(in which recovery he was tenant to the præcipe), it was CHAP. XXXVI. held, that it did not bar the entail even in a moiety (u). vations on this nature. Questions of this kind have most frequently occurred Further obserunder limitations in marriage settlements, but they may of limitations of course arise under wills. In deciding on the application of the rule to such cases, the first object should be, to see out of whose body the heirs are to issue; and if it be found that they are to proceed from any person who takes an estate of freehold, and him or her only, such person becomes tenant in tail. If from a person who takes an estate of freehold jointly with another not taking any such estate, it seems he or she will take an estate tail sub modo only (x). If from a person who takes an undivided estate in common, he will then, we have seen, take an estate tail to the extent of that undivided interest; but if the heirs of the body are to proceed from two persons as husband and wife, and one of them only takes an estate for life, the heirs will be purchasers. If the limitation is to husband and wife, and the heirs tween heirs of Distinction beto be begotten on the body of the wife by the husband, the body and this will be an estate tail in both (y); for as the heirs are body to be be heirs on the not in terms required to be of the body of either in parti- gotten. On the other hand, if the devise be to the wife for life, and then to the heirs of her body to be begotten by the husband, she takes an estate tail special, by force of the (u) Owen's case, Litt. 578; Poll. 88, 337. See also Doe d. Freestone v. Parratt, 5 Durn. & E. 652. (x) See Fea. C. R. 41 et seq. W. Bl. 1228; Denn d. Trickett v. (z) Gossage v. Taylor, Sty. Rep. 325. CHAP. XXXVI. rule under consideration (a). The distinction, it will be perceived, is between heirs on the body and heirs of the body. Tenant in tail after possibility of issue extinct. Rule considered in regard to executory trusts. So if the limitation were to the husband for life, remainder to the heirs of the body of the husband on the wife to be begotten, he would, by the application of the same principle, have an estate tail special. But if, in the former case, the estate for life had been limited to the husband, and, in the latter, to the wife, the heirs of the body would have taken by purchase. Under limitations in special tail, if the tenant in tail survive the other person from whom the heirs are to spring, and there be no issue, such surviving tenant in tail becomes, as is well known, tenant in tail after possibility of issue extinct. In the case of Platt v. Powles (b), it was decided that such was the situation of the testator's widow, to whom lands were devised for life, and after her decease to the heirs of her body by him, at the expiration of the period during which she might have had issue by the testator, namely, nine or ten months after his death. During that time, issue being, in contemplation of law, possible, (irrespective of age,) and the devisee, therefore, being tenant in tail, she might have acquired the fee by means of a common recovery. II. It has been already observed, that the rule in Shelley's case applies as well to equitable limitations as to legal estates. Mr. Fearne has laboured to establish this conclusion, in opposition to the case of Bagshaw v. Spencer (c), which was decided by Lord Hardwicke, on the ground of the difference of construction applicable to legal (a) Alpass v. Watkins, 8 D. & E. 516. (b) 2 Mau. & S. 65. (c) Bagshaw v. Spencer, 1 Ves. sen. 142; S. C. 2 Atk. 246, 570, 577 see Fea. C. R. 124 et seq. and equitable interests; a doctrine which has been over- CHAP. XXXVI. ruled in a long series of cases (d), including a subsequent decision of this eminent Judge himself (e). The preceding remarks, it should be observed, apply only to executed trusts; for between trusts executed and executory there is a very material difference, which requires particular examination. trust, what. A trust is said to be executory or directory where the Executory objects take, not immediately under it, but by means of some further act to be done by a third person, usually him in whom the legal estate is vested. As where a testator (g) devises real estate to trustees in trust to convey it to certain uses, or directs money to be laid out in land, to be settled to certain uses. In these cases, the direction to convey or settle is considered merely in the nature of instructions, or heads of a settlement, which are to be executed, not by a literal adherence to the terms of the will, which would render the direction to settle nugatory, but by formal limitations adapted to give effect to the purposes which the author of the trusts appears to have had in view. when directed. settlement, Thus, where a testator devises lands to trustees with a Uses in strict direction to settle them, or bequeaths a money fund to be laid out in the purchase of lands to be settled, to the use of A. for life; remainder to trustees during his life to preserve contingent remainders; remainder to the heirs of the body of A., (limitations under which, if literally followed, A. would be tenant in tail, by force of the rule in Shelley's case,) courts of equity, presuming that the testator could not have so absurd an intention as that a conveyance should be made, (e) Garth v. Baldwin, 2 Ves. sen. 646. (d) Bale v. Colman, 2 Vern. 670; 559, inf. S. C. 1 P. W. 142; Wright v. Pearson, 1 Ed. 119; Austen v. Taylor, Id. 361; Jones v. Morgan, 1 B. C. C. 206. See also Jervoise v. Duke of Northumberland, 1 Jac. & Walk. (g) See Hayes's Inquiry, 248, 249, and 270. Settlement to be made on A. and the heirs of his body. CHAP. XXXVI. vesting in the first taker an estate, which would enable him immediately to acquire the fee-simple by means of a disentailing assurance, execute the trust by directing a strict settlement, i. e. limitations to the use of A. for life; remainder to trustees to preserve contingent remainders; remainder to his first and other sons successively in tail (h). So, in Leonard v. Earl of Sussex (i), where lands were devised to trustees and their heirs for payment of debts and legacies, with a direction afterwards to settle what should remain unsold, one moiety to the testatrix's son H. and the heirs of his body by a second wife, with remainder over; and the other moiety to the testatrix's son F. and the heirs of his body, with remainders over; taking special care in such settlement, that it should never be in the power of either of the sons to dock the entail either of their moieties (k) :—It was held, that, in executing the settlement, the sons must be made only tenants for life, and should not have estates tail conveyed to them; but their estates for life should be without impeachment of waste; because here the estate was not executed, but only executory; and therefore the intent and meaning of the testatrix was to be pursued: she had declared her mind to be, that her sons should not have it in their power to bar their children, which they would have if an estate tail were to be conveyed to them. And the Court took it to be as strong in the case of an executory [trust in a] devise, for the benefit of the issue, as if the like provision had been contained in marriage articles; but had the tes Direction that it should not be in his power to dock the entail. (h) Papillon v. Voice, 2 P. W. 471. See also Leonard v. Earl of Sussex, 2 Vern. 525, post; Earl Stamford v. Hobart, 3 B. P. C. Toml. Ed. 31; Lord Glenorchy v. Bosville, Cas. temp. Talbot, 3; Ash ton v. Ashton, 1 Coll. Jur. 402; White v. Carter, 2 Ed. 366; S. C. Amb. 670; Horne v. Barton, Coop. 257. (i) 2 Vern. 525. (k) See observation infra. tatrix by her will devised to her sons an estate tail, the CHAP. XXXVI. law must have taken place; and they might have barred their issue, notwithstanding any subsequent clause or declaration in the will, that they should not have power to dock the entail (7). without im remainder to body. So in Lord Glenorchy v. Bosville (m), where the devise was to trustees and their heirs, in trust, till the marriage or death of A., to receive the rents and pay her an annuity for her maintenance, and as to the residue, to pay his debts and legacies, and after payment thereof in trust for A.; and if she married a Protestant, after her age, or with To A. for life, consent, &c. then to convey the estate after such mar- peachment, &c., riage to the use of her for life, without impeachment issue of her of waste, remainder to her husband for life, remainder to the issue of her body, with remainders over: Lord Talbot held, that though A. would have taken an estate tail, had it been the case of an immediate devise, yet that the trust, being executory, was to be executed in a more careful and more accurate manner; and that a conveyance to A. for life, remainder to the husband for life, with remainder to their first and every other son, with remainder to the daughters, would best serve the testator's intent. Again in White v. Carter (n), where a testator gave his personal estate to trustees to purchase land, to be settled and assured as counsel should advise, unto and upon the trustees and their heirs upon trust, and to go for the use of A. and his issue in tail male, to take in succession and To A. and his issue in tail priority of birth; and there was a direction to the trustees male. (1) As to this see ante, Vol. I., p. 813. (m) Cas. temp. Talb. 3. See al so Ashton v. Ashton, 1 Coll. Jur. (n) 2 Ed. 366. |