1 Many illustrations of the nature and qualities of such estates appear herein. For definition see N. Y. R. P. L. § 21. - Ed.

I am unable to see how the devise to Bailey, by the words of the will giving him the use of the land until the event above specified, is affected, as to the duration of the estate, by any other part of the will. The devise over, in the same clause of the will - when Gloversville shall be incorporated - to the trustees of said village, to be disposed of for the purpose and with the proviso therein stated, is a further disposition of the land, to take effect upon the termination of the estate of Bailey. It was not intended thereby to abridge Bailey's interest, but to give the land to others when his interest had ceased. The language of the devise over is "and then," obviously upon the incorporation of the village, " to the trustees." The incorporation is fixed as the limit of the prior estate and the period of commencement of the subsequent one.

Whether, therefore, the latter can be upheld, or is invalid for any cause, can make no difference with the former estate, which had come to its appointed end by an event wholly independent of the operation or failure of that attempted to be created by the will to succeed it.

If the devise of the first estate had been in fee, with a proviso, that, upon the contingency expressed in the will, the trustees should have the land, the case would be very different. The first estate would then be determined only by the second taking effect. That would be according to the language and spirit of the limitation. The limitation, in such a case, would be what is denominated a conditional limitation. There would be an estate in fee, determinable, during the regular period of its continuance, by another estate taking effect in an event provided for. And if the trustees could not take the land, the estate in fee would continue, as if no provision for another estate, in defeasance of it, had been made. 4 Kent, 127; Lewis on Perpet. 531, 535, 657, 658.

It was doubtless the intention of the testator to dispose absolutely of the entire interest in the land, but he intended to give the land to Bailey until a particular event, and then to the trustees. Assuming the devise to the trustees to be void, his intent, as to that, must fail; but there is no ground for claiming that, in that case, he intended Bailey's estate should continue beyond the limit prescribed in the devise to him. The event was not foreseen, and consequently no provision was made for it. The court cannot supply what probably the testator would have done, if he had known the law when he framed the will. Pickering v. Langdon, 22 Maine, 428, 429; Chapman v. Brown, 3 Burr, 1634; Doo v. Brabant, 4 Durn. & East, 706.

Several cases arising upon the Eden will are referred to and relied upon in favor of the defendant. Anderson v. Jackson, 16 John. 382; Lion v. Burtiss, 20 John. 483; Wilkes v. Lion, 2 Cow. 333; Waldron v. Gianini, 6 Hill, 601. By that will certain lands were devised to each of two sons of the testator in fee. It was then directed that if either should die without issue, his share should go to the survivor; and in case of both their deaths without issue, the testator's brother and sister should have all the property. It was held that the limitation over to the surviving son was valid as an executory devise, and, having taken effect in his favor, the Supreme Court held that he became seized of the land devised to the deceased son, in fee tail with a remainder expectant in favor of the brother and sister, which estate tail the statute converted into a fee simple absolute. In the Court of Errors the devise to the brother and sister was held void, the Chancellor concurring with the Supreme Court as to the ground of invalidity; but one of the senators placed his opinion on the ground that the latter devise was orginally limited upon too remote a contingency - an indefinite failure of issue of the previous devisees. No division of the court was taken as to the ground. There is nothing here to conflict with the views above presented, or which can aid the defense.

Some other cases are cited by the defendant's counsel. In Jackson v. Brown, 13 Wend. 437, the testator devised lands to his son, S. B., for life, with remainder to the first son of S. B. for life, with remainder to the first and every other son and sons of the eldest son of his son, S. B., successively, to hold the same in tail male. The court decided that the limitation over to the great-grandson was too remote, and that the particular intent of the testater, to give life estates to the sons, must therefore fail; but, to effect the general intent, to keep the estate in his family as long as possible, construed the devise to give a life estate to the son and an estate tail to the grandson. The point of the case is, that the general intent of a testator, apparent upon a will, will be carried into effect, if practicable, although his particular intent cannot prevail. In the present case no intention of the testator as to the disposition of the land after the termination of the first estate, appears upon the will, except that which, assuming the devise over to be void, the law will not execute.

In Doe ex dem. Cannon v. Rucastle, 8 Man. Grang. & Scott, 876, the testator devised land to his son for life, and from and after his death gave the same to the issue of his son, and if he should not have any, to the testator's heirs-at-law. The court decided that the son took an estate tail. In Ibbetson v. Ibbetson, 10 Simons, 495, the only point adjudged was that a trust of personal estate was void for remoteness. These cases, and Tollemache v. Coventry, 8 Bligh, N. S. 547, cited in the last case, have no application to the one before the court, Mortimer v. Frost, 2 Simons, 274, and Macktvorth v. Hinkman, 2 Keen. 658, are similar to Jackson v. Brown, before stated.

The foregoing are the principal cases cited on the part of the defendant; the remaining ones are to rules about which there is no dispute.