67. "A vested remainder is ex vi termini vested in somebody."

Gray, Perpetuities, Sec. 108, note.

68. Mr. Fearne, in his work on Contingent Remainders (page 9), states as one class of such remainders, "where a remainder is limited to a person not ascertained or not in being a the time when such limitation is made." See, also, 2 Blackst. Comm. 168, 169; Leake, Prop, in Land, 322; Chal-lis, Real Prop. 131.

69. Barr v. Gardner, 259 111. 256, 102 N. E. 287; Birdsall v. Birdsall (Iowa,) 132 N. W. 809; Robinson v. Palmer, 90 Me. 246; Buxton v. Kroeger, 219 Mo. 224, 117 S. W. 1147; Hayward v. Spaulding, 75 N. H. 82, 71 Atl. 219; Starnes v. Hill, 112 N. C. 1; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920. And see cases cited post, this section, notes 71, 74, 75.

70. Croxall v. Shererd, 5 Wall. (U. S.) 288; Kumpe v. Coons, 63 Ala. 448; Gindrat v. Western Railway. 96 Ala. 162; Smith v. West, 103 111. 332; Davidson v. Koehler, 76 Ind. 398; Wood v. Robertson, 113 Ind. 323. Mercantile Bank v. Ballard, 83 Ky. 481; Johnson v. Whitcomb, 166 Ky. 673, 179 S. W. 821. The error in the previous decisions is recognized in Smaw v. Young, 109 Ala. 528, but the court refused to overrule them on the ground that they had established a rule of property. The

Illinois decision is overruled by subsequent cases, such as Temple v. Scott, 143 111. 290; Chapin v. Crow, 147 111. 219, 37 Am. St. Rep. 213.

It has been sometimes thought that the case of Moore v. Littel, 41 N. Y. 66, settled the construction of the New York statute as making the ascertainment of the person who is to take unnecessary to render the remainder vested, provided there is a person in existence who would be entitled to take if the precedent estate were at any time to cease. But it seems that, in view of later decisions, uncertainty of the remainderman renders the remainder contingent in that state, as elsewhere. See Hennessy v. Patterson, 85 N. Y. 91; Hall v. La France Fire Engine Co., 158 N. Y. 570. and other cases cited Chaplin, Suspension of Power of Alienation, Sec. 468 et seq. But see In re Moran's Will, 118 Wis. 177, 96 N. W. 367, contra.

The occasional failure to recognize the requirement that the remainderman must be certain is in part due, it appears, to the language of the New York Revised Statutes, in which it was stated that a remainder is vested "when there is a person in being who would have an immediate right

A very common instance of a remainder contingent because of uncertainty in the remainderman is presented by the limitation of a remainder to the heirs, or to the heirs of the body, of a living person named, in which case the heirs cannot be ascertained till such person's death, on the principle that there can be no heir to a living person, as expressed in the maxim, Nemo est haeres viventis.71 So soon as the person named dies, his heirs are ascertainable, and, provided there is no further condition precedent, the remainder immediately vests.72

A limitation to A for life, with remainder to his first born son, is a contingent remainder until a son is born, when it becomes vested, because the remainderman then, and not till then, is ascertainable; but if the remainder were to the eldest son " living at the death of A" the remainder would be contingent till the death of A because, till then, the person in whom the remainder is to vest is not ascertained, owing to the possibility of the death of A's eldest son during A's life.73 to the possession of the lands, upon the ceasing of the intermediate or precedent estate," and Chancellor Kent's erroneous statement that this definition "appears to be accurately and fully expressed." 4 Kent, Comm. 202.

71. Co. Litt. 378a; Challis, Real Prop. 131; Boraston's Case, 3 Coke 20a; Sharman v. Jackson, 30 Ga. 224; Aetna Life Ins. Co. v. Hop-pin, 249 111. 406, 94 N. E. 669; Zuver v. Lyons, 40 Iowa, 510; Johnson v. Jacob, 11 Bush (Ky.) 646; Runyon v. Hatfield, 154 Ky. 171, 157 S. W. 17; Richardson v. Wheatland, 7 Metc. (Mass.) 169; Bailey v. Smith, 222 Mass. 600, 111 N. E. 684; Preston v. Brant, 96 Mo. 552, 10 S. W. 78; Smith v. Collins, 17 R. I. 432, 22 Atl. 1018; Wallace v. Minor, 86 Va. 550, 10 S. E.

423

The word "heirs" may be used however, not in its technical sense, but as meaning heirs "apparent,"-that is, particular persons who, at the time of the execution of the instrument, would inherit if the death immediately occurred, and then, of course, the element of uncertainty is absent, and the remainder may be a vested one. Richardson v. Wheatland, 7 Mete. (Mass.) 169; Alverson v. Randall, 13 R. I. 71; Wiliamson v. Williamson, 18 B. Mon. (Ky.) 329; Wallace v. Minor, 86 Va. 550.

72. Preston v. Brant, 96 Mo. 552, 10 S. W. 78; Ryan v. Mona-ghan, 99 Tenn. 338, 42 S. W. 149.

73. Williams, Real Prop. (21st Ed.) 370; Edwards, Prop. Land (4th Ed.) 109.

A gift in remainder to those of a class of persons who may be surviving at a future time, as at the termination of the particular estate, is contingent because, till then, the remaindermen cannot be ascertained.74 So, a gift to A for life, with a remainder to his children or his issue living at his death, creates a contingent remainder, since the remaindermen cannot be ascertained till A's death,75 as does a gift to A for life, and, after his death, to the children of B "if he leave any him surviving;" the remainder in the latter case being evidently intended to enure to the benefit only of such children as might survive B.76

- (c) Ascertained remainderman. As examples of a contingent remainder in favor of an ascertained person or persons, that is, of a remainder subject to a condition precedent other than the ascertainment of the remainderman, may be mentioned the case of a gift to A for life with remainder to B provided B survives A,76a

74. In re Washburn. 11 Cal. App. 735, 106 Pac. 415, Paul v. Frierson, 21 Fla. 529; Madison v. Larmon, 170 111. 65, 62 Am. St. Rep. 365, 48 N. E. 556; Strode v. McCormick, 158 111. 142, 41 N. E. 1091; Robinson v. Palmer, 90 Me. 246, 38 Atl. 103; Small v. Small, 90 Md. 550, 45 Atl. 190; Smith v. Rice, 130 Mass. 441; Emison v. Whittlesey, 55 Mo. 254; Paget v. Melcher, 156 N. Y. 399, 51 N. E. 24; Whitesides v. Cooper, 115 N. Car. 570, 20 S. E. 295; Smith v. Block, 29 Ohio St. 488; In re Raleigh's Estate, 206 Pa. 451, 55 Atl. 1119; Rhode Island Hospital Trust Co. v. Harris, 20 R. I. 408, 39 Atl. 750; Jackson v. Everett, (Tenn.) 58 S. W. 340; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 20.

75. Golladay v. Knock, 235 111.

412, 85 N. E. 649, 126 Am. St. Rep. 224; Stephens v. Evans, 30 Ind. 39; Hopkins v. Keazer, 89 Me. 347; Mercantile Trust & Deposit Co. v. Brown, 71 Md. 166, 17 Atl. 937; Olney v. Hull, 21 Pick. (Mass.) 311; Buxton v. Kroeger, 219 Mo. 224, 117 S. W. 1147; Teets v. Weise, 47 N. J. Law 154; Young v. Young, 97 N. Car. 132, 2 S. C. 8; Faber v. Police, 10 S. Car. 376; Howbert v. Cawthorn, 100 Va. 649, 42 S. E. 683.

76. Price v. Hall, L. R. 5 Eq. 399.

76a. 2 Biackst. Comm. 170; Doe d. Planner v. Scudamore, 2 Bos. & P. 289; Watson v. Adams, 103 Ga. 733; Thayer v. Kennedy, 169 111. 360, 48 N. E. 828; Bamforth v. Bamforth, 123 Mass. 280; Shaw v. Eckley, 169 Mass. 119, 47 N. E. 609; Starnes v. Hill, 112 N. C. 1.