(x) Stat. 10 & 11 Will. in. c.

(y) Doe v. Clarke, 2 H. Bl. 399; Blackburn v. Stables, 2 Ves.

& Beames, 367; Mogg v. Mogg, 1 Meriv. 654; Trower v. Butts, 1 Sim. & Stu. 181.

A contingent remainder cannot be made to vest on any event which is illegal, or contra bonos mores. Accordingly, no such remainder can be given to a child who may be hereafter born out of wedlock. But this can scarcely be said to be a rule for the creation of contingent remainders. It is rather a part of the general policy of the law in its discouragement of vice. In the reports of Lord Coke, however, a rule is laid down of which it may be useful to take some notice, namely, that the event on which a remainder is to depend must be a common possibility, and not a double possibility, or a possibility on a possibility, which the law will not allow (b). This rule, though professed to be founded on former precedents, is not to be found in any of the cases to which Lord Coke refers, in none of which do either of the expressions "possibility on a possibility," or "double possibility," occur. It appears to owe its origin to the mischievous scholastic logic which was then rife in our courts of law, and of which Lord Coke had so high an opinion that he deemed a knowledge of it necessary to a complete lawyer (c). The doctrine is indeed expressly introduced on the authority of logic: - "as the logician saith, 'potentia est duplex, remota et propinqua'"{d). This logic, so soon afterwards demolished by Lord Bacon, appears to have left behind it many traces of its existence in our law; and perhaps it would be found that some of those artificial and technical rules which have the most annoyed the judges of modern times (e) owe their origin to this antiquated system of endless distinctions without solid differences. To show how little of practical benefit could ever be derived from the distinction between a common and a double possibility, let us take one of Lord Coke's examples of each. He tells us that the chance that a man and a woman, both married to dijferent persons, shall themselves many one another is but a common possibility (f). But the chance that a married man shall have a son named Geoffrey is stated to be a double or remote possibility (g). Whereas it is evident that the latter event is at least quite as likely to happen as the former. And if the son were to get an estate from being named Geoffrey, as in the case put, there can be very little doubt but that Geoffrey would be the name given to the first son who might be born (h). Respect to the memory of Lord Coke has long kept on foot in our law books (i) the rule that a possibility on a possibility is not allowed by law in the creation of contingent remainders. But the authority of this rule has long been declining (j), and lately a very learned living judge (k) has declared plainly that it is now abolished.


Events on which a contingent remainder may not vest.

(z) 2 Prest. Abst. 148.

(a) Fasting v. Allen , 12 Mees. & Wels. 279; 5 Bare, 573. Bee however as to this case, Riley v. Garnett, 3 De Great & S. 629; Browne v. Browne, 3 Sma. &

Giff. 5G8, qy? Re Mid Kent Railway Act, 1856, Ex parte Sty an, John. 387; Holmes v. Prescott, V.-C. W., 10 Jur., N. S. 507; 12 W. R. 636; Rhodes v. Whitehead, 2 Drew. & Sm. 532.

Possibility on a possibility.

Scholastic logic.

Examples of common and double possibilities.

(b) 2 Rep. 51 a; 10 Rep. 50 b. (c) Preface to Co. Litt. p. 37. (d) 2 Rep. 51 a. (e) Such as the rule in Dumpor's case, 4 Rep. 119.

(f) 10 Rep. 50 b; Year Book, 15 Hen. VII. 10 b. pl. 16.

But although the doctrine of Lord Coke, that there can be no possibility on a possibility, has ceased to govern the creation of contingent remainders, there is yet a rule by which these remainders are restrained within due bounds, and prevented from keeping the lands, which are subject to them, for too long a period beyond the reach of alienation. This rule is the second ride, to which we have referred (/), and is as follows: - that an estate cannot be given to an unborn person for life, followed by any estate to any child of such unborn person (m); for in such a case the estate given to the child of the unborn person is void. This rule is apparently derived from the old doctrine which prohibited double possibilities. It may not be sufficient to restrain every kind of settlement which ingenuity might suggest; but it is directly opposed to the great motive which usually induces attempts at a perpetuity, namely, the desire of keeping an estate in the same family; and it has accordingly been hitherto found sufficient. An attempt has been recently made, with much ability, to explain away tin's rule as merely an instance of the rule by which, as we shall hereafter see, executory interests are restrained (n). But this rule is more stringent than that which confines executory interests; and if there were no other restraint on the creation of contingent remainders than the rule by which executory interests are confined, landed property might in many cases be tied up for at least a generation further than is now possible (o).

Rule 2.

Gift to an unborn person with remainder to his child, the remainder void.

(g) 2 Rep. 51 b.

(h) The true ground of the decision in the old case (10 Edw. III. 45), to which Lord Coke refers, was no doubt, as suggested by Mr. Preston ( 1 Prest.Abst. 128), that the gift was made to Geoffrey the son, as though he were living, when in fact there was then no such person.

(i) 2 Black. Com. 170; Fearne, Cont. Rem. 252.

(j) See Third Report of Real Property Commissioners, p. 29;

1 Prest. Abst. 128, 129.

(k) Lord St. Leonards, in Cole v. Sewell, 1 Conn. & Laws, 344; & C. 4 Dru. & War. 1, 32. The decision in this case has been affirmed in the House of Lords, 2 H. of L. Cases, 186. (l) Ante, p. 259.

(m) 2 Cases and Opinions, 432 - 441; Hay v. Earl of Coventry,