Be this, however, as it may, the event which has occurred in this case does not render it necessary to decide it under such aspect; but if it did, I see no objection that could be made to it, unless it might possibly be thought by some, that to adopt such a principle would be entrenching upon a rule that has been said to prevail without even an exception to it; which is, that when a devise is capable, according to the state of the objects at the death of the testator, of taking effect as a remainder, it shall not be construed to be an executory devise. Reeve v. Long, Carth. 310; Purefoy v. Rogers, 2 Saund. 380, and cases cited in note (9), also 2 Pow. on Dev. by Jarman, 237. Besides these there is said to be another rule by which an executory devise is distinguishable from a contingent remainder, which seems to be opposed to the construction contended for by the plaintiff's counsel; it is this: That to constitute an ulterior limitation, an executory devise where there is a prior estate of freehold devised, the latter must not be merely liable to be determined before the former shall take effect, which only renders the remainder dependent on it contingent, but it must be determined before the taking effect of the ulterior devise; as in the case of a devise to A. for life, and after his decease to the unborn children of B., this would be a contingent remainder in such children; but under a devise to A. for life, and after his decease and one day to the children of B., the children of B. in this case would take an executory devise. 2 Pow. on Dev. by Jarman, 238. And for the day undisposed of, between the death of A. and the time fixed for the ulterior devise to the children of B. to take effect, the estate would belong to the heir or residuary devisee. Ibid. Stephens v. Stephens, Ca. Temp. Talb. 238. Now, it is obvious in the case under consideration, that the prior estate devised to Aaron for life could not be said to be necessarily determinable before the time at which the ulterior limitation over to the other children of the testator was to take effect; it was at most, even upon the construction contended for by the counsel of the plaintiff, only liable to be determined before that event might happen; and hence according to the rule just mentioned cannot, or at least in the event that has occurred cannot, be considered an executory devise, but must be deemed a contingent remainder. This construction seems to be requisite also, for the purpose of carrying into effect an intention pretty plainly manifested by the testator, that Aaron should not have it in his power to dispose of the land beyond the period of his own life; so that by construing the prior devise to Aaron, for the term of his natural life, an absolute vested estate in him for life, making it neither more or less with a contingent remainder to him in fee upon his dying, leaving issue living at the time of his death; we give full effect to the letter of the will, as well as the intent of the testator. If the fee given to Aaron, which is admitted to have been determinable, had vested in him during his life, the limitation over to the other children of the testator could only have taken effect as an executory devise, but being ever in contingency and the event having failed upon which it is claimed by the counsel for the plaintiff, that it would have become vested, the ulterior devise of the land to the other children had all the properties of a contingent remainder, and as such might and would have taken effect, if the recovery had not been suffered, and, therefore, could not have operated as an executory devise. The devise to the other children of the testator, is not then the case of a limitation over to them, after a prior vested determinable fee given to Aaron, which would make it an executory devise, but it is one of two several fees limited merely as substitutes or alternatives, one for the other, that is, the first to Aaron, if he should die leaving issue living at the time of his death; but, if not, then to the other children of the testator in lieu thereof; thus substituting the latter in the room of the former, if it should fail of effect. This is the principle which was decided in Loddington v.Kyme, 3 Lev. 431; s. c. 1 Ld. Raym. 208, where it was held that the first remainder was a contingent remainder in fee to the issue of A., and the remainder to B. was also a contingent fee, not contrary to, or in any degree derogatory from the effect of the former, but by way of substitution for it. And this sort of alternative limitation, was termed a contingency with a double aspect. Fearne on Cont. Rem. 373. So that if the estate vested in the one, it never could in the other. Herbert v. Selby, 2 Barn. & Cress. 926; s. c. 9 Eng. Com. L. Rep. 278. The ulterior then to the other children of the testator, being considered in the event that has taken place, a contingent remainder, and Aaron, by suffering the common recovery, having determined his life-estate, only proof of the remainder, before it became vested, it fell, and never could take effect afterwards.
The plaintiffs, therefore, have no right to recover the land, and the judgment is affirmed.
12 Allen (Mass.), 141. - 1866.
Writ of entry. Demandant's father conveyed the premises in question to the railroad corporation in 1834, by a warranty deed which stated that the conveyance was made upon the express condition that the corporation should forever maintain and keep in good repair a pass-way over the same, and also certain fences. In 1842 demandant's father conveyed to him by a deed of warranty a large tract the description of which included the demanded premises, and died intestate before any breach of the condition. Demandant offered evidence of a breach of condition after his father's death. The judge excluded the evidence and demandant excepts.
Bigelow, C. J. - It is one of the established rules of the common law that the right or possibility of reverter which belongs to a grantor of an estate on condition subsequent cannot be legally conveyed by a deed to a third person before entry for a breach. This rule is stated in Co. Litt. 214 a, in these words: "Nothing in action, entry or re-entry can be granted over;" and the reason given is "for avoiding of maintenance, suppressing of rights and stirring up of suits," which would happen if men were permitted 'to grant before they be in possession." This ancient doctrine had its origin in the early statutes against maintenance and champerty in England, the last of which, 32 Henry VIII., c. 9, expressly prohibited the granting or taking any such right or interest under penalty, both on the grantor and the buyer or taker, of forfeiting the whole value of the land or interest granted, or, as Coke expesses it, "the grantor and grantee, albeit the grant be merely void, are within danger of the statute." Co. Litt. 369 a. The principle that a mere right of entry into land is not the subject of a valid grant has been fully recognized and adopted in this country as a settled rule of the law of real property, both by text writers and courts of justice. 2 Cruise Dig., Greenl. ed., tit. xiii., c. 1, § 15; 1 Washburn on Real Prop. 453; 2 lb. 599; I. Smith's Lead. Cas. (5th ed.) 113; Nicoll v. New York & Erie Railroad, 2 Kernan 133; Williams v. Jackson, 5 Johns. 498; Hooper v. Cummings, 45 Maine 359; Guild v. Richards, 16 Gray.