mainder shall fail by reason of the termination of the particular estate before the happening of the contingency.112

In those states in which it is provided 113 that a freehold estate may be created in futuro without any precedent estate to support it, it would seem that the reason for the defeat of the remainder by the premature termination of the particular estate no longer exists, and that consequently such result will no longer follow.

Trustees to preserve.

In order to avoid the destruction of contingent remainders by the determination of the particular estate before its natural termination, it was the custom in England, until the passage of the remedial statute above referred to, to interpose an estate to trustees, to commence on the determination of a particular. estate for life, and to continue during the tenant's life, in whom the seisin might vest, until the vesting of the remainder, these being termed "trustees to preserve contingent remainders."114 Such an estate in trustees is a vested, and not a contingent, remainder, since it is ready to take effect in possession immediately on the premature termination of the particular es

112 These state statutory provisions, as collated in 1 Stimson's Am. St. Law, § 1403, are as follows: No expectant estate can be defeated or barred (1) by any alienation or other act of the owner of the precedent estate (Massachusetts, Maine, New York, Michigan, Wisconsin, Minnesota, Virginia, West Virginia, Kentucky, Texas, California, North Dakota, South Dakota, South Carolina, Alabama, Mississippi); or (2) by the destruction of a precedent estate by dissiesin, forfeiture, surrender, merger, or otherwise (Massachusetts, Maine, New York. Michigan, Wisconsin, Minnesota, California, North Dakota, South Da kota, Mississippi). In some of these states, it is also provided (section 1426) that no contingent remainder shall be defeated by the termination of the precedent estate before the happening of the contingency (New York, Indiana, Michigan, Wisconsin, Minnesota, California, North Dakota, South Dakota).

113 See post, § 150.

114 Challis, Real Prop. 103; 2 Bl. Comm. 172; 4 Kent, Comm. 256

tate.115 In those states in this country in which all possibility of destruction of the contingent remainder has not been removed by statute, there should be a provision for a trust of this character in any instrument creating such a remainder.

124. Title pending contingency.

Where a contingent remainder in fee simple is created by a conveyance at common law, as distinct from one taking effect under the Statute of Uses, the reversion in fee, according to some authorities, remains in the grantor until the remainder vests;116 while by other authorities it is considered that the fee is "in abeyance"-that is, that no person has the fee-until the contingency happens, and that there is a mere possibility of reverter in the grantor.117 Even by those authorities which take the latter view, it is recognized that, if the contingent remainder ultimately fail, the grantor becomes entitled to immediate possession upon the termination of the particular estate, unless there is an alternative limitation to another, as explained in the next section.118

In the case of a contingent remainder created by a convey ance operating under the Statute of Uses or by devise, there has never been any question that the fee, until the remainder vests, is in the grantor,119 or, in the case of a devise, in his heirs 120 or residuary devisees.121

115 Smith v. Packhurst, 3 Atk. 135, 5 Gray's Cas. 55; Vanderheyden v. Crandall, 2 Denio (N. Y.) 9; Challis, Real Prop. 115.

116 Fearne, Cont. Rem. 360; Gray, Perpetuities, § 11, note, citing au thorities.

117 2 Bl. Comm. 107; Bohon v. Bohon, 78 Ky. 410. See 4 Kent, Comm. 257, where this view, as presented by Mr. Preston and others, is stated at length. See also, Bigley v. Watson, 98 Tenn. 353.

118 2 Preston, Abstracts, 103; Cornish, Remainders, 175 et seq.; Edwards, Prop. Land, 133.

119 Fearne, Cont. Rem. 351; 4 Kent, Comm. 257; Gray, Perpetuities, § 11, note; Bigley v. Watson, 98 Tenn. 353; Coots v. Yewell, 95 Ky. 367. 120 Davis v. Speed, Carth. 262; Harrison v. Weatherby, 180 Ill. 418;

125. Alternative remainders.

Several estates in fee simple, or of a lesser quantum, may, at common law, be limited in the alternative by way of contingent remainder after one particular estate, in such a way that one may take effect if another does not, and not otherwise. Such remainders are sometimes known as "alternative remainders," and sometimes as "remainders on a contingency with a double aspect.'

123

126. Cross remainders.

A definition of cross remainders, necessary rather complex, is given in the summary above of the law of remainders. Their nature can perhaps be best explained by examples. A simple instance of cross remainders occurs in the case of a limitation of land to A. and B. for life, with a provision that, on the death of either, his share shall pass to the other. If the limita

Gilpin v. Williams, 25 Ohio St. 295; Robinson v. Palmer, 90 Me. 246; Nicholson v. Cousar, 50 S. C. 206; Ryan v. Monaghan, 99 Tenn. 338. Consequently it cannot be claimed that those persons who are the heirs of testator at the time of the termination of the particular estate are entitled, rather than those who are his heirs at law at the time of testator's death. Harrison v. Weatherby, 180 Ill. 418.

121 Craig v. Rowland, 10 App. D. C. 402; High's Estate, 136 Pa. St. 222; De Silver's Estate, 142 Pa. St. 74; In re Reynolds' Will, 20 R. I. 429; Reid v. Walbach, 75 Md. 205; Perceval v. Perceval, L. R. 9 Eq. 386.

122 Fearne, Cont. Rem. 373; Loddington v. Kime, 1 Salk. 224, 5 Gray's Cas. 54; Plunket v. Holmes, 1 Lev. 11, 5 Gray's Cas. 50; Buzby's Appeal, 61 Pa. St. 111; Demill v. Reid, 71 Md. 175; City of Peoria v. Darst, 101 Ill. 609; Den d. Micheau v. Crawford, 8 N. J. Law, 90; Furnish v. Rogers, 154 Ill. 569; Francks v. Whitaker, 116 N. C. 518; Walker v. Lewis, 90 Va. 578; Buzby's Appeal, 61 Pa. St. 111; Taylor v. Taylor, 63 Pa. St. 481; Watson v. Smith, 110 N. C. 6. For instance, in the case of a limitation to A. for life, and, if he have a son, to that son in fee simple, and, if he have no son, then to B. in fee simple, the remainder to the son of A., as well as that to B., is contingent until the birth of a son to A., when the first remainder vests, and B. is excluded, while, if no son is born B. is entitled to possession on A.'s death. Loddington v. Kime, 1 Salk. 224.

tion be to A., B., and C. for their respective lives, with cross remainders between them, upon the death of A. the right of possession as to A.'s share will pass to B. and C., and, upon the subsequent death of B., the right of possession as to that share, and also of B.'s share, will pass to C.

The various particular estates, though usually existing in separate shares in one piece of land, may exist in separate pieces of land 128

While the effect of the limitation of cross remainders, as between persons who are given particular estates for life, is that the survivor or survivors take by way of remainder, if the gift is of particular estates in tail, the right of possession does not pass by way of remainder from one to the other or others upon his death, but awaits the failure of his issue, and then it passes either to the others named in the gift or to their issue. 124

In a deed, cross remainders can be created only by express limitations;125 but even there no technical language is necessary to create them, it being sufficient to say that there shall be cross remainders.126 In a will they may be implied, and their implication, if justified by the language of the devise, will generally be favored, since this is more likely to be in accordance with the testator's intention than that, upon the termination of a particular estate in one share, such share should revert to his heirs or residuary devisee till the termination of the other particular estates.1 127

123 Challis, Real Prop. 299; 1 Preston, Estates, 94 et seq. 124 Challis, Real Prop. 300.

125 Co. Litt. 195, Butler's note; 4 Cruise, Dig. tit. 32, c. 21, §§ 60-62; Doe d. Tanner v. Dorvell, 5 Term R. 518; Bohon v. Bohon, 78 Ky. 408. 124 Doe d. Watts v. Wainewright, 5 Term R. 427, 431, 5 Gray's Cas. 232. 127 2 Jarman, Wills, c. 42; Underhill, Wills, §§ 470, 853; Ashley v. Ashley, 6 Sim. 358, 5 Gray's Cas. 226; Dana v. Murray, 122 N. Y. 604; Reber v. Dowling, 65 Miss. 259, 7 Am. St. Rep. 651.

Mr. Challis (Real Prop. 301) says that stronger evidence is necessary to raise such implication, when the limitation is to three or more persons, than when it is to two only, and cites several modern

So, where land is devised to certain persons for their several lives, and, after their deaths, or after the death of the survivor of them, to other persons, the persons named prima facie take cross-remainders, and the property does not go over until the death of the survivor, an intention to bring all the property together being presumed.128 And where lands are devised to several persons, with a limitation over to another on an indefinite failure of their issue, cross remainders are implied after the termination of the respective estates tail in each by the failure of his issue, provided, of course, estates tail exist in that jurisdiction.120

$127. Remainders to issue of unborn persons.

The creation of contingent remainders is, by perhaps the

cases in support of the statement. These, strangely enough, uphold a directly contrary view; and to the same effect, that the number of persons involved is immaterial, see 2 Jarman, Wills, 1343, 1348, 1352; Doe d. Gorges v. Webb, 1 Taunt. 234, 5 Gray's Cas. 217.

128 Ashley v. Ashley, 6 Sim. 358, 5 Gray's Cas. 226; Glover v. Stillson, 56 Conn. 316; Smith v. Usher, 108 Ga. 231; Dow v. Doyle, 103 Mass. 489; Kerr v. Verner, 66 Pa. St. 326.

129 2 Jarman, Wills, 1339 et seq.; Doe d. Gorges v. Webb, 1 Taunt. 234, 5 Gray's Cas. 217; Allen v. Trustees of Ashley School Fund, 102 Mass. 262; Hall v. Priest, 6 Gray (Mass.) 18; Pierce v. Hakes, 23 Pa. St. 231. But since, in perhaps a majority of states, the presumption that an indefinite failure of issue, and consequently of the creation of an estate tail, is rebutted by the use of the word “survivor" or "survivors," failure at the death of the first taker being thereby intended (Anderson v. Jackson, 16 Johns. [N. Y.] 382; Mendenhall v. Mower, 16 S. C. 303; Abbott v. Essex Co., 18 How. [U. S.] 202; Moody v. Walker, 3 Ark. 147; Summers v. Smith, 127 Ill. 650; Groves v. Cox, 40 N. J. Law 40. Contra, Chadock v. Cowley, Cro. Jac. 695, 5 Gray's Cas. 253; Richardson v. Richardson, 80 Me. 585; Bells v. Gillespie, 5 Rand. [Va.] 273; Hoxton v. Archer, 3 Gill & J. [Md.] 199; Caskey v. Brewer, 17 Serg. & R. [Pa.] 441), in those states, on a devise to several persons with limitation over, on the death of any one of them without issue, to the survivor or survivors, the donees take, not estates tail with cross-remainders, but estates in fee simple. 2 Jarman, Wills, 1339, Bigelow's note,