common law allowed of the creation of no other estates than particular estates, followed by vested remainders. A contingent remainder-a remainder not vested, and which might never vest, was long regarded as illegal. Down to the reign of Henry VI. not one instance is to be found of a contingent remainder being held valid (c). The early authorities on the contrary are rather opposed to such a conclusion (d). And, at a later period, the authority of Littleton is express (e), that every remainder, which beginneth by a deed, must be in him to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold. It appears, however, (c) Wms. Real Pro. Pt. II. Ch. II. But the general opinion appears to be in favour of the antiquity of contingent remainders. See 3rd Report of Real Property Commissioners, p. 23; 1 Steph. Com., 614, n. (a). And an attempt to create a contingent remainder appears in an undated deed in Madox's Formulare Anglicanum, No. 535, p. 305. (d) Year Book, 11 Hen. IV. 74; in which case, a remainder to the right heirs of a man, who was dead before the remainder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, with remainder to the right heirs of a man who was living, the remainder would be void, because the fee ought to pass immediately to him to whom it was limited. Note, also, that in Mandeville's Case (Co. Litt. 26b), which is an ancient case of the heir of the body taking by purchase, the ancestor was dead at the time of the gift. The cases of rents are not apposite, as a diver- (e) Litt. s. 721; see also M. 27 Hen. VIII. 24a. to have been adjudged, in the reign of Henry VI., that if land be given to a man for his life, with remainder to the right heirs of another who is living, and who afterwards dies, and then the tenant for life dies, the heir of the stranger shall have this land; and yet it was said that, at the time of the grant, the remainder was in a manner void (ƒ). This decision ultimately prevailed. And the same case is accordingly put by Perkins, who lays it down, that if the land be leased to A for life, the remainder to the right heirs of J. S., who is alive at the time of the lease, this remainder is good, because there is one named in the lease (namely, A the lessee for life), who may take immediately in the beginning of the lease (g). This appears to have been the first instance in which a contingent remainder was allowed. In this case J. S. takes no estate at all; A has a life interest: and, so long as J. S. is living, the remainder in fee does not vest in any person under the gift; for, the maxim is nemo est haeres viventis, and J. S. being alive, there is no such person living as his heir. Here, accordingly, is a future estate, which will have no existence until the decease of J. S.; if, however, J. S. should die in the lifetime of A, and if he should leave an heir, such heir will then acquire a vested remainder in fee simple, expectant on A's life interest. But until these contingencies happen or fail the limitation to the right heirs of J. S. confers no present estate on any one, but merely gives rise to the prospect of a future estate, and creates an interest of that kind which is known as contingent remainder (h). (f) Year Book, 9 Hen. VI. 24a.; H. 32 VI. Fitz. Abr. tit. Feoffments and Faits, 99. (g) Perkins, s. 52. (h) 3 Rep. 20a, in Boraston's Case. A gift to the heirs of J.S. is sufficient to confer an estate in fee simple without any additional limitation, 2 Jarman on Wills, 55, 56, 3rd ed., 61, 62, 4th ed. When contingent remainders began to be allowed, a question arose, which is yet scarcely settled, what becomes of the inheritance, in such a case as this, during the life of J. S.? A, the tenant for life, has but a life interest; J. S. has nothing, and his heir is not yet in existence. The ancient doctrine, that the remainder must vest at once or not at all, had been broken in upon; but the judges could not make up their minds also to infringe on the corresponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They therefore sagely reconciled the rule which they left standing to the contingent remainders which they had determined to introduce, by affirming that, during the contingency, the inheritance was either in abeyance, or in gremio legis, or else in nubibus (i). Modern lawyers, however, venture to assert, that what the grantor has not disposed of must remain in him, and cannot pass from him until there exists some grantee to receive it (k). And when the gift is by way of use under the Statute of Uses, there is no doubt that, until the emergency occurs, the use, and with it the inheritance, result to the grantor. So, in the case of a will, the inheritance, until the contingency happens, descends to the heir of the testator (1), that is his administrator, as representing the next of kin (m). But whatever difficulties may have beset the departure from ancient rules, the necessities of society required that future estates, to vest in unborn or unascertained persons, should under certain circum (i) Co. Litt. 342b; 1 P. Wms., 515, 516; Bac. Abr. tit. Remainder and Reversion (c). (k) Fearne, Cont. Remr. 361. See, however, 2 Prest. Abs. 100-107, where the old opinion is maintained. (1) Fearne, Cont. Rem. 351. (m) Morrice v. Morrice, 14 N.S.W.R., Eq. 211; Merriman v. Perpetual Trustee Co., 17 N.S.W.R., Eq. 325, 346. stances be allowed. And, in the time of Lord Coke, the validity of a gift in remainder, to become vested on some future contingency, was well established. Since his day the doctrine of contingent remainders has gradually become settled; so that, notwithstanding the uncertainty still remaining with regard to one or two points, the whole system now presents a beautiful specimen of an endless variety of complex cases, all reducible to a few plain and simple principles. To this desirable end the masterly treatise of Mr. Fearne on this subject has mainly contributed (n). III. Rules for creation of contingent remainders. The rules which must be observed in the creation of contingent remainders may be reduced to two; of which the first and principal is well established, but the latter has occasioned a good deal of controversy. Rule 1. The seisin or feudal possession must never be without an owner; which is sometimes expressed thus every contingent remainder of an estate of freehold must have a particular estate of freehold to support it (o). The ancient law regarded the feudal possession of lands as a matter the transfer of which ought to be notorious; and it accordingly forbade the conveyance of any estate of freehold by any other means than an immediate delivery of the seisin, accompanied by words either written or openly spoken, by which the owner of the feudal possession might at any time thereafter be known to all the neighbourhood. If, on the occasion of any feoffment, such feudal possession was not at once parted with, it remained for ever with the grantor. (n) Fearne's Essay on the Learning of Contingent Remainders and Executory Devises. The last edition of this work has been rendered valuable by an original view of executory interests, contained in a second volume, appended by the learned editor, Mr. Josiah William Smith. (0) 2 Bl. Com. 171. Thus, for example, a feoffment, or any other conveyance of a freehold, made to-day to A, to hold from to-morrow, would be absolutely void, as involving a contradiction. For if A is not to have the seisin till to-morrow, it must not be given him till then (p). So likewise, if, on any conveyance, the feudal possession were given to accompany any estate or estates less than an estate in fee simple, the moment such estates, or the last of them, determined, such feudal possession would again revert to the grantor, in right of his old estate, and could not be again parted with by him, without a fresh conveyance of the freehold. Accordingly, suppose a feoffment to be made to A for his life, and after his decease and one day, to B and his heirs. Here, the moment that A's estate determines by his death, the feudal possession, which is not to belong to B till one day afterwards, reverts to the feoffor, and cannot be taken out of him without a new feoffment. The consequence is, that the gift of the future estate, intended to be made to B, is absolutely void. Had it been held good, the feudal possession would have been for one day without any owner; or, in other words, there would have been a so-called remainder of an estate of freehold, without a particular estate of freehold to support it.-Let us now take the case we have before reverted to, of an estate to A, a bachelor, for his life, and after his decease to his eldest son in tail, In this case it is evident, that the moment A's estate determines by his death, his son, if living, must necessarily be ready at once to take the feudal possession, in respect of his estate tail. The only case in which the under such a limitation, ever feudal possession could, be without an owner, at the time of A's decease, would (p) 2 Bl. Com., 166. |