Barnardistone in fee; and that these are not remainders expectant, the one to take effect after the other, but were cotemporary (x). Preparatory to his introduction of Luddington and Kime (y), Mr. Fearne, in his Essay on the Learning of Contingent Remainders, observes, that although a fee cannot, in conveyances at common law, be mounted on a fee, yet, two or more contingent fees may be limited, merely as substitutes or alternatives, one for the other, and not to interfere; but so that one only may take effect; and every subsequent limitation be a disposition, substituted in the room of the former, if the former should fail of effect; and this very able writer cites the case of Luddington and Kime, as an authority in point. That this case may not be confounded with the case of Denn ex dem. Webb ́v. Puckey (z), (to be introduced in the next chapter of this Essay) before the lines of distinction between the two cases are accurately examined, the reader must observe, that the devise to the issue was introduced with words of contingency, provided there should be such issue male, and that the limitation was to his heirs, thereby fixing on him. as an individual person; and that the words. and if he should die without issue male, taken in context with the preceding parts of the will, refer to the event, that there should not be any such issue male, and not to a general and inde (x) Dougl. 487, n. 2. (z) 5 Term Rep. 299. finite failure of the heirs male of the father or ancestor. Till the authority of Luddington and Kime, (as far as respects that part of the opinion of the Chief Justice, in Denn v. Puckey, by which he inclined to consider that case, namely, as giving an estate-tail to the parent of the issue,) shall be overruled, it is to this mode of reasoning alone that recourse must be had, in order to distinguish between Luddington and Kime, and Denn and Puckey, as cases nearly similar in expression, furnishing distinctions, and authorities for different conclusions. It may also be noticed in this place, that the same gift may, in a will or declaration of uses or trusts, be a contingent remainder as to the particular estate, and an executory devise, or a shifting use or trust, as to another estate. And as far as it is a remainder of a legal estate, it may be destroyed while it is in contingency; and it will fail of effect even as an executory devise, if the fee for which it is substituted, should be defeated as a contingent remainder, while it has that character (a). But after the fee has once vested, then the substituted fee has gained a protection from destruction. It is now to be considered, merely and simply, as an executory devise; and is no longer exposed to the danger and consequences of being a contingent remainder, and liable to destruction. (a) Doe v. Halley, per Lord Kenyon, 8 Term Rep. 10. In Doe ex dem. Davy v. Burnsall (b), the substituted fee being destroyed as a contingent remainder, it failed of operation as an executory devise, though the event happened, on which the gift by way of executory devise was to have effect. As between the tenant for life and the remainder-men, the rules of the common law govern their interests; while the protection afforded to executory devises from destruction, is applicable only as between persons, whose interests depend on a title, subject to this learning. If, in Doe v. Burnsall, the gift had been in terms, or in effect, and by reason of a context, to the children for estates-tail, then the remainder would have been vested, and could not have been destroyed. And it has frequently been determined, that a vested estate in fee may be superseded by another estate, within a limited period, under the doctrine of uses, by the limitation of a shifting use; and, under the doctrine of wills, by an executory devise. But interests arising by these means are, in reference to the estates they defeat, gifts by executory devise, or shifting use, and not remainders (c). (b) 6 Term Rep. 30. (c) 2 Black. Com. 334; Saunders on Uses, 187; Show. Par. Cas. 137; 1 Atk. 591; Tr. of Eq. 62. § 6; Butler's Fearne, 373; 1 Leon. 33. In this last case, the time of limitation was till a debt should be paid. As to copyhold, Com. Dig. Copyhold, c. 11; Com. Dig. 4; Roll. 749, 791, l. 40; Watk. Copy, 202, 210. At the common law, as it has been already observed, there may be two concurrent fee, each expectant on the same particular estate; one to take place as a vested interest, in case the other should fail to give an interest of that description; but, by the common law, a fee cannot take place in derogation of another estate in fee, after that estate is vested. In cases like Luddington and Kime, both fees must give contingent interests. The first fee must necessarily be contingent, because it is limited to an uncertain person, or to a person not born, or be limited to take place on a contingency; and the ulterior fee must be contingent, because it is to give a vested interest only, in the event, that the fee first limited, should not confer an interest of that description. By a deduction from the same principles, it was formerly held, that estates limited to take effect in default of the exercise of a power of appointment, which extended to authorize a disposition of the fee, must be contingent (d). More modern determinations (e) have settled the law to be, that the estates limited to take place in default of an exercise of such power of appointment, may be vested, subject to be divested wholly, or defeated partially, by an execution of the power; the law implying the intention, which skilful conveyancers express, (d) Leonard Lovie's case, 10 Rep. 78. (e) Cunningham and Moody, 1 Ves. 174; Walpole and Lord Conway, Barn. Ch. Rep. 153; Doe v. Martin, 4 Term Rep. 39. that, in the mean time, till appointment, and from time to time, subject to such appointment as shall have been made, the land or other subject of property shall be to the particular uses which are specified, and capable of taking effect; and that the appointment, when made, shall exclude the estates arising from these uses, either altogether or in part, according to the extent to which the power shall be exercised. This doctrine has been questioned (f). It is too fully and clearly settled to be shaken. But it is to the doctrine of uses alone, and interests created by will, that cases of this description are referrible. Under devises in wills too, as already noticed, the ultimate fee will remain in the testator's heir at law, till his will shall give a vested interest in the fee; and under limitations of the use, the fee will result to the former proprietor, till it shall vest in the person to whom it is limited in contingency (g). The cases of Wellington v. Wellington, and Lethulier v. Tracy, are exceptions to the rule under examination. These authorities admit, that, under the peculiar circumstances of these cases, there may be one fee after another fee by way of remainder. The cases are anomalies. Though they may be followed in decision, they are not to be supported in principle. (f) Smith and Lord Camelford, 2 Ves. jun. 707. (g) Earl of Bedford's case, Poph. 3; Fenwick and Mitford, 1 Leon. 182. |