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 .
Several estates in fee simple, or of a lesser quantum, may, at common law, be limited in the alternative by way of contingent remainder after one particular estate, in such a way that one may take effect if another does not. Such remainders are sometimes known as "alternative remainders," and sometimes as "remainders on a contingency with a double aspect."55 As an illustration of such remainders, may be suggested the case of a limitation to A for life, statutory conveyance, not regarded as taking effect under the Statute of Uses. See Collins v. Sanitary District of Chicago, 270 111. 108, 110 N. E. 318.
51. Plunket v. Holmes, T. Raym. 28; Purefoy v. Rogers, 2 Wms. Saund. 380 and note; Craig v. Rowland, 10 App. L). C. 402; Peterson v. Jackson. 196 111. 40, 63 N. E. 643; Belding v. Parsons, 258 111. 422, 101 N. E. 570; Robinson v. Palmer. 90 Me. 246. 38 Atl. 103; Gilpin v. Williams, 25 Ohio St. 295; Nicholson v. Cousar, 50 S. C. 206, 27 S. E. 628; Ryan v. Monaghan, 99 Tenn. 338, 42 S. W. 144. Consequently it cannot be claimed that those persons who are the heirs of testator at the time of the termination of the particular estate are entitled, rather than those who are testator's heirs at the time of his death. Harrison v. Weatherby, 180 111. 418, 54 N. E. 237.
52. Egerton v. Massey, 3 C. B. N. S. 338; Craig v. Rowland, 10 App. D. C. 402, Reid v. Walbach, 75 Md. 205, 23 Atl. 472; High's Estate, 136 Pa. 222, 20 Atl. 421-423; De Silver's Estate, 142 Pa. 74, 21 Atl. 882; In re Reynolds' Will, 20 R. I. 429, 39 Atl. 896; McCreary v. Coggeshall, 74 S. C. 42, 7 L. R. A. (N. S.) 433, 7 Ann. Cas. 693, 53 S. E. 978; 2 Preston, Abstracts, 99; 1 Preston, Estates, 502.
53. See 1 Preston, Estates 502.
54. 2 Preston, Abstracts, 103; Cornish, Remainders, 175 et seq; Edwards, Prop. Land (4th Ed.) 110.
55. Fearne, Cont. Rem. 373; Loddington v. Kime, 1 Salk. 224; Plunket v. Holmes, 1 Lev. 11; and after A's death, if he have children, to them in fee simple, and if he have no children, then to B in fee simple. In such case, in one alternative the remainder in favor of the children vests, and in the other alternative, the remainder in favor of B vests.56
It is in effect stated, in a case not infrequently referred to,56a that when there is a limitation of a contingent remainder in fee simple, a remainder subsequently limited in the same will cannot be vested. This statement is adopted in at least one later case,57 and it has been asserted as law by text book writers of high standing.58 It has, however, been vigorously questioned,59 and it is somewhat difficult to harmonize with the decisions, above referred to,60 that when a contingent remainder in fee simple is created by devise, the actual fee simple in the property passes by a residuary devise in the same will.61 For instance, in the case of be vested, was originally asserted, it being regarded as incompatible with the nature of a contingent remainder, a common law interest, entirely to divest an estate pre-viouslv created by the same instrument.64
Hill v. Hill, 264 111. 219, 106 N. E. 262; Smith v. Chester, 272 111. 428, 112 N. E. 325; Lewis v. Payne. 113 Md. 127, 77 Atl. 321, 30 L. R. A. (N. S.) 908; Den d. Michean, v. Crawford, 8 N. J. Law 90; Francks v. Whitaker, 116 N. Car. 518, 21 S. E. 175; Taylor v. Taylor, 63 Pa. St. 481;McCreary v. Coggeshall, 74 S. Car. 42, 7 L. R. A. (N. S.) 433, 7 A. & E. Ann. Cas. 693. 53 S. E. 978; Walker v. Lewis, 90 Va. 578, 19 S. E. 258. In Pearson v. Easterling, 107 S. C. 265, Ann. Cas. 1918D, 980, 92 S. E. 619, it was apparently held that when there was a gift by way of vested remainder to a class, with a limitation over in favor of the children of any remainderman dying before the termination of the particular estate, this latter limitation involved an alternative remainder and not an executory devise. It is submitted that the law was properly laid down in the earlier case of Rut-ledge v. Fishburne, 66 S. C. 155. 97 Am. St. Rep. 757, 44 S. E. 564. and that the later decision is erroneous A vested remainder, an estate, can be divested by an executory devise, but not, in the absence of statute, by a contingent remainder.
56. In Sumner v. Westcott, 86 Conn. 217, 84 Atl. 921, there is a ease of remainders on a contingency with a triple aspect.
56a. Loddington v. Kime, 1 Salk. 224, 1 Ld. Raym. 203. 3 Lev. 431.
57. Doe d. Brown v. Holme, 3 Wils, 237, 241; Doe d. Gilman v. Elvey 4 East 313.
58. Fearne, Cont. Rem. 223; Gray, Perpetuities. Sec. 111a.
59. Hayes, Limitations, 81 et seq.
60. Ante Sec. 141, note 52.
61. See Leake, Prop. in Land, 338, note d.
[ Sec. 142 a devise to A for life with remainder to A's children (he having none) in fee simple, followed by a residuary devise to B, it would seem that B takes the fee simple as a vested remainder, and conceding this to be so, it presents a case of the limitation of a vested remainder subsequent to the limitation of a contingent remainder in fee simple. It has, indeed, been suggested by high authority,62 that in such a case the residuary devisee takes not as remainderman but as a transferee of the reversion upon A's estate for life, the residuary devise, though contained in the same instrument as the provision creating the contingent remainder, being properly regarded as a distinct gift. But it has always been stated and assumed that the gift of an estate creates a remainder by reason of its incorporation in the instrument in which the gift of the particular estate is incorporated, and it would seem most undesirable to introduce distinctions based on the consideration whether the subsequent gift is contained in a residuary or non residuary clause. And the same question might arise in connection with a subsequent devise which is not residuary, as for instance when a testator, after creating a contingent remainder in fee simple in certain property, devises such property in express terms to another in fee simple.63 The fee simple would be vested in such other, and he would, it is conceived, take by way of vested remainder. In such a case, however, of a vested remainder preceded by a contingent remainder in fee simple, the effect of the vesting of such last named remainder would be entirely to divest the remainder previously vested, a result which would not occur if the contingent remainder previously limited were not in fee simple but for life or in fee tail. It is perhaps with a view to the avoidance of such a result that the general rule first above referred to, that when there is a limitation of a contingent remainder in fee simple, a remainder subsequently limited in the same will cannot
62. Gray, Perpetuities, Sec. 113a
63. Preston, Estates, 502.