1.Carwardine v. Carwardine, 1 Eden's Rep. 27
2. 3 Term Rep. 763.
3. Lord Ch. J. Willes, in Goodtitle v. Wood, Willes' Rep. 211.
4.Duke of Marlborough v. Earl Godolphin, 1 Eden's Rep. 417.
5. Vide supra, p. 126.
6. Use of the Law, in Bacon's Law Tracts, p. 145.
7. See his elaborate argument as counsel in the great case of Thellueson v. Woodford, 4 Vesey's Rep. 249-264. Lord Ch. J. Bridgman, in the ease of Bate v. Amherst, (T. Raym. 82.) had, however, long preceded him in the research, for he insists, in that case, that executory devises were grounded upon the common law, and he refers to 49 Edw. III. 16. a. and 11 Hen. VI. 13. a. as evidence of it. Both of those cases are cited by Lord Coke, and the latter in 7 Co. 9. a. to prove that an infant in ventre sa mere, was, in many cases, "of consideration in the law."
8. Cro. Jac. 590.
9. 1 Lev. 135.
10. Pollex. Rep. 31. 1 Cases in Chancery, 4. 2 Freeman, 163. Lord Bridgman's MS. Report of the case, cited by Mr. Hargrave in 4 Ves. Rep. 258.
11. 3 Ch. Cas. 1. Pollex. Rep. 223. 2 Ch. Rep 229. "
12. l Salk. Rep. 229. 12 Mod. Rep. 278.
13. This last observation of Mr. Justice Powell is supposed to be rather too strong; for the owner of the contingent fee, together with the executory devisee. may bar it by a common recovery, and it may be barred by fine by way of estoppel. But in those states where there are no fines or recoveries, the executory devise is a perpetuity as far as it goes.
14. Prec. in Ch. 72. Shower's P. C. 137. S. C.
15. 1 Lord Raym. 203.
16. 2 Barnard, K. B. 375. Cases temp. Talbot, 228.
17. Atkinson v. Hutchinson, 3 P. Wms. 258. Goodman v. Goodright, 1 Blacks. Rep. 188. 2 Blacks. Com. 174. Long v. Blackall, 7 Term Rep. 100.
18. Supra, p. 17.
19. This is the classification made by Powell, J. in Scatterwood v. Edge, 1 Salk. Rep. 229 and it has been followed by Mr. Fearne, Mr. Preston goes on to a greater subdivision, and he says there are six sorts of executory devise applicable to freehold interests, and two, at least, if not three sorts of executory bequests applicable to chattel interests. Preston on Abstracts of Title, vol. ii 124. I have chosen not to perplex the subject by divisions too refined and minute. The object in elementary discussions, according to the plan of these lectures, is to generalize as much possible.
20. Marks v. Marks, 10 Mod. Rep. 419. Prec. in Chan. 486.
21. Bate v. Amherst, T. Raym. 82. Lent v. Archer, 1 Salk. Rep. 226. Lord Ch. J. Treby, in Clarke v. Smith, 1 Lutw. 798.
22. Vol. ii. P. 285.
23. Cotton v. Heath, 1 Equ. Cas. Abr. 191. pl. 2.
24. Hoare v. Parker, 2 Term Rep. 376. Fearne on Executory Devices, 46.
25. 2 Blacks. Com. 173, 174.
26. Pells v. Brown, Cro. Jac. 590. Fearne on Executory Devises, 46. 51-58.
27. Jackson v. Bull, 10 Johns. Rep. 19. Attorney General v. Hall, Fitzg. 314. Ide v. Ide, 5 Mass. Rep. 500. Jackson v. Robin, 16 Johns. Rep. 537.
28.Mullineux's case, cited in Palm. 136.
29. Driver v. Edgar, Cowp. Rep. 379. Fearne, 66, 61. 107.
30. Cro. Jac, 590.
31. N.Y. Revised Statutes, vol. i. 728. sec. 14, 15, 16.
32. N.Y. Revised Statutes, vol. i. 724. sec. 24.
33. Ibid. vol. i. 727. sec. 45.
34. We may not be able to calculate with certainty upon the future operation of the changes which have been recently, made in the do trine of expectant estates by the New York revised code of statute law. But the first impression is, that these innovations will be found to be judicious and beneficial. It appears to be wise to abolish the technical distinctions between contingent remainders, springing or secondary uses, and executory devises, for they serve greatly to perplex and obscure the subject. It contributes to the simplicity, and uniformity, and certainty of the law, to bring those various executory interests nearer together, and resolve them into a few plain principles. It is convenient and just that all expectant estates should be rendered equally secure from destruction by means not within the intention of the settlement, and that they should all be controlled by the same salutary rules of limitation. Some of the alterations are not material, and it is doubtful whether confining future estates to two lives in being, was called for by any necessity or policy, since the candles were all lighted at the same time, let the lives be as numerous as caprice should dictate. It was a power not exposed to much abuse, and, in the case of children, it might be very desirable and proper that the father should have it in his power to grant life estates in his paternal inheritance to all his children in succession. The propriety of limiting the number of lives was much discussed recently before the English Real Property Commissioners. The objection to a large number of lives is, that it increases the chance of keeping the estate locked up from circulation to the most extended limit of human life; and very respectable opinions are in favor of a restriction to the extent of two or three lives only, besides the lives of the parties in interest, or to whom life estates maybe given. The New York statute has carried the restriction too far.
35. Jeffery v. Sprigge, 1 Cox's Cases, 62.
36. Pleydell v. Pleydell, 1 P. Wins. 750.
37. 12 East's Rep. 253.
38. 5 Randolph, 273.
39. The number of cases in which that point has been raised, and discussed, and adjudged, is extraordinary, and the leading ones are here collected for the gratification of the curiosity of the student. Assize, 35 Edw. III. pl. 14. Sonday's case, 9 Co. 127. King v. Rumbail, Cro. Jac. 448. Chadock v. Cowly, ibid. 695. Holmes v. Meynel, T. Raym. 452. Forth v. Chapman, 1 P. Wms. 663. Brice v. Smith, Willes' Rep. 1. Hope v. Taylor, 1 Burr. Rep. 268. Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Doe v. Fonnereau, Doug. Rep. 504. Denn v. Slater, 5 Term Rep. 355. Doe v. Rivers, 7 Term Rep. 276. Doe v. Ellis, 9 East's Rep. 38.2. Tenny v. Agar, 12 East's Rep. 253. Romilly v. James, 6 Taunt. Rep. 263. Bartow v. Salter, 17 Vesey's Rep. 479.
40. For the strict effect of the rule, see Ide v. Ide, 5 Mass. Rep. 500. Dallam v. Dallam, 7 Harr. & Johns. 220. Newton v. Griffith, 1 Harr. & Gill, 111. Sydnor v. Sydnor, 2 Munf. 269. Carter v. Tyler, 1 Call, 143. Hill v. Burrow, 3 ibid. 342. Bells v. Gillespie, 5 Randolph, 273. Broaddus v. Turner, ibid. 308. Denn v. Wood, Cameron & Norw. Rep. 202. Cruger v. Hayward, 2 Dessauss. 94
41. Forth v. Chapman, 1 P. Wms. 663. Romilly v. James, 6 Taunt. Rep. 263. Daintry v. Daintry, 6 Term Rep. 307. Croly v. Croly, 1 Batty, 1. Carr v. Porter, 1 McCord's Ch. Rep. 60. Newton v. Griffith, 1 Harr. & Gill, 111.
42. Chadock v. Cowly, Cro. Jac. 695. Newton v. Griffith, 1 Harr. & Gill, 111. Bells v. Gillespie, 5 Randolph, 273. Broaddus v. Turner, ibid. 308.
43. Cro.Jac.590.
44. Porter v. Bradley, 3 Term Rep. 143.
45. Hughes v. Sayer, 1 P. Wms. 533.
46. Roe v. Jeffrey, 7 Term Rep. 489.
47. Doe v. Webber, 1 Barnw. & Ald. 713.
48. 5 Day, 517.
49. 3 Halsted's Rep. 29.
50. 16 Johns. Rep. 382.
51. The decision of Anderson v. Jackson rested entirely upon the word survivor. If that word will not support it, then it is an anomalous and unsound authority. The preceding words of the will, in that case, were those ordinary words creating an estate tail, as declared by all the authorities, ancient and modern, and without the instance of a single exception to the contrary, according to the remark of Lord Thurlow, and of Lord Mansfield. When that case was afterwards brought into review in Wilkes v. Lion, (2 Cowen's Rep. 333.) it was declared, that the construction assumed by the court rested upon the effect to be given to the word survivor. The cases have already been referred to in which it has been often held, that the word survivor did not alter the settled construction of the words dying without issue; and there is no case in which it has been construed to alter them, unless there was a material auxiliary circumstance, as in Roe v. Jeffry, or the word survivor was coupled, not with issue, but with children, in reference to personal property, as in Hughes v. Sayer; or it was the case of dying without issue alive, as in Den v. Schenck. The case of Anderson v. Jackson was, therefore, a step taken in advance of all preceding authority, foreign and domestic, except that found in the court below, and it shifted and disturbed real property in the city of New York to a very distressing degree. The same question, under the same will, arose in the Circuit Court of the United States for the southern district of New York, and it was eventually decided in the Supreme Court of the United States (Jackson v. Chew, 12 Wheat. Rep. 153.) in the same way. But the court, without undertaking to settle the question upon the English law, constituting the prior common law of New York, decided it entirely upon the strength of the New York decisions, as being the local law of real property in the given case. This was leaving the merits of the question, independent of the local decision. untouched; and, therefore, the doctrine of the Supreme Court of the United States is of no authority beyond the particular case. If the same question had been brought up at the same term, on appeal from the Circuit Court of Virginia, in a case unaffected by statute, the decision must have been directly the reverse, because the rule of construction in that state, under like circumstances, is different. The local law of Virginia ought to be as decisive in the one case, as the local law of New York in the other. The testamentary
dispositions in the cases above referred to, from 5 Randolph, agree, in all particulars, with the case in New York. The devise in each was to the sons, and if either should die without lawful issue, then over to the survivor, and the question was profoundly discussed, and decided in opposition to the New York decision, and with that decision full before the court. The federal jurisprudence concerning real property, under the operation of the rule of decision assumed by the Supreme Court of the United States, (and I do not well see how it could have been discreetly avoided,) may, however, in process of time, run the risk of becoming a system of incongruous materials, "crossly indented, and whimsically dovetailed."
52. N.Y. Revised Statutes, vol. i. 722. sec. 4. Ibid. 724. sec. 22.
53. Ibid. p. 724. sec. 30, 31.
54. The great objection to legislative rules, and to all kinds of codification, when it runs into detail, is, that the rules are not malleable; they cannot accommodate to circumstances;-they are imperative; and such interference is the more questionable when a permanent, inflexible construction, is attempted to be prescribed even for the words used by a testator in his will. The noted observation of Lord Ch. J. Wilmot, naturally occurs, that "the statute is like a tyrant, where he comes he makes all void; but the common law is like a nursing father, and makes only void that part where the fault is, and preserves the rest." The different bearings of the sections of the N.Y. Revised Statutes, vol. i. 748. sec. 2. and vol. i. 724. sec. 22. on this subject, present quite a contrariety of prescription. In the one, every instrument conveying an estate or interest, must be carried into effect according to the intent of the party, so far as that intent can be collected from the whole instrument, and is consistent with the rules of law. In the other, certain words shall be construed to mean heirs or issue living at the death of the person named as ancestor, when, perhaps, the other parts of the instrument would show clearly, that the words were not so meant; or when, perhaps, in a great majority of cases, without any further explanation, the testator, under a comprehensive view of the subject, never did so mean, and would have resented the imputation of such a construction.
55. 1 P. Wms. 663.
56. Fearne on Executory Devises, by Powell, 186. 239. 259. Doe v. Lyde, 1 Term Rep. 593. Dashiell v. Dashiell, 2 Harr. & Gill, 127. The conflict of opinion as to the solidity of the distinction in Forth v. Chapman, is very remarkable, and forms one of the most curious and embarrassing cases in the law, to those well disciplined minds that desire to ascertain and follow the authority of adjudged cases. Lord Hardwicke, (2.Atk. Rep. 314.) Lord Thurlow, (1 Bro. 188. 1 Ves. jr. 286.) Lord Loughborough, (3 Vesey's Rep. 99.) Lord Alvanley, (5 Vesey's Rep. 440.) Lord Kenyon, (3 Term Rep. 133. 7 Term Rep. 595.) Sir William Grant, (17 Vesey's Rep. 479.) and the Court of K. B. in 4 Maule & Selw. 62. are authorities against the distinction. Lord Hardwicke, (2 Atk. Rep. 288. 2 Ves. Rep. 180. 616.) Lord Mansfield, (Cowp. Rep. 410.) Lord Eldon, (9 Ves. Rep. 203.) and the House of Lords, in Keily v. Fowler, 6 Bro. P. C. 309. are authorities for the distinction. As Lord Hardwicke has equally commended, and equally condemned the distinction, without any kind of explanation, his authority may be considered as neutralized, in like mariner as mechanical forces of equal power, operating in contrary directions, naturally reduce each other to rest. The American cases, without adopting absolutely the distinction in Forth v. Chapman, are disposed to lay hold of slighter circumstances in bequests of chattels, than in devises of real estate, to sustain the limitation over, and this is the extent to which they have gone with the distinction. Executors of Moffat v. Strong, 10 Johns. Rep. 12. Newton v. Griffith, 1 Harr.& Gill, 111. Royall v. Eppes, 2 Munf. Rep. 479.
57. N.Y. Revised Statutes, vol. i. 724. sec. 23. vol. i. 773. sec. 1 and 2.
58. Attorney General v. Bayley, 2 Bro. 553. Knight v. Ellis, ibid. 570. Lord Chatham v. Tothill, 6 Bro. P. C. 450. Britton v. Twining, 3 Merivale, 176.
59. Fearne on Executory Devises, 159, 160. Phipps v. Kelynge, ibid. 84.
60.Pay's Case, Cro. E. 878. Hayward v. Stillingfleet, 1 Atk Rep. 422. Hopkins v. Hopkins, Cases temp. Talbot, 44
61. Chapman v. Blissel, Cases temp. Talbot, 145. Duke of Bridgewater v. Egerton, 2 Vesey's Rep. 122.
62. Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. Rep. 29. Fearne on Executory Devises, 529-535. N.Y. Revised Statutes, vol. i. 725. sec. 35. Higden v. Williamson, Cases temp. Talbot, 131. 2 Saund. Rep. 388. k. note.
63. 4 Vesey's Rep. 227.
64. The testator died in 1797. He left three sons and three daughters, and half a million sterling, on an accumulating fund. If the limitation should extend to upwards of 100 years, as it may, the property will have amounted to upwards of one hundred millions sterling.
65. N.Y. Revised Statutes, vol. i. 726. sec. 37-40.
66. Stephens v. Stephens, Cases temp. Talbot, 228.
67. Clarke v. Smith, 1 Lutw. 798. Hopkins v. Hopkins, Forrest, 44.Gibson v. Lord Mountfort, 1 Vesey's Rep. 485. Mb. 93. S.C.
68. Rogers v. Ross, 4 Johns. Ch. Rep. 388.
