3 T. Rep. 8G; Brudenell v. Elwes, 1 East, 452; Fearne's Posthuma, 215; Fearne, Cont. Rem. 502, 565, Bull, note; 2 Prest. Abst.
The opinion which so generally prevails, that every man may make what disposition he pleases of his own estate, - an opinion countenanced by the loose description sometimes given by lawyers of an estate in fee simple (p), - has not unfrequently given rise to attempts made by testators to settle their property on future generations beyond the bounds allowed by law; thus lands have been given by will to the unborn son of some living person for his life, and after the decease of such unborn son, to his sons in tail. This last limitation to the sons of the unborn son in tail, we have observed, is void. The courts of law, however, have been so indulgent to the ignorance of testators, that, in the case of a will, they have endeavoured to carry the intention of the testator into effect, as nearly as can possibly be done, without infringing the rule of law; they, accordingly, take the liberty of altering his will to what they presume he would have done had he been acquainted with the rule which prohibits the son of any unborn son from being, in such circumstances, the object of a gift. This, in Law French, is called the cy pre's doctrine (q). From what has already been said, it will be apparent that the utmost that can be legally accomplished towards securing an estate in a family is to give to the unborn sons of a living person estates in tail: such estates, if not barred, will descend on the next generation; but the risk of the entails being barred cannot, by any means, be prevented. The courts, therefore, when they meet with such a disposition as above described, instead of confining the unborn son of the living person to the mere life estate given him by the terms of the will, and annulling the subsequent limitations to his offspring, give to such son an estate in tail, so as to afford to his issue a chance of inheriting should the entail remain unbarred. But this doctrine, being rather a stretch of judicial authority, is only applied where the estates given by the will to the children of the unborn child are estates in tail, and not where they are estates for life (r), or in fee simple (s).
Gift by will to the sons of an unborn person, after a life estate to such person.
114; 1 Sugd. Pow. 470; 393, 8th ed.; 1 Jarm. Wills, 221, 1st ed.; 203, 2nd ed.; 227, 3rd ed.; Cole v. Sewell, 2 H. of L. Cases, 186; Monypenny. Bering, 2 De Gex, M. & G. 145,170; Sugden on Property, 120; Sugden on the Real Property Statutes, p. 285, n. (a), 1st ed.; 274, n. (a), 2nd ed. Sec, however, per Wood, V.-C, in Cattlin, v. Brown, 11 Hare, 375, qy? (n) See Lewis on Perpetuities, p. 408 et seq. The case of Challis v. Doe d. Evers, 18 Q. B. 231, must be admitted *to accord with this opinion; but the point, though adverted to by the counsel for the appellant, was not taken by the counsel for the respondent, nor mentioned in the judgment of the Court. This case has since been reversed in the House of Lords, 7 H. of L. Cas. 531.
(0) See Appendix (F).
(p) 2 Black. Com. 104.
Cy pew doctrine.
(q) Fearne, Cont. Rem. 204, note; 1 Jarnan on Wills,260, 1st ed.; 242, 2nd cd.; 278, 3rd ed.;
Vanderplank v. King, 3 Hare, 1;
M'onypenny v. Dering , 16 Mee. & Wels. 418.
(r) Seaward v. Willcock, 5 East, L98.
(s) Britton v. Warde, 2 Ves. jun. 836; Hale v. Pew, 25 Bear. 335.
If, however, the estates be in tail, the rule equally applies, whether the estates tail be given to the sons successively according to seniority, or to all the children equally as tenants in common (t).
Though a contingent remainder is an estate which, if it arise, must arise at a future time, and will then belong to some future owner, yet the contingency may be of such a kind, that the future expectant owner may be now living. For instance, suppose that a conveyance be made to A. for his life, and if C. be living at his decease, then to B. and his heirs. Here is a contingent remainder, of which the future expectant owner, B., may be now living. The estate of B. is not a present vested estate, kept out of possession only by A.'s prior right thereto. But it is a future estate not to commence, either in possession or in interest, till A.'s decease. It is not such an estate as, according to our definition of a vested remainder, is always ready to come into possession whenever A.'s estate may end; for, if A. should die after C, B. or his heirs can take nothing. Still B., though he has no estate during A.'s life, has yet plainly a chance of obtaining one, in case C. should survive. This chance in law is called a possibility; and a possibility of this kind was long looked upon in much the same light as a condition of re-entry was regarded (u), having been inalienable at law, and not to be conveyed to another by deed of grant. A fine alone, before fines were abolished, could effectually have barred a contingent remainder (x). It might, however, have been released; that is to say, B. might, by deed of release, have given up his interest for the benefit of the reversioner, in the same manner as if the contingent remainder to him and his heirs had never been limited (y); for the law, whilst it tolerated conditions of re-entry and contingent remainders, always gladly permitted such rights to be got rid of by release, for the sake of preserving unimpaired such vested estates as might happen to be subsisting. A contingent remainder was also devisable by will under the old statutes (z), and is so under the present act for the amendment of the laws with respect to wills (a). And it was the rule in equity, that an assignment intended to be made of a possibility for a valuable consideration should be decreed to be carried into effect (b). But the act to amend the law of real property (c) now enacts, that a contingent interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, may be disposed of by deed. But every such disposition, if made by a married woman, must be made conformably to the provisions of the act for the abolition of fines and recoveries (d).