executory devise, *and the Court of Queen's Bench in the judgment in the present case considers that it was governed by the case of Doe v. Selby. It is admitted by the Court of Exchequer Chamber that by the words used by the testator in the limitation over, he intended to include two events, first, the event of Ann never having a child at all, and the compound event of her having a child, and that child dying within the prescribed age. The first event, if it stood alone, was legal. The second event was too remote to take effect according to law. The Court of Exchequer Chamber, however, was of opinion, that the testator included all these events, some legal, others illegal, in one class, and that the Court could not separate them; that the true meaning of the clause was, "in any event which can happen in which Ann dies leaving no child, who, if male, attains twentythree years, or if female, twenty-one, I give the estate over." The whole question, therefore, as before observed is, whether the clause for carrying the estate over is divisible or not. If it is, the appellants ought to succeed, if not, the respondents ought to succeed. The terms used in the limitation over include two contingencies; would there have been any real difference if the terms had been to Ann for life, with remainder to her children in fee, and if she have no child, or if she have a child who if a son shall not attain twenty-three years, or if a daughter who shall not attain twenty-one years, then over? In such case it can hardly be doubted but that the estate would. be devised over in either of two events, and that in one event the devise over would be good as a remainder, though the second alternative would be objectionable as an executory devise on the ground of remoteness. The Court of Exchequer Chamber remarks that in the cases of Jones v. Westcomb, Gulliver v. Wickett, and the other cases cited upon the argument, the limitations over, whether divisible or not, were in any event legal, and those cases, therefore, do not affect the question in this, which turns upon the divisibility of the contingencies; and, commenting upon the case of Murray v. Jones, the COURT observes, "That if Lady Bath had separately stated. in her will the two contingencies in either of which Mrs. Markham was to take, each would have been legal, and her including them in one expression made no difference. It is like expressing the individuals of a class all of whom can legally take, which will be good; but the reverse is the case if some of the individuals cannot legally take." That was the case in Leake v. Robinson, which is clearly distinguishable from the present, for the reasons already stated; and it may indeed EVERS ፖ. CHALLIS. [ *548 ] July 8, be cited as an authority to show that the limitation over in that case might have been good, if the terms used had been such as to separate such part of the class as could take from such as could not. No case or authority has been cited to show that where a devise over includes two contingencies which are in their nature divisible, and one of which can operate as a remainder, they may not be divided though included in one expression; and our opinion does not at all conflict with the authority of the cases of Proctor v. The Bishop of Bath and Wells (1), and Jee v. Audley (2), in neither of which cases was it possible for the limitation over to operate as a remainder. We are therefore of opinion, for the reasons we have given, that the Court of Exchequer Chamber was wrong in holding that the contingencies in the limitation over could not be separated; and as that was the ground of the decision, it is unnecessary to enter into the consideration of *various points which were made, and cases which were cited upon the argument before your Lordships, as we think that the devise was divisible, and that the judgment of the Court of Queen's Bench was right, and that the will contained a valid devise on the death of Ann to the children of John and Sarah of the property originally given to Elizabeth Maria and Ann respectively for their lives. LORD CRANWORTH: My Lords, in this case I do not propose to trouble your Lordships by going over the facts, or stating the terms of the devise. The will has been so fully considered, that after the unanimous opinion which we have received from the learned Judges upon its construction, I think it is unnecessary for me. to do more than to state to your Lordships that I concur in the opinion of the Judges, and very shortly to state the grounds of that concurrence. I think that the gift to the children of John and Sarah on the death of Ann without issue in 1847 took effect as a contingent remainder and not as an executory devise, and so was good; because when the particular estate determined, the contingency on which the remainder was to take effect had happened. On the death of Ann, the testator gives what she had enjoyed for her life to her children, that is, sons at the age of twentythree and daughters at twenty-one. This devise, according to the decision of the Court of Queen's Bench in Doe d. Dolby v. Ward (2) would, if Ann had left any children, have given (1) 3 R. R. 417 (2 II. Bl. 358). (3) 48 R, R. 599 (9 Ad, & El, ¿82), them a vested estate in fee simple with a subsequent executory devise, or attempted executory devise to the children of John and Sarah in the event of the sons dying under twentythree. This would have been bad for *remoteness. But in the event which happened the gift to the children of Ann never took effect, so that the question as to the remoteness of the gift over on the death of those children under twenty-three never arose. On the death of Ann, the contingency on which onesixth of the shares of Elizabeth and Ann was given to the children of John had happened, for Ann had then died without any child who could attain the age of twenty-three years; and there is no rule which could prevent the estate from then vesting in those to whom it was given on a contingency which happened at the instant when the particular estate determined. The case is not distinguishable in principle from Gulliver v. Wickett (1). There, it is true, the devise over, if there had been a child, was on an event not too remote, and which, therefore, might have taken effect. In that respect it differs from the present case; but the COURT held that the devise in the event which did happen, of there being no child, took effect, not as an executory devise but as a contingent remainder. I state that, although I know that a very high authority, Mr. Fearne, says the contrary; but looking at the case, I can come to no other conclusion. The note of the reporter, at page 106, appears to me to show that he did not fully appre ciate the force of Chief Justice LEE's language, which seems to have been studiously framed with the view of showing that in one event, that which did not happen, namely, the event. of there having been a child, the gift over must have taken effect (if at all) as an executory devise, but in the event which did happen, namely, there being no child, the gift took effect as a remainder. The language is this; after stating the case, he says, taking the proviso to be a limitation, and not a con dition precedent, these cases amount to a full answer *(the cases he had referred to), and therefore we are all of opinion, "That the true construction of this will is, that here is a good devise to the wife for life, with remainder to the child, in contingency in fee, with a devise over, which we hold a good executory devise, as it is to commence within twenty-one years after a life in being, and if the contingency of a child never happened, then the last remainder to take effect upon the death of the wife; and the number of contingencies is not material, if they are all to happen within a life in being or a reasonable time afterwards." (1) 1 Wils. 105. EVERS ľ. CHALLIS. [ *551 ] Now, I am aware that Mr. Fearne treats the gift as an executory devise, and not as a remainder. But this is directly at variance with the language of the COURT (which I have just read), and as I think with the well understood distinctions between executory devises and contingent remainders. If the language of the gift over had been that, "In case of the death of my said son, or either of my said two daughters without leaving a child who shall attain the age of twentythree years or without ever having had a child, then I give the share of such son or daughter unto the children," &c.; surely, on the happening of the latter alternative, namely, the death of one of the daughters without ever having had a child, the children taking under the gift over, would have taken a remainder. They would have taken an estate expressly given to them on the determination of the preceding life estate, given to them, it is true, on a contingency which, according to the hypothesis, would have happened at the instant when the particular estate came to an end. I can see no distinction, when we are only construing the language of the will, between the case where the contingency of dying without having had a child is, as I have suggested, expressed, and where it is implied, as it is in the present case. There is a contingent *remainder in fee to the child of the tenant for life if she had had one; if she had none then there is a gift to others in fee; the contingency must be determined at her death; and whether the result should be to give the estate to her own child, or to the children of her brother and sister, in either case the gift must take effect as a remainder, for no prior estate is divested or displaced. It is true that if the former alternative had happened, that is, if the daughter, tenant for life, had left a child, then there was a gift over on the death of that child, which was void. for remoteness. That gift over could only take effect, if at all, as an executory devise; for it would be a gift over divesting the fee simple given to the child of the tenant for life. But I see no reason for holding that because in one alternative the gift must have operated as an executory devise, therefore it must do so in the other. In the case which has happened there is a gift to the children of the surviving son and daughter taking effect immediately on the termination of the preceding life estate, and which therefore is unobjectionable. I therefore entirely concur in the unanimous opinion of the Judges, that the judgment of the Exchequer Chamber reversing that of the Queen's Bench was wrong. LORD WENSLEYDALE: My Lords, I entirely agree with the learned Judges in the answer which they have given unanimously to the question which your Lordships proposed to them, and in the advice given by my noble and learned friend who has preceded me. The facts of the case upon which the question arises are very succinctly and distinctly stated in the judgment of the Court of Exchequer Chamber delivered by the late lamented Baron ALDERSON, and no fault can be found with *any part of it prior to that relating to the clause which the Judges in the Court of Exchequer Chamber held that they could not construe divisibly; nor can any objection be made to the principles of construction which the COURT laid down, except as to that particular clause. The COURT held it to be clearly established that the testator gave an estate for life to his daughter Elizabeth Maria, with a contingent remainder in fee to her unborn children, which became vested on the birth of a child, and that upon such child or children being born, but failing, if a male, to attain twenty-three, and, if a female, twenty-one, then he gave Elizabeth Maria's share by executory devise to his three other children equally. That executory devise was too remote. But he also provided by a distinct clause that if Elizabeth Maria had no child the property should go over in like manner to his three other children; and that event having happened, the devise over took effect, not as an executory devise, but as a good contingent remainder to his three other children, one of whom was Ann. She died, never having had a child, and the contingent remainder in fee to her children failed. And the question arises on the terms of the devise over, in which the COURT observes there are not the two events which are separately and distinctly mentioned in the former devise. The devise over, if she shall have no children, is not mentioned in terms at all. The COURT admitted that the testator intended to include in the words of the clause the double events, first of Ann having no child at all (for, certainly, if she never had a child, she must die without leaving a son or daughter who should attain the required age), and, secondly, the compound event of her having a child, and that child dying under the prescribed age. But the COURT did not feel itself at liberty, in the case of an executory devise, so to construe *the clause, but acted on the principle that a devise to a class, as Sir WILLIAM GRANT held. in the case of Leake v. Robinson, could not be split. In concurrence with the opinion we have received from the learned Judges, I think this is a mistake. The gift to a class EVERS 7. CHALLIS. [ *552 ] [ *553 ] |