Jackson ex dem. Brewster v. Bull

Per Curiam.

The limitation over must be considered void. Whether it would have been void, as applying to an indefinite failure of issue by means of which the devisee would take an estate tail, (with us is turned into an estate in fee,) is a question we need not now discuss, for it is void oh another ground, as being repugnant to an absolute control over the estate which the testator intended to give. The testator gives the estate to Moses, his heirs and assigns, and then “ in case my said son Moses should die without lawful issue, the property he diedpossesed of, I will,” &c. The case of The Attorney-General v. Hall (Fitzg. 314.) is in point to show that these last words imply a power of alienation by the devisee, and, consequently, an absolute ownership repugnant to the limitation, and destructive of it. The limitation is to attach only upon the property he died possessed of. In the case cited, there was a devise of real and personal estate to the testator’s son, and to the heirs of his body, and that if he should die leaving no heirs of his body, then so much of the real and personal estate as he should be possessed of at his death was devised over to the complainants, in trust, The son, in his lifetime, suffered a common recovery of the real estate, and made a will as to the personal estate, and died without issue, and a bill was filed against the executor to account. The Lord Chancellor King, aided by the master of the rolls, and the chief baron of the exchequer, determined that the devisee was tenant in tail of the real "estate, and had barred the plaintiffs by the common recovery; and that the executrix was not to account for the personal estate, to the persons claiming under the limitation, for that it was void, as repugnant to the absolute ownership and power of disposal given by the will.

Lord 'Hardwicke has given his sanction to the accuracy of that case, and to the authority of that decision; (1 Ves. 9.) and the supreme court of Massachusetts, in the case of Ide v. Ide, (5 map, 500.) have made a similar decision, in a like case, nuup *21 and upon the same authority. In that case, after an absolute devise of real and personal estate to the son, the will adds that if he should die and leave no lawfnl heirs, what estate he -shall Leave, to be equally divided, &c. The limitation there was held to be repugnant and void, though it was admitted, that without that clause, it would have been a good executory devise. The question does not turn upon the fact, whether the devisee had exercised his power of alienation. He had not, as to the personal estate, in the case from Fitsgibbon; but the question is, whether the clear intent of the testator to give him an absolute control over the property, be not inconsistent with, and destructive to, what would otherwise have been a good and binding limitation. A valid executory devise of real or personal estate, cannot be defeated at the will and pleasure of the first taker. This is a settled principle. It cannot be barred by a common recovery, or by any other mode of alienation. (Pells v. Brown, Cro. Jac. 599. 1 Salk. 299. Powell, J.) The devisee has nothing more than the use of the property devised; and if he could legally exert an absolute ownership over the property, it would then be useless for the law to recognise and guard with any anxiety these testamentary settlements. This point was sufficiently discussed in the case of The Executors of Moffat v. Strong * already decided.

Judgment for the plaintiff.

Ante, p. 12