[170]

THIS species of contingent remainders to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqua, be in esse at or before the particular estate determines w. As if an estate be made to A for life, remainder to the heirs of B; now, if A dies before B, the remainder is at an end; for during B's life he has no heir, nemo est haeres viventis: but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law *. But a remainder to the right heirs of B (if there be no such person as B in esse) is void y. For here there must two contingencies happen: first, that such a person as B shall be born; and, secondly, that he shall also die during the continuance of the particular estate; which make it potentia remotissima, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have

w 2 Rep. 51.

x Co. Litt, 378.

y Hob. 33.

his wife pregnant, who was afterwards delivered of a son: the courts of common pleas and king's bench held clearly, that the grandson not being born at the expiration of the estate for life, was not entitled to take it; but the lords, moved by the hardship of the case, reversed the judgments of the courts below, contrary to the opinions of all the judges, Reeve v. Long, 1 Salk. 227. But the house of commons, in reproof of this assumption of legislative authority in the lords, immediately brought in the 10 & 11 W. III. which passed into a statute. The statute only mentions marriage and other settlements; and it is probable, that devises were designedly omitted to be expressed from a delicacy, that the authority of the judgment of the peers might not be too openly impeached. As the statute says the posthumous son in this case shall take the estate as if born before the death of the father, he is entitled to the intermediate profits from the death of the father, (3 Atk. 203.) which is different from the case of a descent devested by the birth of a posthumous child. See 1 Vol. p. 130. note 9.

seen) is good, for by common possibility he may have one; but if it be limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility that he should not only have a son, but a son of a particular name z. A limitation of a remainder to a bastard before it is born, is not gooda : for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the per son who is to take it.

[171]

A REMAINDER may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee: here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is for ever gone; but if A dies first, the remainder to B becomes vested. CONTINGENT remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate, less than a freehold." Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void: but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void it cannot pass out of him, without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest no where: unless, therefore, the estate of such particular tenant be of a freehold nature,

z 5 Rep. 51.

a Cro. Eliz. 509.

b 1 Rep. 130.

the freehold cannot vest in him, and consequently the remainder is void.

CONTINGENT remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested. Therefore when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest (2); the consequence of which is that he utterly defeats them all. As, if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surren ders his life-estate, he by that means defeats the remainder in tail to his son: for his son not being in esse, when the particular estate determined, the remainder could not then vest; and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines. If therefore his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a parti- [172] cular estate in possession, sufficient to support the remainders depending in contingency. This method is said

e 1 Rep. 66. 135.

(2) But a conveyance of a greater estate than he has by bargain and sale, or by lease and release, is no forfeiture, and will not defeat a contingent remainder. 2 Leo. 60. 3 Mod. 151.

But the tenant for life may bar the contingent remainders by a feoffment, a fine, or a recovery. 1 Co. 66. Cro. Eliz. 630. 1 Salk. 224. Where there is a tenant for life, with all the subsequent remainders contingent, and he suffers a recovery to the use of himself in fee, he has a right to this tortious fee against all persons but the heirs of the grantor or devisor. 1 Salk. 224.

to have been invented by sir Orlando Bridgman, sir Geoffrey Palmer, and other eminent counsel, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for lifed: and when, after the restoration, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use (3).

d See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.

(3) We have seen before, in chapter vii. that, in a grant of a feesimple to A, it is necessary to give it to A and his heirs; of a fee-tail, to A and the heirs of his body; and that a grant to A, without any additional words, gives him only an estate for life. Hence the word heirs in the first case, and the words heirs of the body in the second, are said to be words of limitation, because they limit or describe what interest A takes by the grant, viz. in one case, a fee-simple, in the other, a feetail and the heirs in both instances take no interest any farther than as the ancestor may permit the estate to descend to them. But if a remainder is granted, or estate devised to the heirs of A, where no estate of freehold is at the same time given to A, the heir of A cannot take by descent from A; but he takes by purchase, under the grant, in the same manner as if the estate had been given to him by his proper name. Here the word heirs is called a word of purchase. Having premised the distinction between words of limitation and words of purchase, I may observe, that the much-talked-of rule in Shelly's case, 1 Co. 104. is this, viz. "when the ancestor, by any gift "or conveyance, takes an estate of freehold, and in the same gift or "conveyance an estate is limited, either mediately or immediately, "to his heirs in fee or in tail, that always in such cases the heirs are "words of limitation, and not words of purchase:" and the remainder is said to be executed in the ancestor, where there is no intermediate estate; or vested, when an estate for life or in tail intervenes.

As if an estate be given to A for life, and after his death, to the heirs of his body; this remainder is executed in A, or it unites with his estate

THUS the student will observe how much nicety is required in creating and securing a remainder; and I trust he will

for life; and the effect is the same as if the estate had at once been given to A and the heirs of his body; which expression limits an estate tail to A, and the issue have no indefeasible interest conveyed to them, but can only take by descent from A. So also if an estate be given to A for life, with remainder to B for life or in tail, remainder to the heirs, or the heirs of the body, of A—A takes an estate for life, in this case, with a vested remainder in fee or in tail; and his heir under this grant can only take by descent at his death. Fearne, 21. But when the estate for life, and the remainder in tail or in fee unite and coalesce, and heirs is a word of limitation, the two estates must be created by the same instrument, and must be either both legal, or both trust estates. Doug. 490. 2 T. R. 444. But an appointment in pursuance of a power, when executed, is to be considered as if it had been inserted in the original deed by which the power of appointment was created. 7 T. R. $47. The rule with regard to the execution or coalition of such estates seems now to be the same in equitable as in legal estates. 1 Bro. 206. And in all these cases where a person has an estate tail, or a vested remainder in tail, he can cut off the expectations or inheritance of his issue, by a fine, or a recovery. Doug. 323. In order therefore to secure a certain provision for children, the method was invented of granting the estate to the father for life, and, after his death, to his first and other sons in tail; for the words son or daughter were held to be words of purchase, and the remainder to them did not, like the remainder to heirs, unite with the prior estate of freehold. But if the son was unborn, the remainder was contingent, and might have been defeated by the alienation of the father by feoffment, fine, or recovery: to prevent this, it was necessary to interpose trustees, to whom the estate is given upon such a determination of the life-estate, and in whom it rests, till the contingent estate, if at all, comes into existence; and thus they are said to support and preserve the contingent remainders. This is called a strict settlement, and is the only mode (executory devises excepted) by which a certain and indefeasible provision can be secured to an unborn child. But in the case of articles or covenants before marriage, for making a settlement upon the husband and wife, and their offspring, if there be a limitation to the parents for life, with a remainder to the