THE AUTHOR'S ADDRESS TO THE READER, PREFIXED TO THE FOURTH EDITION. UNDER the approbation with which the profession have honoured the author's attempts, in the former editions of the Essay on Contingent Remainders and Executory Devises, he is proud in feeling himself above the call for any apologetic or recommendatory introduction to the improved edition he is now submitting to that candour, which has already afforded him so much reason for exultation. He shall, therefore, trouble his readers with no further prefatory address on the present occasion, than just to prepare them with some convenient information relative to this new edition. In respect to which he has to observe, first, that the accumulation of (what he hopes will be found useful) matter, since the last publication of his book, has expanded it into two volumes; of which, that now offered to their attention embraces the doctrine of Contingent Remainders, leaving the distinct title of Executory Devises for the entire subject of the volume which is to follow. Secondly, that the variety of references in late books to the pages of the last edition of the Essay, has induced the preservation of those pages, so far as practicable, by a marginal registry of them in the present edition. And though the alterations now introduced have, in some instances, prevented the perfect adherence to this plan; yet the author flatters himself, it is effected to a degree sufficient to answer his end, of leading the reader, with little trouble, to the places referred to by the pages of the third edition. And lastly, that the marginal references in the present edition, to the pages infra and supra, are always to the pages registered (from the last edition) in the margin. The impossibility of foreseeing in what pages of the new edition the places referred to in the sequel would fall, left no alternative to this mode in prospective references; and to have adopted a different mode in the retrospective direction, would have been rather inconsistent, and productive of confusion. With these observations, the author cheerfully commits himself to the Reader's benignity for excusing any errors which have escaped the limits of his knowledge, or the powers of his attention, on a subject of so much intricate and abstruse learning as that which occupies the ensuing sheets. Whatever may be his defects of ability, his industry claims the recognition of a classical thesis-Est quodam prodire tenus, si non datur ultra, B ANALYSIS OF INTRODUCTION. General division of estates, into those which are vested, and those which are contingent Page . 1 CHAPTER THE FIRST. A CONTINGENT REMAINDER DEFINED, AND ITS SEVERAL KINDS DIS- I. Definition of a contingent remainder A contingent remainder is a remainder limited so as to depend on an event or 1. Those, which depend entirely on a contingent determination of the pre- 2. Those, where the contingency, on which the remainder is to take effect, is independent of the determination of the preceding estate 3 3 3 5 ib. 6 3. Those, where the remainder is limited to take effect upon an event, which, 4. And those, where a remainder is limited to a person not ascertained, or not in being at the time, when such limitation is made III. Contingent remainders of the first sort should be distinguished from conditional limitations.-Differences between them IV. From the third sort of contingent remainders, those must be excepted, where land is limited to a person for a term of years, if he shall so long live, and after his decease, to another, and the term of years is of so long duration, that by common possibility the party cannot survive it V. And, from the fourth class of contingent remainders, those cases must be excepted where land is limited to a person for his life, and after his decease to his heirs, or to the heirs of his body; in such cases, by a rule of law of great antiquity, commonly called the rule in Shelley's case, the inheritance is held to be immediately executed in the ancestor, and therefore not to be in contingency or supsense Here is considered the effect of this rule on cases, 1. Where the estate of freehold limited to the ancestor, is determinable on an event which may happen in his lifetime 9 9 20 28 30 2. Where the limitation to the heirs, or heirs of the body of the ancestor, is contingent 3. Where the ancestor's estate of freehold is limited to him in trust for some other person, or to answer some particular purpose 4. Where there is a joint limitation of the freehold to several, followed by a joint limitation to them of the inheritance 5. Where the limitation of the freehold is to two persons, or more, successively, remainder to the heirs of their bodies Page 34 ib. 35 ib. 36 6. Where contingent limitations intervene between the preceding freehold and the subsequent limitation to the heirs 7. Where a limitation to the wife for life, is followed by a remainder to the heirs of the body of husband and wife 8. When the freehold results to the ancestor by implication 9. Where the estate limited to the ancestor is equitable, and the limitation to his heirs carries the legal estate 10. Where the estate limited to the ancestor is legal, and the estate limited to the heirs is equitable 11. Where the land, of which such limitations are made, is copyhold 12. Where limitations of copyhold land to the heirs of the surrenderer are preceded by no limitation to the surrenderer himself 66 13. Where there is a limitation to a person's heirs by one deed, and he acquires the freehold by another 14. Where there is a limitation to a person for life by one deed, and the estate is afterwards limited to the heirs of his body, under an execution of a power of appointment contained in that deed 15. Explanation of the expression, "words of purchase," as distinguished from that of "words of limitation," in the cases to which the rule in Shelley's case is considered to apply 16. Effect of the words, "heirs male of the body," &c. when they operate as words of purchase 17. On the supposed origin of the rule in Shelley's case 18. On the effect of the rule in Shelley's case on equitable limitations, where they are contained in marriage articles Particular examination of such of these limitations as seem to fall under the 11 Henry 8th, ch. 20. 19. When they are contained in other instruments than marriage articles ;consideration of a supposed difference between trusts executory and trusts executed - 114 20. That, before the judgment of the court of King's Bench in Perrin v. Blake, in 1769, there was no decided case where a perfect legal limitation in a deed or will to the heirs, or the heirs of the body in the plural number, unqualified by any concomitant limitation to sons, daughters or children, preceded by a limitation of the legal estate for life to the ancestor, in the same deed or will, had been held not to attach in that ancestor, but to go to the heir by purchase 148 21. Discussion of the propriety of the determination of the court of King's Bench, in the case of Perrin v. Blake 155 22. Discussion of the cases anterior to that of Perrin v. Blake, on limitations literally falling under the rule in Shelley's case 157 2 23. Discussion of the arguments generally used in support of the determina- - 166 . 173 25. Effect of the rule in Shelley's case, where there is a limitation to the ancestor for his life, and a subsequent limitation to the heir of his body, in the singular number, without words of limitation superadded 26. Effect of the rule in Shelley's case, where, after a limitation to the ancestor for life, and a subsequent limitation to the heirs of his body, in the plural number, words of limitation are superadded 27. Present extent and prevalence of the rule in Shelley's case, in the con- struction of limitations contained in deeds and marriage articles 28. Present extent and prevalence of the rule in Shelley's case, in the con- struction of limitations contained in wills;-sentiments on this point, of And of the Author Page 181 - 201 VI. 1. From the fourth class of contingent remainders, those should be excepted where a devise to the heir special of a person living has been held a suffi- cient designation of the person for the remainder to vest, notwithstanding 2. Observation on the supposed necessity, that, under a limitation to the 2. Application of this doctrine to the usual limitation to trustees for preserv- VIII. The effect of contingent remainders intervening between the particular estate and the remainders over, in making them contingent or not: 213 215 217 IX. Where estates are subjected to a general power of appointment, the power X. Here, those cases come for consideration, where a condition annexed to a pre- ceding estate is, or is not, to be considered as a condition precedent to give . 226 2. Limitations over upon a conditional contingent determination of a pre- ceding estate where such preceding estate never takes effect 3. Limitations over upon the determination of a preceding estate by a con- tingency, which, though such preceding estate takes effect, never happens 238 Instances in which a remainder is limited in words which apparently, but not in reality, import a contingency; either because they mean no more than would be implied without them, or because they do not amount to a condition precedent, but only denote the time when they are to vest Instances where the contingency, upon which an estate is limited, has been considered as a condition subsequent, not precedent; and the estate has therefore been held to be immediately vested, subject to be divested CHAPTER THE SECOND. Page ON THE NATURE OF THE CONTINGENCY UPON WHICH A REMAINDER MAY BE I. Objection to the legal validity of a remainder from its being limited on a contingency depending on an illegal event II. Or from the remote possibility on which it is limited 248 .249 III. Or because the condition on which it is limited is repugnant to some rule of law, or contrariant in itself, or inconsistent with the quality or nature of the preceding estate 250 - 252 IV. Observation on the rule of law, that certain incidents and qualities are so annexed to and inherent in certain estates, as to be incapable of being restrained or prohibited by any proviso, condition or limitation, such as the right of a tenant in tail to levy a fine or suffer a recovery V. On the distinction between those cases where, upon the happening of an event, an estate previously limited is, before its natural expiration, made to cease, and those when, upon the happening of an event, a remainder is to vest in the party, but not to be executed in possession till the expiration of the estate first limited VI. On the effect of a limitation to the grantee or devisee of a particular estate, which enlarges it, on a given event, to a greater estate VII. On the distinction between those cases where a subsequent estate at common law is limited to take effect upon a condition which is to defeat the preceding estate, and those cases, where the preceding estate is limited, subject to a condition, but the remainder is limited without any relation to or dependence upon that condition VIII. On the limitation of shifting or secondary uses in surrenders of copyhold estates IX. Observations on limitations of a particular estate to a person, with a condition, that on a given event he shall have a greater estate CHAPTER THE THIRD. ON THE ESTATE NECESSARY TO SUPPORT A CONTINGENT REMAINDER. 256 262 264 270 276 I. It is a general rule that, whenever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it II. Whether the estates arise on limitations of uses, or are executed in possession at common law III. But there does not appear to be any necessity for a preceding freehold to support a contingent remainder for years. 281 284 - 285 IV. It is sufficient for the preservation of a contingent remainder, that there subsists a right to the preceding estate at the time the remainder should vest, provided such right be a right of entry, and not a right of action V. But it must be a present right, and actually existing when the contingency happens VI. Where the estates are limited by way of use, and are afterwards divested and turned to a right, it has been held requisite to the execution of the subsequent contingent uses, that either the cestui que use under some preceding vested use, or that the feoffees or their heirs should enter in order to revest the estates; but this doctrine should not be hastily admitted . 290 |