if once its support be severed from it. There are, however, as we have stated, There are excep- exceptions to this rule, which we shall consider more satisfactions to the rule. torily when we come to speak of the various kinds of remainders. These exceptions depend, as we shall see, entirely upon legislative authority. We may also add as part of this rule that the mode of limitation of the remainder must be such that it does not take effect before the determination of the particular estate. For it is a principle of the common law, that whenever either the whole fee, or a particular estate, as an estate for life, or in tail, is first limited, no condition can be annexed to the prior estate, which should nave the double effect of defeating the estate and passing the land to another (9). Suppose a feoffment habendum to A. for his life, but if C. should return from Rome, then to C. in fee, this is a void remainder, as being an attempt to defeat the prior estate. The same result might, however, be validly arrived at by importing into the first life estate a restriction; thus a feoffment habendum to A. so long as he should live, and C. should not return from Rome, and in case C. should return from Rome, then to C. or his heirs, is a good remainder, which would take effect if C. * should return from Rome during A.'s lifetime. Such difficulties, however, as these never occur in modern conveyancing, which would never take the form above-mentioned. [* 322 ] A fourth rule controlling the limitation of remainders, is that a remainder may not be limited to a child of an unborn person (r). Such a limitation, as tending to a perpetuity, is considered as absolutely void. Thus, if lands be limited in succession 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 (s). And we may add that a limitation of such a void remainder makes all subsequent remainders bad, even though they be limited to living persons (t). The last two cases lead us to the distinction which exists between the two main classes into which remainders are divided, called respectively Vested and Contingent. Where there is a present capacity for taking effect in possession, if the possession were to become vacant, the remainder is vested, and it is not the less so because, notwithstanding the present capacity, there is a possibility that the remainder will never come into actual possession. Thus, if land be limited to A. for life, remainder to B. (a living person) for life, with remainder over, B.'s remainder is a vested interest, although if he were to die before A., *he obviously would never have any actual enjoyment of the land (u). (302) (g) Co. Litt. 203 b. (r) Fearne, Conting. Rem. 502, Mainwaring v. Baxter, 5 Ves. 458; Beard v. Westma cott, 5 Taunt. 393. See Opinions of Mr. Booth and Mr. Yorke, 2 vol. 432; Cole v. Sewell, 4 Dru. & W. 1; 2 H. L. Ca. 186; Monypenny v. Dering, 2 De G. M. & G. 145. (s) Therefore, in settlements of real estate, where it is desired to tie up the property as far as possible, the practice is to give estates for life to all persons who are living, and [* 323 ] estates tail to unborn children, the estates being arranged in order suited to the wishes of the parties. (t) See Monypenny v. Dering, ubi sup. Some limitations taking effect after a void remainder were held good, not as remainders, but as substantive and independent or alternative gifts, contingent upon an event which must take place within the lawful period. (u) Fearne on Conting. Rem. 216. (302) "Remainders are of two sorts, vested and contingent. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoy. ment. It gives a legal or equitable seisin." 4 Kent's Com. 202. The broad distinction Contingent remainders, on the other hand, are where the estate is limited to a person, who at the time of its creation is either unborn or unascertained, or the commencement of the estate is made to depend upon an event, the happening of which is a condition precedent to the remainder taking effect, and which may either not happen at all or not before the determination of the particular estate (x). Contingent remainders are of ancient date, though not coeval with other similar limitations allowed by the common law, for it is certain that in the earliest periods of English law, they were either unthought of or considered as void (y). Even after their establishment, which followed the requirements of the more artificial life which succeeded the simple habits of the military ages, they still continued subject to many restrictions from which vested remainders were free. Modern * legislation has, done much to free them from the [*324] fetters which technical doctrines had thrown about them, and they in fact now are subject only to those particularities and trammels which are involved in their very essence (z). (x) Mr. Fearne, in his well-known essay (p. 5), has enumerated four sorts of contingent remainders. 1st. Where the remainder depends entirely upon a contingent determination of the preceding estate itself. 2nd. Where the contingency on which the remainder is to take effect is independent of the determination of the preceding estate. 3rd. Where the condition upon which the remainder is limited is certain in event, but the determination of the particular estate may happen before it. 4th. Where the person to whom the remainder is limited is not yet ascertained, or not yet in being. The following are examples given by him of these four kinds:-1. A grant to A. until C. shall return from Rome, and after such return of C. then to remain over in fee. 2. A grant to A. for life, remainder to B. for life, and if B. die before A., remainder to C. for life. 3. A grant to A. for life, and after the death of B. remainder to C. 4. Grant to A. for life, remainder to the right heirs of B., a living person. As we cannot here enter at length into the learning concerning contingent remainders, much of which is obsolete, the description given in the text will suffice. (y) As to their antiquity, see Hayes' Com. Law, Uses and Trusts, 945; Williams' Real Property, 226; Third Report of Real Property Commissioners, p. 23. (2) Formerly they were thought not to be devisable by will, but later cases decided that they came within the Statute of Wills. Fearne, Conting. Rem. 367. By the recent Wills Act, 1 Vict. c. 26, s. 3, they are expressly made devisable. Again, before 7 & 8 Vict. c. 76, (repealed, but substantially re-enacted by 8 & 9 Vict. c. 106,) they could not be conveyed by direct conveyance. Fearne, C. T. 366, citing Weale v. Lower, Pollex. 53; Virk v. Edwards, 2 Bro. P. C. 15; 3 P. W. 372. The same act, 8 & 9 Vict. c. 106, has, as we shall see presently, removed much of their liability to defeat. between vested and contingent remainders is this: In the first class of cases, there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. Croxall v. Sherred, 5 Wall. 269, 288; Brown v. Lawrence, 3 Cush. (Mass.) 390, 397; Leslie v. Marshall, 31 Barb. 560, 564; Gourley v. Woodbury, 42 Vt. 395; Marshall v. King, 24 Miss. 85, 90. In the second class of cases, it depends upon the happening of a contingent event whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depends shall have determined, so that the estate in remainder will never take effect. 2 Washb. Real Prop. 224, 502; Moore v. Lyons, 25 Wend. 119, 144; Livingston v Green, 52 N. Y. (7 Sick.) 118, 123; Leslie v. Marshall, 31 Barb. 560, 564; Brown v. Lawrence, 3 Cush. (Mass.) 390, 397. It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and a contingent interest. Williamson v. Field, 2 Sandf. Ch. 533. The present capacity of taking effect in possession, if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. Howell v. Mills, 7 Lans. 193, 196. Reverting to our description of a contingent remainder, a few remarks occur. First, where the remainder is limited to a person either unborn or unascertained, any remainder to an unborn person, as to the children of a tenant for life, who at the time of the settlement has no son, is of course contingent, because non constat that he will ever have a son. Formerly, in order that the estate might vest in the son, it was necessary that he should actually be born. in the lifetime of his father, so that a posthumous son was excluded from taking a remainder, not being in esse at the determination of the particular estate (a). To remedy this hardship an act (b) was passed, declaring that posthumous children under the limitations contained in marriage or other settlements (which have been considered to include wills), shall take in the same manner as if born in the lifetime of their parent. The effect of this is that such a child takes all the profits from the death of the parent (c). (303) *In reference to the restriction in the choice of unborn persons which the law has laid down, and which seems obviously to be con[* 325] nected with, or perhaps arise out of the policy of not permitting land to be settled inalienably for remote periods, we may here notice certain theories now exploded upon which this restriction was formerly supposed to rest. It was said, and for this we have in especial Lord Coke's great authority, that the validity of a contingent remainder depended upon the character of the contingency or possibility upon which it depended. A possibility which shall make a remainder good, ought to be a common possibility, and potentia propinqua; as death, or death without issue, or coverture, or the like. If a lease be made (a) In Reeve v. Long, Salk. 228, 4 Mod. 282, the House of Lords, by a decision grounded rather upon the hardship of the case than on sound principles, in order to avoid the admitted effect of the rule stated in the text, held that a limitation under which a posthu mous son being contained in a will claimed was an executory devise, and not a remain der. In consequence of the discussion which this case gave rise to, the act 10 & 11 Will. 3, c. 16, was passed. (b) 10 & 11 Will. 3, c. 16. (c) Basset v. Basset, 3 Atk. 203. When the birth of a posthumous child, taking by descent or under an executory limitation, not (303) A remainder may be considered as vested, although all the persons who may take are not ascertained, or in esse, and cannot be until the happening of some future event. An instance of that is, where there is a devise to a class, of which each member is equally the object of the testator's bounty, as to "the children" of a person, some of whom are living at the testator's death. To illustrate: Suppose a devise to A, for life, remainder to the children of B, C, if B, C, has children at the testator's death, they would take a vested remainder, and if he were to have other children during the life of A, and before the remainder was to take effect in possession, it would open and let in the children born during A's life, who would take shares as vested remainders. Doe v. Provoost, 4 Johns. 61; Tanner v. Livingston, 12 Wend. 83, 93; Ballard v. Ballard, 18 Pick. 41; Jenkins v. Freyer, 4 Paige, 47; Yeaton v. Roberts, 8 Fost. (N. H.) 466; Carroll v. Hancock, 3 Jones (Law), 471; Adams v. Ross, 1 Vroom (N. J.), 505, 513; Graham v. Houghtalin, id. 552, 558. A remainder will be construed to be a vested one, if the terms by which it is created will admit of such a construction. Dingley v. Dingley, 5 Mass. 535, 537; Doe v. Provoost, 4 Johns. 61; Den v. Demarest, 1 N. J. 525; Fay v. Sylvester, 2 Gray, 171; Croxall v. Sherred, 5 Wall. 287; Moore v. Lyons, 25 Wend. 119; Manderson v. Lakins, 23 Penn. St. 31. for life, with remainder to the heirs of J. S., this is good; for, by common possibility, J. S. may die during the life of the tenant for life; but if at the time of the limitation there is no such person as J. S., but during the life of the tenant for life J. S. is born, and dies, his heirs shall never take (d). The second case being considered as potentia remotissima. The same somewhat metaphysical idea was expressed sometimes by saying that there could not be a possibility upon a possibility, or a contingency upon. a contingency adopted as a means of limiting an estate: one instance of such a piling of Pelion on Ossa which was given was, that a limitation to a son John [*326] of a person who has no son, is* bad; because although the limitation to a son simpliciter was good, it being a simple possibility that he should have one, yet there was a double possibility involved in his having a son of a particular name (e). It has been well remarked that if the son would get an estate by being christened John, there was a strong likelihood instead of a mere possibility that he would receive that name. The whole theory about possibilities has long been dissipated, and only deserves mention from the greatness of those men who have enunciated it (ƒ). Freehold must be hold. It is a consequence of the nature of remainders generally that a contingent remainder, if it amounts to a freehold, cannot be limited unless the previous estate be a freehold. Thus, if land be granted to A. for ten limited on free- years, with remainder in fee to the right heirs of B., this remainder is void (g); but if granted to A. for life, with a like remainder, it is good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest nowhere; unless, therefore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void. Doctrine of merger. Before proceeding further with the consideration of remainders, and the peculiarities which distinguish those which are contingent, we must here mention a doctrine which has had much, and still retains some, influence over their fortunes. When a less estate and a greater, limited subsequent to it, coincide and meet in one and the same person without any intermediate estate (h), the less is immediately annihilated, or, in the law phraseology, is *said to be merged, that is, sunk or drowned in the [* 327] greater: or, to express the same thing in other words, the greater estate is accelerated, so as to become at once an estate in possession. Thus, if A. be tenant for years with remainder to B. for life, and A. assign his term to B., or the two estates come together in any other way, the term is merged in the freehold estate; and so in other cases. If, however, the order of limitation be otherwise, that is, if A. be tenant for life, remainder to B. for years, there would be no merger on their union, indeed it would be obviously inconsistent with reason that the term which is by express limitation to exist after A.'s death should by any means be entirely lost: whereas in the case first put, on the supposition, which the law always makes, that an estate (d) Cholmley's Case, 2 Rep. 51; Co. Litt. 378; Lampet's Case, x. Rep. 336. (e) Cholmley's Case, 2 Rep. 51. (f) See the Third Report of the Real Property Commissioners. (g) Chudleigh's Case, 1 Rep. 113, 130. for life is greater than a term of years however long, there is no such inconsistency (i). It seems that as an estate for one's own life is considered as greater than one pur autre vie (k), there would be a merger upon an estate pur autre vie coming to a tenant for life in immediate remainder, though opposite opinions on this point have been sometimes entertained. Certainly this view is less consonant to reason than in the ordinary case of merger, whatever be thought of the reasonableness of the doctrine in general (7). Indeed it has been thought that two estates of equal character (m) will unite by merger, so that the one in *remainder alone will exist in the same [* 328] manner as if it were in possession; thus a term of years has been thought to merge in another limited in immediate remainder, even though for a less number of years (n): but this seems so contrary to reason that it can hardly be received as sound law. If a term of years be created out of a larger term, and the term so created and the reversionary term coalesce, there would doubtless be a merger, and naturally so; but that a term of twenty years should merge in a term of ten years originally limited to commence after the expiration of the first term, so that the owner of both, instead of having an estate for thirty years, should have only one for ten years, is alien to all principles of justice. Tenant in tail There is an exception to the general rule under the statute de Donis, for by this act a remainder in fee expectant upon an estate tail may exist in the tenant in tail without any merger of his estate tail taking place (o). Also it has been held that if a contingent interest be created der in fee with- between the particular estate and the remainder, these, though given to the same person, do not merge (p), as they would do if there were no such contingent limitation. Thus, where the limitations were to A. for life, and if he should die without leaving issue living at his death to A. and his heirs, it was held that A.'s life estate did not merge in the remainder to him in fee (q). out merger. But if A. conveyed to another person his two estates: * there was [* 329] a merger, so as to cause the limitation in fee to take effect in possession, and this had, as its consequence, the exclusion for ever of the contingent estate (r). Of these cases of destruction of contingent remainders we shall presently see something more. (2) Where there is a beneficial lease for years, followed by a life interest, the doctrine is one to be carefully borne in mind, as, if the life-tenant purchased the lease, the proper course, in order to preserve his chance of the term existing beyond his own life, would be to have the term assigned to a trustee. (k) Co. Litt. 273 b. (7) It seems to have been held, however unreasonable it appears, that if a lease be made to A. for the life of B., sans waste, remainder to A. for his own life, he is punishable for waste, since the former estate is merged, and the privilege annexed to it goes with it. Windsmore & Hulbord's Case, Godb. 51, 52, where several cases of merger are put. (m) See 3 Prest. Conv. 222, 258; 9 Rep. 138; Wilson v. Piggott, 2 Ves. S. 354; Doe d. Simpson v. Simpson, 5 Scott, 770, 790; Digh ton v. Greenvil, 2 Vent. 321 (successive estates by elegit); Collis, P. C. 64. (n) Hughes v. Robotham, Cro. El. 302 ; Ste phens v. Bridges, 6 Madd. 66; 4 Bac. Abr. 875; Gwill. ed. See, however, Boules' Case, 11 Rep. 79, 83, 153; 1 Roll. 177; and Co. Litt. 299 b; Hurd v. Foy, 2 Roll. 485; 15 Vin. Abr. 315. An interesse termini being no estate cannot be the subject of merger, or prevent it. Doe d. Rawlings v. Walker, 5 B. & C. 111; Whitchurch v. Whitchurch, 2 P. W. 236; Dyer, 112. (0) Wiscot's Case, 2 Rep. 60; Lord Stafford's Case, 8 Rep. 74. (p) Duncombe v. Duncombe, 3 Lev. 437. (q) Ib. (r) Fearne, Conting. Rem. 322; Noel v. Bewley, 3 Sim. 103; Egerton v. Massey, 3 C. B. N. S. 338. It has been held that if a tenant |