BORASTONS case coke Report19a hill Elizabeth n b r rot between hind and AMBRYE  SC cite ace Bulstr roll Rep cro James Swinb see tailor and wharton case carter  Rep lane Rep Mod ld raym burr burr will will dougl t r t r east maul S taunt  marsh Eq can Abr pl vern p wms Ves sen Ambl atk atk Ves jun Ves Ves dow Inst  two e f sheep touch wood Bl Com wood Fearn Fearn press d edit press stand at a  distance vin Abr condition king pl devise n b pl e c pl estate a b pl  remainder b pl m pl t pl Com dig devise n n estate b Bac Abr condition h  gavelkind a three grant h lease I l go legacy and devise e I go remainder and  reversion c d v see the note and reference infra devise of land for eight year  and afterward to executor for performance of the will till testator son shall  accomplish his full age of twentyone year and when he shall come of age then  that he shall enjoy the same to he and his heir the son die under age hold  saint that this be a good devise/Of the term till the son shall attain  twentyone and the interest of the executor continue till such time as he will  have be of age if he have live and that the remainder be execute in the son  and not in contingency for the adverb when and then in this case only denote  the time when the remainder be to take effect in possession and not when the  remainder shall vest for when these adverb refer to a thing which must of  necessity happen as in this case the determination of the term devise to the  executor they make no contingency when the particular estate upon which a  remainder depend may determine before the remainder take effect the remainder  be contingent so when it be limit to take effect upon a contingent  determination of the precede estate a devise charge with the payment of a  gross sum give a estate in fee word of consideration in a will be construe as  a limitation if by construe the I word as a condition the remedy will be  defeat in plead a lease by husband and wife the lessee needs not allege that  it be by deed between Richard hind plaintiff and William Ambrye defendant in a  ejection strong in the king bench of land in Aldenham in the county of  Hertford on a lease make by Thomas brand and constancy his wife and William  Davies and Margaret his wife to the plaintiff for seven year the defendant  plead not guilty h see ante I p a n z coke report a er p and the jury give a  special verdict to this effect Thomas Boraston be seize in fee of the land  aforesaid and hold they in socage and have issue Humphrey Boraston his elder  son Henry Boraston his young son and Humphrey have issue the say constancy  wife of the say brand and the say Margaret wife of the say Davies and the say  Henry Boraston have issue Hugh and afterward the say Thomas Boraston August by  his will in write devise the say land in these word videlicet item I give to  Thomas amery and Amphillis his wife all that my upper part of my close call  red for eight year next after my decease and that the say Thomas amery nor his  assign shall during the say term fall none of the say wood or timber in or  upon the say upper part but shall preserve the wood to the use and behalf of  the heir in remainder and after the term of the say eight year the say upper  part to remain to my executor until such time as Hugh Boraston shall  accomplish his full age of twentyone year and the mean coke Report19b profit  to be employ by my executor towards the performance of this my last will and  testament and when the say Hugh shall come to his age of twentyone year then I  will he shall enjoy the say upper part to he and to his heir for ever and  afterward the say Thomas Boraston Augusti year Elizabeth die and the say Hugh  die before his full age of twentyone year about the age of nine year and that  Philip Boraston be brother and heir of Hugh Boraston and the say Philip after  the end and expiration of the say term that be to say of Thomas amery and  Amphillis his wife and of the say executor enter into the land as brother and  heir of the say Hugh Boraston and demise the say land to the say William  Ambrye c by force whereof he be possess upon who the say lessors of the  plaintiff in right of their say wife enter into the say land and by indenture  bear date the same day and ear mention in the declaration demise to the  plaintiff prout in the declaration by force whereof he be possess until the  defendant by the commandment of the say Philip enter upon he c and whether the  say entry of the defendant be lawful or not be the doubt which be refer to the  court and this case be argue by the counsel of the plaintiff and it seem to  they that no remainder be vest in the say Hugh Boraston until he attorned his  age of twentyone year and in the mean time that the land do descend to the  daughter of the elder son who be general heir to the devisor and forasmuch as  Hugh do never accomplish his say age for his cause the land never vest in he  but remain in the heir general and in proof that the remainder do not vast in  Hugh before his say age they say it appear by the word of the will that he  shall not have it till his card age of twentyone year for the word be and when  the say Hugh shall accomplish his say age of twentyone year then I will he  shall enjoy the say upper part to he and to his heir for ever so that it full  appear that this devise to Hugh do depend on a contingent that be to say on  the accomplishment of Hugh full age of twentyone year and that ought to  precede before the remainder can begin and whether Hugh shell attain to his  age be so uncertain that no man can know but it depend sole on the providence  of God and it be say if Thomas Boraston in this case have make a lease till  Hugh attain his full age Hugh then be of the age of nine year the lessee shall  not have a absolute lease for twelve year for if Hugh shall die before his  full age the lease will be end quod to be concession per totan curian coke  Report20a it be also say that when a a particular estate which do support a  remainder may determine before the remainder can begin there the remainder  shall not present vest but shall depend in b contingency I as if one make a  lease to   b Plowd a Bac Abr grant h lease l a roll raym Pollexf atk Inst two  e wood Fearne Cru of press be vin Abr remainder king pl m pl Com dig estate b  b   a b roll light Rep atk Inst two e wood Fearne Cru dig press be vin Abr  remainder king pl I for the nature and different kind of contingent remainder  see ante vol I p b and n z ib and the book there cite X coke report b er p I S  for his life and after the death of I d to remain to another in fee this  remainder do depend in contingency for if I S die before I d the particular  estate be determine before the remainder can begin so and on the same reason  it be adjudge in Colthirst and Bejushins case in blow Com where the case in  effect be that a lease be make to a c for life the remainder to b for life and  if b die before a that it shall remain to c for life this be a good remainder  on contingent if a survive b which case be all one in reason with the common  case which be often agree in our book a lease be make to one for life the  remainder to the right heir f I S this remainder be good upon a d contingent  that be to say if the lessee for life survive I S otherwise not you so and for  the same reason if a man have issue a son of the age of nine year make a lease  until his son shall attain to his full age and after he shall accomplish his  full age that it shall remain over to another in fee nothing vest without  question present in he in remainder which be grant by the whole court and it  be say by the plaintiff counsel that such remainder be utter void and yet may  take effect for inasmuch as the remainder ought to pass out of the lessor  present either to he in remainder or to be in abeyance and custody of the law  and a freehold can in such case be in e abeyance for this cause the remainder  be utter void as if a f man make a lease to a for twenty one year if b shall  liveso long and after the death of b that it shall remain over in fee this  remainder be void l so if a g lease for year be make the remainder to the  right heir of I S this remainder be void quod to be concession per totan  curian m also it be say that when a remainder be limit to take effect on the  do of a act which act will be the determination of the particular estate yet  if the act depend on a casualty and mere uncertainty whether it will ever  happen or not there also the remainder do depend in contingency and shall not  present vest as if   light sheep touch wood Bl Com c Plowd a b raym lane r  Inst two e Fearne Fearne Bac Abr remainder and reversion c v d raym   b   Litt  a   b Inst two e Pollexf Bl Com wood Fearne Fearne Cru dig press be vin Abr  remainder m pl Com dig estate b Bac Abr remainder and reversion c v king so  where a remainder be limit to the first son of b who have no son then bear  here b may never have a son or if he shall the particular estate may deterwin  e before the birth of such son therefore this remainder be contingent vent so  if a estate be limit to two for life remainder to the survivor of they in fee  the remainder be contingent because it be uncertain which of they will be the  survivor cro car Fearn count Rem for the exception to this class of contingent  remainder see ante I p b n z Fearn count Rem ED e   light b h b Br  extinguishment Plowd b a light sect Plowd b a die pl pl pl hob   a b   a b hob  tl Fearne f raym   f Inst two e Bl Com Fearne Cru dig vin Abr remainder t pl  Bac Abr remainder and reversion c v l see ace Beverley v Beverley vern Fearn  count Rem and as to the distinction in case of a limitation to a for eighty or  ninety year if he so long live with a remainder over after the death of a to b  in fee ante I p b n z napper v sander hut Lord derby case light Rep Pollexf ED  g hob Inst two f Bl Com Fearne ac Abr remainder and reversion c v m that it be  a general rule that where a estate in contingent remainder amount to a  freehold it must be support by a freehold see ante I p b n z Bl Com Fearn  count Rem but it be otherwise in the case of a contingent remainder for year  Fearn count Rem as to the estate necessary to support a contingent remainder  in general see ante I p b n z ED coke report b er p h a make a feoff to the  use of b till c come from Rome to England and after such return from Rome to  England to remain over in fee this remainder do depend in contingency for it  be uncertain whether c will ever return into England or not which be grant by  coke Report20b the whole court n and so it be conclude by the plaintiff  counsel that for all these cause judgement ought to be give for the plaintiff  against which it be argue by the defendant counsel and they conceive the  remainder vest in Hugh present by the death of the devisor and by his death  without issue the land do descend to Philip his brother who lease to the  defendant for it be say that in this case although Hugh die before his full  age yet the interest and term of the executor do not cease and their reason be  because in will the a intent of the devisor be to be consider and when be  devise his land to his executor until Hugh his son shall come to his full age  for payment of his debt and to perform his will it be to be intend be have  compute b that the profit to be take of his land by his executor during the  minority of his son which be for the space of twelve year will suffice to pay  his debt and perform his will and that he do not intend it shall determine by  the death of his son for then the mean which he have prescribe to satisfy his  debt and perform his will will be defeat and by consequence his debt remain  unsatisfy and his will unperformed and therefore this case of a devise do  differ from a lease or a grant make in the like manner for the devisor be  intend to be c weak council and therefore the law will be his counsel and  accord to his intent appear in his will will supply the defect of his word oh  and therefore h light Rep Inst two e I Fearne Cru dig press be and edit press  stand at a distance Com dig estate b Bac Abr remainder and reversion c v n so  where a fine be levy to the use of a and the heir male of his body until the  say a shall do such a thing and after such a thing do by the say a to the use  of b in tail a die without issue and without perform the condition the  remainder be hold to be contingent arton v hare Poph and see largess case Leon  so in case land be limit to a and the heir of his body and if a die without  leave issue of his body live at his decease to c in fee the failure of issue  of king may take place either on the death of a or at a subsequent time and  here it be intend that if the estate tail expire in consequence of there be no  issue inheritable to it at a s decease c shall have the land but that if it  expire in consequence of such issue be alive at the decease of a and afterward  fail c shall not have the land now during a s life it be uncertain in which of  these mode the estate tail will expire and the remainder therefore evident  depend on a contingent determination of the precede estate Fearn count Rem  edit n it be the same in respect to a estate for life or for year d where a  testator devise to his wife for her life if she shall so long continue his  widow and in case she marry to a in fee there be ground to contend that a s  remainder be contingent as the estate of the wife may end in one of two way  her death or her marriage and the remainder to a be express to take effect  only on her marriage but the court have determine that it be mere a inaccuracy  of expression and that the intention of the testator be that a shall take  equal on the second marriage of the wife and on her death without be marry a  second time Luxford v cheek lev lady whether fry case vent see further as to  this class of contingent remainder ante I p b n z Fearne count Rem that edit  Cru dig and edit ED Ves a Bulstr post b   light b Fitzherbert Gib Ch can Bac  Abr legacy and devise e b Bulstr lane Ves Mod vin Abr devise n b pl Bac Abr  legacy and devise e c   light b   a Bulst   b atk oh that word will be reject  or supply where it be absolute necessary to effectuate the general intention  of the testator ante I p b u d and the case there cite do d leech v Micklem  east ED coke report a er p where the devisor say d until such time as Hugh  Boraston shall accomplish his full age of twentyone year the law which favour  the performance of will accord to the intent of the devisor in construction  will make it until such time as Hugh Boraston shall have come to his full age  of twentyone year for when the devisor by apt word and term may have by good  advice make his will good and sufficient in law accord to his true intent  there although the devisor be hinder by sickness or for want of good advice  make his will in a disorder manner and in barbarous and unfit word the law in  such case will reduce his word which want order into good order and sentence  his unfit word to word sufficient in law accord to his intent which appear by  his own word as mich Elizabeth in the king bench it be adjudge between e  wellock and Hammond in trespass upon not guilty plead the case upon special  verdict be such a copyholder in fee of land descendible in borough English  have three son and one daughter devise his land to his old son f pay to his  daughter and to each of his other son S within two year after his death the  devisor make a surrender accord to the custom of the manor to the use of his  will p and die the coke report a old son be admit and do not pay the money  within two year the young son now plaintiff enter into the land and it be  adjudge that his entry be lawful and in that case two point be resolve first  although the yearly profit of the land for two year exceed the money to be pay  to his son and daughter yet the old son have a feesimple for the recompense  and consideration although it be not to the value of the land in case of a  will do make it in construction a feesimple Q and in the book of a e d Swinb  Bulstr t r p wms Ves Ves sheep touch hood e cro Elizabeth   a cro James Bulst  latch Bridgm Mod Rep Vaugh cart Swinb Leon roll Rep Bridgm Goldsb cro car Mod  will burr will Ves sen Ambl atk Fearne Fearne Cru of vin Abr condition king pl  Bac Abr condition h gavelkind a three remainder and reversion d e v f Swinb    light b b Bridgm Goldsb cro Elizabeth cro car cro James godb roll Rep Noy more  keb Mod Rep light Rep Jones hob dyer l pl b n c h Br witness cart vent Edward  estate Br Benl Cru dig vin Abr condition king pl Bac Abr condition h gavelkind  a three remainder and reversion e v p former copyhold not be within the  statute of will can only be devise by the medium of a surrender to the use of  the will Inst b two pale yellow ten post   a but now by the statute Geo c it  be enact that in all case where by the custom of a manor in England or Ireland  any copyhold tenant of such manor may by his or her will dispose of or appoint  his or her copyhold tenement the same have be surrender to such use as shall  be declare by such will every disposition or charge make or to be make by any  such will by any person who shall die after the pass of this Act of any such  copyhold tenement or of any right title or interest in or to the same shall be  as valid and effectual to all intent and purpose although no surrender shall  have be make to the use of the will of such person as the same will have be if  a surrender have be make to the use of such will ED a cro James   light b   a  Swinb cro Elizabeth h Br testament Q where a person devise land with a  direction that the devisee shall pay a gross sum out of it the devisee take a  estate in fee without other word upon the principle that a devise of land  shall in all case be intend for the benefit of the devisee now if a devisee be  in case of this kind oh take only a estate for life he may die before he  receive from the land the gross sum he have pay and coke report a er p estate  Br and h testament Elizabeth dyer b no mention be make of the value of the  land no more than in the case of bargain and sale of land in e estate yet the  feesimple of the use shall pass and it be resolve although in the case of a  will this word pay make a condition yet in that case the law will construe  this unapt word pay to a limitation for if it shall be a condition then it  will descend upon the old son and then it will be at his pleasure whether his  brother or sister shall be pay or not and therefore it be adjudge that in that  case the law will construe it for a c limitation of which the young son in  borough English may take advantage and to amount to as much as if he have make  the devise of the land to his old son till he shall make default of payment c  and so the doubt in Elizabeth dyer d move by manwood be well resolve t upon  which it be consequent be a loser by the devise Inst b I collier case post    more v price keb beef v Gower Mod Cowp so a devise charge with the payment of  debt and legacy ackland v ackland vern freak v lee show do v Richard t r do v  Holmes t r Goodtitle v madden east or with a annual payment for ever will  create a estate in fee Sharland v baker cro Elizabeth web v herring cro James  smith v Tindal salk Mod and a devise upon condition of pay a annual sum to  another person during his life will give the devisee au estate in feesimple  for the annuity may continue beyond the heir of the devisee and it be thereo  before necessary that he shall have a permanent fund lee v Stephens show reed  v Hatton Mod Baddeley v Leppingwell burr Wilmot Goodright v Allen Bl Rep  Goodright d baker v Stocker t r Andrews v Southouse id but where the payment  of a annual sum of money or a sum in gross or of debt c be make a charge on  the estate devise and not on the devisee himself in respect of such estate in  his hand it will not operate so as to give the devisee a estate in fee and  therefore if no word of limitation be add he will only take a estate for life  see collier case post   a Ansley v chapman cro car dickens v martial cro  Elizabeth Merton v Blackmore atk den d more v Mellor t r Bos and pull bro p c  Bos and pull do d small v Allen t r Goodtitle d Paddy v Maddern east do d  Stevens v Snelling east do d Bates v Clayton east do d Briscoe v clarke n r do  d Jackson v Ramsbotham maul and Sel bow v daw id so although a devise of land  charge with a annual payment to a three person for life create a estate in fee  it be otherwise where the annual payment be only to continue during the life  of the person to who the land be devise for in this case the devisee will take  only a estate for life agree v pool dyer ED b dyer pl cro James   light b p  see send for   b ante I p b and n oh ib but since the statute of use unless  the use be limit to the heir of the bargainee he can only have a estate for  life ib sand use ED S that in will precise word of condition be not so strict  require as in deed see send for Inst a two Com dig condition a devise n so it  be in the king case and in lease for year Inst two ED dyer pl Plowd a   a cart  cro James roll Rep cro Elizabeth Goldsb Noy Owen Plowd query Leon roll Mod  burr will Ves sen Ambl Fearn Fearne Cru dig vin Abr condition king pl devise e  c pl Com dig devise n Bac Abr condition h gavelkind a three remainder and  reversion d e v d dyer b pl Leon Mod Rep Mod burr Bac Abr gavelkind a three t  so where a person devise land to a who be his heir at law and other land to b  in fee and that if a molest b by suit or otherwise he shall lose what be  devise to he and it shall go to b the testator die a enter on the coke report  a er p conclude in the case at bar by the defendant counsel that the executor  have a good e term for twelve year which be not determine by the death of Hugh  Boraston which be grant by the whole court u and the general rule put by the  counsel of the other side be well agree that the remainder ought to commence  in possession when the f particular estate end as well in will as in grant  wonder and there can be a mean time between they but that do not concern the  case at bar for here inasmuch as the term do not end by the death of Hugh  Boraston the remainder do begin in possession at the end of the term and as to  the uncertainty it be say that the case at bar be no other in effect but that  a man devise his land to his executor for the payment of his debt until h his  son shall or shall have come to his land devise to b claim they it be hold  that this be a sufficient breach to give title to b and that the condition  impose on the heir shall not be take as a condition because if so by descend  on he who alone can enter for the breach of it it will in this case be  fruitless and defeat but that it shall operate as a limitation which defeat  the heir estate and cast the possession on b without entry anon Mod but this  construction be not always adopt in case where there be no express limitation  over to take effect upon the breach or nonperformance of the condition annex  to the precede estate see Gulliver v Ashby Fearn ex Dev Com dig devise n see  further as to the distinction between a condition and a conditional limitation  mary Portingtons case post   b a and the note there Inst b two and n l ib Bl  Com wood yearn count Rem ED e cro James hard f Mod Ch can Ch Rep vern east Ves  dow she touch I Fearne Cru dig press be and edit vin Abr devise n b pl  remainder king pl Com dig devise n Bac Abr lease remainder and reversion d u  so in sweet v Beal lane and Gosley v Guilford vern it be hold that the first  estate shall continue until the person name will have attain the particular  age but in Lomex v Holmeden p wms where a devise to his daughter until his son  shall attain the age of forty year hope by that time his son will have see his  folly sir I Jekyll take a distinction between the case cite and the principal  case he say that where such a estate or interest be create for a particular  purpose e g for a fund for payment of debt as in Borastons case and the  beneficiary and vie die before the expiration of the term in aid of the honest  intention of the party who may be suppose to have compute the time wherein the  profit of his estate will be sufficient for that end the court have construe  the devisor to have mean that the devisee or executor shall have the land for  so long time as that when the son if he have live will have arrive at the age  mention but that in all case where no such intention appear the estate or  interest will absolute determine by the death of the party under the age  specify and as the devisor reason for create the particular estate in that  case appear to be to guard his estate against the ill conduct and extravagance  of his son his honour accord rule that the particular estate cease on the son  die under forty will n ED f   b b a b b a   a Plowd b a b a raym and more Perk  raym palm Poph dougl wonder as to this rule for the vest of contingent  remainder see ante I p b and a ib ED g   b burr t r east maul and S taunt  marsh Ch can p wms Ves Ves vie dow Inst two e sheep touch Fearne Cru dig press  be vin Abr remainder king pl Com dig estate b Bac Abr legacy and devise e I go  h sty Dall more I p wms atk Ves coke report b er p full age of twentyone year  the remainder to his son in fee for although these be adverb of time when c  and then c yet they do not amount to make anything to precede the settle of  the remainder no more than in the common case I a man lease land for life or  year and after the decease of the lessee or the term end the remainder to  another yet it shall remain present for when these adverb refer to a thing  which must of necessity coke report b happen there they make no contingency  and it be certain that every man must die for to cause to stand be man semel  become void and every term will end for time greedy a thing and in the case at  bar certain it be that Hugh will or may have accomplish his age of twentyone  year which be in this case of a will all one in construction of law so that  these adverb then and when in our case be demonstration of the time when the  remainder to Hugh shall take effect in possession as in the say case of a  lease for life and lease for year and not when the remainder shall vest ten  quod to be concession per totan curian and judgement be give that the  plaintiff shall take nothing by his bill Egerton the queen solicitor Thomas  Forster and other be of counsel with the plaintiff and coke and other with the  defendant and note in the declaration it do not appear that the husband and  wife make the lease to the plaintiff by deed you and no exception be take to  it Fearne vin Abr devise n b pl estate a b pl Com dig devise n I   b cro James  palm Eq can Abr pl bar I t r t r p wms atk Ves Fearne hard will Cru dig Bac  Abr remainder and reversion e v X this doctrine have be confirm by subsequent  decision see holcroft case more web v herring cro James fortescue v abbot  pollex t Jones Mansfield v dugard ab Eq do d morris v Underdown will Goodtitle  v Whitby burr do v lea t r do d hunt v more east Randoll and other v do dow  Goodtitle d Vincent v white east so in Bromfield v crowder I n r which be a  devise in remainder of all the testator estate to I d Bromfield if the say I d  b shall live to attain the age of but in case I d ib die under and c Bromfield  shall survive he then over it be hold that I d Bromfield take a vest estate  determinable upon the contingency of his die under and in do d hunt v more  east which be a immediate devise of the testator real estate in fee to I more  when he attain the age of but in case be die before then to his brother c it  be hold that I more take a vest estate so that ib appear whether the devise be  in remainder or a immediate devise there be no substantial distinction per  Lord Ellenborough Ch I in do d rook v Newell maul and Selwyn so under a devise  to I S for life and on his decease to and among his child equal at the age of  and their heir as tenant in common but if only one child shall live to attain  such age then to such child and his or her heir at his or her age of and in  case I S shall die without issue or such issue shall die before then over the  child take a vest remainder SC in do v lee above a distinction be make between  the word when and if and it be hold that the former be not conditional but  denote the time when the remainder be to take effect in possession but  otherwise of the word if which be prima fancy a word of condition Inst two and  n c ib but this distinction be overrule by the above cite case Bromfield v  crowder and see Edward v Hammond lev show but a devise to a person when he  shall marry be contingent sir t raym side as to the distinction between legacy  Payable out of personal estate and devise of land or bequest of legacy  Chargeable on land in the former case the adverb when or at amount to a  condition precedent but not in the latter see Inst two king Fonbl Tr Eq that  edit n ED you that in plead a demise by husband and wife the lessee need not  allege that it be by deed Wiscotts case ante   b ED coke report a er p