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or eo instanti that that estate determines. If, therefore, there is so far an interruption of the seisin, as to deprive the holder of the particular estate of a present right of *entry in the [*260] same, before the remainder vests, so that when the contingency happens on which it is to vest, the estate of the tenant of the particular estate or a present right of entry is not in esse, no subsequent restoration of the same will revive or give effect to the remainder, which has once failed for want of support. Thuseit is said, “ if there be a tenant for life, with a contingent remainder, and he makes a feoffment in fee upon condition, and the contingency happens before the condition is broken, the contingent remainder is destroyed, for there must be a particular estate or a present right of entry, when the contingency happens. But if the tenant for life enters for breach before the contingency happen, the contingent remainder is revived and may vest." 3
6. And so far was this carried at common law, that if the child who was to take the remainder were en ventre sa mere at the determination of the particular estate, the remainder failed. But this is now remedied by regarding such child as already born for the purposes of taking an estate by limitation or descent.4
7. In trust estates, though generally governed, so far as contingent remainders are concerned, by the same rules as estates at common law, a rule prevails, that a legal estate of freehold in the trustee will support a contingent limitation of the estate of a cestui que trust, although this may not vest by the time the preceding equitable limitation in trust expires. Nor can any cestui que trust, having a prior trust estate, destroy a contingent remainder expectant upon his estate, by any.mode of conveyance, since the legal estate in the trustee will support the remainders as they rise.6
8. As a consequence of carrying out, at common law, the
1 2 Cruise, Dig. 246 ; 1 Prest. Est. 90; Wms. Real Prop. 225 ; 2 Prest. Abst. 114; Doe v. Morgan, 3 T. R. 763.
Fearne, Cont. Rem. 315; Purefoy v. Rogers, 2 Lev. 39. 8 Thompson v. Leach, 2 Salk. 576.
4 Reeve vs Long, 1 Salk. 227 ; Stat. 10 and 11 Wm. III. ch. 16; 4 Kent, Com. 249, and note. See post, p. *266.
5 Fearne, Cont. Rem. 304, and Butler's note; 2 Cruise, Dig. 247 ; Hopkins v. Hopkins, 1 Atk. 590; Wms. Real Prop. 239; 1 Prest. Est. 241.
6 Fearne, Cont. Rem. 21 a, and Butler's note ; Davies v. Bush, 1 M'Clell. & Y. 82; 2 Cruise, Dig. 270; Penhey v. Hurrell, 2 Freem. 213; ante, p. *189.
[*261] *principles above stated, relative to the event upon which,
and the time when, a contingent remainder must be limited to vest in interest, such a remainder may take effect as to some of the persons to whom it is limited, and fail as to others, by reason of. their not being in esse when the particular estate determines. Thus where a limitation is made to A for life, remainder to the heirs of J. and K, and J dies before A, but K survives him, the effect will be that J's heirs alone can take.! 9. But if the limitation be by devise, to a class of persons any
of whom are alive and capable of taking at the death of the testator, the enjoyment of which is postponed till after the expiration of a particular estate, the estate will vest in such as are capable of taking at the death of the testator, and will open and let in such of the same class as may come in esse, during the continuance of the particular estate.
HOW CONTINGENT REMAINDERS MAY BE DEFEATED.
1. By destroying the particular estate before vesting.
1. At common law there were various ways in which a contingent remainder might be defeated, by destroying the particular estate on which the remainder depended before it vested. It might be done by a feoffment or forfeiture, or by surrender by the tenant to the reversioner or remainder-man, or by the inheritance descending upon the tenant. and merging his particular estate in itself, or by the particular estate and the inheritance becoming united by conveyance or act of the parties, since the outstanding of a contingent remainder
1 2 Cruise, Dig. 256 ; Fearne, Cont. Rem. 312; Griffith v. Pownal, 13 Sim. 393.
? Doe v. Perryn, 3 T. R. 484 ; 3 Prest. Conv. 555 ; Fearne, Cont. Rem. 315, and Butler's note; 2 Jarm. Wills, 76, and Perkins' note of American cases ; Doe v. Provoost, 4 Johns. 61; ante, p. *230.
would not prevent the merging of the two, it not being an intervening estate.
*2. If the conveyance by the tenant were by any form [*262] deriving its validity from the statute of uses, it would not have the effect to disturb a contingent remainder dependent upon it, since it would only pass what the tenant might lawfully convey, and not destroy the estate of any person.?
3. And there is an exception as to the effect of the union of the particular estate and reversion of the inheritance in one ownership, operating to bar the contingent remainder, where the particular estate and remainder are created by will, and the reversionary inheritance comes by descent upon the tenant of the particular estate. Here, by the ordinary rules of law, the life-estate and the inheritance coming together in the same ownership, would merge. But if that effect were allowed in this case, it would make one provision in a will destroy another, against the intention of the devisor. And it is accordingly held, that in such case, the union of the two estates shall not operate to destroy the contingent remainder, but they shall open and let it in when it arises. But if the tenant for life under a devise were not the heir of the devisor, and acquired the inheritance mediately by grant, devise, or descent from the heirs of the devisor or some other devisee, the union of the two estates would operate to destroy the contingent remainder, by their life-estate merging in the inheritance.
4. It was to guard against the possibility of any tortious acts on the part of the tenant of the particular estate defeating the contingent remainder dependent upon it, that the scheme of “trustees to preserve contingent remainders” was devised, as it is said, by Sir Geoffrey Palmer and Sir Orlando Bridgman, in the time of the English Commonwealth. The effect of this was, to have some one with a vested remainder, competent at any moment to take and hold the particular estate for the balance of the term of its original limitation,
1 Penhey v. Harrell, 2 Freem. 213; Fearne, Cont. Rem. 316, 340; 2 Cruise, Dig. 269; Doe v. Gatacre, 5 Bing. N. c. 609; Purefoy v. Rogers, 2 Lev. 39; 2 Bl. Com. 171 ; Wms. Real Prop. 233.
2 2 Sand. Uses, 11; Fearne, Cont. Rem. 321 ; Smith v. Clyfford, 1 T. R. 744 ; Dennett v. Dennett, 40 N. H. 498, 505.
3 Fearne, Cont. Rem. 340, Butler's note; Crump v. Norwood, 7 Taunt. 362; 2 Cruise, Dig. 273; ante, Vol. I. p. *139.
if the first tenant thereof were to defeat his own estate by forfeiture
or other act, or, if his estate and the inheritance were to [*263] merge so as *otherwise to destroy it. The necessity of
such a precaution is now done away with in England, and in most if not all the United States, so that a contingent remainder cannot be defeated by a determination of the particular estate of freehold by forfeiture, surrender, or merger, and in some of the States, by no determination of such particular estate by any means whatever.2
5. It has at times been discussed, as something more than a mere matter of speculation, in whom the inheritance is, in the case of a limitation of a contingent remainder in fee, until the same vests by the happening of the contingency on which it depends. If the limitation be by the way of a use, there seems to be no question that it remains in the settler as grantor, or in the heirs of the devisor if created by last will. The doubt arises where it is limited by a common-law assurance. It has been held by some, that as the seisin and inheritance had passed out of the grantor without having vested in any one, the inheritance would be in abeyance. Others, on the contrary, regard the inheritance as in the grantor, by a kind of reversionary interest, until the contingency happens by which the remainder becomes vested ; and this seems to be now regarded as the better opinion.
6. At common law, before the contingency happens, contingent remainders cannot be conveyed except by way of estoppel, though they are assignable in equity, since theoretically such a remainder is not an estate, but a mere chance of having one. But where the person is ascertained who is to take the remainder if it becomes vested, and he dies, it will pass to his heirs,1 *or may be de- [*264] vised by him. It might always have been released by him to the reversioner, and now by statute he may convey it by deed.? And where a deed of such contingent remainder operates by way of estoppel, it operates upon the estate itself whenever the remainder becomes vested, and the estoppel becomes an estate in interest. So all persons claiming by, through, or under the maker of such deed, would be equally estopped with himself.4
1 2 Bl. Com. 171; 2 Cruise, Dig. 315; Fearne, Cont. Rem. 325; Wms. Real Prop. 222, 237.
2 Wms. Real Prop. 236; Stat. 8 & 9 Vict. 106. See post, p. *266.
6 Co. Lit. 191 a, Butler's note, 78; Shapleigh v. Pilsbury, 1 Me. 280; 2 Greenl. Cruise, Dig. 330, n; Rice v. Osgood, 9 Mass. 37, 44; Fearne, Cont. Rem. 354, 357. But see the remarks of Chancellor Kent on this subject, 4. Kent, Com. 259, 260, and note, that though good sense is with Fearne, the authorities are against him.
6 Wms. Real Prop. 231, 233 ; 2 Cruise, Dig. 333; Fearne, Cont. Rem. 55l; I Prest. Est. 76, 89; Robertson v. Wilson, 38 N. H. 48.
AMERICAN STATUTES AFFECTING REMAINDERS.
1. Creating freeholds to commence in futuro.
Instead of attempting to incorporate into the text the modifications of the common law which have been effected by legislation in this country in regard to remainders, or even to append such modificar tions in notes to the body of the work in any immediate connection with the parts where they might be more specially applicable, it has been thought better to embody them, under proper heads, in a separate section, as being more convenient for reference. So far as this is done it will be chiefly confined to a mere statement of the several statutory provisions, with an occasional reference to decided cases.
1. (1) Of creating freeholds to commence in futuro. In Alabama, no estate in lands can be created by way of contingent remainder, but every estate created by any.will or conveyance, and which
1 Roe v. Griffiths, 1 W. Bl. 606; 1 Prest. Est. 76; 4 Kent, Com. 262. 2 Roe v. Jones, 1 H. Bl. 33 ; 4 Kent, Com. 261 ; Roe v. Griffiths, 1 W. Bl. 606.
8 Wms. Real Prop. 231 ; 1 Prest. Est. 89 ; Stat. 8 & 9 Vict. ch. 106, 9 6. For statutes of the several States of the United States, see post, p. *267.
4 4 Kent, Com. 8th ed. 263, n. ; Doe v. Oliver, 10 B. & C. 181 ; Fearne, Cont. Rom. 365, $ 5, and note; Stow v. Wyse, 7 Conn. 214. VOL. II.