of a vested remainder may therefore be merely an indirect way of causing, without the aid of statute, contingent remainders to be alienable inter vivos, a most enlightened piece of law reform. These cases perhaps should be regarded as establishing only the proposition that a future interest after a particular estate of freehold limited to a person ready and entitled to take possession as remainderman should the particular estate then determine, although, should the particular estate determine at some other time, such person might not be entitled to the remainder, is alienable by deed without covenants. Mr. Gray's explanation entirely fails to bring this out, and the reader therefore is left, it is submitted, in far worse confusion than need be.

Cases may be found in Illinois where remainders which are vested according to the common law definition as set out in Gray's Rule against Perpetuities and by the New York statutory definition as well, are called contingent because they are subject to a condition precedent in fact. Thus, where the question is as to whether the holder of a future interest may file a bill for partition, the rule is that he cannot unless his future interest is absolutely sure to take effect in possession some time. If it is uncertain ever to take effect, no partition may be had. This rule is discussed in terms of vested and contingent remainders. Accordingly, where the limitations are to A for life, remainder to B and his heirs, but if B dies before the termination of the particular estate, then to C and his heirs, we find the court, for the purpose of determining whether B's interest is subject to partition or not, calling B's interest a contingent remainder.1

however, held that it descended because the remainder was vested under the doctrine of the Boatman case.

It should be observed, also, that the New York case of Moore v. Littel, 41 N. Y. 66, which seems to have established, by virtue of the New York statute, this new definition of a vested remainder, raised only the question of whether the future interest was alienable inter vivos or not. The New York court held it was, because under the New York statute it was vested. This, it has been pointed out by Mr. Stewart Chaplin (1 Colum. L. Rev. 279), was the precise point involved in many cases which have cited or followed Moore v. Littel, supra. It may be, therefore, that the true function of the New York statute is indirectly to allow the transfer of all future interests so long as they fulfill the statutory definition of a vested interest. It should be treated, perhaps, as an indirect mode of abolishing all the irrational and absurd results which have come down to us from the feudal period of the land laws and have attached to interests known at common law as contingent remainders, — namely, their non-alienability and possibly their destructibility.

1 Seymour v. Bowles, 172 Ill. 521; Goodrich v. Goodrich, 219 Ill. 426, 1 Ill. L. Rev. 184; Ruddell v. Wren, 208 Ill. 508; Cummings v. Hamilton, 220 Ill. 480, 483, semble.

In short, it is believed that looking at it from the point of view of vested and contingent interests, the law in single jurisdictions may, as it does in Illinois, appear a perfect chaos. No order can come out of it unless one starts with the premise that fundamentally there was a common law or feudal distinction between vested and contingent remainders; that this was and may still be useful in connection with certain results; that in connection with other results the mere distinction in words may take on an entirely different character in substance.

The vital question, however, for the writer on the subject of the rule against perpetuities concerns the proper definition of a vested interest to be used where the application of the rule against perpetuities is involved. Is a state having a non-statutory rule against perpetuities, but adopting the New York statutory definition of a vested interest when the question is one of alienation inter vivos, going to apply that definition where the question is whether the rule against perpetuities is violated? Thus, suppose a limitation to A for life, and if A die without issue in any generation to B and his heirs. A is a bachelor. We will assume, also, that contingent remainders are no longer destructible. Under the New York statutory definition B would have a vested remainder. Is his interest therefore not void for remoteness? 2 Is a state like Illinois, which has a rule that the future interest is vested for the purpose of involuntary partition only when it is not subject to a condition precedent in fact — i. e., when it is absolutely sure some time to come into possession -going to apply that definition when the question is whether the rule against perpetuities is violated? If so, it may make a difference in a case like this: to A

1 Chapin v. Nott, 203 Ill. 341.

2 It is assumed in accordance with the reasoning of some recent cases abolishing the Rule in Wilde's Case, 6 Co. 17 (Davis v. Ripley, 194 Ill. 399; Boehm v. Baldwin, 221 Ill. 59), that the gift after an indefinite failure of issue in the life tenant does not turn the life estate into an estate tail, where estates tail have been long since abolished by statute and turned into life estates with remainders in fee to the life tenants' lineal heirs.

Observe, also, that the case put in the text exists in Illinois where an estate tail is limited to A and the heirs of his body, and the remainder in fee to B and his heirs. In such a case the Statute on Entails (Rev. Stat. 1874, c. 30, § 6) gives A a life estate with a remainder to his lineal heirs. B would, it is submitted, have a fee simple taking effect on the contingency of an indefinite failure of issue in the life tenant. See Chapin v. Nott, 203 Ill. 341; Growt v. Townsend, 2 Hill (N. Y.) 554, 2 Den. (N. Y.) 336. It should be noted that Missouri (Rev. Stat. 1899, § 4592), Arkansas (A. & H. Dig. Stat. 1894, c. 29, § 700), Vermont (Stat. 1894, c. 105, § 2201), and Colorado (Mill's Ann. Stat., vol. 1, § 432) have a statute on entails similar to that in Illinois.

for life, then to the unborn son of A for life, remainder to B and his heirs, but if B or his issue do not survive the termination of the unborn son's life estate, then to C for life. Here the remainder to B is in fact subject to a condition precedent to its taking effect in possession, which may occur at too remote a time. If, therefore, it be regarded as not vested and the rule be held to apply, the remainder to B will be void for remoteness, and under Moneypenny v. Dering 1 C's life estate will fail. These fundamental difficulties the learned author of the Rule against Perpetuities fails even to open to our view.

VESTED AND CONTINGENT INTERESTS AFTER TERMS FOR

YEARS.

When is a freehold interest limited after a term vested? This is a vital question, because, as is pointed out in §§ 209 and 210, however long the term may be, the limitation after it is valid if vested. It is believed, therefore, to be a serious omission in the chapter on vested and contingent interests that this question is not discussed. In fact, in no place in the book is it considered.

Shall we assume, then, that a freehold interest after a term is vested when such future interest after a freehold would be? If so, the freehold after the term is vested in A, when throughout its continuance A, or A and his heirs, have the right to the immediate possession whenever and however the preceding term may determine. Such a view certainly is consistent with Smith d. Dormer v. Parkhurst. If this be the correct view, then we may have interests after a very long term for years which are in fact subject to a condition precedent to taking effect in possession, but which must be called vested. Are they, then, not subject to the rule against perpetuities? Thus, to A for ninety-nine years and then to B and his heirs, but if neither B nor any of his lineal descendants from him survive the termination of said term, then to C for life. Here B's interest is in fact subject to a condition precedent to its ever taking effect in possession. Is it then vested and not too remote? Where Moneypenny v. Dering 3 is law, on the answer to this question will depend the validity of the gift to C for life. So, if

1 2 DeG. M. & G. 145.

23 Atk. 135; 5 Gray, Cas. on Property, 55; Fearne, C. R., 220; Challis, Real Property, 2 ed., 133-136.

3 Supra.

the limitations are to A for ninety-nine years and then to B and his heirs, but if the said term shall terminate before the expiration of said ninety-nine years, then to C and his heirs, is C's interest too remote?

STATEMENT OF THE RULE AGAINST PERPETUITIES.

-

In the first edition the rule against perpetuities was given in this form: "No interest subject to a condition precedent shall be good, unless the condition must be fulfilled, if at all, within twentyone years after some life in being at the creation of the interest." As Mr. Gray now, in the second edition, points out, this is only correct "if we assume that condition' includes not only all uncertain future acts and events, but also all certain future events with the exception of the termination of preceding estates." By this assumption the rule as stated applies to certain executory interests, as where the limitations are to A and his heirs to begin from a day fifty years after the testator's death. Even then, however, the statement of the rule is believed to be defective, because there may be some future interests which are in fact subject to a condition precedent in the sense of an uncertain future act or event, which would not be too remote because by the common law definition they were vested. Thus, suppose the limitations are to A for life, then to the unborn son of A for life, remainder to B and his heirs, but if B or his issue do not survive the termination of the life estate in the unborn son, then to C for life. Here the remainder in B is, by the common law definition, vested,1 yet it is in fact subject to a condition precedent to its taking effect in possession which may occur at too remote a time. Nevertheless, because the future interest is vested it may be supposed that it is not void for remoteness.

The fact that with respect to future interests there are today several distinct meanings of the term "vested" variant from that which obtained at common law, suggests a criticism of the statement of the rule as now set out in the second edition. In that statement the future interest is required to "vest" within the required time. With at least three different meanings of "vest,' all of which are in use in a state like Illinois, and doubtless in other jurisdictions to some extent, how can such a statement of the rule against perpetuities be of the slightest value until the

1 Gray, Rule Perp., 2 ed., § 108.

2 See supra, pp. 192-195.

"2

sense in which "vest" be used is defined. However it might be with the casual reader, it would not, it is believed, be difficult for one having a more intimate acquaintance with the scope of Mr. Gray's book to surmise that by "vest" the learned author means "take effect in possession," or "come into a position with reference to a preceding estate less than an absolute interest where the future interest is ready, during its continuance, to come into possession whenever and however the preceding interest determines, otherwise than by being prematurely cut short by the express provision of the settlor." Curiously enough, this is just the definition of "vest" which is no longer much understood and which is ceasing to be in common use. Why not, then, discard the word "vest" and state the rule thus: No interest is good unless it must come into possession, if at all, not later than twentyone years after some life in being at the creation of the interest; except that if the interest, whether in real or personal property or by way of equitable interest in real or personal property, must, if at all, not later than twenty-one years after some life in being at the creation of the interest, stand ready throughout its continuance to come into immediate possession, whenever and however a preceding interest less than an absolute interest may determine, otherwise than by being prematurely cut short by the express provision of the settlor, it is valid.

DOES THE RULE APPLY TO CONTINGENT REMAINDERS?

There is another problem that the critical reader may well ask for more light upon. It is stated, as we have just seen, to be one of the fundamental assumptions that the rule against perpetuities does not apply to remainders which are vested in interest, no matter at how remote a time they may vest in possession.1 Yet, as to all future interests in land which are executory, they must vest in possession within the prescribed time, — or, as it is often stated, they do not vest in interest until they vest in possession. Why is this? One searches in vain in the present edition, as well as in the first, for an answer. The truth is that Mr. Gray may have placed himself in a position where it is difficult for him to argue about this matter. He has taken the position that a contingent remainder is subject to the rule. The main affirmative ground for this, he states2