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and other sons, remainder to B. R. Mo. 488. R. Sal. 229. Semb. 2 Ver. 131. 372.
Or, to B. for years, remainder to the right heirs of B. Per 2 J. 4 Leo. 21.
Yet a remainder for years, after a term for years, will be good : for it may be in abeyance. Ray. 142.
So a devise for fifteen years, remainder to the first son of B. shall be good : for the law aids him qui est inops consilii. Ray. 83. Vide Devise, (N 16.)
(B 15.) Or the particular estate be destroyed before the
remainder be vested. So, if the particular estate be merged or destroyed before the remainder vests, it never can vest: (9) as, if tenant for life, remainder to the right heirs of B. or upon another contingency, remainder to D. in fee; if D. dies, and his estate descends to the tenant for life, whereby his estate is merged before the contingency happens; the remainder never vests. 1 Co. 135. b.
So, in any case, where the reversion descends upon the particular estate, and drowns it before the contingency happens. R. by all the
(9) 1. Mr. Fearne in the fifth chapter of his essay, considers how contingent remainders are destroyed, or prevented taking effect. - 2. And in the first section shews, that every such determination of the preceding estate before the contingency happens, as leaves no right of entry, must effectually destroy the contingent re. mainder depending upon it. - 3. And instances, in the second section, the case of forfeiture or surrender of the tenant for life of a freehold estate. — 4. In the third be shews, that the surrender of a copyhold will not destroy a contingent remainder.
- 5. But, in the fourth, that if copyhold land be surrendered to the use of a person during his life, remainder in contingency, and the tenant for life die before che contingency happens, the remainder fails. - 6. In the fifth he shews, that cesta que trusts for life, cannot by a feoffment or other conveyance, destroy a contingent remainder. - 7. And in the sixth, that if there be tenant for life, with a contingent remainder thereon depending, a bargain and sale or lease and release by him will not destroy the contingent remainder. - 8. In the seventh he proves, that some acts by tenant for life, though they give a remainder man title to enter for a forfeiture, yet do not destroy a contingent remainder, unless advantage is taken of the forfeiture by any subsequent vested remainder man. — 9. And in the eighth, that whether a contingent remainder is created by a conveyance at common law, or limited by way of use, the same rule holds in respect to its capacity of being destroyed. -. 10. In the ninth section he shews, that the legal subjection of contingent remainders to the power of the preceding tenant of the freehold, has introduced the estate and trust usually inserted in deeds and wills for preserving contingent remainders. — 11. Io the tenth, that if trustees for preserving contingent remainders join in a conveyance to destroy them, a court of equity will consider it a breach of trust. - 12. But, in the eleventh, that it is no breach of trust in a tenant for life himself to destroy them. 13. And in the twelfth shews, that, under particular circumstances, courts of equity have directed trustees to concur in the destruction of contingent remainders. - 14. Yet, in the thirteenth, that equity views the destruction of contingent remainders by tenant for life in the light of a wrong, or tort, which it is anxious to prevent. - 15. In the fourteenth section he shews, that the alteration in the particular estate which will destroy a contingent remainder, must amount to an alteration in its quantity. 16. In the fifteenth, that where the union or coalition of the particular estate, and the inberitance (except the circumstance of its being created by, or arising uoder, the same instrument or deed as the particular estate) happens by the conveyance or aet of the parties, the intermediate contingent remainders depending on such particular estate are destroyed. - 17. In the sixteenth, that where the descent of the inheritance is imme
judges except Flemyng. 2 Cro. 260. 1 Bul. 61. Per Holt, 2 Sand. 386. Arg.
So, though the reversion descends upon a particular estate, with a contingent remainder, created by devise; except when it may take effect as an executory devise. R. 2 Cro. 260. R. 2 Lev. 202.
So, if the particular estate be merged in the reversion by the surrender of the tenant.
Or determined by the death of the tenant. R. 1 Sal. 238.
So, if the particular estate be destroyed before the contingency happens, by the act or wrong of the tenant: as, if tenant for life, remainder to his right heir in tail, remainder in fee to tenant for life, makes a feoffment, or levies a fine, whereby his estate for life is gone. R. 1 Co. 66. b. R. Cro. El. 680. 1 Co. 135. b. R. Mo. 545.
So, if tenant for life be attainted for treason, or felony. R. Mo. 815. Semb. Sal. 576.
So, if there be tenant for life, remainder upon a contingency, remainder in tail, and tenant for life joins with the remainder-man in tail in a fine; though each passes only that which he lawfully may, the remainder is lost. Per Hale, 2 Sand. 386.
So, if tenant in tail, remainder to the right heirs of B. makes a feoffment in the life of B. the remainder never can vest. i Co. 135. b.
So, though the act which destroys the particular estate be voidable; as, if a feme covert be tenant for life, and the reversion is granted to her and her husband; though she may afterwards waive it, the contingent remainder depending thereon is gone. R. 2 Sand. 387. 2 Lev. 39.
So, if tenant for life be non compos, and makes a surrender to him in reversion : if his surrender is not void, but only voidable. R. M. 9 W. 3. inter Thompson and Leach. Sal. 576. (Vide Comyns's Rep. 46.)
So, if an estate be to husband and wife for life, remainder to the heirs of the survivor, and the husband alone makes a feoffment, and dies; the remainder is gone, though the wife might avoid the feoffment eo instante that the contingency happens. R. Cro. Car. 102. Vide 2 Rol. 796. l. 45. But Holt said that it was a nice case. M. 9 W. 3. inter Thompson and Leach. (Vide Comyns's Rep. 46.)
So, if tenant for life makes a feoffment upon condition. Per Holt, M. 9 W. 3. (Vide Comyns's Rep. 46.)
Though the condition be broken before the contingent remainder happens: for a bare title of entry is not, though a présent right of entry is sufficient to support a contingent remainder. Per Holt, M. 9 W. 3. (Vide Comyns's Rep. 46.)
diate from the person by whose will the particular estate and contingent remainders are limited, the descent of the inheritance does not merge the contingent remainders; but that where those estates are not created by the will of the ancestor, from whom the inheritance descends on the particular estate, the descent merges the contingent remainders.—18. In the seventeenth, that where a particular estate is limited with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance, the contingent remainder is, generally speaking, not destroyed; where the accession of the inheritance is by a conveyance, accident, or circumstance, distinct from that conveyance which created the particular estate, the contingent remainder is, generally speaking, destroyed. — 19. In the eighteenth section he considers the effect of a feoffment upon condition, by a tenant for life, in destroying contingent remainders,
Though the particular estate be revived after the remainder first sttached : as, by entry for a condition broken, &c. Per Hale,
Sand. 387. Per Holt, M. 9 W. 3. Sal. 577. (Vide Comyns's Rep. 46.)
So, if a remainder to a person in esse be contingent, because it commences after a contingent fee to another not in esse; if by fine, &c. the particular estate be destroyed before the other comes in esse, the remainder in esse cannot take effect. R. 1 Sal. 224.
So a future right of entry is not sufficient to support a contingent, remainder. Dub. 1 Vent. 189. Per Holt acc. M.9 W.3. inter Thompson and Leach, (Vide Comyns's Rep. 46. Sal. 577.)
As, if an estate be limited to A. for life, and afterwards to his wife for life, remainder to the first son of B. &c. If A. makes a feoffment before B. has issue, the contingent remainder is destroyed : for the feoffment by A. passes his estate and the remainder to the wife during the coverture; and so no right of entry was in him during the cover-, ture. Semb. 2 Rol. 796. 1. 45.
If A. be disseised, and a descent cast, and five years passed, by which the entry is tolled. Sal. 577.
So, if the freehold be gone, or defeated before the remainder upon it vests, though a particular estate for years remains : as, if a feoffment be to the use of A. for years, remainder to B. in tail, remainder to the right heirs of A. If B. dies without issue in the life of A. the remainder to his right heirs is void. R. 2 Rol. 791, l. 50.
So, if a particular estate by devise, &c. be destroyed by the wrongful act of the tenant before any remainder vests, the wrongful estate never can be made,void but by the right heirs of the devisor. Sal. 224. 5. (B 16.) What remainder shall be contingent. Vide Devise,
(N 16. 17.) If (r) a remainder be limited to commence upon a contingency (s),
() 1. An estate is vested, when there is an immediate fixed right of present or future enjoyment. Fearne 2.- 2. An estate is vested in possession, when there exists a right of present enjoyment. Ibid. — 3. An estate is vested in interest, when there exists a present fixed right of future enjoyment. Ibid. — 4. An estate is contingent, when a right of enjoyment is to accrue, on an event which is dubious and uncertain. Ibid - 5. For example, If A. convey or devise land to B. and his heirs, B.'s estate in the first case, on the execution of the conveyance, in the second, on the decease of the testator,) is vested in him in possession. Butler's note, ibid. - 6. Again, if A convey or devise land to C. for life, and after Ci's decease to B. and his heirs, B.'s estate is vested in him in interest Ibid. — 7. If A. convey or devise land to C. for life, and if D. die in the life-time of C. then, after C.'s decease, to B. and his heirs, the interest Eimited to B. is contingent. But while the contingency exists, B., properly speaking, has not an estate in the land; he rather has a right to have an estate in the land, if the contingency takes place. Ibid.
(6) 1. Mr. Fearne in his second chapter considers the nature of the contingency upon which a remainder may be limited. - 2. And in the first section, treats of the objection to the legal validity of a remainder from its being limited on a contingency depending on an illegal event. 3. In the second, from the remote possibility on which it is limited. — 4. In the third, from the condition on which it is limited being repugnant to some rule of law, or contrarient in itself, or inconsistent with the qua
which perhaps will not be (t) before the particular estate (u) determines, the remainder will be contingent, and does not vest immediately (x):
lity or nature of the preceding estate. - 5. In the fourth section, he observes on the rule of law, that certain incidents and qualities are so annexed to and inherent in certain estates, as to be incapable of being restrained or prohibited by any proviso, condition, or limitation, such as the right of a tenant in tail to levy a fine or suffer a recovery. - 6. In the fifth section, he treats on the distinction between those cases, where upon the happening of an event, an estate previously limited is before its natural expiration made to cease, and those when, upon the happening of an event, a remainder is to vest in the party, but not to be executed in possession till the expiration of the estate first limited. - 7. In the sixth section, he considers the effect of a limitation to the grantee or devisee of a particular estate, which enlarges it, on a given event, to a greater estate. - 8. In the seventh section, he treats of the distinction between those cases, where a subsequent estate at common law is limited to take effect upon a condition which is to defeat the preceding estate, and those cases, where the preceding estate is limited, subject to a condition, but the remainder is limited without any relation to or dependance upon that condition. – 9. In the eighth section, he treats on the limitation of shifting or secondary uses in surrenders of copyhold estates. — 10. And in the ninth, observes on liniitations of a particular estate to a person, with a condition, that on a given event he shall have a greater estate.
(t) A contingent remainder is, a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate. For if the preceding estate (unless it be a mere trust estate) determine before such event or con. dition happens, the remainder will never take effect. Fearne 4.
(u) 1. Mr. Fearne, in his third chapter, treats of the estate necessary to support a contingent remainder. — 2. And in the first section, gives the general rule, that whenever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it. - 3. And in the second, shews that the rule holds, whether the estates arise on limitations of uses, or are executed in possession at common law. 4. But shows in the third, that there does not appear to be any necessity for a preceding freehold to support a contingent remainder for years. – 5. In the fourth section he proves, that it is sufficient for the preservation of a contingent remainder, that there subsists a right to the preceding estate at the time the remainder should vest, provided such right be a right of entry, and not a right of action. — 6. But shews in the fifth, that it must be a present right, and actually existing when the contingency happens. - 7. He shews in the sixth, that when the estates are limited by way of use, and are afterwards divested and turned to a right, it has been held requisite to the execution of the subsequent contingent uses, that either the cestui que use under some preceding vested use, or that the feoflees or their heirs, should enter in order to revest the estates; but that this doctrine should not be hastily admitted. — 8. In the seventh section he shews, that the estate supporting, and the remainder supported, should both be created by the same deed or instrument. — 9. But in the eighth, that when the legal fee is devised to or vested in trustees in trust, there is no necessity for any preceding particular estate of freehold to support contingent limitations. - 10. And in the ninth, that if rent were granted to A. for the life of another, with remainder over, though the grantee die during the life of the cestui que vie, yet inasmuch as the tenant during the time holds the land discharged, it has been held sufficient to support the remainder.
(or) 1. Mr. Fearne distinguishes four sorts of contingent remainders. — 2. First, where the remainder depends entirely on a contingent determination of the preceding estate itself. - 3. Secondly, where the contingency on which the remainder is to take effect, is independent of the determination of the preceding estate. -- 4. 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. — 5. Fourthly, where the person, to whom the remainder is limited, is not yet ascertained or not yet in being.–6. He then remarks, that contingent remainders appear to have been generally distributed into three kinds only; namely, the three last, specified in the above division of them; but that he thinks it obvious that the first sort above noticed cannot be brought within any one of the other three descriptions, from the connection of the contingent event with the determination of the preceding estate itself. But, perhaps, he continues, the instances adduced of this first kind of contingent remain
ás, if a lease be to A. for life, remainder to the right heirs of B.; for perhaps A. may die before B. and then (y) the remainder will never take effect. 3 Co. 20 a. Pol. 56.
ders, may at the first glance appear to be cases of conditional or contingent limitations Dot strictly falling within the definition of a remainder, and that therefore it may be proper to obviate any doubt of this nature; which in the third section of his first chapter, he proceeds to do.-7. In the fourth section he shews, that from the third sort of contingent remainders, those must be excepted, where land is limited to a person for a term of years, if he shall so long live, and after his decease to another, and the term of years is of so long duration, that by common possibility the party cannot survive it. - 8. And in the fifth section he proves that, from the fourth class of contingent remainders those cases must be excepted, where land is limited to a person for his life, and after his decease to his heirs, or to the heirs of his body; in which cases by a rule of law of great antiquity, commonly called the rule in Shelley's case, the inheritance is held to be immediately executed in the ancestor, and therefore not to be in contingency or suspense, as to which see (B. 17.) - 9. In the sixth section he shews, that from the fourth class of contingent remainders, those likewise must be excepted, where a devise to the heir special of a person living has been held a sufficient designation of the person for the remainder to vest, notwithstanding the general rule, nemo est hæres viventis. - 10. And observes upon the supposed necessity, that under a limitation to the heirs male of a person operating as words of purchase, the person taking under that description must be general heir, as well as male heir. 11. In the seventh section he proves, that the uncertainty which makes a remainder contingent, is not the uncertainty of its ever taking effect in possession, but its being originally limited on a dubious event, or to a dubious person, and the event, or the persons being yet in suspence. — 12. And he applies this doctrine to the usual limitation to trustees for preserving contingent remainders. - 13. In the eighth section he considers the effect of contingent remainders intervening between the particular estate and the remainders over, in making them contingent or not; first, where such contingent remainders are in fee simple; secondly, where they are not in fee simple. 14. In the ninth section he shews, that where estates are subjected to a general power of appointment; the power does not suspend the effect of the limitations subject to it, but the limitations vest subject to be devested by a subsequent execution of the power. - 15. In the tenth section he considers those cases, where a condition annexed to e preceding estate, is, or is not, to be considered as a condition precedent to give afect to the ulterior limitations, in the following order. - 16. First, limitations after a preceding estate, which is made to depend on a contingency that never takes elect.17. Secondly, limitations over upon a conditional contingent determination of a preceding estate where such preceding estate never takes effect. - 18. Thirdly, Imitations over upon the determination of a preceding estate by a contingency, which though such preceding estate takes effect, never happens. — 19. Wherein he instances in cases in which a remainder is limited in words which apparently, but not in reality import a contingency; either because they mean no more than would be implied without them, or because they do not amount to a condition precedent, but only denote the time when they are to vest in possession -- 20. And also in cases where the contingency upon which an estate is limited, has been considered as a condition subsequent, not precedent; and the estate has therefore been held to be immediately vested, subject to be devested by the condition when it happens.
) 1. Mr. Fearne in his fourth chapter treats of the time when a contingent remainder should vest. — 2. And in the first section shews, that it is necessary that some preceding freehold estate should subsist and endure until the time when the coctingent remainder vests. - 3. But, in the second, that the remainder may be so Emited as not to vest till the very instant at which the preceding estate deter. mines. - 4. lo the third he shews, that wherever a preceding estate is in several persons in common or in severalty, a remainder limited upon it in contingency say fail as to one part, and take effect as to another, as the particular tepant of one part may die before the contingency, and the particular tenant of another part may survive it. - 5. And in the fourth, that where a contingent remainder is limited to the use of several, who do not all become capable at the same time, notwithstanding it vests in the person first becoming capable, yet shall it devest as to the proportions of the persons afterwards becoming capable, before the determination of the preceding estate VOL. IV.