In the earlier books it is said that if a conveyance is made to a man who is not capable of holding land, as a monk, for life, remainder to another, the remainder is void because the particular estate is void, but that a devise in like terms is valid,83 and a similar diversity between a conveyance and a devise is stated to exist when the person to whom the particular estate is given refuses to accept it.84 The authorities referred to do not undertake to explain the reason for the asserted distinction in this regard between the case of a conveyance inter vivos and a devise, except that occasionally reference is made to the consideration that in the case of a devise it is sought to carry out the intention of the testator.85 The view which prevailed as to a common law conveyance appears to have been abandoned as regards one taking effect under the Statute of Uses, the intention being sought to be effectuated, in such case as in the case of a devise,86 and there can be no question, at the present day, in the case of a conveyance inter vivos, as in the case of a devise, that the failure of the attempted limitation of a partic82. See Gray, Perpetuities, Sec.Sec. 663, 668, 669.

83. Y. B. 9 Hen. 6, f. 24a; Perkins, Conveyancing, Sec.Sec. 567, 568; Newys v. Larke, Plowd. 414; Cox v. Whitchocke, 2 Bulstr. 292, per Coke, C. J.; Trinity College Case, 2 Brownl. 247, per Fleming, Ch. J.

84. Bro. Abr. Devise, pl. 14, Waiver de Chose, pl. 1; per Harper, J. in Newys v. Larke, 2 Plowd. 414; per Gawdy in Fuller v. Fuller, Cro. Eliz. 442.

85. Perkins, Conveyancing, Sec. 567.

Presumably the invalidity of the remainder in such case, when sought to be . created by conveyance inter vivos was based primarily on the ineffectiveness of the livery of seisin to a particular tenant who was incapacitated to take. There appears moreover to have been a certain rigidity of construction as applied to language used in conveyances inter vivos which was not applied in the case of wills.

86. See Lord Paget's Case, 1 Leon. 195, More 195; Cranmer's Case, 3 Dyer 310a; Rector of Chedington's Case, 1 Co. Rep. 154a; Com. Dig. Uses, K, 2.

Conceding that the failure of the limitation of the particular estate, for whatsoever reason, does not affect the existence of the estate subsequently limited by the same instrument, the question arises whether the latter estate takes effect immediately in possession, as if there had been no attempt to limit a particular estate, or whether the beneficiary of the later limitation must await the event which would have terminated the particular estate had the limitation thereof been valid and effective: that is, in the case of an estate for life, the death of the life tenant named, and in the case of an estate in fee tail, the failure of heirs of the body. It would seem clear, upon principle, that on the failure or elimination of the particular estate, the estate next limited must immediately vest in possession, since one having a legal estate in land is entitled to the possession unless there is a prior estate outstanding in another, and that such is the effect of the elimination of the prior estate is indicated by the authorities.87 Thus it has been said that, in the case of a devise to a monk for life, remainder in fee, the remainder takes effect presently.88 And in the case of a devise to one for life 89 or in fee tail90 with remainder over, if the devisee of the particular estate dies before the testator, the remainderman is immediately entitled to possession upon the testator's death. A like view has been applied in oases in which the gift of the particular estate failed to take effect by reason of the donee's refusal to accept it,91 as not infrequently occurs when the widow of testator elects to take the interest given her by law rather than the particular estate for life given her by will; and likewise when the gift of the particular estate was to a person without capacity to take,92 or when it has been revoked by the testator.93 Occasionally, however, it has been said that the remainderman immediately acquires the right of possession upon the failure or disappearance of the particular estate, unless an intention to the contrary appears.94 But, it is conceived, such a contrary intention can be effective merely as involving the existence of a condition precedent, in which case the right to possession is deferred because the

87. See 1 Jarman, Wills (5th Ed.) 536.

88. See authorities cited ante. note 83.

89. Perkins, Conveyancing. Sec. 568; Brett v. Rigden, Plowd. 345a; Goodwright v. Opie, 8 Mod. 126; Hollister v. Butter worth, 71 Conn. 57, 40 Atl. 1044; Mercer v. Hopkins, 88 Md. 292, 41 Atl. 156; ber v. Mohn, 37 N. J. Eq. 432; Thompson v. Thornton, 197 Mass. 273, 83 N. E. 880; Huber v.

Mohn, 37 N. J. Eq. 432; Fiske v. Fiske's Heirs, 26 R. I. 509, 59 Atl. 740; Brice v. Horner (Tenn. Ch.) 38 S. W. 440; Lacey v. Floyd, 99 Tex. 112, 87 S. W. 665.

90. Rickman v. Gardner, 2 Dyer 122a; Fuller's Case, Cro. Eliz. 422; Hutton v. Simpson, 2 Vern. 722, S. C. Sub. nom; Symp-son v. Hornsby, Ch. Prec. 440, 2 Vern. 722, S. C. Sub nom. Symp 120.

Sec. 146 ] remainderman on his death.2 It is also liable to sale under execution for the owner's debts.3

Rights of Future Possession.

91. Re Scott (1911) 2 Ch. 374; Northern Trust Co. v. Wheaton, 249 111. 606, 94 N. E. 980; In re Rawlings' Estate. 81 Iowa, 701. 47 N. W. 992; Tiinberlake v. Parish's Ex'r, 5 Dana (Ky.) 345; Faulkner v. Tucker, 26 Ky. Rep. 1130, 83 S. W. 579; Fox v. Rumery, 68 Me. 121; Hinkley v. House of Refuge, 40 Md. 461: Yeaton v. Roberts, 28 N. H. 459; Parker v. Ross, 69 N. H. 213, 45 Atl. 576: Bredeman v. Sparks. 64 N. J. Eq. 374, 55 Atl. 1132; affirming 61 X. J. Eq. 226, 47 Atl. 811; Sarles v Sarles, 19 Abb. N. Cas. (N. Y.) 322; Holderby v. Walker, 56 N. C. 46; Trustees of Baptist University v. Borden, 132 N. C. 476, 44 S. E. 1007; Milliken v. Welliver, -37 Ohio St. 460; Vance's Estate, 141 Pa. 201, 23 Am. St. Rep. 267; In re Disston's Estate, 257 Pa. 537, 101 Atl. 804; Witherspoon v.

Watts, 18 S C. 396.

92. Jull v. Jacobs, 3 Ch. Div. 712; Darcus v. Crump, 6 B. Mon. (Ky.) 363; Key v. Weathersbee, 43 S. C. 414, 21 S. E. 324, 49 Am. St. Rep. 846.

93. Lainson v. Lainson, 5 De G. M. & G. 754; Re Johnson, Dain-ly v. Johnson, 68 Law Times, 20.

94. Jull v. Jocobs, 3 Ch. D. 703; Lainson v. Lainson, 5 De G. M & G. 754; Tombs v. Spratlin, 127 Ga. 766, 57 S. E. 59; Blatchford v. Newberry, 99 111. 11, 48; Fowler v. Samuel, 257 111. 30, 100 N. E. 143; Miller v. Miller, 91 Kan. 1, 136 Pac. 953; Hinkley v. House of Refuge, 40 Md. 461, 17 Am. Rep. 617; Wehrhane v. Safe Deposit & Trust Co., 89 Md. 179, 42 Atl. 930; Holdren v. Holdren, 78 Ohio St. 276, 18 L. R. A. (N S ) 272, 85 N. E. 637.

Claimant has not an estate, but merely the possibility or prospect of an estate. One who creates in favor of another a legal estate, as distinguished from a possibility of an estate, cannot exclude such other from the immediate possession except by interposing a lesser estate, and the exclusion from possession can endure only so long as the lesser estate endures. In the case of an equitable remainder, the question of enjoyment rather than possession is involved, but a like principle would seem necessarily to apply. If the equitable remainder is not subject to a condition precedent, the right of enjoyment must accrue to the remainderman as soon as the conflicting right of enjoyment in the particular tenant, so called, is out of the way.

In so far as the failure of the limitation of the particular estate may be by reason of the exercise, by the intended beneficiary of such limitation, of the right of equitable election, as when the widow of testator refuses a testamentary provision for a life estate in her favor, the accrual of the right of immediate possession or enjoyment in favor of the remaindermen may be qualified by the exercise of the court of its jurisdiction to sequestrate the benefit intended for the donee so electing against the instrument, in order to secure compensation for those disappointed by the election. For instance, when the widow refuses the life estate given her by the will, electing in preference to take her dower or statutory share, this detracts from the amount available for testator's heirs or other claimants under his will, and, in order to compensate them for their loss, the court may regard the refused life estate as still existent, and may sequestrate it for their benefit.95 This doctrine

95. Dean v. Hart, 62 Ala. 308; Dunshee v. Dunshee, 263 111. 188, 104 N. E. 1100; Pace v. Pace, 271 111. 114. 110 N. E. 878; Adams v. Legroo, 111 Me. 302, 89 Atl. 63; Plympton v. Plympton, 6 Allen (Mass.) 178; Cotton v. Fletcher,

77 N. H. 216, 90 Atl. 510; Sarles v. Sarles, 19 Abb. N. Cas. (N. Y.) 322 and note; Holdren v. Holdren,

78 Ohio St. 276, 85 N. E. 537; Vance's Estate, 141 Pa. 201, 12 L. R. A. 227, 23 Am. St. Rep. 267, 21 Atl. 643; Meek v. Trotter, 133 of compensation to those disappointed by an election against the instrument is sometimes said to be based on the theory that such was the presumed intention of the donor,96 and it is in such sense, only, it is conceived, that such intention can ever operate to defer the possession or enjoyment of one entitled under a vested remainder, upon the failure of the particular estate to vest in the person named.

When one who, if the limitation of a particular estate were valid, would be in the position of remainderman, becomes, by reason of the failure of such limitation, entitled to the immediate possession, it is usually said that the remainder is accelerated, or there is said to be an acceleration of the remainder. Such an expression is not, however, particularly appropriate. In so far as the attempted creation of the particular estate is regarded as absolutely nugatory, the so called remainder is usually not a remainder, but an estate in possession, and the so called acceleration of a remainder is merely the creation, as an estate in possession, of an estate which under other circumstances would have been an estate in remainder. And regarding the particular estate as originally valid, the acceleration of the remainder can mean merely the accrual to the remainderman of the right of possession by reason of the disappearance of the particular estate.

Although the limitation of a particular estate is for any reason ineffective, the person claiming under a subsequent limitation in the same instrument is not entitled to the possession if such subsequent limitation is subject to a condition precedent. That is, one who would have had a contingent remainder, a mere possibility or prospect of an estate, if there had been a valid limitation of a particular estate, has no more by reason of the

Tenn. 145, 180 S. W. 176; Latta v. Brown, 96 Tenn. 343, 31 L. R. A. 840, 34 S. W. 417; Jones v. Knap-pen, 63 Vt. 391, 14 L. R. A. 293,

22 Atl. 630; Morris v. Garland, 78 Va. 215.

96. See 1 Pomeroy, Equity, Sec.Sec. 461-465.

Real Property.

[ Sec. 147 failure of such limitation, and is consequently not entitled to the possession. As it would ordinarily be expressed, a contingent remainder is not susceptible of acceleration,97 and this independently of whether, by the law of that jurisdiction, a contingent remainder fails in case it does not vest before the expiration of the particular estate.98 As before indicated, it is in this regard alone, it would seem, that the intention of the creator of the remainder should control the question of acceleration, that is, if he intends the remainder to be a contingent remainder, there can be no acceleration, while if he intends the remainder to be vested, acceleration necessarily occurs.