imports an immediate possession. Therefore, though a lease to A. for seven years, to commence from next Michaelmas, is good; yet a conveyance to B. of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A. for three years, with remainder to B. in fee, and makes livery of seizin to A.; here by the livery the freehold is immediately created, and vested in B., during the continuance of A.'s term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seized of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must, indeed, be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in fu

turo.

will can not

As no remainder can be created without such a precedent An estate at particular estate, therefore the particular estate is said to sup- support a port the remainder. But a lease at will is not held to be such remainder. à particular estate as will support a remainder over. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder." Besides, if it be a freehold remainder, livery of seizin must be given at the time of its creation; and the entry of the grantor to do this determines the estate at will in the very instant in [167] which it is made :s or if the remainder be a chattel interest, though, perhaps, the deed of creation might operate as a future contract, if the tenant for years be a party to it, yet it is void by way of remainder; for it is a separate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the pre

estate is de

also.

If particular ceding particular estate is taken. And hence it is generally feated, re- true, that if the particular estate is void in its creation, or mainder is by any means is defeated afterward, the remainder supported thereby shall be defeated also: as where the particular estate is an estate for the life of a person not in esse ;k or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate ; in either of these cases the remainder over is void.

2. Remainder and particular estate must

pass out of grantor at

6

2. A second rule to be observed is this: that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate.m As where there is an estate to A. for life, with remainder to B. in fee: here B.'s resame time. mainder in fee passes from the grantor at the same time that seizin is delivered to A. of his life estate in possession. And it is this which induces the necessity at common law of livery of seizin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seizin, in order to convey the freehold from and out of the grantor, otherwise the remainder is void. Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet can not be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and enure to him in remainder, as both are but one estate in law." 3. A third rule respecting remainders is this: that the re3. Remain- mainder must vest in the grantee during the continuance of

[168]

der must

vest instant

ly upon determination of particular estate.

(7) The possession of a tenant for years is considered by the law to be the seizin of the reversioner or freeholder; so that where land is conveyed to A. for years, remainder to B. for life or in fee, and seizin is given to A., the effect is, that B. becomes presently seized in possession, by reason of the occupation of A., his tenant for years. In truth, the term "remainder" is not strictly applicable to an estate of freehold expectant upon an estate for years, at least when created by a common-law conveyance; it has all the properties and incidents of a reversion, if we look at the right to the possession, and, if we confine our regard

to the freehold, of an estate in possession. Thus, an estate-tail expectant on a term of years is considered to be in possession. "It is said that an estate-tail limited after an estate for years is a re mainder. I deny that, as a general prop osition. Can any case be shown where an estate for years was given to A., with limitation over to B. for life or in fee, and B. was held not to take an immediate estate of freehold?" (Per Patteson, J., 4 B. & Ad., 306.) Hence it is that a contingent remainder can not be expectant upon a term of years merely; for the seizin can not remain in the termor, and, until the event happens, it can not pass out of him to the contingent remainder-man; it therefore passes on and vests in the next vested remainder-man, or in the reversioner, forever shutting out the contingent estate.

As, if

the particular estate, or eo instanti that it determines.
A. be tenant for life, remainder to B. in tail: here B.'s remain-
der is vested in him, at the creation of the particular estate to A.
for life; or if A. and B. be tenants for their joint lives, remain-
der to the survivor in fee; here, though during their joint lives
the remainder is vested in neither, yet on the death of either of
them the remainder vests instantly in the survivor; wherefore
both these are good remainders. But, if an estate be limited
to A. for life, remainder to the eldest son of B. in tail, and A.
dies before B. hath any son, here the remainder will be void,
for it did not vest in any one during the continuance, nor at the
determination, of the particular estate; and even supposing that
B. should afterward have a son, he shall not take by this re-
mainder; for, as it did not vest at or before the end of the par-
ticular estate, it never can vest at all, but is gone forever. And
this depends upon the principle before laid down, that the pre-
cedent particular estate, and the remainder, are one estate in
law; they must, therefore, subsist and be in esse at one and the
same instant of time, either during the continuance of the first
estate, or at the very instant when that determines, so that no
other estate can possibly come between them. For there can
be no intervening estate between the particular estate and the
remainder supported thereby the thing supported must fall
to the ground, if once its support be severed from it.

mainder.

It is upon these rules, but principally the last, that the doc- Vested retrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed whereby a present interest passes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent. As, if A. be tenant for twenty years, remainder to B. [169] in fee; here B.'s is a vested remainder, which nothing can defeat or set aside.

Contingent or executory remainders (whereby no present in- Contingent terest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect.s

P Plowd., 25. 1 Rep., 66. 4 1 Rep., 138.

(8) "It is not the uncertainty of ever taking effect in possession that makes a remainder contingent, for to that every remainder for life or in tail is and must be liable, as the remainder-man may die, or die without issue, before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant,

3 Rep., 21.
3 Rep., 20.

and not the certainty that the possession
will become vacant before the estate
limited in remainder determines, univer-
sally distinguishes a vested remainder
from one that is contingent. For in-
stance, if there be a lease for life to A.,
remainder to B. for life; here the re-
mainder to B., although it may possibly
never take effect in possession, because

May be limited to dubious person, as unborn

child.

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 been 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 enceinte, 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 Salk., 228. 4 Mod., 282.

"See vol. i., p. 130.

B. may die before A., yet, from the very is that referred to in the text, arose on a
instant of its limitation, it is capable of will; and in the argument for the posthu-
taking effect in possession, if the posses- mous son, it was not contended that he
sion were to fall by the death of A. It could take, if his estate was a contingent
is, therefore, vested in interest, though, remainder, but that it was an executory
perhaps, the interest so vested may de- devise, to which the rule did not apply.
termine by B.'s death before the posses- (See post, p. 173.) The statute was
sion he waits for may become vacant.' passed on account of the dissatisfaction
(Fearne on Contingent Remainders, 216, of the judges with the decision of the
7th ed.)
House of Lords in his favor, a decision
grounded rather on the hardship of the
case than on legal principles. The stat
ute merely speaks of marriage or other
settlements, and is silent as to wills;
whether the lords thought that their de
cision had settled the law as to wills,
and therefore that it was unnecessary,
or whether the word was omitted from
delicacy, as the insertion of it would
have implied that their previous judg
ment was wrong. It is understood, how-
ever, that wills are includ: d in it, or
governed by the same rule. The words
of the statute being, that the posthumous
child shall take "in the same manuer"
as if born in the lifetime of the parent,
he is entitled to the intermediate profits
from the death of the parent; whereas,
where the birth of a posthumous child
(9) The case of Reeve v. Long, which divests an estate which has descended

It may be added, that a vested remainder may be conveyed by the person entitled to it, and limited in particular estates and remainders, just in the same manner as if it were an estate in possession; but a contingent remainder can not be directly conveyed at common law; although there are indirect means of producing, in particular cases, nearly the same result that a direct conveyance, if it were allowable, would effect. Contingent estates and interests, of whatever nature, may now be passed by will (stat. 11 Will. IV. & 1 Vict., c. 26); a privilege which it seems did not formerly exist where the contingency was as to the person to take. (3 T. R., 88; 2 Mau. & S., 165.)*

Such estates are not only devisable in New York, but they are descendible

and alienable.-(1 R. S., 725, § 35.)

There is a similar provision in the statutes of New York in favor of posthu mous children.-(1 R. S., 725, § 30, 31.)

in esse, when

determines,

This species of contingent remainders to a person not in be- Potentia propinqua ing must, however, be limited to some one that may, by com- of the permon possibility, or potentia propinqua, be in esse at or before son's being the particular estate determines.w As if an estate be made to the preceA. for life, remainder to the heirs of B.; now if A. dies before dent estate B., the remainder is at an end; for during B.'s life he has no necessary. heir, nemo est hæres viventis; but if B. dies first, the remain- [170] der then immediately vests in his heir, who will 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, Possibility that such a person as B. shall be born; and, secondly, that he sibility. 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.z* A limitation of a remainder, to a bastard before it is born, is not good ;a10 for, though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency.' Thus may a remain

* 2 Rep., 51.
* Co. Litt., 378.
y Hob., 33.

on an heir at law, and such child takes by descent, the intermediate heir retains the profits.-[COLERIDGE.] (See 2 Ves. Jun., 673; 4 Id., 342; 11 Id., 139; 2 Ves. & B., 367.)

(10) This rule, with respect to illegitimate children, is not founded on any notion of the improbability of the event of such children being born, but rather on the policy of the law, and the maxim that a bastard can not with certainty be ascertained to be the issue of a particular man, and can only take, as such, under a gift made after he has become known by reputation as the child of that man. (17 Ves., 531; Meriv., 153; 1 Sim. & St., 81; 1 Ves. & B., 446.)

(11) No writer has ever given an intelligible account of this supposed rule against a "possibility upon a possibility.' (See Fearne, C. R., 250.) All the light

10

11

z 5 Rep., 51.

a Cro. Eliz., 509.

that Mr. Butler could throw upon the
subject was conveyed in these words:
that "the expression must not be under-
stood in too large a sense;" and in a ref-
erence to the case of Routledge v. Dor-
ril (2 Ves. Jun., 357), where a trust was
held valid, although, before it could take
effect, four contingent events must have
happened: that a husband and wife
should have a child; that such child
should have a child; that such last-men-
tioned child should be alive at the de-
cease of the survivor of his grandfather
and grandmother; and that if such child
were a grandson, he should attain twen-
ty-one; if a daughter, attain that age or
marry. (Butl. Fearne, C. R., p. 251.)
It may safely be asserted that, at the
present day, the supposed rule, so far as
it is not identical with the rule against
perpetuities, to be noticed presently, has
no existence.

The Real Property Commissioners, in

It is declared by statute in New York, that no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited taking effect.-(1 R. S., 724, § 26.)

upon a pos