tuities. Though the fee descends, in the interim, to the heir, there shall be an hiatus, as was observed in Plunkett v. Holmes, to let in the contingency when it happens. It was fully and definitively settled by Lord Parker, on appeal from the Rolls, in Carter v. Barnadiston," that the inheritance descends to the heir in the case of a contingent remainder created by will to await the happening of the contingency. The only debateable question, according to Mr. Fearne, is, whether the rule applies to conveyances at common law. As conveyances in this country are almost universally by way of use, the question in this case, and in many others arising upon common law conveyances, will rarely occur; but it is still a point involved in the general history and doctrines of the English law, and is, therefore, deserving of the attention of the student.

If a conveyance be made to A. for life, remainder to the heirs of B. then living, and livery be made to A., Mr. Feare contends that the inheritance continues in the grantor because there is no passage open for its transition at the time of the livery. The transition itself may rest in abeyance, or expectation, until the contingency or future event occurs to give it operation; but the inheritance, in the mean time, remains in the grantor, for the very plain and unanswerable reason, that there is no person in rerum natura to receive it, and he, or his heirs, must be entitled,

a Preston on Estates, vol. i. 240. 242.

b 1 P. Wms. 505.

e In New-York, the conveyances by feoffment, with livery, and by fines, and common recoveries, are abolished. N. Y. Revised Statutes, vol. i. 738. sec. 136. Ibid. vol. ii. 343. sec. 24. All conveyances are now to be deemed grants, and though deeds of bargain and sale, and of lease and release, may be used, they are to be deemed grants. This was a common law conveyance, and it is now declared to pass all the interest of the grantor, if so intended. (Ibid. 739. sec. 138. 142. Ibid. 748. sec. 1, 2.) I see no reason why the question in the text should not apply to grants in New-York, equally as it would have done to feoffments with livery before they were abolished.

on the determination of the particular estate before the contingent remainder can take place, to enter and resume the estate. He treated with ridicule the notion that the fee was in abeyance, or in nubibus, or in mere expectation, or remembrance, without any definite or tangible existence; and he considered it as an absurd and unintelligible fiction. Of the existence of such a technical rule of the common law there can be no doubt. The principle was, perhaps, coeval with the common law, that during the pendency of a contingent remainder in fee, upon a life estate, as in the case already stated, the inheritance was deemed to be in abeyance. But a state of abeyance was always odious, and never admitted but from necessity, because, in that interval, there could not be any seisin of the land, nor any tenant to the præcipe, nor any one of ability to protect the inheritance from wrong, or to answer its burdens and services. This was the principal reason why a particular estate for years was not allowed to to support a contingent remainder in fees The title, if attacked, could not be completely defended, because there was no one in being whom the tenant could pray in aid to support his right, and, upon a writ of right patent, the lessee for life could not join the mise upon the mere right. The particular tenant could not be punishable for waste, for the writ of waste could only be brought by him who was entitled

a Fearne, p. 452-458. That an estate in abeyance is to be considered as in nubibus, was a doctrine frequently suggested and admitted in Plowden, (p 29. a. 35. a. 556. 563, 564.) and Lord Coke, in Co. Litt. 342. b. said, that an estate placed in such a nondescript situation, had the quality of fame-inter nubila caput. This does not help the matter, but such an occasional glimpse at fairy land, serves at least to cheer us amidst the disheartening gloom of the subject.

b Bro. tit. Done & Rem. pl. 6. Gawdy, J. in Chudleigh's case, 1 Co. 135.

c Hob. 153.

to the inheritance. So many operations of law were suspended by this sad theory of an estate in abeyance, that great impediments were thrown in the way of it, and no acts of the parties were allowed to put the immediate freehold in abeyance by limiting it to commence in futuro; and we have seen, that one ground on which the rule in Shelley's case is placed, was to prevent an abeyance of the estate. Though the good sense of the thing, and the weight of liberal doctrine, are strongly opposed to the ancient notion of an abeyance, the technical rule is, that livery of seisin takes the reversion or inheritance from the grantor, and leaves him no tangible or disposable interest. Instead of a reversion, he has only a potential ownership, subsisting in contemplation of law, or a possibility of reverter; and Mr. Preston" insists, that an estate of freehold depending on another estate of freehold, and limited in contingency, must be in abeyance, and not in the grantor. The fee passes out of the grantor, and a vested estate of freehold necessarily precedes the remainder, and the inheritance is in contingency as well against the grantor, who has no power over it, as against the person to whom the contingent remainder is limited. Mr. Preston confidently asserts, that the argument of Mr. Fearne, however abstractedly just and reasonable, is without authority, and contrary

all settled technical rules. Another able writers also contends, that the doctrine of abeyance was never shaken or attacked until Mr. Fearne brought against it the weight of his eloquence and talents.

a Hob. 153. Sir William Blackstone's argument in Perrin v. Blake. Preston on Estates, vol. i. 220. 249-255.

b Preston on Estates, vol. i. 255. Preston on Abstracts, vol. ii. 103-106.

e Cornish's Essay on Remainders, p. 175.

There can be no doubt, though good sense was with Mr. Fearne, that the book authorities are against him. We cannot surmount the technical rule, if technical rules are binding in questions on property.

A vested remainder, lying in grant, passes by deed without livery; but a contingent remainder is a mere right, and cannot be transferred before the contingency happens, otherwise than by way of estoppel. Lord Coke divides estoppels into three kinds, viz. by matter of record, as by letters patent, fine, common recovery, and pleading; by matter in writing, or by deed indented; and by matter in pais, as by livery, by entry, by acceptance of rent, and by partition. Any conveyance by matter of record, or by deed indented, of an executory or contingent interest, will work an estoppel. Thus, if there be an estate to A. and B., and to the survivor in fee, a conveyance operating by way of estoppel will bind the contingent remainder in fee in the survivor. A lease and release, if the latter be by deed indented, will work an estoppel. The estate for life is the only tangible interest, and the other is a mere possibility, and estoppels exists where no interest passes from the party.

All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration; and it is settled, that all contingent estates of inheritance, as well as springing and executory uses, and possibilities, coupled with an interest, where the person to take is certain, are transmissable by descent, and devisable.

The one in this case deduces its lineage from high antiquity. It is found in the Year Books, and is dispersed over Plowden and Coke. Mr. Preston and Mr. Cornish have the undoubted advantage, and though Mr. Fearne's Treatise on Remainders is distinguished for its searching analysis of cases, he has abandoned them in this instance, and followed the irresistible impulse of his judgment. Those other writers are equally masters of abstruse law, and the latter in particular is a shrewd and dry critic, dealing in occult points. The fee will take an occasional flight to the clouds, and cannot be stayed, for common sense is disabled, and pierced by the longe fallente sagitta !

a Co. Litt. 352. a.

b Weale v. Lower, Pollex. Rep. 54. 61.

c Co. Litt. 45. a.

But if the person be not ascertained, they are not then possibilities coupled with an interest, and they cannot be either devised, or descend, at the common law. Contingent and executory, as well as vested interests, pass to the real and personal representatives, according to the nature of the interest, and entitle the representatives to them when the contingency happens."

a Roe v. Jones, 1 H. Blacks. Rep. 30. Moor v. Hawkins, cited in 1 H. Blacks Rep. 33. Jones v. Roe, 3 Term Rep. 88. Roe v. Griffiths, 1 Wm. Blacks. Rep. 605.

b Fearne, 459. Preston on Abstracts, vol. ii. 119. I apprehend, that the rule at the common law, that executory interests cannot be transferred by deed, except by way of estoppel, no longer exists in New-York. By the N. Y. Revised Statutes, (vol. i. 723. sec. 9, 10. 13. Ibid. 725. sec. 35.) estates in expectancy include all future estates, vested and contingent, and all expectant estates are descendible, devisable, and alienable, in the same manner as estates in possession. This sweeping provision would seem to embrace every executory and contingent interest, and all conveyances whatsoever are reduced to simple grants.