eſtate to ſupport it. 2. That by it a fee-ſimple or other leſs eſtate, may be limited after a fee-ſimple. 3. That by this means a remainder may be limited of a chattel intereſt, after a particular eſtate for life created in the ſame.
1. The firſt caſe happens when a man deviſes a future eſtate, to ariſe upon a contingency; and, till that contingency happens, does not diſpoſe of the fee-ſimple, but leaves it to deſcend to his heir at law. As if one deviſes land to a feme-ſole and her heirs, upon her day of marriage: here is in effect a contingent remainder without any particular eſtate to ſupport it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory deviſe[1]. For, ſince by a deviſe a freehold may paſs without corporal tradition or livery of ſeiſin, (as it muſt do, if it paſſes at all) therefore it may commence in futuro; becauſe the principal reaſon why it cannot commence in futuro in other caſes, is the neceſſity of actual ſeiſin, which always operates in praeſenti. And, ſince it may thus commence in futuro, there is no need of a particular eſtate to ſupport it; the only uſe of which is to make the remainder, by it's unity with the particular eſtate, a preſent intereſt. And hence alſo it follows, that ſuch an executory deviſe, not being a preſent intereſt, cannot be barred by a recovery, ſuffered before it commences[2].
2. By executory deviſe a fee, or other leſs eſtate, may be limited after a fee. And this happens where a deviſor deviſes his whole eſtate in fee, but limits a remainder thereon to commence on a future contingency. As if a man deviſes land to A and his heirs; but, if he dies before the age of twenty one, then to B and his heirs; this remainder, though void in a deed, is good by way of executory deviſe[3]. But, in both theſe ſpecies of executory deviſes, the contingencies ought to be ſuch as may happen within a reaſonable time; as within one or more life or lives in being, or within
