case Stephens versus Stephens December a executory devise of a estate of  inheritance to a person unborn when be shall attain the age of twentyone year  be good and there be no danger of a perpetuity there be five cause which be  hear together by the late Lord chancellor king and upon the hear he direct a  case to be state and refer to the judge of the king bench for their opinion  and it now come back for the judgement of the court upon that e judge  certificate upon read of which the present Lord chancellor be please to decree  accord to it and express his satisfaction with it as agree perfect with his  own sentiment and say he hope it will be for the future a lead case in the  determination of all question of this kind Reg lib b fol the case state and  the opinion of the judge be as follow sir William Stephens be seize of the  several message land and tenement herein aftermentioned make his will the that  day of February whereby inter alian he make the several devise in the word  follow item I give devise and bequeathe unto my grandson case tempt Talbot  William Stephens after the decease of my say wife dame Susanna Stephens all  those my message land tenement and hereditament situate lie and be in Deptford  in the county of ken and by deed settle by my say wife on I my heir and assign  to hold the same to my say grandson William Stephens his heir and assign for  ever item I give devise and bequeathe to my say grandson William Stephens all  my freehold estate message land tenement hereditament and premise in the  parish of saint mary Magdalen Bermondsea in the county of Surre situate and be  in rotherhith wall east lane saint mary Magdalen courtyard and elsewhere in  the say parish of saint mary Magdalen Bermondsea and also all those my  freehold message land tenement hereditament and premise in the parish of saint  olaf in Southwark and elsewhere in the county of Surre and also all my  freehold message land tenement and hereditament in the county of Essex to hold  my say freehold message land tenement hereditament and premise to my say  grandson William Stephens his heir and assign for ever but in case my say  grandson William Stephens shall happen to die and depart this life before he  attain his age of twentyone year then I give and bequeathe to my grandson  Thomas Stephens all and every my message land and hereditament before mention  as well those in the parish of saint mary Magdalen Bermondsea and saint olaf  in Southwark as those in the county of Essex and ken to hold the same to my  say grandson Thomas Stephens his heir and assign for ever but in case my say  grandson Thomas Stephens shall happen to die and depart this life before he  attain his age of twentyone year then I give and bequeathe all my say freehold  message tenement hereditament and premise whatsoever before mention to such  other son of the body of my daughter mary Stephens by my soninlaw Thomas  Stephens as shall happen to attain his age of twentyone year his heir and  assign for ever the elder of such son case tempt Talbot to take place before  the young one after another in order and course as they and every of they  shall be in seniority of age and priority of birth and of the several and  respective heir male of the several and respective body and body of all and  every such son and son and the heir male of his and their body and body issue  and for default of such issue then I give and bequeathe my aforesaid freehold  estate message land tenement and hereditament to all and every the daughter  and daughter of my say son Thomas Stephens on the body of my say daughter to  be beget and to the heir of the body and body of all and every the say  daughter and daughter as tenant in common and not as jointtenants and for want  of such issue then I give devise and bequeathe my aforesaid freehold estate  message land tenement and hereditament to my brother sir Richard Stephens to  hold the say freehold message land tenement and hereditament to the say sir  Richard Stephens his heir and assign for ever item all the rest and residue of  my estate real and personal good chattel ring jewel plate money and  moneysworth whatsoever and wheresoever not hereby before bequeathe I give and  bequeathe the same to in say son Thomas Stephens his heir executor  administrator and assign for ever and the say testator by his say will make  his say soninlaw Thomas Stephens sole executor thereof and case tempt Talbot  er p afterward to wit on or about the that day of march follow die leave dame  mary the wife of Thomas Stephens his daughter and heir and leave two grandson  William and Thomas live at the time of his death and no granddaughter on the  that of may Susan the daughter of Thomas Stephens and mary his wife be bear  and be still live the say Thomas Stephens the grandson die without issue and  under the age of twentyone year the that day of October and the say William  Stephens the other grandson die the that day of September without issue and  under the age of twentyone year mary Stephens another case tempt Talbot  daughter of the say Thomas Stephens and mary his wife be bear the that of  march and die without issue and under age the that of October Sarah Stephens  another daughter of the say Thomas Stephens and mary his wife be bear the that  of November and be yet live mary Stephens another daughter of the say Thomas  Stephens and mary his wife be bear the that of February and die without issue  and under age the that of April Thomas Stephens one of the party in this suit  son of the say sir Thomas Stephens and mary his wife be bear the that day of  January and be still live sir Richard Stephens the say testator brother  mention in his will be still live the say Thomas Stephens claim title to the  premise as residuary devisee of the say testator and the say dame mary his  wife lie claim thereto as heir at law to the say William Stephens the testator  and the say other party likewise claim title thereto under the say testator  will Susan Stephens the plaintiff in the original cause since the hear the say  cause to wit the that of April die without issue and under age and on the that  of August follow a order be obtain upon the petition of all the survive party  that the case shall be make agreeable to the fact as it now stand since her  death and that the judge of the court of king bench be then desire to give  their opinion on this question what estate right or interest either in the  present or in contingency any of the say party have in or to the land in  question or any part thereof the judge of the king bench certify their opinion  as follow we have hear counsel for all the party and mature consider the case  upon which the question be raise and refer to we and the principal point  appear to be whether the devise make by the will in these word videlicet and  in case my say grandson Thomas Stephens shall die before he attain his age of  twentyone year then I give all my say freehold estate c to such other son I  the body of my say daughter mary Stephens by my soninlaw Thomas Stephens as  case tempt Talbot shall happen to attain his age of twentyone year his heir  and assign for ever be good by way of executory devise as to which we do not  find any case wherein a executory devise of a freehold have be hold good which  have suspend the vest of the estate until a son unborn shall attain his age of  twentyone year except the case of tailor and Bydall adjudge upon a special  verdict in the court of common plea hill car and report in Mod the resolution  appear in every view of it to be so considerable in the present case that we  cause the record to be search and find it to agree in the material part  thereof with the print report and therefore however unwilling we may be to  extend executory devise beyond the rule general lie down by our predecessor  yet upon the authority of that judgement and its conformity to several late  determination in case of term for year and consider that the power of  alienation will not be restrain long than the law will restrain it videlicet  during the infancy of the first taker which can reasonable be say to extend to  a perpetuity and that this construction will make the testator whole  disposition take effect which otherwise will be defeat we be of opinion that  the devise before mention may be good by way of executory devise the  consequence whereof be that all the subsequent limitation will be good the  estate will vest in Thomas the son now live when he shall attain the age of  twenty one year in tail male accord to the clause direct the order of  succession between the son to be bear if Thomas the son now live shall happen  to die before his age of twentyone year and the testator daughter dame mary  Stephens shall have any other son by sir Thomas Stephens then the estate will  go over to he when he shall attain his age of twentyone year in like manner as  it will have vest in Thomas if Thomas the son shall die before the age of  twentyone year and dame mary shall have no other son by sir Thomas Stephens  who shall attain his age of twentyone year then his estate will go over to  Sarah the daughter and all other daughter case tempt Talbot er p of the case  tempt Talbot say dame mary by sir Thomas as tenant in common in tail with  remainder over to Richard Stephens the testator brother in fee but in case  Thomas the son shall die before the age of twentyone and Sarah the daughter  shall then be dead without issue and there shall be no other son of dame mary  who shall attain the age of twentyone year or any other daughter hereinafter  bear of their body then the estate will go over to the say sir Richard  Stephens by virtue of the last remainder to he in fee as to the profit of the  estate receive since the death of William the grandson or to be receive until  it shall vest in any one person by force of the say executory devise or shall  go over to the remainder man we conceive that they belong to sir Thomas  Stephens by virtue of the residuary devise in the will as a interest in the  testator real estate not before bequeathe or dispose of by his will vide Clare  v Clare ante and reference Hardwicke e probin f page W lee case tempt Talbot  de term S HILLARII geo two in curian porter