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.
The Leſſee of Ashton verſus Ashton.
ON ſpecial Verdict. Deviſe to the firſt Heir Male of I.S. when he ſhall arrive to the Age of 21 Years, he paying to A. and B. the Daughters of I.S. £. 40 each.—After Deviſor's Death I.S. had a Son, who attained the Age of 21 Years, and paid his Siſters the £. 40 each.
The Queſtion was, whether the Son of I.S. could take by executory Deviſe?–It was objected for the Defendant, 1ſt. That this being a preſent Deviſe it could not take Effect becauſe to a Perſon note in eſſe. 2d. That though it might be conſtrued a future Deviſe, yet it was too remote; for an executory Deviſe muſt take effect within the Compaſs of a Life or Lives in eſſe, or at fartheſt within nine Months after: And in this caſe 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 firſt Heir Male of I.S. which would have been too remote a Contingency, and would have tended to a Perpetuity. And the Caſe muſt be conſidered as at the Time of making the Deviſe, that is, how it might be; and not how it has actually happened. 3d. That the Son of I.S. could not take, becauſe the Limitation was to the firſt Heir Male and Nemo eſt Hæres Viventis.
For the Plaintiff it was anſwered: 1ſt. That this was not preſent Deviſe, the Teſtator taking Notice that I.S. had Son born by the Word firſt Heir Male, and uſing the Words when and paying.–2d. That this Contingency was not too remote, becauſe the Teſtator by the Words firſt Heir Male, muſt have meant firſt Son; and that ſuch a Conſtruction muſt be made as to carry the Intent of the Teſtator into Execution.–3d. Firſt Heir Male are Words of Purchaſe and Deſignatio Perſonæ, and Law will ſupply the Words of the Body in a Will.
By the Court. The Intent of the Teſtator is clear, that the firſt Son if I.S. ſhould take. Therefore judgement By the Court.
Caſes cited; 1 Lord Raym. 207 1 Salk 229. Talbot's Caſes 44. 50. 145. 1 Vern 729. Vin. Dev. 315. 2 Vent 311. 1 Peer. Williams 229. 3 Co. 20, 2 Peer. Williams 196. 2 Salk 621.Chew pro Quer. Moland and Dickenſon pro Def.
- Sec 12 Mod 279. 287. 1. Info. 24.