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 .
19. Ante Sec. 90.
20. Fearne, Cont. Rem. 8; Bor-aston's Case 3 Co. Rep. 20a.
21. Napper v. Sanders, Hut. 118; Fearne, Cont. Rem. 21; Leake, Prop, in Land, 327.
22. Fearne, Cont. Rem. 307 et seq; Challis, Real Prop. 120; 2 Bl. Comm. 168; 2 Cruise, Dig. tit. 16, c. 4; Archer's Case, 1 Coke, 66b; Festing v. Allen, 12 Mees. & W. 279; Price v. Hall, L. R. 5 Eq. 399; Doe d. Poor's Lessee v. Considine, 6 Wall. (U. S.) 458; Green v. Gordon, 38 App. D. C. 443; Edwards v. Edwards,- Ga. 92 S. E. 540; Madison v. Larmon, 170 111. 65, 62 Am. St. Rep. 356, 48 N. E. 556; Simonds v. Simonds, 199 Mass. 552, 85 N. E. 860; Ryan v. Monaghan, 99 Tenn. 338, 42 L W. 144; In Hayward v. Spaulding, 75 N. H. 92, 71 Atl. 219, this rule is in effect repudiated. See post, Sec. 162, note 27.
23. Co. Litt. 378a; Irvine v. Newlin, 63 Miss. 192; Ryan v.
In the case of a limitation to a child or children, a child en ventre sa mere at the time of the termination of the particular estate is considered to be existent and ascertained at the time of A's death, and consequently, in such case, the remainder will not fail. This is by force of statute in England and many states in this country.26 Whether the rule was the same at common law is a question upon which the authorities are in conflict;27 but even in the absence of statute, if the question should arise in this country, the same rule would no doubt be recognized, in analogy to other cases in which a child en ventre sa mere is regarded as living when it is to its benefit that it be so regarded.28
The above rule, that the remainder must vest before or at the termination of the particular estate, is ordinarily regarded as based, like the rule requiring a particular estate of freehold to support a contingent remainder, upon the common law requirement that the seisin be not placed in abeyance, but this does not apMonaghan, 99 Tenn. 338, 42 S W. 144.
24. Price v. Hall, L. R. 5 Eq. 399.
25. 2 Jarman, Wills, 1027; 2 Underhill, Wills, Sec. 558; Demill v. Reid, 71 Md. 175; Festing v. Allen, 12 Mees & W. 279. And see cases cited ante, note 3.
26. 10 & 11 Wm. 111. c. 16 (A. D. 1699); 1 Stimson's Am. St. Law, Sec.Sec. 1413, 2844, 6005; 2 Shars-wood & B. Lead, Cas. Real Prop. 356.
27. Co. Litt. 298a. Butler's note; Doe d. Reeve v. Long, 1 Salk. 227; Challis, Real Prop. (3rd Ed.) 140; Leake, Prop, in Land 329.
28. Norton v. Mortensen, 88 Conn. 28, 89 Atl. 882; Craig v. Rowland, 10 App. D. C. 402; Crisfield v. Storr, 36 Md. 129; Marsellis v. Thalheimer, 2 Paige (N. Y.) 35; Barker v. Pearce, 30 Pa. St. 173; 4 Kent. Comm. 249; Gray, Perpetuities, Sec. 220; Editorial note, 21 Harv. Law Rev. at p. 360.
[Sec. 140 pear to be entirely accurate. If the condition precedent is not satisfied at the termination of the particular estate, the seisin connot then become vested in the contingent remainderman, since he has no estate, but the seisin, in that case, immediately becomes vested in him who has the next vested remainder, or who has the reversion, and the rule merely prevents the subsequent satisfaction of the condition from operating to withdraw the seisin from such person and vest it in the contingent remainderman in whom it would have been vested had such satisfaction of the condition occurred before the termination of the particular estate. The rule referred to appears to be based, not upon the undesir-ability of the abeyance of the seisin, but rather upon the common law conception that the seisin should be allowed to pass from one person to another only by livery of seisin, a requirement which was obviated, in the one case of a remainder which became vested at or before the expiration of the particular estate, by the theory that the seisin was constructively in the remainderman by reason of the actual seisin of the particular tenant. Furthermore, it would not have accorded with the strictness with which the courts construed the language of an assurance to hold that, when the feoffor indicated an intention that certain persons should have the actual seisin in a certain order of succession, they could have it in a different order, as would have been the case had the seisin, after vesting under one limitation, been allowed to shift to another claiming under a prior limitation, or if, after being vested in the reversioner, for lack of any vested remainder, it had been allowed to shift back by reason of the subsequent vesting of a remainder. The rule referred to can, it would seem, be regarded as based upon the common law prohibition of the abeyance of the seisin only in the sense that, by reason of such prohibition, the actual seisin vests immediately, on the termination of the particular estate, in the next vested remainderman or the reversioner, from whom it cannot be withdrawn merely by reason of the subsequent satisfaction of the condition precedent.
The rule as to the failure of contingent remainders by reason of the termination of the precedent estate before the satisfaction of the condition precedent never applied to the case of an equitable estate limited by way of contingent remainder,29 since the seisin is always vested in the trustee, and is not affected by the termination of the particular estate, before the vesting of the remainder.30
- By destruction of particular estate. The rule that the remainder must vest before the particular estate ends renders the remainder void, not only when the particular estate, by the terms of its limitation, expires before the vesting of the remainder, but also when it is in some way destroyed before its natural expiration, and before such vesting. Such premature termination of the particular estate, with the consequent failure of the remainder, might, at common law, occur in various ways.
At common law, a tortious alienation by the particular tenant by means of a feoffment,31 fine,32 or recovery33 destroyed the particular estate, and so destroyed a contingent remainder dependent thereon. Owing to the quite general statutory provisions that a conveyance shall pass only such an estate as the grantor has,34 as well as the fact that, in most states, the courts would probably refuse to recognize these common-law methods of conveyance, which are alone susceptible of a tortious effect, there are few if any jurisdictions in which a contingent remainder can now be defeated by a tortious conveyance even apart from the statutory provisions hereafter referred to directed against the destruction of such remainders.