released to the reversioner.38 While it was, at first, doubted whether it had become sufficiently an interest to be devisable within the terms of the Statute of Wills of Hen. VIII, yet it was finally settled to be so.39 And now in the modern English statutes, in terms providing that contingent remainders shall be transmissible by devise 40 and by deed,41 the legislature speaks of them as if they were not only something but a recognized estate or interest in land. If there be added to this, whether with or without the action of the legislature, the abrogation of the rule that contingent remainders are destructible,42 they are as surely a "right" in land as an executory devise, of which our supreme court has said:43 "These limitations [executory devises] are not held to be mere possibilities, but are regarded as substantial interests or estates." The rule of the common law that you cannot, by a transfer inter vivos, convey a contingent remainder stands out, therefore, as a useless relic of the original hesitation of the feudal system to accept contingent remainders at all.44 The proposition, then, that a contingent remainder is nothing at all till the contingency happens, if taken literally, is either untrue or would apply equally well to a vested remainder. If taken historically, it long ago became an anachronism. Let it not, then, be made the basis for holding a statute, which declares that a deed in substance in the statutory form of a quit claim deed shall pass all the "legal and equitable rights of the grantor," insufficient to permit the conveyance, by such deed, of a contingent remainder. § 79. Public policy of today is in favor of allowing the free transfer of contingent remainders: If the rule that a contingent remainder could not, at law, be conveyed inter vivos had rested solely upon the idea that the contingent remainder was void till the contingency happened, it might not have held out after the contingent remainder came to be regarded as an 38 Williams Real Property, 17th ed. p. 422. Since Williams v. Esten, 179 Ill. 267, 273, we may fairly assume that the release by a contingent remainderman to the tenant in possession is equally valid. 39 Ante, § 73. 40 Ante, § 73, note 3. 48 Waldo v. Cummings, 45 Ill. 421, 428. Post, § 180. 44 Williams Real Property, 17th ed. p. 423. interest in land. But the feudal system undertook to look upon the contingent remainder much the same as a right of entry for condition broken, and to declare that the public policy which forbade the assignment of such rights of entry applied to contingent remainders. Whatever public policy or legal theory of the feudal period of the history of the law forbade the conveyance of contingent remainders must have disappeared several centuries ago. Certainly it had disappeared when in the 17th and 18th centuries equity began to enforce the attempted conveyance of a contingent remainder as a contract to transfer title whenever the estate vested so as to be the subject of conveyance.2 It was logical, therefore, that among the first English land law reform acts we should find one making contingent interests transferable by deed like present interests in possession.3 It may fairly be assumed that in this country public policy has, from the earliest times, favored the most absolute freedom of alienation. The objection to the transfer of contingent remainders that such transfer savored of champerty and maintenance could hardly have obtained.4 In a community like Illinois, which had no political life as a state till 1818, it is submitted that there never has existed any public policy contrary to that embodied in the Act of Parliament which made contingent remainders transferable by deed on the same terms that any interest in possession may be transferred. Our supreme court seems to recognize this. It has 1 Williams Real Property, 17th int. ed. p. 422; The Mystery of Seisin, F. W. Maitland, 2 Law Quart. Rev. 481. The rule, therefore, that a contingent remainder could not, regardless of the consideration paid, be transferred inter vivos, at law, became too well established to be changed except by the legislature. 2 Fearne C. R. 549-551; Smith on Executory Devises § 750. Ante, § 75. 3 8 and 9 Vict., c. 106, § 6. (1845). 4 The end of any such principle of public policy in this country is marked by the statutes (Stimson, Am. Stats. § 1401; Ill. Laws 1827, p. 95, sec. 4; R. S. 1845 ch. 24, sec. 4; R. S. 1874 ch. 30, sec. 4), or decisions in the absence of statute (Cresson v. Miller, 2 Watts, (Pa.), 272; Poyas v. Wilkins, 12 Rich. (S. C.,) 420; Hall v. Ashby, 9 Ohio 96) which have made the devisee's right of entry transferable like any present interest in possession. 5 Witness the history of our land laws: The whole tendency of our conveyancing acts has been to make transfer free by making it simple and inexpensive. The re already seized upon sec. 14 of the Landlord and Tenant Act of 1873 to hold that no attornment is necessary. This is particularly significant because sec. 14 is modeled directly upon the statute of Hen. VIII which was admitted in Fisher v. Deering to be ineffective to abolish attornment. Boatman v. Boatmans is itself a strong indication that our supreme court is fully alive to the public policy in favor of permitting the contingent remainder to pass by the quit claim deed. There the remainder was certainly, by all the rules of the common law, contingent, and yet the court extended the common law definition of a vested remainder, for no other purpose it would seem, than that the remainder involved in that case might pass by the quit claim deed. Is it not, then, almost unaccountable that we should fail to take advantage of the obvious opportunity which was given by the introduction, in 1872,10 of statutory forms of conveyance, to shape our law regarding the transfer of contingent remainders in accordance with that public policy which has all along prevailed in this state with ever increasing force? Is it not a failure of insight on our part into the historical tendencies of the law, that we have harkened back to and perpetuated rules, the foundations of which lie buried in the feudal system of five centuries ago, or to the partial mitigation of those rules which equity adopted two and three centuries ago and which have sometime since fallen behind the demands of modern conditions upon the law? § 80. Upon execution sale: The taking of interests in real estate upon execution sale is a matter dependent entirely upon statute. Whether a contingent remainder can be so sold upon execution will depend upon the statute which describes the interests which may be levied upon. Since 1845 at least the statutes in this state have provided 11 that "all and singular cording acts, the sweeping provisions of sec. 1 of the act of 1827 concerning conveyances (ante, § 76), the statutory forms provided by the act of 1873 (ante, § 77), and finally our adoption of the Torrens system, have always been in furtherance of this object. See also post, § 153, on public policy in favor of free alienation. 6 Post, § 122. 8 198 Ill. 414. 9 Post, §§ 105 et seq. 11 R. S. 1845 pp. 300-301; R. S. 1874, ch. 77, secs. 3, 10. 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 Ill. 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." 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 man on Judgments-4th ed.-sec. 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). 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 [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. 14 White v. McPheeters, 75 Mo., 292. The court in that case said, "Under our statute which declares that the term 'real estate' as there in 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 1 This part originally appeared either in law or equity, shall be as an article in the Law Quartersubject to seizure and sale under ly Review, XXI, p. 118. Observe execution [R. S. 1879 § 2354-1] the the reply to it by Mr. Edward interest of the said McPheeters Jenks in the same review, XXI, 265. |