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tingent, instead of waiting for the regular *determination [*239] of the particular estate, takes effect upon the happening of an event which curtails or defeats the particular estate before its natural determination, as would have been the case, had the limitation in this case been expressly for life to A, but if B return from Rome, then over to C. The return of B would still be contingent, and the remainder to C would still take effect, but it would be at the expense or to the destruction of the balance of A's life estate.1
7. The second class embraces cases where, though the particular estate is limited so as to determine with certainty, and it is unimportant where or how this is to happen, the remainder is made to depend upon the contingency whether a certain collateral event shall happen or not before the particular estate shall have determined. Thus where an estate is limited to A for life, remainder to B for life, and if B die before A, remainder to C for life, A is sure to die, and his life estate to determine. But whether C shall have the remainder at his death, depends upon the collateral contingent event whether B shall have died before A or not. If B outlives A, he takes the remainder, and C takes nothing. If B dies first, C's remainder becomes at once vested, and he comes in at A's death, as if there had been no limitation to B.2
8. The third class includes those cases where the contingency on which the remainder depends is, whether an event which is sure to happen, shall happen or not before the expiration of the particular estate which supports it; for if, by the common law, it should not happen until after the determination of the particular estate, the remainder dependent upon it would fail, as there would be nothing to sustain the seisin in the mean time, between the determination of the particular estate and the time when the remainder might otherwise have vested. An example of this class would be a grant to A for life, remainder after the death of J. S., to J. D. for life. Now it is certain that A will die, and that J. S. and J. D. will die, but whether J. S. shall die or not before J. D. is wholly uncertain, *and the remainder to J. D. is contingent. Of the same [*240] character would be a limitation to the use of A for twentyone years, if he shall so long live, and after his death to B in fee.
1 Fearne, Cont. Rem. 5, 10, and Butler's notes ; 2 Cruise, Dig. 204. ? Fearne, Cont. Rem. 8, and Butler's note; 2 Cruise, Dig. 204; Co. Lit. 378, a. VOL. II.
Here, as A may survive twenty-one years, the remainder dependent upon it is contingent, and being such, is void, as it has no particular estate of freehold to sustain it.
9. The fourth class of contingent remainders is, where the contingency depends upon the uncertainty of the person who is to take the remainder, either because he is not in being or not ascertained, at the time the limitation is made. An example of this kind would be that of an estate limited to one for life, remainder to the oldest son of J. S., who has none at the time of the limitation made, or remainder to the heirs of J. S., who is living at the time. So a grant to A and B for life, remainder to the survivor, would be of this class. In all these cases there is no means of knowing when the limitation is made, who, if any one, will be entitled to the remainder when the particular estate shall determine. Thus upon a devise to a daughter and her husband for their respective lives, remainder to the heirs of the daughter, it was held, that the devise over to the heirs of the daughter was contingent until her death, at which time it vested in whoever were her heirs.3 And in another case where the devise was to a husband and wife during life, and then to the use of such child or children as might be procreated between them ; until a child was born, the remainder was contingent. Upon the birth of a child it vested in him, and as other children were born, the estate opened and let them in to share in the same as a vested remainder.4
10. In applying these rules, there are found to be cases where the decision seems, at first sight, to be at variance with the letter of the rule, and to form an exception to the same, while in reality
carrying out the reason and spirit of the rule. Thus [*241] *under the third rule, one of the cases given is that of a lim
itation to A for twenty-one years if he shall so long live, with a remainder over at his death. The remainder in such a case is contingent from the uncertainty of A's dying during the twentyone years, and is, moreover, void if a freehold, because the particular estate is only a term for years. But if the term had been to A for eighty years, for instance, if he so long lived, with a remainder over at his death, the chance of his dying within that term is so great as to be treated as morally certain to happen, and therefore such a limitation is regarded as an estate to A for life, remainder to another who, if in esse, takes a vested and not a contingent remainder. The cases cited, happened to have been those where the time was, obviously, likely to extend beyond the life of the termor. But it is apprehended that a much shorter time would come within the same rule, if, by the scale of chances of life, the termor may not be calculated to outlive the term. Thus if, for instance, the termor was an old man when the limitation was made, a much shorter term than eighty years would bring it within the doctrine of Lord Derby's case.
i Fearne, Cont. Rem. 8; Boraston's case, 3 Rep. 20.
4 Carver v. Jackson, 4 Pet. 90. See also, Olney v. Hull, 21 Pick. 311; Sisson v. Seabury, 1 Sumn. 235.
11. It may be proper to remark here, though somewhat by anticipation, that there is no difficulty in limiting a contingent remainder of a term for years, upon a preceding term for years, since, in that case, the seisin and freehold remain in the lessor unaffected by the contingency. 3
12. So there are what seem to be exceptions to the fourth class of contingent remainders. Prominent among them are limitations coming within the rule in Shelley's case. This rule will be more fully explained hereafter, but, as showing how far it forms the exception above referred to, it is proper to state, that it is accepted as one of the dogmas of the common law, that if one makes a limitation to another for life, with a remainder *over mediately or immediately to his heirs, or the heirs of [*242] his body, the heirs do not take remainders at all, but the word heirs is regarded as defining or limiting the estate which the first taker has, and his heirs take by descent and not by purchase. So if a man by his will gives an estate to a devisee for life, with a remainder over to his own heirs, they do not, at common law, take as remainder-men by the will, but by descent as reversioners and heirs, that being regarded as the better title. The statutes of several of the States have changed the rule in Shelley's case, so that in
1 Countess of Darbie's case, cited in Littleton's Rep. 370, where the term was eighty years. Weale v. Lower, Pollexf. 67, where the term was ninety-nine years. Napper v. Sanders, Hutt. 118, where the term was eighty years. 1 Prest. Est. 80; Fearne, Cont. Rem. 20-22; 2 Cruise, Dig. 206; 4 Kent, Com. 221.
? Fearne, Cont. Rem. 24; 1 Prest. Est. 81.
similar cases, the heirs now take as remainder-men. But such a remainder is contingent during the life of the first taker. And now the same effect would be produced in England by a devise of a remainder to a testator's heirs under the statute 3 and 4 Wm. IV. ch. 106, § 3, except that the remainder would be a vested one as the heirs are ascertained simultaneously with the devise taking effect. Another seeming exception arises in the case of a limitation to one with remainder to the heirs” of another who is still living, where the context shows that the term is used in a popular and not a technical sense, meaning the children of a living person. In that case the term is regarded as a descriptio persona, and whoever answers thereto, if living, may take the remainder as a vested one.?
13. The reader should bear in mind, that no degree of contingency of an enjoyment in possession by the remainder-man of the estate limited to him, affects the question of its being vested or contingent. If a remainder be limited to one who is alive and ascertained, and has a present capacity to take the possession and enjoyment of the same, and no event but the determination of the prior estates is necessary to give him the right to such possession and enjoyment at any moment when the prior estates shall determine,
it will be a vested one, though it might be limited to one for [*243] life after the expiration of a term *of ever so many years.
It is obvious, therefore, that a remainder contingent at its creation, may become vested, though the one to whom it is limited may never himself have an opportunity to enjoy it in possession. Thus a limitation to A for life, remainder to the oldest son of B, becomes a vested remainder in the son the moment he is born, and though he may not outlive A to enjoy it in possession.
So, though the first or particular estate be so limited that it must expire on the happening of an event which is sure to occur at some time, and may expire before that event happens, in which contingency there is a limitation over to a person in esse, the remainder of this particular estate itself will be deemed a vested one, however improbable the contingency may be of its ever taking effect in possession. Thus upon a grant to A for life, remainder to B during the life of A, the estate in A must determine some time by death. It may determine by some act of forfeiture on his part, and if it does, B is a person in esse ready and capable of taking it, and it is therefore in him a vested remainder. It may be remarked in passing, that the above remainder to B is of the same character as that which is limited to trustees to preserve contingent remainders, which will be explained hereafter.
1 2 Cruise, Dig. 209; Wms. Real Prop: 225, and Rawle's note; Fearne, Cont. Rem. 28, and Butler's note; Shelley's case, 1 Rep. 93; post, Sect. 8.
2 Fearne, Cont. Rem. 209; Bowers v. Porter, 11 Pick. 98, 208; 2 Jarm. Wills, 10, and Perkins' note.
3 Williamson v. Field, 2 Sandf. Ch. 533.
14. After this explanation, it is not difficult to understand that there may be a vested remainder limited after a contingent one, which shall be good, provided the prior remainder be not a fee, so there may be a succession of contingent remainders, where a subsequent one may become vested while the prior one remains contingent. Thus in one case the limitation was to A for life, remainder to his first and other sons in tail, remainder to B for life, remainder to his first and other sons in tail. Now the remainders were contingent because there was no person in esse, capable of taking them when the limitation was made. But if B had a son, the remainder to such son became at once vested, though no son may yet have been born to A, and the remainder to him was consequently still contingent.2
*15. In the above cases, the remainders were contingent [*244] because limited to persons not in esse, and were of the fourth class above stated. But a case may occur where a vested remainder is preceded by a contingent one, and will be good, though limited to persons in esse, if the prior limitation depended upon an event whose contingency did not extend to the subsequent limitation. The leading case illustrative of this is Napper v. Sanders. There the feoffor made a feoffment to her own use for life, remainder to the use of feoffees for eighty years, if one N. S. and one E. S. his wife, so long lived ; if E. S. survived N. S. her husband, then to her for life; and after her death to B. S. in tail, and, for default of issue, to E. N. and D. S. and F. S. and the heirs of their bodies, remainder to the heirs of the feoffor. If this case is analyzed with reference to the rule above stated as to the effect of a limitation for eighty years, it
Wms. Real Prop. 223 ; Parkhurst v. Smith, Willes, 327 ; 2 Cruise, Dig. 210, 211.
2 Uvedall v. Uvedall, 2 Rolle, Abr. 119 ; Fearne, Cont. Rem. 222, 224 ; 2 Cruise, Dig. 216; Lewis v. Waters, 6 East, 336.