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First, they may be limited to a dubious and uncertain person. As if A be tenant for life, with remainder to B's eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a son or no: but the instant that a son is born, the remainder is no longer contingent, but vested. Though, if A had died before the contingency happened, that is, before B's son was born, the remainder would have absolutely gone; for the particular estate was determined before the remainder could vest. Nay, by the strict rule of law, if A were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enseint or big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder; for the particular estate determined before there was any person in esse, in whom the remainder could vest.t* But, to remedy this hardship, it is enacted by statute 10 & 11 W. III. c. 16. that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father's lifetime: that is, the remainder is allowed to vest in them, while yet in their mother's womb."t

This species of contingent remainders, to a person not in being, must however be limited to some one, that may by common possibility, or potentia propinqua, be in esse at or before the particular estate determines. As if an estate be [170] made to A for life, remainder to the heirs of B: now, if A dies before B, the remainder is at an end; for during B's life he has no heir, nemo est hæres viventis: but if B dies first, the remainder then immediately vests in his heir, who will t Salk. 228. 4 Mod. 282,

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**Quoted, Busb. Eq. 169; 59 Am. Dec. 592.

+ Cited, 14 Ga. 410; 5 Ala. 582; 13 Ired. 347; 3 Johns. Cas. 26; 1 Zab. 539; 2 Heisk. 36; 44 Mo. 569; 7 Tex. 33,

be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law. But a remainder to the right heirs of B (if there be no such person as B in esse) is void. For here there must two contingencies happen; first, that such a person as B shall be born; and secondly, that he shall also die during the continuance of the particular estate; which make it potentia remotissima, a most improbable possibility. A remainder to a man's eldest son, who hath none (we have seen), is good; for by common possibility he may have one; but if it be limited in particular to his son John, or Richard, it is bad, if he have no son of that name: for it is too remote a possibility that he should not only have a son, but a son of a particular name. A limitation of a remainder to a bastard before it is born, is not good: for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.*

A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee; here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can vest in his heirs, but is forever gone; but if A dies first, the remainder to B becomes vested.†

[171] Contingent remainders of either kind, if they amount to a freehold, cannot be limited on an estate for

x Co. Litt. 378.

y Hob. 33.

z 5 Rep. 51.

a Cro. Eliz. 509.

*Cited, 18 N. Y. 418; 1 Zab. 539.

+ Cited, 44 Mo. 566; 23 Ind. 31; 51 Ind. 163.

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 freehold 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

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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: and when after the restoration, 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.t

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 nay be limited of a chattel interest after a particular estate for life created in the same.t

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 freehold 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 cominence 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.

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