case scattergood against edge comment on do v Brabant bro c c refer to crozier  v crozier dr war discuss barn v Jennings l r Eq if a devise be make to trustee  for year and then to the issue male of a he have no issue at the time of the  devise and die afterward without issue during the term and if a shall die  without issue male then to the issue male of b he have issue a son at the time  of the devise and expiration of the term the devise to the issue of a be void  and the issue of b shall have the estate a S c Eq Abr S c salk the case find  by special verdict be Ralph edge be seize in fee of the manor of in Norfolk do  by will bear date in the thirtysixth year of Charles the second devise the  manor to sergeant at law for eleven year upon several trust afterward in the  will be these word item I give and bequeathe my say manor of to the first  issue male of George jakes and the heir male of his body and for default of  such heir male of his body to the second issue male of George jakes and the  heir male of his body and for default c to the three issue male c and so to  the four provide they shall respective take upon themselves a see Frammingham  v broad will atk right v Hammond stram Barker v Surtees stram Bosworth v  Edward vezey fern c r b see the statute Geo c S also on this subject S c Carth  Wyndham v chetwynd burr and holdfast on the demise of Anstey v dowsing stram  Buagh v Holloway Peer wms price v Lloyd vezey and Kindson v Kearsey burn e l a  case t t will burr term Rep modern report er p the surname of edge and if they  shall not take upon they the surname of edge or shall die without issue male  as above then to the first issue of g convoy who at the time of the devise  have issue a son with limitation as above to the second three and four son of  George convoy and same proviso as above and if they shall not assume the name  c then to Paul edge for life and after to the heir male of his body remainder  to the right heir of the devisor George jakes have no issue at the time of the  devise and die without issue the lease for year expire the issue of George  convoy who be in be at the time of the devise enter and take upon he the name  of edge upon who the plaintiff the heir at law of the devisor enter who edge  oust and upon that this ejectment be bring this case be argue seriatim by the  bench blencowe puisne judge argue for the plaintiff Powell and Neville justice  and Treby chief justice for the defendant modern report blencowe justice it be  a rule in the construction of will to support the intent of the testator as  far as it can be make consonant with the rule of law but here it be plain that  it can be maintain in all respect and therefore there remain only to consider  what clause in the will may be make good agreeable to law and what can and so  retain the one and reject the other and first it be very clear that the devise  for eleven year be good because it be to commence immediate after the devisor  death and the last clause of devise to Paul edge it be not in question but the  whole question be which of the two devise videlicet that to the first issue of  George jakes or that to the first issue of George convoy shall stand for they  be incompatible and can both subsist if the devise have be to sergeant for  eleven year with remainder to the first issue of convoy be then in be it have  be unquestionable a good remainder so if the devise to the first issue of  George jakes be void the devise to the issue of George convoy be good so we  must consider this case as if George jakes have issue now on one side of the  court contest with the first issue of convoy about this estate upon this will  it be a rule that in all devise of this nature we consider what may or may  have fall out and not what do fall out a devise of a term to a for life and  after to b for life and to c for life be good if they be all in be at the time  of the devise and if it be make to the heir of one of they all subsequent  trust or limitation be void because that will tend to a perpetuity the like  rule of executory devise of land but if the contingency be necessary to take  effect in reasonable time as upon two or three life it will be good contrary  if it be to continue for many generation executory devise be not assignable or  barrable the second devise here to the issue of George convoy can possible be  good for I hold the first be good and consequent by rule of executory devise  and contingent trust of term the second can be good see the case of pell v  brown a indeed if the first devise by intent of the lessor be to pass a  present interest it will be void because there be none in be to take it and  then the second will be good it appear that at the time of the devise George  jakes have no issue but George convoy have one and we ought to intend the  devisor know this for two reason first because it be improbable one will  devise land to one that he do not know modern report whether he be in be or  not and second if he be in be he will devise the land to he by his name and  not by description of first issue male which be the usual term when the party  be not in be and therefore I conceive he intend it as a executory devise and  therefore good the case of a a devise to such of the daughter of I S as shall  marry a Norton within fifteen year so a devise to a son unborn by name of  first issue and the devise of the trust of a term to the first son of a by  limitation be adjudge good roll ab which authority be cite by holt chief  justice in the duke of Norfolk case b and a Eq Abr cro James Bridgm palmer  roll Rep godb a raym b Eq Abr chancery case pollexfen chancery report modern  report er p by Lord Nottingham in his argument of the case of cotton v heath c  nor do I find that this authority be ever question nor be there any difference  between it and our case where there be a intervene limitation that will make a  perpetuity it shall be void and the subsequent may be good and for this the  case of cotton v heath be a full authority in blandford case d the limitation  be to a person not in be for three year after there be a child bear who by the  judgement of the court have title to the estate and trust of term and devise  ought to receive the same construction nor be the possibility in our case a  remote one for it must be in the life of George jakes or at most within forty  week after which I do not look upon as a distinct space from his life but  rather a appendix of it and the possibility in the case of Bates v Amerst e be  more remote and if this be a good devise to the issue of George jakes by the  first constitution thereof it can be vitiate by matter ex post facto Powell  justice agree with the rule put by blencowe justice concern the construction  of will and that neither of these devise can take by way of remainder for want  of a particular estate to support they so the first question will be whether  the remainder to George jakes issue be good second if not whether that to the  issue of convoy be so and three if both be void whether the plaintiff have  title as heir at law and he likewise agree with Blencowes notion that this  case ought to be consider as if the contest be now between the issue of jakes  and convoy upon this will and he say it seem plain that the devisor intend  that the issue of jakes shall be prefer but he conceive such intent be  inconsistent with the rule of law for it can not be but by way of executory  devise and that will not do as this case stand modern report in inheritance  there may be two sort of executory devise first when a devisor part with the  whole fee out of he and afterward qualify the estate of the devisee and limit  contingent remainder over and this be repugnant to the rule of commonlaw to  have one fee depend upon another a by the act of the party one fee can depend  upon another though it may by act in law as it be often see since the statute  of Henry c for forfeiture of EstatesTail and since fine be become so usual and  though Vaughan in the case of gardener v Sheldner b contradict this opinion of  my Lord coke and be angry because he cite no authority for it yet he himself  show no authority to the contrary and it be no wonder coke show no authority  for it be to prove a thing can not be that never be do in Henry b dyer it be  hold that it can be even in a will and the first of these devise that we find  be in the case of wellock v Hammond cite in Borastons case c and be first  countenance in favour of provision for young child and of land devisable by  custom vide cro Elizabeth and more in the case of pell v brown Doderidge  oppose the opinion of the other three judge as to the point of its not be bar  by recovery and the opinion in roll Rep and style go down with the judge like  chap hay but since it have be so often pass over it must not be question now  because the estate of many depend upon it but this be not like our case the  second sort be when the devisor do not part with the whole out of himself but  give future estate to rise upon contingency and leaves the inheritance to  descend in the mean time and this be not disagreable to the commonlaw as in  the case of a devise that the executor shall sell land where the land descend  in the mean time and when the executor do sell it the vendee be in from the  first testator and in plead must claim under he and by the sell the freehold  and inheritance be by act in law divest out of the heir or lord by escheat  even out of the king if he be lord by escheat c Eq Abr chancery case pollexfen  d the case of Blandford v Blandford more cro James Bulst roll Rep godb e Eq  Abr raym a   light b Eq Abr Vaugh keb Freem c Borastons case be in   and  abridge in Eq Abr c and the case of wellock v Hammond be report in cro  Elizabeth and Leon modern report er p without petition or to point out de law  Edward there be no other case of this nature until of late the first be hind v  lion d the next be the case in cro Elizabeth roll ab and bear case e and in  the case of welldone v elpington f they take a difference between a  inheritance and a term but it be at last modern report resolve in man case g  that there be no difference which point prevail against the opinion of a great  lawyer and rule of commonlaw now judge ought to take great care that they do  not come to be make perpetuity for they can be bar by a common recovery c  because they have no dependency on the particular estate as be adjudge in the  case of pell v brown a and therefore to extend they beyond a common  possibility will be dangerous and there be two sort of perpetuity a absolute  one and a qualify one and estatestail from the time of the statute de gift  until common recovery be find out be look upon as perpetuity and suppose this  devise to the first issue of George jakes be good it be to he and heir and if  that fail another contingent limit over which can not be bar and by my consent  these sort of limitation shall never be carry beyond a life nor do I find any  authority to the contrary but that of Vaughan before cite for which he quote  no authority and as for leo I do doubt it be not law whether the devise to the  first issue of George jakes be good two thing occur to be consider first  whether the devise to the first issue of one who have no issue at that time be  good second whether a lease for eleven year precedent to such a devise be good  reason of a diversity between the case and I hold that if there be no  precedent lease a devise to the first issue of one who at that time have none  will be void b and I find no authority to the contrary the case most like it  seem to be a devise to Fitzherbert in ventre sa mere for he be not in be at  the time of the devise and yet that case be not to be compare to we admit it  to be law which have be never yet settle but there have be variety of opinion  on it c the first I find be Henry pl and there babington think it good and  Paston contra it be in brook title devise with a qure in   without any  decisive opinion and in I roll ab with a doubt in dyer devise to a infant in  ventre sa mere if it be a son void but I hold that not to be law because it be  executory and contingent but a strong it will be void by way of present  interest it be again mention in dyer but no opinion in more and no opinion and  in adjudge good but in hold void in cro Elizabeth if there be a new  publication of a will after son bear good by not in Bulst not good in roll Rep  void and in light Rep void and thus it remain until king Charles the second  time in the case of snow v cutler d the court be divide modern report but in  the case of nurse v Yarworth e chancellor finch hold it good and my Lord  Bridgeman hold the same with great respect to former opinion and I hold it to  be good because the rule be that when by the word of the devisor it apparent  be design for a future interest or devise it be good and when the devise be to  Fitzherbert in ventre sa mere without more say it be plain be mean a future  devise because by the very word he take notice of his not be in be and that be  tantamount as if he have devise to another for a time or let it descend to the  heir for a time but in a devise to the first son of I S who have no son at  that time none can tell by the word of the devisor whether he mean it shall  take present or future and therefore it be no more than a present devise to a  person not in be a it be object d Leon Leon e raym f Plowden g     Ent a Eq  Abr cro James bridge palm roll Rep godb b see case t t will burr term Rep c  see freeman and Fearns contingent remainder d Eq Abr c I lev side raym keb keb  e Mod S c Finchs chancery report a see tailor v Biddle Mod Stephens v Stephens  case t t Goodwright v wright stram Andrews v Fulhome stram Frogmorton v  holiday burr Fearne on c r modern report er p that this be not like a devise  at commonlaw and the estate may descend in the mean time but I answer non to  be fluid by the word of the devise that the devisor intend it shall descend or  not and if it shall be good to the first son of I S the next thing will be to  make a devise to the right heir of I S good nor be the one more remote than  the other for by the death of I S he shall have a heir if ever and it may be  he may not have a son until after his death but in all these case it will be  good by way of a future devise as that in case I S shall have a son that be  shall have it that will I say be good if he have a son in his lifetime but not  to a posthumous son b but what seem most difficult in this case be whether  there be a term of eleven year to expire it do not come to the issue of George  jakes by way of remainder after the end of eleven year and whether in that  case it shall not be intend a executory devise for a remainder to Fitzherbert  in ventre sa mere upon a term of year be always hold to be a executory devise  and good even by those who do oppose a devise to Fitzherbert in ventre sa mere  be good c I for a long time have be of opinion that this be after the term for  eleven year will be a good executory devise to the issue of George jakes but  upon great consideration I hold it nought now nor do I go upon the word of the  statute of will in which there be no such word as person or person as in the  statute of use and as my Lord finch lead by the vulgar error seem to ground  his opinion if right report in the case of snow v cutler d it be true a use  limit to Fitzherbert in ventre sa mere be void because no person accord to the  statute of use but the statute of will make no mention of person and that make  the difference e modern report the authority against I be the case of nurse v  Yarworth a which be a devise of a term for year remainder to the heir of the  body of the devisee and this be hold good by chancellor Nottingham because of  the term for year in Mod Rep a devise for twentyone year remainder to the  right heir of I S be hold good for the same reason in the eighteenth year of  queen Elizabeth in justice Rhodes write report a devise for year with  remainder to the right heir of I S be hold good if I S die during the year and  the case of cotton v heath b be hold good in respect of a precedent term but  the word of the will in our case be considerable I give and bequeathe the  manor of to sergeant in trust for eleven year and then follow these word item  I give and bequeathe my say manor to the first issue of George jakes by which  word it seem plain be mean to pass the freehold and inheritance immediate to  the issue of George jakes and not that it shall not go to he till after the  eleven year and so descend to the heir at law in the mean time for the word be  in prsenti and look like a immediate devise of the freehold and to the opinion  of finch in chancery I oppose the opinion of the court of king bench late in  the case of Goodright v Cornish c and the case of cotton v heath be a  abridgment and judge otherwise in sir h gore case d since Hilary term in the  thirtythird and thirtyfourth year of Charles the second it be a immediate  remainder by devise to heir male of body and hold void and if a lease be  devise to a for life remainder to the first issue male of I S who then have  none the rernainder will be void for to make man case e law they be force to  make the second devise first and thereupon it be a present devise to a person  in be and so good which will be otherwise if a devisee of a remainder be riot  in be and the second chief justice hale and Bridgman hold that a b see will c  c see Freem Fearne c r d Eq Abr lev side raym keb keb e a infant in ventre sa  mere be now consider general speak as bear for all purpose for his own benefit  Lancashire v Lancashire term Rep do on demise of clarke v clerk and other h Bl  Rep and the case there cite a Mod finch Chan Rep b Eq Abr Chan case Pollexf c  ante Mod salk holt comb skin ld ray d vent e   modern report er p devise of a  term trust by present word to one not in be will not be good and the case of  cotton v heath be in chancery and what a chancellor decree in case of a trust  of a term be no rule for we to walk by and the case of snow v cutler be a  devise to wife for life remainder to the heir of I S and all the court hold  that it will be void as to remainder if there have be no estate for life but  whether that will alter it they be divide our case can be think a future  devise because the word be de prsenti I give and bequeathe and though it  appear by the will the possession be future yet the freehold modern report be  present see wild case f devise to a man and his child if there be no child in  be they can take as soon as they be bear because the word be present and they  not in be and they can take by way of remainder because the word be present  the case of Skelton v wright devise to one et book procreate et procreand be  adjudge a future devise because that appear to be the intention of the feoff  by the word to bring forth if the devise in our case be to sergeant for eleven  year the remainder to the first issue of George jakes I will perhaps construe  it as a executory devise and make it good if George jakes shall have issue  during the eleven year otherwise not and that be accord to the case of Bates v  Amerst b for as a marriage of one of the daughter with a Norton will not be  good after the fifteen year so here a issue bear after the eleven year shall  not take and if the devise have be to the first issue to be beget of George  jakes then I will give it to any issue bear during the life f George jakes but  will not extend it to a posthumous son but it be object from the bar by  sergeant Lutwich that though this devise be void as to the issue of George  jakes yet it can not be good to the son of George convoy because it depend on  a precedent condition videlicet if issue of George jakes shall refuse to  assume the name of edge or die without issue which be impossible George jakes  die without issue vide Plowd Inst though the condition there become impossible  by act of the party himself and this notion be agree to by the whole court but  here it be adjudge not to be a precedent condition but part of a limitation of  a devise of a particular estate which be void but if it be collateral by  itself it will be a precedent condition vide Henry pl f where on a devise to a  monk with remainder over he in remainder shall take immediate because a devise  to a monk be void but if it be that after the death of the monk it shall  remain it shall not take till after the death of the monk vide Lord paget case  in Edward a seize in fee make a gift in tail and if the donee die without  issue it shall revert to the donor for life remainder over in fee and it be  adjudge that the reversion to himself for life be void and by consequence it  shall remain over immediate and in our case the devise be void whatever depend  on it will be void and upon the whole matter this be but a modern report  devise for eleven year remainder to the issue of George convoy then in be  Neville justice argue brief and agree with Powell justice in the main touch  upon the two great rule in construction of will first to maintain the intent  of the devisor where it plain appear in the will and consist with the rule of  law second that if it be a present devise there be one in be capable of take  at the death of the devisor and that this be plain a present devise to the  issue of George jakes and therefore void there be none in be and then the  second clause to the issue of George convoy be good accord to two Henry a  devise to a monk remainder over he in remainder shall take present though  there be a possibility the monk shall be deraigned full v full a and tailor v  Bidolph b a devise to sister and heir until son shall come to twentyone year  and then to son and his heir it be resolve that the fee be immediate in the  son and as to proviso it be sometime a condition sometime a limitation and  sometime a covenant Inst cro it be here a limitation and he conclude for the  defendant f   S c more S c Eq Abr b Eq Abr raym a e Abr cro Elizabeth more  Godolphin b Mod Eq Abr Eq Abr Freem modern report er p Treby chief justice  these and such like estate be against the ancient commonlaw and therefore it  may be say of they as my Lord coke say of the statute de gift that since they  have creep into the law they have occasion great confusion and disorder and he  say that here the issue of George jakes can not take present because not in be  nor future by way of executory devise because the devise be in word de prsenti  and therefore he can not take at all and then the second devise be good and be  lie no stress upon the lease of eleven year for he say a son may be bear  within they and he may not but be say that if the devise have be that two year  after the eleven year the issue of George jakes shall take it will be a plain  executory devise for the word then will plain show it design future but where  by the word of the will it appear a present devise be intend it ought not to  be rather construe a executory one than the will shall be frustrate and for  that devise to right heir of I S who be in full life shall not be make good  ancient book general run that a devise to Fitzherbert in ventre sa mere be  void but I think we must allow such a devise to be good now c for otherwise  many will will be destroy which will be inconvenient and sure there be no  difference between say I give my land to the child my wife go with and to the  child my wife shall have modern report as to executory devise they be utter  unknown to the commonlaw have obtain with much ado and now that they have  prevail ought to be look upon with much jealousy lest they run to a perpetuity  and a perpetuity be such a condition of a fee that the feoff shall not be able  to give absolute to another it be a great policy of the commonlaw that  alienation shall be encourage for it be the great preserver and promoter of  industry trade arm and study and this be visible from the make of the statute  de gift until common recovery be find out and these executory devise have not  be long countenance when the judge repent they and if it be to be do again it  will never prevail and therefore there be bind set to they videlicet a life or  life in be and further they shall never go by my consent at law let chancery  do as they please in pop the court will not prescribe they any set number of  year but that they shall not exceed a life or life in be a but I will not say  but a executory devise may well be to the right heir of I S in cro James pal  Jones a limitation of a lease to a for life and if she die without issue live  at the time of her death then to b adjudge void and croak say man case b will  not hold now roll ab side if Mangings case be to be judge now it will be hard  to maintain it ray set bind to they now be like a correction of the judge that  give they countenance first and so say hale keb a contingency ought not to  exceed one or two life for that be a reasonable extent but here it be to a son  which perhaps will not be bear in forty or one hundred year in carter a devise  to a infant in ventre sa mere be good but void to a son and that as far as the  book be a authority be in point in Noy a devise to a for life remainder to  first son devisee die leave wife enseint the inheritance descend and vest in  the heir of the devisor and divest of estate be not favour in law and in  executory devise the contingency must happen during particular estate or never  the case of Coston v heath c be a trust in chancery where they carry those  thing far than at law he hold the proviso to be a limitation and no condition  and therefore the first devise be void the second shall stand d as if a grant  be to two one whereof be capable and the other not be that be capable shall  take all so where they be to take at diverse time as a grant to a father and  son c see Goodright v wright stram chapman v Brisset case t t do v Carleton  will Harris v barn burr a see fort Rep Bl Com brown case Chan b   c Eq Abr  Chan case Pollexf d see Napier v sander hut Avelin v ware vezey lethieullier v  Tracy atk Statham v bell Cowp Bradford v Foley dougl Horton v Whitaker I term  Rep do v Brabant brown Chan Rep term Rep modern report er p not in be the  father shall take all   estate for life devise modern report to one incapable  remainder over be good leo well a lease for life to a person not in be and a  lease to another to commence from determination of the first term commence  present holcroft case e be in point judgement be give for the defendant f  easter term the eleven of William the three in the king bench sir John holt  Knt chief justice sir Thomas Rokeby Knt sir John Turton Knt sir Henry gold Knt  justice sir Thomas Trevor Knt attorneygeneral John hawles Esq solicitor  general