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 .
29. Post Sec. 144.
30. Hopkins v. Hopkins, West, 606; Chapman v. Blisset, Cas. t. Talb. 145; Abbiss v. Burney 17 Ch. Div. 211; Fearne's Cont. Rem. 303; 2 Preston, Abstracts, 148; 2 Jarman, Wills, 1027. In England, where the legal title is regarded as being in the mortgagee, an outstanding mortgage has been held to be sufficient to prevent the failure of a contingent remainder on the termination of the particular estate. Astley v. Micklethwait, 15 Ch. Div. 59.
31. Challis, Real Prop. (3rd Ed.) 138; 4 Kent. Comm. 258; Archer's Case, 1 Coke, 66b; Doe d Pope v. Pickett, 65 Ala. 487; Dennett v. Dennett, 40 N. H. 498; Faber v. Police, 10 S. C. 376; Red-fern v. Middleton's Ex'rs, 1 Rice (S. C.) 459; Snelling v. Lamar, 32 S. C. 72, 17 Am. St. Rep. 835.
32. Doe d. Willis v. Martin, 4 Term R. 39; Doe d. Harris v. Howel, 10 Barn. & C. 191. See Bouknight v. Brown, 16 S. C. 155.
At common law, if the tenant of a particular estate asserted by matter of record a right in himself to the inheritance, his estate became subject to forfeiture at the option of the reversioner or the owner of the next vested remainder, and at the present day, in a number of states, such an assertion of right, even by matter in pais, has a like effect.35 If a forfeiture of the particular estate is actually enforced on this,36 or any other ground,37 a contingent remainder dependent on such estate would, by common law principles, be destroyed.
The tenant of the particular estate may at common law destroy the contingent remainder by surrendering his estate to the owner of the next vested estate in remainder, at least as great in quantum as the surrendered estate, or by acquiring by purchase the next vested estate of inheritance, the particular estate supporting above referred to, to interpose an estate in favor of trustees named, to continue during the life of the particular tenant for life, in whom the seisin might vest in case of the destruction of the particular estate, these being termed "trustees to preserve contingent remainders." Such a remainder in favor of trustees is a vested, and not a contingent remainder, since it is not subject to a condition precedent.47 In those states in which the possibility of the destruction of a contingent remainder has not been removed by statute, a trust of this character should be provided for in the instrument creating the remainder.
33. Loddington v. Kime, 1 Salk. 224; Lyle v. Richards, 9 Serg. & R. (Pa.) 332; Abbott v. Jenkins, 10 Serg. & R. (Pa.) 296; Stump v. Findlay, 2 Rawle (Pa.) 168; Waddell v. Rattew, 5 Rawle (Pa.) 231, 316.
34. See 1 Stimson's Am. St. Law, Sec. 1402, and ante Sec. 33.
35. Ante Sec. 77.
36. See Fearne, Cont. Rem. 323; Challis, Real Prop. 135; Co. Litt. 252a.
37. In Richarlson v. Richardson, 152 N. Car. 705, 68 S. E. 217 it is said that the forfeiture of the life estate on account of waste [post Sec. 290(d)] would destroy a contingent remainder limited thereon. That a forfeiture of the particular estate for breach of an express condition defeats the contingent remainder, see Lumsden v. Payne, 120 Tenn. 407, 21 L. R. A. (N. S.) 605, 114 S. W. 483; Williams v. Angell, 7 R I. 145.
Sec. 140] Rights of Future: Possession, 507 the contingent remainder being thereby merged.38 A merger will not, however, occur if the inheritance passes by descent to the owner of the particular estate directly from the person who created the various limitations,39 nor if the particular estate and the inheritance are both limited to one person by the instrument creating the contingent remainder.40 But if, in this last case, the two estates are thereafter conveyed to a third person, merger will take place, and the contingent remainder be destroyed.41 It has, however, been decided in one state that merger will not take place, so as,to destroy the contingent remainder, when opposed to the intention of the parties, and that such contrary intention may be inferred from the fact that merger would destroy the remainder.42 The disseisin of the particular tenant, followed by the adverse possession of the disseisor continued for the statutory period of limitation would, it seems, by destroying the particular estate, cause the destruction of the contingent remainder thereon.42a
- Statutory provisions. To obviate the possibility of the destruction of a contingent remainder by the premature termination of the particular estate in one of the ways above described, it has been provided in
38. Challis, Real Prop. 125; 4 Kent, Comm. 254; Fearne, Cont. Rem. 317, 323, 340; Craig v. Warner, 5 Mackey (D. C.) 460; Barr v. Gardner, 259 111. 256, 102 N. E. 287; Archer v Jacobs, 125 Iowa 467, 101 N. W. 195; Jordan v. McClure, 85 Pa. St. 495; Mc-Creary v. Coggeshall, 74 S. C. 42. 7 L. R. A. (N. S.) 433, 53 S. E. 978.
39. Fearne, Cont. Rem. 341; Plunket v. Holmes. 1 Lev. 11:
Crisfield v. Storr, 36 Md. 129.
40. Fearne, Cont. Rem. 345: Challis, Real Prop. 137; Bowles' Case, 11 Coke, 80a. Miley v.
Deer, 93 S. Car. 66, 76 S. E. 27.
41. Fearne, Cont. Rem. 346; Egerton v. Massey. 3 C. B. (N. S.) 338; Bond v. Moore, 236 111. 576, 86 N. E. 386; Belding v. Parsons, 258 111. 422, 101 N. E. 570; Bennet v. Morris, 5 Rawle (Pa.) 9.
42. McCleary v. Coggeshall, 74 So. Car. 42, 7 L. R. A. N. S. 433, 7 A. & E. Ann. Cas. 693, 53 S. E. 978; See Folk v. Hughes, 100 S. Car. 220, 84 S. E. 713;
42a. Edwards v. Woolfolk's, Adm'r. 17 B. Mon. (Ky.) 376; Thompson v. Leach. 2 Salk 576; 1 Ld. Raym. 316, 12 Mod. 174.
England that a contingent remainder shall be capable of taking effect in spite of the termination, by forfeiture, surrender, or merger, of any preceding estate of freehold;43 and by a later statute it was provided that, in case the particular estate terminates in any way before the vesting of the remainder, the remainder shall take effect as if created as a springing or shifting use or executory devise.44 In a number of states there is legislation of a substantially similar character, intended to prevent the failure of contingent remainders.45 Moreover, in those states in which it is provided46 that a freehold estate may be created to commence in futuro without any precedent estate to support it, it would seem that the reason for the defeat of the remainder by the premature termination of the particular estate no longer exists, and that consequently such result will no longer follow.
- Trustees to preserve. In order to avoid the destruction of contingent remainders by reason of the destruction of the particular estate before its natural time for termination, it was the practice in England, before the passage of the first of the remedial statutes
43. 8 & 9 Vict. c. 106, Sec. 8 (A. D. 1844.)
44. 40 & 41 Vict. c. 33 (A. D. 1877). See article by J. L. Thorn-dike, Esq. 30 Harv. Law. Rev. 226 et seg.
45. These state statutory provisions, as collated in 1 Stimson's Am. St. Law, Z 1403, are as follows: No expectant estate can be defeated or barred (1) by any alienation or other act of the owner of the precedent estate (Massachusetts, Maine, New York, Michigan, Wisconsin, Minnesota, Virginia, West Virginia, Kentucky, Texas, California, North Dakota, South Dakota, South Carolina,
Alabama, Mississippi); or (2) by the destruction of a precedent estate by disseisin, for forfeiture, surrender, merger, or otherwise (Massachusetts, Maine, New York, Michigan, Wisconsin, Minnesota, California, North Dakota, South Dakota, Mississippi). In some of these states, it is also provided (section 1426) that no contingent remainder shall be defeated by the termination of the precedent estate before the happening of the contingency (New York, Indiana, Michigan, Wisconsin, Minnesota. California, North Dakota, South Dakota.) 46. Post Sec. 177.