In Lord Coke's time, contingent remainders were well established.
The doctrine now settled.
Mr. Fearne's treatise.
Definition of a contingent remainder.
(p) Fearne's Essay on the Learning of Contingent Remainders and Executory Devises. The last edition of this work ha- been rendered valuable by an original view of executory interests, contained in a second volume, appended by the Learned editor, Mr. Josiah William Smith. (q) See ante, p. 243.
(r) Fearne, Cont. Rem. pp. 7 n, 325.
(s) See ante, pp. 241, 242.
The rules which are required for the creation of a contingent remainder may be reduced to two; of which the first and principal is well established; but the latter has occasioned a good deal of controversy. The first of these rules is, that the seisin, or feudal possession, must never be without an owner; and this rule is sometimes expressed as follows, that every contingent remainder of an estate of freehold must have a particular estate of freehold to support it (t). The ancient law regarded the feudal possession of lands as a matter the transfer of which ought to be notorious; and it accordingly forbad the conveyance of any estate of freehold by any other means than an immediate delivery of the seisin, accompanied by words, either written or openly spoken, by which the owner of the feudal possession might at any time thereafter be known to all the neighbourhood. If, on the occasion of any feoffment, such feudal possession was not at once parted with, it remained for ever with the grantor. Thus a feoffment, or any other conveyance of a freehold, made to-day to A., to hold from to-morrow, would be absolutely void, as involving a contradiction. For, if A. is not to have the seisin till to-morrow, it must not be given him till then (u). So, if, on any conveyance, the feudal possession were given to accompany any estate or estates less than an estate in fee simple, the moment such estates, or the last of them, determined, such feudal possession would again revert to the grantor, in right of his old estate, and could not be again parted with by him, without a fresh conveyance of the freehold. Accordingly, suppose a feoffment to be made to A. for his life, and after his decease and one day, to B. and his heirs. Here, the moment that A.'s estate determines by his death, the feudal possession, which is not to belong to B. till one day afterwards, reverts to the feoffor, and cannot be taken out of him without a new feoffment. The consequence is, that the gift of the future estate, intended to be made to B., is absolutely void. Had it been held good, the feudal possession would have been for one day without any owner, or, in other words, there would have been a so-called remainder of an estate of freehold, without a particular estate of freehold to support it. Let us now take the case we have before referred to, of an estate to A., a bachelor, for his life, and after his decease to his eldest son in tail. In this case it is evident, that the moment A.'s estate determines by his death, his son, if living, must necessarily be ready at once to take the feudal possession, in respect of his estate tail. The only case in which the feudal possession could, under such a limitation, ever be without an owner, at the time of A.'s decease, would be that of the mother being then enceinte of the son. In such a case, the feudal possession would be evidently without an owner, until the birth of the son; and such posthumous son would accordingly lose his estate, were it not for a special provision which has been made in his favour. In the reign of William III. an act of parliament (x) was passed, to enable posthumous children to take estates, as if born in their father's lifetime. And the law now considers every child en ventre sa mere as actually born, for the purpose of taking any benefit to which, if born, it would be entitled (y).
Two rules for the creation of a contingent remainder.
Ancient notoriety of transfer of the feudal possession.
Example, a feoffment to A. to-day to hold from to-morrow.
To A. for life, and after his decease and one day, to B.
(t) 2 Black. Com. 171.
(u) 2 Black. Com. 166.
As a corollary to the rule above laid down, arises another proposition, frequently itself laid down as a distinct rule, namely, that every contingent remainder must vest, or become an actual estate, during the continuance of the particular estate which supports it, or eo instanti that such particular estate determines; otherwise such contingent remainder will fail altogether, and can never become an actual estate at all. Thus, suppose lands to be given to A. for his life, and after his decease to such son of A. as shall first attain the age of twenty-four years. As a contingent remainder the estate to the son is well created (z); for the feudal seisin is not necessarily left without an owner after A.'s decease. If, therefore, A. should, at his decease, have a son who should then be twenty-four years of age or more, such son will at once take the feudal possession by reason of the estate in remainder which vested in him the moment he attained that age. In this case the contingent remainder has vested during the continuance of the particular estate. But if there should be no son, or if the son should not have attained the prescribed age at his father's death, the remainder will fail altogether (a). For the feudal possession will then, immediately on the father's decease, revert, for want of another owner, to the person who made the gift in right of his reversion. And, having once reverted, it cannot now belong to the son, without the grant to him of some fresh estate by means of some other conveyance.
To A. for his life, and after his decease to his eldest sou in tail.
Posthumous children may take estates as if born.
A contingent remainder must vest during the particular estate, or eo instanti that it determines.