114 
EXE 
merit, Sec. the recovery (hall be de bonis tejiatoris, See. 
a Rcl. Rep. 400. This-muft mean, where fuch plea is true 
jn faft. Upon plene adminijlravit pleaded by an admini¬ 
ftrator, the plaintiff mull prove his debt, or he (hall re¬ 
cover but a penny damages, though there be affets ; be- 
caufe tire plea only admits the debt, but not the quantum. 
j Salk. 29 6. Special bail is not required of adminiftrators 
or executors in any adtion brought againfl them for the 
debt of tire inteftate, except where they have wafted the 
goods of the deceafed; nor (hall colts be had againft them, 
not even on a writ of error where judgment is affirmed. 
Generally an adminiftrator lhall be charged by others, for 
any debt or duty due from the deceafed, as lie himfelf 
might have been charged in his life-time ; fo far as he 
hath any of the inteftate’s eftate, to difeharge the fame. 
Co. Lit. 219. Dyer, 14. If a man have judgment for land 
in a real or mixed a£lion, and for damages, and then 
dies', his executor or adminiftrator, not the heir, ffiall 
have execution for the damages, but not for the land. 
Fitz. Admin. $ 3. 
If an executor does any wafte, or mifemploys the eftate 
of the deceafed, or doth any thing by negligence or fraud, 
it is a devajlavit, and he (hall be charged for fo much out 
of his own goods. 8 Rep. 133. And a new ex'ecutor may 
have an adtion againft a former executor, who wafted the 
goods of the deceafed ; or the old one may remain charge¬ 
able to creditors, Sec. Hob. 266. If an executor takes an 
obligation in his own name, for a debt due by fimple con¬ 
trail to the teftator, this (hall charge him as much as if 
he had received the money ; for the new fecurity hath ex- 
tinguifhed the old right, and is quafi a payment to him. 
Yelv. 10. 1 Lev. 189. So if the executor lues a perfon in 
trover and converfion, in which he has a right to recover; 
and afterwards he and the defendant come to an agree¬ 
ment, that he ftiall pay the executor fuch a fum at a fu¬ 
ture day, and the party fails, this is a dcvajlavit; and he 
fhall anfwer ad,valorem. 2 Lev. 189. It is a dcvajlavit to 
permit intereft to run in arrear, and then fuffer judgment 
for it; and want of affets to pay before the incurring of 
it by the adminiftrator ftiall not be intended unlefs it be 
exprefsly pleaded. 2 lew. 40. An executor in cafe of a 
dcvajlavit, is in the nature of a truftee of an eftate. Chan. 
Cafes, 304. 
EXE'CUTORY, adj. Performing official duties.— 
What perfon is a king to command executory fervice, who 
has no means whatioever to reward it? Burke. —In law, 
to take effeil on a future contingency.—Contingent or exe¬ 
cutory remainders are, where the eftate is limited to take 
effect, either to a dubious and uncertain perfon, or upon 
a dubious and uncertain event. Blackfone. 
EXE'CUTORY DEVISE, is the devife of a future in¬ 
tereft ; a devife that vefts not at the death of the teftator, 
but depends on fome contingency which niuft happen be¬ 
fore it can veft. 1 Eq. Caf. Abr. 1S6. An executory devife 
differs from a remainder in three material points. 1. That 
it needs not any particular eftate to fupportit. 2. That by 
it a .fee-fimple or other lefs eftate, may be limited after a 
fee-fimple. 3. That by this means a remainder may be li¬ 
mited of a chattel intereft, after a particular eftate for life 
created in the fame. 2 Comm. 172-5. The firIt cafe hap¬ 
pens when a man devifes a future eftate to arife upon a 
contingency: and, until that contingency happens, does 
not difpofe of the fee-fimple, but leaves it to defeend to 
his heir at law. AS if one deviles land to a feme-fole and 
‘ her heirs, upon her day of marriage : here is in effect a 
contingent remainder without any particular eftate tofup- 
port it ; a freehold commencing infuturo. This limita¬ 
tion though it would be void in a deed, yet is good in a 
will, by way of executory devife. For, fmee by a devife 
a freehold may pafs without corporal tradition or livery 
of feifin, (as it nuiftdo if it paffes at all,) therefore it may 
commence in futuro ; becaufe the principal reafon why it 
cannot commence in futuro in other cafes, is the necefiity 
of adftual feifin, which always operates in prajenti. And, 
hnce it may thus commence injuturo , there is no need of 
E X E 
a particular eftate to fupport it, the only ufe of whichds 
to make the remainder, by its unity with the particular 
eftate, a prefent intereft. And hence alfo it follows, that 
fuch executory devife not being a prefent intereft, cannot 
be barred by a recovery, buffered before it commences, 
Cro. Jac. 593. 
2. By executory devife a fee, or other lefs eftate, may be 
limited after a fee. And this happens where a devifor 
devifes his whole eftate in fee, but limits a remainder 
thereon to commence on a future contingency. As if a 
man devifes land to A. and his heirs ; but, if he dies be¬ 
fore the age of twenty-one, then to B. and bis heirs : this 
remainder alfo, though void in a deed, is good by way of 
executory devife. 2 Mod- 289. In both thefe fpecies of 
executory devifes, the contingencies ought to be fuch as 
may happen within a reafonable time, as within one or 
more life or lives in being, or within a moderate term of 
years ; for courts of juftice will not indulge even wills fo 
as to create a perpetuity ; which the law abhors. 1 Salk. 
229. The utmoft length that has been hitherto allowed 
for the contingency of an executory devife of either kind 
to happen in, is that of a life or lives in being, and one and 
twenty years afterwards. As when lands are devifed to 
fuch unborn fon of a feme-covert as ffiall firft attain the 
age of twenty-one, and bis heirs ; the utmoft length of 
time that can happen before the eftate can veft, is the life 
of the mother and the fubfequent infancy of her fon, and 
this hath been decreed to be a good executory devife. 
Forr. 232. This limit was taken from the time in which 
an eftate may be rendered unalienable by a ftriit fettle- 
ment. An executory devife to an unborn fon of a man, 
may be fufpended a few months beyond the life of the fa¬ 
ther and twenty-one years afterwards; by a pofthumous 
birth. 
3. By executory devife a term of years may be given to 
one man for his life, and afterwards limited over in re¬ 
mainder to another which could not be done by deed : for 
by law the firft grant of it, to a man for life, was a total 
difpofition of the whole term ; a life eftate being efteemed 
of a higher and larger nature than any term for years. 
8 Rep. 95. And, at firft, the courts were tender, even in 
the cafe of a will of reftraining the devifee for life from 
aliening the term, but only held, that in cafe he died 
without exerting that ail of ownerftiip, the remainder 
over fhould then take place ; for the reftraint of the power 
of alienation, efpecially in very long terms, was introduc¬ 
ing a fpecies of perpetuity. But, foon afterwards it was 
held, that the devifee for life hath no power of aliening 
the term fo as to bar the remainder-man ; yet, in order to 
prevent the danger of perpetuities, it was fettled, that 
though fuch remainders may be limited to as many per- 
fons fucceffively as the devifor thinks proper, yet they 
mull ail be in efe during the life of the firft devifee ; for 
then, as it is exprelled, all the candles are lighted and are 
confuming together, and the ultimate remainder is in re¬ 
ality only to that remainder-man who happens to furvive 
the reft. It was alfo fettled that fuch remainder may not 
be limited to take effeil, unlefs upon fuch contingency as 
mnft happen (if at all) during the life of thefirft devifee. 
3 P. IVms. 35S. 
If a particular eftate is limited, and the inheritance 
paffes cut of the donor, this is a contingent remainder ; 
hut where the fee by a devife is veiled in any perfon, and 
to-be veiled in another upon contingency, this is an exe¬ 
cutory devij'e : and in all cafes of executory deviles, the 
eftates defeend until the contingencies happen. 1 Lidto. 
798. V/here a contingent eftate limited, depends upon a 
freehold, which is capable of fupporting a remainder, it 
ftiall never be conftrued an executory devife, but a re¬ 
mainder. And fo it is, if the eftate be limited by words 
in prajenti, as w hen a perfon devifes his lands to the heirs 
of A . B. who is living, Sec. Though if the fame were to 
the heir of A. after his death, it would be as good as an 
executory devife. 2 Saund. 380. One by will devifes land 
to his mother for life, and after her death to his brother 
in 
