CHAP. XLIV. Such gifts may be made defea son, who during the life of T. died, and it was held that the administrator of such son was absolutely entitled to the leasehold estates, subject only to be defeated by the birth of a son of T., the prior tenant for life. It is scarcely necessary to observe, that a bequest of a sible on a col- term for years or other personal property in the language lateral event. Effect of act 1 Vict. c. 26, s. 29, on this rule of construction. of an estate tail, may be made defeasible on a collateral event, in the same manner as any other bequest carrying the whole interest. Thus a legacy to A. and the heirs of his body, and if he die without issue, living B., to C., is clearly a good executory gift to C. (y). And here it occurs to remark, that the recent enactment (2) restricting words denoting a failure of issue to a failure at the death (which we have seen prevents them having the effect of creating an estate tail by implication) will, when applied to personalty, operate to restrain such words from passing the absolute interest, and also to bring within the compass of the rule against perpetuities the ulterior bequest depending on such contingency. If, therefore, a testator, by a will made or republished since 1837, bequeaths personal estate to A., and in case he shall die without issue then to B., A. will not take the absolute interest (as formerly), from the ulterior gift being void; but A. will take a vested interest in the personalty so bequeathed, defeasible in favour of B., on his (A.'s) leaving no issue at his death. Where the bequest is to A. expressly for life, and in case of his dying without issue to B., the construction seems also free from doubt. A. will, according to the newly enacted doctrine, take a life interest in any event, and B. will take the ulterior interest, only in the event of A.'s leaving no issue; in the converse event of A. leaving issue, the ulterior interest will be undisposed of. CHAP. XLIV. personal to real in strict settle III. When it is intended that leasehold estates or per- As to annexing sonal chattels, in the nature of heir-looms, shall go with estate, devised lands devised in strict settlement, they should not be ment. simply subjected to the same limitations; the effect of that being to vest the personal property absolutely in the first tenant in tail, though he should happen to die within an hour after his birth; and as the freehold lands in that event pass over to the next remainder-man, a separation between them and the chattels takes place; but the personal property should be limited over, in case any such tenants in tail (being the sons of persons in esse) should die under twenty-one and without inheritable issue, to the person upon whom the freehold lands will devolve in that event; or, which is the more usual mode, the personalty should be subjected to the same limitations as the freeholds, with a declaration that it shall not vest absolutely in the tenant in tail until twenty-one, or death under that age, leaving issue inheritable under the entail. Whether the Courts are authorized to put this construction upon a direction that the chattels shall go with the lands so long as may be, or so long as the rules of law will permit, has been vexata quæstio. Lord Hardwicke, in Gower v. Grosvenor (a), expressed an opinion in the affirmative, but this has been considered as overruled by Foley v. Burnell (b), and Vaughan v. Burslem (c), where Lord Thurlow held that the property vested absolutely in the tenant in tail on his birth. The doctrine was much canvassed in the (a) 3 Barnard, 54. See also Trafford v. Trafford, 3 Atk. 347. (b) 1 B. C. C. 274. CHAP. XLIV. House of Lords in the case of The Duke of Newcastle v. Countess of Lincoln (d), which arose on marriage articles; but the Duke having attained his majority before the case arrived at a hearing, was entitled quâcunque viâ. Lord Eldon, however, entered into a full examination of the authorities; his own opinion being, that the question was concluded by Lord Thurlow's decision, on which point he appears to have differed from Lord Erskine, the then Chancellor. (d) 3 Ves. 387; S. C. in Dom. Proc. 11 Ves. 218. 509 CHAPTER XLV. WHAT WORDS WILL CHARGE REAL ESTATE WITH DEBTS I. Liability of Real Estate to Simple Contract Debts. Whether charged by a general Direction in a Will that Debts shall be paid. Distinction where a specific Fund is appropriated;—where the Direction is to Executors, being or Whether not being Devisees. II. Whether Direction to raise Mo- CHAP. XLV. Sketch of the law as to real assets. I. By the common law of England, the real estate of a deceased person was not liable to answer his simple contract debts, no action being maintainable against the estate being heir in respect of descended assets, except by creditors whose debts were constituted by an instrument under seal, i. e. a specialty obligation; and not even then, unless an intention to charge the heir of the debtor were distinctly indicated; and the claim of a specialty creditor did not extend to copyholds (a); nor did it extend to devised freeholds, until the act of 3 & 4 William & Mary, c. 14, gave a right of action against the devisee of the debtor, concurrently with the heir, to a certain class of specialty creditors, namely, those whose demands were recoverable by an action of debt. c. 74. The first relaxation of this rigid doctrine (so adverse to Stat. 47 Geo. 3, the policy of a great commercial country) was the act of 47 Geo. 3, c. 74, which let in the claims of the simple (a) Parker v. Dee, 2 Ch. Cas. 201. CHAP. XLV. contract creditors of a deceased person upon the real assets, i. e. the freehold estates, if the debtor was at the time of his decease (b) subject to the bankrupt laws. This act was the fruit of the persevering exertions of Sir Samuel Romilly, whose labours in this righteous cause are well known, and was all that those exertions were able to wring from the legislature of that day. But what was denied to the zealous advocacy of this able and upright lawyer, was conceded, without, it is believed, a dissentient voice by the Parliament of William the Fourth,-a striking illustration of the change which public opinion had under3 & 4 Will. 4, gone on this subject. The act of 3 & 4 Will. 4, c. 104, c. 104. Real estates to be assets for payment of debts by simple con tract. provided, that after the 29th of August, 1833, when any person should die seised of or entitled to any real estate which he should not by his last will have charged with or devised subject to the payment of his debts, the same should be assets, to be administered in courts of equity, for the payment of the just debts of such person, as well debts due on simple contract as on specialty; and that the heir-at-law, customary heir and devisees of such debtor, should be liable to all the same suits in equity at the suit of any of the creditors, whether by simple contract or by specialty, as the heir-at-law or devisees were theretofore liable to in respect of freehold estates at the suit of creditors by specialty in which the heirs were bound; but the creditors by specialty in which cialty creditors. the heirs were bound were to be paid before creditors by simple contract or by specialty, in which the heirs were not bound. Priority reserved to spe Difference of effect between During the period when real estate was not liable, unless enactment and charged by its deceased owner, to pay his simple contract debts, of course it was a question of importance (and actual charge. (b) Hitchin v. Bennett, 4 Madd. 180. |