A contingent remainder is merely the possibility or prospect of an estate,62a which exists when what would otherwise be a vested remainder is subject to a condition precedent, or is created in favor of an uncertain person or persons.63 In the case of a limitation in favor of an uncertain person or persons, the ascertainment of such person or persons is no doubt itself a condition precedent, but it is convenient for some purposes, to consider separately such conditions precedent and conditions precedent not involving the ascertainment of the remainderman or remaindermen.

62a. That a contingent remainder is merely a prospect or possibility of an estate, see, 2 Preston, Abstracts, 107; 1 Preston, Estates 75; Williams, Real Prop. (21st Ed.) 358; Challis Real Prop. (3rd Ed.) 76; Fearne's Cont. Rem. (10th Ed.) 3, Butler's note, and cases cited post, Sec. 147 (b).

Mr. Fearne defines a contingent remainder as "a remainder limited so as to depend on an event or condition which may never happen, or which may not happen or be performed till after the determination of the preceding estate." Fearne, Cont. Rem. 3). The latter part of this definition, following the word "condition," is, it is submitted, superfluous, and of doubtful correctness. It says in effect that a remainder is not contingent if limited on a condition which not only must happen but must happen or be performed before or concurrently with the datermination of the particular estate. But it is impossible to suggest an example of such a condition, since the particular estate is liable to determine at any time. Even were it possible to conceive of such a condition, a remainder limited thereon could not be regarded as a vested

Contingent remainders did not obtain recognition until a comparatively late date, and for many years were referred to, not as contingent remainders, but as remainders "in contingency" or "in abeyance."64 The expression 'in contingency" referred to the fact that whether the remainder ever developed into an estate depended on the contingency of its vesting before the destruction or expiration of the particular estate. And so the word "contingent" in the modern expression "contingent remainder," does not mean that the vesting of the remainder is dependent on a condition precedent of a contingent character.65 A remainder is contingenl when subject to a condition precedent although the condition is certain to be satisfied, as for instance, when the condition is the death of a particular person.66 remainder, and would seem properly to be classed with contingent remainders.

64. See Bro. Abr., Done and Remainder, pi. 6, pl. 37; Rolle's Abr., Remainder (H.); Boraston's Case, 3 Co. Rep. 20; Bacon's Abr., Remainder and Reversion (D).

65. Hawkins, Wills, 222.

66. Boraston's Case, 3 Co. Rep. 20; Fearne, Conting. Rem. 8; Chal-lis, Real Prop. 128.

In the celebrated work of Mr. Fearne upon Contingent Remainders he divides them into four classes, which may be briefly stated as follows: Remainders limited, (1) Upon an uncertain event, which also terminates the particular estate by way of special limitation; (2) Upon an uncertain event which does not effect the particular estate; (3) Upon an event which is certain to happen, but which may not happen till after the termination of the particular estate; (4) In favor of a person not ascertained or not in being. This classification, while often referred to, is, it is conceived, of but little practical value, and it is to some extent objectionable as calculated to give a mistaken impression as to the nature of a contingent remainder. Mr. Fearne's first class has been particularly the subject of criticism, since the fact that the event which constitutes a condition precedent to the vesting of the remainder happens also to terminate the particular estate by way of special limitation has no bearing whatsoever upon the character of the remainder. See Hayes, Limitations, p. 159; 1 Preston. Estates, 71; 1 Law Mag. & Rev. 121. Nor does the certainty or uncertainty of the event, upon which the remainder is limited, that is the certainty or uncertainty of the satisfaction of the condition precedent, have any bearing upon the character of the remainder.

A contingent remainder becomes a vested remainder so soon as the condition precedent is satisfied, or the person or persons to take ascertained, the particular estate still existing. The remainder will then be, as is any other vested remainder, an estate deprived of the right of immediate possession by reason of the existence of the particular estate created by the same instrument. There is no right of possession, by reason of the limitation of the remainder, until the particular estate is out of the way. Not infrequently, however, a contingent remainder becomes an estate in possession without ever becoming a vested remainder, that is, the particular estate terminates at the same time as the condition precedent is satisfied or the remaindermen are ascertained, as for instance in the case of a devise to A for life with remainder to B, provided B survives A, or a devise-to A for life with remainder to his surviving children. In each of these cases the vesting occurs at the time of the death of A, the very time at which the interest ceases to be a remainder.

- (b) Uncertain remainderman. A vested remainder is an estate, and it is impossible to conceive of an estate in land without an owner of the estate, ascertained or immediately ascertainable.67 Consequently an attempted limitation of an estate in favor of a person or persons who cannot immediately be ascertained does not create an estate. That is, in such case there arises not an estate but merely a possibility of an estate, and this is necessarily so whether the limitation is or is not by way of remainder, that is, whether or not a particular estate is interposed by the same instrument in favor of another. That the limitation of an estate by way of remainder in favor of an unascertained person or persons necessarily creates a contingent and not a vested remainder, is recognized by the most authoritative or provided B survives C, a third person.77 In each of these cases B's estate in remainder is subject to the condition precedent of his survival of the person named, and he has, until that event, merely a possibility of an estate. So in the case of a conveyance or devise to A for life, with remainder to her children, and if she die without children, then to B, regarding B's estate as subject to the condition precedent of A's death without children, his remainder is necessarily contingent.78