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distinction between vested and contingent remainders are so nicely drawn, that they are sometimes difficult to be traced, and, in some instances, a vested remainder would seem to possess the essential qualities of a contingent estate. The struggle with the courts has been for that construction which tends to support the remainder by giving it a vested character; for if the remainder be contingent, it is in the power of the particular Tenant to doleat it by a fine or feoffment. The courts have been subtle and scrutinizing in their discriminations between vested and contingent remainders. The stability of title has depended very much on the distinction, and the judges observed, in the case of Parkhurst v. Smith,a that if they were to adopt the definition of a contingent remainder contended for, upon the argument, they would overturn all the settlements that ever were made.
A limitation, after a power of appointment, as to the use of A. for life, remainder to such use as A. shall appoint, and, in default of appointment, remainder to B., is a vested remainder, though liable to be devested by the execution of the power. The better opinion also is, that if there be a devise to trustees and their heirs, qurmy the minority of a beneficial devisee, and then to him, or upon trust to convey to him, it conveys a vested remainder in fee, and takes effect in possession when the devisee attains twenty-one. The general rule is, that a trust estate is not to continue beyond the period required by the purposes of the trust. and notwithstanding the devise is to trustees and their heirs, they take only a chattel interests for the trust in such a case, does not require an estate of a higher quality. If the devisee dies before the age of twenty-one, the estate descends to his heirs as a vested inheritance. The Master of the Rolls said, that the trustees in such a case had an
u Willes' Rep. 337. b Cunningham v. Moody, 1 Vesey's Rep. 174. Doe v. Martin, 4 T'erm Rep. 39.
estate for so many years as the minority of the devise might last.
Vested remainders are actual estates, and may be con· veyed by any of the conveyances operating by force of the
statute of uses. Where estates tail exist, they may be de. stroyed by a common recovery suffered by the tenant in tail, for that destroys every thing, as well remainders and reversions, as all ulterior limitations, whether by shifting use or executory devise. But if a particular tenant for life or years, on whose estate a vested remainder depends, makes a tortious conveyance which merely works a forfeiture of his particular estate, and does not ransack the whole estate, the next remainder-man whose estate was disturbed and displaced, may take advantage of the forfeiture, and enter.b
Wherę a remainder is limited to the use of several persons, who do not all become capable at the same time, as a devise to A, for life, remainder to his children, the children living at the death of the testator take vested remainders, subject to be disturbed by after-born children. There. mainder vests in the persons first becoming capable, and the estate opens and becomes devested in quantity by the birth of subsequent children, who are let in to take vested proportions of the estate.
a Doe v. Lea, 3 Term Rep. 41. Stanley v. Stanley, 16 Vesey's Rep. 491. Doe v. Nicholls, 1 Barnw. of Cress. 336. Mr. Cornish, in his Essay on Remainders, 105. 107. considers this principle as a glaring anomaly in the law, holding an estate with' words of inheritance, a mere chattel devolvable upon executors; and that if it was to be applied to conveyances instead of wills, it would extirpate the must rooted principles of the system of property.
6 Litt. sec. 416. Co. Litt. 252. a.
c Fearne, p. 394—396. Doe v. Perryn, 3 Term Rep. 484. Lawrence v. Maggs, 1 Eden, 453. Doe v. Provoost, 4 Johns. Rep. 61. Right v. Creber, 5 Barnw. & Cresi. 866. Annable v. Patch, 3 Pickering, 360.
(3.) Of the nature and variety of contingent remainders.
A contingent remainder is limited so as to depend on an event or condition which is dubious and uncertain, and may never happen or be performed, or not until after the determination of the particular estate. It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and contingent interest. The contingency on which the remainder is made to depend, must be a common, or near possibility, as death, or death without issue, or coverture. If it be founded on a remote possibility, as a remainder to a corporation not then in being, or to the heirs of B., who is not then in being, (and which the law terms a possibility upon a possibility) the remainder is void. The definition of a contingent remainder embraces four species of them, and Mr. Fearne is of opinion, that every known instance of a contingent remainder may be reduced to one or the other of the following classes.
(1.) The first sort is where the remainder depends on a contingent determination of the preceding estate, and it remains uncertain whether the use or estate limited in futuro, shall ever vest. Thus, if A. makes a feoffment to the use of B., till C. returns from Rome, and after such return the estate to remain over in fee, the remainder over depends entirely on the uncertain or contingent determination of the estate in B., by the return of C. from Rome.
(2.) The second sort is where the contingency on which
a Fearne on Rem. 3. Preston on Estates, vol. i. 71. 74. ' 6 The Mayor of London v. Alford, Cro. C. 576. 2 Co. 51. Cholmley's case. This difficulty is provided for by the N. Y. Revised Statutes, vol. i. 724. sec. 26. which declare that no future estate, otherwise valid, should be void, on the ground of the probability or improbability of the contingency on which it is limited to take effect.
c 3 Co. 20. a. b. Lovie's Case, 10 Co. 85. a.
the remainder is to take effect is independent of the determination of the preceding estate, as if a lease be to A, for life, remainder to B. for life, and if B. die 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. 6 . (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. cannot 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.
a 3 Co. 20. a. Co. Litt. 378. a. 6 3 Co. 20. a.
c Cro. C. 102. 3 Co. 20. a. Fearne, p. 3–6. The examples which are here cited by Mr. Fearne to support and illustrate this classification of contingent remainders are mostly taken from Boraston's case, 3 Co. 19. As Mr. Fearne's treatise has attained the anthority of a text book on this abstruse branch of the law, I have followed, though without entirely approving of his arrangement. The more comprehensive division by Sir William Blackstone, has the advantage of being less complex, and more simple. The definition in the N. Y. Revised Statutes, vol. i. 723. sec. 13. is brief and precise. A remainder, says the statute, is contingent, whilst the person to whom, or the event upon which it is limited to take effect, remains uncertain. Contin
There is a distinction which operates by way of exception to the third class of contingent remainders. Thus a limitation for a long term of years, as, for instance, to A. for eighty years, if B. should live so long, with remainder
gent remainders are divided by Sir William Blackstone into two kinds, viz, remainders limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event. The three first of Mr. Fearne's remainders are all resolvable into the contingency of a dubious and uncertain event, and it is only the last that is limited to a dubious and uncertain person. Lord Ch. J. Willes, in the opinion which he gave before the House of Lords, on behalf of all the judges, in the case of Parkhurst v. Smith, (Willes' Rep. 327.) declared, that there were but two sorts of contingent remainders; (1.) Where the person to whom the remainder was limited was not in esse ; (2.) Where the commencement of the remainder depended on some matter collateral to the determination of the particular estate. He put, as an instance of the second kind, the case of a limitation to A. for life, remainder to B. after the death of C., or when D. returns from Rome; and Mr. Fearne's three first species of contingent remainders are included under the second class here stated. It must be admitted, in the words of Ch. J. Willes, that “ the notion of a contingent remainder is a matter of a good deal of nicety.” Professor Wooddeson, in his Vinerian Lectures, (vol. ï. 191.) though he had the classification of Mr. Fearne before him, followed that of his illustrious predecessor. Mr. Cornish, in his recent work, severely criticises Mr. Fearne's classification of contingent remainders as not being tenable, though he admits that it imparted a beautiful and scientific arrangement to his essay. Three of Mr. Fearne's sorts of remainders are avowedly identical. Mr. Cruise, on the other hand, in his Digest, has closely copied the arrangement of Mr. Fearne. On this vexatious subject of classifications, I am disposed to concur in the criticisms of Mr. Cor. nish; but in recurring to the chapter on expectant estates, in the commentaries of Sir William Blackstone, what a relief to the patience and taste of the reader! The doctrine of remainders, whether vested or contingent, is there most ably digested, and reduced to a few simple elementary principles. Its merits have never been duly acknowledged by subsequent writers on the subject. It far surpasses them all, if we take into one combined view, its perspicuity, simplicity, comprehension, compactness, neatness, accuracy, and admirable precision. I have read the chapter frequently, but never without a mixture of delight and despair.