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estate before the
determining the particular estate upon which they de- determination of pend (11), before the contingency happens whereby they be- the particular come vested (c). Therefore, when there is tenant for life, contingency with divers remainders in contingency, he may, not only by happens. his death, but by alienation, surrender, or other methods, destroy and determine his own life-estate before any of those remainders vest (12), the consequence of which is, that he (c) 1 Rep 66, 135.
(11) See ante, note (7), and the concluding sentence of note (6) to this chapter.
(12) It must be recollected, that an alienation by bargain and sale, or covenant to stand seised, will pass no further interest than the bargainor, or covenantor, can lawfully transfer. No estate is divested, and nothing but a use passes by these conveyances; but no use can be greater than the estate out of which it is created; if a greater use is professed to be granted, the excess is merely void, and the statute executes the possession to so much only of the use as is lawfully granted. Therefore, if a tenant for life, with contingent remainders depending on his estate, conveys in fee, by bargain and sale, or covenant to stand seised in fee; the bargainee or covenantee will only take an estate for life; and the contingent remainders will not be destroyed. (Gilb. on Uses and Trusts, Sugd. ed. p. 312). Neither will a conveyance by lease and release, made by a tenant for life, bar the remainders over. (Magennis v. MacCullogh, Gilb. Eq. Rep. 236. Litt. sect. 600). And a cestui que trust for life cannot, by any act of his, destroy a contingent remainder; because, whatever conveyance he makes, as he has no legal estate in him, his conveyance will only pass what he
Penhay v. HurThough, if ten
can lawfully grant. Tracy, 3 Atk. 729. rell, 2 Freem. 213). ant in tail of a trust estate suffers a recovery, the remainders over will be destroyed. (Penhay v. Hurrell, ubi supra. Boteler v. Allington, 1 Br. 73).
Some acts by tenant for life, (as the acceptance of a fine come ceo, &c.) though they amount to a forfeiture of his estate, so as to give a remainderman title to enter; yet, as they discontinue, divest, or disturb no remainder or subsequent estate, nor make any alteration in, or merger of, the particular estate, do not destroy or affect a contingent remainder, unless advantage is taken of the forfeiture by a subsequent vested remainder-man. (Lloyd v. Brooking, 1 Ventr. 188. Co. Litt. 252 a. Margaret Podger's case, 9 Rep. 106 b). But in all cases where the particular estate is merged in the reversion, (otherwise than by immediate descent from the person whose will limits the contingent remainders), there the contingent remainders dependent on that particular estate are destroyed, though there is no discontinuance or divesting of any estate: thus, if there be tenant for life, remainder in tail in contingency, remainder over in tail in esse, if tenant for life and he in remainder in tail in esse levy a fine of their
utterly defeats them all. As, if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for
estates, this is no discontinuance, or divesting of any estate, because each of them gives such estate as he has, according to the rule in Bredon's case, (1 Rep. 76 a), and yet the mesne contingent remainder is thereby destroyed. (Per Chief Justice Hale, in Purefoy v. Rogers, 2 Saund. 386).
It has been said, that any alteration in the nature of the preceding estate, before a remainder vests, will destroy that remainder; (Anonym. 4 Leon. 237, pl. 363); but Mr. Fearne is of opinion that the alteration, which will destroy a contingent remainder, must amount to an alteration in its quantity and not in its quality. (Essay on Conting. Rem. ch. 5, s. 14). This conclusion Mr. Fearne held to be warranted by the adjudged cases of Lane v. Pannel, (1 Rolle's Rep. 238, 317, 438), and of Harrison v. Belsey, (reported in T. Raym. 413; 1 Ventr. 345; T. Jones, 136; 2 Show. 91; and Pollexf. 573). Mr. Fearne ably argues that no necessary connexion exists between a remainder and the quality of the preceding estate. Whilst the particular estate continues the same in quantity, it continues to be the same estate as far as respects its relation to a remainder. If a release, or severance between jointtenants, determined the old estate, then a vested remainder-man would be entitled to enter immediately, upon such release or severance: but, as the law is, that notwithstanding such release or severance, it continues to be the same estate as to a vested remainder, why (he asks) should it not be so as to a contingent remainder? No legal modification or alteration in the circumstan
ces only of a particular estate, can be said to determine that estate: but the determination of the particular estate is the only point of connexion between such estate and the remainder; therefore, until that point is passed, there still remains the same place for a contingent remainder to take effect.
In Shelly's case, (1 Rep. 104), a rule is stated, not as a matter then before the court for its determination, or even discussion, but incidentally introduced as an acknowledged rule of law, and, ever since, generally called the rule in Shelly's case. This rule is, that "when the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, always in such cases the words 'the heirs' are words of limitation of the estate, and not words of purchase." In other words, whenever the ancestor takes an estate of freehold, and a remainder is thereon limited in the same conveyance to his heirs, or heirs in tail, such remainder, (where there is no intermediate estate), is immediately executed in possession in the ancestor; or (where there is an intervening estate) the remainder is vested in the ancestor, and is not contingent. Thus, an estate for life to A., with remainder to the heirs of his body, is not a contingent remainder to the heir of the body of A., but an immediate estate tail
But, where the life estate, limited to the ancestor, is merely a trust estate, and that to his heirs carries the legal estate, they will not incorporate into an
life, before any son is born, surrenders his life-estate, he by that means defeats the remainder in tail to his son: for his
estate of inheritance in the ancestor, as they would had both been of one quality; that is, both legal, or both equitable. (Jones v. Lord Say and Seal, 1 Eq. Ca. Ab. 383). In order to unite and coalesce, the two estates, it seems settled, should also be created by the same instrument: (Doe v. Fonnereau, 2 Dougl. 490, 507 a): however, a will, schedule, and codicil, if all published at the same time, with the same solemnities and attestation, will be considered as parts of the same instrument; and two limitations therein contained, though on separate and distinct papers, may come within the operation of the rule in Shelly's case; (Hayes v. Foorde, 2 W. Black. 700. and see 1 Bligh's P. R. 41); or if a testator in his will expressly refers to any paper previously written, and so describes it that there can be no doubt of the identity, and the will is duly executed, that paper makes part of the will, whether executed or not. (Habergham v. Vincent, 2 Ves. junr. 228. Smart v. Prujean, 6 Ves. 565). So, a power of appointment, when executed, is to be considered in the same light as if it had been inserted in the original deed by which the power of appointment was created. (Venables v. Morris, 7 T. R. 347).
It follows from the doctrines above stated that, if, after giving an estate to a father for life, it is desired to secure a remainder to his children, care must be taken to limit such remainder by words of purchase; as, to the first and other sons. However, courts of equity have gone far to aid the manifest intention of the parties by giving their words a different construction from
that which they technically and strictly bear. Thus, it has been determined, not only that the words "heir male" may be construed as words of purchase; but the words "heirs of the body" have received the same construction. (Hodgeson v. Bussey, 2 Atk. 90. Bagshaw v. Spencer, 2 Atk. 580, where several earlier cases to the same effect are cited; and see Right v. Creber, 5 Barn. & Cress. 871). But, the words "heir," or "heir male of the body," though in the singular number, are properly words of limitation, not of purchase; unless words of limitation are superadded, and they are found in a will, where there is something in the context plainly shewing that the testator did not mean to use the words in their technical sense. (Blackburne v. Stables, 2 Ves. & Bea. 371). It is in order to give effect to the intention of a testator that the words "heir male" may, in a will, also be construed as nomen collectivum, including all the issue; though in a deed no such construction would be allowable. (Bayley v. Morris, 4 Ves. 794). But, it must be clearly understood, that, to enable any one to take as heir male by purchase, he must be both heir and male. (Gwynne v. Hooke, 1 Wils. 30; and see 1 Hovenden's Supp. to Vesey jun. 441). The word issue is sometimes construed as a word of limitation, sometimes as a word of purchase; according to the intent of the will, or deed, in which it is used. (Roe v. Grew, 2 Wils. 324; S. C. Wilm. Notes 277.
King v. Burchell, Eden, 431, Lyon v. Mitchell, 1 Mad. 473). In a deed, it is true, where the technical
son not being in esse, when the particular estate determined, the remainder could not then vest; and, as it could not vest
meaning of words is more attended to, the word "issue" is generally held to be a word of purchase. (Bayley v. Morris, 4 Ves. 794). In a deed of settlement on marriage, also, where the natural presumption is, that the object must have been to provide for unborn children, the word "issue," (if not confined by some indication of a contrary intention), is a word of purchase including all descendants. (Leigh v. Norbury, 13 Ves. 344. Hockley v. Mawbey, 1 Ves. jun. 150. Earl of Oxford v. Churchill, 3 Ves. & Bea. 67). The strong reason why, in such cases, the word "issue" must be construed a word of purchase is, that, if it were taken as a word of limitation, after a previous life estate secured to the father, he, by the merger of the two interests, might be enabled to defeat the whole intent of the settlement, and appropriate the settled estate to himself. (Marshall v. Bousfield, 2 Mad. 172). On the other hand, if the object of the settlement, after giving a life-estate to unborn children, be to give a remainder to their issue, the word "issue" must, in subservience to that intention, be construed as a word of limitation: for, although this construction must, as we have just seen, put the issue in the power of their parents, (provided such parents live long enough after they are of age to dock the entail), still, this is the nearest approach which can be made towards effecting the declared intention; for the rules of law do not permit that an estate for life shall be given to a person not in esse, with a remainder in tail to his issue as purchasers. (See the
case last cited, and Hampson v. Brandwood, 1 Mad. 390; as also infra). And in a will, it is usually most conformable to a testator's intent to hold the word "issue" to be a word of limitation; (Lyon v. Mitchell, 1 Mad. 473); but, as we have seen, it may be a word of purchase; and, when so used, it has been said, it is always considered as synonymous with, and the same as, "descendants." (Davenport v. Hanbury, 3 Ves. 259). This latter dictum, however, must be qualified; for though, according to all the cases, the word "issue," in a will, usually takes in descendants beyond immediate issue; still, a more restrained sense may be given to the word, if (upon fair reasoning, deduced from the whole contents, design, and tenor of the will), it appears to have been used in that restricted sense: (Sibley v. Perry, 7 Ves. 531): the testator may, in the introductory part of his will, have used the word "issue;" yet, by subsequent passages, he may have made it distinctly appear, that by "issue," he meant only children, and their children. (Earl of Oxford v. Churchill, 3 Ves. & Bea. 67. and see 1 Hovenden's Supp. to Ves. jun. 54, 55).
It is a general rule, that limitations to the "heirs of the body," in marriage articles, shall be carried into execution in equity by decreeing strict settlements, making the parents tenants for life; (Honor v. Honor, 1 P. Wms. 124. Jones v. Langton, 1 Eq. Ca. Ab. 392); and not leaving it in their power to annul the substantial intent of the articles, by confining the peformance to the mere letter: (Streatfield v. Streat
then, by the rules before laid down, it never can vest at all. In these cases therefore it is necessary to have trustees
field, Ca. temp. Talb. 181. Roberts v. Kingsly, 1 Ves. sen. 239): for, in equity, articles are considered as minutes only; and the Court of Chancery, where it finds the words short and defective, will presume what was the probable intent. (Marquis of Blandford v. Duchess of Marlborough, 2 Atk. 545. Taggart v. Taggart, 1 Sch. & Lef. 87). Even when a marriage settlement has been executed, and does not rest in articles, the Court, by virtue of the contract, may be enabled to deal with the settlement so as to effect the intention of the parties, and, with that view, to put upon technical words a which, legally and strictly, would be inadmissible in other cases. (Cholmondeley v. Clinton, 2 Meriv. 347, citing Seymour v. Boreman, a note of which is to be found in Nels. 121). And, it is quite clear, the operative part of a family settlement may be reformed, so as to accord with the intention declared in the recital. (Doran v. Ross, 1 Ves. jun. 57. Payne v. Collier, 1 Ves. jun. 171. Hope v. Lord Clifden, 6 Ves. 508. Moore v. Magrath, Cowp. 12. Whalley v. Whalley, 1 Meriv. 446).
But the rule, that marriage articles are to be carried into execution by a strict settlement, does not prevail, when the concurrence of both parents would be necessary to bar the entail. (Highway v. Banner, 1 Br. 587. Howell v. Howell, 2 Ves. sen. 359. Brudenell v. Elwes, 7 Ves. 390).
It is to be recollected that, although a remainder after a life-estate given to the father of the party for whom the remainder is intended, may be limited by proper words of purchase, or by words which may be so construed;
still, a remainder limited to a person unborn must be contingent, and therefore liable to be defeated by the destruction of the father's particular estate, if the remainder is dependent thereon: to prevent this, it is necessary to interpose trustees, giving them an intermediate estate, to commence upon any determination of the father's lifeestate by forfeiture or alienation, and to rest in them till the contingent estate comes into existence, or cannot possibly ever arise; and thus the trustees are said to support and preserve the contingent remainders. (See ante, note (6) to this chapter).
By a strict settlement, an estate may be rendered unalienable till the first son attains the age of twenty-one; at which time, if the father be dead, the son, as tenant in tail, will have full power over the estate: if the father be then living, he and the son, by joining in a common recovery, can cut off all the subsequent limitations; or the son alone can bar his own issue, by a fine, without the concurrence of the father. There is no method (as it has before been intimated) of securing an estate to the grand-children of a person who is without children at the time of the settlement. A settlor or testator may create as many vested remainders for life as he thinks fit; of such limitations the law has no abhorrence, as tending to a perpetuity: but, if a man wishes to go beyond this, and to transmit his estate in a course of descent; he must give an estate of inheritance, which will be alienable, at furthest, within twentyone years after the determination of the vested remainders. (Thelluson v. Woodford, 4 Ves. 314).