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When Executory Devises Will Be Held Void


WHEN EXECUTORY DEVISES WILL BE HELD VOID. The more common cases of executory devises which are held void as contra vening the rule against perpetuities are those where property is given to A, remainder over upon the in definite failure of issue. We have seen that if the estate over is given upon definite failure of issue, it does not violate the rule.

Suppose an estate is given to A, and his heirs in fee provided that if A dies without issue him surviv ing, it shall go over to B. \Vhat does such a limita tion mean? Does it mean that if A dies without chil dren or issue, the estate shall go to B, or does it mean that the estate goes over only when the line of issue from A shall have become extinct, which might not be for an indefinite number of generations? Now if it means the former, it is a definite failure of issue that is meant, if it means the extinction of the line of direct issue, then it is an indefinite failure of issue, because the time. when the line of issue shall become exhausted is exceedingly indefinite, and may continue for centuries. The death of A, on the other hand, is definite, and is bound to occur within a fixed time. The common law courts have held that such a devise means an indefinite failure of issue, and that the grant is void ; unless there is something else to indicate that a definite failure of issue was intended.

So, if the condition upon which the estate is lim ited, is against public policy, or contravenes good morals, it is void. The condition must be one which the law will sanction and enforce.

issue and failure