It is curious that so much pains should have been taken by modern lawyers to explain the reasons why a remainder to the heirs of a person, who takes a prior estate of freehold, should not have been held to be a contingent remainder (see Fearne, Cont. Rem. 83 et seq.), when the construction adopted (subsequently called the rule in Shelley's case) was decided on before contingent remainders were allowed.

(f) Litt. s. 721; see also M. 27 Hen. VIII. 24 a.

The gift to the heirs of J. S. has been determined to be sufficient to confer an estate in fee simple on the person who may be his heir, without any additional limitation to the heirs of such heir (k). If, however, the gift be made after the 31st of December, 1833, or by the will of a testator who shall have died after that day, the land will descend, on the decease of the heir intestate, not to his heir, but to the next heir of J. S., in the same manner as if J. S. had been first entitled to the estate (l).

Gift to A. for life with remainder to the right heirs of J. S.

A gift to the heirs of a man confers a fee simple on his heir.

(g) Year Book, 9 Hen. VI. 24 a; H. 32 Hen. VI. Fitz. Abr. tit. Feoffments and Faits,99

(h) Perk. s. 52.

(i) 3 Rep. 20 a, in Boraston's ease.

(k) 2 Jarman on Wills, 2, 1st ed.; 49, 2nd cd.; 55, 56, 3rd ed.

"When contingent remainders began to be allowed, a question arose, which is yet scarcely settled, what becomes of the inheritance, in such a case as this, during the life of J. S. ? A., the tenant for life, has but a life interest; J. S. has nothing, and his heir is not yet in existence. The ancient doctrine, that the remainder must vest at once or not at all, had been broken in upon; but the judges could not make up their minds also to infringe on the corresponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They, therefore, sagely reconciled the rule which they left standing to the contingent remainders which they had determined to introduce, by affirming that, during the contingency, the inheritance was either in abeyance, or in gremio legis or else in nubibus(m). Modem lawyers, however, venture to assert, that what the grantor has not disposed of must remain in him, and cannot pass from him until there exists some grantee to receive it (n). And when the gift is by way of use under the Statute of Uses, there is no doubt that, until the contingency occurs, the use, and with it the inheritance, result to the grantor. So, in the case of a will, the inheritance, until the contingency happens, descends to the heir of the testator (o).

But whatever difficulties may have beset the departure from ancient rules, the necessities of society required that future estates, to vest in unborn or unascertained persons, should under certain circumstances be allowed. And, in the time of Lord Coke, the validity of a gift in remainder, to become vested on some future contingency, was well established. Since his day the doctrine of contingent remainders has gradually become settled; so that, notwithstanding the uncertainty still remaining with regard to one or two points, the whole system now presents a beautiful specimen of an endless variety of complex cases, all reducible to a few plain and simple principles. To this desirable end the masterly treatise of Mr. Fearne on this subject (p) has mainly contributed.

What becomes of the inheritance until the contingency happens.

(l) Stat. 3 & 4 Will. IV. c. 106, 8.4.

(m) Co. Litt. 342 a; 1 P. Wms. 515, 516; Bac. Abr. tit. Remainder and Reversion (c).

(n) Fearne, Cont Rem. 361. See, however, 2 Prest. Abst. 100 - 107, where the old opinion is maintained.

(o) Fearne, Cont. Rem. 351.

Let us now obtain an accurate notion of what a contingent remainder is, and, afterwards, consider the rules which are required to be observed in its creation. We have already said, that a contingent remainder is a future estate. As distinguished from an executory interest, to be hereafter spoken of, it is a future estate, which waits for and depends on the determination of the estates which precede it. But, as distinguished from a vested remainder, it is an estate in remainder, which is not ready, from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine. For, if any contingent remainder should, at any time, become thus ready to come into immediate possession, whenever the prior estates may determine, it will then be contingent no longer, but will at once become a vested remainder {(f). For example, suppose that a gift be made to A., a bachelor, for his life, and after the determination of that estate, by forfeiture, or otherwise in his lifetime, to B. and his heirs during the life of A., and after the decease of A., to the eldest son of A. and the heirs of the body of such son. Here we have two remainders, one of which is vested, and the other contingent. The estate of B. is vested (r). Why? Because, though it be but a small estate, yet it is ready from the first, and, so long as it lasts, continues ready to come into possession, whenever A.'s estate may happen to determine. There may be very little doubt but that A. will commit no forfeiture, but will hold the estate as long as he lives. But, if his estate should determine the moment after the grant, or at any time whilst B.'s estate lasts, there is B. quite ready to take possession. B.'s estate, therefore, is vested. But the estate tail to the eldest son of A. is plainly contingent. For A., being a bachelor, has no son; and, if he should die without one, the estate tail in remainder will not be ready to come into possession immediately on the determination of the particular estates of A. and B. Indeed, in this case, there will be no estate tail at all. But if A. should marry and have a son, the estate tail will at once become a vested remainder; for, so long as it lasts, that is, so long as the son or any of the son's issue may live, the estate tail is ready to come into immediate possession whenever the prior estates may determine, whether by A.'s death, or by B.'s forfeiture, supposing him to have got possession (s). It will be observed that here there is an estate, which, at the time of the grant, is future in interest, as well as in possession; and till the son is bom, or rather till he comes of age, the lands are tied up, and placed beyond the power of complete alienation. This example of a contingent remainder is here given as by far'the most usual, being that which occurs every day in the settlement of landed estates.