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v. Cooper (a), Doe v. Agar (b), Pierson v. Vickers (c),
Cur, adv. vult.
Lord ELLENBOROUGH, C. J. on this day delivered the judgment of the Court.
After stating the case, his Lordship proceeded. On this case it has been argued, on the behalf of the defendant, that under the will of the testator John Clemett, his second son Richard Clemett took what, in the case of common law. lands, would have been an estate-tail, and what in the case of these burgage lands, where there is no custom of entailing, is a fee-simple conditional at common law; in which case the limitation to the heirs of his body as shall be living at his death was barred by the subsequent conveyances and fine: or if he took only an estate for life, with a contingent remainder to his children living at his death, that remainder was destroyed by the subsequent conveyances. On the part of the plaintiff it was insisted that the second son, Richard
Roe, Lessee of CLEMETT,
Clemett, took only an estate for life, with a vested re-
RoE, Lessee of CLEMETT,
time when the estate should come into possession. Here the estate is limited not to any persons in being, nor to any persons of whom it could be predicated for certain, that they ever would be in being, or that if they ever came into being, they would be so at the death of the testator's son Richard; the limitation being after the decease of his son Richard “unto the heirs of the body of my said son Richard Clemett, lawfully begotten or to be begotten, equally amongst them as shall then be living ;' so that the remainder is contingent, and depends not only on the event of there being any child or children born, but on the event of any of them being living at the death of their father. And no case has been shewn where an estate depending on such a contingency has ever been held vested. And this brings me to the second question, whether considering this as a contingent remaiņder to the children of Richard Clemett who should be living at the time of his death there was a freehold in the lord sufficient to support it; this being a customary 'estate, where the freehold is in the lord. Where a contingent remainder is created out of a common fee-simple estate it must have a previous estate of freehold to support it; and the destruction of every such previous estate, before the remainder vests, destroys the remainder : but where the remainder is created out of what may be called a subordinate fee-simple estate, as out of a copyhold, where the ordinary fee-simple is in the lord, or out of an equitable estate, where the ordinary legal fee-simple is in some other person, the destruction of the previous estate will not affect the remainder, but it shall be supported by the ordinary fee-simple estate. 4 Term Rep. 64. The estate in this case was a subordinate fee-simple of burgage tenuro,
RoE, Lessee of CLEMETT,
where the ordinary fee-simple was not in the testator, but in the owner of the lord's rent; but see what took place during the life of Richard Clemett, the second son of the testator and devisee for life under his will, and after his estate for life came into possession. In 1769 Richard Clemett, then tenant for life, for a valuable consideration executed a customary conveyance of this burgage-house to James Thompson and his heirs for ever, according to the custom. James Thompson entered and was possessed, and afterwards, after several like mesne conveyances of it, in 1787 it was conveyed to James Scaife and his heirs, who entered and was possessed; and afterwards, in that same year, Edward Shepherd being then entitled to the lord's rent of these premises, and entitled to the freehold thereof in fee, holding the same of Lady Andover as chief lady of the manor of Kirkland, signed, sealed, and delivered to Scaife a deed of enfranchisement, by way of feoffment, whereon livery of seisin was duly made; whereby Shepherd granted, bargained, sold, enfeoffed, released, ratified, and confirmed to Scaife, his heirs and assigns, the premises in question (among others,) to hold the same to and to the use of the said Scaife, his heirs and assigns for ever, absolutely freed and discharged of and from all rents, fines, customary tenures, and services whatsoever. Scaife afterwards, in 1789, by feoffment, with livery of seisin, conveyed them as freehold to Fletcher, from whom they afterwards passed to Romney, after a fine levied of them, in 1794, and from Romney they passed by several mesne conveyances to the defendant. By this statement it appears that during the life of Richard Clemett, the tenant for life of these premises, his estate in them having been conveyed to Scaife, the freehold, which was in Shepherd,
ROE, Lessee of CLEMETT, against BRIGGS,
became united with the particular estate, which was
the lord, or in any other person than the owner of