which perhaps will not be (t) before the particular estate (u) determines, the remainder will be contingent, and does not vest immediately (x):

as,

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 limitations 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 condition 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 shews 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 feoffees 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.

(r) 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 remainders,

as, 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 3 Co. 20 a. Pol. 56.

take effect.

ders, may at the first glance appear to be cases of conditional or contingent limitations not 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, froin 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 a preceding estate, is, or is not, to be considered as a condition precedent to give effect 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 effect.-17. Secondly, limitations over upon a conditional contingent determination of a preceding estate where such preceding estate never takes effect.-18. Thirdly, limitations 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.

y) 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 contingent remainder vests.-3. But, in the second, that the remainder may be so limited as not to vest till the very instant at which the preceding estate deter mines.-4. In 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 may fail as to one part, and take effect as to another, as the particular tenant 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.

D

A lease

A lease to A. till his full age, remainder to B. It will be a contingent remainder. R. 3 Co. 20. a.

A lease to A. for life, remainder to B. for life, and if B. dies before A. remainder to C. 3 Co. 20. a.

A feoffment to A. to the use of B. for the life of C. and if B. and C. die, remainder to D. The remainder is contingent. Lane, 22.

A devise to A. for life, and if he shall have issue male to such issue; if he shall not have them to B. Semb. 3 Lev. 434. R. I Sid. 47. Ray. 28.

À lease to A. for life, and if B. pays so much, remainder to the right heirs of B. For perhaps B. will not pay during the life of A. Pol. 57.

Or, after the death of A. and C. to B. For perhaps A. may die before C. and the remainder cannot commence till the death of both. R. Pol. 57.

A lease for forty years if A. so long lives, remainder, after the death of A. to another, is contingent. Ray. 144. Pol. 67. 2 Ver. 131. To husband and wife for life, and afterwards to the heirs of the survivor. Co. L. 26. a.

So, if a remainder commences upon an act, which determines the particular estate: as, if a lease be to A. till his return from Rome, and after his return, to B. The remainder to B. is contingent. R. 3 Co. 20. a.

So, if a remainder commences after a contingent fee, it cannot be vested, but contingent: as, a devise to A. for life, and if he has issue male, to him in fee; if he has not, to B. in fee: the remainder to B. is contingent. R. 1 Sal. 224.

But there cannot be a remainder for years in contingency: for every lease for years enures by way of contract. Ray. 151. (z)

(*) 1. Mr. Fearne, in the sixth chapter of his essay, treats of certain miscellaneous properties of contingent remainders. 2. And in the first section shews, that where a remainder of inheritance is limited in contingency by way of use or by devise, the inheritance in the mean time, if not otherwise disposed of, remains in the grantor and his heirs, or in the heirs of the testator until the contingency happens to take it out of them.-3. In the second, he considers the effect of a devise of lands to trustees and the survivor of them, and the heirs of the survivor in trust to sell. - 4. In the third he shews, that the inheritance continues in the grantor, when a contingent remainder of inheritance is created in conveyances at common law. - 5. In the fourth, that a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens, except the existence of the devisee of the contingent interest at some particular time, may by implication enter and make a part of the contingency itself, upon which such interest is intended to take effect. - 6. In the fifth, that a contingent remainder may, before it vests, be passed by fine by way of estoppel, so as to limit the interest which shall afterwards accrue by the contingency.—7. In the sixth, that contingent remainders appear formerly to have been held not devisable by the person entitled thereto; but that recent determinations seem to have established the power of testamentary disposition of contingent and executory estates and possibilities, accompanied with an interest, and of such as would be descendable to the heir of the object of them dying before the contingency or event on which the vesting or acquisition of the estate depended. — 8. And in the eighth, that a fee cannot at common law be mounted upon a fee; yet that two or more several contingent fees may be limited as substitutes or alternatives one for the other.

(B 17.)

(B 17.) What shall be vested. Vide Devise, (N 18.)

But if a remainder be to commence upon a thing casual, but certain in the event, though it be expressed that it shall not commence till the casualty happens, the remainder shall be vested, and is not contingent: as, if a lease be for years if B. so long lives, remainder, when B. dies, to D. For it is certain that B. must die, and the words, when B. dies, denote the time when the remainder shall take effect in possession. Pl. Com. 33. a. (a)

So,

(a) 1. This is the rule mentioned above as the exception to the third sort of contingent remainders.-2. To which may be added what also was mentioned before, that 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 such 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.-5. The effect of which rule is considered by Mr. Fearne, in the fifth section of his first chapter, in relation to the following cases.-4. Where the estate of freehold limited to the ancestor is determinable on an event which may happen in his life time. - 5. Where the limitation to the heirs, or heirs of the body of the ancestor, is contingent. 6. Where the ancestor's estate of freehold is limited to him in trust for some other person, or to answer some particular purpose.-7. Where there is a joint limitation of the free hold to several, followed by a joint limitation to them of the inheritance.-8. Where the limitation of the freehold is to two persons, or more, successively, remainder to the heirs of their bodies.-9. Where contingent limitations intervene between the preceding freehold and the subsequent limitation to the heirs.-10. Where a limitation to the wife for life, is followed by a remainder to the heirs of the body of husband and wife. - 11. Where the freehold results to the ancestor, by implication.-12. Where the estate limited to the ancestor is equitable, and the limitation to his heirs carries the legal estate. 13. Where the estate limited to the ancestor is legal, and the estate limited to the heirs is equitable.-14. Where the land, of which such imitations are made is copyhold. - 15. Where limitations of copyhold land to the heirs of the surrenderor are preceded by no limitation to the surrenderor himself. - 16. Where there is a limitation to a person's heirs by one deed, and he acquires the freehold by another. 17. Where there is a limitation to a person for life by one deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment contained in that deed. 18. He then gives an explanation of the expression "words of purchase" as distinguished from that of "words of limitation," in the cases to which the rule in Shelley's case is considered to apply. 19. He then shews the effect of the words "heirs male of the body, &c.' When they operate as words of purchase.-20. He then treats on the supposed origin of the rule in Shelley's case.-21. Then on the effect of the rule in Shelley's case on equitable limitations, where they are contained in marriage articles. 22. And then gives

-

a particular examination of such of these limitations as seem to fall under the 11 H. 8. e. 20. — 23. And when they are contained in other instruments than marriage articles; considering the supposed difference between trusts executory and trusts executed. 24. He then shews that before the judgment of K. B. in Perrin v. Blake, in 1769, there was no decided case where a perfect legal limitation in a deed or will to the heirs or the heirs of the body, in the plural number, unqualified by any concomitant limitation to sons, daughters or children, preceded by a limitation of the legal estate for life to the ancestor, in the same deed or will, had been held not to attach in that ancestor, but to go to the heir by purchase.-25. He discusses the propriety of the determination of the K. B. in that case. - 26. And then, the cases anterior to that case, on limitations literally falling under the rule in Shelley's case.-27. And then the arguments generally used in support of the determination of the K. B. in that case. -28. And then the cases subsequent to that case, on limitations literally falling within the rule in Shelley's case.-29. He then considers the effect of the rule in Shelley's case, where there is a limitation to the ancestor for his life, and a subsequent limitation to the heir of his body, in the singular number, without words of limitation superadded. 30. He then shews the effect of

D 2

the

So, a lease for life or years, remainder after the death of the lessee, or end of the term to B. 3 Co. 21. a. Cro. El. 450. 585.

A gift to A. and the heirs of his body, and if it happens that he dies without issue, remainder to B. the remainder vests immediately. Hob. 30, 31.

A devise to A. in tail, and after his death, without issue, to B. and if B. dies without issue, A. not being alive, to C. in fee; the remainder to C. is vested for the words, A. not being alive, import nothing but what was implied. R. 1 Sal. 233.

So, if a fine or feoffment be to A. till he comes back to England, and attains his full age, or dies, and after his return and full age, or death, remainder to B.; the remainder vests immediately: for it is of necessity that he will do the one thing or the other; for he will come back or die. Semb. I Leo. 244. Cro. El. 269.

So, if a lease be for 99 years if A. lives so long, and after the death of A. to B. in fee; the remainder will be vested; for it shall not be intended that A. may survive the term. R. Pol. 67.

So, if a remainder commences upon a contingency, which does not denote a condition precedent, but the time of the commencement of the estate as, a devise to A. and afterwards to his first, second, third, and fourth sons in tail, and if the fourth son dies without issue, to B. he shall take though A. has no son. R. Mo. 487.

So, a devise to A. for life, if she does not marry: and if she marries, to B. in tail, &c. the remainder to B. is vested, and not contingent : for the devise to A. was during her widowhood, and the limitation to B. if she marries, was tantamount as upon determination of her estate. R. Ray. 428.

So, a devise to A. for life till he aliens, and then to B. &c. R. Mo. 487.

Or, till he discontinues, &c. R. 2 Cro. 697. Jon. 57.

So, if a remainder be limited to a person in esse, after a contingent estate for life, or in tail, it shall be vested. 1 Sal. 224.

(B 18.) When an estate shall be executed, and not remain.

If an estate be granted to husband and wife for their joint lives, remainder to the heirs of the body of the wife by the husband begotten; it shall be an estate tail executed in the wife, though the jointure is not severed. R. Ray. 126.

So, if there be a contingent mesne remainder between an estate for life, or years, and the limitation of the inheritance, it shall be executed till the contingency happens: As, if a feoffment be to the use of B. for

the rule in Shelley's case, where after a limitation to the ancestor for life, and a subsequent limitation to the heirs of his body, in the plural number, words of limitation are superadded.-31. He then considers the present extent and prevalence of the rule in Shelley's case, in the construction of limitations contained in deeds and marriage articles.32. And then its present extent and influence, in the construction of limitations contained in wills; exhibiting the sentiments on this point of Blackstone J. the Annotator, Butler, Thurlow C., and of the author. -33. See farther in Preston - on Estates his "Succinct view of the rule in Shelley's case, exhibiting, by negative and affirmative propositions, the instances in which several limitations, one to the ancestor, the other to the heirs, the heirs of the body, or issue of the body of that person, do and do not give the inheritance to the ancestor."