of contingent remainders to be defeated by forfeiture, surrender, or merger of any preceding estate of freehold.1 And in most of the states of this country statutes have made it impossible for any destruction or determination of the precedent estates to defeat or impair remainders of any kind.2 (a) § 904. Seventh Rule.- Contingent Remainders Descendible and Devisable, and now Alienable inter vivos. After some uncertainty in their earlier stages, contingent remainders were held to be inheritable, devisable by will, and assignable in equity. So they could be released by deed to any owner in possession of the land, and the release was recognized as valid in the common-law courts.3 But, "to prevent maintenance and the multiplying of contentions and suits," the law courts refused to recognize a conveyance inter vivos of such an uncertainty to any one who was not already an owner of some interest and in possession of the property. And the only method by which they could be legally transferred to strangers was by resort to (a) Not only do the New York statutes prevent the destruction of a contingent remainder by the natural termination of the preceding estate before the event occurs (note (a), § 606, supra), but they also provide that, "An expectant estate cannot be defeated or barred by any transfer or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise; but an expectant estate may be defeated in any manner, or by any act or means which the party creating such estate, in the creation thereof, has provided for or authorized. An expectant estate thus liable to be defeated shall not, on that ground, be adjudged void in its creation." Real Prop. L. § 57, which was originally 1 R. S. 725, §§ 32, 33. The last part of this section, which declares that an expectant estate may be defeated as provided by the settler, not only enables him to have contingent remainders terminated as he may declare; but it also authorizes a conditional limitation to be made in the form of a fee to one person, with absolute power of use and disposal, and a valid gift to another of any portion of the property that the first taker may not use. The second attempted gift, in such an arrangement, no matter how it was sought to be made, would be utterly void at common law, because repugnant to the nature of the first estate. See Van Horne v. Campbell, 100 N. Y. 287; Leggett v. Firth, 132 N. Y. 7; Swarthout v. Ranier, 143 N. Y. 499; Matter of Cager, 111 N. Y. 343, 349; Crozier v. Bray, 120 N. Y. 366, 373; § 954, infra. 18 & 9 Vict. ch. 106, § 8; Digby, Hist. Law R. P. (5th ed.) p. 268. 2 N. Y. L. 1909, ch. 52, §§ 57, 58; 1 Stim. Amer. Stat. L. §§ 1403, 1421, 1426. 31 Fearne, Cont. Rem. pp. 364, 366, 367; Cruise, Dig. tit. xvi. ch. viii. §§ 14-18, 22, 23; 1 Prest. Est. p. *89; Roe d. Perry v. Jones, 1 H. Blackst. 30; Kenyon v. See, 94 N. Y. 563, 568; Roosa v. Harrington, 171 N. Y. 341. 4 Miller v. Emans, 19 N. Y. 384, 390; Upington v. Corrigan, 151 N. Y. 148; Bailey v. Hoppin, 12 R. I. 560. the doctrine of estoppel. Thus, they could be conveyed by fines and common recoveries, which resulted in estoppels of record; and, if deeded by deeds containing warranties, or recitals on which the purchasers justifiedly acted, the vendors were thereby estopped to claim the land against their vendees, if the events occurred in favor of the vesting of the remainders.1 Such deeds did not per se transfer the contingent interests; but, if the remainders subsequently became vested, the warranties or recitals operated by way of estoppel against those who were treated as vendors in the deeds, and in favor of those who were treated as vendees. Legislation, in England, New York, New Jersey, Massachusetts, Michigan, and several other states of this country, has made contingent remainders freely alienable, as well as devisable and descendible.2 But these statutes must always be understood as meaning simply that such interests may be disposed of, when the uncertainty is as to the event, and not as to the person. A remainder to a person not in esse can not be transferred, because there is no one in being by whom it is owned. And it need hardly be added that, in its devolution or descent, any contingent interest must pass, still subject to the uncertainty. Thus, when land has been granted or devised to A for life, remainder to B and his heirs if C return from Rome, B, if an ascertained person, may now convey his remainder to D; and D will own it in fee simple, subject to the contingency of C's returning from Rome.1 (a) (a) In New York, the statute declares that: "An expectant estate is descendible, devisable, and alienable, in the same manner as an estate in 11 Prest. Est. p. #89; Cruise, Dig. tit. xvi. ch. viii. §§ 20, 21; Stover v. Eycleshimer, 4 Abb. Ct. App. Dec. (N. Y) 309; Nicoll v. N. Y. & E. R. Co., 12 N. Y. 121, 132; Robertson v. Wilson, 38 N. H. 48. 28 & 9 Vict. ch. 106, § 6; 3 & 4 Wm. IV. ch. 106, § 1; 1 Vict. ch. 26, §3; N. Y. L. 1896, ch. 547, § 49; N. J. Gen Stat. (1895) p. 881, § 138; 2 Wash. R. P. (6th ed.) pp. 554-557; Putnam v. Story, 132 Mass. 205; Whipple v. Fairchild, 139 Mass. 262, 263; Kenyon v. See, 94 N. Y. 563; Hennessy v. Patterson, 85 N. Y. 91; Ackerman's Adm'r v. Vreeland's Ex'rs, 14 N. J. Eq. 23; Godman v. Simmons, 113 Mo. 122. 1 Prest. Est. p. *76; Putnam v. Story, 132 Mass. 205. It has been held, however, in several cases in Massachusetts, including that last cited, and in one or two other states, that a person who would own the property, if the particular estate should terminate at once, may alien the contingent remainder, although a subsequent event might show him not to be the remainderman. Belcher v. Burnett, 126 Mass. 230; Wainwright v. Sawyer, 150 Mass. 168; Brown v. Fulkerson, 125 Mo. 400. See Haverstick's Appeal, 103 Pa. St. 394; Hilton v. Milburn's Ex'rs, 23 W. Va. 166. 4 Kenyon v. See, 94 N. Y. 563; Whipple v. Fairchild, 139 Mass. 262, 263. 1 § 905. Other Incidents of Contingent Remainders. A contingent remainder being alienable, it is now generally held that it can be reached by its owner's creditors for the payment of his debts.1 So it may be passed by an assignment in bankruptcy or insolvency.2 But in no proper sense can one be said to be seised of such an interest; and, therefore, there can be no dower nor curtesy in a remainder while it is contingent.3 It is now treated as an estate in most jurisdictions; but it is not such an estate as carries with it seisin or any of the rights or interests to which seisin is requisite.1 possession." Real Prop. L. § 59, which was originally 1 R. S. 725, § 35. This must be understood with the qualifications explained, the owner must be in being and ascertained, and he who acquires the remainder takes it subject to the contingency. Byrnes v. Stilwell, 103 N. Y. 453, 461; Kenyon v. See, 94 N. Y. 563; Hennessy v. Patterson, 85 N. Y. 91; Gomez v. Gomez, 147 N. Y. 195; Matter of Baer, 147 N. Y. 348; Roosa v. Harrington, 171 N. Y. 341. 1 This can be done in equity. Daniels v. Eldredge, 125 Mass. 356. But they can not be sold on execution. Nichols v. Levy, 5 Wall. (72 U. S.) 433; Jackson v. Middleton, 52 Barb. (N. Y.) 9. 2 Minot v. Tappan, 122 Mass. 535; Belcher v. Burnett, 126 Mass. 230. 8 1 Fearne, Cont. Rem. p. 346: 4 Ibid.; House v. Jackson, 50 N. Y. 161. CHAPTER LXV. HOW REMAINDERS MAY BE MADE SUCCESSIVE REMAINDERS § 906. Creation of remainders. § 907. Contingent uses. § 908. Successive remainders. § 909. Effects of the contingency of a prior estate on a subsequent contingent remainder. - § 910. Acceleration of vested remainders. § 911. Conclusion as to remainders. § 906. Creation of Remainders. Since the common law permits and favors remainders, an ordinary method of bringing them into existence, whether by deed, will, or other transaction, has always been by dealing directly with the legal estate in the property - by conveying that estate, for example, to A for life, and then to B and his heirs. But the same result may be, and sometimes is, produced by simply giving the equitable estate the use to the remainderman, and letting the Statute of Uses execute it when vested, thereby conferring upon him the legal estate.1 Thus, if land be granted to X and his heirs, for the use of A for life, and then for the use of B and his heirs, B being an ascertained person in esse; the statute, by executing the use, at once gives the legal estate also to A for life, remainder to B in fee simple. This is an illustration of the rare but simple case of a vested remainder created by employing a use. § 907. Contingent Uses. The most common employment of uses in connection with remainders has always been in the creation of those that were contingent. An illustration is a conveyance to X and his heirs, for the use of A for life, and then for the use of A's oldest son and his heirs, A having no son at the time. The Statute of Uses at once executes the use so far as A is concerned, and thus gives to him the legal es 1 And this was the usual method of creating remainders, especially contingent ones, at common law. Cruise, Dig. tit. xvi. ch. v. § 1; 4 Kent's Com. p. *268. tate for life; and, as soon as A's oldest son is in being, the use in fee is his, and then the Statute of Uses carries to him. the legal estate in fee.1 Such a remainder is called a contingent use. And, therefore, a contingent use may be tersely defined as a contingent remainder in a use. Contingent uses, being merely contingent remainders created in this roundabout way, are governed by the same rules and principles as contingent remainders created in any other way. "Future or contingent uses are placed on exactly the same footing with contingent remainders."2 It simply needs to be added that, in doubtful cases of future estates created by employing uses, the courts have always been more apt, than when they were otherwise made, to treat them as executory, and thus to sustain them, although they were not vested when the preceding estates terminated.3 But this is only a principle of construction for determining the nature of the future estate. And when it is once decided that a future interest is a contingent use a contingent remainder in a use-it will be defeated at common law, the same as any other contingent remainder, by its failure to become vested at or before the termination of the precedent estate on which it depends for support.1 § 908. Successive Remainders. A number of remainders, one following the other successively, may be made as interests in one and the same piece of real property; and some of them may be contingent, followed by others that are vested, and these in turn by others that are contingent. Thus, land may be conveyed to A for life, remainder for life to B, a person not in esse, remainder for life to C, a living known person, remainder to D and the heirs of his body if he return from Rome, remainder to E and his heirs forever.5 Here there is first a life 1 Goodtitle v. Billington, 2 Dougl. 753, 758; Adams v. Tenants of Savage, 2 Ld. Raym. 854; Sugd. Gilb. Uses, 153 n.; Cruise, Dig. tit. xvi. ch. iv. §§ 2, 18. 2 Sugd. Gilb. Uses, 177 n.; Chudleigh's Case, 1 Rep. 119 b. 129; Leake, 356; Cruise, Dig. tit. xvi. ch. iv. §§ 10 17. 3 The seisin is vested in the trustee, or feoffee; and the courts have held in some cases that this alone was sufficient to support the future estates, even where they have called them remainders. See 1 Fearne, Cont. Rem. pp. 303, 304; Cruise, Dig. tit. xvi. ch. iv. §§ 18, 19; 4 Last preceding note but one. The curious judicial search for seisin, because of some ways of creating contingent and future uses, and the resulting doctrine of scintilla juris are explained hereafter, in treating of shifting uses, § 623, infra. 5 Lewis. Waters, 6 East, 336; Napper v. Sanders, Hut. 117; Cruise, Dig. tit. xvi. ch. i. §§ 44-50. |