Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Fredrick Mcleod & Amos L. Dell vs. Philip Dell & W.M. Dell

Lower Court

  • Alachua County

Date

  • 1861

Box

  • 473

Folder

  • 853

Transcript

5

Where an express or implied estate tail is given, the absolute estate vests in first taker. [11[th] Wen. 227: 4[th] Kent, 227.

The rule in Wild's case:

Where lands are devised to a person and his children, and he has no child at the time of the devise, the parent takes on estate tail.

[Wild's case. 6[th] Rep., 17.

[Davis vs. Broadhurst, Doug. 321.

[Broadhurst vs. Morris, Doug. 421.

Where an estate is given to R. or his children, and he has children, but no grand children; it was held by WILD, Judge, that R, took an estate tail, otherwise the devise to the great grand children would have been void.

[10[th] Metcalf, 502.

A devise to J. for life, then to her daughter B. and her children. B. had one child at the time and others afterwards: held the after born took a fee equally with the others.

[2d Jarman on Wills, 312.

"PERPETUITIES."

That perpetuities and monopolies are contrary to the genius of a free state, and ought not to be allowed.

[Thompson's Digest, 3, sec. 24.

The rule against perpetuities in England is life or lives in being, and 21 years gestation allowed, when needed.

[7 Bligh, N.S. 202.

Have we, can we adopt this rule in the teeth of our Constitution, or shall we adopt the ruling which declares executory devises to be perpetuities as far as they go?

[1 Salk. 228, 12, Mod. Rep., 278: 285.

Chancellor Kent says: 4 Com., 261, Note 10 John's Rep.. 17:

"In those states where there are no fines or recoveries, the executory devise is a perpetuity, so far as it goes. It is