In all other respects, executory devises followed the analogy of springing and shifting uses. And the like maxim was established regarding them, that, whenever an estate can take effect as a contingent remainder, it shall never be construed as an executory devise.25 The consequences of this rule are shown by considering its application to a case in which land is limited to the use of a living person for his life and after his death to the use of his children attaining twenty-one in equal shares in fee simple, or a devise directly to such persons for similar estates. The estate limited to the children is a contingent remainder, whether it is limited to them directly or as a use, for it is an estate that might have taken effect as a remainder if it had been limited to them at common law. If at the death of the life tenant none of his children has attained twenty-one, then the estate limited to them fails entirely.26 If one or more of them has attained twenty-one, the remainder would have vested in them successively as they attained that age, and they take the whole at the death of the life tenant to the exclusion of any others who may then be under that age.27 The rule would be applicable in the same way if the remainder were limited to such children as should attain the age of twenty-five.28 But the result would be entirely different if the land were limited to trustees in trust for the same persons for like interests. The legal estate would be vested in the trustees, who would have a continuing seisin, and the ground of the rule of the common law would not exist. In the case of such a trust for children attaining twenty-one, all that attained that age at any time, either before or after the death of the tenant for life, would be entitled, and, if there were children and none of them had attained twentyone at that time, the beneficial interest would result in the meantime, just as a use would have done before the Statute of Uses. If the trust were for such children as should attain twenty-five, then it would be wholly invalid, for the children might not be ascer 25 Purefoy v. Rogers, 2 Saund. 380, 388; Goodtitle v. Billington, 2 Doug. 753, 758 (1781); FEARNE, CON. REM. 267, 386. This rule was often laid down in Massachusetts; Nightingale v. Burrell, 15 Pick. 104, 110 (1833) (Shaw, C. J.); Terry v. Briggs, 12 Met. 17, 22 (1846) (Wilde, J.); Hall v. Priest, 6 Gray 18, 20 (1856) (Bigelow, J.). "Festing v. Allen, 12 M. & W. 279, 300 (1843); 1 JARM., WILLS, 6 ed. (1910), 328; I ed., 229. 27 FEARNE, CON. REM. 312; Festing v. Allen, 12 M. & W. 279, 301 (1843). tained within the time allowed by the rule against perpetuities, and none of them could take any interest under it.29 In the case of Cunliffe v. Brancker,30 which was decided in 1876, a testator, who died in 1817, had devised certain lands to two persons and their heirs and assigns to the use of themselves for the term of one hundred and twenty years, if his niece Sarah Cunliffe should so long live, upon trust to pay her the rents and profits for her separate use, and from the expiration of that term and subject thereto to the use of her husband John Cunliffe during his life, and after his decease to the use of all the children of Sarah Cunliffe who should be living at the decease of the survivor of the husband and wife, and the issue then living of such of them as should be then dead, and their heirs and assigns, as tenants in common, the issue taking their parents' share, with remainders over in default of any child or issue then living. The husband died in the lifetime of his wife, and upon her death leaving several children the question arose whether the limitation to the children failed for want of a particular estate of freehold to support it after the death of the husband.31 Jessel, M. R., said: "This is a case in which, according to my view, the intention of the testator fails on account of a feudal rule of law which, in my humble judgment, ought to have been abolished long ago. I mean the rule of law requiring that, in order to support a contingent remainder, there must be an estate of freehold in existence at the time the contingent remainder becomes vested, so that if until the time of the determination or cesser of the prior estates of freehold the remainder has not vested, it fails in spite of the intention of the settlor or testator. This has nothing to do with the intention. It always disappoints the intention, because every settlor, or testator, intends the contingent remainder to take effect. This is an arbitrary feudal rule, one of the legacies of the Middle Ages which has come down to our times, and which, not having been interfered 29 Abbiss v. Burney, 17 Ch. D. 211 (1881). See also Pearks v. Moseley, 5 A. C. 714 (1880); Hall v. Hall, 123 Mass. 120, 124 (1877). 30 3 Ch. D. 393, 399, 401. 31 The term of years determinable on the death of the wife was still subsisting, but a term of years cannot support a contingent remainder. 2 BL. COMM. 171; CHALLIS, R. P., 1 ed., 93; 3 ed., 119. If Sarah Cunliffe had died before her husband, his life estate would have supported the contingent remainders until they vested at his death, as in the case of another devise in the same will in precisely the same terms, substituting the names of Mary Ann Grundy and her husband for those of Sarah Cunliffe and her husband (3 Ch. D. 394, 398). with by the Legislature, I cannot interfere with. . . . No children are to take except children of Sarah who should be living at her decease. ... It is quite true that the testator probably never heard of this rule of law, but I think his conveyancer did who drew the will, for it is a will drawn by a lawyer, and the conveyancer made a mistake, he overlooked the fact that if John Cunliffe died before his wife there would be no freehold to support the contingent remainders." He therefore declared that he was bound by the rule to disappoint the intention by holding that the contingent remainder failed for want of a sufficient estate to support it, and his decision was affirmed by the Court of Appeal (James, Mellish, and Baggallay, L. JJ.). The effect of the rule might generally be avoided by adding an alternative limitation that could only take effect as an executory estate in favor of those who would otherwise be disappointed. For example, in In re Lechmere and Lloyd,32 there was a devise to a granddaughter for her life and after her death to such children of hers then living and such issue then living of her children then deceased, as either before or after her decease should attain twentyone or, in the case of females, marry, in fee simple as tenants in common. The granddaughter died leaving children some of whom had attained twenty-one and others were infants and unmarried. Jessel, M. R., held that there were two distinct classes as objects of the devise, one being the children ascertained at the death of the tenant for life, and the other being children ascertained after her death. As to the former class the gift might take effect as a remainder, but as regards the latter class it could not possibly take effect except as an executory devise. Consequently the children who had attained twenty-one took vested interests liable to open and let in the others on their fulfilling the conditions. The same principle was afterwards applied by Kay, J., in Miles v. Jarvis,33 and by Chitty, J., in Dean v. Dean.34 But the court cannot supply the alternative limitation if it is not expressed, although the devise might have been so divided by the testator that it would operate as a contingent remainder in some events or as to some of the persons described, and as an executory devise in other events or as to other persons. 32 18 Ch. D. 524 (1881). 33 24 Ch. D. 633 (1883). 34 [1891] 3 Ch. 150. 35 For other illustrations of the rule regarding alternative limitations, see Evers v. Challis, 7 H. L. Cas. 531, 547, 550, 552, 555 (1859); Doe v. Selby, 2 B. & C. 926, 930 (1824); Miles v. Harford, 12 Ch. D. 691, 702-04; Hancock v. Watson, [1902] A. C. 14; Gray v. Whittemore, 192 Mass. 367, 372, 78 N. E. 422 (1906). 35 Accordingly in White v. Summers,36 where there was a devise to John Bowen for life, and after his decease "to the use of the eldest or other son of the body of my nephew James Summers . . . who shall first attain or have attained the age of twenty-one years" in tail, and at the death of the tenant for life the eldest son of James Summers had not attained that age, Parker, J., held that the devise to the son was a contingent remainder and failed. The devise, he said, was clearly intended to take effect if the son attained twentyone, whenever that event happened, but the contingency was such that it might happen before the determination of the preceding estate, and as there was nothing from which he could infer an intention to create an alternative gift not to take effect upon the determination of the estate, the devise must be held to be a contingent remainder, although the intention of the testator would be thereby defeated.36 It is said that the decision in Cunliffe v. Brancker led to the passing of the Contingent Remainders Act in 1877.37 This act provided that a contingent remainder which would have been valid as a springing or shifting use or executory devise, had it not had a sufficient estate to support it, should, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect as if it had originally been created as a springing or shifting use or executory devise.38 Before the bill on which the act was founded was brought in, and very shortly after the decision in Cunliffe v. Brancker, a bill was prepared by Joshua Williams, by which he proposed that a contingent remainder should take effect, notwithstanding the want of a particular estate to support it, in the same manner as if it were an equitable estate, and should be governed by the rules as to invalidity by reason of remoteness which govern equitable estates.39 His bill however was not adopted. As he pointed out, the act which was passed did not apply to a gift of land to one for life with remainder to his children who should attain twenty-five, for the remainder would be void for remoteness as an executory limitation, if there had not been a partic36 White v. Summers, [1908] 2 Ch. 256. A leading article on this case appeared in the SOLICITORS' JOURNAL of 11th April, 1908 (52 SOL. J. 408). 37 CHALLIS, R. P., 1 ed., 112; 3 ed., 141; 61 L. T. 335, 371 (1876); 22 SOL. J. 332 (1878). 38 40 & 41 VICT. c. 33; WMS., SEISIN, 205. 39 The bill is printed in Wмs., SEISIN, 207, and 62 L. T. 312. See also 61 Id. 371. ular estate to support it. Accordingly, if one or more of the children attained twenty-five before the death of the tenant for life, they would take the whole to the exclusion of others afterwards attaining twenty-five who were intended to take equally with them. Mr. Williams also asserted that, if a remainder was limited to the children of the tenant for life who should attain twenty-one and some of his children attained that age in his lifetime and others after his death, the remainder would vest wholly in those that had attained twenty-one at his death and the others would be excluded, because the act applied only in the event of the particular estate determining "before the contingent remainder vests." 40 But the Solicitors' Journal said of this criticism: "If that is so, the Act is a failure, for the inconvenience it was intended to remedy seldom arose except under gifts to classes," and this opinion was echoed by the Law Times," which added that such a vesting was not the vesting spoken of by the act, and that, when it referred to the particular estate determining before the contingent remainder vests, it was speaking of those who but for the act would have been disappointed and in interpreting the statute the old law and the mischief to be provided against ought to be borne constantly in mind. A series of letters in the Solicitors' Journal followed, in which Mr. Williams's eminent contemporary, George Sweet, took part and maintained that the words of the act referred to the case of the particular estate determining before the contingent remainder had vested in all the persons in whom it would have vested if the particular estate had not determined, and that they were not limited to the case where there had been no vesting in any of them.42 This question has not yet been judicially determined. It was lately raised in the case of In re Robson, before Astbury, J., where a testator had devised a house to his daughter for life and after her decease to such of her children as should attain twenty-one, as tenants in common, in fee simple. Two of her children had attained twenty-one at her death and two others were still minors. The judge pointed out that, if the children had all been infants at the death of the life tenant, there would have been no difficulty, but, 40 WMS., SEISIN, 206–07. 41 22 SOL. J. 332 (23 Feb., 1878); 64 L. T. 328 (9 March, 1878). 42 The letters are as follows: 22 SOL. J. 544 (A. P. Whately); 562 (G. Sweet); 601, 622 (J. Williams); 640 (G. Sweet); 661 (J. Williams). [1916] 1 Ch. 116. |