Why is it said that a remainder to the heirs of A., after the determination of a life-estate in A. is contingent? Because the life-estate may, at the common law, be determined before it is ascertained who are the heirs of A.
Hence the introduction, into the various definitions, of the qualifications so much insisted upon in the argument of this appeal, that no estate can vest until the person in whom it is to vest shall be ascertained; and from this it follows, if there be some condition which must be fulfilled, before the person who will take on the determination of the precedent estate is known, there can be no vested remainder.
But here suppose, that the one sole condition, to wit: The deter mination of the precedent estate is all that is necessary to entitle a person in esse to take, it is not denied that such a person has a vested remainder. Why, then, if the precedent estate can only be determined by the death of the life tenant, and by that death the heirship is alike also determined, is not the statute definition in all respects satisfied? It makes the precise case described, and I deny the right to interpolate qualifications drawn from the refined reasoning of cases or text books, prior to the statute, to limit the operation of its plain terms.
Now, in the case before us of an estate in John Jackson for his natural life, with remainder to his heirs, I know of nothing other than the death of John Jackson which would determine the life, estate which was vested in him; his interest may cease by conveyance or other transfer, but the life-estate will continue until his natural death. He could do nothing which would defeat the remainder. 1 R. S. 725, § 32.
He could do nothing which would extinguish the life-estate by merger in the inheritance.
His alienation, or attempted alienation, by feoffment, fine and recovery, or otherwise, of a greater estate than his own, could not forfeit the life-estate, or determine it, because feoffment and livery of seisin are abolished here; we have no fine and recovery; and, finally, conveyances here by a tenant for life, although in form conveying a greater estate than he possesses, do not work a forfeiture of his estate, but will pass to the grantee such estate, title and interest as he can lawfully convey. 1 R. S. 738, § 1, p. 739,
§§ 143, 145.
Whatever effect the disclaimer of his landlord's title, by a tenant for years, in any possible form, by record or otherwise, may have upon his rights as between him and his landlord, no disclaimer by John Jackson could operate to extinguish the life-estate. See Jack-son v. Noyes, II J. R. 33; Jackson v. Vincent, 4 Wend. 633; 1 Washburn on Real Property, 92.
Conviction of felony no longer works a forfeiture. 2 R. S. 701, § 22.
And whatever was the effect of an attainder of treason in England, it is clear that here, since it is enacted that no act of the tenant for life, nor any destruction of the precedent estate shall defeat the remainder, no outlawry upon conviction of treason which operates as a forfeiture during his life only, 2 R. S. 656, § 3, can have any effect except as a transfer of such life-estate.
Our statutes have, therefore, taken the case out of the condition of a contingent remainder at the common law, and have brought it within the statute definition; and for the reason that in respect to any child of John Jackson, it was, at any and every moment of his life, inevitable and unquestionably true that if John Jackson then died, he would have an immediate right of possession of the lands. During John Jackson's life he was not heir, and had not such right; the one event, which might at any moment happen, determined the life-estate, and eo instanti being " heir," he was entitled to possession; not by descent, but by "purchase," the statute declares.
But it has been argued that this construction of the definition of vested remainders, leaves very little room for the application of the definition of a contingent remainder, which immediately follows, and that it withdraws entirely from the test of their character, in this respect, the certainty or uncertainty of the person entitled in remainder.
So far as it can be shown that the statute, or any sensible construction thereof, tends to the holding of estates vested, rather than contingent, so far that construction is strengthened and sustained by the policy of the law, which always favored such holding. And it will be no evil in this country that those interests, which, by reason of contingencies or possibilities, are often held withdrawn from the ordinary incidents of property, are few.
But the construction given to the definition, does by no means destroy the effect of the definition of a contingent remainder.
That definition is to be construed in connection with the other, if there is no person who would have an immediate right of possession upon the ceasing of the intermediate or precedent estate, i. e., if no person can be found of whom this can now be avowed, either because if that precedent estate should now cease, it would be uncertain who was entitled, or whether the event upon which it was limited would happen; then the remainder is contingent. * * *
2d. If the preceding reasoning be wholly fallacious, and be deemed to give an interpretation to the statute, and a construction to the law, which is unsound, I am wholly unable to see how the result to the present appellants would be different.
The alternative insisted upon is, that since our statutes, and notwithstanding our statutes, the children of John Jackson had only contingent remainders in fee of the land, whereof they made par-tition, and that, therefore, they conveyed nothing by the deeds they severally executed.
Here again, the change made by our Revised Statutes is important.
A contingent remainder, it is said in the books, was alienable when the uncertainty which made it contingent was in the event upon which it was limited to take effect, and was only inalienable when it was uncertain to whom the remainder was limited; and this distinction is affirmed and relied upon by the counsel on this appeal. See Washburn on Real Prop. 237-8; Williams on Real Prop. 232-4; Preston on Estates, 76. Though this distinction has often been overlooked or denied. See Striker v. Mott, 28 N. Y. 82; Williams on Real Prop. 231; 4 Kent, 261-2.