Cornell University Library KF 605.C69 An epitome of Fearne on contingent remai 3 1924 018 796 460 (IJnrnpU Siaui ^ri|nnl ICibraty Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 8796460 AN EPITOME FEARNE ON CONTINGENT REMAINDERS AND EXECUTORY DEVISES. PRINCIPALLY FOR THE USE OP STUDENTS. BY . WILLIAM M.n^OLBMAN, Esq. PHILADELPHIA : T. & J. W. JOHNSON & CO., No. 535 Chestnut Street. 1878. Entered according to Act of Congress, in the year 1878,. by T. & J. W. JOHNSON & CO., in the Office of the Librarian of Congress, at Washington. PRESS OF HENRY B. ASHMEAD, 1I02 & 1104 Sansom Street. RICHMOND M. PEAESON, LATE CHIEF JUSTICE OF NORTH CAROLINA. Justum ao tenacem propositi virum Non civium ardor prava jubentium, Non vultus instantis tyrauni, Mente quatit solida. PREFACE. An acquaintance with Fearne is indispensable to the student who desires to be thoroughly grounded in the common law relating to real property. This little work is intended to be a full and complete abstract of Fearne, and to serve as an introduction to the original work. It is. designed primarily for the use of students; but it is hoped that it will not be without value to lawyers en- gaged in active practice. It contains all of Fearne's principles, separately and distinctly set forth. Under each principle is given a single, simple case, by way of example, in illustration. Then the writer has endeavored to add such explanation as would give the student a clear and distinct view of the particular principle under consideration. He has aimed to reproduce Fearne's doctrines themselves, referring the reader to the original work for the reasoning upon which they are based. The writer has consulted, for the most part, Sanders, Butler and Hargrave, and has preferred to employ their lan- guage, as he has that of his author, when he has been able to do so. Concord, N. C, March 18, 1878. ANALYSIS. INTKODUCTION. PAGE Distribution of estates with regard to their certainty and the time of their enjoyment, ..... 1 CHAPTER THE FIRST. A CONTINGENT REMAINDER DEFINED, AND ITS.SEVERAl, KINDS DISTINGUISHED, Section I. Definition of a coutingent remainder, .... Section II. Four kinds of contingent remainders, (a) Those which depend entirely on a contingent de- termination of the preceding estate, ib) Those where the contingency on which the re- mainder is to take effect is independent of the ■determination of the preceding estate, . (c) Those where the remainder is Uniited to take effect upon an event, which, though-it certainly must happen some time or other, yet may not happen till after the determination of the preceding estate, ........ (d) Those where a remainder is limited to a person not ascertained, or not in being at the time when such limitation is made, . . . . 1* VI ANALYSIS. Section III. PAGE Distinction between contingent remainders of the first sort and conditional limitations, . . .7 Conditional limitations depend upon an event which de- feats the preceding estate; while on the other hand, contingent remainders await the natural expiration of the preceding estate, ...... 7 Section IV. Exception from the third class of contingent remainders, 10 Where an estate is limited to a person for a term of years, if he shall so long live, and after his decease, re- mainder over to another; if the term of years he of so long duration that the person cannot by common possibility survive it, in that case the remainder over is regarded as vested and not as contingent, . 10 Section V. Exception from the fourth class of contingent remaioders, 12 These exceptions are of two kinds, viz. : A. Those falling under the rule in Shelley's case, and which are discussed in this section, . . .12 £. Where it can be plainly collected from a will that the testator used the words " Jieirs of the hody, &c.," as a descriptio personse, which exceptions are discussed in the section next succeeding, . 33 V. 1. Where the estate of freehold limited to the ancestor is determinable on an event which may happen in his lifetime, . . .14 V. 2. Where the limitation to the heirs, or the heirs of the body of the ancestor, is contin- gent, 16 V. 3. Where the ancestor's estate of freehold is limited to him in trust for some other person, or to answer some particular purpose, . . 17 ANALYSIS. Vll PAGE V. 4. Whore there is a joint limitation of the free- hold to several, followed by a joint limitation to them of the inheritance in fee simple, . 17 V. 5. Where the limitation of the freehold is not joint, but successive, . . . . .18 V. 6. Where contingent limitations intervene be- tween the preceding freehold and the subse- quent limitation to the heirs, . . .19 V. 7. Where a limitation to the feme for life is followed by a remainder to the heirs of the body of baron and feme, . . . .20 V. 8. Where the freehold results to the ancestor by implication, ...... 20 V. 9. Where the estate limited to the ancestor is equitable, and the limitation to his heirs carries the legal estate, . . . .21 V. 10. Where the estate limited to the ancestor is legal, and the estate limited to the heirs , is equitable, ....... 21 V. 11. Where the land is copyhold, . . .22 V 12. W^here limitations of copyhold lands to the heirs of the surrenderor are preceded by no freehold limitation to the surrenderor himself, 22 V. 13. Where there is a limitation to a person's heirs in one deed or instrument, and he acquires the freehold by another, . . 22 V. 14. Where there is a limitation to a person for life by deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment con- tained in that deed, 23 V. 15. Explanation of the expression, "i[)o?-c?so/pw>-- chase," as distinguished from that of " words of limitation," in the oases to which the rule in Shelley's case is considered to apply, . 23 ANALYSIS. PAGE V. 16. Effect of the words "heirs mah of the bodi/, &o.,'' when they operate as words of purchase, 25 V. 17. The supposed origin of the rule in Shelley's case, ........ 25 V. 18. Effect of the rule in Shelley's case on equit- able limitations in marriage articles, . . 26 V. 19. Effect of the rule in Shelley's case on other kinds of equitable limitations than marriage articles, with a distinction between trusts executed and trusts executory, . . .27 V. 20. Perrin and Blake, 28 V. 21. The propriety of the determination of the Court of King's Bench in Perrin and Blake, 29 V. 22. Cases anterior to that of Perrin and Blake show that the rule in Shelley's case ought to have been applied in Perrin and Blake, . 29 V. 23. Arguments used in the Court of King's Bench in support of the determination in Perrin and Blake, . . . . .29 V. 24. Cases subsequent to that of Perrin and Blake literally falling within the rule in Shelley's case, ...... 30 V. 25. Effect of the rule in Shelley's case, where there is a limitation to the ancestor for his life, and a subsequent limitation to the heir of his body, in the singular number, without words of limitation superadded, . . .30 V. 26. Effect of the rule in Shelley's case, where, after a limitation to the ancestor for life, and a subsequent limitation to the heirs of his body, in the plural number, words of limitation are superadded, 31 V. 27. Present extent and prevalence of the rule in Shelley's case in the construction of limita- tions contained in deeds and marriage articles, 32 ANALYSIS. IX FAa£ V. 28. Present extent and prevalence of the rule in Shelley's case in the construction of limita- tions contained in wills, . . . .32 Section VI. Exceptions where it can be plainly collected from the words " heirs of the body, &c." that the testator intended a descriptio personse, . . . .33 VI. 1. Where the words " heirs of Ms hody, &c." have been adjudged to be a descriptio personse, . . 34 VI. 2. Whether in a limitation to " the heirs male," the special heir must also be heir general, . . . . 35 Section VII. VII. 1, The uncertainty of a remainder ever taking effect in possession, does not make the remainder contin- gent, ......... 35 VII. 2. Application of this doctrine to the usual limita- tion to trustees for preserving contingent remainders, 36 Section VIII On the effect of contingent remainders intervening be- tween the particular estate and the remainders over, in making them contingent or not, . . . .36 VIII. 1. Where the intervening contingent remain- ders are not in fee simple, ..... 36 VIII. 2. Where they are in fee simple, . . .37 Section IX. On the effect of a power of appointment on estates lim- ited to take effect in default of appointment, . 38 Section X. Where a remainder is limited so as to depend on a con- tingency affecting the preceding estate, but which may not affect the ulterior limitations, . . .39 ANALYSIS. PAGE X. 1. Limitations after a preceding estate, wtioli is made to depend on a contingency which never takes effect, 39 X. 2 Limitations over upon a conditional contingent determination of a preceding estate, where such preceding estate never takes effect, . . .39 X. 3. Limitations over upon the determination of a preceding estate by a contingency, which, though such preceding estate takes effect, never happens, 40 X. 4. Where a remainder is limited in words, which seem to import a contingency, though, in fact, they mean no more than would have been implied with- out them, ........ 40 X. 5. Where the contingency upon which the estate is limited has been considered a condition subse- quent, not precedent, . . . . .41 CHAPTER THE SECOND. OF THE NATURE OP THE CONTINGENCY UPON WHICH A REMAINDER MAY BE LIMITED, . . .42 The limitation intended as a contingent remainder may fail to take effect, if the dubious or uncertain event upon which it is made to depend be — (1) An illegal act, 42 (2) If the possibility of its happening be too remote, . 42 (3) If the event upon which it is limited defeat the preceding estate, . . . . .43 The third objection may be subdivided into two branches, viz. : A. Where the condition upon which the subse- quent limitation is intended to take effect ANALYSIS. PAaB (a) Repugnant in law, .... 43 (b) Contrariant in itself, . . . .44 (c) Inconsistent with the quality and nature of the preceding estate, . . . .44 -B. Where the condition operates to defeat or abridge the particular estate, . . .44 1. A distinction is to be taken between those cases where (a) An estate previously limited is made to cease be- fore its' natural expiration, by the happening of the event, ........ 45 (i) A remainder is made to vest during the continu- ance of the particular estate, but not to take effect in possession till after the natural expiration of the particular estate, ...... 45 2. Contingent limitations which enure to augment or en- large the particular estate in the grantee or devisee himself, 46 3. A distinction is to be taken between those cases where (a) A subsequent estate at common law is limited to * take effect upon a condition which is to defeat the preceding estate, . .... 46 (6) The preceding estate is limited, subject to a con- dition, but the remainder is limited, independent of and collateral to that condition, . . .46 4. Conditional limitations, . . . . . .47 5. Whefher shifting or secondary uses are good in sur- renders of copyhold estates ? . . . . .48 6. Where the condition enures to enlarge the preceding estate in the grantee or devisee himself, four requi- sites must concur : (a) There must be some vested estate for the increase to take effect upon, ...... 48 (i) Such estate must continue in the lessee or grantee until that increase happens, . . . .48 XU ANALYSIS. (c) The increase must vest immediately upon the per- formance of the condition, . . . . .48 (d) The particular estate and the increase must be created by one and the same instrument or deed, . 48 CHAPTEE THE THIED. OF THE ESTATE NECESSARY TO SUPPORT A CONTINGENT REMAINDER, 49 I. Some vested estate of freehold must precede and sup- port a contingent remainder, . . . . .49 II. The same rule prevails whether the estates arise on limitations of uses, or are executed in possession at common law, ....... 50 III. There does not appear to be a necessity for a preced- ing freehold to support a contingent remainder for years, 51 IV. The right of entry in the preceding estate, if it exist at the time the contingency happens, is sufificient to support the remainder, ...... 51 V. But if this right of entry accrues at the instant the remainder should vest,- it is not, it seems, sufficient to support it, ....... 51 VI. Where the estates are limited by way of use, and are afterwards divested and turned to right, it has been held requisite to the execution of the subsequent con- tingent uses, that either the cestui que use under some preceding vested use, or that the feoffees or their heirs should enter, in order to revest the estates; but quere, 51 VII. The estate supporting and the remainder supported should both be created by the same deed or instru- ment, ......... 54 ANALYSIS. XUl PAGE VIII. But when the legal fee is devised ■ to or vested in trustees in trust, there is no necessity for any pre- ceding particular estate of freehold to support con- tingent limitations, ...... 54 IX. If rent were granted to A. for the life of another, with remainder over, though the grantee die during the life of cestui que vie, yet, inasmuch as the terre- tenant during this time holds the land discharged, it has been held sufficient to support the remainder, . 54 CHAPTEE THE FOURTH. OF THE TIME WHEN A CONTINGENT REMAINDER SHOULD VEST, 55 I. The preceding freehold estate must endure until the time when the contingent remainder vests, . . 55 II. But the remainder may vest at the very instant that the preceding estate determines, . . . .55 III. Wherever the preceding estate is in several persons, in common or in severalty, a remainder limited upon it in contingency may fail as to one part, and take effect as to another, as the particular tenant of one part may die before the contingency, and the par- ticular tenant of another part may survive it, . . 55 IV. Where a contingent remainder is limited to the use of several, who do not all become capable at the same time, notwithstandrng it vests in the persons first becoming capable, yet it shall divest as to the proportions of the persons afterwards becoming capa- ble, before the determination of the preceding estate, 57 XIV ANALYSIS. CHAPTER THE FIFTH. PAGE HOW CONTINGENT REMAINDEES ARE DESTROYED OR PREVENTED PROM TAKING EFFECT, . . 58 I. A contingent remainder is destroyed by such a deter- mination of the particular estate before the contin- gency happens as leaves no right of entry, . . 58 II. It is destroyed by the forfeiture or surrender or other act of the tenant for life, . . . . .58 III. The surrender of a copy-hold will not destroy a con- tingent remainder, . . . . . .59 IV. But if copy-hold lands be surrendered to the use of a person during his life, remainder in contingency, and the tenant for life die before the contingency happens, the remainder fails, . . . 59 V. Cestui que trust for life cannot, by feoffment or other conveyance, destroy a contingent remainder, . . 59 VI. Bargain and sale, or lease and release, by tenant for life will not destroy a contingent remainder limited on his estate, ....... 60 VII. Since acts by tenant for life, though they give a re- mainder-man title to enter for a forfeiture, yet do not destroy a contingent remainder, unless advantage is taken of the forfeiture by some subsequent vested remainder-man, .... .60 VIII. The same rule holds with respect to the destruc- tion of a contingent remainder, whether it be created by a conveyance at common law or limited by way of a use, ••...... 61 IX. The danger of the destruction of contingent remain- ders by the tenant of the preceding freehold has rendered the precaution necessary of providing for trustees to preserve contingent remainders, . . 61 X. If trustees for preserving contingent remainders join in a conveyance to destroy them, a court of equity will consider it a breach of trust, . . .62 ANAIA'SIS. XV PAGE XI. But it is no breaoli of trust in a tenant for life him- self to destroy them, ...... 62 XIT. Under peculiar circumstances courts of equity will direct trustees to concur in the destruction of con- tingent remainders, . . ... 62 XIII. Equity views the destruction of contingent remain- ders by tenant for life in the light of a wrong, or tort, which it is anxious to prevent, . . .63 XIV. The position has been laid down that any altera- tion in the nature of a preceding estate before the remainder vests will destroy the contingent remain- der; but it seems that this alteration must be such as to change the quantity of the estate, . . .63 XV. Where the particular estate is, by the act of the parties, merged in the reversion, the contingent re- mainder is destroyed, though there be no divesting of any estate, ....... 64 XVI. But the books apparently differ with respect to the destruction of the contingent remainder, in cases where the inheritance becomes united to the particular estate by descent, . . . . .64 This apparent diversity may be reconciled by distin- guishing between the cases where 1. The descent of the inheritance is immediate from the person by whose will the particular estate and contingent remainders were limited, 65 2. The particular estates and contingent remain- ders were not created by the will of the an- cestor from whom the inheritance descended, 65 XVII. But whether, in case of a limitation to one for life, remainder to his first and other sons, &c., remainder to the heirs, &c., of tenant for life, this last limitation is so executed in him as to entitle his wife to dower upon her husband's decease sans issue, has been a question, 65 xvi ANALYSIS. PAGE XVIII. On the effect of a feoffment on condition by tenant for life in destroying contingent remainders, - 65 CHAPTER THE SIXTH. OTHER PROPERTIES OF CONTIKGENT REMAINDERS, . 67 I. Where a remainder of inheritance is limited in contin- gency by way of use, or by devise ; the inheritance, in the meanwhile, if not otherwise disposed of, re- mains in the grantor and m his heirs, or in the tes- tator's heirs, until the contingency happens to take it out of them, ....... 67 II. On the effect of a devise of lands to trustees and the survivor of them, and the heirs of the survivor in . trust to sell, ....... 67 III. When a contingent remainder of inheritance is cre- ated in a conveyance at common law, where does the inheritance reside before the contingency happens ? 68 IV. A contingent remainder of inheritance is transmissi- ble to the heirs of the person to whom it is limited, 71 V. A contingent remainder may, before it vests, be passed by fine, by way of estoppel, so as to bind the interest which shall afterwards accrue by the contingency, . 71 VI. Contingent remainders appear formerly to have been held not devisable by the person entitled thereto, . 72 VII. A fee cannot at common law be mounted on a fee; but two or more several contingent fees may be lim- ited merely as substitutes or alternatives, the one for the other, . . ... . . . .73 ANALYSIS. EXECUTORY DEVISES. CHAPTER THE FIRST. PAGE AN EXBOHTORY DEVISE DEFINED AND ITS 'SEVERAL KINDS DISTINGUISHED, 75 I. An executory devise is, strictly, such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules which govern limitations in conveyances at common law, . 75 II. If a particular estate of freehold be first devised, ca- pable in its own nature of supporting a remainder, followed by a limitation, which is not immediately connected with, or does not immediately commence from, the expiration of the particular estate of free- hold, the latter limitation is incapable of taking eifect as a remainder, but may operate as an execu- tory devise, if confined to the requisite limits of time, ......... 76 III. Executory devises have generally been distributed into three kinds : two kinds include real estate, and the third kind personal estate only, . . .77 A. The first kind is, where the devisor departs with his whole fee simple, but on some contingency qualifies that disposition and limits an estate on that contingency, ...... 77 B. The second kind is, where the devisor gives a future estate to arise upon a contingency, but does not depart with the fee at present, . . . .77 Within class B are to be included also those cases where XVlll ANALYSIS. PAGE (a) The future estate is not contingent, but lim- ited in an event certain, . . . 78 (6) Though the testator depart with an immediate estate of freehold, yet the ulterior limitation is not so connected with it as to be capable of effect as a remainder, . . . .78 C. The third kind comprises all that relates to chattels, where there is a bequest to one for life, or other- wise, and after the decease of the legatee, or some other contingency, then to some one else, . . 78 IV. The degree or quality of the property acquired by persons taking a limited or restricted interest for life in chattels under testamentary dispositions or limitations of trusts, ...... 79 CHAPTER THE SECOND. GENERAL QUALITIES OF EXECUTORY DEVISES, . . 80 T. An executory devise distinguished from a contingent remainder. The great and essential difference is that an executory devise cannot be prevented or destroyed by any alteration whatever in the estate out of which or after which it is limited, . . 80 II. A subsequent liuiitation in fee in a devise upon an estate tail is not an executory devise, but a remain- der, 80 III. Executory bequests are as secure against the dispo- sitions of the first taker as are executory devises, . 81 IV. But a release from the devisee of the executory in- terest to the first taker will discharge that executory interest, 81 ANALYSIS. XIX PAGE V. A recovery by tenant in fee simple will not bar an ex- ecutory limitation subsequently limited; but where an estate tail is first limited, and then an ^executory or conditional limitation is made upon that estate, a recovery suffered by the tenant in tail will bar such executory or conditional limitation, . . .81 VI. The contingency upon wliich an executory devise is to take effect must happen within the time of a life or lives in being and twenty-one years thereafter, allowing some months for gestation, . . .81 CHAPTER THE THIED. UPON EXECUTORY ESTATES LIMITED UPON A FAILURE OP HEIRS OR ISSUE, . .... 83 I. Wherever an executory devise is limited to take effect after a dying without heirs or without issue, subject to no other restriction, the limitation is void, . . 83 II. The like rule holds in the limitation of a term or personal estate, ....... 83 III. The limitation of a personal estate to one in tail vests the whole in him, 84 IV. Exception to the rule that a devise over after a de- visee dying without heirs or without issue is void, . 84 V. If a devise be made to one and his heirs, and be fol- lowed by an executory devise over, limited -to take place on an event which must happen within the compass of a life in being, the executory devise over is good, ........ 85 VI. Upon the same principle, where the dying without , issue is restrained to the period of a life in being, an executory devise limited thereon will be good, . 85 XX ANALYSIS. FAGB VII. In these instances an executory devise of a term, and the limitations of the trusts of a term, are gov- erned by the same rules, . . . . .85 VIII. An executory devise over to take effect on the de- cease of the first devisee without issue is good, if the dying without issue be confined to the compass of twenty-one years after the period of a life in being, . 86 IX. In executory devises of terms for years, or other per- sonal estate, the court of chancery has very much inclined to lay hold of any words which seem to justify them in construing the words " dying with- out issue" to mean, a dying without issue living at the time of the person's decease, . . . . .86 X. But in a devise of real estate the usual construction of these words prevails, ...... 87 XI. In cases of personal estates, where such restrictive circumstances as have been mentioned appear, it matters not whether the term or other personal es- tate be limited to the first devisee or legatee indefi- nitely, or for life expressly, or to him and his heirs, or the heirs of his body, or to his issue or children, as the restriction is equally valid under any of these circumstances, and gives effect to the limitation over, 87 XII. The construction of the words " dying without issue" in a bequest of personal estate, . . . .87 XIII. With respect to the validity of the limitation over, it is the same thing in bequests of personal estate whether the first bequest be to one for life expressly, and if he die without issue, remainder over ; or to one (indefinitely), and if he die without issue, re- mainder over, ....... 88 XIV. Though an executory devise in tail or in fee to one in esse after a dying without issue is void, yet an executory devise for life to one in esse to take place after a dying without issue may be good, . 89 ANALYSIS. xxi CHAPTER THE FOURTH. PA8E OF OTHER MATTERS RELATING TO EXECUTORY DEVISES, 90 I. The effect of a limitation to one for life and afterwards to the heirs of his body in bequests of personal es- tate, .90 II. An executory devise to a person not in esse, if con- fined to take effect within the prescribed limits of time, is good, 91 III. Certain limitations of subsisting leases for lives neither have the effect of regular limitations of es- tates of inheritance, nor yet operate as executory devises, 91 IV. Any limitation in future or by way of remainder, of lands of inheritance, which in its nature tends to a perpetuity, even although there be a preceding vested freehold, so as to take it out of the descrip- tion of an executory devise, is considered void in its creation, ...... .92 V. Whenever one limitation of a devise is taken to be executory, all subsequent limitations must be like- wise so taken, ....... 92 VI. Exception to the last rule, . . . . .93 VII. When a devise is made after a preceding executory or contingent limitation, or upon a condition annexed to a preceding estate, then, though that preceding limitation or estate should never arise or take effect, the remainder over, speaking generally, will never- theless take place, ....... 93 Vni. Whatever number of limitations there may be after the first executory devise of the whole interest, any one of them which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being may be good in event, if no one of the preceding executory limitations. Xxil ANALYSIS. PAGE whicli would carry the whole interest, happens to vest ; but if the preceding executory limitation does not carry the whole interest, a subsequent one does not necessarily fail if the preceding limitation takes effect, 94 IX. When there is a preceding vested limitation, and a future estate or interest is limited to take effect at too remote a period, or where there is no preceding lim- itation, and a future estate or interest is immediately limited to take effect at too remote a period, the future limitation is void in its creation, . . .95 X. Where an estate of freehold is limited, with a limita- tion over by way of remainder in contingency, and the estate of freehold (as by the death of the devi- see in the testator's lifetime) becomes incapable of taking effect, and the limitation over is in contin- gency at the testator's decease, the limitation over will have effect as an executory devise, . . .96 XI. Though a condition to determine an estate tail as to a particular person only is void, it has been held that a rent may be granted on a condition to cease during the nonage of any heir of the grantee, . 97 XII. A rent de novo may be granted to commence in futuro, and oflSces and dignities may, under qualifica- tions, be granted by the king to commence in futuro, 97 XIII. Estates shall not cease as to part, and vest and re- vest, 97 XIV. The distinction between executory limitations per verba depresenti wndi per verba de futuro, . . 98 XV. Whenever there is an executory devise of real es- tate, and the freehold is not in the meantime dis- posed of, the freehold and inheritance descend to the heir-at-law, . . , . . . .99 XVI. But a devise of all the rest and residue of the real estate will pass as well the profits from the testator's ANALYSIS. XXUI PAGE death up to the time of the estate's vesting, as from the determination of the first estate to the vesting of a subsequent one, . . . . . .99 XVII. Where there is no residuary devise or other par- ticular disposition of them, it seems that the profits of a personal estate between the death of the testator and the vesting of an executory estate, or between the determination of the first limitation and the vest- ing of a subsequent one, will accumulate for the benefit of the person next to take, by virtue of the limitations, .... ... 99 XVIII. When an absolute property is given in lands, and a particular interest in the meantime, till the devisee comes of age, the estate vests in him immedi- ately, subject to the particular interest, . . . 100 XIX. Possibilities of personal estate are assignable and devisable in equity, . . . . . .100 XX. An executory interest, whether in real or personal estate, is transmissible to the representatives of the devisee, when such devisee dies before the contin- gency happens, ....... 100 XXI. In cases of contingent or executory interests, the court of chancery will interfere in behalf of the persons entitled to such interests, to prevent un- reasonable waste being committed by the tenants in possession, ........ 101 INTRODUCTION. When we consider estates with regard to the cer- tainty and the time of the enjoyment of them, we may distinguish them into Estates vested m possession. [ in interest, as contmaent, as Reversions, vested Remain- ders, such Executory De- vises, Future Uses, Con- ditional Limitations, and other future Interests as are not referred to, or made to depend on, a, Period or Event that is uncertain. Contingent Remainders, and such Executory De- v-ises, Future Uses, Con- ditional Limitations, and other future Interests as are referred to, or made to depend on, an Event that is uncertain. An estate is vested when there is an immediate fixed right of present or future enjoyment. An estate is vested in possession when there exists a right of present enjoyment. An estate is vested in interest when there is a present fixed right of future enjoyment. 3 iJ INTRODUCTION. An estate is contingent when a right of enjoyment is to accrue, on an event which is dubious and uncer- tain. Contingent Remainders and Executory Devises are the professed subjects of the ensuing Work ; in which, however, other future interests are occasionally con- sidered under their respective relations to the more immediate subjects of these two titles. CHAPTER THE FIRST. CONTINGENT KEMAINDEKS DEFINED AND DISTINGUISHED. I. SECTION THE FIRST. DEFINITION OP A CONTINGENT REMAINDER. 1. A Contingent Remainder is a remainder limited so as to depend on an event or condition, which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate. After the power of alienation became general, the tenant in fee simple might alien the whole fee, or he might carve it up into particular estates (particula-p ar- ticle) and dispose of these at will. Thus, if A. were tenant in fee, he might make a lease for ten years to B., after this, limit an estate to C. for life, then give an estate tail to D., with the final re- mainder to E. in fee. Or, the remainders might cease with B., 0. or D., in which case the balance of the fee not disposed of would remain in A. as his reversion. The example above given is an instance of vested remainders. For remainders are vested when there is an immediate, fixed right of future enjoyment. It is true that 0. may die before the expiration of the lease 4 CONTINGENT REMAINDERS to B. ; the remainder to E. in fee may never take effect, because the issue of D'. may never fail ; but the right is present and fixed. In contingent remainders, on the contrary, no right accrues until the event or condition upon which they depend happens or is performed. The following elementary principles seem in place here, viz. : 1. The contingency upon which the remainder is made to depend must not be too remote. 2. A contingent remainder requires a vested estate of freehold to precede and support it. 3. A contingent remainder must vest either during the continuation of the preceding estate or at the in- stant of its determination. 4. Such determination of the preceding estate before the contingency happens as leaves no right of entry, destroys the contingent remainder thereon limited. SECTION THE SECOND. FOUR SORTS OF CONTINGENT REMAINDERS. Under this definition we may properly distin- guish four sorts of contingent remainders : — First, Where the remainder depends entirely on a con- tingent determination of the preceding estate itself. Secondly, Where the contingency on which the remainder is to take effect is independent of the determination of the preceding estate. Thirdly, Where the condition upon which the remainder is limited is certain in event, hut the determi- nation of the particular estate may happen before DEFINED AND DISTINGUISHED. 5 the contingency takes place. Fourthly, Where the person to whom the remainder is limited is not yet ascertained, or not yet in being. II. 1. Where the remainder depends entirely on a contingent determination of the preceding estate itself: — As if A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. then to remain over in fee ; here the particular estate is limited to determine on the return of C, and only on that determination of it is the re- mainder to take effect ; but that is an event which possibly may never happen ; and therefore, the remainder, which depends entirely upon the de- termination of the preceding estate by it, is du- bious and contingent. In the example here given, it will be observed that B.'s particular estate may expire in two ways : either at his death, or on the return of C. from Rome. Now it is intended that if B.'s particular estate determine by reason of C.'s return from Rome, then the fee lim- ited over shall take effect ; but that if B.'s estate de- termine by the death of B., then the fee limited over shall not take effect. Thus C.'s return from Rome de- termines the particular estate of B., and as C.'s return is uncertain or contingent, it is said that this class of contingent remainders depends entirely upon the con- tingent determination of the preceding estate. 3* 6 CONTINGENT REMAINDERS II. 2. Where some uncertain event, uncon- nected with, and collateral to, the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder : — Thus, if lands be given to A. in tail, and, if B. come to Westminster Hall such a day, to B. in fee. The coining or not coming of B. to Westminster on the day appointed does not in any wise affect the estate tail in A. In the first class of contingent remainders the happening of the event determines the particular estate ; in the second class, the happening of the con- tingent event (B.'s coming to Westminster) vests his remainder without interfering in any manner with the estate of A. II. 3. Where a remainder is limited to take effect upon an event, vyhich, though it certainly must happen some time or other, yet may not happen till after the determination of the particu- lar estate : — As if a lease be made to J. S. for life, and after the death of J. D. the lands to remain to another in fee ; now it is certain that J. D. must die some • time or other, but his death may not happen till after the determination of the particular estate by the death of J. S. The event upon which this class of contingent re- mainders depends is certain to happen ; but it may not happen until after the determination of the particular DEFINED AND DISTINGUISHED. 7 estate. It will be remembered that one of the elemen- tary principles of contingent remainders is that the remainder must vest either during the continuation of the particular estate or at the moment of its determina- tion. If the event does not thus take place, the re- mainder can never take effect. II. 4. Where a remainder is limited to a person not ascertained, or not in being at the time when such limitation is made : — As if a lease be made to one for life, remainder to the right heirs of J. S. ; now there can be no such person as the right heir of J. S. until the death of J. S. (for nemo est heres viventis), which may not happen till after the determination of the particular estate by the death of the tenant for life. It may be remarked at the close of this section that a remainder over may be so limited as to depend upon any or all of the four kinds of contingencies above described. SECTION THE THIRD. DISTINCTION BETWEEN CONTINGENT KEMAINDERS OF THE FIRST SOKT, AND CONDITIONAL LIMITATIONS. The true point of distinction between such con- ditional limitations over as are and such as are not remainders, in the strict sense of that word, 8 CONTINGENT REMAINDBKS lies here : the former are limited to commence where the first estate is, by the very nature and extent of its original limitation, to expire or de- termine ; whereas, the latter are limited so as to be independent of the measure or extent origin- ally given to the first estate, and to take effect in possession, upon an event which may happen before the regular determination, to which that first estate is liable from the nature of its original limitation, and so as to rescind it. And in this latter case, it is the same thing whether the whole fee is dis- posed of in the first limitation or not. A fee conditional at common law was a fee on con- dition that the feoffee had issue. If this condition was unfulfilled, it was the right of the grantor to enter for the condition broken, and by so doing, divest the seisin he had made at the creation of the estate, and re-invest himself of the fee. The feoffee had an estate in fee simple ; but this estate was to be defeated and to deter- mine on the non-fulfillment of the condition, viz. : hav- ing issue. Thus the condition defeated the estate, cut it off, prevented that estate which the feoffor had con- templated from taking effect. In the same manner it is if a lease for life be made to A. upon condition that he should intermarry with B. within five years. The estate contemplated and intended to be conveyed by the lessor is an estate which the lessee shall enjoy for the term of his life, but if the lessee, A., fails to perform the condition, by not inter- marrying with B. within five years, then the estate con- templated and intended is defeated. On the other hand. DEFINED AND DISTINGUISHED. ' 9 if A. perform the condition, his life estate flows on and fills the measure and extent given to it originally, and continues until its regular and natural expiration. Now it is a well-settled rule of law that a remainder must await the natural expiration of the preceding estate. It follows, therefore, that if a condition cuts off and defeats a preceding estate before it arrives at its natural expiration, a remainder cannot be limited to take effect upon such a condition. It is quite different where an estate is limited to ther" use of A. until B. return from Rome, and then, upon B.'s return, to remain to the use of C. in fee. In this ; case, it is considered that whether A.'s estate (which being uncertain is an estate for life) expire at the death of A. or on the return of B. from Rome, it expires in either event at its natural termination. It is considered that the grantor viewed the two possible determinations with indifference, and that the expiration of the estate on either — the death of A. or the return of B. from Rome — filled the original extent and measure of the estate which he created. So if lands be granted to A. so long as he shall con- tinue unmarried, and if he marry, to B. in fee, here the estate expires naturally either in the event of A.'s mar- riage or death, and a remainder may be limited on the-^ contingency. Note the following : An estate is limited to A. for life, but on this condition, that if B. return from Rome, then the estate is to remain to 0. in fee. Again : an estate is limited to A. until B. returns from Rome, and then to C. in fee. In both instances the estate to A. determines on the return of B. from Rome. But in the first case, the grantor wa.s obliged at common law to enter for the 1§ CONTINGENT REMAINDERS condition broken, in order to defeat the estate. This entry would put the grantor or his heirs in, as of their old estate, and by divesting the seisin (which is done by the entry), all the subsequent estates would fall. Such a limitation was void at common law, though it is opera- tive under the Statute of Uses. In the second case, the limitation to C. is a good remainder, for the reason above given — its awaiting the natural expiration of the pre- ceding estate. It will be observed that in different forms of expres- sion, conveying to all apparent intents and purposes the same intention, some are construed to mean a conditional limitation and some to mean a contingent remainder. To sum up. The point of resemblance between con- ditional limitations and contingent remainders is, that the preceding estate is determined by a contingency in both ; and the difference is, that a contingent remain- der awaits the natural expiration of the preceding estate, while a conditional limitation does not. An important practical distinction between them is that contingent remainders are barrable where conditional limitations are not. SECTION THE FOURTH. EXCEPTION FROM THE THIRD CLASS OE CONTINGENT REMAINDERS. In some cases of a limitation for a long term of years, as eighty years or upwards, determinable on the life of a person then in being, with remain- der over on the death of that person, to a person in esse (as a limitation to A. for eighty years, if DEFINED AND DISTINGUISHED. 11 B. shall SO long live, with remainder over after the death of B. to C. in fee), it has been held that notwithstanding the remainder over is in this case limited to take effect on an event (viz., the death of B.) which possibly may not happen till after the expiration of the preceding estate for eighty years, yet as the chance against such event happening before the expiration of the preceding term is exceedingly small, such remain- der shall be considered as vested ; and that the mere possibility that a life in being may endure for eighty years to come does not amount to a degree of uncertainty sufficient to constitute a contingent remainder. The third class of contingent remainders were defined to be, where the event upon which the remainder was made to depend must certainly happen, but might not happen until after the expiration of the particular estate. As if lands be limited to A. for life, and after the death of A. and B., to C. in fee. Here the death of B. at some time is a certain event; but as it may not happen until after the determination of A.'s estate by A.'s death, the remainder is contingent. Now if an estate had been limited to A. for ninety-nine years, if he should so long live, and after his death to B. in fee, the remainder to B. would be a vested remainder ; for it is not to be supposed that A. will outlive the ninety-nine years, upon which event alone the remainder to B. shall fail to take eifect. The case of Napper and Sanders is the leading case on this point. There, A. made a feoffment to the use 12 CONTINGENT REMAINDEKS of herself for life, and after to the use of the feoffees for eighty years, if B. and C. his wife should so long live, and if C. survived B., then to the use of her for life, and after the decease of C. to the use of D. in tail, with other remainders over. Two points were considered in this case : 1st. Whether the remainder limited to the use of D. in tail with the other remainders over depended for taking effect upon C.'s surviving her husband. 2d. Supposing that these subsequent remainders were to take place at C.'s decease whether she survived her hus- band or not, then were they not contingent remainders on the ground that B. and C. might both outlive the term of eighty years, in which case the particular estate would expire by effluxion of time before the remainders could vest ? It was resolved by all the court that these remainders were not contingent, but vested presently ; though it was agreed that C.'s estate for life was con- tingent on the event of her surviving her husband. SECTION THE FIFTH. EXCEPTION FROM THE FOURTH CLASS OF CONTINGENT REMAINDERS. These (exceptions) will be found to be much more numerotis, as they depend, on one hand, on a general rule of law respecting limitations to the heirs general or special, where the ancestor takes an estate of freehold in the same conveyance ; and on the other, upon the respect which is paid to the intent of a testator, where it can be plainly collected from his will that he used DEFINED AND DISTINGUISHED. 13 the words " heirs of the body, &c.," as a descriptio personcB. Upon the first of these grounds we are to ob- serve that, whenever the ancestor takes an estate of freehold, or frank tenement, and an immediate remainder is thereon limited in the same convey- ance to his heirs, or heirs in tail, such remainder is immediately executed in possession in the an- cestor so taking the freehold, and therefore is not contingent or in abeyance ; as an estate for life to A., rem^ainder to the heirs of his body ; this is not a contingent remainder to the heirs of the body of A., but an immediate estate tail in A. So, like- wise, wherever the ancestor by any gift or con- veyance takes an estate of freehold, and there is afterwards in the same gift or conveyance a limit- ation to his right heirs, or heirs in tail, after 6ome other estate for life or in tail interposed between his freehold and such limitation to his heirs, this remainder to his heirs vests in the ancestor as a remainder, and shall not be in contingency or abeyance. As a lease for life with divers remain- ders over, remainder to the right heirs of first lessee for life, this is a remainder in fee vested in the first lessee for life ; and after his death, and the determination of the mean remainders, his heir shall be in as heir, and not as purchaser. So where land is given to A. for life, remainder to B. for life, remainder to the heirs male of the 14 CONTINGENT REMAINDERS body of A., who has two sons, the eldest has issue a daughter, and dies, A. and B. die, the youngest son shall have the land as heir male ; which proves that he takes by descent, and not by purchase, and consequently the estate tail vested in the father ; for had the younger son taken by pur- chase, he must, according to the old doctrine, have been complete heir general as well as heir male, which two characters could not be united in him during the life of the eldest son's daughter. The point of identity common to the fourth class of contingent remainders and the class of exceptions given in this section is, that the person who shall succeed to the estate after its enjoyment by the preceding tenant is uncertain. The point of difference is, that in one case the person who takes the ulterior limitation takes it by purchase, and in the other case he takes by descent. This class of exceptions are excluded from contingent remainders under the operation of what is known as the rule in Shelley's case, which is, that where an estate of freehold is limited to a person, and after to " his heirs" or "the heirs of his body," the inheritance is held to be immediately executed in the ancestor, and "his heirs" or "the heirs of his body" take by descent and not by purchase. In the riext succeeding sixteen paragraphs, Mr. Fearne treats of the operation of the rule in Shelley's case as applied to legal limitations in deeds. V. 1. Elfect of the rule in Shelley's case, where the estate of freehold limited to the ancestor is determinable DEFINED AND DISTINGUISHED. 1.5 on an event which may happen in his lifetime ; as to one man during the life of another, or to a woman dur- ing coverture. Thus an estate limited to the use of A. during the life of B., and after the death of B. to the heirs of A. in fee ; or an estate to A. during her coverture, and after the death of her husband to the heirs of A. In the first case, B. may die during the life of A., and then by the limitation A.'s freehold is determined ; and as nemo est keres viventis, there can be no heir to take the remainder in fee. The second case is identical : A.'s husband may die during her lifetime, and until her death, there are none who can take as her heirs. In these cases what becomes of the limitations to the heirs after the expira- tion of the estate per auter vie in the ancestor ? Rolle says that where an estate of frank-tenement is thus limited to the ancestor, the limitation to the heirs is in abeyance. But this doctrine is directly contra- dicted by the authority of Lord Coke, where he says, if land be given to A. and B. so long as they shall jointly together live, the remainder to the right heirs of . him that dieth first, and warrant the land in forma pre- dicta, A. dieth, his heir shall have the warranty ; and yet the remainder vested not during the life of A., for the death of A. must precede the remainder ; and yet shall the heir of A. have the land by descent. In these cases, the rule in Shelley's case prevails, and the re- mainder attaches in the ancestor in three different modes, viz. : 1st. Where there is a limitation to A. for life, or any other estate of freehold, and an immediate re- mainder to his heirs general or special ; here the re- mainder fuses and blends with A.'s estate for life, and 16 CONTINGENT EEMAINDEKS he has an estate of inheritance executed in possession. 2d. If there be an estate to A. for life, or any other freehold, remainder to B. for life, remainder to the heirs of the body of A., this is only a present freehold in A., with a vested remainder to him in tail, to ta.ke effect in possession after the determination of B.'s estate. 3d. In the case above cited from Lord Coke, the remainder attaches in the ancestor as a contingent remainder which his heirs take by descent. It may assist the mind in arriving at a clearer con- ception of these kinds of limitations — and indeed of all other matters where the doctrine of descent is in- volved — to reflect that, in the contemplation of law, an ancestor and his heirs form one ideal line, unbroken and undisturbed by the death of any individual who happens for the time being to represent a portion of it. " The king never dies," is a maxim of the common law. In the same manner an ancestor never dies. His heir is merely his continuation. The individual passes away ; the line remains. What attaches in the ancestor attaches and continues in the line. When the heir takeshis place in the line, whatever had attached in the line finds ex- pression in him, and takes effect in and through him. V. 2. Effect of the rule in Shelley's case, where the limitation to the heirs, or the heirs of the body, of the ancestor taking the preceding freehold, is contingent. The case above cited from Lord Coke, of a gift to tAvo for their joint lives, remainder to the heirs of the one dying first, is an example under this class. The contingency or point of uncertainly in this case is, who shall die first? During their joint lives the estate tail remains suspended in equilibrium between them. There DEFINED AND DISTINGUISHED. 17 is an equal possibility to each. But at the moment that one of them dies, the estate which was before in con- tingency at once vests by descent in the line of heirs of the person dying. V. 3. Effect of the rule in Shelley's case, where the ancestor's estate of freehold is limited to him in trust for some other person, or to answer some particular purpose. As a limitation to the use of A. during the life of B., in trust for B., or to pay her the rents and profits dur- ing life, remainder to the use of the heirs of the body of A. Mr. Fearne is strongly of the opinion that such a limitation does not fall under the rule in Shelley's case, and that, consequently, the heirs of the body of A. take a vested remainder in tail by purchase. Mr. Preston and Mr. Butler, on the contrary, are of the opinion that courts of law can only consider the legal freehold vested in A., which, consequently, brings the limitation under the rule in Shelley's case. V. 4. Effect of the rule in Shelley's case, where there is a joint limitation of the freehold to several, followed by a joint limitation to them of the inheritance in fee simple. In an estate limited to A. and B. for their lives, re- mainder in fee simple to their heirs, the fee vests in A. and B. jointly. If the limitation of the freehold be to baron and feme jointly, remainder to the heirs of their bodies, it is an estate tail executed in them, as they are capable of issue, to whom such joint inheritance can descend. 4* 18 CONTINGENT REMAINDERS V. 5. Effect of the rule in Shelley's case, where the limitation of the freehold is not joint, but successive. In this case Mr. Fearne remarks : " If the limitation of the freehold be not joint, but successively, as to one for life, remainder to the other for life, remainder to the heirs of their bodies ; there it seems the ultimate limita- tion is not executed in possession, but gives them a joint remainder in tail. And if the limitation of the inherit- ance be to several men or to several women in tail, instead of fee simple, though the freehold be to them jointly, they take several estates of inheritance; because they cannot have issue between or among them, as a man and woman may. And the same rule extends to other cases, where the relative situations of the grantees render the possibility of issue between or among them more remote than what is termed a simple or common possibility, or else is inconsistent with the laws of mar- riage. " If the particular estate be to A. and B. for their lives, and after their deaths to the heirs of B. ; or to husband and wife, and the heirs of the body of the hus- band ; or to two men and the heirs of their two bodies, or the heirs of the body of one of them, — the estates in tail or in fee are said to be executed sub modo ; that is, to some purposes, though not to all. For though they are so far executed in or blended with the possession as not to be grantable away from or without the freehold by way of remainder, yet they are not so executed in possession as to sever the jointure, or entitle the wife of the person so taking the inheritance to dower ; and in the said case of a limitation to husband and wife, and the heirs of the body of the husband, his wife having a BEFINED AND DISTINGUISHED. 19 joint estate of freehold ■with him, and there heing no moieties between them, a recovery against him with sin- gle voucher will not bar the issue or remainder ; though his estate tail has been held to be so executed in pos- session, that his feoffment was a discontinuance." V. 6. Effect of the rule in Shelley's case, where con- tingent limitations intervene between the preceding freehold and the subsequent limitation to the heirs. Take the case of a limitation to baron and feme for their lives, remainder to the first and other sons of the marriage successively in tail, remainder to the heirs male of the bodies of baron and feme. The estate tail is executed in the baron and feme sub modo. It is executed only till the birth of the first son, and then the estates — for life and remainder — till now united, open to let in the intervening remainders; when baron and feme become tenants for their lives, with a joint remain- der in tail, expectant on the intervening limitations to the first and other sons. The estate tail is said to be executed when the re- mainder limited to the "heirs of the body, &c.," merges or drowns the freehold estate limited to the ancestor. In this event the ancestor is absolutely tenant in tail. Where limitations intervene between the estate of free- hold limited to the ancestor and the remainder limited to the heirs of his body, the ancestor's freehold is not absolutely merged by the remainder; and the estate tail is said to be executed sub modo only. In the case given above, the limitation to baron and feme was a joint limitation, and the limitation to the heirs of their bodies was likewise joint. Both limita- 20 CONTINGENT REMAINDERS tions being joint, the estate tail was executed quodam modo in baron and feme. There is an essential differ- ence where the limitation is to baron for life, remainder to. feme for life, remainder to the heirs of their bodies ; for here, the limitations to baron and feme being several, and the limitation to their heirs being, joint, they take several estates for life, with a joint remainder in tail. V. 7. Effect of the rule in Shelley's case, where a limitation to the feme for life is followed by a remainder to the heirs of the body of baron and feme. The rule in Shelley's case does not apply here, and the limitation over is a contingent remainder. Mr. Fearne reasons as follows : " This is no remainder in the feme, for the freehold is limited to her alone ; and as the person who is to take in remainder must be heir of both their bodies, if the feme should die before the baron, there can be no one to answer that description when the particular estate determines, because the baron cannot have an heir during his life, nor could it be in- volved or flow into the limitation to the feme herself, as not being confined to her own heirs; therefore the re- mainder is in contingency." V. 8. Effect of the rule in Shelley's case, where the freehold results to the ancestor by implication. It is a principle of law that so much of the use as the owner of the land does not dispose of remains in him. A. seized in fee, covenanted to stand seized to the use of his heirs male begotten, or to be begotten, on the body of his second wife. There was no express limitation of an estate for life to A., but an estate for life resulted to DEFINED AND DISTINGUISHED. 21 him according to the principle of law laid down. The rule in Shelley's case applies, and the subsequent limit- ation to his heirs male, &c., was executed in an estate tail in A. V. 9. EfiFect of the rule in Shelley's case, where the estate limited to the ancestor is equitable, and the limit- ation to the heirs carries the legal estate. Where this is the case, the two estates will not blend and incorporate into an estate of inheritance in the an- cestor. In the case of Tippin v. Cosin,^ the estate was limited to the use of trustees and their heirs during the life of E. C, upon trust, to permit and suflfer him to take the profits, remainder to the first and other sons of the marriage, &c., remainder to (the use of) the heirs of the body of E. C. It was contended that the limitation of the profits to E. C. during his life was an estate executed in him by the statute ; yet the court denied that, and adjudged that the limitation to the heirs of the body of E. C. operated as a contingent remainder. V. 10. Effect of the rule in Shelley's case, where the estate limited to the ancestor is legal, and the estate limited to the heirs is equitable. Neither does the rule in Shelley's case prevail in this class of cases. Where the equitable estate is limited for life to the ancestor, and the equitable remainder to his heirs, &c., equity (which follows the law) will apply the rule. But where one of the limitations is legal and one is equitable, neither a court of law nor a court of equity takes cognizance of both, and, consequently, the estates must remain disunited. 22 CONTINGENT REMAINDERS V. 11. Effect of the rule in Shelley's case, in limita- tions upon surrenders of copyholds. The rule in Shelley's case prevails equally in limit- ations upon surrenders of copyhold as in freehold lands, subject to the distinction in the following paragraph. V. 12. Effect of the rule in Shelley's case, in limit- ations of copyhold estates, to the heirs of the surren- deror, without a limitation of a life estate or of any other freehold estate to the surrenderor himself. We have seen that in freehold lands, the ancestor could take a freehold by implication, so as to execute the estate of inheritance in him, where there was a sub- sequent limitation to his heirs, &c. But it is to be ob- served that upon a surrender of a copyholder in fee to his own heirs general, there must be an express limit- ation of the freehold to the ancestor to make his heirs take by descent. If there be no such express limitation to the ancestor, the rule in Shelley's case is avoided, and the heirs take by purchase. V. 13. Effect of the rule in Shelley's case, where there is a limitation to a person's heirs in one deed or instrument, and he acquires the freehold by another. The rule is that the ancestor and the heir must both take by the same instrument or conveyance, otherwise the rule in Shelley's case does not apply. This doctrine is carried so far, that where a father settled on his son, in his lifetime, an estate for life by deed, and after de- vised to the heirs male of his said son's body, it was held that the two estates did not unite, and that the DEFINED AND DISTINGUISHED. 23 heirs male of the son took by purchase. In this case both conveyances were voluntary, and both moved from the same person. V. 14. Eifeet of the rule in Shelley's case, where an estate is limited to one for life, by deed, and the estate is afterwards limited to the heirs of his body, under the execution of a power of appointment contained in that deed. Take the case of a limitation to the use of A. for life, and after his decease to such uses as B. shall appoint, who afterwards, in A.'s life, appoints the use to the right heirs of A. In this case, the act of B. in making the appointment is the act of the grantor himself, in the contemplation of law; for it is a settled rule that the limitation of an use under an execution of a power of appointment con- tained in a conveyance to uses, in general, operates as an use created by, and arising under, that conveyance itself. So that in this case the estate of freehold and the subsequent limitations are both contained in the same conveyance. Hence the rule in Shelley's case applies. V. 15. Explanation of the expression, " words of pur- chase," as distinguished from that of "words of limita- tion," in the cases to which the rule in Shelley's case is considered to apply. The rule in Shelley's case, as given by Lord Coke, is in the following terms, viz. : " Where the ancestor takes an estate of freehold by any gift or conveyance, and in the same gift or conveyance there is a limitation, either 21: CONTINGENT REMAINDERS mediate or immediate, to his heirs or the heirs of his body, the word heirs is a word of limitation of the estate, and not of purchase." Where the words "heirs" or "heirs of his body" are construed as words of limitation, 'they indicate the quan- tity of the estate created in the ancestor. In an estate granted to A. and the heirs of his body, the words " heirs of his body" are words of limitation; they indi- cate the quantity of the estate vested in A. In a feoff- ment to A. and his heirs, the word "heirs" is also a word of limitation, and indicates the quantity of the estate vested in A. — a fee simple. Now where a free- hold is granted to A. in the first instance, and after- wards, either immediately, or after intervening remain- ders, the estate is given to the " heirs of A.," or " the heii's of the body of A.," these words are words of limitation in precisely the same sense that they are words of limitation where the conveyance is made to A. and his heirs, or to A. and the heirs of his body, without an express limitation of any preceding estate of freehold to A. And they operate precisely in the same manner. The heirs take by derivation and descent from A., as being contained in A. when the grant was made, and they do not take under any right accruing to them from the grantor. All this is included in the expression "they take by descent." Thus, where the words " heirs," &c., are construed to be words of limitation, the estate attaches originally in the ancestor ; but where the same words are construed to be words of puixhase, the estate commences originally in the heir (the word " heir " being here a descriptio personce) by virtue of the conveyance or gift. It makes DEFINED AND DISTINGUISHED. 25 him the propositus or original stock from which the in- heritance is to be transmitted in its subsequent devolu- tion. V. 16. Effect of the words " heirs male of the body, &c.," where they operate as words of purchase. Suppose a limitation to the heirs male of the body of B. (no estate being in B. himself or conveyed to him), does the heir male of B., who takes the estate, take it by descent or by purchase ? It is held that he takes it originally by purchase ; but that the estate follows the same course of devolution as if he had taken it by de- scent as heir male of the body of B. Lord Hale calls it a quasi entail. Here Mr. Fearne concludes his discussion of the rule in Shelley's case as applied to legal limitations in deeds. After some observations on the supposed origin of the rule in Shelley's case in the next paragraph, he con- siders the rule as applied to equitable limitations in deeds and wills in paragraphs 18 and 19, then devotes the rest of the section to the discussion of the applica- tion of the rule to legal limitations in wills. V. 17. The supposed origin of the rule in Shelley's case. The rule has generally been considered of feudal origin, and introduced to prevent frauds upon the tenure. Mr. Justice Blackstone was inclined to think that it was established to prevent the inheritance being in abeyance; another ground might be, he thought, to facilitate alien- ation in favor of commerce, in direct antagonism to 26 CONTINGENT RBMAINDBKS feudal principles. Mr. Hargrave supposes the rule to owe its origin to that policy of the law which was in- tended to prevent annexing to a real descent the qualities and properties of a purchase. In reviewing these opinions, Mr. Fearne himself remarks, " But if the recorded antiquity of the rule, if its adaption and prevalence during a period of near five hundred years (reckoning from the case 18 Ed. 2, cited by Judge Black- stone), have not yet stamped it with legal sanctity, nor entitled it to the attention and observance due to an established rule of law ; vain, I am afraid, will be any resort to its origin or principles, at a period when they are confessedly either too remote or too latent for any more energetic influence than what they can derive from the researches of learning or the conception of hypothesis." V. 18. Eifect of the rule in Shelley's case, on equit- able limitations in marriage articles. In this paragraph Mr. Fearne begins the second branch of his discussion of the rule, viz. : its application to equitable limitations. The present paragraph is con- fined to its operation in marriage articles. The rule is not applied with the same rigor in courts of equity as in courts of law. In marriage articles and in most trust estates, regard is rather had to accomplish the results aimed at in the articles and to effect the intent of the trusts than to construe according to the strict legal operation of the words. Thus in the case of articles before marriage, for making a settlement, if there be a limitation to the parents for life, with a remainder to the heirs of their DEFINED AND DISTINGUISHED. 27 bodies, the general rule is to construe the latter words as words of purchase, and to decree the settlement ac- cordingly. In fact, articles made before marriage are not consid- ered as a formal conveyance or declaration, but merely as minutes or points directing how the subsequent set- tlement shall be made, or rather indicating the objects to be accomplished by such settlement. Hence, courts of equity will decree a conveyance which will effectuate the purposes which seem to be intended in the articles. If, however, the settlement itself be made before mar- riage, the strict legal import of the words will prevail, and equity will not interfere, unless the settlement is expressed to be in pursuance of the articles ; for the court will suppose that by the settlement, the parties changed their minds, which they had a right to do before marriage, and that the settlement was made to carry out this changed intent. The principal object in such settle- ments being to provide for the issue, equity inclines to favor their interest. V. 19. Effect of the rule in Shelley's case, in other kinds of equitable limitations than marriage articles. First take a distinction between trusts executed and trusts executory. Trusts seem to be executed when the conveyance to the trustees is final, and no other duty remains in them than to render to the cestui que trusts the actual rents and profits of the lands conveyed. Trusts seem to be executory where the trustees are di- rected and empowered to make future conveyances to accomplish certain results. A limitation to trustees and their heirs for A. for life, remainder after the death of 28 CONTINGENT EEMAINDEES A. to the heirs of the body of A., would be a trust executed, and the rule in Shelley's case would apply. The rule would also apply in an immediate devise. But where lands were devised to trustees to pay debts and legacies, and afterv/ards to settle what should remain unsold, one moiety to the testatrix's son H. and the heirs of his body by a second wife, with remainder over ; and the other moiety to the testatrix's son F. and the heirs of his body, with remainder over, taking special care in such settlement that it should never be in the power of either son to dock the entail ; in this case the trust was executory, and the court held that the rule in Shelley's case did not apply, and the two sons took but estates for life. But even in these executory trusts, there must be some clause repugnant to the nature of an estate tail, to prevent the operation of the rule. V. 20. Perrin and Blake. The case was this : One W. Williams, seized in fee of a plantation in Jamaica, devised in the following words: " Should my wife be enceinte with child at any time here- after, and it be a female, I give and bequeath unto her the sum of 2000Z., &c. ; and if it be a male, I give and bequeath my estate, real and personal, equally to be di- vided between the said infant and my son John Wil- liams, when the said infant shall attain the age of twenty-one. Item: it is my intent and meaning that none of my children shall sell or dispose of my estate for longer time than his life, and to that intent I give, devise and bequeath all the rest and residue of my estate to my son John Williams and the said infant for and during the term of their natural lives, the remainder to DEFINED AND DISTINflUISHED. 29 my brother-in-law J. G. and his heirs, for and during the lives of my son John Williams and the said infant, the remainder to the heirs of the body of my said sons John Williams and the said infant, lawfully begotten or to be begotten, the remainder to my daughters," &c. No other son was born, and the question was, what estate John Williams took under the will? The Court of King's Bench adjudged that John Williams took only a life estate. Mr. Fearne contends in this paragraph that until this case, A. D. 1769, there was no decided case where a perfect legal limitation in a deed or will, to the heirs or heirs of the body, in the plural number (unqualified by any con- cotiiitant limitation to sons, daughter or children), pre- ceded by a limitation of the legal estate for life to the ancestor, in the same deed or will, had been held not to attach in that ancestor, but to go to the heir by pur- chase. V. 21. The propriety of the determination of the judges of King's Bench in Perrin and Blake. Mr. Fearne thinks that the determination of the court in this case, running as it does against the whole stream of judicial decisions on the same subject, is much to be regretted. V. 22. In this paragraph Mr. Fearne discusses the cases anterior to that of Perrin and Blake,- to show that the rule in Shelley's case ought to have been applied in Perrin and Blake. V. 23. The arguments used in the Court of King's 5* 30 CONTINGENT REMAINDERS Bencli in support of the determination in Perrin and Blake are discussed in this paragraph. V. 24. This paragraph discusses the cases subsequent to that of Perrin and Blake on limitations literally fall- ing under the rule in Shelley's case. This paragraph closes the discussion of Perrin and Blake. The determination of the judges in King's Bench was reversed in the Exchequer Chamber. The case was carried to the House of Lords, but it was com- promised, and the writ of error was withdrawn on leave. V. 25. Effect of the rule in Shelley's case, where there is a limitation to the ancestor for his life, and a ' subsequent limitation to the heir of his body, in the sin- gular number, without words of limitation superadded. An estate to A. for life, remainder to A.'s next heir male, and in default of such heir male, then to remain, is an example under this class, without words of limita- tion superadded. An estate to A. for life, remainder to A.'s next heir male and the heirs male of such next heir male, is an example under this class with words of limit- ation superadded. Wherever the estate conveyed is so limited as to take it out of the regular course of devolution by descent, there the rule in Shelley's case does not apply. In the first example, the limitation ceases with the first heir male, who would have taken by descent, and the estate would have devolved through him, down the regular line of special heirs. In the second example, the limitation goes further, and says who shall take after the next DEFINED AND DISTINGUISHED. 31 lieir, thus breaking the regular line of descent and guiding the estate in another direction. In the first example, the rule in Shelley's case applies. In the second, where the intent is plainly and properly expressed to create a different line of devolution from the line of descent, the rule does not apply. V. 26. Effect of the rule in Shelley's case, -where, after a limitation to the ancestor for life, and a subse- quent limitation to the heirs of his body, in the plural number, words of limitation are superadded. Where the limitation is to the "heirs of the body" ("heirs," in the plural number), even if subsequent words of limitation follow, the rule in Shelley's case applies, unless the subsequent words point out a devolu- tion inconsistent with the nature of the descent indicated by the first words. Shelley's case itself is a direct and leading authority. The case was this : Edward Shelley was tenant in tail, having two sons, H. and R. II., the eldest, died in his father's lifetime, leaving a daughter, and his (H.'s) wife enceinte with a son. Edward, the father, suffered a common recovery to the use of himself for the term of his life, and after his decease to the use of certain persons for twenty-four years ; and after to the use of the heirs male of the body of the said Edward, lawfully begotten, and of the heirs male of the body of such heirs male, lawfully be- gotten, remainder over. After judgment and the award of the writ of seisin, but uofore its execution, Edward died ; and after his death, and before the birth of his eldest son's son, the writ of seisin was executed, and his 32 CONTINGENT REMAINDERS youngest son, R., entered; and a son of the eldest son being afterwards born, the question was, Whether his entry upon his uncle was lawful or not ? It was resolved that R. came in by descent. V. 27. Present extent and prevalence of the rule in Shelley's case, in the construction of limitations con- tained in deeds and marriage articles. The rule operates strictly in conveyances of legal estates by deed ; and it yields in marriage articles to the intent to be effectuated in the settlement. In regard to dispositions by will, the conclusions are not so well determined. V. 28. Present extent and prevalence of the rule in Shelley's case, in the construction of limitations con- tained in wills. Mr. Fearne remarks : " The cases as well as prin- ciples tell us, the controlling rule of construction in wills is the intention expressed, or clearly implied ; to contradict this would indeed be a mockery, a denial of the import of the word will. On this broad ground, some have driven the rule in question to a distance that would in effect reduce it to no rule at all, by subjecting it to the control of any expression not perfectly recon- cilable with a positive intention of its admission ; whilst others have, with a rigid decree of legal sternness, in- sisted on an inflexible adherence to the rule, without regard to any implication corxtraventive of its effect. It is obvious that neither of these doctrines is reconcilable with the train of decisions which must, I conceive, be DEFINED AND DISTINGUISHED. 33 held-to have pronounced the hiw on this point; those decisions (if I do not mistake them) neither bend the rule to nor support it against every expression or man- ifest indication of contrary intention. The one would be absolutely discarding it as a rule of construction in wills; the other would be rendering the legal effect of certain technical words in the very first line of a will, irrevocable through the whole sequel of it. " The amphibolous tendencies of cases and principles seem to conspire in the production of a question, the solution of which may, by professional gentlemen, be truly termed the hie labor, the hoc opus. To attempt it with precision seems vain, until we can reduce all pos- sible expressions of intention to certain classes or de- grees of relative force ; then indeed might we ascertain on a standard scale what degrees of express or implica- tive indications of intention were below and what above the controlling index of the rule ; whilst that is out of our reach, what can we do more than resort to some general inferences, afi'orded by the comparison of the several cases in which the intention has been allowed to control the rule?" SECTION THE SIXTH. FURTHER EXCEPTIONS FROM THE FOURTH CLASS OF CON- TINGENT REMAINDERS, V7HERE THE WORDS " HEIRS OF THE BODY, AC," ARE A DESCRIPTIO PERSONS. VI. 1. These are grounded upon that respect and attention which (within certain bounds, and where it contravenes no rule of law) is paid to the intent of a testator, wherever it can be col- 34 CONTINGENT REMAINDERS lected from any jjarticular expressions of his will; the cases wherein a limitation in a devise to the heir special of a person living has been adjudged a descriptio persotice, or sufficient designation of the person for the remainder to vest, notwith- standing the general rule that nemo est heres vi- ventis. But these cases have been either where the limitation to the heir special has been qual- ified by the words " now living," or some other circumstances have appeared in the will, to man- ifest the testator's intention that the estate should vest. The word "heir" is used in two senses : in a tech- nical, legal sense, where it denotes the person upon whom the law casts an inheritance, whoever that person may be ; and it is used in a popular sense, to indicate the person who is the apparent or presumptive heir during the life of the ancestor. In a legal sense, no one can be heir of a person living, for that would be a contra- diction in terms ; but in a popular sense, the heir of a person living is generally a description sufficiently cer- tain. A devise to " heirs," in the popular sense, is a conveyance by purchase. Thus where A. devised lands to J. S. and his heirs, during the life only of B., upon trust to permit and suffer B. during his life to receive the profits, he committing no waste, and after the de- cease of B. then to the heirs male of the body of B. now living, and to such other heirs male or female as he thereafter should happen to have of his body ; B. had issue, C, a son, then living. The Court of King's Bench adjudged that B. took a trust estate for life, and DEFINED AND DISTINGUISHED, 35 that the remainder in tail vested in C. immediately ; for that the words "now living" were a sufficient designa- tion of the person to allow the remainder to vest. VI. 2. Whether in a limitation to the " heirs male," when these words operate as words of purchase, the special heir must also be heir general. Take a limitation to A. and the heirs male of his body. A. dies, leaving two sons ; the eldest dies in the lifetime of his brother, leaving issue a daughter ; it is plain that A.'s second son will take^er formam doni. But A.'s granddaughter is A.'s general heir. The point suggested for consideration is, whether in such a devise, where the words "heirs male" operate as words of purchase, the second son could take, or whether he must unite in him- self, to the quality of heir special, the quality of heir general also. Lord Coke and the older authorities main- tained the necessity of the union : but in subsequent decisions, the contrary doctrine is held. SECTION THE SEVENTH. VII. 1. The uncertainty of the remainder ever taking effect in possession does not make the remainder contingent. As if a lease be made to A. for life, remainder to B. for life, or in tail ; here, although B. may die, or die without issue in the lifetime of A., the remainder is not contingent, but vested. An estate is said to be vested when there is an immediate fixed right of present or future enjoyment. An estate is said to be contingent when the right itself to the future enjoyment is in sus- 36 CONTINGENT REMAINDERS pense. In this case, then, the right to the future enjoy- ment being immediate and fixed, the remainder is not contingent, but vested. It is entirely immaterial, so far as the nature of the remainder is concerned, whether the future enjoyment ever accrues or not. VII. 2. Application of this doctrine to the usual limitation to trustees to preserve contingent remainders. The usual limitation to trustees to preserve contin- gent remainders is not a contingent but a vested re- mainder. A limitation to A. for life, remainder to B. for the life of A., is a limitation of this character. A.'s estate may expire either with his life or by his surren- der or forfeiture. Now, the right of the grantor to re- sume the estate in the event of forfeiture is a vested right in the nature of a reversion, and incident to the character of an 'estate for life. This vested right the grantor may convey to others, and it remains a vested right in them. On this, ground, the limitation to trus- tees to support contingent remainders is not contingent, but vested. SECTION THE EIGHTH. ON THE EFFECT OF CONTINGENT REMAINDERS INTER- VENING BETWEEN THE PARTICULAR ESTATE AND THE REMAINDERS OVER, IN MAKING THEM CONTIN- GENT OR NOT. VIII. 1. Where such contingent remainders are not in fee simple. Whenever a contingent remainder is limited, which is followed by another limitation over, if the intervening DEFINED AND DISTINGUISHED. 37 contingent limitation be not in fee, the subsequent limit- ation may be vested, if made to a person in esse. As upon " a feoffment to the use of feoffees during the life of A., and after his death to the use of his first and other sons successively in tail, with several remainders over ; and ' A. having no sons at the time of the feoffment, it was resolved that all the uses limited to persons not in esse were contingent, but the uses to persons in esse were vested immediately ; and that the contingent uses when they should come in esse would vest by interposition, if the estate for life, which ought to support them, was not disturbed. VIII. 2. Where such contingent remainders are in fee simple. Mr. Fearne remarks: "But where there is a contin- gent limitation in fee absolute, no estate limited after- wards can be vested. As a devise to A. for life, without impeachment of waste, and if he have issue male, then to such issue male and his heirs forever ; and if he die without issue male, then to B. and his heirs forever. In that case the court held that the remainder to B. and his heirs was not vested, because the precedent limita- tion to the issue of A. was resolved to be a contingent fee ; and they took the distinction I have stated, that where the mean estates are for life, or in tail, the last remainder may, if it be to a person in esse, vest ; but that no remainder after a limitation in fee can be vested. It seems, however, that a contingent determinable fee, devised in trust for some especial purposes only, will not prevent a subsequent limitation to one in esse from being vested." 38 CONTINGENT REMAINDERS SECTION THE NINTH. ON THE EFFECT OF A POWER OF APPOINTMENT ON ESTATES LIMITED TO TAKE EFFECT IN DEFAULT OF APPOINTMENT. Sometimes estates are subjected to a power of ap- pointment in the first taker, with remainders over in default of such appointment ; as an estate to A. for life, subject to such appointment, in fee or in tail, as A. shall make by will, and in default of such appointment, remainder to J. S. in fee, or in tail. Here the remain- der to J. S. is not in contingency, but vested presently, subject to being divested by the appointment of A. We have seen that when a contingent limitation of the fee intervenes between the particular estate and the subse- quent remainders, the subsequent remainders are not vested presently ; but in that case there is an actual limitation of the fee at the execution of the deed ; here, there is no limitation at all until the appointment gives it existence. If no appointment is ever made, no such limitation is ever made ; no such limitation, then, being in existence, there is nothing to operate so as to suspend the effect of limitations actually made. Whether, then, the power of appointment extends to creating a fee, or is confined to limiting a less estate, the remainders limited upon default of such appointment are vested. It is to be further observed, that where a remainder is limited so as to depend upon a contingency, this con- tingency may be considered as confined to such remain- der, without extending to or affecting the subsequent limitations. Thus, in the case of Napper v. Sanders, before cited, it was adjudged that such subsequent limitations vested presently. DEFINED AND DISTINGUISHED. 39 SECTION THE TENTH. ON THOSE CASES WHERE A REMAINDER IS LIMITED SO AS TO DEPEND UPON A CONTINGENCY AFFECTING THE PRECEDING ESTATE, BUT WHICH MAY NOT AFFECT THE ULTERIOR LIMITATIONS. These are reduced to three classes, which are con- sidered in their order. X. 1. Limitations after a preceding estate, which estate is made to depend on a contingency which never takes eiFect. The case of Napper v. Sanders is a leading authority. In that case, and in subsequent decisions, we find that the contingency affected only that estate to which it was first annexed, and did not extend to the ulterior limita- tions. X. 2. Limitations over upon a conditional contin- gent determination of a preceding estate, where such preceding estate never takes effect. As an example under this class is a devise to trustees for eleven years, remainder to first and other sons of B. successively in tail male, provided they should take the testator's surname ; and in case they or their heirs should refuse to take the testator's surname, or die without issue, remainder to the first son of C, remain- der over ; B. died without having had any son ; C. had a son at the time of the devise. The court did not agree as to the validity of the devise to the first son of 40 CONTINSENT REMAINDERS B., it being after a term of years, without any preceding freehold to support it ; but resolved that the subsequent limitation to the first son of C, who was then in esse, and capable, took effect; and that the preceding limita- tion to the first son of B., or the condition thereto annexed, did not operate as a precedent condition which must happen to give effect to the subsequent limitation to the son of C, but was only a precedent estate attended with such limitation. X. 3. Limitations over upon the determination of a preceding estate by a contingency which, though such precedent estate takes effect, never happens. As to this third class of cases, it is to be observed that although, where a remainder is devised to take effect on a condition annexed to the preceding estate, and that preceding estate fails, it appears that the remainders shall nevertheless take place ; yet where such preceding particular estate takes place, and the condition is not performed, the remainder, it has been held, will not take effect at the expiration of such preceding estate, unless in those cases whore the apparent general inten- tion of the testator calls for it. X. 4. Where a remainder is limited in words, which seem to import a contingency, though in fact they meg,n no more than would have been implied without them. As where an estate was given to A. for life, and after- wards to his first, second, third, and fourth sons in tail, and if his fourth son should die without issue, then to B. These mere words of condition do not import a con- dition at all. They merely refer to the time when the DEFINED AND DISTINODISHED. 41 remainder shall vest in possession. It is a vested re- mainder in B. X. 5. Where the contingency upon which the estate is limited has been considered as a condition subsequent, not precedent. In the case of Stocker v. Edwards, there was a sur- render of copyhold lands to the use of the surrenderor for life, and after to the use of his youngest son and the heirs of his body, if he attained the age of eighteen, and if he died before eighteen without issue male, then to the right heirs of A. It was held to be a condition subse- quent with respect to the youngest son, and therefore the remainder vested immediately, subject to be defeated by the condition of his dying without issue male before he attained the age of eighteen. But this class of cases appears rather to belong to shifting uses or trusts, or executory devises. 6* 42 CONTINGENCY WIIBRBON CHAPTER THE SECOND. OF THE NATURE OF THE CONTINGENCY UPON WHICH A REMAINDER MAY BE LIMITED. The limitation intended as a contingent remainder may fail to take eflFect, if the dubious or uncertain event upon which it is made to depend be — 1. An illegal act. 2. If the possibility of its happening be too re- mote. 3. If the event defeats the preceding estate. 1. The event being an illegal act. The law will never adjudge a grant good, by reason of a possibility or expectation of a thing which is against law. For in the contemplation of law such an event never takes place — nunquam venit in actum. Upon this principle a limitation to a bastard not in esse is held to be void. The law does not expect that such genera- tion should be. 2. The remote possibility of the contingent event. Possibilities are of two kinds, potentia propinqua and potentia remotissima. A potentia propinqua is a com- mon possibility, as death, or death without issue, or coverture and the like. A remote possibility has been defined to be a possibility upon a possibility. In a lim- itation to A. for life, remainder to the heirs of J. S., there is a common possibility ttat J. S. may die during the continuance of the particular estate, hence the re- mainder limited is good. There is but one uncertain event, and as this may by common possibility happen, the possibility is not too remote. But if a remainder A REMAINDER MAY DEPEND. 43 be limited to G., the son of D., and D. have no son, the possibility is too remote and the remainder is bad ; for here are two possibilities, one on the other ; first, that D. shall have a son, and second, that this son shall be named G. It is diiBcult to draw the line of distinction accu- rately between these two kinds of possibilities. Thus a remainder limited to the son of A. who shall first attain the age of twenty-one years is a good remainder, al- though two possibilities must precede ; first, that A. shall have a son, and second, that this son shall attain the age of twenty-one years. The general rule seems to be, that where there must be a concurrence of two several con- tingencies, not independent and collateral, but the one requiring the previous existence of the other, and yet not necessarily arising out of it, that then the contin- gency is too remote. 3. The condition enuring to defeat the preceding es- tate. The third objection may be divided into two branches: (A) Where the condition upon which the subsequent limitation is intended to arise or take effect is repugnant to any rule of law, or contrariant in itself, or inconsis- tent with the quality or nature of the preceding estate. (B) Where the condition operates to defeat or abridge the preceding estate. (A) Where the condition upon which the subsequent limitation is intended to arise or take efi'ect is repug- nant to any rule of law, or contrariant in itself, or in- consistent with the quality or nature of the preceding estate. (a) Repugnancy to law. A proviso to make the es- tate of tenant in tail cease during his life is void ; for 44 CONTINGENCY WHEREON althougli the whole estate may be determined by a con- dition, yet part of it only, viz. : during the life of the tanant in tail, shall not. In this case the proviso is in- effectual on account of its repugnancy to the rule of law. (5) Where the condition is contrariant in itself. An example of this description would be a proviso for determining an estate tail, as if tenant in tail were dead. For the death of tenant in tail does not determine the estate tail, but his death without issue. Such a proviso is equivalent to saying that the estate tail shall deter- mine in the same manner as it would determine upon an event which does not determine it at all, and hence is absurd. (c) Where the condition is inconsistent with the quality and nature of the preceding estate. There are certain qualities and incidents so inherently and inseparably annexed to certain estates that no pro- viso, limitation or condition whatever can divest them. These qualities or incidents are to the estates to which they are annexed what attributes or qualities are to substance, in a metaphysical sense. The estate itself exists in and through these qualities, and to take these qualities away leaves — 0. Thus the power to suffer a common recovery is inseparably incident to an estate tail, and this power cannot be restrained by condition, limitation, custom, recognizance, statute or covenant. Many attempts have been made to restrain tenants in tail from exercising this power, but all to no purpose. {B) Where the condition operates to defeat or abridge the particular estate. A KBMAINDBE, MAY DEPEND. 45 1. (a) We have already seen tliat where a condition enures to defeat an estate, a remainder, in the proper sense of that term, cannot be limited thereon ; for every remainder must be so limited as to await the regular and natural expiration of the preceding estate, and cannot be limited upon an event which operates to destroy the estate before the period fixed for its regular expiration. And this is because, as already stated, none but the grantor or his heirs could, at common law, take advan- tage of the condition broken. The condition had to be taken advantage of by entry, and this entry of the grantor or his heirs divested the seisin of the preceding estate, and would, as a consequence, have destroyed or negatived the seisin of the subsequent estates, which seisin was incorporated inseparably in the seisin made in the preceding estate. It follows, therefore, that a re- mainder, properly so called, cannot be limited to take effect upon a condition which is to defeat the preceding estate. Thus if a lease be made to two, the remainder over in fee after the death of the first of them, this re- mainder is void; because the survivor must have the lands during his life by the nature of the first estate. The remainder over after the death of the first of them cannot take place, because it defeats the first estate in joint tenancy. And so of any other condition which de- feats an estate. We are to observe, however, (b) That if lands be leased to one for life, &c., and if such a thing happen, then to remain to B., &c., this shall not be understood as intended to vest in possession, im- mediately upon the happening of the condition, and in abridgment of the preceding estate ; because under that construction the remainder would be void, for the reasons 46 CONTINflENCT WHEREON given in the preceding paragraph ; but it shall be con- strued to vest in interest upon the happening of the con- dition, and to remain as a remainder ought to do; that is, so as to await the determination of the preceding estate, before it comes into possession. As if a gift in tail be made to one, upon condition that if he do such act, then the land shall remain to his right heirs ; the word " then" is not to be so understood as to avoid the estate tail and execute the fee simple in pos- session immediately on performance of the act ; but must be taken in this manner, viz., that upon performance of the act, the remainder in fee shall vest in him, not to be executed in possession till the expiration of the estate tail. It is to be remarked, in passing, that estates tail are prevented from merger under the operation of the statute de donis. 2. Some contingent limitations are of such a character that they do not enure to defeat or abridge the preceding estate, but enure to enlarge or augment it in the grantee himself. Thus in a limitation to two for their lives, remainder to the survivor in fee, the remainder to the survivor does not depend upon a condition which defeats the preceding estate in the survivo'r, but merely embraces the estate of the survivor in a wider estate, and the two estates flow into each other and blend under the technical term of merger. These are strictly remainders at common law. 3. There is a distinction to be taken between the cases, where {a) a subsequent estate at common law is limited to take efi"ect upon a condition which is to defeat the pre- ceding estate ; and other eases where (6) the preceding estate is limited, subject to a condition, but the remainder A REMAINDER MAY DEPEND. 47 is limited without any relation to or dependence at all upon that condition. In the former case we have seen that the remainder is void ; in the latter case the remainder is good. Here the grantor has absolutely, without condi- tion, granted away a remainder, and it is unreasonable that the grantor should defeat it. Littleton says that if a man lease for life upon condition of re-entry for de- fault of payment of rent, and the lessor afterwards grants his reversion, the lessor or his heirs cannot enter, because he has aliened the reversion. Thus if a man lease for life to A. upon condition, remainder over, the condition itself is destroyed, and the lessor hath departed with the reversion at the time the limitation was made as fully and completely as if he had granted it afterwards by another conveyance. 4. It is well settled, in the case of a devise, that where a condition is annexed to a preceding estate upon the non-performance of which the estate is devised over to another, that upon condition broken, the preceding estate shall ipso facto expire and determine without entry on the part of the heir ; and the person claiming under the limitation over shall immediately take the estate in possession. Limitations of this sort are properly called Conditional Limitations. They are void at common law, but good by way of a devise. These (conditional) limit- ations are also good by way of a use ; for a use may be limited to cease as to one person, and to vest in another. These uses are called shifting or secondary uses, and are allowed, because they were good before the Statute 27 Henry VIII., when uses were fiduciary and totally dis- tinct from the legal estate, and where the cestui que use had a remedy by subpoena where none existed under similar circumstances at common law. 48 CONTINGENCY WHEREON, ETC. 5. Whether shifting or secondary uses are good in surrender of copyhold estates is a disputed question. Mr. Fearne inclines to the affirmative. Watkins, in his trea- tise on Copyholds, concludes in the jiegative. 6. With regard to those estates -where the condition enures to enlarge or augment the preceding estate in the grantee himself, it is to be observed that such increase of an estate by such condition must have four inci- dents : (a) There must be some vested estate for the increase to take effect upon. (b) Such estate must continue in the lessee or grantee until the increase happens. (c) The increase must vest immediately upon the per- formance of the condition. {d) The particular estate and the increase ought to take effect by one and the same instrument or deed. ESTATES STJPPOETING CONTINGENT REMAINDERS. 49 CHAPTER THE THIRD. OP THE ESTATE NECESSARY TO SUPPORT A CONTINGENT REMAINDER. I. It is a general rule that •whenever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it. This rule was originally founded on feudal principles, and was intended to avoid the inconveniences which might arise by admitting an interval where there should be no tenant of the freehold to do the services to the lord or answer the stranger's precipes, as well as to preserve an uninterrupted connection between the particular estate and the remainder, which, in the consideration of the law, are but several parts of one whole estate. It is this necessity — expressed by the rule that the freehold shall never be in abeyance — which requires the freehold to . pass out of the grantor at the time the remainder is created, and it must precede the contingent remainder ; for, if it passes at all, it must pass either in the particu- lar estate or in some remainder limited after it. In a contingent remainder it cannot pass, because such re- mainder at the time of its creation passes to or vests in nobody ; and if it passes 'only in some vested remainder limited after the contingent remainder, then can such contingent estate never arise at all ; for that freehold then becomes vested in possession which the contingent estate was limited to precede ; and, of course, there is no room left for the introduction of the contingent free- hold. It follows, therefore, that some preceding vested 50 ESTATES SUPPORTING estate of freehold must be limited to give existence to, such a contingent remainder. Thus, in a devise to B. for fifty years, if he should so long live, remainder to the heirs of the body of B., re- mainder to C, the limitation to the heirs of the body of B. would be void as a remainder for want of a freehold to support it. But, in an estate limited to A. for ninety-nine years, if he should so long live, remainder to trustees during the life of A., remainder to the wife for her jointure, remainder to the heirs of the body of A., although the particular estate was but for years, yet the contingent remainder to the heirs of the body of A. was good, be- cause preceded by a vested freehold remainder to the trustees. II. The rule respecting the estate requisite to support a contingent remainder holds equally in the limitation of uses as in estates executed in possession at common law. Before the Statute of Uses, if a feoffment had been made to A. for years, remainder (of the use) in contift- gency, the contingent use would have been good, for the feoffees remained tenants of the legal freehold. But since that statute, the feoffees have no estate whatever, but are merely the instruments through which the seisin flashes instantaneously into the cestui que use. Therefore, where there was a lease and release by A. to trustees and their heirs to the use of A. for ninety- nine years, remainder to the use of trustees for twenty- five years, remainder to the heirs male of the body of A., the court held the limitation to the heirs male of the body of A. to be void, because there was no preced- ing estate of freehold to support it. CONTINGENT REMAINDERS. 51 III. A contingent remainder for years does not appear to require a preceding estate of freehold to support it. For the remainder ftot being freehold, it does not appear necessary that a freehold should pass out of the grantor when it is created. IV. It is not necessary for the support of a contingent remainder that the preceding estate of freehold continue in the actual seisin of the rightful tenant; it is sufficient if a right of entry exist at the time the remainder should vest. For the disseisee has still the right of possession, and the law regards him as the rightful tenant. But if the disseisor die in possession, then the law casts the de- scent upon his heir, and the disseisee's right of entry is divested, and he is driven to his right of action. Where the right of entry is lost by a descent cast, or by any other cause; the remainder cannot vest. V. This right of entry must be a present right, a future one will not do ; it must also precede the contin- gency and be actually existing when that happens ; for if it only commences at the same instant with it, the re- mainder it seems will not vest. VI. Where the estates are limited by way of use, and are afterwards divested and turned to a right, it has been held requisite to the execution of the subsequent contingent uses, that either the cestui que use under some preceding vested use, or that the feoffees or their heirs should enter, in order to revest the estates. It is to be observed : 1st. That a contingent use is destroyed by the abso- 62 ESTATES SUPPOETING lute termination of the preceding estate, before the con- tingent use can vest. 2d. That a contingent use is destroyed if the preced- ing estate is turned to a right of action. Both these characteristics are -common to estates lim- ited by "way of use and to estates at common law. But ■we have seen that in estates at common law, if the right of entry was intact in the preceding estate, that there was still sufficient seisin to allow the subse- quent contingent estate to vest. The question for con- sideration now is, if such a mere right of entry in the feoffees or cestui que use is a sufficient seisin to preserve the preceding estate ; or if entry must be actually made in order to uphold the preceding estate and save the subsequent contingent use? At common law, the use and the legal estate were en- tirely separate and distinct. The law took no notice whatever of the use. The estate in the feoifees to uses was in every respect the same as if no such use had been declared, so far as courts of law were concerned. It was only by subpoena in Chancery that the cestui que use had a remedy for an injury done him by the feoffees to uses. The Statute 27 Henry VIII. changed all this. Be- fore this statute, in a limitation to A. and his heirs to the use of B. and his heirs, the legal estate was in A., the equitable estate in B. All the burdens incident to a legal estate rested upon A., all the profits and enjoy- ment were reserved to B. After this statute, the estate to A. was annihilated. The legal estate was vested in B. as perfectly and completely by this conveyance by the way of or through the medium of a use, as if B. had been enfeoffed with livery of seisin at common law. CONTINGENT REMAINDERS. 53 Thus the statute was said to execute the use; but it did not abolish conveyances through the medium of uses. In these conveyances by way of use, four things must concur to execute the use : 1. There must be a person seized to the use. 2. There must be a cestui que use in esse. 3. A use in esse, i. e., in possession, reversion or remainder. 4. An estate or seisin, out of which the use is to arise. In an estate to A. and his heirs to the use of B. and his heirs, there is no difficulty in the execution of the use. The whole fee passes instantaneously through A., and takes eifect in B. Nor is there any difficulty when the estate is to A. for life, remainder to the use of D. in fee. The whole seisin is divested out of the feoffees, and takes effect in the oestuis que use, under the statute. But suppose a limitation to the use of A. for life, con- tingent remainder to A.'s first and other sons in tail, remainder to C. in fee ? Now, where was any seisin in the feoffees to be trans- ferred to the first and other sons of A. when they should come into being ? In Chudleigh's case the judges reasoned as follows: It was a self-evident proposition that the whole fee conveyed to the feoffees did either (1) all pass out of them in the execution of the uses ; or (2) that it did not all pass. In the first case, if all passed, then there was no seisin left in the feoffees upon which the contingent uses could be executed when they arose. If it did not all pass, then the vested uses to A. for life, and to C. in fee, were not executed; which was contrary to the statute. The judges avoided the dilemma by a fiction. They 7* 54 ESTATES SUPPORTING CONTINGENT REMAINDERS. said that, although there was no actual seisin in the feoffees, there remained in them a possibility of seisin, or, as it is called, a scintilla juris, to serve the contin- gent uses when they should arise. This brings us to the consideration of the point arising in this paragraph, viz. : When the preceding estate has been turned to a right of entry, is it necessary for the trustees or the cestui que use to actually make the entry, in order to preserve the possibility of seisin, so that a seisin may exist in the feoffees when the contingent uses arise upon which these uses may be executed ? Mr. Fearne argues that an actual entry is not neces- sary. VII. The estate supporting and the estate supported must both be created by one and the same instrument or conveyance. VIII. Where the estate is devised to and vested in trustees in trust, there is no necessity for any preceding particular estate of freehold to support contingent limit- ations. And this for the reason that the legal estate in the general trustees is sufficient. IX. If a rent were granted to A. for the life of another, with a remainder over, though the grantee die during the life of cestui que vie, it has been held that the remainder over was supported. The retention of the rent by the terre-tenant has been held a sufficient occupancy to keep up the estate neces- sary to the support of the remainder over. TIME FOB, THE VESTING, ETC. 55 CHAPTER THE FOURTH. OP THE TIME WHEN A CONTINGENT REMAINDER SHOULD VEST. I. The preceding estate of freehold must subsist and endure until the time when the contingent remainder vests. There are some few instances of vested remainders taking effect though the preceding estate be defeated. As where lessor disseiseth A., his lessee for life, and makes a lease to B. for the life of A., the remainder to C. in fee ; here, though A. enter and defeat the estate for life, the remainder to C. is good, for having been once vested by a good title, it would be unreasonable that the lessor should have it against his own livery. II. Yet the remainder may be so limited as to vest at the very instant at which the particular estate deter- mines. As if a remainder -be limited to B. for the life of A., and at the death of A. to the heirs of A., the remain- der is good, for a remainder must vest either during the continuation of the estate or eo instanti of its determina- tion. At the instant of A.'s death the remainder vests in his heirs. III. Wherever a preceding estate is in several persons in common or in severalty, a remainder limited upon it in contingency may fail as to one part, and take effect as to another. 56 TIME FOR THE VESTINfi OF The case of Lane and Pannel is to the present point, in effect as follows : Feme covert and stranger being joint tenants for life of copyhold lands, with remainder to the heirs of the body of the baron and feme, the stranger, surrendered his moiety to the baron and feme, and afterwards the baron surrendered the whole to B. in fee. The feme died leaving issue, and afterwards the baron died ; the question was, whether the remainder to the heirs of the body of the baron and feme vested in the issue ; and it wis adjudged that when the stranger conveyed his moiety to the baron, the jointure between the stranger and the feme covert was severed ; and when the baron afterwards conveyed the whole to B., B. took an estate in one moiety for the life of the feme (defeas- ible by her on the death of her husband), and in the other moiety for the life of the stranger ; therefore, upon the death of the feme, the estate in the first moiety was determined ; at which time the remainder as to that moiety ought to have vested, which it could not do, be- cause the person to take it was to be heir of the bodies of both baron and feme ; but that was impossible during the life of the baron (for nemo est heres viventis); and therefore, as the remainder could not vest at the deter- mination of the preceding estate, it should never vest at all as to that moiety. In this case it appears that the remainder failed as to one moiety. A contingent remainder may also take effect in some and not in all of the persons to whom it is limited ; as if after an estate for life to A., a remainder be limited to the heirs of B. and 0. Now, if B. dies during A.'s life- time, and C. survives A., the remainder will take effect in the heirs of B., but never in the heirs of C, because as to them, the particular estate to A. determined before CONTINGENT KEMAINDERS. 57 the remainder could vest, for there could be no heirs of C. during C.'s lifetime. IV. Where a contingent remainder is limited to the use of several, who do not all become capable at the same time, notwithstanding it vests in the person first becoming capable, yet it shall divest as to the propor- tions of the persons afterwards becoming capable, if this capability accrue before the determination of the par- ticular estate. Thus, where a conveyance was to the use of A., the husband, for life, remainder to the use of B., the wife, for life, remainder to the use of all the issues female of their two bodies, and the heirs of the bodies of such issues female, A. an'd B. had issue a daughter ; and it was resolved that the remainder in tail to the issues female was not so attached in that daughter as not to be divested for a moiety on the birth of another daughter. It may be observed here that if there be no particular estate in esse, nor any present right of entry when the contingency happens, although the particular estate be afterwards replaced and restored, yet will the remainder never arise. 58 DESTRUCTION OF CHAPTER THE FIFTH. HOW CONTINGENT REMAINDERS ARE DESTROYED OR PREVENTED TAKING EFFECT. I. It has been already shown that a legal remainder must vest either during the existence of the particular estate (in esse, or in a right of entry), or at the very instant of its determination, otherwise it will never take effect at all ; consequently, contingent remainders are destroyed by such determination of the preceding estate before the contingency happens as leaves no right of entry. Those cases where the particular estate is determined by the feoffment, forfeiture, surrender, or other act of the particular tenant, are first' discussed ; then those are considered where the particular estate is merged by the descent of the inheritance on the particular tenant. II. Where the determination of the preceding estate arises by the feoffment, forfeiture, surrender, or other act of the particular tenant. In the case of a gift in tail to A. C, the remainder to the right heirs of J. S., the donee made a feoffment in fee, and afterwards J. S. died. It was held that his heir should not have the land, because the particular estate was determined by the feoffment before the re- mainder could vest. So where there was a tenant for life, with remainder to his first and other sons successively in tail, remainder CONTINGENT EEMAINDBRS. 59 to B. in tail, tenant for life before the birth of any son, surrendered to B. ; a son was afterwards born, and the court held that the surrender, if good, would have barred the remainder. III. The surrender of a copyhold will not destroy a contingent remainder. The reason for this is that such lands are holden in base tenure, and the freehold and inheritance are both in the lord, and the inconvenience does not arise as would arise if the freehold in free tenure were in abey- ance. IV. But if copyhold land be surrendered to the use of a person for life, remainder in contingency, and the tenant for life die before the contingency happens, the remainder fails. Because this incident is independent of and collateral to the nature of the tenure. V. Cestui que trust for life cannot, by feoffment other conveyance, destroy a contingent remainder. or For though when the trust of an estate is limited to a man and the heirs of his body, with remainder over, if such tenant in tail of a trust suifer a recovery, the re- mainders will be barred ; yet where tenant for life of a trust conveys in fee by feoffment or any other convey- ance, it is no forfeiture of his estate, neither will it de- stroy a contingent remainder depending on it ; because whatever conveyance he makes, as he has not the legal 60 DESTRUCTION OF estate in him, it passes only what he can lawfully grant («'. e., his trust estate for life), and a right of entry re- sides in the trustees in whom the legal estate is vested. But a recovery suffered by a tenant in tail of a trust will bar a remainder, because tenant in tail may call in the legal estate when he pleases, and have it conveyed to the trust. But the Court of Chancery will never execute the estate in law to tenant for life of a trust, to enable him to destroy the contingent remainder. VI. Bargain and sale or lease and release by tenant for life will not destroy a contingent remainder limited upon his estate. For by these two kinds of conveyances, a man only passes what he lawfully may pass, and any further assurance by such conveyances is void. VII. It is also to be observed that there are some acts by tenant for life which, though they amount to a forfeiture of his estate, so as to give a vested remainder- man title to enter if he pleaseth ; yet as they discon- tinue, divest, or disturb no remainder or subsequent estate, nor make any alteration in or merger of the par- ticular estate, do not therefore, as it seems, destroy or affect a contingent remainder, unless advantage is taken of the forfeiture by some subsequent vested remainder- man. Thus, if tenant for life accepts a fine eome ceo, &c., from a stranger, it is undoubtedly a forfeiture, so as "to entitle a remainder-man to enter, for he hereby affirms on record the reversion to be in a stranger ; and yet it CONTINGENT KEMAINDERS. 61 does not displace or divest the remainder or reversion. Therefore, where A. was tenant for life, remainder to his first son in tail, &c., remainder to B. for life, remainder to his first son in tail, &c.. A., having a son, accepted a fine from B., and then made a feoffment in fee ; then B. had issue a son ; and it was resolved that the acceptance of the fine displaced nothing ; and though A.'s feofi"ment displaced all the estates, yet the right of entry in the son of A. supported the contingent remainders. But a contingent remainder may be destroyed by an act which, though it does not discontinue or divest any remainder or subsequent vested estate, yet extin- guishes the particular estate on which the contingent remainder depends. Thus, if A. be tenant for life, re- mainder to his first and other sons in tail, rernainder to B. in fee ; and A. and B. join in a fine to a third person, this is no discontinuance or divesting of any estate, because each gives only his own. Yet it is held that the intermediate contingent remainders are destroyed by the union of the particular estate with the remainder in the grantee, after which no distinct particular estate exists to support the contingent remainder. VIII. Whether a contingent remainder is created by a conveyance at common law, or limited by way of use, the same rule holds in regard to its capacity of being destroyed. So if one make a feofi"ment in fee, or covenant to stand seized to the use of himself for life, and afterwards to the use of his first son in tail male, and before the birth of any son make a feoffment in fee, such feoffment will de- stroy the contingent remainder to the son. 62 DESTKUCTION OF IX. The legal subjection of contingent remainders to the power of the preceding tenant of the freehold has introduced the estate and trust usually inserted in deeds and wills for preserving contingent remainders. This is a good remainder vested in the trustees, under which they will have such a right of entry, in case of any forfeiture or tortious alienation by the tenant for life, as will support the contingent remainders expectant on his decease. Such precaution is constantly used at this day in settlements and conveyances on marriage, or by will or otherwise, where there are any contingent re- mainders that call for such a protection. X. If trustees for preserving contingent remainders join in a conveyance to destroy them, a court of equity will consider it a breach of trust. In this case the court will decree that the trustees purchase other lands with their own money equal in value to the lands sold by them, and to hold them upon the same trusts and limitations that they held the other. But if the conveyance be with notice of the uses, whether with or without consideration, in that case the purchaser shall hold the lands subject to the former trusts. XI. But if tenant for life with contingent remainders to his first and other sons destroy the contingent remain- der at law, as he is no trustee, it is no breach of trust. XII. A court of equity will sometimes, in the exer- cise of a discretionary power, direct the trustees for preserving contingent remainders to join with the tenant for life, or his first son, in barring subsequent contingent limitations. CONTINGENT REMAINDERS. 63 But this only happens under peculiar circumstances ; either of pressure to discharge incumbrances prior to the settlement, or in favor of creditors where the settlement was voluntary ; or for the advantage of the persons who were the first objects of the settlement, as to enable the first son, &c., to make a settlement upon an advantageous marriage. XIII. Although equity does not interpose in case of the destruction of contingent remainders by tenant for life, where there is no trust in the case to bring it within the cognizance of a court of equity, yet it views such destruction of contingent remainders in the light of a wrong or tort, which it is anxious to prevent. Hence a court of equity seizes every occasion and makes every possible stretch for extending its protection against such destruction. Thus a trust declared in a will to support contingent remainders, though annexed to an improper, misplaced estate, has been rectified and transposed to effectuate the end. And in cases of articles, settlements, &c., for good and valuable consideration, the court has frequently gone as great or greater lengths in transposing clauses or supplying words, &c., to effectu- ate the intent. XIV. The position has been laid down that any alter- ation in the nature of the preceding estate, before a re- mainder vests, will destroy that remainder. As if lands be given to A. in tail, and if J. S. come to Westminster Hall such a day, remainder to J.' S. in fee ; (it has been said) that if the lands descend to two 64 DESTRUCTION OF co-parceners who make partition, the fee shall not accrue to J. S., though he should come to Westminster Hall on the day. Mr. Fearne is of the opinion that the altera- tion in a particular estate which will destroy a contin- gent remainder must amount to an alteration in its quantity and not merely in its quality. XV. Where the particular estate is by the act of the parties merged in the reversion, the contingent remain- der is destroyed, though there be no divesting of any estate. As if there be tenant for life, remainder in tail in con- tingency, remainder in tail in esse ; and the tenant for life, and he in remainder in tail in esse, levy a fine, this is no discontinuance, no divesting of any estate, because each gives such estate as he has ; and yet the mean con- tingent remainder is destroyed. XVI. But the books apparently differ with respect to the destruction of the contingent remainder, in cases where the inheritance becomes united to the particular estate by descent. Thus one devised lands to T., his eldest son, for life, and if T. should die without issue living at his death, then to L., another of the testator's sons in fee ; but if T. should have issue living at his death, then to the right heirs of T. forever ; the testator died, and it was resolved that T. was tenant for life with the remainder of the fee in contingency ; and that the descent of the fee upon him, as heir at the death of the father, did not destroy the contingent remainder. CONTINaENT REMAINDERS. 65 But in another case, A., the father, being tenant for life, remainder to his son B. for life, remainder to the first son of B., remainder to the heirs of the body of A. ; A. died' before any son was born to B. ; the court held the contingent remainder to the first son of B. was de- stroyed by the descent of the estate tail on B. This apparent diversity in the decisions may be recon- ciled by distinguishing between — 1. Those cases where the descent of the inheritance is immediate from the person by whose will the particular estate and contingent remainders were limited ; as in the first case put, where the inheritance does not merge the contingent remainder ; and, 2. Those cases where the particular estates and con- tingent remainders were not created by the will of the ancestor from whom the inheritance immediately de- scends upon the particular estate ; as in the second case put, where the inheritance does merge the contingent remainders. XVII. But whether, in case of a limitation to one for life, remainder to his first and other sons, &c., remain- der to the heirs, &c., of teiiant for life, this last limita- tion is so executed in him as to entitle his wife to dower upon her husband's decease, sans issue, has been a question. The better opinion seems to be that the wife is dow- able. XVIII. On the effect of a feoffment on condition by tenant for life in destroying contingent remainders. If a tenant for life with contingent remainder over 66 BESTRUCTION OF, ETC. makes a feoffment in fee on condition, and the contin- gency happens before the condition is broken, the re- mainder is destroyed, notwithstanding the tenant for life afterwards enter for the condition broken. But if the tenant for life enter for the condition broken, before the contingency happens, the remainder it seems may vest ; but in that case, if the reversioner enters for the forfeit- ure (which accrues by reason of the feoffment) before the contingency happens, the contingent remainder is de- stroyed. For although it might be argued that the for- feiture itself divested the estate, and that the forfeiture is not purged by the re-entry, yet on the authority of Lord Coke, who tells us that if lessee for life make a feoffment on condition, and afterwards enter for breach of the condition, it will reduce the reversion to the lessor and the estate for life will be restored, though still sub- ject to the entry of the lessor for the forfeiture; upon this authority it seems that in this case the remainder is not destroyed. OTHER PROPERTIES OF, ETC. 67 CHAPTER THE SIXTH. OTHER PROPERTIES OF CONTINGENT REMAINDERS. This chapter treats of other properties of contingent remainders, which could not be appropriately brought under any of the foregoing general heads. , I. Where a remainder of inheritance is limited in con- tingency by way of use, or by devise, the inheritance in the meantime, if not otherwise disposed of, remains in the grantor and in his heirs, or in the testator's heirs, until the contingency happens to take it out of them. Thus, where A. made a feoffment to the use of such person and persons, and for such estate and estates as he should limit and appoint by bis last will in writing, A. had the use in the meanwhile. When A. died, the use would have been in the heir until the contingency arose upon which the estates were to vest. The same is true in limitations made by way of use, to take efiect in the grantor's lifetime ; wherever a use is not disposed of, it remains in the grantor. Such uses are called re- sulting uses. II. On the effect of a devise of lands to trustees and the survivor of them, and the heirs of the survivor in trust to sell. The legal estate in the trustees is a joint estate for life, with a contingent remainder in fee to the survivor of them. Until the contingency happens, viz. : until the survivor comes into the seisin of the fee, the inher- 68 OTHER PROPERTIES OF itance descends upon the heir. When the contingency takes place, the estate in the heir is divested, and vests in the survivor. In this case, the fee not being in the trustees, but in the survivor of them, it has been thought necessary for the trustees to join in a fine to bar their contingent interest, so as to be enabled to make a good title to the purchaser. But it seems that a fine is not necessary, because the intent and purpose upon which the lands were given to the trustees, viz., to sell, neces- sarily reaches the whole fee. In addition to this, the purchaser in this case — without fine — would come in under the will, to the exclusion as well of the heir of the testator as of the heir of the sui'viving trustee. III. When a contingent remainder of inheritance is created in a conveyance at common law, where does the inheritance reside before the contingency happens ? We have seen that in conveyances by way of use and by devise, the inheritance resulted to the grantor and his heirs, or to the heirs of the testator. But with re- spect to such conveyances at common law different opin- ions have been entertained. Some have held that in a case of a lease for life, re- mainder to the right heirs of J. S. then living, no estate at all remains in the grantor, and that he cannot enter for the forfeiture, in case of a feoifment by the tenant for life ; while others, though disinclined to admit that any estate remains in the grantor in such case, still allow him a right of entry for the forfeiture, upon a feoffment by the tenant for life ; no less than on the determina- tion of his estate by death before the contingency hap- pens. CONTINGENT REMAINDERS. 69 These opinions are founded on an assumption that the remainder must pass out of the donor at the time of the livery ; and, consequently, that no estate shall re- main in him after such livery. The remainder, they say, in this case, is in abeyance, in nubibus, or in gremio legis. Upon these opinions, and the reasons assigned there- for, Mr. Fearne remarks as follows : " Now, it must be an object of no small curiosity to understand how a re- mainder can pass from the donor until there exists some donee to receive it of him ; if it passes at all, the con- clusion rather seems to be, that it passes to somebody ; and whilst it does not pass to anybody, one might sup- pose it does not pass at all. And, however profound a solution of this difficulty may be discoverable by adepts in legal lore, under the expressions 'in abeyance,' 'm nuhibus,' or 'w gremio legis,' I cannot but think it a more arduous undertaking to account for the operation of a feoffment or conveyance, in annihilating an estate of inheritance, or transferring it to the clouds, and after- wards regenerating or recalling it at the beck of some contingent event, than to reconcile to the principles, as well of common law as of common sense, a suspension of the complete or absolute operation of such feoffment or conveyance, in regard to the inheritance, till the in- tended channel for the reception of such inheritance comes into existence ; ifi any case, at least, where a present estate of freehold passes in the meanwhile, as the immediate and initiate subject of the operation of such conveyance. The doctrine of estates to be enlarged upon condition may be referred to for such a principle, as no new thing in our law ; and the several cases cited by Lord Coke against the opinion of the fee simple pass- 70 OTHER PHOPERTIES OF ing before tlie condition performed, in case of a feoif- ment to one for years, upon condition to have an estate of freehold or inheritance on payment of a certain sum, &c., show that there was no such universally allowed ab- surdity in the texture of our common law, as to prevent the inheritance continuing in the grantor, where there was no passage for its transition open at the time of the livery. " In short, to bring this doctrine to the test of common reason, we may state it thus: A man makes a disposition of a remainder or future interest, which is to take no effect at all until a future event or contingency happens; it is admitted that no interest passes by such a disposi- tion to anybody before the event referred to takes place. The question is, What becomes of the intermediate re- versionary interest from the time of making such future disposition until it takes effect ? It was in the grantor or testator at the time of making such disposition ; it is confessedly not included in it. The natural conclusion seems to be that it remains where it was, viz. : in the grantor or the testator and his heirs, for want of being departed with to anybody else. When the future dis- position takes effect, then the reversionary or future in- terest passes pursuant to the terms of it ; but if such future disposition fails of effect, either by reason of the determination of the particular estate, failure of the con- tingency, or otherwise, what* is there, then, to draw the estate, which 'was the intended subject of it, out of the grantor, or his heirs, or the heirs of the testator ? Or, who can derive title to an estate, under a prospect- ive disposition which confessedly never takes any effect at all?" CONTINGENT REMAINDERS. 71 IV. A contingent remainder of inheritance is trans- missible to the heirs of the person to whom it is lim- ited. The same law, it seems, holds with respect to future uses. But in some cases the being in esse of the devisee, &c., to whom the contingent interest is limited, at some particular time, may enter into and make a part of the contingency itself, upon which such interest is in- tended to take effect ; as in case of a settlement of the wife's lands on herself for life, remainder to husband for life, if any issue of the marriage should so long live, re- mainder to all the children in fee ; and if she died with- out issue, or such issue died under twenty-one, then as to one moiety to the husband in fee. The Court of King's Bench held that upon all the circumstances of the case, the contingency on which the husband's estate in fee was to arise was that of his surviving (viz., living at the death of) his wife, and that as he died first, the contin- gency never arose. V. A contingent remainder may, before it vests, be passed by fine by way of estoppel, so as to bind the interest which shall afterwards accrue by the contin- gency. A contingent remainder cannot be passed or trans- ferred by a conveyance at law in any other mode than by way of estoppel by fine, or by a common recovery, wherein the person entitled to the contingent estate comes in as a vouchee. It could not be transferred by conveyance, properly so called, because it was no estate in esse. It could be transferred by fine or common re- 72 OTHER PROPERTIES OF covery, because the title itself under which it was derived was declared nugatory in a court of law. For though fines and common recoveries are mere fictions and serve only as forms of conveyance, yet is the fiction consistent and the effect of such conveyances is the same as if an original writ had been actually sued out>and the agree- ment recognized, or the recovery actually adjudged in a court of law. VI. Contingent remainders appear formerly to have been held not devisable by the person entitled thereto. But modern decisions have established the power of testamentary disposition of contingent and executory estates and possibilities, accompanied with an interest ; and of such as would be descendible to the heir, on the object of them dying before the contingency or event on which the vesting or acquisition of the estate depended. But the decisions do not appear to reach those cases where neither the contingent interest itself is transmis- sible from any person until the contingency decides him to be an object of the limitation, nor the person or per- sons, to or amongst whom the contingent or future in- terest is directed, is or are in any degree ascertainable, before the contingency happens ; as in the case of a con- tingent or executory limitation to the right heirs of J. S. (then living), where the description of the person to take cannot be confined to or among any ascertainable person or persons, during the life of J. S. ; nor can it therefore- be said in whom such interest is; nor, conse- quently, that it is in any body, during that period; nor will it be transmissible or descendible from any one dying before it becomes vested. CONTINGENT REMAINDERS. 73 VII. A fee cannot, at common law, be mounted upon a fee, j'et two or more several contingent fees may be limited merely as substitutes or alternatives the one for the other, and not to interfere, but so that one only take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect. Thus, at law, if lands were limited to one and his heirs, and if he die without heirs, then to another in fee, the last limitation is void. So where the fee was base and determinable, as if lands were given to one and his heirs so long as J. S. has issue, and after the death of J. S. without issue, to remain over to another in fee, this remainder over is likewise void. Such limitations may be good in a will or by way of use upon a contingency that may happen within the limits of perpetuity allowed by law (a life or lives in being and twenty-one years and some months thereafter), though not then as remainders, but as executory devises, or springing or shifting executory use. But though a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several con- tingent fees may be limited as substitutes or alternatives, the one for the other ; as where a testator devised to A. for life, without impeachment of waste ; and if he have issue male, then to such issue male and his heirs forever ; and if he die without issue male, then to B. and his heirs forever ; it was held that the first remainder was a con- tingent remainder in fee to the issue of A., and the re- mainder to B. was also a contingent fee, not contrary to or in any degree derogatory from the effect of the former, but by way of substitution for it. And this sort of alterna- 74 OTHER PROPERTIES OF, ETC. tive limitation was termed a contingency \yith a double aspect. For if A. had issue male, the remainder was to vest in that issue in fee ; but if A. had no issue male, then it was to vest in B. in fee ; and these were limita- tions of which the one was not expectant upon and to take effect after the other, but were contemporary ; to commence from the same period, not indeed together, but the one to take effect in lieu of the other, if that failed. Mr. Fearne closes the treatise on Contingent Remainders with remarking that, " There are some other cases which might, with propriety enough, have been in- serted under the same title ; particularly some of those wherein the question whether a limitation should ope- rate as a contingent remainder, or as an executory devise or future use, has been agitated, and the construction of a contingent remainder has prevailed ; but as most of them must have been also noticed under the head of Exe- cutory Devises, and that of Contingent Remainders has already swelled in the progress rather beyond the limits I at first expected, I think it most convenient to refer them to the ensuing Chapter of Executory Devises." EXECUTORY DEVISES. CHAPTER THE FIRST. AN EXECUTORY DEVISE DEFINED, AND ITS SEVERAL KINDS DISTINGUISHED. I. An executory devise is, strictly, such a -limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules which govern limitations in conveyances at common law. An executory devise has been defined to be a devise of a future interest in lands, not to take effect at the testator's death, but limited to arise and vest upon some future contingency. This definition is too broad. It includes executory devises, strictly so termed ; but it includes more — it includes contingent remainders, which are not executory devises, although they take effect under a limitation in a devise. The definition is good to distinguish devises of all contingent interests from imme- diate devises, which immediate devises confer an estate vested either presently upon the death of the testator, or vested to take effect in possession at some future time. (Mr. Fearne also considers executory bequests of chattels, real and personal, under the head of executory devises, though strictly they would be excluded.) Thus, where A. devised lands to B. in fee, to com- 76 EXECUTORY DEVISES mence and take effect six months after the testator's death, the limitation was good as an executory devise, though void at common law, because at common law no estate of freehold could be limited to commence in futuro. So where a testator devised to B., his son, and to his heirs forever, and if B. died without issue, living A., then to A. in fee, the limitation was good as an executory devise, though void at common law, because at common law none but the grantor or his heirs could take advantage of a condition broken. And even though an antecedent devise in fee simple be not vested, but contingent, yet if the ulterior devise be limited so as to take effect in defeasance of the estate first devised, on an event subsequent to its becoming vested, it has been held to operate as an executory devise. An executory devise is only an indulgence allowed to a last will and testament, and is in derogation of the common law. On these grounds, whenever a limitation in a devise can, consistently with the will of a testator, be construed to take effect at common law, it is never construed as an executory devise. Hence the unvarying rule that, whenever a future interest is so limited by devise as to fall within the rules laid down for the limit- ation of contingent remainders, such an interest is not an executory devise, but a contingent remainder. II. If a particular estate of freehold be first devised, capable in its own nature of supporting a remainder, followed by a limitation, which is not immediately con- nected with, or does not immediately commence from, the expiration of the particular estate of freehold, the DEFINED AND DISTINGUISHED. 77 latter limitation is incapable of taking effect as a re- mainder, but may operate as an executory devise, if con- fined to the requisite limits of time. Thus, if lands be devised to one for life, and after his decease to B. in fee, the limitation to B, in fee is imme- diately connected with and immediately commences on the expiration of the estate limited to A. for life, and is therefore a remainder. But if the land be limited to A. for life, and after the decease of A., and one year after his decease, to B. in fee, the interval of the year pre- vents the limitation to B. from being immediately con- nected with and from immediately commencing at the expiration of A.'s life estate ; it cannot, therefore, operate as a remainder, but operates as an executory devise. III. Executory devises have generally been distributed into three kinds ; two kinds include real estate, and the third kind, personal estate only. A. The first kind is where the devisor departs with his whole fee simple, but on some contingency qualifies that disposition, and limits an estate on that contin- gency. As where a testator devised lands to his wife for life, remainder to C, his second son in fee, provided if D., his third son, should, within three months after his wife's death, pay 600?. to C, his executors, &;c., then he devised the lands to D. and his heirs. This was an executory devise to D. B. The second kind is where the devisor gives a future estate to. arise upon a contingency, but does not part with the fee at present. As a devise to the first son or heir of J. S., when he shall have one ; or a devise 9* 78 EXI3CTJT0RY DEVISES to the daughter of B. who shall marry such a one within fifteen years. In addition to the cases strictly falling under the second class, those are to be included where {a) The future estate is not contingent, but limited in an event certain. (5) Though the testator departs with an immediate estate of freehold, yet the ulterior limitation is not so connected with it as to be capable of effect as a re- mainder. The case of a devise to one, to take effect six months after the testator's decease, is an instance under the ex- tended description {a). The case of a limitation to one for life, and from and after the expiration of one day next ensuing his decease, then to another, is an instance under the extended description (h). C. The third kind of executory devises, comprising all that relates to chattels, is where a term for years, or any personal estate, is bequeathed to one for life or otherwise ; and after the decease of the legatee for life, or some other contingency or period, «is given over to somebody else. Such ulterior limitation of chattels, real or personal, was void at common law, and the whole property vested in the person to whom it was limited for life. But there was a distinction taken between the bequest of the use of the thing personal and the bequest of the thing itself. Thus, where the will was that A. should use such a thing during his life, and afterwards that B. should have it, the limitation over was agreed to be good ; but if the first disposition had been of the thing itself to one for life, and after to another, then the bequest over would have been void. But the doctrine has gradually DEFINED AND DISTINGUISHED. 79 obtained, and is now settled, that such limitations over in a will, or by way of trust, are good. IV. The degree or quality of the property acquired by persons taking a limited or restricted interest for life in chattels under testamentary dispositions or limitations of trust. The property itself is not liable to be taken in execu- tion for the debts of the holder for life. But creditors would be entitled to the dividends of chattels, or money in the stocks, or to rents and profits during the life of cestui que vie. Nor can it be voluntarily subjected to the demands of creditors by the cestui qui vie, nor can it be pawned or disposed of in any way to bind the ulterior executory interests. And a court of equity will inter- fere to protect ulterior limitations, by the appropriate remedy, whenever endangered by the act of the first taker, or by a stranger. 80 GENERAL QUALITIES CHAPTER THE SECOND. GENERAL QUALITIES OF EXECUTORY DEVISES. I. A contingent remainder may be limited at common law ; an executory devise is only admitted in a last ■will and testament. A contingent remainder relates only to lands, tenements, and hereditaments, real or mixed ; an executory devise relates to personal estate as well as real. A contingent, remainder requires a pre- ceding estate of freehold to support it ; an executory devise does not. A contingent remainder must vest at the furthest at the instant of the determination of the preceding estate ; no such necessity exists for an execu- tory devise. But the great and essential difference be- tween the two consists in this, that contingent remain- ders may be barred and destroyed, and prevented from taking effect by several different means ; whereas, it is a rule that an executory devise cannot be prevented or destroyed by any alteration whatever in the estate out of which or after which it is limited. II. But if the preceding limitation in the devise should be in tailj with a subsequent limitation of the fee, then the subsequent limitation will not be an executory devise, but a remainder expectant on an estate tail. Thus, a limitation to A. in fee simple, and if A. die without issue, then to B. and his heirs, this is a good executory devise, and cannot be barred or destroyed by any act of A. ; but if the devise had been to A. in tail. OF EXECUTORY DEVISES. 81 the subsequent limitation would have been a remainder, and might be destrojed. We have already seen that a limitation in a will shall be construed a remainder when this can consistently be done. III. Executory bequests in chattels are equally as secure as executory devises, in real estate against the disposition of the first legatees of the preceding or limited interests therein. IV. But a release from the devisee of the executory interest to the first taker will discharge that executory interest. V. A recovery by tenant in fee simple will not bar an executory limitation subsequently limited; but where an estate tail is first limited, and then an executory or conditional limitation is made upon that estate, a re- covery suffered by the tenant in tail will bar such execu- tory or conditional limitation. Because one of the incidents, as we have already seen, inseparably annexed to an estate tail, is the bar by a common recovery. VI. The contingency upon which an executory devise is to take effect must happen within the time of a life or lives in being and twenty-one years thereafter, allowing some months for gestation. Unless there were some limit within which an execu- tory devise shall take effect, it would be ia the power of a testator to make an estate unalienable for generations 82 GENERAL QUALITIES, ETC. to come, arid render it useless, to this extent, to the pur- poses and calls of a commercial society. This power of creating perpetuities the law denies beyond those limits which are deemed reasonable. The same rule prevails in regard to disposition of personal estate. It seems also that future and shifting uses, and other springing and executory interests, which are not remainders, are to be considered as subject to the limits against perpetuity as executory devises. OF EXECUTORY ESTATES LIMITED, ETC. CHAPTER TPIE THIRD. OE EXECUTORY ESTATES LIMITED UPON A FAILURE OE HEIRS OR ISSUE. I. Wherever an executory devise is limited to take effect after a dying without heirs, or without issue, sub- ject to no other restriction, the limftation is void. As, where lands are devised to A. and his heirs, and if A. die without heir, then to B., this limitation is abso- lutely void. So, where A. devised to J. B. and his heirs forever, and if J. B. should die without any heir, then he devised the estate to C. ; the limitation to C. was held void, because too remote. It is to be observed here that the words " dying with- out heirs, or dying without issue," are not construed to mean a dying without heirs or issue living at the time of the death of the first taker, for then the devise would be good; but they are construed to mean. a failure of heirs or issue at any indefinite period after the death of the first taker, in which case the rule against perpetuity prevails. It is to be further renmrked that such void devises do not take effect and remain good until the prescribed limits are reached, but are utterly void and fail to take effect ab initio. II. The hke rule holds in the limitation of a term or personal estate, viz. : that a disposition thereof to take effect after failure of heirs of the body, or dying without issue, without other restriction, is void. 84 OF EXECUTORY ESTATES LIMITED For instance, where a man possessed of a term devised it to one and the heirs male of his body, and for default of such issue to another and the heirs male of his body, this was adjudged a void remainder; for, if it should be suffered, a man might make perpetuities of a term. III. The limitation of a personal estate to one in tail vests the whole estate in him. So, where a testator by his will devised that 400Z. should be put on good security for his son T., that he might have the interest of it for his life, and for the law- ful heirs of his hodj, and if it should so happen that he should die without heirs, it should go to his youngest son, J. B. ; it was decreed that the whole vested in the first taker, and the limitation over was too remote. And the rule is that the same words that make an estate tail in real property will imply an estate tail in personal pro- perty, subject to the more liberal construction allowed to a will. IV. But, although a devise over after a dying without heirs is in general void, yet the rule is not without ex- ceptions ; for, if the person to whom the limitation over is made be a relation of and capable of being collateral heir to the first devisee, in that case the first devisee takes an estate tail. So, where A. devised lands to his wife for life, then to his son H. for life, remainder to his son G. and his heirs forever, and if he should die without heirs, then to his two daughters ; this was determined to be an estate tail in G. The reason is that it was impossible for G. to die without heirs whilst his sisters were living; and UPON A FAILURE OF HEIRS OR ISSUE. 85 that, consequently, the testator, by the word "heirs," could only mean heirs of the body. But, ■wherever the remainder, after dying without heirs, is limited over to one who is not heir to the first devisee, such after limit- ation does not alter the preceding positive devise in fee; nor will the courts, it seems, in that case, go so far as to restrain the general import of the word " heirs" to that of the words " heirs of the body." V. If a devise be made to one and his heirs, and be followed by an executory devise over, limited to take place on an event which must happen within the com- pass of a life in being, the executory devise over is good. As, where a testator devised to A. and his heirs, and if he should die before twenty-one, then to B. and his heirs ; this was a good executory devise to B. VI. Upon the same principle, though an executory de- vise to vest on a dying without issue generally is not good, because too remote, yet, where the dying without issue is restrained to the period of a life in being, an executory devise thereon limited will be good. VII. An executory devise of a term and the limitations of the trusts of a term are governed by the same rules. As, where a testator, possessed of a term of years, devised the lands to B. and to the heirs of his body, and if B. should die without issue, living C, then to 0. The limitation to C. was a good devise, the contingency being to arise within the compass of a life in being; and 10 86 OF EXECTJTOKY ESTATES LIMITED the same rule prevails if the term had been limited in trust. VIII. An executory devise over, to take effect on the decease of the first devisee without issue, is good, if the dying without issue be confined to the compass of twenty- one years after the period of a life in being. Where a testator devised lands to his grandson, W. and his heirs, and if W. should die under age, then to his grandson, T., and if T. should die under age, then to such other son of the body of his daughter M. S., by his son-in-law, T. S., as should happen to attain his age of twenty-one years, remainder over. Testator died, leaving two grandsons, W. and T., who both died under age ; afterwards, another son. A., of the body of M. S. by T. S., was born, and it was decreed a good executory devise to this after-born son A., if he should attain his age of twenty-one years. This was adjudged a good devise, as the contingency was to arise within twenty- one years after the life of a person in being. IX. In executory devises of terms for years, or other personal estates, the court of Chancery has very much inclined to lay hold of any words of the will which seem to justify them in construing the words " dying without issue" to mean a dying without issue living at the time of the person's decease. The present force of words in the English language would not now permit us to give any other meaning to these words than the very meaning which the Court of Chancery in this case were anxious to carry over into UPON A FAILURE OF HEIKS OR ISSUE. 8( them. But such was not the case formerly, and these words then meant a dying and also a failure of issue or descendants at any time afterwards. X. But in a devise of real estate the usual construc- tion of these words prevails. And this in favor of the heir, whose interest is much regarded by the law. XI. In cases of personal estate, where such restrictive circumstances as have been mentioned appear, it mattei'S not whether the term or other personal estate be limited to the first devisee or legatee indefinitely, or for life expressly, or to him and his heirs, or the heirs of his body, or to his issue or children, as the restriction is equally valid under any of these circumstances, and gives effect to the limitation over. XII. The construction of the words " dying without issue," in a bequest of personal estate. It is to be observed that (a) the words "heirs of his body" constitute an express limitation of an estate tail ; [b) the words "dying without issue" constitute an im- plicative limitation of an estate tail. Now, in both cases, whether the {pseiido) estate tail in the first taker be by express or by implicative limita- tion, the devise over is too remote and void, and, there- fore, the whole vests in the first legatee ; but with this qualification, that if there are other words or indica- tions of intention in the will which go to show that the testator meant only a failure of issue at the death of the first taker, then the devise over is good. 88 OF EXECUTORY ESTATES LIMITED. XIII. With respect to the vahdity of the limitation over, it is the same thing in hequests of personal estate, ■whether the first bequest be to one for life expressly, and if he die without issue, remainder over ; or to one (indefinitely), and if he die without issue, remainder over. Thus, in a devise to A. for life, and if he die without issue, remainder over to B., the remainder is void. So, where a testator devised a term to trustees in trust for his son T., for so many years of the term as he should live, and after his decease, m trust for the issue male of T. lawfully begotten, for so many years of the unexpired term as such issue male should live, and when the issue male of his said son should happen to be extinct, then in trust for his second son W. for life, remainder over, &c., and made T. sole executor and residuary legatee, T. died, without issue male ; though it was held, in this case, that the subsequent limitation to the issue did not enlarge the express estate for life given to the first de- visee; yet it was also held that the remainder over upon the extinction of issue male (which is equivalent to a dying without issue, when taken as an indefinite failure of issue) was void ; and that T. became entitled to it by the residuary bequest to him. This distinction remains to be noticed ; though it seems that wherever a term is devised to one for a day, or an hour, it is held to be a devise of the whole term, if the devise over be void, and it appears to be the intention of the testator to dispose of the whole from his execu- tors, yet, if such intention do not appear, then it has been held that a limitation of a term to one for life does not vest the whole so absolutely in him as to be at UPON A FAILURE OF HEIRS OR ISSUE. 89 his disposal, but leaves a possibility (viz., upon the death of the legatee within the term) of reverter in the execu- tors of the testator. Thus where A., possessed of a term of 99 years, devised it to B. for life, and then to C. for life, and so on to five others successively for life ; after the death of all seven, upon the question who should have the residue of the term, it was adjudged to revert to the executors of the testator. XIV. Though an executory devise in tail or in fee to one in esse after a dying without issue is void, yet an executory devise for life to one in esse, to take place after a dying without issue, may be good. Thus where A., tenant for life, demised to trustees for 99 years, if she should so long live, in trust for her- self during her widowhood, and after her marriage, then in trust for C, her second son, and the heirs of his body, and if he died without issue, then in trust for D., her next son ; upon the question whether the limitation over to D. was good, it was said that the only objection to limiting a term to one and the heirs of his body, and then over in default of issue, was, because it would make a perpetuity ; but here the whole term was to determine on A.'s death, there could be no perpetuity ; nor, indeed, could there be ; for the subsequent limitation could not possibly take effect, unless it was in the lifetime of A. 10* 90 OP OTHER MATTERS RELATING TO CHAPTER THE FOURTH. OE OTHER MATTERS RELATING TO EXECUTORY DE- VISES. I. If personal estate be bequeathed to one for life, and afterwards to the heirs of his body, these words are generally words of limitation, and the whole vests in the first taker ; but if there appear any other circumstance or clause in the will to show the intention that these words should be words of purchase and not of limita- tion, then it seems the ancestor takes for life only, and his heir will take by purchase. That is, that the rule in Shelley's case generally ap- plies in bequests of personal estate, though it easily yields to words of a contrary intention. The rule is even less rigidly enforced than in the case of a will, and these bequests are construed rather according to the rules which govern marriage settlements, which we have already seen. But if there be no words of contrary in- tention, the rule in Shelley's case applies, aad as there can be no descent in things personal, the whole vests in the first taker. Thus where a term was limited in trust for S. during her life, and immediately from and after her decease, to the heirs of the body of S. lawfully to be begotten, if the term should so long endure, and in de- fault of such issue to B. ; it was held that the whole term • vested in S. Here there were no words of intention to control the rule. In another case, a term was settled in trust for one EXECUTORY DEVISES. 91 if she should so long live, and after her decease in trust for her husband, if he should so long live, and after his decease in trust for the heirs of the body of the wife begotten by the husband, and their executors, adminis- trators and assigns ; it was held that the words executors, &c., controlled the rule, and that only an usufructuary interest for life was given, and that the property vested in the heirs of the body. II. It seems formerly to have been held in some cases that an executory devise of a term to a person not in esse was void ;-but it is now settled that any executory devise, whether to a person in esse or not, is good, if confined to take effect within the limits allowed by law. III. Certain limitations of subsisting leases for lives neither have the effect of regular limitations of estates of inheritance, nor yet operate as executory devises. Thus if a person seized of an estate per autre vie, or for any number of lives in existence, devise it to one (indefinitely or for life) and to the heirs of his body, or in such a manner as would give him an estate tail in lands of inheritance, these limitations (a) Do not create an estate tail proper, but carry the the estate over to the heirs of the body by purchase. (6) They are not executory devises, properly so called, because the whole does not vest in the first taker. But the first taker under such limitation may dispose of the whole and bar his own issue and remainders over by lease and release, or by any other conveyance proper for passing estates of freehold. It is otherwise where an 92 OF OTHER MATTERS RELATING TO estate ^er autre vie is limited to one for life, remainder to B. for life; in this case the first taker cannot bar the remainder. IV. Any limitation in future, or by way of remainder, of lands of inheritance, which in its nature tends to a perpetuity, even though there be a preceding vested freehold, so as to take it out of the description of an executory devise, is considered void in its creation. Thus in the case of a limitation of lands in succession, first to a person in esse, and after his decease to his unborn children, and afterwards to the children of such unborn children, this last remainder is absolutely void. And it is upon this principle that the constant practice of limiting an estate tail to the first and other sons in marriage settlements is founded ; for though a child unborn might take an estate for life, as well as an estate tail, yet such estate would not extend to the issue of such child, and no estate limited to such issue, as purchasers, would be good. V. Wherever one limitation of a devise is taken to be executory, all subsequent limitations must be likewise so taken. An executory devise may confer an estate in fee sim- ple, or a less estate. On every estate conferred by an executory devise, another executory devise may be lim- ited ; and, if the estate conferred by an executory devise be an estate in tail, for life, or for years, it may be fol- lowed by a remainder ; but while the executory estate, after which the remainder is to arise, is in suspense, it EXECUTOKY DEVISES. 93 is not properly a remainder, but a right, whicli is to be converted into a remainder on a particular event. Thus, if land be devised to A. and his heirs, and, if A. should not leave issue living at his decease, to B. for life, and after B.'s decease, to C. in fee; the limitation to C. would immediately vest in him a fixed right to a remain- der in fee, if A. should die without issue in B.'s lifetime, and to an estate in fee simple in possession, if A. should survive B., and afterwards die without leaving issue ; but during A.'s life, C. would only have an executory fee. VI. Exception to the last rule. But notwithstanding the rule that if one limitation be executory, every subsequent one must be so likewise; yet a preceding executory limitation may be uncertain and contingent, when a subsequent limitation, though it be to take effect in future, may not be uncertain or con- ditional, but may be so limited as to take effect, either in default of the preceding limitation taking effect at all, or by way of remainder after it, if that should take effect. As where there was a devise to two trustees and their heirs to receive the rents until B. should attain twenty-one, and if B. should attain twenty-one or have issue, then to B. and the heirs of his body ; but if B. should happen to die before twenty-one and without issue, remainder over. B. attained the age of twenty- one, and afterwards died without issue. It was decreed that the remainder over should take effect, upon the ap- parent intent of the testator that it should take place, either in default of B.'s attaining twenty-one, or his dying without issue. VII. When a devise is made after a preceding executory 94 OF OTHER MATTERS EELATINS TO or contingent limitation, or is limited to take effect on a condition annexed to any preceding estate, if that pre- ceding limitation or contingent estate never should arise or take effect, tiie remairder will nevertheless take place, the first estate being considered only as a preceding lim- itation, and not as a preceding condition, to give effect to a subsequent limitation. As where A., possessed of a term for years, devised it to his wife for life, and after her death to the child she was enceinte with, and if such child should die before the age of twenty-one, then one-third part of the said term to his said wife, and the other two-thirds to certain other persons ; one question was, whether the devise to the wife was good as the event happened ; because tbe wife was not enceinte, and so the contingency upon which the devise was made to her, viz., the child's death under twenty-one years of age, never happened. The devise was held good. VIII. Whatever number of limitations there may be after the first executory devise of the whole interest, any one of them which is so limited that it must take effect, if at all, within twenty-one years after the period of a life then in being,. may be good in event, if no one of the preceding executory limitations, which would carry the whole interest, happens to vest ; but if the preceding ex- ecutory limitation does not carry the whole interest, a subsequent one does not necessarily fail, if the preceding limitation takes effect. It is evident from the very nature of such limitations that where the "whole interest" — which means the BXECUTOKY DEVISES. 95 entire estate of inheritance in fee simple — has once vested, no ulterior limitation can take effect. But if this whole interest does not vest at all, but fails to take effect, as if an estate be devised to A. and his heirs, and if A. shall die without a son living at the time of his death, then to B. in fee ; here if A. die, leaving no son, the subsequent ulterior limitation will vest, of course. But where a devise does not carry the whole interest, but some less estate, as if lands were limited to the use of A. and his heirs, and if he should have no child living at his decease, to the first son of B. who at- tains twenty-one years, in tail, remainder to C. in fee; in this case, during the life of A. both subsequent limit- ations are executory, and the limitation to B.'s son con- ferring an estate tail, and not an estate in fee simple, the limitation to C. operates as conferring- on him a fixed right to an estate in fee simple in possession, if A. leaves no child, and B. has no son who attains twenty- one years; and to an estate in fee simple in remainder, expectant on the estate tail of the son of B., if A. should leave no child, and B. should have a son who attains that age. It is, of course, to be understood that these limitations are void where they exceed the limits of perpetuity. IX. When there is a preceding vested limitation, and a future estate or interest is limited to take effect at too remote a period, or where there is no preceding limita- tion, and a future estate or interest is immediately limited to take effect at too remote a period, the future limitation is void in its creation. But executory limitations engrafted upon estates tail 96 OF OTHER MATTERS RELATING TO are to be excepted from this rule, for they do not come within the reason of the rule against perpetuity, because they may be barred by a common recoA'ery suffered by a tenant in tail. Thus, if land were limited to A. in fee simple, and if A. shall have no child who shall live twenty-five years after his death, then to B., the limita- tion to B. would be too remote, and hence void ; but if a similar limitation were made to A. in tail, the remain- der to B. would be good, for the reason assigned. X. When an estate of freehold is limited, with a limitation over by way of remainder in contingency, and the estate of freehold (as by the death of the devisee in the testator's lifetime) .becomes incapable of taking eifect, and the limitation over is in contingency at the testator's decease, the limitation will have effect as an executory devise. Thus, where A. devised lands to trustees in trust for B. for life, and after his decease for the first and other sons of B. successively, in tail male, remainder to the future sons of C. for life successively, with divers mean remainders, remainder over to D. ; B. died without issue in the lifetime of the testator, and afterwards the tes- tator died before -any of the contingent remainders were vested ; the question was whether the mean contingent remainders were not become void, there being no pre- ceding estate to support them ? It was held they should enure by way of executory devise. But where a pre- ceding freehold has once vested, it seems no subsequent accident will make a contingent remainder enure as an executory devise ; and this, as a direct consequence of the rule above given, that whenever a devise may be EXECUTORY DEVISES. 97 construed as a contingent remainder, it shall never be considered as an executory devise. XI. Though a condition to determine an estate tail as to a particular person only is void, it has been held that a rent may be granted on a condition to cease during the nonage of any heir of the grantee. It was held that where a feoffment was made in fee, upon condition that if the feoffee die, his heir being under age, his estate should cease during the minority of the heir, such a condition is utterly void. But if this had been a grant of a rent newly created, instead of land, the condition would have been good. And if a rent be limited to a man and his heirs, a power may be given to the grantee and his heirs, if the rent be in arrears, to enter and hold till the payment of the arrears, and this right will follow the descent and alienation of the rent. XII. A rent de novo may be granted to commence in futuro ; and offices and dignities may, under qualifica- tions, be granted by the king to commence in futuro. XIII. Estates shall not cease as to part and vest and revest. A testator having devised lands to trustees and their heirs, in trust for J. in strict settlement, with divers re- mainders over in strict settlement, subjoined a proviso in the will, that so often as and during such times as the person who for the time being (in case the testator had not other\)'ise directed) would have been entitled in possession as tenant for life or tenant in tail, should be u f)8 OF OTHER MATTERS RELATING TO under the age of twenty-six years, then the trustees were to enter and receive all the rents and profits of the lands ; out of which they were to allow certain sums for the maintenance of such tenant for life or in tail, and the rent was to accumulate, to be laid out in the purchase of lands to be settled to the same uses. J. died upwards of twenty-six years of age, leaving his wife enceinte of a son ; and upon a case sent from the Court of Chancery to the Court of King's Bench for their opinion,^whether the trustees, upon the birth of the said son of J., took any and what estate in the lands, by virtue of the said proviso; they certified their opinion that the trustees did not take any estate in the lands by virtue of the said proviso. XIV. Distinction between executory limitations per verba de presenti and per verba de future. It has been held that where an executory devise is limited per verba de presenti, that is, where the devisee is mentioned as a person in existence, and the commence- ment of the estate devised is not expressly referred to a future period, there the devisee must be a person capable at the death of the devisor, or otherwise the devise will be void ; as if one devise (immediately) to the heir of J. S., and J. S. is living at the death of the testator, it is said the devise shall not be construed an executory devise, and must therefore be void ; but that if it were to the heir of J. S. after the death of J. S., then it would be good as an executory devise, because a future time is mentioned. But it seems to be now settled that what- ever force is to be allowed to the distinction between executory limitations per verba de presenti and per EXECDTOllY DEVISES. !Ji:> verba de futuro, it can only affect those cases where there is not the least circumstance from which to col- lect the testator's contemplation or intention of any- thing else than an immediate devise, to take effect in presenti. XV. Whenever there is an executory devise of a real estate, and the freehold is not in the meantime disposed of, the freehold and inheritance descend to the heir at law. As where the testator devised lands to A. for five years from Michaelmas then next, remainder to B. in fee, and died before Michaelmas, it was held that the freehold and fee simple descended to the heir at law till Michaelmas. XVI. But a devise of all the rest and residue of the real estate will pass as well the profits from the tes- tator's death up to the time of the estate's vesting, as from the determination of the first estate to the vesting of a subsequent one. As where a testator devised all the rest and residue of his real and personal estate, of what nature or kind soever, to such child or children as his daughter should have ; it was held that the profits from the tes- tator's death to the birth of a child of his daughter should pass under this devise. XVII. Where there is no residuary devise, or other particular disposition of them, it seems that the profits of a personal estate between the death of the testator and the vesting of an executory estate, or between the de- 100 OF OTHER MATTERS REliATING TO termination of the first limitation and the vesting of a subsequent one, will accumulate for the benefit of the person next to take by virtue of the limitations. Thus, where a testator devised a share in a brewery to an infant, provided that infant should attain the age of twenty-one years, but if he should die before that age, then to B., it was decreed that the profits from the testator's death until the infant should attain the age of twenty-one should belong to the infant on his attaining that age. The infant died before attaining that age, and it was decreed that the intermediate profits belonged to B., and not to the infant's administrator. XVIII. When an absolute property is given in lands, and a particular interest in the meantime, till the devisee comes of age, the estate vests in him immediately, sub^ ject to the particular interest. As upon a devise to A., to the use of B. till B. attained the age of twenty-one, and then to B. in fee ; it was held that the fee vested immediately in B. XIX. Possibilities of personal estates are assignable and devisable in equity. As where a testator possessed of a term of one thou- sand years, devised it to B. for fifty years, if she should so long live, and after her decease to C, and died; C. assigned it to D. during the life of B. ; this assignment was held good. XX. An executory interest, whether in real or per- EXECUTORY DEVISES. 101 sonal estate, is transmissible to the representatives of the devisee, when such devisee dies before the contin- gency happens. XXI. In cases of contingent or executory interests, the Court of Chancery will interfere in behalf of the per- sons entitled to such interests, to prevent unreasonable waste being committed by the tenants in possession. INDEX. ABEYANCE, 13. ACCUMULATION, 98. ANCESTOR, 16. ASSIGNMENT, 72. BARON AND FEME, 20. BARGAIN AND SALE, 60. BEQUESTS, 75. CHANCERY, 98. CHATTELS, 78. CONDITION contrariiint in itself, 44. inconsistent with the preceding estate, 44. enlarging the preceding estate, 46. defeating'the preceding estate, 44. broken, 47. CONDITIONAL LIMITATIONS, 10. void at common law, 47. CONTINGENCY which never takes effect, 39. words of, which do not create a contingency, 40. considered as condition subsequent, 41. being an illegal act, 42. too remote, 42. defeating the preceding estate, 43. CONTINGENT REMAINDERS defined, 3. elements of, 4. four different kinds, 4. COPYHOLDS, 22. DESCENT, 67. DESCRIPTIO PERSONS, 33. DISSEISIN, 51. 104 INDEX. DOWER, 65. ESTATES in possession, 1. in interest, 1. contingent, 1. ESTOPPEL, 71. EXECUTORY DEVISES defined, 75. distinguished from common law conveyances, 76. peculiar distinction, 80. FEE, 37. PEE CONDITIONAL AT COMMON LAW, 8. FEOFFMENT, 50. FINE, 71. FORFEITURE, 58. FREEHOLD, 49. FUTURE INTERESTS, 76. HEIRS, 34. "dying without" construed, 83. words of limitation and not of purchase, 23. INCREASE, 48. INHERITANCE, 64. JOINT TENANCY, 17. LEASES, 84. LEGAL AND EQUITABLE ESTATES, 52. LEASE AND RELEASE, 60. MARRIAGE ARTICLES, 26. MERGER, 64. OCCUPANCY, ,54. PARTICULAR ESTATE, 3. PERPETUITY, 82. PERRIN AND BLAKE, 28. POSSIBILITY, 42. POWER OF APPOINTMENT, 23. deliiult of exercising, 38. INDEX. 105 QUASI ENTAIL, 25. RECOVERY, 71. RENTS, 54. RENTS DE NOVO, 97. RIGHT OP ENTRY, 51. REVERSION, 3. REVERTER, 89. RULE IN SHELLEY'S CASE, 14. SCINTILLA JURIS, 54. SEISIN, 51. STATUTE OF USES, 50. TRUSTEES, 54. to preserve contingent remainders, 36. TRUSTS EXECUTED AND EXECUTORY, 27. TAIL, 81. USES, 53. four requisites of, 53. resulting, 20. future, 71. springing or shifting or executory, 73. VERBA DE PRESENTI AND DE FUTURO, 97. VESTED REMAINDERS, 3. WILLS, 12. construction of, 33. WASTE, 73. KF 605 C69 c.l Author Vol. Coleman, ^to Macon Title Copy An epitome of Fearne on contii gem-c r^ftaindfitS fittd executory de" 'ices Date Borrower's Name