case Gurnett against wood a devise to a for life remainder to b in fee he pay  to c forty pound when he shall attain the age of twentyone and if b die under  the age of twentyone then to d and his heir for ever he pay sixty pound to c  be a executory devise and vest in d immediate and therefore if he die in the  lifetime of b and b die under age the heir of d shall take the estate upon a  ejectment the follow case be make at the assize for the opinion of the court  Thomas Gurnett seize in fee devise all his land to Dorothy his wife during her  natural life and after her decease to John his old son in fee pay to the  testator two daughter the sum of forty pound each when they shall attain the  age of twentyone year and if his son John die under the age of twentyone year  then he devise the premise to William Harrison his wife son and his heir for  ever pay a further sum of twenty pound apiece to his two sister upon their  attain the age of twentyone the testator die the wife enter and enjoy the  premise for her life William Harrison die and after that John the first  devisee die under the age of twentyone year the question be whether William  Harrison die in the lifetime of John the first devisee the remainder be so  vest in William Harrison John afterward die a infant as to entitle his heir to  take after John death by way of executory devise or whether the heir of John  shall take the court be clear of opinion that this be a interest vest in  William Harrison in his lifetime and transmittable to his heir and not a  possibility only and say that executory devise must now have the same rule as  contingent remainder and vest immediate so as to descend to the heir when the  contingency happen but the court take some time to consider it and afterward  will chief justice deliver the opinion of the court will chief justice the  case be no more than this a devise to a and his heir upon a contingency a  survive the devisor but die before the contingency happen afterward the  contingency happen the question be whether the heir of a shall take No doubt  the devise to Harrison be a executory devise for be after a estate give to  another and his heir in fee it can be good by way of contingent remainder for  the plaintiff be cite Brett v Rigden Plowd but that case differ from this for  it be to a and his modern heir a immediate devise and he die before the  testator it be adjudge he can take nothing and right for a will do not operate  until the death of the testator so that nothing ever vest in a and consequent  not in his heir for they be not intend to take by way of purchase and by  descent they can not for that can never be where nothing vest in the ancestor  but in this case Harrison survive not only the devisor but likewise the widow  who enjoy under the first devisee then it be object that this be only a bare  possibility which it be say can neither descend nor be assign devise or bar by  a common recovery and to prove this be cite Fulwoods case   march a and the  case of pell v brown cro James b where the last point be determine that a  common recovery will not bar it and there be several other book where the same  thing be former lie down but it be to be consider that most of those  resolution be before executory devise be in fashion or at least before they be  through establish and I believe will not be law now I do not say anything as  to a possibility be bar by a recovery but there be several case where a bare  possibility have be hold grantable or devisable as well as a more certain  interest as in the case of gore v Bickerstaff Pollexf c and Veizy v Tinevell  Pollexf that a possibility cloth with a interest be not only descendible but  devisable see Selwyn v Selwyn burr Rep Jones v very term Rep but see on this  subject Fontblanques Eq d but admit it to be otherwise the objection will not  hold in the case of a executory devise for they be not to be compare to bare  possibility but be to be consider as certain modern er p estate or interest or  as contingent remainder indeed since executory devise have be establish  several rule have be lie down in order to prevent perpetuity as first that the  contingency shall take place within the compass of a life or life in be or a  reasonable number of year then the court go a little far and extend it to the  case of a infant en ventre sa mere because that contingency must take place in  something less than nine month and so there be no danger of a perpetuity and  in chancery they have hold it good though not to happen till twentyone year  after a life or life in be but in all other respect executory devise have  always be resemble to contingent remainder which appear in consider the reason  on which they be find which be this when it appear the testator intend to give  a contingent remainder but have express himself so as it can not take effect  as such by the rule of law the court of justice in favour of will and to help  a apparent intention make it good as a executory devise as far as the rule of  law concern perpetuity will admit consider then this devise in the same light  as a contingent remainder it be never doubt but that it vest though not in  possession yet as a contingent interest immediate upon its creation and  consequent transmissible not to mention other case there be a late one very  solemnly determine modern which have put this matter out of all doubt  videlicet king v Witbus a devise to b his daughter of two thousand pound  Payable at the age of twentyone or day of marriage and if c his son die  without issue male live then his daughter to have three thousand pound at the  age of twentyone or day of marriage so that part of her fortune be certain the  rest depend upon contingency the daughter live to be twentyone year of age and  marry but die before her brother c so that at the time of her death her  interest in the three thousand pound be but contingent afterward her brother  die without issue male upon which dr king as her husband bring his bill for  the additional fortune of three thousand pound it be strong insist on the  other hand that her interest be only contingent and she die before it can be  know whether the contingency will happen or not it can not be transmissible  but Lord Talbot hold it be no possibility but a interest vest and  transmissible to he as husband and he as husband be entitle so soon as the  contingency happen this be a fortune charge upon land and so to be govern by  the same rule as land this decree after a long bear be affirm in the house of  lord and in this case many other be cite where contingent interest both real  and personal be hold transmissible to the heir or representative a case be  cite of mark v mark Prec in Chan see also Goodright v Searle will fearne Fx  Dev a report in chancery precedent which I think the best book of chancery  report extant as applicable to this case and as this be determine solemnly by  so great a man as Lord Parker together with the master of the roll I have no  doubt but it be good law but beside that determine upon the old law that where  a feoff be upon condition and the ancestor die before the performance his heir  may perform it the court likewise consider it upon the foot of a mortgage and  redemption but without the aid of that authority we be of opinion that the  defendant as heir of Harrison be well entitle notwithstanding be die before  the contingency happen of I Gurnetts die under the age of twenty one judgement  for the defendant