« ElőzőTovább »
heirs of A. and B., and A. only dies during the continuance of the preceding estate, whereby the remainder vests in his heirs.*
(8.) Of the destruction of contingent remainders.
If the particular estate determines, or be destroyed, before the contingency happens on which the expectant estare depended, and leaves no right of entry, the remainder is annihilated. The alteration in the particular estate which will destroy the contingent remainder, must amount to an alteration in its quantity, and not merely in the quality, and, therefore, the severance of the jointure between two joint tenants for life, will not destroy the contingent remainder, limited after their joint estate. The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine, for these conveyances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder. So, if the tenant for life disclaimed on record as by a fine, a forfeiture was incurred upon feudal principles, and if the owner of the next vested estate of freehold entered for the forfeiture, the con... tingent remainder was destroyed. A merger, by the act|| of the parties of the particular estate, is also equally effec
a Bro. tit. Done and Rem. pl. 21. Matthews v. Temple, Comb. 467. Fearne, p. 393.
b Fearne, p. 426. Lane v. Pannel, 1 Rol. Rep. 238. 317. 438. Harrison v. Belsey, T. Raym. 413.
c Archer's Case, 1 Co. 66. Chudleigh's Case, 1 Co. 120, 137. b. 2 Rol. Abr. 418. pl. 1, 2. Purefoy v. Rogers, 2 Lev. 39. Chudleigh's case is a strong authority to prove that a feoffment, without consideration, and even with notice in the feoffee of the trust, will destroy a contingent remainder. It is a doctrine flagrantly unjust, and repugnant to every settled principle in equity, as now understood.
d Co. Litt. 252. a. There has been a long and vexed question in the English law, how far a common recovery, suffered by a tenant in tail, would bar a remainder to the king. It was declared by the highest authorities in the House of Lords, in the late case of Blasse v.
bany as a fine to destroy a contingent remainder. But with respect to this doctrine of merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the particular estate for life by descent, for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception, that if the descent from the testator, or the particular tenant, be immediate, there is no merger ; as if A. devises to B. for life, remainder to his first son unborn, and dies, and the land descends on B, as heir at law. Here the descent is immediate. But if the fee, on the death of A., had descended on C., and at his death on B., here the descent from A. would be only mediate, and the contingent remainder to the unborn son of B., would be destroyed by merger of the particular estate on the accession of the inheritance. Mr. Fearneb vindicates this dis
tinction, and reconciles the jarring cases by it, and it has | been since judicially established in Crump v. Norwood.
In equity, the tenant for life of a trust cannot, even by a fine, destroy the contingent remainder dependent thereon,
Clanmorris, (3 Bligh, app. 62.) to be still a doubtful point of law. I allude to it merely as fresh proof of the everlasting uncertainty that perplexes this branch of legal science.
a Purefoy v. Rogers, 2 Saund. Rep. 386.
c 7 Taunton's Rep. 362. This is one among a thousand samples of the refinements which have gradually accumulated, until they have, in a very considerable degree, overshadowed and obscured many parts of the English law of real property. It has become almost as laborious a task to undertake to master the science, as it would be to understand the scholastic subtleties of the schoolmen of the middle ages, or the mystical metaphysics of the modern Germans. I am more and more impressed with a sense of the great utility of the New-York provision, rescuing contingent remainders by legislative authority, from all perplexing dependence on the particular estate.
and it will only operate on the estate he can lawfully grant.* A court of equity does not countenance the destruction of contingent remainders, and Lord Loughborough observed, that it had been intended to bring a bill into Parliament to present the necessity of trustees to preserve contingent remainders. There is also an established distinction between those wrongful conveyances at common law which act on the possession, and those innocent conveyances which do not; and, therefore, a conveyance of a thing Jying in grant does not bar a contingent remainder. Nor o conveyances which derive their operation from the stajate of uses, as a bargain and sale, lease and release, and covenant to stand seised, bar contingent remainders, for none of them pass any greater estate than the grantor may lawfully convey. There are also some acts of a tenant for me, which, trough they amount to a forfeiture of the estate, and give the vested remainder-man a title to enter, yet they do not destroy the contingent remainder, unless advantage be taken of the forfeiture by some subsequent vested remainder-man. They do not, ipso facto, discontinue, devest, or disturb any subsequent estate, nor make any alteration or merger of the particular estate." Though a right of entry, even after the particular tenant be disseised, will support a contingent remainder, yet when
a Lord Hardwicke, in Lethieullier v. Tracy, 3 Atk. Rep. 730.
b 5 Vesey's Rep. 648. This has been done, as we have already observed, in New-York, by the N. Y. Revised Statutes, vol. i. 725. sec. 32. 34. rendering expectant estates or remainders no longer dependent on the continuance of the precedent estate. Mr. Cornish thinks that the doctrine of remainders can scarcely be said to apply to equitable estates, for every ulterior limitation of a trust is, in substance, an executory trust, and more analogous to a future use or executory devise, than to a remainder.-Cornish on Rem. 208.
c Gilbert's Laro of Uses, by Sugden, 312. Litt. sec. 600. Ma gennis v. M*Cullough, Gilbert's Rep. 236.
d Fearne, p. 405, 406.
once the right of entry is gone, it is gone for ever, and a new title of entry will not restore the remainder. If there fbe, therefore, a tenant for life, with contingent remainder over, and the tenant for life makes a feoffment in fee upon condition, and the contingency happens before the condition is broken, or before entry for breach thereof, the remainder is totally destroyed, though the tenant for life should afterwards enter for the condition broken, and regain his former estate.
To preserve the contingent remainder from the operation of the feoffment, which, in this respect, sacrificed right to fiction and metaphysical subtlety, recourse has been had to the creation of trustees to preserve the contingent remainder during the life of the tenant of life, notwithstanding any determination of the particular estate prematurely, by forfeiture or otherwise. This precaution is still used in settlements on marriage, or by will, where there are contingent remainders to be protected. The legal estate limited to trustees during the tenant's life, is a vested remainder in trust, existing between the beneficial freehold and the contingent remainder. The trustees are entitled to a right of entry in case of any wrongful alienațion by the tenant for life, or whenever lhis estate for life determines in his lifetime by any other means. The trustees are under the cognizance of a court of equity, and it will control their acts, and punish them for a breach of| trust; and if the feoffment be made with notice by the purchaser of the trust, as was the fact in Chudleigh's case, a court of chancery will hold the lands still subject to the former trusts, But this interference of equity is regulated
a Thompson v. Leach, 2 Salk. Rep. 576. Hale, Ch. J. in Purefoy v. Rogers, 2 Saund. Rep. 387. Fearne, p. 438, 439. 2 Woodd. Lec. 196, 197..
6 2 Blacks. Com. 171. Fearne, 409, 410.
by the circumstances and justice of the particular case. The court may, in its discretion, forbear to interfere, or it may, and will, even allow or compel the trustees to join in la sale to destroy the contingent remainder, if it should apI pear that such a measure would answer the uses originally Jintended by the settlement."
(9.) Of some remaining properties of contingent remainders.
If a contingent remainder be created in conveyances by way of use, or in dispositions by will, the inheritance, in the mean time, if not otherwise disposed of, remains in the grantor, or his heirs, or descends to the heirs of the testator to remain until the contingency happens. This general and equitable principle is of acknowledged authority, Conveyances to uses are governed by doctrines derived from courts or equity, and the principles which originally controlled them they retained when united with the legal estate. So much of the use as is not disposed of, remains in the grantor, and if the remainder in fee be in contingency, the inheritance or use, in the mean time, results to the grantor, and descends to his heirs, and becomes a springing or shifting use, as the contingency arises. The same doctrine. is applied to executory devises, and the tee remains unaffected by the will, and goes to the heir, subject to be defeated when the devise takes effect, provided it takes effect within the period prescribed against perpe
a Sir Thomas Tippen's case, cited in 1 P. Wms. 359. Platt v. Sprigg, 2 Vern. Rep. 303. Frewin v. Charleton, 1 Equ. Cas. Abr. 380.pl 4. Symance v. Tattam, 1 Atk. Rep. 613. Fearne, 410-423. Biscoe v. Perkins, 1 Ves. & Beames, 485.
6 Sir Edward Cleve's case, 6 Co. 17. b. Davies v. Speed, Carik. Rep. 262. Purefoy v. Rogers, 2 Saund. Rep. 380. Plunkett v. Holmes, T. Raym. 28. Lord Parker, in Carter v. Barnadiston, 1 P. W ms. 516: