41

remainder, is not a "remainder," in the strict sense of the word, since the limitation of such estate of freehold takes immediate effect, subject to the term, the presence of which in no way affected the seisin, even at common law.42

An estate in remainder can be limited only after the regular termination of the particular estate, and cannot take effect in derogation of it, upon its termination by condition subsequent, this being a result of the common-law rules that only the grantor or his heirs can take advantage of a condition, and that the seisin could pass from one person to another only by livery of seisin. Thus, in the case of a limitation to A. for life, and, on the marriage of A., then in remainder to B., the remainder is void.48 A remainder may, however, be limited after an estate in tail or for life on special limitation, as in the case of a limitation to A. during her widowhood, and, on her death or marriage, then to B.44

There can be no remainder after an estate in fee simple, since it could only take effect in derogation of the estate previously limited;45 nor can there be one after what we have referred to in a previous part of this work as a determinable, base, or qualified fee.46

The remainder and the particular estate must be created or pass out of the grantor simultaneously and by the same in

41 See Litt. § 60; 4 Kent, Comm. 198.

42 Challis, Real Prop. 77; 1 Leake, 320.

48 Challis, Real Prop. 62; 1 Leake, 318; Fearne, Cont. Rem. 14, 261. 44 Fearne, Cont. Rem. 13, and Butler's note; Challis, Real Prop. 63; 1 Leake, 217, 318.

45 2 Bl. Comm. 164; Fearne, Cont. Rem. 12; 4 Kent, Comm. 200; Macumber v. Bradley, 28 Conn. 445; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Horton v. Sledge, 29 Ala. 478; Goodrich v. Harding, 3 Rand. (Va.) 280.

46 Co. Litt. 18a; Challis, Real Prop. 64; 2 Cruise, Dig. tit. 16, c. 1, §§ 5, 6; Fearne, Cont. Rem. 12, and Butler's note; Proprietors of Church in Brattle Square v. Grant, 3 Gray (Mass.) 142; Hennessy v. Patterson, 85 N. Y. 91, Finch's Cas. 868. That a remainder cannot be limited after a common-law conditional fee, see Selman v. Robertson, 46 S. C. 262.

strument, since, if the particular estate were first created, the residue after such estate would be a reversion, and not a remainder; and if the remainder were first created, it would be void, as previously stated, for want of a particular estate to support it.47

(c) Relaxation of common-law requirements.

The common-law requirements in connection with the creation of future estates, to the effect that this can be only by way of remainder, and that the remainder must take effect immediately on the termination of the particular estate, and not before, have to a very considerable extent lost their practical importance at the present day, for, even apart from the statutory provisions in various states allowing the creation of a future estate with or without a precedent estate to support it,48 a limitation of a future estate in a conveyance inter vivos, if not answering to the requirements of a remainder at commo law, can, in almost every case, as we shall presently see, be supported as a future use, and, when contained in a will, as an executory devise.49 It is, however, most desirable to have a thorough acquaintance with these requirements, since this is assumed in all discussions of the subject of future estates, and they are intimately connected with rules which still, in many jurisdictions, are of importance with regard to that class of remainders termed "contingent remainders."

In two or three states, in which the Statute of Uses is not in force, it has been decided that, since livery of seisin is obsolete, the common-law rules based upon abeyance of the seisin do not control, and that, apart from any express statutory authorization, future estates can be created by conveyance inter vivos, unsupported by any precedent estate."

50

47 Litt. § 721; Co. Litt. 378a; 2 Bl. Comm. 167; Fearne, Cont. Rem. 302. 48 See post, § 150.

49 See post, § 134.

so Bunch v. Nicks, 50 Ark. 367; Gorham v. Daniels, 23 Vt. 600; Abbott

120. Vested and contingent remainders distinguished-(a) Ascertainment of remaindermen.

That a remainder cannot be vested 51 unless there be some certain person or persons in being in whom it can be regarded as vested, is a proposition as to which, upon principle, it would seem that there could be little doubt,52 and that such is the law is recognized by the most authoritative writers, and by numerous decisions.53 In a few cases, however, in this country, the courts have failed to recognize this certainty of the remainderman as an essential characteristic of a vested remainder, the error arising from oversight, apparently, and not

v. Holway, 72 Me. 298. See Wyman v. Brown, 50 Me. 139, Finch's Cas. 909; Savage v. Lee, 90 N. C. 320. See Gray, Perpetuities, §§ 67, 68.

"A remainder was originally said to be "vested" because the remain. derman was considered to be "invested" with an actual portion of the fee, though the time of the falling into possession was uncertain. In the case of a remainder subject to a condition precedent, that is, one which was "contingent," the remainderman could not be regarded as invested with a portion of the fee, and in this way the terms “vested" and "contingent" came to be used in opposition to each other as descriptive of different classes of remainders. Hawkins, Wills, 221. See Gray, Perpetuities, § 100.

In some decisions, the term "vested" is applied to an interest to which one has such a title or claim that he may transfer or devise it. See Gray, Perpetuities, § 118, and authorities cited. Thus, in some cases in Massachusetts a "vested interest in a contingent remainder" is spoken of, meaning an interest which is transferable or transmissible. Cummings v. Stearns, 161 Mass. 506; Shaw v. Eckley, 169 Mass. 119. This secondary use of the term "vested" is liable to cause confusion, and must be carefully distinguished from its use to describe an estate or interest not subject to a condition precedent.

52 "A vested remainder is ex vi termini vested in somebody." Gray, Perpetuities, § 108, note.

53 Mr. Fearne, in his work on Contingent Remainders (page 9), states as one class of such remainders, "where a remainder is limited to a person not ascertained or not in being at the time when such limitation is made." See, also, 2 Bl. Comm. 168, 169; 1 Leake, 322; Ducker v. Burnham, 146 Ill. 9; Starnes v. Hill, 112 N. C. 1; Robinson v. Palmer, 90 Me. 246; and the cases cited post, notes 55-59.

from any purpose of departing from the established line of distinction on the subject.54

A very common instance of a remainder contingent because of uncertainty in the remainderman is presented by the limitation of a remainder to the heirs, or to the heirs of the body, of a living person named, in which case the heirs cannot be ascertained till such person's death, on the principle that there can be no heir to a living person, as expressed in the maxim, Nemo est haeres viventis.55

$4 Croxall v. Shererd, 5 Wall. (U. S.) 288; Kumpe v. Coons, 63 Ala. 448; Gindrat v. Western Railway, 96. Ala. 162; Smith v. West, 103 III. 332; Davidson v. Koehler, 76 Ind. 398; Wood v. Robertson, 113 Ind. 323. The error in the previous decisions is recognized in Smaw v. Young, 109 Ala. 528, but the court refused to overrule them on the ground that they had established a rule of property. The Illinois decision is, it seems, overruled by subsequent cases, such as Temple v. Scott, 143 Ill. 290; Chapin v. Crow, 147 Ill. 219, 37 Am. St. Rep. 213.

It has been sometimes stated that the case of Moore v. Littel, 41 N. Y. 66, Finch's Cas. 894, settled the construction of the New York statute as making the ascertainment of the person who is to take unnecessary to render the remainder vested, provided there is a person in existence who would be entitled to take if the precedent estate were at any time to cease. But it seems that, in view of later decisions, uncertainty of the remainderman renders the remainder contingent in that state, as else. where. See Hennessy v. Patterson, 85 N. Y. 91, Finch's Cas. 868; Purdy v. Hoyt, 92 N. Y. 447, 454; Hall v. La France Fire Engine Co., 158 N. Y. 570. See, also, articles by Stewart Chaplin, Esq., in 1 Columbia Law Rev. 279, and by Everett P. Wheeler, Esq., Id. 347.

The occasional failure to recognize the requirement that the remainderman must be certain is in part due, it appears, to the language of the New York Revised Statutes, in which it was stated that a remainder is vested "when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate," and Chancellor Kent's erroneous statement that this definition "appears to be accurately and fully expressed." 4 Kent, Comm. 202.

55 Co. Litt. 378a; Boraston's Case, 3 Coke, 20a; Challis, Real Prop 103; Richardson v. Wheatland, 7 Metc. (Mass.) 169; Bennett v. Morris, 5 Rawle (Pa.) 9; Preston v. Brant, 96 Mo. 552; Sharman v. Jackson, 30 Ga. 224; Hall v. La France Fire Engine Co., 158 N. Y. 570; Alverson v.

A limitation to A. for life, with remainder to his eldest son, is a contingent remainder until a son be born, when it becomes vested, because the remainderman then, and not till then, is in being; but if, in such case, the remainder were to the eldest son "living at the death of A.," the remainder would be con tingent till the death of A., because, till then, the person in whom the remainder is to vest is not ascertained, owing to the possibility of the death of A.'s eldest son during A.'s life."

56

A gift in remainder to those of a class of persons who may be surviving at a future time, as at the termination of the particular estate, is contingent because, till then, the remaindermen cannot be ascertained.57 So, a gift to A. for life, with a remainder to his children or his issue living at his death, creates a contingent remainder, since the remaindermen can

Randall, 13 R. I. 71; Zuver v. Lyons, 40 Iowa, 510; Smith v. Collins, 17 R. I. 432; Wallace v. Minor, 86 Va. 550.

The word "heirs" may, however, mean heirs "apparent,"—that is, particular persons who, at the time of the execution of the instrument, would inherit if the death immediately occurred, and then, of course, the element of uncertainty is absent, and the remainder may be a vested one. Richardson v. Wheatland, 7 Metc. (Mass.) 169; Alverson v. Randall, 13 R. I. 71; Williamson v. Williamson, 18 B. Mon. (Ky.) 329; Wallace v. Minor, 86 Va. 550.

If the limitation in remainder is to the heirs of a person other than the tenant of the particular estate, and he dies before the latter, then his heirs are ascertainable, and the remainder immediately vests. Preston v. Brant, 96 Mo. 552; Ryan v. Monaghan, 99 Tenn. 338.

56 Williams, Real Prop. 268; Edwards, Prop. Land, 132.

57 Strode v. McCormick, 158 Ill. 142; Madison v. Larmon, 170 Ill. 65; Whitesides v. Cooper, 115 N. C. 570; Robinson v. Palmer, 90 Me. 246; Paul v. Frierson, 21 Fla. 529; Temple v. Scott, 143 Ill. 290; Chapin v. Crow, 147 Ill. 219, 37 Am. St. Rep. 213; Smith v. Rice, 130 Mass. 441; Emison v. Whittlesey, 55 Mo. 254; Smith v. Block, 29 Ohio St. 488 Small v. Small, 90 Md. 550; Jackson v. Everett (Tenn.) 58 S. W. 340: Spear v. Fogg, 87 Me. 132; Rhode Island Hospital Trust Co. v. Harris. 20 R. I. 408; Paget v. Melcher, 156 N. Y. 399. As to when words of sur vivorship are to be referred to a future time, rather than to testator's death, see post, § 143.