case tailor on the demise of smith against BIDDALL comment on and not apply  Lord dungannon v smith Cl f if a devise be make to a the testator sister and  heir for so long time and until her son b attain the age of twentyone year and  after he shall have attain the say age then to b in fee and if he die before  his age of twentyone year then to the heir of the body of c the father of b  and their heir for ever a take a estate for year and the remainder in fee be  immediate vest in b and if he die before he attain twentyone year and in the  lifetime of c a only sister shall take the estate either as heir to her  brother or as heir of the body of her father S C Eq Abr S C Eq Abr S C Freem  special verdict in ejectment the case be thus Richard be be seize in fee of  the land in question and have a sister name Elizabeth former marry to one  smith by who she have issue Augustine smith now lessor of the plaintiff and  she afterward marry one Robert wharton by who she have issue a son call  Benjamin and a daughter call mary the now defendant Richard be devise these  land to Elizabeth his sister and heir for so lomor time and until her son  Benjamin wharton shall attain his full age of twentyone year and after he  shall have attain his say age then to the say Benjamin and his heir for ever  and if he die before his apre of twentyone year then to the heir of the body  of Robert wharton and to their heir for ever as they shall attain their  respective age of twentyone year Richard the testator die Benjamin die before  be come to the age of twentyone year live Robert wharton his father afterward  Robert die the question be whether the lessor of the plaintiff as heir to  Elizabeth or mary either as heir to her brother Benjamin or as heir of the  body of Robert shall have this land this case be argue by Pemberton sergeant  this term and by Maynard sergeant in easter term follow jour the plaintiff and  they hold that Augustine smith the lessor of the plaintiff shall have this  land because no estate vest in Benjamin wharton be die before he have attain  his age of twentyone year and the testator have declare that his sister shall  have it till that time and then and not before he be have it so that if he  never attain that age as in this case he do not the land shall descend to the  heir of the testator that Elizabeth have only a estate for year and so have no  freehold the contingent remainder can not be support that mary can not take by  way of executory devise because Robert be live when his son Benjamin die  within age that therefore it be quasi a condition precedent grant case cite in  lamb pet case a   S C roll Abr S C Brownl S C Winchs entry a modern there be a  difference between Borastons case b   b and this at the bar for that be a  devise to executor till Hugh shall attain his age of twentyone year and the  mesne profit in the mean time to be apply by they for payment to the testator  debt and because he may have compute how long it will be before his debt can  be pay therefore it be adjudge that after the death of Hugh within age the  executor shall continue in possession till Hugh may have attain his full age  have be live and so a present devise to they but here the devise be general  till Benjamin wharton shall attain his age of twentyone year so that nothing  vest in he until that time and he die before then the estate shall descend to  the general heir who be the plaintiff second admit this shall be take as a  executory devise there must be some person capable to take when the  contingency happen and there be no such person in this case for Robert be  alive when Benjamin die and mary can not then take as heir of his body for no  one be hceres to live like the case of pell v brown where brown have issue  William and Thomas and he devise land to his young son Thomas and his heir and  if he die live William then to William and his heir Thomas do die without  issue live William and it be adjudge that if those word live William have be  leave out of the will Thomas will have a fee tail which he may have dock by a  modern er p common recovery but by reason of those word he have only a limit  fee because the word videlicet if he die without issue be not indefinite to  create a tail but be restrain to his die without issue live William which be a  limit fee and his estate be determine William then have a fee but if he have  die before the contingency happen videlicet in the lifetime of Thomas and then  Thomas have die without issue the heir of William will not have a estate in  fee for the reason aforesaid if therefore nothing vest in Benjamin WhartOll  Bor in mary his sister then the land descend to Augustine smith as heir at law  to Elizabeth who be heir to the testator and so the plaintiff have a good  title Newdigate sergeant contra here be only all estate for year in the sister  of the testator and a estate in fee present vest in Benjamin wharton and he  rely upon Borastons case where the father have issue Humphrey and Henry devise  to his executor till Hugh his grandson the son of Henry shall be of age and  then to he in fee it be there adjudge that the executor have a term till Hugh  may have attain his full age and that modern though he die at the age of nine  year yet the remainder do immediate vest in he in possession upon the death of  his grandfather and that by his die without issue the land do descend to his  brother so here the fee descend to Benjamin wharton in possession and he die  without issue and within age the land shall then descend to his sister and  heir the like judgement be give in the case of tailor v wharton about twelve  year since and in dyer a a devise to his wife till his son shall be of the age  of twentyfour year then to the soil in fee and if be die before twentyfour  year without issue then to the wife for life the remainder to a c the testator  die it be adjudge that the son have a feesimple present for a estate tail be  can not have till he be twentyfour year old and after the death of his father  there be no particular estate to support that estate in the remainder till he  shall come to the age of twentyfour year so that he take by descent immediate  so here a fee vest in Benjamin present and he be dead within age mary may take  as heir however when she be of age she shall take as heir of the body of  Robert by way of executory devise arise out of the estate of the devisor which  needs no particular estate to support it as in case of a contingent remainder  for before mary be of age Robert her father be dead and so she may well take  Trinity term car in the king bench snow v colour roll north chief justice  favourable distinction have be always admit to supply the meaning of man in  their last will and therefore a devise to a till he be of age then to b and  his heir be a estate for year in a with a remainder in fee to b and if such a  devise be make to a who be also make executor or for payment of debt it shall  be for a certain term of year videlicet for so long as accord to compotation  he may have attain that age have he live contingent remainder be at the  commonlaw and arise upon conveyance as well as will one may limit a estate to  a the remainder to another and so it may be by devise if the intent of the  party will have it so but as at the commonlaw all contingent remainder shall  not be good so in will no such latitude be give as if none can be have they be  subject to the same fate in will as in conveyance modern in this case  Elizabeth have a term till Benjamin wharton be of age for she be executrix she  be likewise heir at law to the devisor and this land have go to her have it  not be for this will so that it be plain the testator never intend that a  feesimple shall vest in her but somewhere else for he can never intend the  descent of the inheritance to that person to who he have devise the term it  have be argue that mary be heir at law to Benjamin as well as heir of the body  of Robert and so if she call take either way it be good but to make her heir  to Benjamin it be necessary that the estate vest in he before he come to  twentyone year and for that Borastons case be much rely on which be also say  not to differ from this at the bar that all estate passes to Benjamin wharton  m present time and that there be no incapacity for mary to take by way of  executory devise as be urge on the other side and therefore why shall she not  take by way of executory devise as heir of the body of her father or at least  as heir of Benjamin her brother Ali executory devise needs no particular  estate to support it for it shall descend to the heir till the contingency  happen it be not like a remainder at the commonlaw which must vest eastern  earnestness that the particular estate modern er p determine but the learning  of executory devise stand upon the reason of the old law wherein the intent of  the devisor be to be observe for when it appear by the will that be intend not  the devisee to take but infutur and no disposition be make thereof in the mean  time it shall then descend to the heir till the contingency happen but if the  intent be that he shall take in present time and there be no incapacity in he  to do it he shall not take in going to be by a executory devise a devise to a  infant in ventre sa mere be good and it shall descend to the heir in the mean  time for the testator can not intend he shall take present be must first be in  a thing nature if a estate be give to a for life the remainder to the right  heir of b this be a contingent remainder and shall be govern by the rule of  the law a   light   a for if b die during the life of a it be good but if be  survive it be void because nobody can be his right heir while he be live and  there shall be no descent to the heir of the donor in the mean time to support  this contingent remainder that so when b die his right heir may take in this  case a fee do vest in Benjamin present and therefore after his death without  issue the descendant be his heir modern and have a good title if not as heir  at law yet she may take by way of executory devise as heir of the body of her  father which though it can not be while he be live because no one be hcures to  live yet after his death she be heir of his body and be then of age at which  time and not before she be to take by the will that Elizabeth the general heir  have only a estate for year till Benjamin shall or may be of age and so by the  opinion of the whole court judgement be give for the defendant