This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The possibility that the remainder may never take effect in possession is immaterial in determining whether it is vested or contingent, not only when, as above explained, this possibility arises from the character of the particular estate or of that in remainder, but also when it arises from the fact that the remainder may be divested by the exercise of a power of appointment.83 And so the existence of an executory limitation over in favor of another person84 does not render the remainder upon an estate tail is necessarily contingent, are, it is submitted, unsound on principle.
82a. The present writer cannot agree with Professor Gray's view (Perpetuities, Sec. 111) that a remainder on an estate in fee tail is vested because "the barring of the estates by the tenant in tail is considered in the nature of a condition subsequent divesting the whole series of estates," but he entirely agrees with that scholar's criticism of the reason given in Smith's Executory Interests, Sec. 192, "that a failure of issue is considered certain to happen some time or other." Whether a remainder upon an estate tail, as upon any other particular estate, is vested or contingent, depends on whether it is subject to a condition precedent or is in favor of uncertain persons. Any assumption that every such remainder is vested is, it is submitted, as erroneous as the assumption that no such remainder is vested.
83. Doe d. Willis v. Martin, 4
Term. R. 39; Cunningham v. Moody, 1 Ves. St. 174; Thorington v. Thorington, 111 Ala. 237, 36 L. R. A. 385, 20 So. 407; Harvard College, President etc. v. Balch, 171 111. 275, 49 N. E. 543; Roberts v. Roberts, 102 Md. 131, 62 Atl. 161,
I L. R. A. N. S. 782, 111 Am. St. Rep. 344; Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037; Moore v. Weaver, 16 Gray (Mass.) 305; Welsh v. Woodbury, 144 Mass. 542,
II N. E. 762; Buckner v. Buckner, 255 Mo. 371, 164 S. W. 513; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Sandford v. Blake, 45 N. J. Eq. 247; Van Axte v. Fisher, 117 N. Y. 401, 22 N. E. 943; Caples v. Ward, 107 Tex. 341, 179 S. W. 856; Lantz v. Massie, 99 Va. 709, 40 S. E. 40; Hare v. Congregational Society, 76 Vt. 362, 57 Atl. 964; Fearne's Cont. Rem. 226 et seq. Gray, Perpetuities, Sec. 112.
84. Gray, Perpetuities, Sec. 102; Edwards v. Hammond, 3 Lev. 132; Doe d. Lessee of Poor v. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Chewning v. Shumate, 106 Ga. 751, 32 S. E. 544; Gingrich v. Ginrich, mainder contingent. For instance, in the case of a conveyance or devise to A for life with remainder to B and his heirs, the existence of a limitation over in favor of C and his heirs on the occurrence of an event named does not render B's remainder contingent, although, if the event occurs before the termination of A's life estate, B's estate will be divested and B will never have the right of possession. And it is even immaterial that the event must, if it ever occurs, occur before the natural expiration of A's estate.85 So in the case of a devise to testator's widow A for life, with remainder to B, C, and D, the children of testator, with a provision that the share of any one of such children who may die before A shall go to the survivors, the remainder is vested,86 since it is limited in favor of certain persons and there is no condition precedent, and the fact that there is a limitation over as to the share of each child in favor of survivors on an event, the death of such child before A, which, if it ever occurs, must occur before the normal expiration of the particular estate, is immaterial. The practical result is that the children who survive A get the property and the right of possession, an end which could have been attained by the limitation of a contingent remainder in favor of such children as survive A,87 but
146 Ind. 227, 45 N. B. 101; Cal-lison v. Morris, 123 Iowa, 297, 98 N. W. 780; Watson v. Cressey, 79 Me. 381, 10 Atl. 59; Marshall v. Safe Deposit etc. Co. 101 Med. 1, 60 Atl. 476; Kelso v. Lorillard, 85 N. Y. 177; Lee v. Oates, 171 N. Car. 717, 88 S. E. 889.
85. Gray, Perpetuities, Sec.Sec. 104-108; Sumpter v. Carter, 115 Ga. 893, 42 S. E. 324, 60 L. R. A. 274; Ducker v. Burnham, 146 111. 9, 34 N. E. 558, 37 Am. St. Rep. 135; Remmers v. Remmers, 280 111. 93, 117 N. E. 474; Aldred v. Sylvester, 184 Ind. 542, 111 N. E. 914; Mercantile Bank v. Ballard, 83 Ky.
481, 4 Am. St. Rep. 160; Forsythe v. Lansing, 109 Ky. 518, 59 S. W. 854; Robinson v. Palmer, 90 Me. 246, 38 Atl. 103; Clark v. Cox, 115 N. Car. 93, 20 S. E. 176 In re Neel's Estate, 252 Pa. 394, 9 Atl. 502; Walker v. Alverson, 87 S. Car. 55, 68 S. E. 966; Caples v. Ward, 107 Tex. 341, 179 S. W. 856.
86. Blanchard v. Blanchard, 1 Allen (Mass.) 223; Jeffers v. Lampson, 10 Ohio St. 101; Collins v. Collins, 40 Ohio. St. 353; Harrison v. Foreman, 5 Ves. Jr. 207.
87. Olney v. Hull, 21 Pick. (Mass.) 311; Thomson v. Luding-ton, 104 Mass. 193; Robinson v.
It has been said that the present capacity of a remainder to take effect in possession if the possession were to become vacant is the criterion of a vested as distinguished from a contingent remainder.90 This is not entirely accurate, unless we exclude from the possible causes of vacancy of possession the normal expiration of the preceding estate. In the case, for instance, of a devise to A for life with remainder to B and his heirs, provided B survives A, the remainder is contingent although capable, upon a vacancy in the possession arising from A's death, of taking effect in possession; and the same may be said of a devise to A for life, with remainder to his children living at the time of his death. So in the case of a devise to A for life or until B's return from Rome, with remainder to B upon such
Palmer, 90 Me. 246; Smith v. Block, 29 Ohio St. 488; Whitesides v Cooper, 115 N. C. 570.
88. McArthur v. Scott, 113 U. S. S. 340; Blanchard v. Blanchard,
1 Allen (Mass.) 223; Kemp v. Bradford, 61 Md. 330.
89. Whitesides v. Cooper, .115 N. Car. 570, 20 S. E. 295.
90. Fearne, Cont. Rem. 215; 4 Kent, Comm. 203; Williams, Real Prop. (21st. Ed.) 360; Poor's Lessee v. Considine, 6 Wall. (U. S.) 458; Kingsley v. Broward, 19
Fla.. 473; Hoover v. Hoover. 116 Ind. 498; Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195; Bowling v. Dobyns, 5 Dana (Ky.) 442; Brown v. Lawrence, 3 Cush. 390; Schuyler v. Hanna, 31 Neb. 307; Ken-nard v. Kennard, 63 N. H. 303; Bentley v. Long, 1 Strobb Eq. 43, 47 Am. Dec. 523; Bufford v. Hal-liman, 10 Tex. 572, 60 Am. Dec. 223; Lantz v. Massie, 99 Va. 709, 40 S. E. 50.
Rights of Future Possession.