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the divisor, the court holding, in the latter case; that the limitation was in effect the same as if it had been to his widow during widowhood, with a remainder over to his son H.
22. After all, whether the contingency on which a prior remainder limited in a will depends, is to affect the subsequent *ones in succession, is governed by the intention of the de- [*250] visor as expressed in the will; and where there is no apparent distinction in view in this respect between the several successive estates, the contingency of the first would ordinarily affect the whole train of ulterior limitations.
23. Notwithstanding a remainder limited after a remainder in fee would be void, as has been often repeated, yet two remainders may be so limited, though each a fee, as to be good, provided this is so done that only one is to take effect, the one being a substitute for, and not subsequent to, the other. The consequence is, that if the first takes effect and becomes vested, the other at once becomes void.. Such a limitation is said to be of a fee with a double aspect. A case illustrative of this proposition is that of Luddington v. Kime, where the devise was to A for life, and if he had male issue, then to such issue and bis heirs; but if A died without issue male, then to T. B. in fee. Here are two remainders contingent in their character, and both in fee, dependent upon the same particular estate, and to take effect, if at all, upon the determination of that estate, and only one of these can take effect. If A has issue, the remainder vests at once in such issue, and defeats the limitation to T. B. altogether. On the other hand, if A dies without issue, T. B.'s remainder at once vests in him, and takes effect as a substitute for the other; neither is, by its terms, to wait until the other shall have once taken effect and afterwards been determined. Among other cases which might be referred to for illustration of the doctrine above stated, is that of Doe v. Challis. The devise in that case was to trustees for the life of the testator's daughter E. M. and after her death to her children and their heirs, and if her children all died under age, or she had no children, the devise was to the testator's other children for life, and after
1 Fearne, Cont. Rem. 239.
2 2 Cruise, Dig. 223; 1 Prest. Est. 88; Fearne, Cont. Rem. 235; Davis v. Norton, 2 P. Wms. 390.
8 Luddington v. Kime, 1 Lord Raym. 203; 2 Cruise, Dig. 217; 1 Prest. Est. 94; Dunwoodie v. Reed, 3 S. & R. 452; Goodwright v. Dunham, Dougl. 265.
their death to the children of such children and their heirs. Now if E. M. had died leaving children, the estate would have vested in them, and any limitation over could only have taken effect as an executory devise. Until she had children, the remainder to them was of course contingent, and as she never had any, it never took effect, and the limitation subsequent to that in terms took effect as a contingent remainder, supported by the life estate in E. M., and became vested on her death. And it is stated as a general proposition, that although, where a fee is given by a vested limitation, remainder upon it must be an executory devise, and if it be too remote this and all subsequent remainders are void, yet, if a fee be limited in contingency, and the estate is given over upon a contingency divesting the fee, if the fee so limited never vests, the gift over takes effect as a contingent remainder. And it may be added, an estate may be devised over in either of two events, and in one event the devise may operate as a contingent remainder, in the other as an executory devise. 1
24. From these examples, it would seem to follow, almost as a corollary, that if there is a contingent remainder limited in fee, no after limitation dependent upon it can be a vested one.
Thus though T. B. was alive, ready and capable of taking, except so far as his capacity depended on A's dying without issue, yet his remainder
could not be otherwise than contingent while A lived, for so [*251] long as he lived there was a possibility of A's *having issue,
and thereby rendering the limitation to T. B. void, by the first remainder absorbing the entire fee. And the reader will remark the distinction between this case and the one before mentioned, of a remainder being vested though subsequent to a contingent one, since in that case the prior contingent remainder was for life only, or in tail, and not in fee-simple. It may however be remarked, somewhat by way of anticipation, that by means of what is called an executory devise or shifting use, a fee may be limited to come in and take the place of a previous fee which has been created by the same will or deed. And it should be kept in mind, that courts never construe a future and contingent estate an executory devise, where by the rules of legal construction, it can be regarded as a remainder.1
1 Doe v. Challis, 2 E. L. & E. 215, 225; Doe v. Silby, 2 B. & C. 926. 2 2 Cruise, Dig. 220.
8 Dunwoodie v. Reed, 3 S. & R. 452.
25. It may also be again remarked, for the purpose of explaining what otherwise might seem to be an exception to the rule, that a fee cannot be limited by way of remainder after a prior estate in fee, that trusts may be limited to trustees and their heirs, and yet be determinable estates, upon which remainders may be limited, if the nature of the trust and the estate of the cestui que trust are, in themselves, thus determinable, as was illustrated above in the case of Lethieullier v. Tracy.2
26. There is, besides, under the statute of uses, a mode of creating future estates by what is called a power of appointment. Thus, for instance, A by his will devises to B for life, with a power in B, or some other person named, to appoint or declare who shall have the estate after the death of B. When such appointment or designation is made, the appointee takes under and by virtue of the will of the testator operating directly upon the estate, in the same manner as if the testator himself had named as devisee the person to take the estate. Sometimes the testator gives such a power in his will, and then devises over the estate to take effect if and in case the power shall not be exercised. Limitations of the latter kind are regarded * remainders, and as vested, although liable to [*252] be defeated if the appointment shall be made to another; for, until it is made, the possibility that it will be exercised does not create any estate, and therefore produces no effect upon the other limitation even though the power be to appoint in fee. When exercised, its effect is merely to defeat the estate limited, and to divest it from him to whom it has been given.3
27. Questions of considerable difficulty often arise under wills, in relation to estates whose limitation is connected with some future event, to determine whether the vesting depends on that event, and the estate is, therefore, a conditional one, or whether the mere enjoyment of it is to depend upon when such event is to happen, the
1 Blanchard v. Brooks, 12 Pick. 47, 63; Blanchard v. Blanchard, 1 Allen, 223 ; ante, pp. *226, *229.
2 Lethieullier v. Tracy, 3 Atk. 774.
& Feame, Cont. Rem. 226 ; 2 Cruise, Dig. 221 ; 4 id. 146. A devisor, however, cannot by his will reserve to himself the power of future appointment. Johnson v. Ball, 9 E. L. & E. 128. VOL. II.
estate itself being a vested one. Of this kind was Boraston's case, already cited, where the devise was to A and B for the term of eight years, with remainder to the testator's executors until such time as H. B. should arrive at twenty-one years, and when he should come of full age, then that he should enjoy the same to him and his heirs forever. H. B. died before he was twenty-one years of age, and the question was, whether the remainder limited to him was vested or contingent, prior to his arriving at twenty-one. It was held to have been a vested one, because the term “ when”. used in the devise applied only to the time of enjoyment, and not the time of vesting of the estate in him. Lord Mansfield laid down two rules applicable to cases like these, the first of which is, that, where the whole property is devised, a particular interest created out of it will operate as an exception of the absolute property given to the devisee ; the second, that where an absolute property is given, and a particular interest is limited in the mean time, as, for instance, till the devisee shall come of age and the like, and then to him, it shall not be construed as a condition precedent, but as describing the time
when the remainder-man is to take in possession. The first [*253] of these rules he derives from Matthew *Manning's case,
and the second from the above case of Boraston.2 28. Sometimes an estate is limited upon a contingency, to which the effect of a condition subsequent is given. The estate, in such case, becomes vested at once, but is subject to be divested by the happening of the condition. Thus, for instance, a devise was to E and J for their lives successively, and after the death of the longest liver of them, to A B if he lived to attain the age of twenty-one years, but if he died before that age, then to C B if he survived A B and attained the age of twenty-one years. It was held, that the remainder vested at once in A B in fee, but was subject to be defeated if he died before twenty-one years of age, and that then it would pass, not as a remainder, but as an executory devise to C B.:
i Boraston's case, 3 Rep. 19; Tomlinson v. Dighton, 1 P. Wms. 170.
Manning's case, 8 Rep. 187 b; Boraston's case, 3 Rep. 19; Goodtitle v. Whitby, 1 Burr. 233. See Doe v. Lea, 3 T. R. 41; Doe v. Moore, 14 East, 601. Furness o. Fox, 1 Cash. 134, though a case of bequest of a legacy involves the same rule of law.
,8 Bromfield v. Crowder, 1 Bos. & P. N. R. 313; Edwards v. Hammond, 3 Lev. 132; Doe v. Moore, 14 East, 601 ; Blanchard v. Blanchard, 1 Allen, 223.
OF THE EVENT ON WHICH CONTINGENT REMAINDERS MAY VEST.
1. It must be a legal or not an illegal one.
1. Having thus considered the circumstances which will render a remainder contingent, it is next proposed to examine, somewhat more in detail, as to the event upon which such a remainder may be limited. In the first place, such event must be a lawful, or at least, not an unlawful one, and where, therefore, a remainder was limited to a bastard not in esse, it was held to be void.
2. In the next place, the event must not be too remote, or beyond what is deemed in law to be a common possibility, such as that of the death of a person, or of his dying without issue, or of coverture and the like. If the event is not within such a * possi- [*254] bility, a limitation dependent upon it is void at common law.2
3. There has been a great deal of refinement and subtlety expended in applying this rule against too remote possibilities, in determining questions of limitation of future estates. Lord Coke, drawing his premises from the logic of the schools, laid it down as a rule of construction, that a double possibility, or a possibility upon a possibility, would not be sufficient to support a limitation in the way
of remainder. Such a limitation would be one to A for life, remainder to William the son of J. S., when J. S. has no son. Now had it been to the son of J. S. it would have been an ordinary single possibility
1 Wms. Real Prop. 226 ; Blodwell v. Edwards, Cro. Eliz. 509.
2 Cholmley's case, 2 Rep. 51 b; 2 Bl. Com. '169; Dennett v. Dennett, 40 N. H. 503. But this is altered by statute in some of the States, whereby the remoteness of the probability does not affect the validity of the limitation. Post, p. *266 ; Wms. Real Prop. 252.