From the definition of a remainder, the contingency on which a remainder is to vest must in no case be in derogation of the preceding estate.74 And so a contingent remainder will be void if it is made to depend on an unlawful condition, or one against public policy.75 For example, a remainder to illegitimate children, to be subsequently conceived, is void.76 With these exceptions, a remainder may be made to depend on any contingency which the ingenuity of the person creating the remainder may devise. Elaborate schemes of classifying remainders according to the contingencies on which they depend have been devised,77 but such refinements serve no useful purpose.
72 See ante, p. 82; Doe v. Consldine, 6 Wall. 458, 474. In some states this has been changed by statute. 1 Stlm. Am. St. Law, § 1424.
73 2 Washb. Real Prop. (5th Ed.) 615; Weale v. Lower, Poll. 55, 67; Nap-per v. Sanders, Hut. 118.
74 Proprietors of Brattle Square Church v. Grant, 8 Gray (Mass.) 142, 149; Green v. Hewitt, 97 111. 113. But see Goodtitle v. Billington, 1 Doug. 753.
75 2 Washb. Real Prop. (5th Ed.) 629. A contingent remainder may be void for remoteness, as will be seen when the rule against perpetuities is discussed, post, p. 322.
76 Blodwell v. Edwards, Cro. Eliz. 509; Lomas v. Wright, 2 Mylne & K. 769.
77 Fearne's classification is as follows: First class: Where the remainder depends entirely on the contingent determination of the preceding estate by which the particular estate is defeated.80 This is not the case, however, when the legal fee is outstanding, and the particular estate and remainder are both equitable.81 So, at common law, the tenant of the particular estate, by surrendering his title to the one having the next vested remainder, could cause his particular estate to be merged, and thus cut out all contingent remainders intervening between his estate and the vested remainder.82 Merger occurs, and thus destroys intervening contingent remainders, whenever the particular estate and the next vested remainder are united in the same person by act of law or of the parties.83 This is not the case, however, when the two estates are so limited by the instrument creating them.84 At common law if the tenant of the particular estate asserted a greater right or title than he had, as by making a tortious feoffment, it caused a forfeiture of his estate, and thus destroyed any contingent remainders depending thereon.85 But, to have this effect, there must have been an entry by the one entitled to the next vested remainder, or by the reversioner.86 But, as already stated, the tortious effect of a feoffment no longer obtains.87
171. At common law, contingent remainders may be destroyed
(a) By the expiration of the particular estate before the remainder vests.
(b) By the destruction of the particular estate.
(c) By merger of the particular estate and the next vested remainder.
(d) By forfeiture of the particular estate.
172. In many states the liability of contingent remainders to destruction has been removed by statute (p. 294).
173. In any state the destruction of contingent remainders may be prevented by limitations "to trustees to preserve contingent remainders" being added in the creation of the estates (p. 295).
As has already been said,78 if the particular estate should terminate by its natural limitation, any contingent remainders, dependent thereon, which are not then capable of taking possession,, will be destroyed, because, from the nature of a remainder, it must take effect immediately after the expiration of the preceding estate.79 In general, it may be said that a contingent remainder is destroyed by any means arising after the limitation of the estate itself. Second class: Where some uncertain event, unconnected with and collateral to the determination of the preceding estate, is, by the nature of the limitation, to precede the remainder. Third class: Where a remainder is limited to take effect upon an event which, though It certainly must happen some time or other, yet may not happen until after the determination of the particular estate. Fourth class: Where a remainder is limited to a person not ascertained or not in being at the time when such limitation is made. Contingent Remainders, 59. Blackstoue divides contingent remainders into two classes, where the limitation is, first, "to a dubious and uncertain person"; or, second, "upon a dubious and uncertain event." 2 Comm. 169.
78 Ante, p. 283.
79 Doe v. Consldine, 6 Wall. 458; Irvine v. Newlin, 63 Miss. 192; Festing v. Allen, 12 Mees. & W. 279; Price v. Hall, L,. R. 5 Eq. 399; Astley v. MIcklethwalt, 15 Ch. Div. 59; Holmes v. Prescott, 33 Law J. Ch. 264; Rhodes v. Whitehead, 2 Drew. & S. 532.
Destruction Prevented by Statute.
By statutes in many states it is now provided that a contingent remainder shall not be destroyed by acts of the tenant of the particular estate, nor by the termination of the particular estate before the remainder vests.88
80 Doe v. Gatacre, 5 Bing. N. C. 609; Archer's Case, 1 Coke, 66b. As to the effect of a disseisin of the tenant of the particular estate, see 1 Stim. Am. St. Law, § 1403b.
81 Abbiss v. Burney, 17 Ch. Div. 211; Berry v. Berry, 7 Ch. Div. 657; Marshall v. Glngell, 21 Ch. Div. 790; Astley v. Micklethwalt, 15 Ch. Dlv. 59.
82 See Fisher v. Edington, 12 Lea (Tenn.) 189.
83 Jordan v. Mcclure, 85 Pa. St. 495; Craig v. Warner, 5 Mackey (D. C.) 460.
84 Dennett v. Dennett, 40 N. H. 498. See, however, Egerton v. Massey, 3 C. B. (N. S.) 338; Bennett v. Morris, 5 Rawle (Pa.) 8.
85 Archer's Case, 1 Coke, 66b; Doe v. Howell, 10 Barn. & C. 191.
86 Williams v. Angell, 7 R. I. 145.
87 Ante, p. 59.
88 1 Stim. Am. St Law, §§ 1403, 1426; 2 Snars. & B. Lead. Cas. Real Prop. 368.
§ 174) rule in shelley's case.
Trustees to Preserve Contingent Remainders.