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lease, 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 life, which, though they amount to a forfeiture of the estate, and give the vested remainderman 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, divest, 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 once the right of entry is gone, it is gone forever, and a new title of entry will not restore the remainder. If there be, 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 *256 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 for life, notwithstanding any determination of the particular estate prematurely, by forfeiture or otherwise. This precaution is still used in settlements on marriage, or by

• Gilbert's Law of Uses, by Sugden, 312. Litt. sec. 600. Magennis v. M'Cullough, Gilb. Rep. 236.

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Fearne on Remainders, 405, 406.

Thompson v. Leach, 2 Salk. Rep. 576. Hale, Ch. J., in Purefoy v. Rogers, 2 Saund. Rep. 387. Fearne on Remainders, 438, 439. 2 Wodd. Lec

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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, and the limitation in trust is not executed by the statute of uses, and the legal estate in such cases remains, in the trustees. The tenant for life has a legal estate, and the remainder of the same character and for the same period is vested in the trustees; and if the particular estate determines otherwise than by the death of the tenant, the estate of the trustees co instanti, takes effect, and as a particular estate in possession, it supports the remainder depending on the contingency. The trustees are entitled to a right of entry in case of any wrongful alienation by the tenant for life, or whenever his 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 trust. But this interference of equity is regulated 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 a sale to destroy the contingent remainder, if it should appear that such a measure would answer the uses originally intended by the settlement."

Vanderheyden v. Crandall, 2 Denio Rep. 1. The various forms of these settlements in trust were stated and illustrated by Lord Eldon, in Moody ». Walters, 16 Vesey, 294, and in Vanderheyden v. Crandall, supra.

2 Blacks. Com. 171. Fearne on Remainders, 409, 410.
Mansel v. Mansel, 2 P. Wms. 678.

Sir Thom as Tippen's case, cited in 1 P. Wms. 359. Platt v. Sprigg, 2 Vern. Rep. 30 3. Frewin v. Charleton, 1 Eq. Cas. Abr. 380, pl. 4. Symance

*IX. Of other 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 of 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 fee 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 perpetuities. Though the fee descends, in the interim, to the heir, there shall be an hiatus, as was observed in Plunket 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 debatable question, according to Mr. Fearne, is, whether the rule applies to conveyances at common law. As *258

C

v. Tattam, 1 Atk. Rep. 613. Fearne on Remainders, 410-423. Biscoe v Perkins, 1 Ves. & Bea. 485.

Sir Edward Cleve's case, 6 Co. 17, b. Davies Speed, Carth. Rep. 262. Purefoy v. Rogers, 2 Saund. Rep. 380. Plunket v. Holmes, T. Raym. 28. Lord Parker, in Carter v. Barnadiston, 1 P. Wms. 516.

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

1 P. Wms. 505.

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. Fearne 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, 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."

• In New-York, the conveyances by feoffinent, with livery, and by fines, and common recoveries, are abolished. New-York 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.

b Fearne on Remainders, 452–458. That an estate in abeyance is to be considered as in nubibus, was a doctrine frequently suggested and admitted in Plowden, (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. Such an occasional glimpse at fairy land, serves at least to cheer us amidst the disheartening gloom of the subject.

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 the ability to protect the inheritance from wrong, or to answer for its burdens and services. This was the principal reason why a particular estate for years was not allowed to support a contingent remainder in fee. The title, if attacked, could not be completely defended, because there was RO 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 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 docstrongly opposed to the ancient notion of an abeyance, the technical rule is, that livery of seisin takes

trine, are

135.

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

b Hob. 153.

Hob. 153.

Sir William Blackstone's argument in Perrin v. Blake.

Preston on Estates, vol. i. 229. 240-255.

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