It is laid down by Lord Coke, as to the nature of the contingency on which a remainder may be limited, that it must be a common possibility or potentia propinqua, as opposed to one that is too remote (e). [Thus a remainder to a man's eldest son who hath none, we have seen, is good, for by common possibility he may have one; but if it be limited in particular to his son John or Richard, it is bad if he have no son of that name, for it is too remote a possibility that he should not only have a son, but a son of the particular name (ƒ).] It is questionable, however, to what extent this doctrine ought to be received (g).

Contingent remainders are subject to the following rules:

1. [If they amount to a freehold, they cannot be limited on an estate for years, or any other particular estate less 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 (h); but if granted to A. for life, with a like remainder, it is good. For unless the freehold passes out of the grantor, at the time when the remainder is created, such freehold remainder is void (i): it cannot pass out of him without vesting somewhere; and in the case of a contingent remainder, it must vest in the particular

particular estate) of the whole inheritance, yet, as it is one which cannot take effect until the contingency happens, a question has been made as to what becomes of the inheritance in the mean time. According to the older authorities it is in abeyance, or, according to Lord Coke's allusion, caput inter nubila condit. Co. Litt. 342 b; et vide 40 Edw. 3, 9. But Mr. Fearne argues (and his opinion is now generally received) that it continues to reside in the grantor. Fearne, by Butler, 360, 9th ed. Where the contingent remainder in fee is created by one of those conveyances which derive their operation from the statute of uses (as to which hereafter),

it is clear that the fee remains in the grantor till the contingency happens ; and where it is created by a will, the fee descends to the heir at law. 2 Saund. by Wms. 381 a, n.(16).

(e) Cholmley's case, 2 Rep. 51; Co. Litt. 378; Fearne, by Butler, 250, 9th ed.

(f) Cholmley's case, úbi sup. Such a contingency as this, is sometimes called a possibility upon a possibility.

(g) See Third Real Prop. Rep. 29; Fearne, by Butler, 251, n. (c), 9th ed.

(h) Chudleigh's case, 1 Rep. 130 a. (i) Vide sup. p. 298; et vide Fearne, by Butler, 281, 9th ed.

tenant, else it can vest nowhere; unless, therefore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him: consequently the remainder is void.

2. Every contingent remainder must become vested either during the continuance of the particular estate, or eo instanti that it determines (k).

It is obvious that when the contingent person comes into being or is ascertained during the continuance of the particular estate, or the contingent event takes place during that period, the remainder ceases to be a contingent, and becomes a vested one. Thus if A. be tenant for life, with remainder to B.'s eldest son, then unborn, in tail, the instant that a son is born, the remainder is no longer contingent, but vested (1). On the other hand, if the person comes into being or is ascertained, or the event happens not during the continuance of the particular estate, but immediately on its determination, the remainder then of course takes effect as an estate in possession; or, in other words, vests in possession, instead of vesting as in the case first supposed, in point of interest only. Thus if land be given to A. and B. during their joint lives, remainder to the survivor in fee, this remainder, immediately on the death of either, becomes vested in possession in the survivor. The meaning of the rule, therefore, under consideration, is, that a contingent remainder must either vest as a remainder during the particular estate, or as an estate

(k) Archer's case, 1 Rep. 66 b; Co. Litt. 298 a; Bac. Ab. Remainder (D.); 2 Saund. by Wms. 387, n.(7); Fearne, by Butler, 307, 310, 9th ed.; 2 Bl. Com. 168, in which last book the rule is laid down as to remainders

generally, thus: that the remainder "must vest in the grantee during the "continuance of the particular estate, "or eo instanti that it determines." And this is the form in which it is

often expressed. But where a remainder is not originally contingent, it is necessarily vested from the time of its creation; and cannot be said properly to vest during the continuance of the particular estate, and still less upon its determination. The rule, therefore, has in effect no application except to contingent remainders.

(1) 2 Bl. Com. 169.

in possession, at its determination, and cannot remain in contingency after the latter period.

From this the important doctrine follows, that so long as a remainder is in contingency, it always requires the continuing support of the particular freehold estate (m), so that if that estate comes by any means to an end before the contingency has happened, the remainder is altogether defeated(n); for before the happening of the contingency, there is no person entitled to take, or in whom the remainder can vest; and, by the rule under consideration, it can no longer exist as a contingent remainder, because the particular estate is determined. Thus if A. be tenant for life, with remainder to B.'s eldest son, then unborn, in tail, if A. dies before the contingency happens, that is, before B. has a son, the remainder is absolutely gone; for the particular estate is determined before the remainder can vest(o). Nay, by the strict rule of law, if A. were tenant for life, remainder to his own eldest son in tail, and A. died without issue born, but leaving his wife enceinte or big with child, and after his death a posthumous son was born, it has been held that this son could not take the land by virtue of the remainder; for the particular estate determined before there was any person actually in existence in whom the remainder could vest(p). This decision, however, was ultimately reversed; and the case is now provided for by a positive law, for it is enacted by statute 10 & 11 Wm. III. c. 16, that posthumous children shall be capable of taking in remainder in the same manner as if they had been born in their father's lifetime; that is, the remainder is allowed to vest in them while yet in their mother's womb (q).]

(m) Colthirst v. Bejushin, Plowd. 25; Fearne, by Butler, 307, 9th ed.

(n) Purefoy v. Rogers, 2 Saund. 386, 387; 2 Bl. Com. 171; Fearne, by Butler, 316, 9th ed. (0) 2 Bl. Com. 169.

VOL. I.

(p) Reeve v. Long, 1 Salk. 228; 4 Mod. 282, S. C.

(q) It was the case of Reeve 2. Long, referred to in the text (in which the House of Lords reversed the judg ment of the Courts of King's Bench

X

The same consequence will follow, even though the particular estate comes to an end prematurely, and is destroyed by the voluntary act of the particular tenant himself (r). Thus a tenant for life, with remainder to his unborn sons successively in tail, remainder over to a stranger in fee, may, before a son is born, destroy the life estate by a wrongful feoffment in fee, or may surrender it to the person in ultimate remainder, so as to merge it in the fee; and in either case the contingent remainder to the son will be defeated (s). [In these cases, therefore, it is necessary to have trustees appointed to preserve the contingent remainders, in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines (t). If, therefore, his estate for life determines otherwise than by his death, for example, by wrongful alienation as above supposed, [the estate of the trustees for the residue of his natural life will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by Sir Orlando Bridgman, Sir Geoffrey Palmer, and other eminent counsel, who betook themselves to conveyancing during the time of the civil wars, in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life; and when, after the Restoration, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use.]

When land is settled in the form here supposed, that

and Common Pleas) that gave occasion to this statute. Vide Christian's Blackstone, vol. ii. p. 169, where it is also remarked that in such cases the posthumous son is entitled to the intermediate property. Et vide 2 Saund. by Wms. 387, n. (7),

(r) Chudleigh's case, 1 Rep. 135 b; Archer's case, ibid. 66 b.

(s) Fearne, by Butler, 317, 9th ed.; Purefoy v. Rogers, 2 Saund. 386, 387.

(t) As to the nature of this remainder, vide Parkhurst v. Smith, Willes, 338; 3 Atk. 138.

is, by a limitation to the parent for life, and after his death to his first and other sons in tail, and trustees are interposed to preserve the contingent remainders, this is called a strict settlement. The estate tail immediately expectant on the parent's life estate is not only exempt from the danger of being defeated before the first son is born, but remains unalienable until he attains the age of twenty-one: at that period, however (as results from former explanations (u)), he may with consent of his parent, if then living, or at his own pleasure, if his parent be dead, bar both his own issue and those in remainder or reversion, and convert his estate tail into a fee simple absolute; and, even without consent of his parent, may in all cases bar his own issue, leaving the ulterior estates undisturbed.

To return, however, to our immediate subject, it is material to remark, that, to support a contingent remainder, it is not essential that the particular estate should be in actual possession; for, provided such an estate be in existence, it will suffice for that purpose, though it be reduced to a right of entry only (x). Thus if there be an estate for life, with a contingent remainder over, and the tenant for life be disseised, that is, put out of his seisin or possession of the freehold by a stranger, there nevertheless resides an immediate right of entry in the disseissee; and that will be sufficient to support the remainder (y).

The law is said to lean against contingent remainders, as compared with vested ones, on account of the liability of the former to be defeated; and therefore in a case of doubtful interpretation, a remainder capable of being taken as vested shall not be construed as contingent (z). In connection also with the subject of contingent re

(u) Vide supra, p. 237.

(r) Ibid. 286, 9th ed.; Archer's case, 1 Rep. 66 b, 67 a.

(z) Ives v. Legge, 3 T. R. 489 n.; Driver v. Frank, 3 Mau. & Sel. 37; Doe v. Spratt, 5 Barn, & Adol. 731.

(y) Ibid.