In a case with these circumstances, the term for years will be good, and the remainder void (s). That these positions may not be applied, by analogous reasoning, to other cases, apparently within the principle of this determination, it should be understood, that estates which are limited, expectant on the determination of contingent remainders, may be vested while such preceding remainders remain contingent; and may come into possession though the contingent remainders should fail of effect. When a devise is made, or use limited, under circumstances similar to the stated case of a grant for years, to commence at a future day, with an estate of freehold, expectant on that term, the several limitations will be good; the second limitation having operation and effect in wills under the doctrine of executory devises, which leaves the freehold in the heir at law, till the devise can operate with effect (t), and, as to uses, by springing use, which leaves the inheritance in the author of the uses. But if a grant be made to one for years, remainder to another for an estate of freehold, and the commencement of the remainder is future, and not taken up with reference to the determination of the term of years, the interest intended to be limited by way of remainder, will, as already noticed, fall within the extent (s) 2 Abstr. 146. (t) Gay's case, Cro. Eliz. 878; Cas. temp. Talb. 51; Harris and Barnes, 4 Burr. 2157. of this rule, and cannot take effect. The remainder will be void for want of a preceding estate of freehold to support it. And it will be remembered, that in the instance of a grant to one for years determinable on a life, and after the decease of the person on whose life the term is determinable, then to another person for an estate of freehold, the remainder will be deemed vested, if the term be of that extent, that, in all human probability, it will exceed the life of the person on whose death it is to determine, although the commencement of the remainder is taken up from the decease of the cestui que vie, and not, as it ought to be, from the regular and proper determination of the estate for years. In this instance there is not a future estate for years. The only question would be, whether there is an interval between the end of the term and the commencement of the remainder. It may be proper to observe, in this place, that when the time at which the freehold is limited to commence elapses, in the cases of feoffment, before the livery of seisin is made, and in other assurances operating by deed, before the deed is delivered, these assurances will be good (u). (u) Greenwood and Tyler, Hob. 314; Cro. Jac. 563, S. C. Banks and Brown, Moor, 759, S.P.; Hetley, 21; Palm. 29; 2 Rep. 35; Hayward's case, Bowles and Smith's case, cited Hetl. 21; Hogg and Cross. Feoffment to commence at a future day, and livery in person according to the form, &c. is not good. 1 Inst. Thus, Anthony Long and Alice his wife, by indenture made between themselves of the one part, and John Fisher, of the other part, leased to John Fisher and others, lands in Bor, to hold the same to the said John Fisher, and the others and the survivor of them, successively, from the Feast of St. Michael the Archangel then next coming, unto the end and term of their natural lives and livery of seisin ; was made by Long and wife, in person, after the said Feast, to Fisher and the others, according to the form and effect of the indenture. On a writ of error it was determined, that livery of seisin made by the husband and wife after the Feast was good. And in Greenwood and Tyler (x), (a case of conveyance by feoffment,) a difference was taken between livery by the parties in person and livery by attorney. This point relates more immediately to the execution of deeds under a letter of attorney, and is foreign to the subject of this Essay. It is sufficient to remark, that, though the party may make livery after the day, an attorney cannot do so without an express power for the purpose. In Freeman v. West (y), the limitation of estate was from the day of the date. The letter of attorney was to deliver seisin according to the effect, tenor, and true meaning of the lease; 48 b; 13 Vin. Abr. 193, 194; but see 2 Wils. 165; Mellow and May, Moor, 637; Cro. Eliz. 873; 10 Vin. 103. (x) Hob. 314. (y) 2 Wils, 165. and it was determined, that this power warranted livery of seisin on the 25th day of May, in the year 1751, though the lease was dated the 25th November 1750. Cases of the same description as Greenwood and Tyler, are not within the reason or the extent of the rule; for assurances cannot operate, under the circumstances of these cases, to place the freehold in abeyance. A feoffment or other assurance, to hold from a day past (b), is, virtually, in the case of a feoffment, to hold from the time when livery of seisin is made; and in the case of an assurance, operating by deed, from the delivery of the deed. It is from the time when livery of seisin (c). is made, that a feoffment begins to operate on the seisin or estate; and it is from the time of its delivery, that an instrument, requiring to be executed with the solemnities essential to a deed, has its effect. Till livery of seisin on feoffments, or till the delivery of deeds of grant, nothing passes from the former owner. The freehold continues in him till the intended conveyance begins to operate; and its operation commences in the former case from the livery of seisin, and in the latter case from the delivery of the deed. These are the reasons on which the courts of justice have proceeded in instances of this sort, (z) Freeman and West, 2 Wils. 165. and have decided the questions before them. Therefore, in observing on the case of Freeman v. West, Lord Ch. J. Pratt, afterwards Lord Camden, said, "By the warrant of attorney to deliver seisin in the present case, the intention of the parties was, that the deed should be substantiated by the livery, and in the mean time the freehold was in the grantor (b).” It is also to be observed, that although the limitation of an estate of freehold may sound prospective or future, and on the face of the instrument appear to be void on that account; yet, as often as it is proved, or turns out in evidence, that estates of freehold were by some former instrument extended to that period, at which the estate, granted by the instrument in question, is to commence, and the time at which, or the event, not being a contingent one, on which the estate is thereby limited to commence, is the regular and proper determination of the estate already existing, the future words in the clause of limitation will be construed to fix the time at which the estate, thereby conveyed, shall commence in possession, and not to the time at which it shall commence in interest. With this construction they do not import any contingency, unless the contingency be of such a nature, as in Arton and Hare (c), that it refers to an event which may or may not happen. (b) See also Vin. Abr. Reversion, G. pl. 13. |