The Lessee of Asheton v. Asheton

The Lessee of Asheton v. Asheton. Present, Lawrence Growden and William Coleman, Justices. Devise to the first heir male of I. S., when he shall arrive to the age of twenty-one years, he paying to A. & B., daughters of I. S,, 401 each; after the testator’s death, I. S. had a son: Held, that he was entitled to recover, it being the intent of the testator, that the first son of I. S. should take. On special verdict. Devise to the first heir male of I. S., when he shall arrive at the age of twenty-one years, he paying to A. and B., the daughters of I. S., 401. each : after devisor’s death, I. S. had a son, who attained the age of twenty-one years, and paid his sisters the 401. each. Chew, pro Quer. Moland and Dickenson, pro Def. The question was, whether the son of I. S. could take by executory devise ? It was objected for the defendant — 1st. That this being a present devise, it could not take effect, because to a person not in esse. 2d. That though it might be construed a future devise, yet it was too remote ; for an executory devise must take effect within the compass of a life or lives in esse, or, at farthest, within nine months after : And in this case, I. S. might have had no son, but a daughter, who might have had a daughter, who might have had a son, who would have been the first heir male of I. S., which would have been too remote a contingency, and would have tended to a perpetuity. And the case must be considered as at the time of making the devise, that is, how it might be ; and not how it has actually happened. 3d. That the son of I. S. could not take ; because the limitation was to the first heir male, and nemo est hmres viventis. For the plaintiff,\ it was answered : 1st. That this was no present devise, the testator taking notice that I. S. had no son born, by the word first heir male, and using the words when and paying. 2d. That this contingency was not too remote ; because the testator by the words first heir male, must have meant first son ; and that such a construction must be made as to carry the intent of the testator into execution. 3d. First heir male are words of purchase and designatio personce, and the law will supply the words, of the body, in a will. See Seattergood v. Edges, 12 Mod. 279, 287; Co. Litt 24. [MAJORITY — By the Court.] By the Court. The intent of the testator is clear, that the first son of I. S. should take : therefore, judgment, By the Court. Cases cited; 1 Lord Raym. 207; 1 Salk. 229; Talbot’s Cases 44, 50, 145; 1 Vern. 729; Vin., Dev. 315; 2 Vent. 311; 1 P. Wins. 229; 3 Co. 20; 2 P. Wms. 196; 2 Salk. 621.