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he would not then have owned it, it could not have merged any part of the life estate, and so he would have been seised of a life estate only.

This is a border-line class of vested remainders. A slight change in phraseology will readily show that futurity is annexed to the substance of the gift, and so make the remainder coutingent. Thus, a devise to A for life, remainder to those of his children who survive him, at common law, postpones the vesting and makes the remainder contingent until A's death; although by the New York criterion such a remainder is all the time vested in any existing children of A.2 And, in all jurisdictions, where the only form of the gift in a will consists in a direction to divide the property among the members of a class at a future time, such as a devise to A for life, with instructions for him to divide the land by his will among his children living at his death, the remainders are contingent. These are only rules of presumption, however, and they must always yield to an expressed intent of a testator as gathered from a proper construction of the entire will.4

§ 881. Particular Estates which may precede Vested Remainders. An estate for years, for life, or in fee tail may precede a vested remainder. The remainder being owned and ready to take effect in possession, all that is needed is that it and the particular estate shall constitute a continuous line of interests, the one to take effect in possession when the other terminates.5

§ 882. Incidents of Vested Remainders. The incidents and characteristics of vested remainders explain the common law's preference for them. They are in their nature very much the same as reversions; and are descendible, devisable, and alienable, may be reached for debts of their owners, and are subject to dower and curtesy, and generally to the ordinary incidents of estates in possession. These incidents must be understood,

1 Because, by the language employed, surviving A is made a condition precedent to ownership. Thomson v. Ludington, 104 Mass. 193; Robinson v. Palmer, 90 Me. 246; Whitesides v. Cooper, 115 N. C. 570; Gray, Perpetuities, § 108.

2 § 874, note (a), supra.

3 Matter of Crane, 164 N. Y. 71; Lyons v. Ostrander, 167 N. Y. 135; Paget v. Melcher, 156 N. Y. 399; Rudd v. Cornell, 171 N. Y. 114.

Quade v. Bertsch, 65 N. Y. App.

Div. 600, aff'd, 173 N. Y. 615; Matter
of Baer, 147 N. Y. 348; Goebel v. Wolf,
113 N. Y. 405; Carr v. Smith, 25 N. Y.
App. Div. 214.

5 §§ 861, 871, supra.

6 Wimple v. Fonda, 2 Johns. (N. Y.) 288; In re Kenyon, 17 R. I. 149; Hinkson v. Lees, 181 Pa. St. 225; Gardiner v. Guild, 106 Mass. 25; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Drake v. Brown, 68 Pa. St. 223; Cruise, Dig. tit. xvi. ch. i. § 9.

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of course, as regulated by the nature and extent of the vested remainders themselves, and by the existence or non-existence of seisin of them. Thus, a remainder, not being an estate in possession, could never be transferred by any method of conveyance which required formal livery of seisin, or handing over of possession; and a defeasible or determinable remainder must pass to the alienee, subject to the same condition subsequent,if owned, for example, by a member of a class who will lose it by his death before the particular estate ends, his alienee takes it subject to the same restriction, that it may be defeated by such death of the alienor. So there is no dower nor curtesy in any remainder when the particular estate is one of freehold, because the remainderman then has no seisin.2

Vested remainders are also governed by the same rules and principles as are reversions, in regard to the rights and remedies of their owners when the property is wasted or injured, or when adverse possession has been held against the preceding tenants. But, since the owner of the particular estate does not hold under or of the remainderman in any sense, when both interests are estates for years or for life, or otherwise equal in extent and come together in the same hands, the remainder does not merge the particular estate. No merger occurs by their coming together, in the same hands at the same time and in the same right, except when one of them is actually greater than the other; and then, no intention of the owner to the contrary being shown, the smaller of the two merges in the larger.

1 Last preceding note; 1 Prest. Est. p. *75; Glidden v. Blodgett, 38 N. H. 74. 2 § 864, supra.

8 See § 868, supra.

4 Co. Lit. 273 b; Cruise, Dig. tit. Xxxix. §§ 40-46; 3 Prest. Conv. 201.

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§ 883. Contingent Remainders illustrated and classified. Every contingent remainder is an estate on condition precedent. "It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain." 1 (a) An

(a) This is the language of the New York statute, Real Property Law (L. 1909, ch. 52), § 40. And it is a careful and accurate expression of the

*

1 2 Blackst. Com. p. 169; 1 Prest. Est. p. *74; 1 Fearne, Cont. Rem.

(Smith's ed.) p. 3; $$ 577, 578, supra.

estate to A for life, and then to the oldest son of B, who has no son, or then to the next president of the United States, illustrates a remainder that is contingent because of uncertainty as to the person; and when property is conveyed to A for life, remainder to B if he marry C, and the marriage has not occurred, an instance is afforded of a remainder that is contingent because of uncertainty as to the event. The twofold division of such remainders, thus naturally suggested, contingency as to the event, or as to the person, — is at once clear and comprehensive. But, for the purpose of examining and understanding them and their incidents as fully as their importance requires, the more complete, fourfold classification of Mr. Fearne and Mr. Cruise should be understood.2 Mr. Fearne says: "We may properly distinguish four sorts of contingent remainders: First, Where the remainder depends entirely on a contingent determination of the preceding estate itself. Secondly, Where the contingency, on which the remainder is to take effect, is independent of the determination of the preceding estate. Thirdly, Where the condition, upon which the remainder is limited, is certain in event, but the determination of the particular estate may happen before it. Fourthly, Where the person, to whom the remainder is limited, is not yet ascertained, or not yet in being." An illustration of each of these classes will make it clear. And a good understanding of them will open the way to an appreciation of some prominent and far-reaching principles of the law of future estates.

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common-law meaning of such a remainder. But, since the New York courts have made the chief test as to the character of remainders the statutory definition of vested remainders, and appear to have settled it that any remainder is vested whenever there is a person in being who could immediately take the property if the particular estate should terminate at once, this description of a contingent remainder must be understood in that state as if it said, "A remainder is contingent while the person who would have an immediate right to the possession of the property if the precedent estates should terminate at once, or while the event on which it is limited to take effect, remains uncertain." This may appear to be a strained construction of the definition of the statute. But it is the only one that logically indicates the line of demarkation drawn by the New York courts between vested and contingent remainders. See note (a), § 874, supra.

1 Last preceding note; Thomson v. Ludington, 104 Mass. 193; Roosa v. Harrington, 171 N. Y. 341.

p. 5; Cruise, Dig. tit. xvi. ch. i, §§ 11-21.

31 Fearne, Cont. Rem. (Smith's ed.)

21 Fearne, Cont. Rem. (Smith's ed.)

p. 5.

§ 884. First.

Both Estates affected by the Same Contingency. In the first of these four classes, one and the same contingent event, if it occur, terminates naturally the first (particular) estate and causes the second (the remainder) to vest in possession. An illustration is an estate to A until B returns from Rome, and then to B and his heirs. The event - the return of B — is uncertain; but its happening would affect the interests of both of the parties, terminating A's and causing B's to become vested in possession. (a)

The distinction between such a remainder and an estate on conditional limitation is here to be carefully noted. And it lies in the fact that, in order to make such future interest a contingent remainder, the event which causes it to become vested must be an uncertain one the happening of which also causes the preceding estate to terminate naturally. In the above illustration, all that is given to A is an estate until B returns from Rome. The event, if it occur, will neither defeat nor curtail A's interest, but will bring it to its natural endthe end contemplated in its creation. Had the land been given to A for his life, or for a designated term of years, or in fee, with a proviso that it should leave A, and pass to B if he returned from Rome, B's estate would not have been a remainder, but a conditional limitation; because, while the one event would affect both estates, it would defeat or diminish the first and not bring it to a natural end. So, an estate to A and his heirs until B returns from Rome, and then to B and his heirs, does not make a remainder for B. For the courts have always treated A's estate in such a case as a fee (the infinite line) which is to be curtailed by the happening of the event. This distinction is one of the most important of all those that have affected future estates. For, in a common-law jurisdiction, if the future estate must be called a conditional limitation, it must ordinarily be invalid. Thus, if a feoffment were made of Whiteacre "to A until B returns from Rome, and

(a) Assuming that the remainderman is in being, such a remainder as this, although contingent at common law, would be vested in New York. There is a person in being who could immediately take the property if the precedent estate should now terminate. See note (a), § 874, supra.

1 Greenl. Cruise, Dig. tit. xvi. ch. i, SS 11, 12; Blackman v. Fysh (1892), 3 Ch. 209; Hatfield v. Sneden, 54 N. Y.

2 First Univ. Soc. of North Adams v. Boland, 155 Mass. 171; Hatfield v. Sneden, 54 N. Y. 280; § 726, supra.

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