Hitherto we have observed a very extensive power of alienation possessed by a tenant in fee simple. He may make an immediate grant, not of one estate merely, or two, but of as many as he may please, provided he ascertain the order in which his grantees are to take possession (a). This power of alienation, it will be observed, may in some degree render less easy the alienation of the land at a future time; for, it is plain that no sale can in future be made of an unincumbered estate in fee simple in the lands, unless every owner of each of these estates will concur in the sale, and convey his individual interest, whether he be the particular tenant, or the owner of any one of the estates in remainder. But if all these owners should concur, a valid conveyance of an estate in fee simple can at any time be made. The exercise of the power of alienation, in the creation of vested remainders, does not, therefore, withdraw the land for a moment from that constant liability to complete alienation, which it has been the sound policy of modern law as much as possible to encourage.

But, great as is the power thus possessed, the law has granted to a tenant in fee simple, and to every other owner to the extent of his estate, a greater power still. For, it enables him, under certain restrictions, to grant estates to commence in interest, and not in possession merely, at a future time. So that during the period which may elapse before the commencement of such estates, the land may be withdrawn from its former liability to complete alienation, and be tied up for the benefit of those who may become the owners of such future estates. The power of alienation is thus allowed to be exercised in some degree to its own destruction. For, till such future estates come into existence, they may have no owners to convey them. Of these future estates there are two kinds, a contingent remainder, and an executory interest. The former is allowed to be created by any mode of conveyance. The latter can arise only by the instrumentality of a will, or of a use executed, or made into an estate by the Statute of Uses. The nature of an executory interest will be explained in the next chapter: The present will be devoted to contingent remainders, which, though abolished by the act to simplify the transfer of property (b), were revived the next session by the act to amend the law of real property (c), by which the former act, so far as it abolished contingent remainders, was repealed as from the time of its taking effect.

Vested remainders do not render the land inalienable.

Future estates.

(a) Ante, pp. 240, 241.

The simplicity of the common law allowed of the creation of no other estates than particular estates, followed by the vested remainders, which have already occupied our attention. A contingent remainder - a remainder not vested, and which never might vest, - was long regarded as illegal. Down to the reign of Henry VI. not one instance is to be found of a contingent remainder being held valid (d). The early authorities on the contrary are rather opposed to such a conclusion (e). And, at a later period, the authority of Littleton is express (f)> that every remainder, which begin neth by a deed, must be in him to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold. It appears, however, to have been adjudged, in the reign of Henry VI., that if land be given to a man for his life, with remainder to the right heirs of another who is living, and who afterwards dies, and then the tenant for life dies, the heir of the stranger shall have this land; and yet it was said that, at the time of the grant, the remainder was in a manner void(g). This decision ultimately prevailed. And the same case is accordingly put by Perkins, who lays it down, that if land be leased to A. for life, the remainder to the right heirs of J. S., who is alive at the time of the lease, this remainder is good, because there is one named in the lease (namely, A. the lessee for life,) who may take immediately in the beginning of the lease (h). This appears to have been the first instance in which a contingent remainder was allowed. In this case J. S. takes no estate at all; A. has a life interest: and, so long as J. S. is living, the remainder in fee does not vest in any person under the gift; for, the maxim is nemo est haeres viventis, and J. S. being alive, there is no such person living as his heir. Here, accordingly, is a future estate, which will have no existence until the decease of J. S.; if however J. S. should die in the lifetime of A., and if he should leave an heir, such heir will then acquire a vested remainder in fee simple, expectant on A.'s life interest. But, until these contingencies happen or fail, the limitation to the right heirs of J. S. confers no present estate on any one, but merely gives rise to the prospect of a future estate, and creates an interest of that kind which is known as a contingent remainder (i).

Two kinds.

Contingent remainders were anciently illegal.

(b) Stat. 7 & 8 Vict.c. 76, s. 8.

(c) Stat. 8 & 9 Vict. c. 106, s. 1.

(d) The reader should be informed that this assertion is grounded only on the writer's researches. The general opinion appears to he in favour of the antiquity of contingent remainders. See 3rd Rep. of Real Property Commissioners, p. 23; 1 Steph. Com. 614, n. (a). And an at-tempt to create a contingent remainder appears in an undated deed in Madox's Formulare Anglicanum,No.535,p.305.

(e) Year Book, 11 Hen. IV. 74; in which case, a remainder to the right heirs of a man, who was dead before the remainder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, with remainder to the right heirs of a man who was living, the remainder would be void, because the fee ought to pass immediately to him to whom it was limited. Note, also, that in Mandeville's case (Co. Litt. 26 b), which is an ancient case of the heir of the body taking by purchase, the ancestor was dead at the time of the gift. The cases of rents are not apposite, as a diversity was long taken between a grant of a rent and a conveyance of the freehold. The decision in 7 Hen. IV. 6 b, cited in Archer's case (1 Rep. 66 b), was on a case of a rent-charge. The authority of P. 11 Rich. II. Fitz. Ab. tit. Detinue, 46, which is cited in Archer's case (1 Rep. 67 a), and in Chudleigh's case (1 Rep. 135 b), as well as in the margin of Co. Litt. 378 a, is merely a statement by the judge of the opinion of the counsel against whom the decision was made. It runs as follows: - "Cherton to Rykhil - You think {vovs quides) that inasmuch as A. S. was living at the time of the remainder being limited, that if he was dead at the time of the remainder falling in, and had a right heir at the time of the remainder falling in, that the remainder would be good enough ? Rykhil - Yes, Sir. - And afterwards in Trinity Term, judgment was given in favour of Wad [the opposite counsel] : quod nota bene."