The expectant owner of a contingent remainder may be now living.
A contingent remainder could not be conveyed by deed, but might be released.
(t) Pitt v. Jackson, 2 Bro. C. C. 51; Vanderplank v. King, 3 Hare, 1.
(u) Ante, p. 236.
(x) Fearne, Cont. Rem. 365;
Helps v. Hereford, 2 Bam. & Ald. 242; Doe d. Christmas v. Oliver, 10 Barn. & Cress. 181; Doe d. Lumley v. Earl of Scarborough, 3 Adol. & Ell. 2.
The circumstance of a contingent remainder having been so long inalienable at law was a curious relict of the ancient feudal system. This system, the fountain of our jurisprudence as to landed property, was strongly opposed to alienation. Its policy was to unite the lord and tenant by ties of mutual interest and affection; and nothing could so effectually defeat this end as a constant change in the parties sustaining that relation. The proper method, therefore, of explaining our laws, is not to set out with the notion that every subject of property may be aliened at pleasure; and then to endeavour to explain why certain kinds of property cannot be aliened, or can be aliened only in some modified manner. The law itself began in another way. When, and in what manner, different kinds of property gradually became subject to different modes of alienation is the matter to be explained; and this explanation we have endeavoured, in proceeding, as far as possible to give. But, as to such interests as remained inalienable, the reason of their being so was, that they had not been altered, but remained as they were. The statute of Quia emptores( e) expressly permitted the alienation of lands and tenements, - an alienation which usage had already authorized; and ever since this statute, the ownership of an estate in lands (an estate tail excepted) has involved in it an undoubted power of conferring on another person the same, or, perhaps more strictly, a similar estate. But a contingent remainder is no estate, it is merely a chance of having one; and the reason why it so long-remained inalienable at law was simply because it had never been thought worth while to make it alienable.
Was assignable in equity.
Act to amend the law of real property.
Inalienable nature of a contingent remainder.
(y) Lampet's case, 10 Rep. 48 a, b; Marks v. Marks, 1 Strange, 132.
(z) Roe d. Perry v. Jones, 1 H. Black. 30; Fearne, Cont. Bern, 3G6, note.
(a) Stat. 7 Will. IV. & 1 Vict. c.. 26, s. 3; Ingilby v. Amcotts, 21
(b) Fearne, Cont. Rem. 550, 551; see, however, Carleton v. Leighton, 8 Meriv. 667, 668, note (b).
(c) Stat. 8 & 9 Vict. c. 106, s.6.
(d) See ante, pp. 221, 222.
One of the most remarkable incidents of a contingent remainder was its liability to destruction, by the sudden determination of the particular estate upon which it depended. This liability has now been removed by the -act to amend the law of real property(f): it was, in effect, no more than a strict application of the general rule, required to be observed in the creation of contingent remainders, that the freehold must never be left without an owner. For if, after the determination of the particular estate, the contingent remainder might still, at some future time, have become a vested estate, the freehold would, until such time, have remained undisposed of, contrary to the principles of the law before explained (g). Thus, suppose lands to have been given to A., a bachelor, for his life, and after his decease to his eldest son and the heirs of his body, and, in default of such issue, to B. and his heirs. In this case A. would have had a vested estate for his life in possession. There would have been a contingent remainder in tail to his eldest son, which would have become a vested estate tail in such son the moment he was born, or rather begotten; and B. would have had a vested estate in fee simple in remainder. Now suppose that, before A. had any son, the particular estate for life belonging to A., which supported the contingent remainder to his eldest son, should suddenly have determined during A.'s life, B.'s estate would then have become an estate in fee simple in possession. There must be some owner of the freehold; and B., being-next entitled, would have taken possession. When his estate once became an estate in possession, the prior remainder to the eldest son of A. was for ever excluded. For, by the terms of the gift, if the estate of the eldest son was to come into possession at all, it must have come in before the estate of B. A forfeiture by A. of his life estate, before the birth of a son, would therefore at once have destroyed the contingent remainder, by letting into possession the subsequent estate of B. (h).
Destruction of contingent remainders.
Liability to destruction now removed.
(e) 18 Edw. I. c. 1, ante, p. 61. (f) Stat. 8 & 9 Vict. c. 106, s. 8, repealing stat. 7 & 8 Vict. c. 76, s. 8, to the same effect.
The determination of the estate of A. was, however, in order to effect the destruction of the contingent remainder, required to be such a determination as would put an end to his right to the freehold or feudal possession. Thus, if A. had been forcibly ejected from the lands, his right of entry would still have been sufficient to preserve the contingent remainder; and, if he should have died whilst so out of possession, the contingent remainder might still have taken effect. For, so long as A.'s feudal possession, or his right thereto, continues, so long, in the eye of the law, does his estate last (i).
Forfeiture of life estate.
A right of entry would have supported
(g) Ante, p. 259.
(h) Fearne, Cont. Rem. 317; see Doe d. Davies v. Gatacre, 5 Bing. N. C. 609.
It is a rule of law, that "whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater" (k). From the operation of this rule, an estate tail is preserved by the effect of the statute De donis (l). Thus, the same person may have, at the same time, an estate tail, and also the immediate remainder or reversion in fee simple, expectant on the determination of such estate tail by failure of his own issue. But with regard to other estates, the larger will swallow up the smaller; and the intervention of a contingent remainder which, while contingent, is not an estate, will not prevent the application of the rule. Accordingly, if in the case above given A. should have purchased B.'s remainder in fee, and should have obtained a conveyance of it to himself, before the birth of a son, the contingent remainder to his son would have been destroyed. For, in such a case, A. would have had an estate for his own life, and also, by his purchase, an immediate vested estate in fee simple in remainder expectant on his own decease; there being, therefore, no a contingent remainder.