(i) Fearne, Cont. Rem. 286. (k) 2 Black. Com. 177.
(l) Stat. 13 Edw. I. c. 1; ante, p. 41.
vested estate intervening, a merger would have taken place of the life estate in the remainder in fee. The possession of the estate in fee simple would have been accelerated and would have immediately taken place, and thus a destruction would have been effected of the contingent remainder (m), which could never afterwards have become a vested estate; for, were it to have become vested, it must have taken possession subsequently to the remainder in fee simple; but this it could not do, both by the terms of the gift, and also by the very nature of a remainder in fee simple, which can never have a remainder after it. In the same manner the sale by A. to B. of the life estate of A., called in law a surrender of the life estate, before the birth of a son, would have accelerated the possession of the remainder in fee simple, by giving to B. an uninterrupted estate in fee simple in possession; and the contingent remainder would consequently have been destroyed (n). The same effect would have been produced by A. and B. both conveying their estates to a third person, C, before the birth of a son of A. The only estates then existing; in the land would have been the life estate of A. and the remainder in fee of B. C, therefore, by acquiring both these estates, would have obtained an estate in fee simple in possession, on which no remainder could depend (o). But now, the act to amend the law of real property (p) has altered the law in all these cases; for, whilst the principles of law on which they proceeded have not been expressly abolished, it is nevertheless enacted(g), that a contingent remainder shall be, and if created before the passing of the act shall be deemed to have been, capable of taking effect, notwithstanding the determination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. This act, it will be observed, applies only to the three cases of forfeiture, surrender or merger of the particular estate. If, at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate possession, it will still fail as before.
Surrender of the life estate.
Act to amend the law of real property.
(m) Fearne, Cont. Rem. 340.
(n) Fearne, Cont. Rem. 318.
(o) Fearne, Cont. Rem. 322, note; Noel v. Bewley, 3 Sim. 103; Egerton v. Massey, 3 C. R. N. S.
(p) Stat. 8 & 9 Vict. c. 160, repealing stat. 7 & 8 Vict. c. 76, s. 8, to the same effect.
(q) Sect. 8.
The disastrous consequences which would have resulted from the destruction of the contingent remainder, in such a case as that we have just given, were obviated in practice by means of the interposition of a vested estate between the estates of A. and B. We have seen (r) that an estate for the life of A., to take effect in possession after the determination, by forfeiture or otherwise, of A.'s life interest, is not a contingent, but a vested estate in remainder. It is a present existing estate, always ready, so long as it lasts, to come into possession the moment the prior estate determines. The plan, therefore, adopted for the preservation of contingent remainders to the children of a tenant for life was to give an estate, after the determination by any means of the tenant's life interest, to certain persons and their heirs during his life, as trustees for preserving the contingent remainders; for which purpose they were to enter on the premises, should occasion require, but should such entry be necessary, they were nevertheless to permit the tenant for life to receive the rents and profits during the rest of his life. These trustees were prevented by the Court of Chancery from parting with their estate, or in any way aiding the destruction of the contingent remainders which their estate supported (s). And, so long as their estate continued, it is evident that there existed, prior to the birth of any son, three vested estates in the land; namely, the estate of A. the tenant for life, the estate in remainder of the trustees during his life, and the estate in fee simple in remainder, belonging, in the case we have supposed, to B. and his heirs. This vested estate of the trustees, interposed between the estates of A. and B., prevented their union, and consequently prevented the remainder in fee simple from ever coming into possession, so long as the estate of the trustees endured, that is, if they were faithful to their trust, so long as A. lived. Provision was thus made for the keeping up of the feudal possession until a son was born to take it; and the destruction of the contingent remainder in his favour was accordingly prevented. But now that contingent remainders can no longer be destroyed, of course there will be no occasion for trustees to preserve them.
Trustees to preserve contingent remainders.
(r) Ante, p. 258.
(s) Fearne, Cont. Rem. 326.
The following extract from a modern settlement, of a date previous to the act to amend the law of real property (t), will explain the plan which used to be adopted. The lands were conveyed to the trustees and their heirs, to the uses declared by the settlement; by which conveyance the trustees took no permanent estate at all, as has been explained in the Chapter on Uses and Trusts (u), but the seisin was at once transferred to those to whose use estates were limited. Some of these estates were as follows: - "To the use of the said A. "and his assigns for and during the term of his natural "life without impeachment of waste and from and imme-"diately after the determination of thai estate by for-"feiture or otherwise in the lifetime of the said A. To "the use of the said (trustees) their heirs and assigns "during the life of the -aid A. In trust to preserve "the contingent uses and estates hereinafter limited ufrom being defeated or destroyed and for that purpose "to make entries and bring actions as occasion may "require But nevertheless to permit the said A. and "his assigns to receive the rents issues and profits of "the said lands hereditaments and premises during his "life And from and immediately after the decease "of the said A. To the use of the first son of the "said A. and of the heirs of the body of such first son "lawfully issuing and in default of such issue To the "use of the second third fourth fifth and all and every "other son and sons of the said A. severally succes-"sively and in remainder one after another as they "shall be in seniority of age and priority of birth and "of the several and respective heirs of the body and "bodies of all and every such son and sons lawfully "issuing the elder of such sons and the heirs of his "body issuing being always to be preferred to and to "take before the younger of such sons and the heirs of "his and their body and respective bodies issuing And "in default of such issue" etc. Then follow the other remainders.