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

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

Lower Court

  • Alachua County


  • 1861


  • 473


  • 853



Inalienable, cannot be barred by fines or recoveries. The ultimate devise takes under the will despite and independent of first taker, which raises the doctrine of statute De Donis. A remainder in a chattel, cannot be limited by a remainder; first taker takes all. Negroes personalty, land to be sold; hence this is an executory devise, subject to rule against perpetuities. Great grand children cannot take as immediate devisees, because they were not in rerum natura. They cannot take in remainder, for the gift is immediate, and the interest of testator is manifest and certain. Great grand children should take, and in default, then over; hence executory devise and perpetuity."

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

An executory devise and perpetuity are more repugnant in a free state than an estate tail, because they include every species of property.

[Anderson vs. Jackson, 16 John's, 418.

These devises suspend power of alienation and ownership till contingency is determined in the very moment and by the death of child. Disables from disposing in the course of long life, for education and support of self or offspring.

"And I should think that sound policy, and the very policy that dictated the act abolishing entails would lead us not to give encouragement to the doctrine of executory devises."

Upon failure of children or any or my children, or their children, then over.


"A definite failure of issue is where a precise time is fixed by the will for the failure of issue, as in the case of a devise to A; but if he dies without lawful issue living at the time of his death," then over.

An indefinite failure of issue is just the converse; it means the period when the issue or descendants of the first taker shall become extinct, without reference to any particular time, or any particular event. An executory devise upon any