over, after the death of B., to C. in fee, gives a vested remainder to C., notwithstanding it is limited to take effect on the death of A., which possibly may not happen until after the expiration of the preceding estate for eighty years. The possibility that a life in being will endure thereafter for that period, is so exceedingly small, that it does not amount to a degree of uncertainty sufficient to constitute a contingent remainder. If, however, the limitation had been for a term of years so short, say twentyone years, as to leave a common possibility that the life on which it is determinable may exceed it, then the remainder would be contingent, and there must be a present vested freehold estate to support it, and prevent the limitation over from being Void as a freehold to commence in futuro."

Exceptions exist also to the generality of the rule which governs the fourth class of contingent remainders. 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 termination of the life estate in B., the heirs of A. take by descent as heirs, and not by pur

a Napper v. Sanders, Hutten, 118. Opinion of Lord Ch. J. Hale, in Weall v. Lower, Pollexfcn, 67. Fearne, p. 17—23. VOL. IV.

26

chase. 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. The rule does not operate so as absolutely to merge the particular estate of freehold, where the limitations intervening between the preceding freehold and the subsequent limitation to the heirs, are contingent, because that would destroy such intervening limitations. The two limitations are united, and executed in the ancestor, only until such time as the intervening limitations become vested, and they then open and become separate, in order to admit such limitations as they arise. But if the estate limited to the ancestor be merely an equitable, or trust estate, and the subsequent limitation to his heirs carries the legal estate, the two estates will not incorporate into an estate of inheritance in the ancestor, as would have been the case under the rule in Shelley's case, if they had been of one quality, that is, both legal or both equitable estates, and the limitation to the heirs will operate as a contingent remainder.d

a Shelley's case, 1 Co. 104.

b Fearne on Rem. 32.

c Fearne, 36.

2 Rol. Abr. 417.

d Tippin v. Cosin, Carth. 272. 4 Mod. Rep. 380. S. C. Jones v. Lord Say and Seal, 8 Viner, 262. pl. 19. Shapland v. Smith, 1 Bro. 75. Silvester v. Wilson, 2 Term Rep. 444. Mr. Fearne on Remainders, p. 67. supposes the rule to be the same if the case was reversed, and the ancestor had the legal estate, and the limitation over to his heirs was an equitable estate, as in a devise to A. for life, and after

The freehold in the ancestor, and the limitation to his heirs, must be by the same deed or instrument, or they will not consolidate in the ancestor. If he acquires the freehold by one deed, and the limitation to his heirs be by another, the limitation will continue, as it originally was, a contingent remainder. But if the estate be limited to A. for life by one deed, and afterwards, in his lifetime, to the heirs of his body, under the execution of a power of appoint

his death to the use of trustees, in trust for the heirs of his body. If such a devise in trust would not be a trust or use executed by the statute of uses, or entitled to the same construction as a legal estate, as I should think that it ought under the doctrine in Wright v. Pearson, (1 Eden, 119.) yet the N. Y. Revised Statutes would operate to destroy such a trust, for it is declared, (vol. i. 727, 728. sec. 47. 49.) that every disposition of lands by deed or devise, shall be directly to the person in whom the right to the possession and profits shall be intended to be vested, and not to any other to the use of, or in trust for, such person; and if made to one or more persons, to the use of, or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee. The legal estate is attached to the beneficial interest. There would be no difficulty, therefore, under that statute, of the union of the two estates in the case stated by Mr. Fearne, for they would both be legal estates; and, upon the doctrine of the English law, the devisee for life would take an estate tail. But another insuperable obstacle to that conclusion occurs under the N. Y. Revised Statutes, which have destroyed the rule in Shelley's case, root and branch. It is declared, (N. Y. Revised Statutes, vol. i. 725. sec. 28.) 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 premises 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. The limitation, then, in the case stated by Mr. Fearne, instead of being an estate tail, settles down into a contingent remainder. This is arriving, diverso intuitu, to the same result with the English theory. The extent and consequences of this alteration in the doctrine of real estates, we shall have occasion to consider hereafter.

a Moore v. Parker, 1 Lord Raym. 37. where Lord Ch. J. Holt traces back the distinction to 29 Edw. III. Doe v. Founereau, Doug. Rep. 487.

ment contained in the same deed, the limitations unite according to the general rule; and on this principle, that a limitation under a power contained in a conveyance to uses, operates as a use created by, and arising under, the conveyance itself. It is a branch of one and the same settlement. This arises from the retrospective relation which appointments bear to the instrument containing the power.

Another exception to the fourth class of contingent remainders, is where there is a limitation by a special designation by will, to the heirs of a person in esse, as to the heirs of the body of A. now living. The limitation is deemed to be vested in, the heirs so designated by purchase, and, consequently, there is no contingent remainder in the Heirs are construed here to be words of purchase, and not of limitation, in order to carry into effect the manifest intention of the testator, which, in this instance, controls the common law maxim, that nemo est hæres viventis. There is also a class of cases under this branch of the law of remainder, which relate to the condition annex

case.

a Butler's note, 261. to 2 Co. Litt. 299. b. The observations of Mr. Fearne, on this point, are with his usual acuteness.-Fearne on Rem.

85.

b Mr. Preston, on Abstracts of Title, vol. i. 115. speaks too generally, when he says that all estates, arising from the execution of powers, operate by way of executory devise, or shifting use. There is no doubt that a remainder may arise under the execution of a power. -Cornish on Remainders, p. 45.

c Burchett v. Durdant, 2 Vent. 311. James v. Richardson, 2 Jones Rep. 99. 2 Lev. 232. S. C. Goodright v. White, 2 Blacks. Rep. 1010. Lord Coke says, (Co. Litt. 24. b.) that if lands be given to A. and the heirs female of his body, and he dies leaving a son and daughter, the daughter shall inherit. But if A. hath a son and daughter, and a lease for life be made, remainder to the heirs female of the body of A., the heir female takes nothing, for she must be both heir and heir female to take by purchase, and her brother and not she is heir. The distinction turns on the difference between the operation of words of limitation, and words of purchase. In the first case, the daughter takes by descent, and in the second she takes by purchase.

ed to a preceding estate, and which give rise to the question whether it be not a condition precedent tending to give effect to the ulterior limitations. Mr. Fearne distinguishes such cases into three classes; first, where there are limitations after a preceding estate which is made to depend on a contingency that never takes effect; and the decisions show, that in order to support the testator's intention, the contingency is deemed to affect only the estate to which it is annexed, without extending to, or running over, the whole ulterior train of limitations. Secondly limitations over upon a conditional contingent determination of a preceding estate, where such preceding estate never takes effect. Here there is no apparent distinction between the preceding estate and those which follow it, and, consequently, the contingency will extend to, and connect itself with, all the subsequent limitations, and destroy them as contingent remainders, depending on a contingency which never hap

and must answer to the whole description, of being both heir and female. Mr. Hargrave, in a long and learned note, (note 145.) undertakes to vindicate the reasonableness and solidity of this distinction of Lord Coke, against the severity of modern criticism. Mr. Fearne, (p. 277.) refers with great approbation to this note of Mr. Hargrave; but I notice it only as one strong illustration of the fact, that the English law of real property has, in the lapse of ages, become encumbered with much technical and abstruse refinement, which destroys its simplicity and good sense, and renders it almost impossible for ordinary minds to obtain the mastery of the science. Lord Chancellor Cowper's scorn of this distinction is very apparent in his powerful and spirited opinion in Brown v. Barkham, (Prec. in Chan. 461.) where he says, that "it has no foundation in natural reason, but is raised and supported purely by the artificial reasoning of lawyers."Lord Hardwicke, also, when the same case was brought before him, on a bill of review, declared himself "fully convinced of the unreasonableness of the rule," though he bowed to the authority of it. a Essay on Rem. p. 300.

Napper v. Sanders, Hutton, 119. Tracey v. Lethieulier, 3 Atk. Rep. 774. Amb. 204. S. C. Horton v. Whitaker, 1 Term Rep.

346.