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 .
There was, at common law, a stringent requirement to the effect that every act of parties was void, the effect of which was to place the seisin or immediate freehold in abeyance, that is, which would have the effect of leaving the freehold without a tenant; this being based on the necessity that there be some person against whom an action concerning the land could be brought, who could meet adverse claims thereto, and who could render the feudal services to the lord.9 From this requirement, and likewise from the nature of livery of seisin, by which alone an estate of freehold could be created, and which must take effect immediately or not at all, there resulted a general rule that there Could be no conveyance of an estate of freehold to commence in the future, that is, subject to a condition precedent, and that any such attempted conveyance was void.10 In order that one have the seisin, it was necessary that he have an estate and not a mere possibility of an estate, and it was consequently impossible to deliver seisin to another while giving him such a mere possibility. So at common law a lease for life to commence at a future date named was invalid.11 And in the case of a conveyance to A for life, and one day after his death to B, for life or in fee, the limitation to B was void, since there would be an abeyance of the seisin between the time of A's death and the commencement of B's estate.12
The creation of a vested remainder involved no violation of the rule referred to, it being an actually existent estate. If the particular estate was one of freehold, as was usually the case, livery of seisin was made to the tenant of that estate, and he held the seisin, so long as his estate endured, in behalf of the remainderman as well as in his own behalf,13 while if the particular estate was less than freehold, though the seisin could not be vested in the particular tenant, it could be in the remainderman.14 The creation of a contingent remainder, on the other hand, did involve a violation of the general rule prohibiting the creation of an estate to commence in the future, and it was no doubt for this reason that such remainders were for a long time not recognized by the courts.15 Their ultimate recognition was based on the theory that, in the case of such a remainder, the seisin was vested in the tenant of the particular estate, who held it in his own behalf and in behalf of such as might ultimately be entitled as remaindermen. Since, however, one who had merely an estate for years, an estate less than freehold, could never have the seisin,16 in the case of a remainder upon such an estate there was no person in whom the seisin could be regarded as vested. From this arises the well-settled common-law rule that a contingent remainder of freehold must always be supported by a particular vested estate of freehold, as distinguished from one not of freehold.17 In acordance with this rule, when land was limited to A for fifty years, and after that time to the heirs male of A, the limitation to the heirs male was held to be void.18
9. 1 Hayes, Conveyancing 17; 1 Preston, Estates, 217; Challis, Real Prop. 100;
10. Co. Litt. 217a; 2 Blackst. Comm. 165; Barwick's Case, 5 Coke 94b; Buckler v. Hardy, Cro. Eliz. 585.
11. Co. Litt. 217a. Barwick's Case 5 Co. Rep. 94b.
12. Fearne, Cont. Rem. 307; 2 Blackst. Comm. 168; Leake, Prop, in Land, 47, 318; Challis, Real Prop. (3rd Ed.) 104.
13. Co. Litt. 49b, 143a; 2 Blackst. Comm. 166.
14. Litt. Sec. 60.
15. See Williams Real Prop. (21st Ed.) 357, for a discussion of the early cases in which such remainders were first recognized.
16. Ante Sec. 14.
Even at common law, however, an estate of freehold could, it appears, be created to arise in the future by a common law exchange (See Challis, Real Prop. [3rd Ed.] 106; Shepard's Touchstone 295.) and also in the case of the limitation of a particular estate, to be enlarged in favor of the donee thereof upon the occurrence of an event named. See Litt. Sec. 349, 350; Lord Stafford's Case, 8 Co. Rep. 74; 2 Blackst. Comm. 154; Fea'rne, Cont. Rem. 279.
17. Co. Litt. 217; Fearne, Cont. Rem. 281; Challis, Real Prop. 119, 121.
18. Goodright v. Cornish, 1 Salk. 226.
In the case of a limitation to A for a term, such as twenty-one years, if he shall so long live, with remainder, after the death of A, to B, A has a particular estate for years, subject to a special limitation, to wit, A's death,19 while B's remainder is contingent, as being subject to the condition precedent of A's death, and is accordingly void at common law, as a contingent remainder not supported by an estate of freehold.20 It was held, however, that if, in the case of a limitation in this form, the term of years named is so great, as when it is eighty or ninety years, that the possibility of A outliving the term is exceedingly remote, the remainder is to be regarded as vested,21 on the theory, it would seem, that it could not be regarded as a contingent remainder, in view of the practical impossibility of its failure under the rule next to be considered.
Another common law rule in regard to contingent remainders, which is still in force in many jurisdictions, is that such a remainder must vest, that is, become an estate, either previously to, or at the same instant as, the termination of the particular estate, and that, if it fails so to do, it loses all validity.22 Accordingly, in the case of a limitation to A for life, with remainder to the heirs of B, the remainder will fail if A die before B, since the heirs of B cannot be ascertained till his death;23 and, in the case of a limitation to A for life, and then to B if B survive C, the remainder to B will fail if A dies before C.24 So, in the case of any limitation in remainder to a class, the members of the class must be ascertained before or at the time of the termination of the particular estate, and consequently those who thereafter come into being, or come within the description of the class, cannot share.25