There may be a vested remainder subject to be defeated by a contingency; that is, a vested remainder may be limited as an estate on condition or on limitation.58 Vested remainders are de stroyed by merger,59 and, when limited after estates tail, may be barred in the same way as the entail.60 But in no other case will acts of the tenant of the particular estate defeat a vested remain der.61
170. Contingent Remainders - A contingent remainder is one where there is an uncertainty as to either the right to the estate, or the person entitled, or as to both. A contingent remainder depends on an event which may never happen, or which may not happen until after the termination of the particular estate.
Lechmere & Lloyd, 18 Ch. Div. 524. See, also, Ayton v. Ayton, 1 Cox, Ch. 327; Gilmore v. Severn, 1 Brown, Ch. 582. No one born after the particular estate determines can take. Ayton v. Ayton. 1 Cox, Ch. 327; Demill v. Reid, 71 Md. 175, 17 Atl. 1014.
56 Graham v. Houghtalin, 30 N. J. Law, 552.
57 Dwight v. Eastman, 62 Vt. 398, 20 Atl. 594; Kansas City Land Co. v. Hill, 87 Tenn. 589, 11 S. W. 797; Chambers v. Chambers, 139 Ind. Ill, 38 N. E. 334; Crews' Adm'r v. Hatcher, 91 Va. 378, 21 S. E. 811.
58 Roome v. Phillips, 24 N. Y. 463; Doe v. Moore, 14 East, 601.
59 See ante, p. 5L
60 Gray, Perp. § 111.
61 Rohn v. Harris, 130 Hi. 525, 22 N. E. 587; Whitney v. Salter, 86 Minn. 103, 30 N. W. 755; Allen v. De Groodt, 98 Mo. 159. 11 S. W. 240; Varney v. Stevens, 22 Me. 331; Wilson v. Parker (Miss.) 14 South. 264. But see
Real Prop. -19
An example of a contingent remainder is where an estate is given to A. for life, and, if B. die before C, then to C. in fee. This is contingent, because, if A. die before B., the remainder will not be ready to vest, and will be defeated.62 Before the vesting of a contingent remainder, the fee continues in the grantor, and, on the failure of the remainder, reverts to him, unless otherwise disposed of.63 A contingent remainder must vest at or before the termination of the particular estate which precedes it; but, as already said, a child in ventre sa mere is regarded as in being, so that a remainder may vest in it.64
Distinguished from Vested.
In contingent remainders, as distinguished from vested,65 there is an uncertainty as to vesting of the right or title, as well as to the vesting of the possession.66 For a vested remainder there must be some certain, defined person, in esse and ascertained, who answers the description of remainder-man at some time during the continu ance of the particular estate, and not merely at its termination: and the remainder must, of course, be capable of taking effect in possession immediately on the termination of the preceding particular estate.67 For example, a limitation to A. for life, with refidelity Insurance, Trust & Safe-deposit Co. v. Dietz, 132 Pa. St. 36, I8 Atl. 1090.
62 See Mccampbell v. Mason, 151 111. 500, 38 N. E. 672; Cheney v. Teese. 108 111. 473; Mccartney v. Osburn, 118 111. 403, 9 N. B. 210; Kingman v. Harmon, 131 111. 171, 23 N. B. 430; Waddell v. Ratlew, 5 Rawle (Pa.) 231; Richardson v. Wheatland, 7 Mete. (Mass.) 169. Alternate remainders are necessarily both contingent. Luddington v. Kime, 1 Ld. Raym. 203.
63 Shapleigh v. Pilsbury, 1 Me. 271. Cf. Wilson v. Denig, 166 Pa. St. 29, 30 Atl. 1025.
64 Reeve v. Long, 8 Lev. 408; Doe v. Clarke, 2 H. Bl. 899; Blasson v. Blasson, 2 De Gex, J. & S. 665. So by statute In some states. 1 Stlm. Am. St. Law, § 1413.
65 See Napper v. Sanders, Hut. 118.
66 Temple v. Scott, 143 111. 290, 32 N. B. 366; L'etourneau v. Henquenet, 89 Mich. 428, 50 N. W. 1077; Loddington v. Kime, 1 Salk. 224; Goodrlght v. Dunham, Doug. 264. Where a devise is made to a woman, and, if she "die childless," remainder over, the remainder is contingent until her death. Furnish v. Rogers, 154 III. 569, 39 N. E. 989.
67 Blanchard v. Blanchard, 1 Allen (Mass.) 223. And see Thompson v Hill (Sup.) 33 N. Y. Supp. 810.
§ 170) Contingent Remainders. 291 mainder to the eldest son of B., becomes vested as soon as B. has a son; but, if the remainder had been to the eldest son of B. living at A.'s death, the remainder would have been contingent, and could not possibly vest until A.'s death, which in this case is also a termination of a particular estate. This remainder will be contingent, because the person who is to take can only be ascertained at the termination of the particular estate; yet, if B. has a son, the remainder is capable of vesting in possession at any time the particular estate may be determined.68
A remainder is defined by the New York Code 69 as vested "when there is a person in being who would have an immediate right to the possession of the land upon the ceasing of the intermediate or precedent estate." This definition has been followed by the courts of New York and of other states as a correct definition of a vested remainder at common law, and has introduced great confusion into American law on the distinction between vested and contingent remainders.70 Its defect lies in the fact that it embraces such remainders as the one we were discussing in the preceding paragraph. Mr. Tiedeman suggests as "a reliable test" between vested and contingent remainders "the present capacity to convey an absolute title to the remainder." 71 This criterion might be valuable, were it not for the fact that it is necessary to know whether or not a remainder is vested, before the capacity of the remainder-man to convey an absolute title can be determined.
In determining whether a remainder is vested or contingent, it should be borne in mind that limitations of remainders are sometimes in such form that the contingency refers to the enjoyment of the estate, rather than to the vesting of the title.
Estates Which will Support a Contingent Remainder.
A contingent remainder, if of an estate of freehold, must have a particular estate of freehold to support it. There must be some one to take the seisin, and for this a freehold is necessary.72 For example, if land be given to A. for 25 years, if he lives so long, with remainder after his death to B., the remainder to B. is contingent, since A. may not die until after the expiration of the 25 years, and therefore is invalid, because there is no freehold to support it. But, if the term of years given to A. was so long-for instance, 80 or 100 years-that there is no probability of A.'s living until the expiration of the time, it is held that remainder is good, because A. really has an estate for life. But no length of time which is not sufficient to raise a strong presumption that the first taker will die before its expiration, and so give him, in effect, a life estate, is sufficient to change the rule, and to make the contingent remainder valid.73
68 And see Richardson v. Wheatland, 7 Mete. (Mass.) 169; Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Ludington, 104 Mass. 193; Colby v. Duncan, 139 Mass. 398, 1 N. E. 744; In re Callahan's Estate, 13 Phila. (Pa.) 230; Cralge's Appeal, 126 Pa. St. 223, 17 Atl. 585. But see Smith v. West, 103 111. 332.
69 Rev. St. (8th Ed.) pt. 2, c. 1, tit. 2, § 13.
70 Croxall v. Shererd, 5 Wall. 268. See Chapl. Suspen. § 28.
71 Tied. Real Prop. (Enl. Ed.) 389, note 2.