in the singular,) wherever it can be taken to mean sons, or issue, who are to take in succession, and not as companions, is of itself a word of limitation.

(817.)

(660.)

6 East, 336.

(820.) It is sometimes doubtful to what antecedent the words "in default of such issue" are to be referred. Upon this point it appears to have been decided, that where the devise is to A. for life, with remainder to his children and their heirs," and in default of such issue" to Lewis v. Waters, B.; if the children are made to take successively (as by the description of first and other sons, &c.) the words "such issue" refer to their heirs, meaning heirs of their bodies, and therefore each child takes an estate tail; (821.) but if the children are made to take distributively, in equal shares, &c., then, although B. should be a relation, the word "heirs" will continue to express a fee simple, and the words "such "issue" refer to the children themselves, so that B. will take only a contingent remainder, in the alternative of there being no children*.

(822.) Perhaps if the words "in default of issue of 66 4.," or "if A. shall die without issue," instead of " in "default of such issue," were used to introduce the ulterior remainder, it would be held that the children took estates tail with cross remainders. For in Smith v. Horlock, (7 Tau. 129,) where the words were "if A. shall depart this "life without leaving any lawfully begotten child or chil"dren, or issue of any such child or children," (which is only another expression for A. dying without issue,) the decision implies clearly that the children took estates tail : and in Doe v. Halley, (8 T. R. 5,) before cited, the like

Doe v. Perryn,
R. v. Marq.
Stafford, 7 East,

3 T. R. 484;

521.

(663.)

(812.)

(813.)

Butl. Co. Litt.

271. b. u. 1. VII. 2.

(824.) The period within which an Executory Devise must take effect is the same with (784, &c.) that prescribed to a Springing or Shifting Use; but it is to be computed from the death of the Testator, not from the date of his Will.

Sugd. Pow.

326. 469.

(571)

(825.) Where there is a Power to appoint Uses by Will, the Testamentary Appointment receives the same indulgent construction as if it were a direct Devise under the Statute of Wills.

(826.) Sometimes, where there is a power to appoint by will to Children, (which cannot include Grandchildren,) and the limitation of estates is left to the discretion of the Testator, he appoints

estate was held to be given to A.'s eldest son; with a remainder in tail by implication to A. himself, to fill up the chasm which would else be occasioned by his having other issue male.

(823.) But it is of course indifferent whether the generality of the words "without issue" be restricted by the word "such," or by other equivalent expressions. As, "if A. shall die without issue, or leaving issue, and such child or children shall die before attaining the age of twentyone years or without lawful issue." Here "issue" in the first part of the sentence evidently signifies the children, who are afterwards mentioned: and in the Case (Doe v. Selby, 2 B. and C. 926) where this introduction to the ulterior limitation to B. occurred, it was held that there were in the first instance contingent remainders in the alternative to the children and to B.; and if children should be born, their estates would then be subject to executory devises in favour of B., to take effect on their respectively dying under twenty-one without issue. For (510, 612.) the last "or" in the sentence, was taken to mean “and."

Pitt v. Jackson,

2 Bro. C. C. 51;

2

V. J. 364.

(799.)

(782.)

to the children and their issue in the form of Settlement. If this appointment were made by Deed, all beyond the life estates given to the children would be void: but in a Will, by the application of the first Maxim above mentioned, the children themselves, it appears, become entitled to Estates Tail. (827.) And so if a strict Settlement be made by Will on a person unborn, and who does not come into existence before the Testator's death, it seems that his estate for life will be converted into an Estate Tail. This is generally known as the Cy Prés See Sugd. Pow. Doctrine in the interpretation of Wills relating Fearne, C. R.

to Real Property.

(828.) If a Tenement be given by Deed to

A. for life, or in tail, with remainder to B.,

Nicholl v.

Nicholl, 2 Bl.

Rep. 1159.

534, ắc. ; Bul

204. n.

270.272.

(23. 27.)

and a condition be annexed to the estate of A., Fearne, C. R. which is evidently not intended to affect that of B., this condition is void. For the Grantor or his heir, entering for the condition broken, must defeat the whole conveyance, and one estate as well as the other; and therefore he shall not enter at all. (829.) But in the interpretation of a Will this consequence is avoided, by considering the condition as if it were the original limitation of the estate of A.

Thus, if a devise be to A. for life, on condition that he do not marry C., with remainder to B., this will be construed as if it were to A., until he shall marry C., and then, or upon his death,

to B.

(830.) And wherever there is a Remainder,

(737.)

Fearne, C. R. 508.

or Executory Devise, depending on the breach of a condition by the owner of the preceding estate, if that estate never becomes vested, the same effect follows as if the condition had been broken. Thus, upon a devise to A. and his Avelyn v. Ward, heirs, on condition that he should execute a release of certain claims, and, on his refusal, to B. and his heirs; A. dying before the Testator, the devise to B. took effect.

1 Ves. 420.

2 P. Wms. 27.

(831.) A contingent estate, which cannot Gore v. Gore, take effect as a Remainder for want of a Freehold to support it, may be good as an Executory Devise. Thus, upon a devise to A. and B. for five hundred years, "and after the determi"nation of that term, to the first son of F. G., "to be begotten in tail male," it was ultimately decided that the estate vested in the son on his birth, independently of, though without prejudice to, the estate for years. (832.) But here, if a previous estate for life had been given to any other person, who happened to survive the Testator, and to die before the birth of the son, the estate tail of the latter, having once been established as a Contingent Remainder, could not then have been converted into an Executory Devise, but must have failed absolutely.

(797.)

CHAP. V.

OF CHATTEL INTERESTS.

SECT. 1.-Of the different kinds of Chattel
Interests.

(833.) ALL the subjects of Real Property, which are generally alienable, may be made subjects of Personal Property also by creating a Chattel Interest in them. These interests may be said to bear a similar relation to the Freehold and Inheritance to that which the Surface bears to a Solid; they differ not only in quantity, but in order or kind; and accordingly whenever in the limitations of a Settlement or otherwise a Chattel Interest is followed by an Estate of Freehold, the latter is more properly said to be subject to than expectant upon the former. It is true that Chattels and Freeholds may have, either of them to the other, the relations of Particular Estates and Remainders; but where the Freehold is preceded by a Chattel only, the Freehold is a present interest, not, if it be a Remainder, in power of alienation only, nor, if it be a Reversion, merely in power of alienation and right of Seignory, but (as we have partly seen) in most of the circumstances and incidents of Title. Of so little account was the property of the inferior classes of society at the

(831.)

(39. 30.)

(33. 42. 302. 390.)

See 2 Bl.

Comm. 142.