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the subjecy of remainders, there is one case which forms an exception to the rule that a preceding particular estate of sehold is requisite to support contingent limitations, agird that is where the legal estate is vested in trustees. The estate will continue, in that instance, notwithstanding the failure of an intermediate life estate, until the persons who were to take the contingent remainder should come in esse, and in the interval the rents will belong to the grantor, or to his heirs by way of resulting trust.
(7.) of the time within which a contingent remainder must veste
The interest to be limited as a remainder, either vested or contigent, must commence or pass out of the grantor in the same instrument, and at the time of the creation of w particular estate, and not afterwards. It must vest in the grantee, either in esse, or by right of entry, during the continuance of the particular estate, or at the very instant that it determines. The rule was founded on feudal principles, and was intended to avoid the inconvenience of an
a Fearne, p. 383, 384. Preston on Estates, vol. i. 241. In Hopkins v. Hopkins, Cases lemp. Talbot, 43., Lord' Talbot considered such a limitation as good by way of executory devise, but, afterwards, in Chapman v. Blissett, ibid, 145, he held it to be good either way, and might be taken as a future limitation, or as a contingent remainder of a trust. A strict conditional limitation does not require any particular estate to support it. But the difficulty of distinguishing between such a limitation and a contingent remainder, has been already noticed, (see supra, p. 123.) and in Doe v. Heneage, (4 Term Rep. 13.) both the bar and bench assumed a conditional limitation to be, what Mr. Cornish says (Essay on Remainders, p. 221.) it was not, viz. a contingent remainder. If this be so, the distinction must be very latent and fine spun, to have escaped detection by such judges as Lord Kenyon, and Mr. Justice Buller!
6 Ploud. 25. 28. Co. Litt. 49. a. b.
c Colthirst v. Bejuskin, Plowd. Rep. 25. Archer's case, 1 Co. 66. Chudleigh's case, 1 Co. 138.
interval when there should be no tenant of the freehold to do e services of the lord, or answer to the suit of a stinger, or preserve an uninterrupted connexion between
e particular estate and the remainder. If, therefore, A. makes a lease to B. for life, with remainder over the day after his death, or if an estate be limited to A. for life, remainder to the eldest son of B., and A. dies before B. has a son, the remainder, in either case, is void, because the first estate was determined before the appointment of the remainder. There must be no interval or “mean time," as Lord Coke expresses it, between the particular estate, and the remainder supported by it. If the particular estate terminates before the remainder can vest, the remainder is gone for ever, for a freehold cannot, according to the common law, commence in futuro.
The remainder must be so limited as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely determines it. This is the true characteristic of a remainder, and the law will not allow it to be limited to take effect on an event which goes to defeat, or abridge, or work the destruction of the particular estate, and if limited to commence on such a condition, it is void. Thus, if there be a lease to A. for life, and if B. do a certain act, that the estate of A. shall then cease, and the remainder immediately vest in C., it is clear that the remainder will be void in that case. This rule applies to common law conveyances, and follows from the maxim that none but the grantor and his heirs shall take advantage of a condition, and both the preceding estate, and the remainder, are defeated by the entry of the grantor.d If limitations on such
a 3 Co. 21. a. 2 Blacks. Com. 168. Preston on Abstracts, vol. i. 114.
b Cogan v. Cogan, Cro. Eliz. 360. Plowd. Rep. 24. b. 29. a. b. c Plowd. Rep. 29. b. d Fearne, p. 332.
conditions be made in conveyances to uses, and in wills, , they are good as conditional limitations, or future or shiftJing uses, or executory devises; and upon the breach of the condition, the first estate, ipso facto, determines without entry, and the limitation over commences in possession." The distinction appears to turn essentially on the difference between a limitation and a condition, and the remainder over will be good in the former case, for it is of the nature of a limitation to embrace those éstates to which fixed boundaries are prescribed, and which, by the terms of the instrument creating them, expire when they have arrived at those limits.
The New York Revised Statutes," allow a remainder to be limited 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. This legislative provision meets the very case, and abolishes the strict and hard rule of the old law applicable to common law conveyances ; but as the rule was never applied to conveyances to uses, or to devises, the statute only reaches a dormant prin. ciple, which was rarely, if ever, awakened at the present day. The New York Revised Statutes, in many other respecks, have made very essential alterations in the common lay doctrine of remainders; and a summary of those alteTahons cannot be unacceptable to the student in every state. 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
a Fearne, 319. b See supra, p. 123. c Vol. i. 725. sec. 27. d N. Y. Revised Statutes, vol. i. 723. sec. 16.
person persons than the grantee or devisee of such estato fanless 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 two first persons named. A contingent remainder cannot 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.e 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 equally apply,) may be created 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 cre- . ated expectant on the determination of a term of years.
Two or more future estates may be created to take effect pin 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 prece
a N. Y. Revised Statutes, vol. i. 724. sec. 18. 6 Ibid. sec. 19. Vide supra, p. 17. c Ibid. sec. 20. d Ibid. sec. 21. e Ibid. sec. 24. flbid, sec. 25, 26.
dent 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 of such precedent estate, by disseisin, forfeiture, surrender, merger, or otherwise, except by some act or means which the party creating the estate shall, in the creation thereof, have provided for or authorized. 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 should the contingency afterwards happen, the remainder shall take effect in the same manner, and to the same extent, as if the precedent estate had continued to the same period."
Some of the above enactments are not very material, and Ate only declaratory of the existing law ; but those which relate to the precedent estate, and render such an
gjate no longer requisite to sustain the remainder, will prokuce a very beneficial change in the doctrine of remainders, and disperse a cloud of difficulties, and a vast body of intricate learning relating to the subject. As these provisions do not affect vested rights, or the construction of deeds and instruments which took effect prior to the first of January, 1830, the learning of the English law on the subject of remainders, and conveyances to uses, will not become dormant in New-York during the existence of the present generation.
A contingent remainder may fail as to some, and take effect as to other persons, in consequence of some only of the persons entitled in remainder coming in esse during the particular estate, as in the case of a remainder to the right
a N. Y. Revised Statutes, p. 725. sec. 29. 6 Ibid. sec. 32, 33, 34. r Ibid. vol. i. 750. sec. 11.