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Contingent remainders may be defeated by destroying or de Defeated, if termining the particular estate upon which they depend before estate de

feated. ed this definition of a vested remainder: der, therefore, does not depend upon its "A remainder is vested at any moment, amount, extent, or duration, but only if, in case the preceding estate of free on the manner in which it is limited to hold were to determine by any means commence; and hence may be deduced at that moment, the remainder would this simple and sure test by which to debe capable of taking effect in possession.” termine any difficult case. Suppose the

These definitions exclude from the remainder in question to be a remainder class of contingent remainders such a in fee-simple, and then see whether it is limitation as the following: To A. for so limited as necessarily to take effect at his own life, and after the determination the moment when, by whatever means, of that estate to B. for his own life; the preceding estate of freehold determwhere, although in a popular sense B.'s ines; if it is so limited, it is vested; if estate might be said to be contingent not, it is contingent. Applying this test upon his surviving A., since, if he were to the two examples given above, they to die during the continuance of A.'s es- both become a limitation to A. for life, tate, he could never come into posses- remainder to B. in fee; here (setting sion; yet this happens, not because there aside the possibility of a failure of heirs is any event to wait for, but because the of B.) B. or his heirs must necessarily estate or remainder to B. is already spent take on A.'s death, whenever that may and gone, so that the contingency arises happen. out of the event on which the remainder Here it may be remarked, that a reis limited to determine, and not out of mainder which was contingent at the the mode of its commencement; which time of its creation may become vested latter is all that is regarded in determin- by subsequent events, before it falls into ing the question of contingency. The possession; as, for instance, where land common limitation to prevent dower af. is limited to A. for life, remainder to B. fords a still more striking, illustration. if he shall have attained his majority, “To A. for his own life, and, on the de- Here, while B. is under age, his remaintermination of that estate by forfeiture der is contingent, since A. may possibly or otherwise,* to B. and his heirs during die or commit a forfeiture during B.'s the life of A., remainder to A., his heirs minority; but, as soon as B. attains the and assigns.

Here, unless A., by for- age of twenty-one, his estate becomes feiture or some other improbable means, vested, though still suspended in point puts an end to his estate in his own life- of enjoyment during A.'s life, and theretime, the estate limited to B. can never fore stiĩl a remainder. take effect in possession; for the only Again, there may be a quasi vesting other event which would entitle B., of a remainder, which is called a vesting namely, A.'s death, does at the same mo- subject to be devested. Of this a limitment put an end to B.'s estate. Yet ation to A. for life, remainder to all the since, whenever the previous estate de- children of B. as tenants in common in termines, B.'s estate is limited to com- fee, affords an example. Here, if there mence, it is said to be vested in him. be a child of B. already in existence, the

The contingent nature of a remain- entire remainder vests in such child; but

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* This limitation is most frequently their most improved form, has himself incorrectly worded as follows: "To A. (as well as his able editor, Mr. Butler) for his life, and after the determination fallen into this error. (See Cont. Rem., of that estate by forfeiture or otherwise, p. 347, n., 7th ed.; Smith d. Dormer v. in the lifetime of A., to B. for the life of Parkhurst, 17 Vin., 413; Hooker v. A.,” which would give a contingent re- Hooker, Cas. tem. Hardw., 13, overrul. mainder to B.; contingent, that is to say, ing. Cordal's case, Cro. El., 315.) In a on A.'s committing a forfeiture, as will limitation to trustees to preserve continbe seen at once if we suppose the lim- gent remainders, the error is of less imitation to be to B. in fee, instead of for portance, for a reason that will be obvithe life of A., in which case, if A. died ous to the learned reader. It should be without committing a forfeiture, B. would added, however, that the contingent natake nothing, his estate being to take ef- ture of the ordinary limitation to trustees fect only on the determination of A.'s to bar dower is denied in an ingenious estate in A.'s lifetime. It is very re- and well-written article on Remainders markable that Mr. Fearne, to whom we in the Penny Cyclopedia, attributed to i we the liinitations to prevent dower in the pen of Mr. G. Long.

the contingency happens whereby they become vested.c There-
fore, 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

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 Therefore, all.* In these cases, therefore, it is necessary to have trustees

appointed to preserve the contingent remainders, in whom there contingent is vested an estate in remainder for the life of the tenant for remainders necessary.

< 1 Rep., 66, 135.

trustees to preserve




as soon as another child comes into ex- to A. for life, remainder to B. for life
istence, one moiety of the estate shifts and if B. die before A., remainder to C
away from the first-born child, and vests for life, here the remainder to C. is con-
in the other; and upon the birth of a tingent on an event collateral to the de.
third, one third of each of the shares of termination of the particular estate. (3
the two elder children shifts from them Rep., 20, a; 10 Rep., 85.)
to such younger child, and so on until Thirdly, where the condition upon
A.'s death. (Fearne, Cont. Rem., 312, which the remainder is limited is cer-
7th ed.).

tain in event, but the determination of Mr. Fearne's classification of contin- the particular estate may happen before gent remainders is so often referred to, it.” As, if a lease be made to A. for life, that it will be proper to subjoin a brief and after the death of A. and M. the reaccount of it.

mainder to B. in fee. (Pollexf., 57.) He defines a contingent remainder to Fourthly, where the person to whom be “a remainder limited, so as to de- the remainder is limited is not yet ascerpend on an event or condition which tained, or not yet in being." As, if a may never happen or be performed, or lease be made to A. for life, remainder which may not happen or be performed to the right heirs of J. S.; where, as no till after the determination of the pre- one can be heir to J. S. until his death ceding estate;" and under this definition (for nemo est hæres viventis), such rehe distinguishes four sorts of contingent mainder is contingent until his death. remainders.

(Co. Litt., 378.) So, if an estate be lim"First, where the remainder depends ited to two for life, remainder to the surentirely on a contingent determination vivor of them in fee, the remainder is of the preceding estate itself.” As, if A. contingent, for it is uncertain who will makes a feoffment to the use of B. till be the survivor. (Cro. Car., 102.) C. returns from Rome, and after such re- See some comments on this classificaturn of C., then to remain over in fee. tion, 1 Hayes, Introd. to Conv., p. 335, (3 Rep., 20, a.)

where the learned author proposes the “ Secondly, where the contingency on following definition or description of a which the remainder is to take effect is contingent remainder: “A legal limitaindependent of the determination of the tion adapted to confer, on the happenpreceding estate," or, in other words, ing of an uncertain event, an estate of as where some uncertain event, uncon- freehold or inheritance, immediately on nected with and collateral to the determ- the natural determination of a preceding ination of the preceding estate, is, by legal limitation, contained in the same the nature of the limitation, to precede instrument, of a particular vested estate the remainder.As, if a lease be made of freehold or inheritance."


* An expectant estate can not be thus defeated in New York.-(1 R. S., 725. $ 32.)


life, to commence when his estate determines.' If, therefore, his estate for life determines otherwise than by his death, the estate of the trustees, for the residue of his natural life, will then take effect, and become a particular estate in possession, suffi- [172] cient 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 counsel, 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 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


Thus the student will observe how much nicety is required Remainders in creating and securing a remainder; and I trust he will, in controlled by some measure, see the general reasons upon which this nicety these rules, is founded. It were endless to attempt to enter upon the par- executory ticular subtilties and refinements into which this doctrine, by devises. 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

14 d See Moor., 486. 2 Roll. Abr., 797, pl. 12. 2 Sid., 159. 2 Chan. Rep., 170.


(13) Infra, p. 177, n. (23). Trustees in tail, remainder to the heirs of Jane to support contingent remainders are not Wood; she takes an estate for life with essential in copyholds, the lord's estate the ultimate remainder to herself in fee; sufficing. (10 Ves., 282; 16 East, 406.) and such remainder descending to her

heir, would be descendible from him to (14) The student will now be prepar- the heirs ex parte materna.*

Rule in ed to understand the celebrated rule of To prevent the operation of this rule, Shelley's law, commonly called The Rule in Shel- it is the practice in settlements where it case. ley's Case, on account of the following is desired to confine the ancestor to a life distinct announcement of it which oc- estate, and yet to make the estate decurred in that case. (1 Rep., 104, a.) scend to his issue, to avoid the use of the It is a rule in law, when the ancestor word heirs, or any equivalent phrase, by any gift or conveyance takes an es- and to describe the first generation of istate of freehold, and in the same gift or sue as children: thus, to A. during his conveyance an estate is limited mediate- life, and after the determination of that ly or immediately to his heirs in fee or estate to B. and his heirs during the life in tail, that always in such cases the of A., in trust for A. and his assigns, and heirs’ are words of limitation of the es- to preserve the subsequent contingent tate, and not words of purchase.” And remainders (vide supra, p. 171); and aftthis is a strict rule of law, which can not er the determination of that estate, to the be prevented by any expression of in- first son of A., and the heirs of the body tention to the contrary. Thus, if a lim- of such first son; remainder to the sec. itation is made to Jane Wood for life, ond son of A., and the heirs of his body; remainder to B. for life, remainder to C. with remainder to the third, fourth, and

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* The rule in Shelley's case is abolished in New York, it being enacted that “where a remainder shall be limited to the heir or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall be the heir 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."-(1 R. S., 725, D 26.)

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must not, however, omit, that in devises by last will and testa-
ment (which, being often drawn up when the party is inops con-
silii, are always more favored 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 allow such dispositions to be strictly re-
mainders, but call them by another name, that of executory de-

vises, or devises hereafter to be executed.
Executory An executory devise of lands is such a disposition of them

by will, that thereby no estate vests at the death of the devi-
sor, but only on some future contingency. It differs from a

remainder in three very material points: 1. That it needs not [173] any 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.
No particu- 1. The first case happens when a man devises a future estate
lar estate

to arise upon a contingency; and, till that contingency hapto support pens, 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 con-
tingent 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 exec-

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every other son of the body successively, this greater laxity is, that the Statute of
according to seniority, and the heirs of Wills (p. 375), by enabling a testator to
their respective bodies ; remainder to all vest the freehold at his death in whom
the daughters of A., and the heirs of their he pleased, without any public act or
bodies as tenants in common, with cross actual tradition of seizin, struck at the
remainders between them. Here the very root of the common-law rules as to
estate is limited to be enjoyed in nearly future estates, which were founded on
the same manner as if it had descended the assumption that actual delivery of
from A., and yet, by avoiding any limit- the seizin was necessary to pass a free-
ation to his heirs as such, the operation hold estate, and render them inapplica-
of the rule in Shelley's case is prevented, ble to dispositions by will. Had the
and A. takes no estate of inheritance. courts adopted a different rule of con-

For a further account of this rule, upon struction, and required that all future es-
which a vast quantity of intricate learn- tates given by will should be supported
ing depends, see Fearne, C. R., 76; by the seizin of the first devisee, they
Hayes's “ Principles for expounding Dis. would have put it in the power of such
positions to Ancestor and Heirs in Tail;” particular devisee to defeat all the ulte-
i Hayes's Introduction to Conveyancing, rior limitations, by colluding with the

heir, and refusing to take upon himself

the devised estate. (15) This definition is too large, for it An executory devise is thus defined includes contingent remainders given by by a distinguished writer: “Every dewill, which are subject in all respects vise of a future interest which is not preto the same rules which govern the like ceded by an estate of freehold created limitations in deeds, while the term “ex. by the same will, or which, being so ecutory devise” is properly used to des- preceded, is limited to take effect beignate those limitations which the law fore or after, and not at the expiration allows to be made in a will, though con- of such prior estate of freehold, is an extrary to the rules of limitation in convey: ecutory devise.” (1 Jarm., Wills. 778.) ances at common law. The reason of

p. 542.








utory devise. For since by a devise a freehold may pass. without corporeal tradition or livery of seizin (as it must do if it passes at all), therefore it may commence in futuro; because the principal reason why it can not commence in futuro in other cases is the necessity of actual seizin, which always operates in presenti. 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 its unity with the particular estate, a present interest. And hence, also, it follows that such an executory devise, not being a present interest, can not be barred by a recovery suffered before it

2. By executory devise a fee, or other less estate, may be 2. Execato limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder” thereon, to fee, or less commence on a future contingency. As, if a man devises land a fee. to A. and his heirs; but if he dies before the age of twentyone, 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 term of years, for courts of justice will not indulge even wills, so as [174] to create a perpetuity, which the law abhors ;h because by perpetuities (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienationi), 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 Must take that has been hitherto allowed for the contingency of an execu- in a certain tory devise of either kind to happen in is that of a life or lives period. in being, and one-and-twenty years afterward. 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.k18



e 1 Sid., 153.
[ Cro. Jac., 593.
& 2 Mod., 289.

h 12 Mod., 287. 1 Vern., 164.
i Salk., 229.
< Forr., 232.

(16) But if the devise was to a per- (17) The estate here contemplated is son sui juris, and he joined in the recov, an estate to arise in defeasance of the ery as vouchee, his right, it seems, was preceding fee-simple, and can not propbarred (Cro. Jac., 393); and executory erly be called a remainder, as our aulimitations, or devises limited upon an thor has himself informed us in another estate-tail, were destructible by a recov- place. (Ante, p. 164.) ery suffered by the tenant in tail, and may now be discharged by means of the (18) This is the famous rule against Rule enrolled conveyance, which is used in perpetuities, unknown, it seems, to the against per lieu of a recovery. (Stat. 3 & 4 Will. ancient common law (ante, p. 170, n. IV., c. 74.)

(11) ), and yet purely a creation of the
judges, unaided by any act of Parliament,


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