part or share only which his, her, or their parent or parents respectively would have taken and been entitled to, if living at the decease of the survivor of them, the said John Cunliffe and Sarah his wife,) and the several and respective heirs and assigns of such child, children, and issue for ever as tenants in common. The abovementioned term of 120 years was declared to be limited to the trustees, their executors, administrators and assigns, upon trust during the said term to pay the clear yearly rents and profits of the premises therein comprised unto the testator's niece, Sarah Cunliffe, and her assigns, for her separate use. The testator died in 1817, leaving Sarah Cunliffe and another niece his co-heiresses at law. John Cunliffe died on the 7th of July, 1871. Sarah Cunliffe survived her husband, and died on the 9th of December, 1873. But John Cunliffe and Sarah his wife in the year 1866 executed a deed of appointment under their hands and seals, whereby, by virtue and in exercise of every power given to them by the will of the said Edmund Leigh, they appointed that all the hereditaments and real estate, and moieties, parts, or shares of hereditaments and real estate devised by the said will, should (subject to the estate and interests limited or created therein prior to the limitation or creation and operation of the powers intended to be thereby exercised) go, remain, and be to the use of all and every or such of their six children therein named who should be living at the decease of their mother, Sarah Cunliffe, their, his, or her heirs and assigns, in equal shares as tenants in common. Brancker. You will see that the first estate created in the moiety Remarks on in question of the lands devised by the will was a term Cunliffe v. of 120 years vested in the trustees, if Sarah Cunliffe should so long live, in trust for her, for her separate use. This term continued until her death, which happened on the 9th of December, 1873. But it was not an estate W.S. of freehold; it was only a chattel interest; and as such it was incapable of supporting a contingent remainder (9). Subject to this term the freehold in the moiety in question was limited to John Cunliffe during his life. But John Cunliffe died in 1871, in his wife's lifetime; and from the time of his death to the death of Sarah his wife, in 1873, the freehold was undisposed of, and consequently descended to the co-heiresses at law of the testator. The appointment which was made by John Cunliffe and Sarah his wife was only to such of their children as should be living at the decease of Sarah. And in truth it could not have been otherwise; for the power of appointment contained in the will authorized an appointment only to such of her children as should be living at her decease. The appointment, therefore, could vest no estate in any child until the decease of Sarah Cunliffe. But it was then too late. A fee simple once vested in an heir at law or any one else cannot be divested otherwise than by a springing or shifting use in a deed or by an executory devise in a will. And in the present case the estates given to the children by the appointment could not be upheld as executory devises; because it is an invariable rule that whenever any limitation can in any event take effect as a remainder, it shall not be allowed to take effect as an executory devise ("). And as John Cunliffe was living, the estates appointed to the children would have taken effect as remainders had he survived his wife. The result therefore, unfortunately, was that the estates intended to be given to the children by the appointment fell to the ground for want of an estate of freehold to support them. The appointment being thus inoperative, the moiety in question passed as if no appointment had been made. But here again the same difficulty recurred. The moiety in question was limited, after the decease of John Cunliffe and in default of a joint appointment, to the use of such of the children of Sarah Cunliffe who should be living at her decease as the survivor of them the said John Cunliffe and Sarah his wife should by deed or will appoint. This power was not exercised. Now if Mrs. Cunliffe had made such an appointment after the decease of her husband, it is obvious that the estates limited by such an appointment could not have become vested estates during her husband's lifetime, and so could not possibly have been, under any circumstances, remainders to take effect on the expiration of a prior estate of freehold. Under these circumstances the law, in its indulgence to testators, would have allowed the gifts to take effect by way of executory devise; and the children would thus not have been deprived of the estates intended for them. But, as I said before, this power was not exercised. In default of appointment by the survivor of Mr. and Mrs. Cunliffe the moiety in question was, as we have seen, limited to the use of the children of Sarah Cunliffe who should be living at the decease of the survivor of them the said John Cunliffe and Sarah his wife, and the issue of such of them as should be then dead leaving lawful issue then living. None appear to have died leaving issue. Here again was a contingent remainder unsupported by any previous or particular estate of freehold, from the moment that John Cunliffe died in the lifetime of his wife. This remainder therefore failed also. There was still another remainder in the will in favour of other persons. But this remainder was, like the others, contingent on an event which could not be ascertained until the decease of the survivor of Mr. and Mrs. Cunliffe. It was an alternative limitation in the event of there not being any child or issue of any child of Sarah Cunliffe living at the decease of the survivor of them the said John Cunliffe and Sarah his wife. The death of the survivor of them must obviously happen before this contingency could be ascertained. This contingency might have happened in such a way as to cause the limitation to take effect as a vested remainder. If John Cunliffe had survived, and at his death there had been no child or issue of a child then living, this remainder over would have taken effect as a vested remainder immediately on his decease. But when he died in his wife's lifetime, it became impossible that it should take effect at all; and indeed the event did not happen. Every remainder therefore failed; the will came to an end; and the co-heiresses at law of the testator, or those claiming under them, were held to be entitled to the property. This case teaches two lessons. First, always support your contingent remainders of estates of freehold at law by a sufficient legal estate of freehold to last till the contingent remainders become vested estates. And secondly, when you exercise a power of appointment giving any such contingent remainders, take care that your remainders so closely fit in to the prior estates of freehold already existing in the same premises, as to leave no possible gap of time between them. I hope in my next Lecture to go on with this subject, and to bring to an end my remarks on a settlement of real estate on a husband and wife and their children generally. Settlements of land in which the eldest son takes the whole, subject to portions for the younger children, must be reserved for a future Lecture. LECTURE XIV. to children in In my last Lecture we got as far in the construction of our settlement as a limitation, after the decease of the survivor of the intended husband and wife, to the use of the children of the marriage, as the parents or the survivor shall appoint. We now come to the limitations Limitations to the children in default of appointment, or subject default of apto any partial appointment. These limitations require pointment. some care. Whatever they may be, they must at all events be vested estates, to take effect in possession Must be immediately on the decease of the survivor of the vested estates. husband and wife. It will not do, therefore, in this case to make the limitation to correspond with that which I mentioned in a former Lecture (a) as a proper and usual form of the trust of money to arise from the sale of land; namely, in trust for all the children, who being sons shall attain the age of twenty-one years, or being daughters shall attain that age or marry under that age. This, in a trust of money, is all very well. And if the legal estate were vested in the trustees, so that the interests to be taken by the children should be entirely of an equitable nature, and not estates at law, the trust might also be expressed in the same way. For it has been held in equity that a contingent re- Contingent mainder of a merely equitable estate of freehold does remainder of not require to be supported by a prior equitable estate estate reof freehold lasting till the contingent remainder becomes vested. This was decided by Lord Hardwicke in the case of Hopkins v. Hopkins (b), to which I drew attention in a former Lecture (c). The doctrine relates only to (a) Ante, p. 160. (c) Ante, pp. 24-29. equitable quires no support. |