If the difficulties of the common law seem thus far obviated, they become more serious as we approach a consideration of the nature and character of the devise over to Foley. Alternative estates, or contingencies with a double aspect, as they are sometimes called, were permissible and recognized before the Revised Statutes expressly authorized their creation. They were unobjectionable, because only one could vest, and the happening of the contingency merely substituted one for the other, and in no respect prolonged any restraint upon alienation. Luddington v. Kime, 1 Ld. Raymond, 203; Doe v. Holme, 2 Black. 777. If, therefore, Foley had been alive at the death of Margaret, it seems possible to put a construction upon the. will which would have given him, at that date, even at common law, a vested remainder which would, of course, have descended to his heirs. But he died before Margaret, and whether, for that reason, his estate lapsed, or was of such character that it descended to his heirs, so that they took upon the happening of the contingency as succeeding to all his rights, becomes a very important question. Before the Revised Statutes, his estate would have been a contingent remainder, or, at least, good by way of executory devise; for, even if Margaret had not a life estate, but a base or determinable fee, so that a remainder in fee could not be limited upon it, the limitation to Foley would have been good as an executory devise. Jackson v. Staats, 11 Johns. 348; Sherman v. Sherman, 3 Barb. 385; Maurice v. Graham, 8 Paige, 486. Viewed in either aspect, his estate was descendible, unless his survivorship of Margaret was an element of the contingency upon which his estate was limited. Pinbury v. Elkin, 1 Peere Williams, 563; Moor v. Hawkins, 2 Eden's Ch. 341; Winslow v. Goodwin, 48 Mass. 374. Of contingent remainders, a very accurate writer says (Washburn on Real Property, 549) that at common law, before the contingency happens, they cannot be conveyed, except by way of estoppel; but, where the person who is to take the remainder if it becomes vested, is ascertained, and he dies, it will pass to his heirs and may be devised by him. And, as to the interest of an executory devisee, the same writer says that contingent and executory estates, and possibilities accompanied with an interest, are descendible to the heir or transmissible to the representative. Ibid. 662. Of course, the rule cannot apply where the survivorship of the devisee at the happening of the contingency is itself a contingency upon which the devise is limited. That is claimed to be the situation here, and it becomes apparent that, even at common law, the one vital question in the case is whether, by the terms and intent of the will, Foley was only to take upon the contingency that he survived Margaret, in addition to the contingency that the latter should die without issue living at the date of her death.
If now we test the case by the simpler provisions and definitions of the Revised Statutes, we shall find that the same question confronts us as the pivotal point in the case. What has been said of the common-law rules shows, at least in some directions, the difficulties which the revisers sought to remove and the force and effect of the radical change which they wrought. A remainder no longer fails by reason of the determination of the precedent estate before the happening of the contingency upon which it is to vest, and a life estate in Margaret ceases to be necessary to support the remainder of Foley. A fee may be limited on a fee upon a contingency which, if it should occur, must happen within the limits of the prescribed period, so that even if Margaret took a base or determinable fee by descent the limitation over to Foley was possible. Alternative estates, where upon the failure of one to vest, the next in succession shall vest, are expressly recognized; and all future estates are made in terms descendible, devisable and alienable, like estates in possession. Not only are difficulties thus removed and doubts solved, but future estates, like that devised to Foley, are expressly authorized and defined. Estates, in respect to the time of their enjoyment, are divided into estates in possession and estates in expectancy. The latter are declared to be those in which the right of possession is postponed to a future period, and are further divided into future estates and reversions. A future estate dependent on a precedent estate is termed a remainder, and that may be either vested or contingent. It is vested, when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate and is contingent whilst the person to whom, or the event upon which it is limited to take effect remains uncertain. R. S. Part 2, chap. 1, tit. 2, art. 1.1 Tested by these definitions the estate of Foley is to be deemed a contingent remainder, vesting as a right upon the death of the testator, and in interest and possession upon the death of Margaret without issue living, unless, indeed, the survivorship of Foley is made by the terms of the will an additional and further contingency. We are thus brought again to what we have already described as the pivotal question in the case, and it is necessary now to consider it. Reliance is placed upon the mention of Foley by name without allusion to his heirs. But the omission was not material. Without such words in a devise the fee would pass unless an intent should appear in the will by express terms or necessary implication, to pass a less estate. 4 Kent's Com. 7; 1 R. S. (Edm.) § 1, p. 699. Some stress is laid upon the language of the devise to Foley, which was in these words: " Should my daughter Margaret die without leaving any issue, then the said property shall be left to my nephew, John Foley." The argument is that the word " should " implies a contingency, and the expression "should she die," standing alone, is inaccurate, since death at some time is certain and inevitable. Therefore, it is said, the contingency referred to must be that of time; death before Foley. This construction utterly overlooks the real contingency named in the will, and substitutes, or rather adds, one not there at all. The contingency named by the testator was, should she die without issue living at her death. That was the uncertainty to which he referred, and for which he meant to provide; and the word " then " plainly refers to the event; to the happening of that contingency; and not to the time at which Foley's right should commence. It is said that Foley was expected by the testator to survive Margaret, and the principal reason assigned is that Foley was named as one of the executors, and the will provided that after the death of Margaret, leaving issue, the estate in then was to be " managed " by the executors. Nevertheless, the testator might easily have contemplated the death of one or both of them, and the substitution, if necessary, of administrators with the will annexed, or of trustees. The provision itself was awkward and probably would have proved ineffectual. But if such expectation existed, it was of little consequence in view of the testator's evident intention. He meant to keep the property in the line of his blood.