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case, where the devise was to A for life, with a devise over of all the property real and personal, which might be left at A's death, to the testator's four children, by name, with a provision that if any of the four children died before A, the property should be equally divided among the survivors, “except they should leave issue,” and in that case to go to the issue. It was held to be a vested remainder in the four children. If it had been construed to be a devise to such of them as survived A, it would have been a contingent remainder. It was held, moreover, to be a devise in fee, subject to be divested upon the happening of a condition subsequent, with a limitation over upon the happening of that contingency, which latter limitation was by way of executory devise. But where the devise was in these words, “should my wife marry or die, the land then shall be divided among my surviving sons," the moment of survivorship was held to be fixed at the death or marriage of the wife, and of course until that happened it was contingent who the persons were to be, who could take as “surviving sons.”? It was accordingly held, that a limitation to a wife with a remainder to her children surviving, was a contingent remainder to the children. On the other hand, where the devise was to A until B arrived at the age of twenty-one years, and then to B in fee, it was held to be an absolute devise of the estate to B, but postponing the enjoyment of it to his arriving at age. And being vested in *him, if he were to die before that time [*230] it would descend to his heirs.
19. There is, however, a class of cases where a remainder is regarded 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. And 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. As, for instance, upon a devise to A for life, remainder to the children of J. S., if J. S. has children at the testator's death,
1 Blanchard v. Blanchard, 1 Allen, 226. See Smither v. Willock, 9 Ves. 233; Doe v. Nowell, 1 M. & S. 327; Bentley v. Long, 1 Strobh. Eq. 43; Phillips v. Phillips, 19 Geo. 261; Johnson v. Valentine, 4 Sandf. 36; Yeaton v. Roberts, 8 Foster, 465 ; Ross v. Drake, 37 Penn. St. 373; Abbott v. Bradstreet, 3 Allen, 589.
2 Olney v. Hull, 21 Pick. 311. 8 In matter of Ryder, 11 Paige, 185.
+ Doe v. Underdown, Willes, 293 ; Young v. Stoner, 37 Penn. St. 105; Danforth 2. Talbot, 7 B. Mon. 623.
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.
20. One property of a vested remainder is, that it may be aliened by any form known to the law which does not require a formal livery of seisin, or passing the actual possession. But there is the same restriction as to conveying a freehold to commence in futuro, when applied to remainders, as applies to other estates. Such remainder may be devised, assigned, or limited over, and made subject to contingencies and trusts, at the will of him in whom it is vested ;3 and, though only a right of a future enjoyment, it is an estate in præsenti.
21. The particular estate and remainder must, as heretofore defined, constitute a continuous ownership in succession, and be parts of the same inheritance; they must commence and pass out of the grantor by the same act and at the same time, and if for any cause the particular estate is void or is defeated ab initio, as by the entry
of the grantor for the breach of some condition, it leaves [*231] the remainder without support, and *this becomes a mere
estate to commence in futuro, which, if a freehold, fails. altogether.
The foregoing proposition may be, in part, illustrated thus: An heir assigns to his mother, widow of the ancestor from whom he claims by descent, a part of the estate as dower, and at the same time grants the dower land from and after her death to A B. This limitation would be void as a remainder, since the widow does not take her title derivatively through the heir and as a part of his estate, but under
1 Doe v. Prigg, 8 B. & C. 231 ; Doe v. Provoost, 4 Johns. 61; Ballard v. Ballard, 18 Pick. 41; Viner v. Francis, 2 Cox, 190, and notes ; Tud. Lead. Cas. 644, 652; 2 Brown, Ch. 658 ; Swinton v. Legare, 2 M'Cord, Ch. 440; Myers v. Myers, 2 M'Cord, Ch. 257; Jenkins v. Freyer, 4 Paige, Ch. 47 ; 2 Jarm. Wills, 75; Dingley v. Dingley, 5 Mass. 535; Wight v. Shaw, 5 Cash. 56, 60; Parker v. Converse, 5 Gray, 338, 339 ; Yeaton u. Roberts, 8 Foster (N. H.), 466 ; Carroll v. Hancock, 3 Jones (Law), 471.
2 Watk. Conv. 182, and Coventry's note; 1 Prest. Est. 75; Blanchard v. Brooks, 12 Pick. 47, 65. This latter restriction would not apply where, as in Ohio, one may by statute convey an estate in freehold to commence in futuro. Walk. Am. Law, 286 ; Pearce v. Savage, 45 Me. 101.
8 Glidden r. Blodgett, 38 N. H. 74. 4 Jackson v. Sublett, 10 B. Mon. 467. 6 Colthirst v. Bejushin, Plowd. 25; 2 Flint. Real Prop. 260 ; 2 Bl. Com. 166.
and by a title independent of his, so that instead of the grant to A B being a remainder, it is simply a grant of a freehold to commence. when the widow's estate shall determine at her death. For this reason, the particular estate that supports the remainder must be something more than an estate or tenancy at will, for such an interest is not deemed to be a part of the inheritance.2 One reason why, where there is a freehold in remainder depending upon a particular estate for years, the livery of seisin must be made to such termor for years, is that it may pass from the grantor, and the remainder-man need not be obliged in order to avail himself of his estate in the premises, to interfere with the immediate possession of the same, which is exclusively in the termor.
22. The remainder-man must, accordingly, wait tuntil the particular estate has regularly determined, and can do nothing to abridge it, and if, as already stated, before that time it is defeated altogether, as by an entry by the grantor for condition broken before the remainder-man comes into possession, the estate of the latter fails altogether.4 But where there was a devise to A for life, remainder to B, and A declined to accept the devise, it was held, that B took the estate on the death of the testator without waiting for the death of A.5
23. There is no relation of tenure between a remainder-man and the tenant of the particular estate, since they both *derive their interests or estates from the same source and [*232] not one from the other. Nor is the possession of the tenant for life adverse to the remainder-man, so as to affect the right of the latter to make a valid conveyance.7
24. In order that successive estates in the same land should constitute remainders in respect to each other, they must be so limited as to come into possession successively one after the other in some prescribed order, the owner of the one waiting to enter until the estate of the other shall have been determined.8 But it is unimportant
· Colthirst v. Bejushin, Plowd. 25; Park, Dower, 1 341 ; ante, Vol. I. p. *254. 2 2 Flint. Real Prop. 259; 2 Bl. Com. 166; ante, Vol. I. p. *371. 8 Lit. $ 60; Co. Lit. 49 a; Flint. Real Prop. 262.
4 2 Flint. Real Prop. 263. This proposition applies to the common law. How it may be done by executory devises, or springing and shifting uses, will be shown hereafter. See also, post, sect. 7, pl. 2. 6 Yeaton v. Roberts, 8 Foster, 459.
6 Wms. Real Prop. 205. 7 Grout v. Townsend, 2 Hill, 554.
8 Wms. Real Prop. 206.
what this order is, provided that a fee other than a fee-tail does not precede another of the estates limited. Thus, the limitation may be to A in tail, remainder to B for life, and to C for years, with a remainder to D in fee. If by death or forfeiture any previous estate fails, the one to whom the next in order is limited, will at once come in, and have a right to immediate possession. So that no matter how numerous these limitations may be, as each is ready thus to come into possession at any moment, they are all regarded as having a vested remainder, because, in the case supposed, the successive limitations are to persons in esse, and the same rule as to the order of succession would apply, though the remainders were what is called contingent.
25. There are one or two exceptions to the rule, that if the original seisin of the particular estate on which the remainder depends, be defeated and avoided, the remainder itself will fail, which apply as well to vested as to contingent remainders, and may be properly noticed here. Thus, for instance, if a lessor were to make a lease for life, and then disseise his own lessee, and make a second lease to another during the life of his first lessee, with a remainder over to a third person in fee, though the first lessee by an entry would defeat the seisin of the second lessee, yet the lessor would not be at liberty, 80 far to take advantage of his own wrong, as to avail himself of this circumstance in defeating the remainder in fee which he had himself created, though the livery which sustained it was a wrongful one as against his first lessee. So if the particular estate be to A
an infant for life, remainder to B in fee, and A, when he [*233] *comes of age, disaffirms the estate in himself, it will not
defeat the remainder which had become once vested by a good title.
26. Whatever may be the distinction between vested and contingent remainders so long as they remain such, the moment the contingency happens on which a remainder depends, it becomes a vested one with all the qualities and incidents of such a remainder. Thus upon the grant of an estate to A, with a remainder to his children, he having none at the time, the remainder will of course be a contingent one. But the moment he has a child born, the remainder becomes vested as fully as if it had originally been limited to a living child. But if there be an interval, however brief, between the determination of the particular estate and the vesting of the remainder, the latter is forever defeated and gone, and the entire estate reverts at once to the donor or grantor who created it.?
1 Wms. Real Prop. 207.
3 Co. Lit. 298 a.
OF CROSS REMAINDERS.
1. Cross remainders defined.
1. There is a class of remainders known to the law as Cross Remainders, to each of which the same rules apply as if they were independent of each other, although there may be a common ownership of the two or more estates out of which they are created. Cross remainders arise where lands are given in undivided shares to two or more persons by the way of particular estates, by such limitations, that upon the determination of the estate of the first taker in any one of the shares, it remains over to the other grantees or donees named, and the reversioner or ulterior remainder-man is not let into possession till the determination of all the particular estates. But though usual, *it is not necessary, in order to create cross [*234] remainders, that the estates should, originally, have been granted to the several persons in common.
The term seems equally applicable to two distinct estates, where one is granted to A and the other to B, with remainder over of A's estate to B on failure of issue of A, and of B's estate to A, on a like failure of issue.
2. The obvious design and intention of such a limitation is, that upon the share of one of the takers failing for want of issue, instead
1 Doe v. Perryn, 3 T. R. 484; Wendell v. Crandall, 1 Comst. 491. : 1 Prest. Est. 217; Wms. Real Prop. 226.
• Co. Lit. 195 b, Butler's n. 1; 4 Cruise, Dig. 298; 2 Crabb, Real Prop. 972; 1 Wms. Saund. 185, note ; 1 Prest. Est. 94; Walk. Conv. 189, Coventry's note. + 1 Prest. Est. 94; 4 Kent, Com. 201.