Randall v. Russell, 3 Mer. 190. Devise over held good, Hayle v.Burrodale, 1 Eq. Ab. 361. Jolly v. Wills, 2 Ch. Rep. 137. of executory devises. Now it is an established rule that an executory devise is good if it must necessarily happen within a life or lives in being and twentyone years, and the fraction of another year, allowing for the time of gestation. Hence a bequest of personal estate in trust to pay and divide it unto and between A. and B., and in case of the death of either of them leaving children, in trust for such children, restricts the parents to an estate for life; while a bequest, after the death of C., among her children when they shall severally attain the age of twentyseven, is too remote and void.c Devises for accumulation are restrained by the legislature within still narrower bounds, and no real or personal property can now be settled by deed or will (except for payment of debts, raising portions for children, or preserving timber) so as that the profits shall be wholly or partially accumulated for any longer term than the life of the settlor; or twenty-one years from his death; or during the minority of any person who shall be living at his death; or during the minority of any person who under the settlement would, if of full age, be entitled to the profits so directed to be accumulated and in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, and the profits, so long as the same shall be directed to be so accumulated, shall belong to such person as 7 T. R. 102. Fearne, C. R. 430, 6th ed. See as to the difference of opinion how far the twenty-one years can be added at all events, without reference to the infancy of the person to take; 4 Ves. 337. Beard v. Westcott, 5 Taunt 393. 5 B. & A. 801. The Lord Chancellor's opinion seems against the addition, 1 Turn. 25. As to the executory devise of an annuity, see Turner v. Turner, 1 Bro. 315. Ambl. 776. b Farthing v. Allen, 2 Mad. 310. Cambridge v. Rous, 8 Ves. 12. would have been entitled, if such accumulation had not been directed. A direction for accumulation contrary to the terms of this statute is void only for the excess, and is good to the extent allowed by it. The true doctrine seems to be, that in a trust for accumulation which, prior to the act, would have been good, so much as is now within the act will be good, but the excess will be bad; but if there be a trust for accumulation, and part of it would have been bad before the act, that part remains bad notwithstanding the act.b It has long been established that a bequest over er of personal property, in the event of a person dying 580. atting 2ke without heirs, or without issue, is too, remote and Bght void for these words have been wrested and tortured out of their common and natural signification (that of dying without leaving issue at the time of death,) and by a solecism in law held to mean failure of issue at whatever length of time it may take place; producing the absurdity of making a dying "with issue" and dying "without issue" to mean. the same thing. It is settled also that a limitation, which if the property were freehold would create an estate tail, gives the absolute interest in personalty; and a gift over is too remote and void. Thus where a man by his will gave to A. the dividends on some a 39 & 40 Geo. III. 98. b Griffiths v. Vere, 9 Ves. 127. Longdon v. Simson, 12 Ves. 295. L. Southampton v. M. Hertford, 2 Ves. & B. 54. Marshall v. Holloway, 2 Swanst. 432; and see 2 Mer. 389. Fearne, C. R. 460. Everest v. Gell, 1 Ves. J. 286. Gray v. Shawne, 1 Ed. 153. Grey v. Montagu, 2 id. 205. d Fearne, C. R. 463. Bray v. Buffield, 2 Ch. Ca. 236. Salkeld v.Vernon, 1 Ed. 64. Fereyes v. Robertson, Bunb. 301. Gibbs v. Bernardistone, Gilb. Eq. R. 79. Bequest to Act 21 t f he do not then 21 as with 21 hyttrar Boodle 6. 457. Bank stock, and the payments growing due on some Exchequer Annuities during her life, and after her death gave the Bank stock and Exchequer Annuities to the heirs male of her body, and for want of such issue to B., the plaintiff; and A. died unmarried: Sir T. Sewell considered the above rule too strong to be got over, and dismissed the bill. This decision was indeed reversed by the Lords Commissioners, but upon appeal to the House of Lords the decree of the Master of the Rolls was established, and the decision ever since considered as conclusive, and followed in subsequent cases.d A distinction was once taken between words creating an express estate tail, and those passing an entail only by construction and implication; but this distinction has been considered as exploded. Thus Sir W. Grant, speaking of the above case of Lord Chatham v. Tothill, said, he apprehended it to be ever since settled, that whatever would, directly or constructively, constitute an estate tail in land, would pass an absolute interest in personal estate. If therefore a man limits his real estates, in strict settlement, and bequeaths the furniture of his mansion-house to go as heir-looms, and be enjoyed by the persons entitled to his real estate as far as the rules of law and equity will permit; the furniture vests absolutely in the first tenant in tail of the real estates on his birth, and will go, notwithstanding the latter words, to his administrator upon his death under age. So where Lord V. devised his goods, furniture, &c., after the decease of his son, in trust for such person as should from time to time be Lord V., it being his intention that the same should go with the title so far as the rules of law or equity would permit: this was held to vest an absolute interest in the first Lord V. who was not born in the testator's lifetime, and went to his representatives on his death under twenty-one." But although the limitation of a personal thing is not allowed after a dying without issue generally, yet if it be confined within the above mentioned limits it will be good; as in the case of a bequest to B. if A. die before twenty-one without issue; or without issue living at his death; or in failure of issue in and on the decease of the testator's wife. A gift over also upon failure of issue will be good, if it be only a substitution in the room of the first, and to take effect if that fail. Thus where there was a bequest among the children of A. payable at twentyone with benefit of survivorship, but if A. should happen to die without issue, then to B. and C.: this was held not to be a limitation over by way of remainder, but an absolute legacy to the children, if they lived to its vesting in them; if they did not, then to other persons; and was like the limitation of 4 Foley v. Burnell, 1 Bro. 274. Vaughan v. Burslem, 3 Bro. 101. Fordyce v. Ford, 2 Ves. J. 536. Carr v. Lord Erroll, 14 Ves. 478. ford v. Powell, 1 B. & B. 1. Strat let v. Dogget, 2 Ver. 86. Martin v. Long, id. 151. Balguy v. Hamilton, Mos. 186. a Fearne, C. R. 468, 6th ed. Lyon v. Mitchell, 1 Mad. 467. Long v. Blackall, 7 T. R. 100; and see Flan ders v. Clarke, 3 Atk. 509. • Stratford v. Powell, 1 B. & B. 1. |