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that he might have a son, and would be good. But where not only J. S. must have a son, but one who must be afterwards called William, it went beyond a mere possibility, and required a double possibility, or a possibility upon a possibility, and was therefore void. But fortunately, a rule involving such subtle distinctions is now discarded, and a limitation like that supposed would be good.'
4. And yet there may be limitations too remote to be allowed in the disposition of an estate. Thus an estate cannot be limited to an unborn person for life, followed by an estate to a child of such unborn person. The limitation to the child of such unborn person, would be void as being too remote. So a devise to the right heirs of A B when there is no such person ás A B living, would be too remote and void. But a gift in remainder to an unborn person,
either for life or in tail or in fee, will be good, unless pre[*255] ceded by a gift for life or in tail to the *unborn parent of
that person. So if the estate to the children of an unborn child be an estate tail, the courts, in order to give effect as near as may be to the intention of the testator, hold that, in such a case, the devise of the estate to the unborn person for life, shall be construed to be an estate tail in him, so that, if he does not bar the entail, the general intent of the devisor that it should go to his issue will be effected. The result of applying the rule last stated in those States where fees tail are abolished, is, that such first-named unborn person will take a fee-simple, although the estate is expressly given him for life. But this would be confined to devises, and not extend to con
1 Wms. Real Prop. 227; Cole v. Sewell, 2 Conn. & L. Ch. 344, s. C. 4 Dru. & Warr. 27, 8. c. 2 House of Lords Cas. 186. 2 Wms. Real Prop. 228 ; 2 Prest. Abst. 115; Jackson v. Brown, 13 Wend. 442,
Watk. Conv. 196, Coventry's note; Hay v. Coventry, 3 T. R. 86; Brudenell v. Elwes, 1 East, 452. This may be assumed as a dogma of universal application, whether originally an inference or not, drawn from any rules against perpetuity affecting the alienation of estatess
8 2 Bl. Com. 170; Counden v. Clerke, Hob. 33 a.
4 2 Prest. Abst. 115; Per Lord Kenyon, Brudenell v. Elwes, 1 East, 453 ; 2 Bl. Com. 170; 2 Fearne, Cont. Rem. Smith's ed. 9 711, 713; Watk. Conv. 195, Coventry's note ; Jackson v. Brown, 13 Wend. 437.
6 Monypenny v. Dering, 16 M. & W. 428; Fearne, Cont. Rem. 204, Butler's note; Den v. Pukey, 5 T. R. 303, per Lord Kenyon ; Wms. Real Prop. 230, and Rawle's note; Allyn v. Mather, 9 Conn. 127 ; Chapman v. Brown, 3 Burr. 1626 ; Jackson v. Brown, 13 Wend. 437; Watk. Conv. 196, Coventry's note; Humberston v. Humberston, 1 P. Wms. 332.
6 Jackson v. Brown, 13 Wend. 447.
veyances at common law. The rule as applicable to the case of a will, seems to rest upon an admitted principle, that “there may be a general and a particular intent in a will; and that the latter must give way when the former cannot otherwise be carried into effect. 2 "
5. Another requisite in the event upon which a contingent remainder may depend, is, that it must not be such as to abridge the particular estate, for it is of the essence of a remainder that it should wait until the particular estate has had a natural determination, according to the terms of its limitation. The remainder must not, therefore, be in the nature of a condition at common law which may
defeat the particular estate, for first, no one but the grantor in such a case could take advantage of it, and second, upon his doing so in the only way in which it can be done, namely, by the making of an entry, he would thereby regain his original seisin, and defeat the seisin as well *as the freehold on which the remainder de- [*256) pended, wherefore no remainder could be limited upon a condition. If the particular estate be limited to two, with a remainder over upon the death of one of them to a stranger in fee, the mainder is void, because as the survivor must have the estate for life by reason of his having been a joint tenant with the deceased, the limitation over.upon the death of one, can only take place by defeating the estate of the survivor. Had the limitation been to the survivor instead of a stranger, it would have been good.
6. The proposition that a remainder must not abridge the particular estate, may be illustrated by a limitation of an estate to a widow with an expectant estate depending upon it. Thus, supposing it were desired to limit an estate expectant upon her marrying again, it would not do to make an estate to her for life, remainder to A B in fee on condition she remains a widow, for if the heir were to enter upon her marrying again, and defeat the estate, he would also defeat the remainder. To accomplish the desired purpose, the limitation to the widow should be during her widowhood, with remainder over. The
1 Wms. Real Prop. 229, n.; 3 Report, Eng. Com. 4. See post, pp. *264, *265, as to statute of Indiana.
2 Doe v. Cooper, 1 East, 234; Allyn v. Mather, 9 Conn. 127.
81 Prest. Est. 91 ; 2 Cruise, Dig. 234, 238. In several of the States a remainder may by statute be limited upon a contingency which may operate to abridge or defeat the precedent estate, and it is treated as a conditional limitation. See post, p. *265. 4 2 Cruise, Dig. 235, 237.
remainder upon her marrying again will then take effect upon the natural determination of her estate. But it will be understood, that the propositions here sought to be illustrated, apply only to estates at common law; for a limitation of an estate after a prior one which is to abridge or defeat the first, may be good if created by will, as a conditional limitation.? But if the happening of the contingent event gives effect to a remainder without affecting the particular estate, it may be a good remainder. Thus where an estate was limited to A for life, remainder to his son, and if he died in the lifetime of A, then to B, there would be a good remainder in B, for the dying of the son
did not affect A's estate, but merely fixed the time at which [ * 257] the estate in B *became vested, though an estate so limited
after another as to take effect on a condition and which would defeat the remainder previously limited, though it did not affect the particular estate, would be void as a remainder, because limited on such a condition. Thus where the limitation was to B for life, remainder to C for life, provided that if the grantor had a son during his life who lived to the age of five years, the estate limited to C should cease and the estate remain to the son in fee-tail, the remainder to the son was held void.4
7. A remainder may nevertheless be good, though limited upon an event that destroys the particular estate which supports it, provided it takes place by à union of the particular estate with the remainder, so as to merge the one in the other, though this cannot occur where the remainder is limited to a stranger a person other than the tenant of the particular estate. Thus where the estate was limited by A to his wife and daughter for their lives and the life of the survivor, and if the daughter had issue, then after the death of the vife, to the daughter and her heirs forever, and if the daughter died single or without issue, then to the wife and her heirs, it would be a good contingent remainder to the daughter and the wife respectively. But the moment it should take effect in the daughter by her having issue, and upon the death of the wife, or in the wife upon the death of the daughter without issue, it would cease to be a remainder by merging the life-estate in itself as an estate in possession, of inheritance with which she had thereby become clothed, as in that event the tenant for life would have become the owner of the inheritance.
1 2 Cruise, Dig. 235; Fearne, Cont. Rem. 262.
2 Proprs. Brattle Sq. Church v. Grant, 3 Gray, 149; Sheffield v. Orrery, 3 Atk. 282; Fearne, Cont. Rem. 239, 262, 407. 8 2 Cruise, Dig. 235.
* Cogan v. Cogan, Cro. Eliz. 360.
OF THE ESTATE REQUISITE TO SUSTAIN A CONTINGENT REMAINDER.
1. Must be a freehold, if remainder is a freehold.
When terms for years regarded as freeholds as to remainders.
1. The next inquiry relates to the character of the estate which is necessary to support a contingent remainder as its prior or particular estate. For the reasons heretofore explained, this must be a freehold interest if the remainder is a freehold, since the holder of any less estate could not take and hold the seisin which is necessary to give effect to the remainder, where it comes to vest in interest and possession, or could not be “ tenant of the præcipe,” as it was called, to answer in suits to recover the freehold. This, however, will be understood to be the rule of the common law, since, in some of the States, a freehold estate is not necessary to support what answers to a remainder at common law.3
2. For reasons heretofore explained, if the prior estate be a term for years, determinable upon the death of the tenant, and the term be so long that, upon the ordinary chances of life, the tenant will die before it terminates, it is regarded as so far a freehold interest that a contingent remainder limited upon it will be good.
3. And if the remainder be for a term of years, it does not, though contingent, require a particular estate of freehold to support it, since no seisin passes out of the grantor when he creates it, and, of course, no one need be constituted to keep it till the remainder takes effect. And until such future estate takes effect in possession, the limitation operates as a contract, and not as an estate. In such a case the prior or particular estate and the so called remainder, are not parts
1 Goodtitle v. Billington, Doug. 753.
* Ante, pp. *241, *244, *245; Napper v. Sanders, Hutt. 118; Countess of Darbie's case, cited in Littleton's Reports, 370; Fearne, Cont. Rem. 20-22; 2 Cruise, Dig. 243. 1 Fearne, Cont. Rem. 285; 2 Cruise, Dig. 244; Corbet v. Stone, T. Raym. 151. 2 Wms. Real Prop. 234 ; 2 Cruise, Dig. 245. 8 Fearne, Cont. Rem. 286, 289, Butler's note; Davies v. Bush, 1 M'Clell. & Y. 88. 4 2 Cruise, Dig. 245.
of one and the same estate as where the grantor's whole es[*259] tate goes out of him to the particular *tenant and remainder
man, but they are in effect two successive estates, distinct and independent, being grounded upon several contracts.
4. Although the loss of his estate by the tenant of the particular estate, whereby he is 'divested of his seisin, defeats at the common law a freehold contingent remainder dependent upon it, for reasons which will be hereafter more fully explained, yet if it be by disseisin only, and the tenant of the particular estate still has a present right of entry, the remainder will not be defeated. Whereas if his right of entry be lost, and to obtain it he must bring an action in order to regain his seisin, it implies that the seisin is actually out of him and in another person holding adversely to the title under which he claims, and the remainder dependent upon it is therefore defeated.3 So at common law, a discontinuance created by a tenant in tail, by aliening the estate, would cut off a remainder dependent upon it, since the issue in tail thereby lost a right of entry, and were driven to an action to regain the seisin.4 *
5. It may be added, although before stated, that the particular estate must be created by one and the same deed or instrument that creates the remainder, and the remainder must vest or become an actual estate during the continuance of the estate which supports it,
* NOTE. - In those States where the common law as to the effect upon a right of entry of a descent cast, is changed by statute, and where the limitation of a right of entry is the same with that of a right of action, the distinction between having a right of entry and a right of action, in its effect upon contingent remainders, would seem to be done away with. Mass. Gen. Stat. ch. 154, SS 1, 13. For other statutes on the subject, see post, p. *264, et seq.