Page:United States Reports, Volume 1.djvu/15

 4  . This Rum appears to have been ent to atisfy P’s Debt. If it had been Money, there could have been no doubt but the Defendant would have retained it. And the only difference is that a Commodity was ent which must be converted into Money, before the Sum to be paid to P, could be acertained, but, as to P’s interet in it, the Cae was the ame. Therefore judgment, by the whole Court, was given for the Defendant.

Chew and Moland  Quer.—Galloway and Dickenon  Def.  

N pecial Verdict. Devie to the firt Heir Male of I. S. when he hall arrive to the Age of 21 Years, he paying to A. and B. the Daughters of I. S. £. 40 each.—After Devior’s Death I. S. had a Son, who attained the Age of 21 Years, and paid his Siters the £. 40 each.

The Quetion was, whether the Son of I. S. could take by executory Devie?–It was objected for the Defendant, 1t. That this being a preent Devie it could not take Effect becaue to a Peron not . 2d. That though it might be contrued a future Devie, yet it was too remote; for an executory Devie mut take effect within the Compas of a Life or Lives , or at farthet within nine Months after: And in this cae 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 firt Heir Male of I. S. which would have been too remote a Contingency, and would have tended to a Perpetuity. And the Cae mut be conidered as at the Time of making the Devie, that is, how it might be; and not how it has actually happened. 3d. That the Son of I. S. could not take, becaue the Limitation was to the firt Heir Male and .

For the Plaintiff it was anwered: 1t. That this was not preent Devie, the Tetator taking Notice that I. S. had Son born by the Word firt Heir Male, and uing the Words when and paying.–2d. That this Contingency was not too remote, becaue the Tetator by the Words firt Heir Male, mut have meant firt Son; and that uch a Contruction mut be made as to carry the Intent of the Tetator into Execution.–3d. Firt Heir Male are Words of Purchae and , and Law will upply the Words of the Body in a Will.

The Intent of the Tetator is clear, that the firt Son if I. S. hould take. Therefore judgement

Caes cited; 1 Lord Raym. 207 1 Salk 229. Talbot’s Caes 44. 50. 145. 1 Vern 729. Vin. Dev. 315. 2 Vent 311. 1 Peer. Williams 229. 3 Co. 20, 2 Peer. Williams 196. 2 Salk 621.

Chew  Quer. Moland and Dickenon  Def. April