EXECUTORY DEVISE. Such a limit •tion of a future estate in lands or chattels as the law admits in case of a will, though contrary to the rules of limitation in convey ances at common law.
2. In the case of chattels this is more properly called an executory bequest. By the executory devise no estate vests at the death of the devisor or testator, but only on the future contingency. It is only an indulgence to the last will and testament which is supposed to be made by one imps consilii. When the limitation by devise is such that the future interest falls within the rules of contingent remainders, it is a contingent remainder, and not an executory devise. 4 Kent, Comm. 257; 1 Edw. Ch. 27; 3 Term, 763.
3. If a particular estate of freehold be first de vised, capable in its own nature of supporting a remainder, followed by a limitation which is not immediately connected with, or does not imme diately commence from, the expiration of the par ticular estate of freehold; the latter limitation can not take effect as a remainder, but may operate as an executory devise. E. g., land he devised to A for life, and after his decease to B in fee, B takes a (vested) remainder, because his estate is immediately connected with, and commences on, the limitation of A's estate. If land be limited to A, and one year after his decease to B in fee, the limitation to B is not such a one as will be a remainder, but may operate as an executory devise. If land be limited to A for life, and after his decease to B and his heirs, with a proviso that if B survive A and die, without issue of his body living at hie decease, then to C and his heirs, the limitation to B, ete. prevents an immediate connection of the estate limited to C with the life estate of A, end prevents its commencement on the death of A. It must operate, if at all, as an executory devise. Butler's note (c) to Fearne on Cont. Rem. p. C97.
. 4. An executory devise differs from a remainder in three very material respects:— First. It needs no particular estate to support it. Second. By it a fee-simple or other leas estate may be limited on a fee-simple. Third. By this a re mainder may be limited of a chattel interest afttl a particular estate f. r life created in the same. The
first is a case of freehold commencing in !ilium A makes a devise of a future estate on a certain con tingency,. and till the contingency happens does not dispose of the fee-simple, but leaves it to de scend to his heirs at law. I T. Raym. 82; 1 Salk. 226; 1 Lutw. 798.
The second ease is a fee upon a fee. A devises to A and his heirs forever, which is a fee-simple, and then, in case A dies before he is twenty-one years of age, to B and his heirs.
The third case : a remainder in a term of years after a life estate. A grants a term of one thousand years to B for life, remainder to C. The common law regards the term for years as swallowed up in the grant for life, which, being a freehold, is a greater estate, and the grantee of such a term for life could alien the whole. An exception is made in favor of wills. 2 Rent, Carom. 2E5; 2 Serf, & R. Penn. 59 ; 1 Des. So. C. 271; 4 id. 340; 1 Bay, So. C. 78.
5. To prevent perpetuities, a rule has been adopted that the contingency on which an executory devise depends must take if at all, during the time of a life or lives in being and twenty-one years after and the months allowed for gestation, in order to reach beyond the minority of a person not in esse at the time of making an executory devise. 3 P. Will. 258 ; 7 Term, 600; 2 Blackstone, Comm. 174 ; 7 Cranch, 456 ; 1 Gilm. Va. 194 ; 2 Hayw. No. C. 375. For example, lands are devised to such unborn son of a, frme covert as shall first reach the age of twenty-one years. The utmost length of time that can happen before the estate can vest is the life of the rfiother and the sub sequent infancy of her son.
But such a bequest after an indefinite failure of issue is bad. 2 Serg. & R. Penn. 62; Watkins, Conv. 112, 116 ; Thomas, Coke, Litt. 515, 516, 595, 596.
6. An executory devise is generally inde structible by any alteration in the estate out of or after which it was limited.
In England, if the executory devise is lim ited on an estate tail, the tenant in tail can bar it, as well as the entail, by deed, under scat. 3 & 4 Will. IV. c. 74. If the executory devise he expectant on a fee, there are no means of preventing its taking effect on the contingency.