in the very inftant in which it is made: or, if the remainder be a chattel intereft, though perhaps the deed of creation. might operate as a future contract, if the tenant for years be a party to it, yet it is void by way of remainder: for it is a feparate independent contract, distinct from the precedent estate at will; and every remainder muft be part of one and the fame eftate, out of which the preceding particular eftate is taken ". And hence it is generally true, that if the particular estate is void in it's creation, or by any means is defeated afterwards, the remainder fupported thereby fhall be defeated alfo : as where the particular estate is an estate for the life of a person not in effe ; or an eftate for life upon condition, on breach of which condition the grantor enters and avoids the estate1; in either of thefe cafes the remainder over is void. 2. A SECOND rule to be obferved is this; that the remainder must commence or pafs out of the grantor at the time of the creation of the particular eftate". As, where there is an eftate to A for life, with remainder to B in fee: here B's remainder in fee pafles from the grantor at the fame time that feifin is delivered to A of his life cftate in poffeffion. And it is this, which induces the neceflity at common law of livery of feifin being made on the particular eftate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is neceflary that the leffee for years should have livery of feifin, in order to convey the freehold from and out of the grantor; otherwife the remainder is void". Not that the livery is neceffary to ftrengthen the eftate for years; but, as livery of the land is requifite to convey the freehold, and yet cannot be given to him in remainder without infringing the poffeffion of the leffee for years, therefore the law allows fuch livery, made to the tenant of the particular eftate, to relate and inure to him in remainder, as both are but one eftate in law & Dyer. 18. h Raym. 151. i Co. Litt. 298. k2 Roll. Abr. 415. 11 Jon. 58. I m Litt. 671. Plowd. 25. n Litt. § 60. • Co. Litt. 49. 3. A THIRD rule respecting remainders is this; that the remainder must vest in the grantee during the continuance of the particular eftate, or eo inftanti that it determines P. As, if A be tenant for life, remainder to B in tail; here B's remainder is vefted in him, at the creation of the particular eftate to A for life: or, if A and B be tenants for their joint lives, remainder to the furvivor in fee; here, though during their joint lives the remainder is vefted in neither, yet on the death of either of them, the remainder vests instantly in the furvivor: wherefore both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest fon of B in tail, and A dies before B hath any fon; here the remainder will be void, for it did not veft in any one during the continuance, nor at the determination, of the particular eftate: and, even supposing that B should afterwards have a fon, he shall not take by this remainder; for, as it did not veft at or before the end of the particular estate, it never can vest at all, but is gone for ever. And this depends upon the principle before laid down, that the precedent particular eftate, and the remainder, are one estate in law; they must therefore subfist and be in effe at one and the fame inftant of time, either during the continuance of the first eftate or at the very inftant when that determines, fo that no other estate can poffibly come between them. For there can be no intervening estate between the particular eftate, and the remainder fupported thereby the thing fupported muft fall to the ground, if once it's fupport be fevered from it. IT is upon these rules, but principally the laft, that the doctrine of contingent remainders depends. For remainders are either vefted or contingent. Vefted remainders (or remainders executed, whereby a present intereft paffes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed, to remain to a determinate person, after the par P Plowd. 25. 1 Rep. 66. * 3 Rep. 21. VOL. II. cicular BOOK II. ticular eftate is spent. As if A be tenant for twenty years, remainder to B in fee; here B's is a vefted remainder, which nothing can defeat, or fet afide. CONTINGENT or executory remainders (whereby no present intereft paffes) are where the eftate in remainder is limited to take effect, either to a dubious and uncertain perfon, or upon a dubious and uncertain event; fo that the particular estate may chance to be determined, and the remainder never take effects. FIRST, they may be limited to a dubious and uncertain perfon. As if A be tenant for life, with remainder to B's eldeft fon, (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B will have a fon or no: but the inftant that a fon is born, the remainder is no longer contingent, but vefted. Though, if A had died be fore the contingency happened, that is, before B's fon was born, the remainder would have been abfolutely gone; for the particular eftate was determined before the remainder could veft. Nay, by the ftrict rule of law, if A were tenant for life, remainder to his own eldest fon in tail, and A died without iffue born, but leaving his wife enfeint or big with child, and after his death a pofthumous fon was born, this fon could not take the land, by virtue of this remainder; for the particular eftate determined before there was any perfon in effe, in whom the remainder could veft'. But, to remedy this hardship, it is enacted by ftatute 10 & 11 W. III. c. 16. that pofthumous children fhall be capable of taking in remainder, in the fame manner as if they had been born in their father's lifetime: that is, the remainder is allowed to veft in them, while yet in their mother's womb " (1). $3 Rep. 20. f Salk. 228. 4 Mod. 282. u See Vol. I. pag. 130. (1) A father had devifed an eftate to his fon for life, with a remainder to the first and other fons of the fon in tail; the fon died, leaving his wife pregnant, who was afterwards delivered of a fon : the courts of common pleas and king's bench held clearly, that THIS fpecies of contingent remainders, to a perfon not in being, must however be limited to fome one, that may by common poffibility, or potentia propinqua, be in effe at or before the particular eftate determines". As if an estate be made to A for life, remainder to the heirs of B; now, if A [170] dies before B, the remainder is at an end; for during B's life he has no heir, nemo eft haeres viventis but if B dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, for the poffibility of B's dying before A is potentia propinqua, and therefore allowed in law *. But a remainder to the right heirs of B (if there be no fuch perfon as B in effe) is void. For here there must two contingencies happen: first, that fuch a person as B fhall be born; and, fecondly, that he shall also die during the continuance of the particular eftate; which make it potentia remotiffima, a most improbable poffibility. A remainder to a man's eldest fon, who hath none (we have feen) is good; for by common poffibility he may have one; but if it be limited in particular to his fon John, or Richard, it is bad, if he have no fon of that name; for it is too remote a poffix Co. Litt. 378. y Hob. 33. * 2 Rep. 51. the grandfon not being born at the expiration of the eftate for life, was not entitled to take it; but the lords, moved by the hardship of the cafe, reverfed the judgments of the courts below, contrary to the opinions of all the judges. Reeve v. Long, 1 Salk. 227: But the house of commons in reproof of this affumption of legis lative authority in the lords, immediately brought in the 10 & 11 W. III. which paffed into a ftatute. The ftatute only mentions marriage and other fettlements; and it is probable, that devifes were defignedly omitted to be expreffed from delicacy, and that the authority of the judgments of the peers might not be too openly impeached. As the ftatute fays the pofthumous fon in this cafe fhall take the estate as if born before the death of the father, he is entitled to the intermediate profits from the death of the father, (3 Atk. 203.) which is different from the cafe of a defcent devefted by the birth of a pofthumous child. See 1 Vol. p. 130. note 9. bility that he should not only have a fon, but a fon of a particular name. A limitation of a remainder to a bastard before it is born, is not good: for though the law allows the poffibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it. [171] A REMAINDER may also be contingent, where the perfon to whom it is limited is fixed and certain, but the event upon which it is to take effect is vague and uncertain. As, where land is given to A for life, and in case B survives him, then with remainder to B in fee: here B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his furviving A. During the joint lives of A and B it is contingent; and if B dies first, it never can veft in his heirs, but is for ever gone; but if A dies first, the remainder to B becomes vested. CONTINGENT remainders of either kind, if they amount to a freehold, cannot be limited on an estate for years, or any other particular eftate, lefs than a freehold. Thus if land be granted to A for ten years, with remainder in fee to the right heirs of B, this remainder is void but if granted to A for life, with a like remainder, it is good. For, unless the freehold paffes out of the grantor at the time when the remainder is created, fuch freehold remainder is void it cannot pafs out of him, without vefting fomewhere; and in the cafe of a contingent remainder it must veft in the particular tenant, elle it can veft no where: unless therefore the estate of fuch particular tenant be of a freehold nature, the freehold cannot veft in him, and confequently the remainder is void. CONTINGENT remainders may be defeated, by defroying or determining the particular eftate upon which they depend, before the contingency happens whereby they become vested. 2. 5 Rep. 51. a Cro. Eliz. 509. b¡ Rep. 130. Therefore |