The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCXLIV. Hill. 29 Eliz. In the Common Pleass

SErjeant Fenner demanded the Opinion of the Court in this Case; A. Devised Lands to his Wife for life,* 1.1 and after∣wards to B. his Son, and his Heirs, when he should come to the age of 24 years; and if his Wife died before his said Son should attain his said age of 24 years, that then J.S. should have the said Land until the said age of the said Son: A. died; J.S. died; the Wife died, the Son being within the age of 24 years: If the Executors of J.S. should have the Land after the death of J.S. until the said age of the Son, was the Question.

Anderson and Periam conceived, That he should not; For this Interest limited to J.S. by the Will, was but a possibility, which was never vested in him, and therefore could not by any means come to his Executor. Rhodes and Windham doubted of it.

Fenner put the Case, in 12 E. 2. Fitz. Condition, 9. Where Land is mortgaged to J.S. upon payment of Mony to J.S. such a day, or his Heirs; and before the said day, J.S. by his Will de∣viseth, That if the Mortgagor pay the Mony, that then A. B. should have them; That this Devise of this possibility is good; Quod omnes Justiciarii negaverunt.

And Windham put the Case between Weldon and Elkington, Plow. Com. 20 Eliz. 519. Where Lessee for years devised his Term to his Wife for so many years of the said Term as she should live; And if she died within the Term, that then his Son Francis should have the Residue of the Term not encurred: Francis died In∣testate; the Wife died within the Term; The Administrator of Francis had the residue of the Term, and yet nothing was in Francis the Intestate, but a Possibility. A Lease was made to one Hayward, his Wife, and one of his Children; Habendum to Hayward for 99 years, if he should so long live: and if he die within the said Term, that then his said Wife should have the said Term for so many years which should be to come at the time of the death of her Husband; And if she died also before the said Term, That then the Child party to the Devise, should have it for so many years of the said Term as should not be expired at the time of the death of the Wife. And the Case of Cicill was vouched, 8 Eliz. Dyer, 253. A Lease was made to William Cicill, pro termino 41 annorum, si tam diu vixerit. Et si obierit infra praedictum terminum, extunc Uxor praedicti William Cicill habebit & tenebit omnia & singula praemissa pro residuo termini praed. incompleto, si tam diu vixerit. Et si the said Eliz. obierit, infra praedict. terminum, tunc William Cicill filius, &c. And it was holden by Catlyn and Dyer, That these remainders were void; For the Term is determinable upon

the death of William Cicill the Father, and the Residue of the said Term cannot remain.

And by Anderson, The remainders of the Term limited ut su∣pra, are void; For every remainder ought to be certain, but here is no certainty; for it may be, that the first possessor of the Term may live longer, or die sooner, so as he in the remainder doth not know what thing he shall have.

And so also conceived Rhodes, Iustice; And he put the Case be∣tween Gravenor and Parker, 3 & 4 Mar. Dyer, 150. A Lease was made to A. for life by Indenture; and by the said Indenture, a Proviso was, That if the Lessee died within the Term of 60 years then next ensuing, that then his Executors should have it in right of the Lessee for so many of the years as should amount to the number of 60 years, to be accounted from the date of the Indenture. And it was holden, That the secondary Interest to the Executor was void: And that the words concerning the same went only in Covenant.

Notes

• * 1.1

  1 Co. 155.