THE LESSEE OF ASHTON v. ASHTON

Present LAWRENCE GROWDON, WILLIAM COLEMAN Justices.

ON special Verdict. Devise to the first Heir Male of I.S. when he shall arrive to the Age of 21 Years, he paying to A. and B. the Daughters of I.S. £. 40 each. — After Devisor's Death I.S. had a Son, who attained the Age of 21 Years, and paid his Sisters the £. 40 each.

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 Hares Viventis.