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 .
The creation of contingent remainders is, by the weight of authority, subject to a rule that, in the case of a limitation of land by way of remainder in favor of an unborn person for life, and thereafter to the child or issue of such person, the latter remainder is void.79 This ular estate would not affect the validity of the limitation, in the same instrument, of another estate, which it was originally intended should be subject to such particular estate.
78. Ante Sec. 140, note 3.0.
79. Fearne, Cont. Rem. 502; Williams, Real Prop. (12th Ed.) 269; Challis, Real Prop.; Leake, Prop. in Land, 334; Whitby v. Mitchell, 44 Ch. Div. 85, In re Nash (1904) 2 Ch. 450, 1 Ch. 1 the rule was applied in the case of an equitable remainder. See the discussion of this latter case in 9 Columbia Law Rev. at p. 724; Williams Real Prop. (21st Ed.) at p. 416. The most recent English cases are discussed in articles by Charles P. Sanger, Esq. 26 Yale Law Journ. 257, and by Charles Sweet, Esq. 27 Id. 977.
The existence of any such rule, other than the rule against perpetuities, operating to restrict the creation of contingent remainders, is, however, denied by eminent authority, See Lewis, Perpetuity, Supp. 91 et seq.; Gray. Perpetuities, Sec.Sec. 191-199, 282-398, 931-947, articles by J. Savill Vai-zey, Esq., 6 Law. Quart, Rev. 410, and T. Cyprian Williams in 14 Law Quart. Rev. 234.
As a result of such a restriction upon remainders to unborn descendants, provision can be made, by way of legal limitation for descendants of persons now living more remote than their unborn children, only by giving estates tail to the unborn children, by which certain of their issue may take if the first tenant in tail does not bar the entail. Such a conveyance to one for life, with remainder to his children successively in tail, is very frequently referred to in the English books and reports under the name of a "strict settlement," rule, if its existence is to be conceded, had its origin, it would seem, in the theory that such a succession of life estates, thus carried on to unborn generations, would constitute in effect a limitation in fee tail of the land, which could not be barred by a common recovery, and that it would thus conduce to a "perpetuity," as it was expressed by the older writers.80
In some states in this country, the rigor of such a rule might, it seems, be abated by reason of the somewhat ill-advised legislation there in force, to the effect that, in the case of a gift in tail, the first tenant shall take a life estate with a remainder to his children.80a
- Cy pres doctrine. In the case of a gift by will to an unborn person for life, with remainder in tail, either to his child or to his children, successively or in common, it has been held that, although the limitation to the child or children is void, the intention of the testator will be carried out, as closely as possible, by giving the unborn person an estate tail instead of an estate for life, on the doctrine of cy pres, the issue of the unborn person thus being enabled to take, though not by way of remainder.81 Since this doctrine is based on the desire to give the succession to the property to those persons to whom the testator intended it should and Is the mode of limitation of family estates usually adopted in that country. See Leake, Prop. in Land, 335; Fearne, Cont. Rem. 502; Williams, Real Prop. (21st Ed.) 412.
80. See the articles by Charles Sweet, Esq. in 15 Law. Quart. Rev. 71, 25 Id. 385; 29 Id. 304; 12 Columbia Law Rev. 199, where the writer most learnedly and ably defends the existence of the rule.
80a. In those states where such legislation exists (see ante % 24), one could, it seems, after limiting an estate for life to a man in being, limit a remainder in tail to his unborn son, and the statute would then create a life estate in such unborn son, with a remainder in fee simple to the children of such son.
81. Gray, Perpetuities, Sec.Sec. 643-669; 1 Jarman, Wills, 263; Fearne, Cont. Rem. 204, Butler's note; Humberston v. Humberston, 1 P. Wms. 332; Parfitt v. Hember, L. R. 4 Eq. 443; Hampton v. Holman, 5 Ch. Div. 183; Jackson v. Brown, 13 Wend. (N. Y.) 437.
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