By the Court. This Rum appears to have been ſent to ſatisfy P's Debt. If it had been Money, there could have been no doubt but the Defendant would have retained it. And the only difference is that a Commodity was ſent which must be converted into Money, before the Sum to be paid to P, could be aſcertained, but, as to P's intereſt in it, the Caſe was the ſame. Therefore judgment, by the whole Court, was given for the Defendant.
Chew and Moland pro Quer.—Galloway and Dickenſon pro Def.
| Prefent Lawrence Growdon
ON fpecial Verdict. Devife to the firft Heir Male of I.S. when he fhall arrive to the Age of 21 Years, he paying to A. and B. the Daughters of I.S. Ł. 40 each.–After Devifor's Death I.S. had a Son, who attained the Age of 21 Years , and paid his Sifters the Ł. 40 each.
The Queftion was, whether the Son of I.S. could take by executory Devife?–It was objected for the Defendant, 1ft. That this being a prefent Devife it could not take Effect because to a Perfon note in effe. 2d. That though it might be conftrued a future Devife, yet it was too remote ; for an executory Devife muft take effect within the Compafs of a Life or Lives in effe, or at fartheft within nine Months after : And in this cafe I.S. might have had no Son but a Daughter, who might have had a Daughter, who might have had a Son, who would have been the firft Heir Male of I.S. which would have been too remote a Contingency, and would have tended to a Perpetuity. And the Cafe muft be confidered as at the Time of making the Devife, that is, how it might be ; and not how it has actually happened. 3d. That the Son of I.S. could not take, becaufe the Limitation was to the first Heir Male and Nemo eft Hæres Viventis.
For the Plaintiff it was anfwered : 1ft. That this was not prefent Devife, the Teftator taking Notice that I.S. had Son born by the Word firft Heir Male, and ufing the Words when and paying. – 2d. That this Contingency was not too remote, becaufe the Teftator by the Words first Heir Male, muft have meant firft Son ; and that fuch a Conftruction muft be made as to carry the Intent of the Teftator into Execution.–3d. Firft Heir Male are Words of Purchafe and Defignatio Perfone, and Law will fupply the Words of the Body in a Will.
BY THE COURT. The Intent of the Teftator is clear, that the firft Son if I.S. fhould take. Therefore judgement by the court.
Cafes cited : I Lord Raym. 207 I Salk 229. Talbot's Cafes 44. 50. 145. I Vern 729. Vin. Dev. 315. 2 Vent 3II. I Peer. Williams 229. 3. Co. 20, 2 Peer. Williams 196. 2 Salk 621.
Chew pro Quer. Moland and Dickenfon pro Def. [♦]
[♦] Rev 12 Mod 279. 287. 1. Info. 24.