Andrews andrews on the demise OF jones against fulham testator bequeathe  leaseholds to his wife for life and after her death to such child as she be  now suppose to be pregnant with and to the heir of such child for ever provide  that if such child shall die before the age of twentyone have no issue of its  body then the reversion to his wife and two sister and their heir respective  in three the testator wife never be enseint this devise to the wife and sister  be good and take effect notwithstanding v Bradford v Foley Doug Statham bell  Cowp Avelin ware I Ves Fonereau Fonereau atk SC stram Eq ab Fearne count Rem  upon a trial in ejectment which be before Lord Hardwicke when he be chief  justice of this court a case be order to be state for the opinion of the court  and it be brief this Robert wight be possess of certain land in fee and also  of several house for the remainder of a term of ninetyone year by his last  will date December devise to his wife Catharine all his land whether freehold  or leasehold for her life and after her death to such child as my say wife be  now suppose to be pregnant with and to the heir of such child for ever provide  that if such child shall die before the age of twentyone have no issue of its  body then the reversion of one three of the say land c shall go to my say wife  and her heir for ever and then be devise the two other three of the premise in  like manner to each of his two sister whether and Elizabeth and make his wife  executrix the testator soon afterward die but after his death Catharine his  wife have no miscarriage or child before her marriage with one Jones which be  several year after the testator decease in December Catharine prove the will  and assent to the bequest of the house and Andrews er p enjoy the same till  her death which happen and June administration of the good of Robert the  testator unadministered by Catharine cum will fastening be commit to Edward  Jones her son who be the lessor of the plaintiff and this ejectment be bring  against the daughter of whether one of the sister of the testator for one  three of the leasehold premise and the question be whether the same belong to  the lessor as administrator de good non of Robert the testator or be well  bequeathe to whether the sister Andrews the case be argue Michaelmas term last  by Mr Bootle for the lessor of he plaintiff and sergeant Eyre for the  defendant and in Hilary term last by sergeant wright for the lessor and  solicitor general strange for the defendant on the side of the lessor of the  plaintiff it be argue that in this case the question proper to be consider be  these two whether the devise after the death of Catharine to such child as she  be suppose to be pregnant with be a good devise and suppose this to be good  whether the further disposition under the proviso of the reversion of the  premise by three to the testator wife and sister and their heir be good or not  as to the first point it be certain that a present devise to a infant in skin  matris be void but a future devise to such a one be good upon this distinction  see fearne count Rem c and the case there refer to and such a devise be  contingent and the law will wait for the contingency as for a thing that will  natural happen the present devise therefore be good and it be to be consider  he the nature of a remainder to the first and other son unborn in the common  course of disposition and settlement not as to a person actual in be but as to  one who will arise accord to the common course of nature a devise to a monk c  be material different because he be mere a imaginary person and he be not  capable of take either in present time or in going to be because his  deraignment depend not on his own will more roll d I roll r SC Bulst SC cro  James raym it will probable be object that this devise be void because it be a  devise to one who never have a be whereas a infant in skin be in be and may be  vouch accord to h and it must be admit that a child in ventre sa mere may be  vouch but that be from the necessity of the thing and lie be vouch as one not  as actual exist but as one that may be in be for he can be vouch only in this  manner if God give he birth e   light a but before his birth he be regard as a  nonentity more hob   light b b Andrews b I   cro car salk SC lev SC Carth to  the other point whether the disposition over be good or not it be urge that it  can take effect as a executory devise because it depend on too many and too  remote contingency the contingency here be no less than four in number  videlicet the death of the wife the birth of the child the child death before  twentyone and last the child die without issue whereas to make a good  executory devise there ought to be but one contingency I roll Mod beside if  this be a good executory devise a perpetuity may have be hereby create for if  a child have be bear and have die within age leave issue this issue may enjoy  the estate for several generation and yet if at last there be a failure of  issue it fall within the proviso of die without issue f n b palm side it be  also necessary that the contingency shall happen in order to make a executory  devise effectual which here they do not this devise can take effect as a  conditional limitation but it be a contingent one and the contingency be in  the nature of so many condition precedent this construction be most agreeable  to the devise to the child which carry the testator whole interest both in the  freehold and leasehold estate and the subsequent word be collateral to and  distinct from the first devise it be also observable that under the proviso  nothing be give over by way of remainder but the testator give the reversion  of the premise so that he suppose the possibility of a reverter to he and  beside the word provide be a proper word of condition and more especial the  word if which be always conditional I Mod it be therefore necessary before  this limitation can be effectual that the several contingency shall happen but  as they have not the limitation be void pell and brown cro James SC palm cro  car Greswick and warren a post Mod a east W in king b in ejectment a special  verdict be find whereby it appear that a leasehold estate be devise to a  infant en ventre sa mere if it shall be a son and if Andrews it shall be a son  and he shall die during his minority then the premise be devise to a grandson  of the testator the child be bear but happen to be a daughter and it be  Andrews er p adjudge that the executor and not the grandson be entitle to the  estate Jones and brook in chancery before Lord chancellor Talbot mich a man by  his will give to his wife all his brass pewter and household implement for and  during the time she shall continue a widow and if she shall marry again then  to his heir and in that case there be two question whether this bequest to the  wife who he make executrix shall exclude her from the surplus of the personal  estate whether the limitation over shall take place the wife be dead without  have be marry after the testator decease and it be determine that the good be  give over on a contingency this be no indication of the testator intent to  exclude her from the residuum and consequent she be entitle to it that the  contingency never happen the bequest over can not take effect on the other  side it be argue that the devise to the wife and sister be good whether the  first devise be consider either as original void or as good in its creation  and since spend but it be insist that this devise be absolute void because it  be a devise to one who never be in be for here it must be take that the wife  be not actual with child so a devise to a monk who be not more a imaginary  person than a child unbegotten be void roll c pl S p Perk S the same law of a  devise to a alien side so if there be a devise to one who be in a thing  naturan and he die before the testator it be all one as no devise Plowd cro  Elizabeth S P Hopkins and Hopkins b Cas t Talbot b Yatele in Chalicery before  Lord Talbot object that a infant en ventre sa mere be not regard in law answer  this be not true but on the contrary the law have so great a regard to  ensienties that it have break through its own rule to provide for they however  it do not follow Andrews from hence that the law will show any indulgence to  child unbegotten as therefore the first devise be void no circumstance attend  it be to be take notice of by way of obstruct the subsequent devise Plowd   a  so that in effect the leasehold premise be here devise to the wife for life  and then as to one three to her executor and administrator for the remainder  of the term and as to the other two three to the sister for the residue of the  term but it be doubtful whether the first devisee will outlive the term or not  the devise over will remain executory until such devisee die under this  question be also cite dyer b lev SC raym side it be argue that the limitation  over be good by way of executory devise for the four contingency mention on  the other side be proper reducible to two and they must all happen in the  space of twentyone year at further which have always be think a reasonable  time for these devise to take place in palm Massenburg and ash I vern SC Ch  Rep Scatterwood and edge salk vern in point and in Lloyd and Carew c shower p  c Prec Charles c in the house of lord a year beyond a life be allow executory  devise limit to vest within twentyone year after a life in be be good vide  fearne count Rem do v Fonereau Doug as to the proviso this be not to be take  as a condition precedent but as part of the devise for in will the grammatical  construction of word be not so much to be regard as the intent of the testator  Plowd and here it be plain the testator intend that the sister shall take and  this intent ought to take place as the rule of law will not be infringe  thereby for the word provide and if have no determinate sense and be sometime  construe as word of limitation and that in the present case the word ought to  be construe in this manner appear by the case in more   light b side raym lev  salk and particular by Jones and Westcomb be can Eq which be a case upon this  very will and on the clause now in question and be therefore direct in point  as to Greswick and warren cite contra Mr solicitor say that no roll thereof be  to be Andrews find and it appear by the report of that case in fol to have be  adjudge without argument and in Jones and brook the devise be to a person in  be and a particular act be express require to be do before the devise over can  take place and therefore it differ from this case after have take the case  into consideration lee c j this term deliver the resolution of the court to  the follow effect the present question be whether the lessor of the plaintiff  as administrator de good non of the testator be entitle to the leasehold  estate as a part undisposed of by the will or whether it shall go in three to  Catharine the wife and the two sister now to determine this it be necessary to  consider the several devise contain in the will and in what manner they  operate the first devise be to Catharine Andrews er p the wife for life which  plain be a good devise and it be assent to by the executrix and the estate  enjoy accord the next devise be to such child as the wife be suppose to be  ensient with now though it be former much doubt whether a devise to a infant  en ventre sa mere be good or not yet it be now a settle point that such a  devise be good notwithstanding there be a case in carter Rep to the contrary  and so it appear by God Orph leg and I salk it be next to be consider what  interest be devise to the infant after the wife death the testator devise his  estate which include his leasehold to he and his heir and though this be a  improper manner with respect to the leasehold estate yet it certain carry the  whole interest therein to the infant but then by the word of the proviso his  interest be make determinable upon his die without issue before twentyone now  though the word provide that if be proper word of condition yet it be usual  for word of condition to be take as word of limitation or determination where  a remainder be give over and so be vent and the Andrews opinion of Lord holt  in page and Hayward salk I have see the resolution of Lord holt in that case  under his own hand which be much full than it be set out in salk wherein after  say that the word upon condition do not make the estate conditional but be  word of limitation he give several instance thereof take this proviso  therefore to be a limitation the contingency there mention must either happen  or become impossible to happen before the devise can take effect now these  fact be the death of the wife and the death of the child without issue before  twentyone the former have happen but the other not nor can it possible happen  because the woman be dead without have have any child the question then be  whether notwithstanding the devise over to Catharine and the sister may not  take place to this it be object that it can because it be to operate at to in  great a distance of time but this objection be full answer by the case of  Hassenburgh and ash I vern and of Marlin and long vern as to the other point  whether the devise over be good and can take place as there have be no child  we be all of opinion that as the devise to the child become null the proviso  fall too and be whole to be throw out of the case in Scallerwood and edge d I  Eq ab salk Mod d which I have from a manuscript report it be object by  sergeant Lutwyche upon the argument thereof in the common plea that though the  first devise to the issue of a shall be consider as void yet the devise to the  first son of b can not take place because it depend on a precedent condition  videlicet a refusal by the issue of a to take the surname of edge on their die  without issue male and this be impossible to happen because a be dead without  issue and the court agree that take those fact by way of condition precedent  what be say be right but they hold that they be not to be consider as a  condition but as part of the devise which be absolute void and the court say  that if there be a devise to a monk with a remainder ever the remainder shall  take effect immediate but if land be give to one after the death of a monk  Andrews the monk death must first happen but Mr justice blencowe differ from  the rest of the court upon the principal point that be in the case of a  freehold and inheritance where a estatetail be devise upon which a remainder  may be limit but if the devise have be to a in fee it will have be a different  consideration whether a future devise to take place on the happen of precede  contingency can be effectual unless the fact actual happen because in this  case the limitation can be consider as a remainder over but as a executory  devise I shall however give no opinion upon this point because the present  case be that of a term and therefore the devise must here operate in the  nature of a limitation for there can proper be a limitation of a term and  consider as such it be a good devise vern S c Abr can Eq it may be object that  if the law be such as be above mention in case where the first devise be  original void yet that it be different where it be original good and afterward  become void but I think that in both case the law be the same as the law allow  of devise to infant en ventre so it will wait until their birth but if none be  bear it be all one as if there be no devise Perk S this be the present case  and as the devise be to be consider as a limitation the estate must go to the  next person who be capable of take as appear by more in that case it be  observable that the devise to the four son be a good limitation of a  contingent remainder in tailmale which must have take effect if the son have  be bear but as there be none the limitation to he be consider Andrews er p as  void and there too the word be conditional upon the whole therefore take this  devise to the infant to be void because there be no child and the proviso be  to be consider as part of the devise to the child the devise over which be in  the nature of a limitation of a precedent interest devise to the infant be  good and with this agree the opinion of Lord chancellor Harcourt in Westcomb  and Jones e I Eq ab pale yellow Eq Rep Prec Charles e which be a case upon  this very will and upon the same point and in relation to the same estate  Andrews which be now in question for by the decree he declare that the devise  to Catharine and the sister be good though the wife be not enseint the only  case which seem contrary to the present opinion of the court be that of  Greswick and warren f Mod by name of Grascot warren SC comb by name of  estcourt wary f east W in this court I have a manuscript report of the case  which be this a person possess of a term of year devise it to a infant en  ventre sa mere if it shall be a son and if it shall be a son and he shall die  in his minority then to testator grandson the child be afterward bear and it  prove to be a daughter and it be adjudge without argument that the executor  shall have the term and not the grandson because he be to have it on a  precedent contingency which be necessary first to happen but that be different  from the present case for there the be of a son be make one of the condition  upon which the devise over be to take place and the law be certain so in the  case of a condition precedent here on the contrary the devise to the child be  absolute and unconditional and the word of condition be comprehend under a  subsequent proviso the postea be therefore order to be deliver to the  defendant and the plaintiff to pay the cost of a nonsuit there have be four  determination upon the point on this same will be it by ld Harcourt in Jones  Westcomb Prec Charles pale yellow Eq Rep Eq ab where the point arise in  respect to the leasehold estate and his lordship hold the devise over good dly  in this case of Andrews v Fulham a like determination dly in roe v wicket c b  h upon a ejectment for the freehold the court hold that the devise over never  take effect this case be cite will stram Ves burr the reader will find a  report of it in the appendix to these report thly in Gulliver wicket m will  the court of king bench upon the freehold estate hold the devise over good