We have previously considered limitations of springing and shifting uses, by virtue of which estates may be caused to arise in the future in a way which was not permitted at common law. There is another class of limitations of a use to arise in the future, namely, a limitation of such a character that the same result could be attained at common law by the creation of a contingent remainder. Such a limitation, which may conveniently be referred to as of a use by way of remainder, operates to create, according to a well settled rule of law, a contingent remainder rather than a use to arise in the future.24

21. Ante Sec. 157.

22. Post Sec. 163b, note 45.

23. Jarman, Wills, 822, 1024. Fearne, Cont. Rem. 532 et seq. 2 Preston, Abstracts; 125; Lewis, Perpetuity, 73; Gore v. Gore, 2 P. Wms. 28; Hopkins v. Hopkins, cas. temp. Talb. 44; Sullivan v.

Garesche, 229 Mo. 496, 49 L. R. A. (N. S.) 605, 129 S. W. 949; and citations ante, Sec. 26, note 82-84.

24. Goodtitle v. Billington, Doug. 753; Hole v. Escott, 2 Keen, 444; Fearne, Cont. Rem. 284; Williams, Real Prop. (21st Ed.) 380.

In other words, a contingent remainder retains its character as such even when created by the limitation of a use. For instance, in the case of a conveyance to the use of A for life, with remainder, if B survives C, to the use of B and his heirs, B has a contingent remainder, and not an executory interest. Consequently, although the limitation in favor of B of an estate to commence on his survival of C would have been perfectly valid had no particular estate been created, yet since such an estate was created, and consequently the limitation in favor of B is effective to create a contingent remainder, B acquires no estate in case the particular estate comes to an end before the death of C, B still surviving. That is, a contingent remainder which fails cannot be given effect by regarding it as a shifting or springing use.25