the lands, tenements, real estate" of judgment debtors shall be liable to be sold on execution. By another section of the same act it is provided that "the term 'real estate' when used in this act "shall include lands, tenements, hereditaments, and all legal and equitable rights and interests therein and thereto. Why, then, may not a contingent remainder be taken upon execution under such a statute? Certainly the language includes contingent interests more clearly than did the language of the Statute of Wills of Hen. VIII.12 Nevertheless, without any consideration whatsoever of points as obvious as these, our supreme court seems to have actually held that a contingent remainder is not subject to sale upon execution before the contingency happened.13

It may possibly be said that the statute designating what may be taken on execution should be strictly construed. This means no more than that nothing which is not plainly indicated by the statute shall be included in it. It does not mean that a court shall approach the statute with a prejudice to deprive it of its plain meaning. The statute expressly includes "all legal and equitable rights and interests." Is not a contingent remainder at least a "legal right"? Even assuming that contingent remainders were included in Acts on Wills by extraordinary intendment, have we not enough in the Act on Executions to support a levy upon a contingent remainder? It is significant that in Missouri under statutory provisions,

12 Ante, § 73. 13 Haward

430.

v. Peavey, 128 After holding in this case that the remainder levied upon was contingent the court merely said: "It follows that, at the time the land in question was sold under execution, Robert Haward's interest was only a contingent remainder, which was not subject to levy and sale, and that no title therefor passed to the purchaser by the marshall's deed."

man on Judgments-4th ed.-sec. II. 354)." Upon turning to this reference in Freeman we find the learned author stating that at com. mon law contingent remainders were not subject to execution, and then going on to say, "In some of the states the statutes declaring what shall be subject to execution include these contingent interests"; and in support of this he cites White v. McPheeters, 75 Mo., 286, 292, which, under a statute in all respects like that in the text above quoted, allowed the contingent remainder to be levied upon. (See infra, note 14).

In Ducker v. Burnham, 146 Ill. 9 the remainder was held vested, but the court in the beginning of its opinion said: "If it is contingent it is not subject to levy (2 Free

almost identical with those of this state, it has been held that a contingent remainder is subject to levy on execution.14

The law may be settled in Illinois that a sale upon execution of a contingent remainder is invalid, but the state of the decisions can hardly be regarded as satisfactory until the supreme court has noticed the broad language of the statute which defines what may be taken upon execution.

PART 3.

THE DESTRUCTIBILITY OF CONTINGENT REMAINDERS.1

§ 81. Introductory: The books mention only two sorts of contingent future interests after a particular estate of freehold,-contingent remainders and springing executory interests by way of use and devise. The practical consequences of the distinction between them, as given in the same sources, may be summed up as follows: Contingent remainders have been valid future interests at least since the time of Henry VI, but were destructible, that is, they failed entirely unless, before or at the time the preceding interest actually determined, they became ready to take effect in possession, whenever and however, the determination of the preceding interest occurred. Springing executory interests, on the other hand, as legal estates were wholly invalid under the feudal or common law system of land law. When they were held to be valid legal interests in conveyances operating under the statutes of uses and wills, they also became indestructible, that is, they took effect, according to the intent of the settlor, when the event upon which they were limited happened, and without regard

14 White v. McPheeters, 75 Mo., 292. The court in that case said, "Under our statute which declares that the term 'real estate' as therein used shall include all estates and interests in lands [R. S. 1879 § 2356-j] and that all real estate whereof a defendant shall be seized either in law or equity, shall be subject to seizure and sale under execution [R. S. 1879 § 2354-1] the interest of the said McPheeters

[the contingent remainderman] in the real estate in controversy, whether it be regarded either as a vested or contingent remainder, was liable to be subjected to the payment of his debts." See also note in 16 Harvard Law Rev. 377.

1 This part originally appeared as an article in the Law Quarterly Review, XXI, p. 118. Observe the reply to it by Mr. Edward Jenks in the same review, XXI, 265.

to the time of its occurrence with reference to the termination of the preceding estate.

Recent law reform legislation in England 2 seems to have made this distinction first of less importance and finally of none at all, except as regards cases arising under limitations existing prior to the time the Contingent Remainders Act of 1877 took effect. The Real Property Act of 1845 3 provided that any contingent remainder existing after 1844 should be capable of taking effect "notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects, as if such determination had not happened." This act, however, failed to provide for the case where the preceding estate of freehold terminated from causes other than those mentioned. A contingent remainder was, therefore, still liable to be defeated by the death of the life tenant before the contingency had happened. In 1877 another Contingent Remainders Act1 was passed by which the liability of the future contingent interest to destruction by the expiration of the preceding estate (in any manner) before the happening of the event upon which the subsequent interest was to vest, has been abolished. This act applies only to remainders arising under instruments executed since August 2, 1877.

It is believed that a recent line of English cases, commencing with In re Lechmere and Lloyd 5 in 1881, and concluding with Battie-Wrightson v. Thomas in 1904, go very far toward accomplishing, without statute, a large part, if not all, that was actually effected by the Contingent Remainders Act of 1877. These cases may not practically cause much disturbance in English conveyancing, because, since 1845, the power of the holder of the particular estate to destroy contingent remainders has ceased, and, since 1877, the destruction of contingent remainders in any manner is hecoming increasingly less. In by far the greater number of jurisdictions of the United States, however, there are still no contingent re

2 A Century of Law Reform, pp. 294, 295, Lecture by Arthur Underhill.

440 and 41 Vict., c. 33.

518 Ch. Div. 524 (1881); (5 Gray's Cases on Prop. 82).

38 and 9 Vict., c. 106, sec. 8.

6 [1904] 2 Ch. 95.

1

mainders acts. In some the act which does exist is of partial effect only, like the English Act of 1845.8 In most of these states there is neither decision, nor dicta, nor any practice of conveyancers in favor of holding that a contingent future interest is destroyed because of the too early failure of the preceding interest. Here, then, the existence of such a line of English cases as I have referred to is of considerable importance, as furnishing a possible basis for the contention that the rule which made certain contingent future interests destructible and thereby defeated the expressed intent of the testator or settlor, no longer exists.

It is the purpose of this part of the present chapter on remainders to inquire into the true scope and tendency of In re Lechmere and Lloyd and the cases following it in order that it may be ascertained what ground they furnish for the assertion that, without the aid of statute, contingent remaind7 The only states which seem to chase or descent. Battis' Ann. Civ. have a complete Contingent Re- Stat. (1897) § 626. mainders Act are given in Washburn on Real Property, 6th ed. § 1600, note, as follows: Ala., Ga., Ind., Ky., Mich., Minn., Mont., N. Y., N. Dak., Va., W. Va., Wis.

8 Maine: Rev. Stat. 1871, c. 73, sec. 5. Mass: Rev. Laws (1902) p. 1268, sec. 8. The acts in both these states antedate the English Contingent Remainders Act of 1845. The Mass. act appears in R. S. (1836) ch. 59, sec. 7; the Maine act in R. S. (1841) ch. 91, sec. 10.

In South Carolina (1 Rev. Stat. 1893, ch. 66; Code of Laws (1902) vol. 1, § 2465) the act goes no farther than to provide that a contingent remainder shall not be "defeated by feoffment with livery of seisin."

In Texas the statute goes no farther than to provide that the remainder shall not be defeated by the alienation of the particular estate, either by deed or will, or by the union of such particular estate with the inheritance by pur

91st: Cases where the destruction of contingent remainders was held to have occurred:

District of Columbia: Craig v. Warner, 5 Mackey, (D. of C.), 460. Mississippi: Irvine v. Newlin, 63 Miss. 192.

South Carolina: Redfern v. Middleton, Rice L. (S. C.) 459; Faber v. Police, 10 S. C. (10 Rich.) 376; McElwee v. Wheeler, 10 S. C. (10 Rich). 392.

Pennsylvania: Lyle v. Richards, 9 Serg. & R. (Pa.) 322; Abbott v. Jenkins, 10 Serg. & R. (Pa.) 296; Stump v. Findlay, 2 Rawle, (Pa.) 168; Bennett v. Morris, 5 Rawle, (Pa.) 15; Waddell v. Rattew, 5 Rawle (Pa.) 231; Dunwoodie v. Reed, 3 Serg. & R. (Pa.) 435, is only contra to the extent of maintaining that a common recovery by the holder of the particular estate does not bar the contingent remainder. Upon this point it was clearly overruled.

2nd: Cases containing dicta rec

ers are no longer destructible. To this end it will be necessary to classify all the possible sorts of contingent future interests which may be limited to take effect after the termination of a particular estate of freehold, to note the proper distinction between them,-the name to be given each,-and the extent to which they are recognized as legal estates. Such, accordingly, is the scheme of exposition adopted.

§ 82. The three possible sorts of contingent future interests which may be limited to take effect after a particular estate of freehold: The first of these includes all those which are limited upon an event which, according to the expressed intent of the settlor, must happen, if at all, before or at the time when the preceding interest terminates, no matter when or in what manner that may occur. Thus, to A for life, and after A's death to the right heir of J. S., provided said right heir of J. S. is ascertained before the termination (whenever and in whatever manner) of the preceding life estate in A.10 The second includes all those future contingent interests which are to take effect upon an event which, according to the expressed intent of the settlor, must happen, if at all, after the expiration of the preceding estate. Thus, to A for life and one year after A's death to B and his heirs. The third includes the large class of cases where the future interest is limited upon an event which, according to the actual expressed intent of the settlor, may happen before or after or at the time of or after, the termination of the preceding interest. Thus, to A for life, and then to all the children of A, who, either before or after the death of A, attain twenty-one; also, to A for life, and then to all the children of A who survive A. Into one or the other of these three classes of cases, it is submitted, every contingent future interest, limited after a par ticular estate of freehold, must fall.11

ognizing the doctrine by which contingent remainders may be destroyed: Edwards v. Woolfolk's Adm'r. 56 Ky. 376; Dennett v. Dennett, 40 N. H. 498; Madison v. Larmon, 170 Ill. 65. See also Young v. Harkleroad, 166 Ill. 318, and Spencer v. Spruell 196 Ill. 119, post, § 115.

In

10 It is believed that such an expressed intent as is here supposed is of fairly rare occurrence. Symes v. Symes [1896] 1 Ch. 272, North J. seems to have hinted that such an intent was expressed in the limitations there involved. See also ante, § 69. 11 Ante, § 67.