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of its reverting to the original owner, or going at once to the final remainder-man, it shall go to the tenant or tenants of the other parts of the estate, who will hold it in connection with the parts already in their possession as they before had holden their own parts. And as this is a reciprocal right, operating cross-wise, and only depending upon whose part first fails by a failure of issue, the right to take such part upon such a failure is regarded as a remainder, and is treated accordingly.
3. Such remainders may be limited by deed or by will, and may exist between two or a greater number of persons. They may be raised by express terms, or in a will by implication. But a cross remainder is never raised by deed without express terms, and proper words of limitations.1
4. In limiting such interest by the way of cross remainders, the limitation should be so expressed as to pass not only the original share of the party, but whatever share or shares shall accrue to him or his issue upon the decease and failure of issue of the others named. The test in all these cases of the existence of a cross remainder, is whether, if by deed there is an express limitation, or if by will an express or implied one, the whole of the estate shall go over, . together, in entirety to its final limitation, upon the failure of issue, or in parts as
the issue of one or another of the first takers shall fail.3 [*235] *5. A principle may be referred to in this connection, for
the purpose of making a necessary distinction in respect to expectant estates. An executory devise in order to be valid, must be so limited that it must take effect, if at all, within a life or lives in being and twenty-one years and a fraction after, in order to avoid what are called perpetuities in estates. But this does not apply to remainders whether contingent or vested, and one reason is, that if the remainder be limited upon an estate tail, the tenant in tail can, at common law, bar the remainder by barring the entail. The language of Lord St. Leonards on this subject is: “Where a limitation is to take effect as a remainder, remoteness is out of the question, for the given limitation is either a vested remainder, and then it matters
1 Watson v. Foxon, 2 East, 36 ; Watk. Conv. 9, Coventry's note ; Co. Lit. 195, note 82; Cook v. Gerrard, 1 Wms. Saund. 186, n.; Doe v. Worsley, 1 East, 416. 2 Co. Lit. 195 b, note 82.
8 Doe v. Webb, 1 Taunt. 233. 4 Watk. Conv. 193, 194, Coventry's notes ; Nicolls v. Sheffield, 2 Brown, Ch. 215.
not whether it ever vests in possession, because the previous estate may subsist for centuries or for all time; or it is a contingent remainder, and then by a rule of law, unless the event upon which the contingency depends happen so that the remainder may vest eo instanti the preceding limitation determines, it can never take effect at all.” 1
OF CONTINGENT REMAINDERS.
1. Contingent remainders defined. 2. Their history. 3. Instances of such remainders. 4. How far contingent remainders are alienable. 5. Of the different classes of contingent remainders. 6. Cases embraced in the first class. 7. Cases embraced in the second class. 8. Third class of contingent remainders. 9. Fourth class of contingent remainders. 10. Of exceptions to the third rule or class. 11. How remainders of terms for years, may be limited. 12. Of exceptions to the fourth rule or class. 13. No contingency of enjoyment makes a remainder contingent. 14. Of vested, limited after contingent remainders. 15. Case of Napper v. Sanders. 16. Case of Tracy v. Lethieullier. 17. Of remainders affected by the contingency of prior remainders. 18. What constitute the first class of these remainders. 19. How far affected by intention. 20. The second class of successive remainders. 21. The third class of such remainders. 22. How far contingency affects successive estates, depends on intention. 23. Of limitations of a fee with a double aspect. 24. Remainder after a contingent remainder must be contingent. 25. Remainders may be good after trust estates, though in fee. 26. Of effect upon remainders of powers of appointment. 27. Boraston's case, future devise whether vested or conditional. 28. Of contingencies having the effect of conditions subsequent.
i Cole v. Sewell, 4 Dru. & Warr. 28.
1. Repeating, by way of definition, what has already been stated in substance, a contingent remainder is one whose vesting or taking effect in interest, is, by the terms of its creation, made to depend upon some contingency which may never happen at all, or may not happen within a requisite prescribed time, by reason whereof its capacity of vesting or taking effect in interest may be forever defeated. Or in the language of another, it is one which is limited
to a person who is not ascertained at the time of the limita[*236] tion, or which is referred for its *vesting or taking effect in
interest, to an event which may not happen till after the determination of the particular estate." Until the contingency has happened, the remainder is rather a possibility in its character than an estate, although it has become a familiar quality of an estate, to understand and apply which involves much nice learning. It is always an executory interest from its very nature.
2. In tracing the history of contingent remainders, it appears that down to the time of Henry VI., A. D. 1431, they were not accounted legal estates, nor is there a case previous to that time, where such a remainder was held to be valid. The first case in which they were recognized by law was in 9 Henry VI., where the grant was in form to A for life, remainder to the heirs of J. S. This could not come under the rule in Shelley's case, for J. S. took nothing himself. It was held to be an estate in the heirs of J. S., but necessarily suspended till his death should determine who were to take as such heirs ; and that the moment J. S. died, if A were then living, it would vest in these heirs.
3. The contingency in the above case was in the time when an event, namely, the death of J. S., which was sure to happen at some time, would take place, as compared with that of A. The one who was to be the heir of J. S. might have been living when the grant was made, but he could not become the ascertained heir until the death of J. S., and upon the question whether this should take place before or after A's death, depended the taking effect or not, of the grant of the remainder. Another case may be where an estate is limited to 'A for life, remainder to the oldest son of B, who then has no son. The contingency in that case is that of [*237] a son being born to B. If he has a son, the moment he is born the remainder becomes vested in him and ceases to be contingent. In both the above cases, if the event which in the one is certain, fails to take place at a proper time, or in the other, if the uncertain event fails to happen at all, the remainder fails, from the want of a person to take it when the particular estate determines, and the estate reverts at once to the grantor. Another instance would be that of an estate to A for life, and if B outlive him, then to B in fee. There is here no contingency about the person who is to take, but the contingency is in the event of his outliving A, for if he die before A, though all along ready to take the remainder if it falls in, the remainder as such goes to no one. If A die first, the remainder not only becomes vested in interest, but at once in possession. Another and familiar illustration would be where this estate was limited to A for life, remainder to B, after the death of A and H. Here B is a known person in esse, ready at all times to take the remainder. It is certain that A will die, and that I will also. The contingency is in the doubt whether H will die before A. If he does, the grant is thereupon converted into a simple limitation of an estate to A for life, with a remainder to B, and is a vested one. But if A dies first, B's remainder is wholly gone, because he can only take it when A and Hare both dead, and by the death of A before H, the particular estate in A determines before B can take, and consequently his remainder fails and the estate reverts to the grantor. And to these may be added, for further illustration, a conveyance in trust for the grantor for life, and after his death to A, when and provided he attain the age of twenty-one years. The interest of A was held to be a contingent remainder until he arrived at that age.
11 Prest. Est. 74; 2 Bl. Com. 169.
2 1 Law Mag. 120; Brown v. Lawrence, 3 Cush. 390, 397 ; Fearne, Cont. Rem. 2. The New York statute defines a remainder as contingent, “whilst the person to whom or the event upon which they are limited to take effect, remains uncertain." Rev. Stat. 1827, tit. 2, art. 1, § 13; Lalor, Real Prop. 66.
8 1 Prest. Est, 75.
4. For a long time a contingent remainder was not supposed to be the subject of alienation, because it was rather a possibility than an estate, like the possibility of an heir-at-law, for instance, having the estate when his ancestor shall have died. But it is now settled,
1 2 Bl. Com. 169–171.
2 2 Bl. Com. 169-171.
that where the contingency upon which the remainder is to [*238] vest, is not in respect to the person, *but the event, where
the person is ascertained who is to take if the event happens, the remainder may be granted or devised, and the grantee or devisee will come into the place of the grantor or devisor with his chance of having the estate. But if the contingency is in the person who is to take, as where the remainder is limited to the heirs of one now alive, there is no one who can make an effectual grant or devise of the remainder.
5. Mr. Fearne, and after him Mr. Cruise, divides Contingent Remainders into four classes. And though Mr. Cornish and Chancellor Kent disapprove of this classification,4 as it is at least a harmless one which it may be convenient to follow, though not strictly logical or scientific, it will be generally retained here.
6. The first class embraces cases where the particular estate, though less than a fee, and indefinite in its duration, is subject to be determined by the happening of some contingent event, and the re. mainder is made to depend upon the happening of this event. Thus if a feoffment is made to the use of A until B returns from Rome, and upon his return then over to C, the remainder to C is contingent, because the event upon which it depends may never happen. B may die in Rome, or A may die before B returns, and in either event, the estate to C is defeated ; in the one, because the event never has happened and never can; in the other, because the particular estate in A will have determined before the remainder to C, dependent upon it, can have become vested. This would, of course, exclude those cases where the remainder is limited upon a particular estate definite in its duration, as an estate for life which is sure to determine, and upon the determination of which, the remainder is to take effect. It would exclude also, cases of conditional limitation as heretofore. defined, where the remainder though con
1 Wms. Real Prop. 232.
2 Wms. Real Prop. 231; 1 Prest. Est. 76. 8 Fearne, Cont. Rem. 5; Boraston's case, 3 Rep. 19.
4 4 Kent, Com. 8th ed. 208, n. Blackstone divides them into two classes only: Ist, where the person to take is dubious and uncertain ; 2d, where the event is vague and uncertain. 2 Bl. Com. 169.