thus exemplified, at least, is not of a satisfactory cha

racter.

Contingent remainders are subject to the following two general 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; but if granted to A. for life, with a like remainder, it is good (p). For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void (g): it cannot pass out of him without vesting somewhere; and in the case of a contingent remainder it must vest in the particular 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, and 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 (r).

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

(p) Chudleigh's case, 1 Rep. 130 a. (9) See Fearne, by Butler, 281, 9th ed.

(r) 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 re"mainder must vest in the grantee "during the continuance of the par

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 (s). 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 in possession at the determination thereof; and cannot remain in contingency after the latter period.

From this the important doctrine followed, that so long as a remainder was in contingency, it always required the continuing support of the particular freehold estate (t), so that if that estate came by any means to an end before the contingency happened, the remainder was altogether defeated (u); for before the happening of the contingency, there was no person entitled to take, or in whom the remainder could vest; and, by the rule under consideration, it could no longer exist as a contingent remainder, because the particular estate was determined. Thus if A. were tenant for life, with remainder to B.'s eldest son, then unborn, in tail; if A. died before the contingency happened, that is, before B. had a son, the remainder was absolutely gone: for the particular estate was determined before the remainder could vest (x). Nay, it has been held that, by the strict rule of law, if A. were tenant for

(s) 2 Bl. Com. 169.

(t) Colthirst v. Bejushin, Plowd. 25; Fearne, by Butler, 307, 9th ed. (u) Purefoy v. Rogers, 2 Saund.

386, 387; 2 Bl. Com. 171; Fearne, by Butler, 316, 9th ed.

(x) 2 Bl. Com. 169.

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, 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 (y). This decision, however, was ultimately reversed, and the case was afterwards provided for by a positive law; for [it was enacted by statute 10 & 11 Will. 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 (z).]

The same consequence was held to follow from the determination of the particular freehold estate before the contingency happened, even though that estate determined prematurely, and were destroyed by the voluntary act of the particular tenant himself (a). Thus, a tenant for life, with remainder to his unborn sons successively in tail, remainder over to a stranger in fee, might, before a son was born, have destroyed the life estate by a wrongful feoffment in fee, or have surrendered 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 would

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

(z) It was this case of Reeve v. Long, (in which the House of Lords reversed the judgment of the Courts of King's Bench and Common Pleas,) that gave occasion to the statute mentioned in the text. The case adjudicated on by the Lords, laid down the law as to estates by will, and therefore the statute speaks merely of those "by marriage or "other settlement." It may also be noticed, that where a posthumous

child takes by virtue of this statute, he is entitled to the intermediate property from the death of the parent; though, where a posthumous child takes by descent, divesting the estate of the supposed heir, he takes only from the time of his birth; (see 2 Saund. by Wms. 387 a, n. (7); Thelluson v. Woodford, 11 Ves. 139; Goodtitle v. Newman, 3 Wils. 526; Christian's Bl. Com. vol. ii. p. 169.) (a) Chudleigh's case, 1 Rep. 135 b; Archer's case, ibid. 66 b.

have been defeated (b). In these cases, therefore, it was [necessary to have trustees appointed to preserve the contingent remainders, in whom there was vested an estate in remainder for the life of the tenant for life, to commence when the estate determined (c): and then, if his estate for life determined otherwise than by his death,] for example, by wrongful alienation, or by surrender, as above supposed, [the estate of the trustees for the residue of his natural life would 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 another 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 was settled in the form here supposed, that is, by a limitation to the parent for life, and after his death to his first and other sons or children, in tail, and trustees were interposed to preserve the contingent remainders, this was called a strict settlement. The estate tail immediately expectant on the parent's life estate, was not only exempt from the danger of being defeated before the first son was born, but remained unalienable until he attained the age of twenty-one; at that period, however, as results from former explanations (d), he might with concurrence of his parent, if then living, or at his own pleasure, if his parent were

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 concurrence of his parent, might in all cases bar his own issue, leaving the ulterior estates undisturbed. This state of the law as regards the position of a child to whom, before his birth, a remainder in tail has been limited, expectant on a precedent life estate limited to his parent, is still unaltered; though by the effect of a late statute, which we shall presently mention, the interposition of trustees to preserve contingent remainders is no longer necessary to his security.

To return, however, to our immediate subject, it may be further remarked, that, to support a contingent remainder, it was not, even at the common law, essential that the particular estate should be in actual possession; for, provided such an estate were in existence, it would suffice for that purpose, though it were reduced to a right of entry only (e). Thus, if there were an estate for life, with a contingent remainder over, and the tenant for life were disseised, that is, put out of his seisin or possession of the freehold by a stranger, there nevertheless resided an immediate right of entry in the disseisee; and that would have been sufficient to support the remainder (ƒ).

The law was 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, it has been held that a remainder capable of being taken as vested, ought not to be construed as contingent (g). But the law relating to contingent remainders has recently undergone an alteration of a very important kind, by which much of the old learning, to which we have just had occasion to refer, has been displaced. For by 8 & 9 Vict. c. 106, s. 8, "a contingent remainder ex

(e) Archer's case, 1 Rep. 66 b, 67 a. (f) Ibid.

(g) See Ives v. Legge, 8 T. R. 489, n.; Driver v. Frank, 3 Mau. & Sel. 37; Doe d. Pilkington v. Spratt, 5 Barn. & Adol. 731.