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years, or any other particular estate, less than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void but if granted to A for life, with a like remainder, it is good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him, without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest nowhere: unless therefore the estate of such particular tenant be of a eehold nature, the freehold cannot vest in him, and consequently the remainder is void.

Contingent remainders may be defeated, by destroying or determining the particular estate [see note 37 a, page 294] upon which they depend, before the contingency happens whereby they become vested. Therefore *when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life-estate, before any of those remainders vest; the consequence of which is that he utterly defeats them all.† As, if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son for his son not being in esse, when the particular estate determined, the remainder could not then vest; and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees appointed to preserve the contingent remainders; in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his determines. If there

b 1 Rep. 130.

c Ibid. 66, 135.

9 Ninth edition inserts, "estate."

*- Quoted, 8 Ohio, 501.
+ Cited, 38 N. H. 425.


fore his estate for life determines otherwise than by his death, their estate, for the residue of his natural life, will then take effect, and become a [172] particular estate in possession, sufficient to support the remainders depending in contingency.* This method is said to have been invented by sir Orlando Bridgman, sir Geoffrey Palmer, and other eminent council, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life :d and when after the restora tion, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use.†

Thus the student will observe how much nicety is required in creating and securing a remainder; and I trust he will in some measure see the general reasons, upon which this nicety is founded. It were endless to attempt to enter upon the particular subtilties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions. I must not however omit, that in devises by last will and testament (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice), in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not d See Moor. 486. 2 Roll, Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.

9 Ninth edition reads, "the estate of the trustees."

*-* Quoted, 11 Fla. 70

† Cited, 2 Denio, 16.

allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed.

An executory devise [see note 37 b, page 295] of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: 1. That it needs not any [173] particular estate to support it. 2. That by it a fee-simple or other less estate, may be limited after a fee-simple.* 3. That by this means a remainder may be limited of a chattel interest after a particular estate for life created in the same.†

1. The first case happens when a man devises a future estate to arise upon a contingency; and, till that contingency happens, does not dispose of the fee-simple, but leaves it to descend to his heir at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder without any particular estate to support it; a frechold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise. For, since by a devise a freehold may pass without corporal tradition or livery of seisin (as it must do, if it passes at all), therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in præsenti. And, since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by it's unity with the particular estate, a present interest.

e 1 Sid. 153.

*Cited, 59 Ind. 529.

+ Cited, 50 Conn. 406; 3 Binn. 153; 33 Ohio St. 341; 20 N. J. L. 26; 64 Tex. 373.

1-2 Quoted, 79 Pa. St. 145.

2-1 Quoted, 3 Peters, 115.

And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.*

2. By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A and his heirs ; but, if he dies before the age of twenty-one, then to B and his heirs: this remainder, though void in a deed, is good by way of executory devise. † But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate [174] term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors: because by perpetuities (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation 1) estates are made incapable of answering those ends, of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards.‡ As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.*?

f Cro. Jac. 593.

g 2 Mod. 289,

h 12 Mod. 287. 1 Vern. 16

i Salk. 229.

‡‡ Quoted, 20 Pa. St. 515.
? Cited, 6 Hill, 605; 24 Ga.

k Forr. 232.
*Cited, 2 Ala. 156.
† Cited, 29 Ala. 496.

Cited, 8 Conn. 361. 143; 3 Yeates, 239.

3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life estate being esteemed of a higher and larger nature than any term of years. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place:m for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held," that the devisee for life hath no power of aliening the term, so as to bar the remainderman: yet in order to prevent the danger of perpetuities, it was settled, that though such remainders may be limited to as many persons successfully as the devisor thinks proper, yet they must all be [175] in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman who happens to survive the rest: 9or, that such remainder may be limited to take effect upon such contingency only 9 as must happen (if at all) during the life of the first devisee.p*


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Thus much for such estates in expectancy, as are croated by the express words of the parties themselves; the most intricate title in the law. There is yet another

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p Skinn. 341. 3 P. Wms. 358.

9 Ninth edition reads, "and it was also settled."

9 Ninth edition inserts, "not."

9 Ninth edition inserts, "unless."

9 Ninth edition omits.

*Cited 3 Desaus. Eq. 259; 4 Am. Dec. 619; 4 Mon. 219.

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