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(c) 7 R. 2. Scire facias. (Ante, 354 b.)

but a contingent remain

cular estate.

(Cro. Eliz. 360.) (2 Rol. Abr. 419.)

(d) 52 H. 6. tit. Feoff

ments and Faits 99. 17 E. 3. 87.

First, Littleton saith by deed, (c) because if lands be granted and rendered by fine for life, the remainder in tail, the remainder in fee, none of these remainders are in them in the remainder, until the particular estate be executed.

Secondly, that the remainder be in him, &c. at the time of effect during the parti. the livery. This is regularly true; but yet it hath divers exceptions. First, unless the person that is to take the remainder be not in rerum naturâ: (d) as if a lease for life be made, the remainder to the right heirs of J. S., J. S. being then alive, it sufficeth that the inheritance passeth presently out of the lessor, but cannot vest in the heir of J. S. for that living his father, he is not in rerum naturâ, for non est hæres viventis; so as the remainder is good upon this contingent, viz. if J. S. die during the life of the lessee,

11 R. 2.

Detinue 46. 2 H. 7. 13. 12 H. 7. 27.

12 E. 4. 2. 21 H. 7. 11. 7 H. 4. 23.

11 H. 4. 74. 18 H. 8.

3.

27 H. 8. 42.

38 E. 3. 26. 30 Ass.
47. 6 R. 2. qu. Jur.
clam. 20. (1 Rep.
94.)

(e) Pl. Com. Col-
thirst's case, fol. 25.
29. (3 Rep. 20.
2 Rep. 57 a. b.)

(e) And so it is, if a man make a lease for life to A. B. and C., and if B. survive C. then the remainder to B. and his heirs. Here is another exception out of the said rule; for albeit the person be certain, yet, inasmuch as it depends upon the dying of C. before B., the remainder cannot vest in B. presently (E). And the reason of both these cases in effect

though it is only to take effect in possession and pernancy of the profits at a future period. And such an estate may be transferred, aliened, and charged, much in the same manner as an estate in possession. 2 Cru. Dig. 260, 261. Prest. Est. 33.

A remainder is contingent when it is limited to take effect ou an event or condition, which may not happen or be performed, or which may not happen or be performed till after the determination of the preceding particular estate; in which case such remainder never can take effect. Fearn. Cont. Rem. 3. It is not, however, the uncertainty of ever taking effect in possession, that makes a remainder contingent, for to that every remainder for life, or in tail, expectant on an estate for life, is and must be liable; as the remainder-man may die, or die without issue, before the death of the tenant for life, The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent. Fearn. Cont. Rem. 329. Prest. Est. 32, 33.— [Ed.]

(E) So where a devise was to G. L., the testator's heir at law, for life, and from and after his death to C. B., her heirs and assigns, in case she shall survive and outlive the said G. L. but not otherwise; and in case she shall die in the life-time of the said G. L., then to G. L. his heirs and assigns for ever; it was held, that the devise, to C. B. was a contingent remainder. Doe, d. Planner v. Scudamore, 2 Bos. & P. 289.

According to Mr. Fearne, there are four kinds of contingent re mainders:-1st. Where the remainder depends entirely on a contingent determination of the preceding estate itself. As if A. makes a feoffment to the use of B. till Č. returns from Rome, and after uch return of C., then to remain over in fee; here the particulaṛ

estate is limited to determine on the return of C., and only on that deterr mination of it is the remainder to take effect; but that is an event which possibly may never happen; and, therefore, the remainder, which depends entirely upon the determination of the preceding estate by it, is contingent. 3 Rep. 20 a. Et vid. Arton v. Hare, Poph. 97. Large's case, 3 Leon. 182. 2d. Where some uncertain event, unconnected with, and collateral to the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder; as in the case of Doe, d. Planner v. Scudamore, cited above, and in the instance put by Lord Coke of a lease for life to A., B., and C., and if B. survive C., then the remainder to B, and his heirs: here the event of B.'s surviving C. does not affect the determination of the particular estate; nevertheless, it must precede and give effect to B.'s remainder; but as such event is dublous, the remainder is contingent. Fearn. Cont. Rem. 4, 5. 3d. Where it is limited to take effect upon an event, which, though it certainly must happen some time or other, yet may not happen till after the determination of the particular estate; as if a lease be made to I. S. for life, and after the death of J. D. the lands to remain to another in fee: now it is certain that J. D. must die some time or other; but his death may not happen till after the determination of the particular estate by the death of J. S., and therefore such remainder is contingent. 3 Rep. 20 a. And 4th. Where it is limited to a person not ascertained, or not in being at the time when such limitation is made; as if a lease be made to one for life, remainder to the right heirs of J. S. Supra, 378 a. Et vid. 3 Rep. 20 a. So where a remainder is limited to the first son of B. who has no son then born; here B. may never have a son, or if he should, the particular estate may determine before the birth of such son; therefore this remainder is contingent. 1 Ventr. 306. So if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent; because it is uncertain which of them will be the survivor. Cro. Car. 102. Fearn. Cont. Rem. 6. It should, however, be observed, that there are some cases which fall literally under one or other of the 3d. and 4th. descriptions, which are nevertheless ranked among vested estates. With respect to those cases which are exceptions to the third kind of contingent remainders, it has been held, that a limitation to A. for eighty or ninety years, if he shall so long live, with a remainder over, after the death of A., to B. in fee, is not deemed a contingent remainder; for the mere possibility, that a life in being may endure for eighty or ninety years after such a limitation is made, does not amount to a degree of uncertainty sufficient to render a remainder contingent. Napper v. Sanders, Hutt. 119. Lord Derby's case, Lit. Rep. 370. Pollexf. 67. But if the term of years is so short, as to leave a common possibility, that the life on which it is determinable may exceed it, the remainder will be deemed contingent. And therefore, if an estate is limited to A. for twenty-one years, if he shall so long live, and after his death to B. in fee, this is a contingent remainder; because there is no improbability in supposing that the life may exceed the term. 3 Rep. 20 a. Et vid. Beverley v. Beverley, 2 Vern. 131. Fearn. Cont. Rem. 20. 23. The exceptions to the fourth sort of contingent remainders arise, first, from a rule of law, that wherever the ancestor takes an estate of freehold, and a remainder is thereon limited in the same conveyance to his heirs, or to the heirs of his body, such remainder is immediately executed in the ancestor so taking the freehold, and is not contingent. Shelley's case, 1 Rep. 104. Fearn. Cont. Rem. 30. Infra n. (P). Secondly, from a principle that an ultimate limitation to the right heirs of the grantor will continue in him, as his old reversion, and not as a remainder, although the freehold be expressly limited from him. Post, 22 b. Thirdly, from the respect which the law pays to the intent of a testator, where it can be plainly collected from his will, that he used the words heirs of the body, as a descriptio persona, or sufficient designation of the person for the remainder to vest, notwithstanding the general rule, that nemo est hæres viventis. Fearn. Cont. Rem. 319. But the cases falling under this last exception, have been either, where the limitation to the heir special has been qualified by the words "now living," or some other circumstances have appeared in the will, to manifest the testator's intention, that the estate should vest. See Burchett v. Durdant, 3 Ventr. 311. Cart. 154. Long v. Beaumond, 1P. Wms. 229. 1 Eq. Abr. 114. 2 Eq. Abr. 331. 1 Bro. P. C. 489. Goodright v. White, 2 Bl. Rep. 1010. And it is also observable, that there was not one of these cases in which the ancestor took the legal estate of freehold. To sum up the distinctions between vested and contingent VOL. II.

K

remainders, it may be observed, that wherever the preceding estate is limited, so as to determine on an event which certainly must happen; and the remainder is so limited to a person in esse and ascertained, that the preceding estate may, by any means, determine before the expira tion of the estate limited in remainder, such remainder is vested. Ber rington v. Parkhurst, 3 Atk. 135. Willes, 327. 6 Bro. P. C. 352. On the contrary, wherever the preceding estate (except in the cases beforementioned, as exceptions to the descriptions of a contingent remainder) is limited so as to determine only on an event which is uncertain, and may never happen; or wherever the remainder is limited to a person not in esse, or not ascertained; or wherever it is limited so as to require the concurrence of some dubious uncertain event, independent of the deter mination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent, Fearn. Cont. Rem. 330, 331.

.

With respect to the effect of contingent remainders intervening between the particular estate and the remainders over, in making them contingent, it is observable, that wherever a contingent remainder is limited, which is followed by another limitation over, if the contingent limitation be not in fee, the subsequent limitation may be vested, if it be made to a person in esse. Fearn. Cont. Rem. 358. As upon a feoffment to the use of the feoffees during the life of A., and after his death, to the use of his first and other sons successively in tail, with several remainders over; and A. having no sons at the time of the feoffment, it was resolved that all the uses limited to persons not in esse were contingent, but the uses to persons in esse were vested immediately; and that the contingent uses when they should come in esse, would vest by interpo sition, if the estate for life, which ought to support them, was not disturbed. Chudleigh's case, 1 Rep. 137. And where, in the same conveyance, an estate for life is limited to a person, and after that a contingent remainder to another, followed by a remainder to the heirs or heirs special of the first tenant for life, this last limitation shall be esteemed executed only sub modo; that is, in such manner as to open and separate itself from the first estate for life, when the contingency happens. Lewis Bowles' case, 11 Rep. 80. The preceding cases are instances, where the contingency of the intervening remainders arose from their being limited to persons not in esse. But if there be a remainder limited to a person in esse, so as to depend on a contingent event, if the same contingency be not considered as extending to the subsequent limitations, such of those limitations as are to persons in esse may be vested; as in the case of Napper v. Sanders, Hutt. 119; where, upon a feoffment made by A. to the use of himself for life, and after to the use of the feoffees for eighty years, if B. and C. his wife should so long live; and if C. survived B. her husband, then to the use of her for life; and after her decease to the use of D. in tail, remainder over; though it was agreed, that C.'s estate for life was contingent, on the event of her surviving her husband, yet it was held, that the subsequent remainders were vested. Et vid. Tracey v. Lethulier, 3 Atk. 774. Ambl. 204. Whitfield v. Bewit, 2 P. Wms. 240. So a subsequent contingent remainder may become vested in interest before a preceding one, which will be no obstruction to its so vesting. Uvedale v. Uvedale, 2 Rol. Abr. 111. But where there is a contingent Jimitation in fee absolute, no estate limited afterwards can be vested. Loddington v. Kime, 1 Salk. 224. Ld. Raym. 208. Doe v. Holmes, 3 Wils. 237.241. 2 Bla. 777. Goodright v. Dunham, Dougl. 251. Doe v. Perryn, 3 T. R. 484. It seems, however, that a contingent determinable fee, devised in trust for some special purposes only, will not prevent a subsequent limitation to one in esse from being vested. See Tracey v. Lethulier, supra. Fearn. Cont. Rem. 342. Sed vid. n. (a), 6th edit. p. 226. And where estates are subject to a power of appointment in the first taker, with remainders over in default of such appointment, such a power does not suspend the effect of the subsequent limitations, and keep them in contingency. Fearn. Cont. Rem. 343, 344. Et vid. acc. Maundrell v. Maundrell, 7 Ves. 567. 10 Ves. 246. Sugd. Pow. 141. It is further to be observed, that although a fee cannot, in conveyances at common law, be mounted on a fee, yet two or more several contingent fees may be limited, merely as substitutes or alternatives, one for the other, and not to interfere; but so that one only can take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect, Loddington v. Kyme, 1 Ld. Raym. 203. Barnardiston v. Carter, 3 Bro. P. C. 64. Doe v. Holme,

2 Bla. 777. Fearn. Cont. Rem. 547. 550; as where a will was made in these words: "I give my messuage, &c. to my son J. S. for his life, and after his death unto all and every his children equally, and to their heirs; and, in case he dies without issue, I give the said premises unto my two daughters and their heirs, equally to be divided between them;" it was determined, that both the devises were contingent remainders in fee. Goodright v. Dunham, Dougl. 265. Et vid. Doe v. Perryn, 3 T. R. 484, Ires v. Legge, cited 3 T. R. 488. Crump, d. Woolley v. Norwood, 2 Marsh. 161. Such limitations are sometimes called limitations on a contingency with a double aspect; sometimes limitations on a double contingency; and sometimes concurrent or contemporary limitations: as to which denominations see Mr. Douglas's note (2), Doe v. Fonnereau, Dougl. 504. But in all cases where the first contingent remainder is in fee, or where there are concurrent remainders, if the first remainder becomes vested, all the subsequent remainders arevoid: for then they become remainders expectant on the determination of an estate in fee-simple. 2 Cru. Dig. 286. Keene v. Dickson, 3 T. R. 495.

As to the cases wherein a contingency annexed to a preceding estate is, or is not, considered as a condition precedent to give effect to the 'te rior limitations, such cases may be distinguished into three classes. 1st. Limitations after a preceding estate, which is made to depend on a contingency that never takes effect. 2dly. Limitations over upon a conditional contingent determination of a preceding estate, where such preceding estate never takes effect at all, 3dly. Limitations over upon the determination of a preceding estate by a contingency, which, though such preceding estate takes effect, never happens. Fearn. Cont. Rem. 355. 1st. The cases of Napper v. Sanders, and Tracey v. Lethulier, above mentioned, appear to fall under the first class; in which cases, we have seen, the con tingency affected only that estate, to which it was first annexed, without extending to the ulterior limitations. Et vid. Bradford v. Foley, Dougl. 63. Horton v. Whitaker, 1 T. R. 346. The construction in these cases, as to the restriction of the contingency, to the estate first binged upon it, appears to depend on the testator's apparent intention, not to extend it further. For, wherever there is no apparent distinction in view in this respect, between such estate, and those which follow it, the contingency, it seems, will equally affect the whole ulterior train of limitations. Davis v. Norton, 2 P. Wms. 390. Doe v. Sheppard, Dougl. 75. Fearn. Cont. Rem. 358. 2d. As an instance of that class, where subsequent estates were limited on a conditional determination of a preceding estate, and such preceding estate never took effect at all; we may refer to the case of a devise to trustees for eleven years, remainder to the first and other sons of B. successively in tail-male, provided they should take the testator's sirname; and, in case they or their heirs should refuse to take the testator's sirname, or die without issue, remainder to the first son of C., remainder over. B. died without having had any son, C. had a son at the time of the devise. The court did not agree as to the validity of the devise to the first son of B., being after a term of years, without any preceding freehold to support it; but resolved that the subsequent limitation to the first son of C., who was then in esse, and capable, took effect; and that the preceding limitation to the first son of B., or the condition thereto annexed, did not operate as a precedent condition which must happen, to give effect to the subsequent limitation to the son of C., but was only a precedent estate attended with such limitation. Scafterwood v. Edge, 1 Salk. 229. Of the same opinion was Lord Hardwicke, in the case of Avelyn v. Ward, 1 Ves. 422; who said he knew of no case of a remain der or conditional limitation over, of a real estate, whether by way of a particular estate, so as to leave a proper remainder, or to defeat an abso lute fee before limited by a conditional limitation, but if the precedent limitation, by what means soever, be out of the case, the subsequent limitation should take place. Fearn. Cont. Rem. 361. 3d. As to cases of the third class, it may be observed, that although where a remainder is limited to take effect on a condition annexed to a preceding estate, and that preceding estate fails, it appears, that the remainder shall nevertheless take place; yet, where such preceding particular estate takes place, and the condition is not performed, the remainder, it has been held, will not take effect at the expiration of such preceding estate, unless in those cases where the apparent general intention of the testator calls for it. Fearn. Cont. Rem. 362.

It sometimes happens, that a remainder is limited in words which seem to import a contingency, though in fact they mean po more, than would

is, because the remainder is to commence upon limitation of time, viz. upon the possibility of the death of one man before another, which is a common possibility (r).

have been implied without them; or do not amount to a condition prece dent, but only denote the time when the remainder is to vest in possession. Thus, where there was a devise of land to A. and B. for eight years, and after the said term to remain to the testator's executors, till such time as H. should accomplish his age of twenty-one years; and when the said H. should come to his full age of twenty-one years, then the testator willed that H. should enjoy the lands to him and his heirs for ever. H. died under twenty-one; and it was contended that the remainder did not vest in H., because he did not live to attain the age of twenty-one years; for that, as he was not to have it until his age of twenty-one, it was contingent on that event, it being uncertain whether he ever would attain that age. But it was held, that the case was nothing else in effect, than a devise to the executors till H. attained the age of twenty-one years, remainder to H. in fee; and that the adverbs of time, when, &c. and then, &c. do not make any thing necessary to precede the settling of the remainder, any more than in the common case of a lease for life or years, and after the decease of the lessee or the term ended, remainder to another, in which cases the remainder vests presently. And that these adverbs expressed the time when the remainder to H. should take effect in possession, and not when it should become vested. Boraston's case, 3 Rep. 19. Fearn. Cont. Rem. 367, 8. Et vid. 1 P. Wms. 170. Holcroft's case, Moor, 487. Webb v. Herring, Cro. Jac. 416. King v. Rumball, Cro. Jac. 448. Chadock v. Cowley, Cro. Jac. 695. Fortescue v. Abbot, Poliexf. 479. T. Jo. 79. Anon. 2 Ventr. 365. Goodtitle v. Whitby, 1 Burr. 228. Doe v. Lea, 3 T. R. 41. And see the late case of Doe, d. Hunt v. Moore, in which it was held, that, under a devise of real estate in fee to J. M. when he attains the age of twenty-one; but in case he dies before twenty-one, then to his brother, when he attains twenty-one; with like remainders over; J. M. the devisee took an immediate vested interest, liable to be divested upon his dying under twenty-one. 14 East, 601, -{Ed.]

(F) Here we shall offer some remarks, 1st. With respect to the nature of the event upon which a contingent remainder may be limited. 2d. As to the estate necessary to support a contingent remainder. The doctrine with respect to the time when a contingent remainder must vest, will be explained in a subsequent part of this chapter.

1st. With respect to the nature of the contingency upon which a re mainder may be limited:-It is to be observed, 1st. That it must be a legal act, "for the law (says Lord Coke, 2 Rep. 51 b.) will never adjudge a grant good by reason of a possibility or expectation of a thing which is against law; for it is potentia remotissima et vana, which by intendment of law nunquam venit in actum." 2d. It must be potentia propinqua; as death, or death without issue, or coverture. Hence it has been deter mined, that a remainder to a corporation, which is not in being at the time of the limitation, is void, although it be erected afterwards, during the particular estate. 2 Rep. 51 a. So, although a lease for life, remainder to the right heirs of J. S. is good; yet, if there be no such person as J. S. at the time of the limitation of the remainder, notwithstanding such a person should afterwards be born, and die during the life of the tenant for life, his heir shall not take by virtue of such limitation; because the possibility on which the remainder is to take effect is too remote; for it amounts to the concurrence of two several contingencies, viz. 1st. That such a person as J. S. should be born, which is very uncertain; and 2dly. That he should also die during the particular estate, which is another uncertainty grafted upon the former. This is called a possibility upon a possibility, which Lord Coke observes, is never admitted by intendment of law. Ant. 25 b. vol. 1. p. 541; 184 a. vol. 1. p. 743. Cholmley's case, 2 Co. 51 b. Upon the same ground arises the distinction between a remainder limited by a general description, as to the right heirs of J. D., who is alive, or primogenito filio of B., who has no son then born, which is good; and one limited by a particular name to a person not in esse, which is void. Fearn. Cont. Rem. 375. 378. 3d. It must not be repugnant to any rule of law. 6 Rep. 40 b. 4 Burr. 1941. 4th. Nor contrariant in

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