The rules governing transfers of land by devise are much more liberal and elastic than those governing such transfers by deeds. Certain estates which would be void if created by deed are valid when created by a will. Estates of this character are known as executory devisees.

10 England and the United States are practically the only countries where this right exists to such a complete extent. In countries whose laws are based upon the Roman or civil law, a certain portion of the land owned by a testator must go to his wife or children, if any. For an illustration, of such provision, see the subject of Spanish-American Law, Vol. XII, Sub. 40. 11 See statutes of particular States and also subject of Wills, Vol. X, Subject 32.

"'Before the close of this chapter, it may be proper to advert to the doctrine of Executory Devises; which seems to have originated in the indulgence shown to testators in effectuating their intentions, whereby the judges were induced in cases of wills, as well as in limitations of uses, to dispense with the strict rules of the common law, according to which no remainder could be limited over after an estate in fee-simple, nor a freehold be created to commence in future. An executory devise, or bequest, therefore, is such a limitation of a future estate or interest in lands or chattels, as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law. Fearn. Exec. Dev., 4.

There are three kinds of executory devises; the 1st is, where the devisor disposes of the whole fee, but upon some future contingency qualifies that disposition, and devises the estate over to some other person, 23 Eliz. Dyer, 127 a. Hoe vs. Gerils, cited Palm., 136. Pells vs. Brown, Cro. Jac, 590; Hanbury vs. Cockerill, 1 Rol. Abr., 835; Heath vs. Heath, 1 Bro. C. C, 147; Doe vs. Weston, 2 Bos. & P., 324. And though the first estate be not vested, but contingent, yet, if the ulterior devise is limited so as to take effect in defeaz-ance of the estate first devised, on an event subsequent to its becoming vested, it will be deemed an executory devise. Gulliver vs. Wicket, 1 Wils., 105. But it is a settled rule of law that no devise is deemed executory, which can be supported as remainder. 2 Bos. & P., 298; Denny, d. Agar, vs. d. Agar 12 East., 253; Crump vs. Norwood, 2 Marsh., 161; Romilly, knt. vs. James, 6 Taunt., 263. It may be further observed, that an executory devise cannot be barred. Pells vs. Brown, supra. Mullinix's case, cited Palm., 136; Anto, vol. 1, p. 515, 516, n. (7). And therefore, in order to prevent their being used as a means of creating perpetuities, it was established, that an executory devise must vest within the compass of a life, or lives in being, and twenty-one years and nine months after. Pells vs. Brown, supra. Fairfax vs. Heron, Prec. in Ch., 67; Taylor, d. Smith vs. Biddall, 2 Mod., 289; Stephens vs. Stephens, Forr., 228; Leake vs. Robinson, 2 Meriv., 363. For the principle on which these limits have been fixed, see Mr. Hargrave's second argument in the Thelluson causes, p. 57; ante, vol. 1, p. 515-516, n. (7). A devise after a general failure of heirs or issue, is too remote, 6 Cru. Dig., 449; and we have seen, that the words "dying without issue/' or "without leaving any issue," are construed, as to the freehold, to mean a dying without issue generally, by which there may be at any time a failure of issue, ante, vol. 1, p. 548, n. (n); though as to the personal estate it is different, for there the same words shall be construed to mean a dying without leaving issue at his death; the reason of which difference in the case of personalty is, in order to support the devise over, which otherwise would be too remote. Forth vs. Chapman, 1 P. Wms., 663; Atkinson vs. Hutchison, 3 P. Wms., 261; Southby vs. Stonehouse, 2 Ves., 615; Earl of Stafford vs. Buckley, Ibid., 180; Exel v. Wallace, Ibid., 120; Read vs. Snell, 2 Atk., 616; Sheffield vs. Lord Orrery, 3 Atk., 288; Dansey vs. Griffiths, 4 Maul. & S., 61; Crooke vs. De Vandes, 9 Ves., 197, 203. The reason wherefore, in the case of a devise of lands of inheritance to one, or to one and his heirs and if he die without issue, then to another, the subsequent words, "if he die without issue," shall either reduce or enlarge his estate to an estate-tail, is, because they are supposed to be inserted in favour of the issue, that they shall have it; and the intent shall take place. S. C. 4 Maul. & S., 62. In the case of a devise in fee, with an executory devise over, curtesy attaches on the first estate, and is not defeated by its determination. Buckworth vs. Thirkell, 1 Collec. Jur., 332; Ante, vol. 1, p. 561, n (g).

The 2d sort of executory devises, is that of a devise of a freehold estate to commence in futuro; as where the devisor, without departing with the immediate fee, gives a future estate, to arise either upon a contingency, or at a period certain, unpreceded by, or not having the requisite connexion with, any immediate freehold; to give it effect as a remainder. Fearn. Ex. Dev. 4th ed., 17, 24. Pay's case, Cro. Eliz., 878. Clarke vs. Smith, 1 Lutw., 798; 1 Freem., 244; 1 Wils., 206. Devises of this sort are sometimes supported as remainders. See Purefoy vs. Rogers, 2 Saund., 380; Doe, d. Mussell vs. Morgan, 3 T. R., 763. And where-ever the first devise can be construed to pass an estate-tail only, the devise over will be deemed a remainder expectant on the determination of that estate-tail, and not an executory devise. Spalding vs. Spalding, Cro Car., 185; Wealthy vs. Bosville, Rep. Temp. Hardw., 258; Doe, d. Mussell vs. Morgan, supra; Ante, vol. 1, p. 547, 8 n. (w). Executory devises of this sort must vest within the same time, as was mentioned to be prescribed for those of the first kind. But it should be observed, that "by the time of vesting," is meant, the vesting of the freehold. For although land should be limited for a long term of years, with the remainder to the unborn son of a person then living, this executory devise to such unborn son would be good; because the vesting of the freehold is confined to the period of a life in being; for upon the birth of such son, the freehold will vest in him; or, upon the death of such person without any son, it must vest somewhere else, subject only in either case to the preceding term. Gore vs. Gore, 2 P. Wms., 28. When an estate is devised to a person upon an event, which is too remote; a devise over, depending on the same event, is also void. Proctor vs. Bishop of Bath, 2 Hen. BL, 358; Earl of Chatham vs. Tothill, 6 Bro. P. C, 451; 1 Ves., 134. So a devise after failure of the issue or heirs of A., where no estate-tail is already vested or given by the express words of the will, or arises by implication, to such issue or heirs, is void in its creation; for if A. should have heirs or issue, they might last for ever; and, while they did, there would be nobody who could bar the estate thus devised, so that a perpetuity would be created. Dougl., 506, n. Wright vs. Hammond, 8 Vin. Ab., 110.; 1 Stra, 427; Lanesborough vs. Fox, 3 Bro. P. C, 130; Goodman vs. Goodright, 1 Bl. Rep., 188; Dougl., 507. But though in general a devise after a general failure of heirs or issue, is void, yet this rule admits of some exceptions: As, 1st, where a person who is entitled to a reversion expectant on the determination of an estate-tail, devises the lands to another, after failure of issue of the tenant in tail; this is held to be an immediate devise of the reversion, and therefore good. Badger vs. Lloyd, 1 Ld. Raym., 523; 1 Salk., 232; Fearn. Ex. Dev., 326; Jones vs. Morgan, 3 Bro. P. C, 322; Lytton vs. Lytton, 4 Bro. C. C, 441. 2d. A devise in default of issue of the devisor: which has been construed to be a conditional devise, to take effect at the death of the testator, and has therefore been held not to be executory. Willington vs. Willing-ton, 1 Bl. Rep., 645; French vs. Cadell, 3 Bro. P. C,