Thus, if A makes a feoffment to the use of B, till from Rome, and after such return, remainder over in fe mainder depends entirely on the uncertain or contingent ination of the estate in B, by the return of C from Rome. 2. The second sort is where the contingency, on which the remainder is to take effect, is independent of the determination of the preceding estate, and must precede the remainder. As if a lease be to A for life, remainder to B for life, and if B dies before A, remainder to C for life; the event of B dying before A does not affect the determination of the preceding estate, but it is a dubious event which must precede, in order to give effect to the remainder in C. 3. A third kind is where the condition upon which the remainder is limited is certain in event, but the determination of the particular estate may happen before it. Thus, if a grant be made to A for life, and, after the death of B, to C in fee ; here, if the death of B does not happen until after the death of A, the particular estate is determined before the remainder is vested, and it fails from the want of a particular estate to support it. 4. The fourth class of contingent remainders is, where the person to whom the remainder is limited is not ascertained, or not in being. As in the case of a limitation to two persons for life, remainder to the survivor of them; or in the case of a lease to A for life, remainder to the right heirs of B, then living. B can not have heirs while living, and if he should not die until after A, the remainder is gone, because the particular estate failed before the remainder could vest. 16. Is there not a distinction which operates by way of exception to the third class of contingent remainders ?-209. There is; thus, a limitation for a long term of years, as, for instance, to A for eighty years, if B should live so long, with the remainder over, after the death of B, to C in fee, gives a vested remainder to C, hotwithstanding it is limited to take effect on the death of A, which possibly may not happen until after the preceding estate for eighty years. 17. Do not exceptions exist also to the generality of the rule which governs the fourth class of remainders ?-209, 210. They do; thus, if the ancestor takes an estate of freehold, and an immediate remainder is limited thereon, in the same instrument, to his heirs in fee, or in tail, the remainder is not contingent, or in abeyance, but is immediately executed in possession in the ancestor, and he becomes seised in fee, or in tail. So, if some intermediate estate for life, or in tail, be interposed between the estate of freehold in A and the limitation to his heirs, still the remainder to his heirs vests in the ancestor, and does not remain in contingency or abeyance. If there be created an estate for life to A, remainder to the heirs of his body, this is not a contingent remainder to the heirs of the body of A, but an immediate estate tail in A; or if there be an estate for life to A, remainder to B for life, remainder to the right heirs of A, the remainder in fee is here vested in A, and after the death of A, and the determination of the life estate in B, the heirs of A take by descent as heirs, and not by purchase. The possibility that the freehold in A may determine in his lifetime, does not keep the subsequent limitation to his heirs from attaching in him; and it is a general rule, that when the ancestor takes an estate of freehold, and there be in the same conveyance an unconditional limitation to his heirs, in fee, or in tail, either immediately, without the intervention of any estate of freehold between his freehold and the subsequent limitation to his heirs, or mediately with the interposition of some such intervening estate; the subsequent limitation vests immediately in the ancestor, and becomes, as the case may be, either an estate of inheritance in possession, or a vested remainder. 18. What is this rule called, and what is the present law in New York on this point ?—211, n. (d.) The rule in Shelley's case. The New York Revised Statutes have done away with the rule in Shelley's case, and enacted that where a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate in the same person shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body, of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them. 19. How has Mr. Preston defined the rule in Shelley's case ?—215. His definition of the rule is as follows: "When a person takes an estate of freehold, legally or equitably, under a deed, will, or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs, or heirs of his body, as a class of persons to take in succession, from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 20. Must there be a particular estate to precede a remainder ?— 233. Yes; for it necessarily implies that a part of the estate has already been carved out of it, and vested in immediate possession in some other person. 21. Must the particular estate be valid in law, and formed at the same time, and by the same instrument, with the remainder ?—233. Yes. 22. If the particular estate be void in its creation, or be defeated afterward, will the remainder created by a conveyance at common law, resting upon the same title, be defeated also ?-235. It will, as being, in such a case, a freehold commencing in futuro. 23. When must the interest to be limited as a remainder, either vested or contingent, commence or pass out of the grantor ?—248. At the time of the creation of the particular estate, and not afterward. 24. Must the remainder be so limited as to await the natural determination of the particular estate ?-249. It must, and can not take effect in possession upon an event which prematurely determines it. 25. Do not the New York Revised Statutes allow a remainder to be limited on a contingency?-250-252. They do; on a contingency which, in case it should happen, would operate to abridge or determine the precedent estate; and every such remainder is to be construed a conditional limitation, and to have the same effect as such a limitation would have at law. They have also made many other changes in the common law doctrine of remainders. Thus, a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the prior estate determines before the person to whom it is limited attains the age of twenty-one. No remainder can be created upon an estate for the life of any other person or persons than the grantee or devisee of such éstate, unless such a remainder be a fee; nor can a remainder be created upon such an estate in a term for years, unless it be for the whole residue of such term. Nor can a remainder be made to depend upon more than two successive lives in being; and if more lives be added, the remainder takes effect upon the death of the first two persons named. A contingent remainder can not be created on a term for years, unless the nature of the contingency on which it is limited be such, that the remainder must vest in interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. A freehold estate, as well as a chattel real (to which these regulations apply), may be made to commence at a future day; and an estate for life may be created in a term of years, and a remainder limited thereon; and a remainder of a freehold or chattel interest, either contingent or vested, may be created expectant on the determination of a term of years. Two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it; and no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect. When a remainder on an estate for life, or for years, shall not be limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death of the first taker, or the expiration, by lapse of time, of such term of years. No expectant estate shall be defeated or barred by any alienation or other act of the owner of the intermediate estate, nor by any destruction thereof, except by some act or means which the party creating the estate shall, in the creation thereof, have provided for or au thorized. Nor shall any remainder be defeated by the determination of the precedent estate, before the happening of the contingency on which the remainder is limited to take effect; and the remainder takes effect when the contingency happens, in the same manner and to the same extent as if the precedent estate had continued. But these provisions do not affect interests which became vested, nor instruments which took effect, before the 1st of January, 1830. 26. By what are conveyances to uses governed?-257. By doctrines derived from courts of equity; and the principles, which originally controlled them, they retained when united with the legal estate. 27. Are all contingent and executory Interests assignable in equity?-261, 262. They are; and will be enforced, if made for a valuable consideration; and it is settled, that all contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, where the person to take is certain, are transmissible by descent, and devisable. If the person be not ascertained, they are not then possibilities coupled with an interest, and they can not be either devised, or descend, at common law. Contingent and executory, as well as vested interests, pass to the real and personal representatives, according to the nature of the interest, and entitle the representatives to them when the contingency happens. LECTURE LX. OF EXECUTORY DEVISES. 1. What is an executory devise ?—263. It is a limitation by will of a future contingent interest in lands, contrary to the rules of limitation of contingent estates in conveyances at law. |