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 of * one and the same estate as where the grantor's whole [*259] estate 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.1 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.2 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. 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 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. c. 154, §§ 1, 13. For other statutes on the subject, see post, p. *264 et seq. 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. instrument that creates the remainder; and the remainder must vest or become an actual estate during the continuance of the estate which supports it, or eo instanti that that estate determines.1 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 same, be- [*260] fore 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.2 Thus it is said, "If there be a tenant for life with a contingent remainder, and he makes a feofment in fee upon condition, and the particular estate determines 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." 8 6. And so far was this carried at common law, that, if the child who was to take the remainder were en ventre sa mère 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 1 2 Cruise, Dig. 246; 1 Prest. Est. 90; Wms. Real Prop. 225; 2 Prest. Abst. 114; Doe v. Morgan, 3 T. R. 763. 2 Fearne, Cont. Rem. 315; Purefoy v. Rogers, 2 Lev. 89. 3 Thompson v. Leach, 2 Salk. 576. 4 Reeve v. Long, 1 Salk. 227; Stat. 10 and 11 Wm. III. c. 16; 4 Kent, Com. 249, and note. See post, p. 266. 6 Fearne, Cont. Rem. 304, and Butler's note 2 Cruise, Dig. 247; Hopkins v. Hopkins, 1 Atk. 590; Wms. Real Prop. 2o st. Est. 241. 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.1 * 8. As a consequence of carrying out at common [*261] law the 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.2 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.3 1 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. 22 Cruise, Dig. 256; Fearne, Cont. Rem. 312; Griffith v. Pownal, 13 Sim. 893. 8 Doe v. Perryn, 3 T. R. 484; 8 Prest. Conv. 555; Fearne, Cont. Rem. 815, and Butler's note; 2 Jarm. Wills, 76, and Perkins' note of American cases; Doe v. Provoost, 4 Johns. 61; ante, p. *230; Moore v. Weaver, 16 Graƒ, 807. SECTION VI. HOW CONTINGENT REMAINDERS MAY BE DEFEATED. 1. By destroying the particular estate before vesting. 2. Conveyances under statute of uses do not affect remainders. 8. Exception to effect of merger of estates on remainders. 4. Of trustees to preserve contingent remainders. 5. In whom is the inheritance while remainder is contingent. 1. Ar 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 feofment 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 would not prevent the merging of the two, it not being an intervening estate.1 So where the prior or particular estate was upon condition, and, before the remainder had vested, the condition was broken, and an entry had been made for the breach, whereby the estate was defeated by forfeiture, it was held to defeat the remainder also.2 * 2. If the conveyance by the tenant were by any [*262] form 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.8 3. And there is an exception as to the effect of the union 1 Penhey v. Hurrell, 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. 89; 2 Bl. Com. 171; Wms. Real Prop. 233. Archer's case, 1 Co. 66 b. 2 Williams v. Angell, 7 R. I. 152. 3 2 Sand. Uses, 11; Fearne, Cont. Rem. 321; Smith v. Clyfford, 1 T. R. 744 Dennett v. Dennett, 40 N. H. 498, 505. 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.1 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.2 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, if the first tenant thereof were to defeat his own estate by forfeiture or other act, or if his estate and the inher[*263] itance were to merge so as otherwise to destroy it.3 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, sur 1 Cresfield v. Storr, 36 Md. 129. 2 Fearne, Cont. Rem. 340, Butler's note; Crump v. Norwood, 7 Taunt. 362; 2 Cruise, Dig. 278; ante, vol. 1, p. *139. 32 Bl. Com. 171; 2 Cruise, Dig. 315; Fearne, Cont. Rem. 325; Wms. Real Prop. 222, 287; |