Contingent remainders are those in which both the right of property and right of enjoyment are postponed.5 Besides the general rules governing all remainders, there are certain special rules governing contingent remainders as follows; (1) the preceding estate in the case of a contingent remainder must be a freehold; and (2) the contingency must not be illegal,

4 Fearn. Cont. Rem., 329; Prest.

Est., 32, 33. Note to Thomas' Edition of Coke Institute.

5 According to Mr. Fearne, there are four kinds of contingent remainders: - 1st. Where the remainder depends entirely on a contingent determination of the preceding estate itself. As if A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. then to remain over in fee; here the particular estate is limited to determine on the return of C. and only on that determination of it is the remainder to take effect; but that is an event which possibly may never happen; and, therefore, the remainder, which depends entirely upon the determination of the preceding estate by it, is contingent. 3 Rep., 20 a. Et. vid. Arton v. Hare, Poph. 97. Large's case, 3 Leon. 182. 2d. Where some uncertain event, unconnected with, and collateral to the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder; as in the case of Doe d. Planner v. Scudamore, cited above, and in the instance put by Lord Coke of a lease for life to A., B., and C, and if B. survive C. then the remainder to B. and his heirs; here the event of B.'s surviving C. does not affect the determination of the particular estate; nevertheless, it must precede and give effect to B.'s remainder; but as such event is dubious, the remainder is contingent. Fearn. Cont. Rem. 4, 5. 3d. Where it is limited to take effect upon an event, which, though it certainly must happen some time or other, yet may not happen till after the determination of the particular estate; as if a lease be made to I. S. for life, and after the death of J. D. the lands to remain to another in fee; now it is certain that J. D. must die some time against public policy, double or too remote.

The reason why a contingent remainder can only be created to take effect after a freehold must be found by a reference to the Feudal principles of land-owneror other; but his death may not happen till after the determination of the particular estate by the death of J. S, and therefore such remainder is contingent. 3 Rep. 20 a. And 4th. Where it is limited to a person not ascertained, or not in being at the time when such limitation is made; as if a lease be made to one for life, remainder to the right heirs of J. S. Supra, 378 a. Et vid. 3 Rep. 20 a. So where a remainder is limited to the first son of B. who has no son then born; here B. may never have a son, or if he should, the particular estate may determine before the birth of such son; therefore this remainder is contingent. 1 Ventr. 806. So if an estate be United to two for life, remainder to the survivor of them in fee, the remainder is contingent; because it is uncertain which of them will be the survivor. Cro. Car. 102. Fearn. Cont. Rem. 6. It should however, be observed, that there are some casc3 which fall literally under one or other of the 3d and 4th descriptions, which are nevertheless ranked among vested estates. With respect to those cases which are exceptions to the third kind of contingent remainders, it has been held, that a limitation to A. for eighty or ninety years, if he shall so long live, with a remainder over, after the death of A., to B. in fee, is not deemed a contingent remainder; for the mere possibility, that a life in being may endure for eighty or ninety years after such a limitation is made, does not amount to a degree of uncertainty sufficient to render a remainder contingent. Napper v. Sanders, Hutt. 119. Lord Derby's case, Lit. Rep. 370.

Pollexf. 67. But if the term of years is so short, as to leave a common possibility, that the life on which it is determinable may exceed it, the remainder will be deemed contingent. And therefore, if an estate is limited to A. for twenty-one years, if he shall so long live, and after his death to B. in fee, this is a contingent remainder; because there is no improbability in supposing that the life may exceed the term. 3 Rep. 20 a. Et vid. Beverley v. Beverley 2 Vern. 131. Fearn. Cont. Rem. 20, 23. The exceptions to the fourth sort of contingent remainders arise, first, from a rule of law, that wherever the ancestor takes an estate of freehold, and a remainder is thereon limited in the same conveyance to his heirs, or to the heirs of his body, such remainder is immediately executed in the ancestor so taking the freehold, and is not contingent. Shelley's case, 1 Rep. 104. Fearn. Cont. Rem. 30. Infra n. (p). Secondly, from a principle that an ultimate limitation to the right heirs of the grantor will continue in him, as his old reversion, and not as a remainder, although the freehold be expressly limited from him. Post, 22 b. Thirdly, from the respect which the law pays to the intent of a testator, where it can be plainly collected from his will, that he used the words heirs of the body, as a descriptio persona, or sufficient designation of the person for the remainder to vest, notwithstanding the general rule, that nemo est hoeres viventis. Fearn. Cont. Rem. 319. But the cases falling under this last exception, have been either, where the limitation to the heir special ship. Under the Feudal system, seisin must exist at all times in some person and seisin could only be transferred at the time the estate was created. In the case of a freehold estate followed by a remainder, the seisin has been qualified by the words "now living," or some other circumstances have appeared in the will, to manifest the testator's intention, that the estate should vest. See Bur-chett v. Durdant, 3 Ventr. 311. Cart. 154. Long v. Beaumond,

1 P. Wms. 229. 1 Eq. Abr. 114. 2 Eq. Abr. 331. 1 Bro. P. C. 489. Goodright v. White,