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 .
As above stated, the distinction between a vested and a contingent remainder lies in the fact that a vested remainder is an estate while a contingent remainder is merely the possibility or prospect of an estate.79 Whether, in any particular case, a remainder is contingent or vested depends on the construction of the language used, as creating a mere possibility of an estate, or as creating an estate.
77. Leake, Prop, in Land 325; Boraston's Case, 3 Coke, 20a.
78. Doe d. Comberbach v. Perryn, 3 Term R. 484; Goodright v. Dunham, 1 Doug. 265; Morse v. Proper, 82 Ga. 13, 8 S. E. 625; Golladay v. Knock, 235 111 412, 85 N. E. 649, 126 Am. St. Rep. 224; Watson v. Smith, 110 N. C. 6, 14 S. E. 640, 28 Am. St. Rep. 665; (lark v. Cox. 115 N. C. 93, 20 S. P. 176: In re Boyd's Estate,199 Pa. 487, 49 Atl. 297; Loring v. Arnold, 15 R. I. 428, 8 Atl. 335.
In New Hampshire it has been decided that a devise to A for life remainder to her children, if any she has, and, if she has none, to B, gives B a vested remainder, subject to be divested by the birth of a child to A. Cole v. American Baptist Home Mission Soc, 64 N, H. 445, 458, 14 Atl. 73; Parker v.
Ross, 69 N. H. 213, 45 Atl. 576. These decisions are evidently based on a construction of the instrument as showing an intent that the death of A withaut children shall not be a condition precedent to the estate given B and, so considered, are not in conflict with the decisions previously cited.
79. In such jurisdictions as have adopted legislation which precludes the failure of a contingent remainder (post Sec. 140) one in favor of whom a remainder is limited in fee simple upon a condition precedent which is certain to be satisfied, such as some person's death (Fearne's third class) has more than a possibility of an estate; he has a certainty of an estate, but he has no estate.
It is frequently stated that a remainder is not contingent by reason of the fact that it is uncertain whether it will ever take effect in possession.80 This can mean merely that what would otherwise be an estate is not a mere possibility of an estate because it may terminate before another conflicting estate, a proposition so obviously true as to be of little practical utility. In the case, for instance, of a limitation to A for life with remainder to B for life, B evidently has an estate, and not a mere possibility of an estate, since there is no condition precedent. B's remainder is consequently vested, and the fact that, by reason of his death before A's estate comes to an end, B may never acquire the right of possession, is absolutely immaterial.81 And so a remainder, though merely for life, is not contingent because the particular estate is an estate in fee tail.82 The improbability of the failure of heirs of the body, or the probability that the particular estate may be converted into a fee simple by a conveyance barring the entail, may give reason to anticipate that the remainder will never take effect in possession, but this does not make return, the remainder is contingent although the remainder is capable of taking effect in possession upon the possession becoming vacant by reason of B's return from Rome. Even though the statement referred to bo amended so as to read that the criterion of a vested remainder is the capacity of the remainder to take effect in possession if the possession were immediately to become vacant otherwise than by the normal expiration of the particular estate, it does not appear to be particularly helpful. One who has merely a possibility of an estate cannot have the right of possession, while if he has an estate (of a legal character,) he has such right, in the absence of a prior right of possession in another. So the capacity of the remainder to take effect in possession if the possession were immediately to bo-come vacant can be ascertained only by a solution of the more fundamental question, whether the remainder is an estate or a possibility of an estate.
Nevertheless, the remainder being limited in favor of ascertained persons, and not subject to a condition precedent, it is vested. And in the case of a devise to A with remainder to B, C, and D, testator's children, with a provision that in case a child dies before A, his children shall take his share, testator's children have a vested remainder because they are ascertained,88 while if the devise be to such of testator's children as survive A, with a like provision as regards the death of a child, the remainder is contingent, because until A's death the remaindermen are uncertain.89
80. Fearne, Cont. Rem. 215; 4 Kent's, Comm. 203; Smith v. Pack-hurst, 3 Atk. 135; Doe d. Lessee of Poor v. Considine, 6 Wall. (U-S.). 458, 18 L. Ed. 869; Lehndorf v. Cope, 122 111. 317, 13 N. E. 505; Amos v. Amos, 117 Ind. 19, 19 N. E. 539; Archer v. Jacobs, 125 Iowa, 467, 101 N. W. 195; Bunting v. Speek, 41 Kan. 424, 3 L. R. A. 690, 21 Pac. 288; Moore v. Sleet, 113 Ky. 600, 68 S. W. 642; Leighton v. Leighton, 58, Me. 63; Downing v. Birney, 117 Mich. 675, 76 N. W. 125; Schuyler v. Hanna, 31 Neb. 307, 47 N. W. 932; Ken-nard v. Kennard, 63 N. H. 303; Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 475; Hood v. Maires, 255 Pa. 128, 99 Atl. 481.
81. Fearne, Cont. Rem. 216; Gray, Perpetuities, Sec. 102; Welliver v. Jones, 166 111. 80, 46 N. E. 712, Allen v. Mayfield, 20 Ind. 293; .Mercantile Bank of New York v. Ballard's Assignee, 83 Ky. 481; Kemp v. Bradford. 61 Md. 330; Lyons v. Weeks, 29 Misc. Rep. (N. Y.) 714.
82. Hawkins, Wills, 221, 1 Jar-man, Wills, 758; Gray, Perpetuities, Sec. 111; Chapin v. Nott. 203 111. 341, 67 N. E. 833; Dorr v. Johnson, 170 Mass. 540, 49 N. E. 919; Havens v. Sea Shore Land Co.. 47 N. J. Eq. 365, Smith's Appeal, 23 Pa. St. 9. The cases of St John v. Dann, 66 Conn. 101, and Horton v. Upham, 72 Conn. 29, to the apparent effect that a reReal Property.
[Sec. 137 it contingent. That is to say, what would otherwise be an estate does not become a mere possibility of an estate by reason of the interposition by the same instrument of an estate in fee tail.82a