Analogous to the limitation of a use by way of remainder is a devise of an estate to arise in the future which, by reason of the presence of a particular estate, can be regarded as creating a contingent remainder. Such a devise is, like a use by way of remainder, controlled by the rules which apply to common-law remainders.26 Consequently, a contingent remainder created by devise will fail if the particular estate comes to an end before the vesting of the remainder, and such failure cannot be avoided by then regarding the limitation as an executory devise.27

25. Sugden's Gilbert, Uses 165; Gray, Perpetuities Sec.Sec. 920, 921.

26. Fearne, Cont. Rem. 386, 526; Smith, Executory Interests, Sec. 196; Gray, Perpetuities, Sec.Sec. 920, 921; Purefoy v. Rogers, 2 Saund. 380; Demill v. Reid, 71 Md. 175, 17 Atl. 1014; Blanchard v. Blanchard, 1 Allen (Mass.) 223; Burleigh v. Clough, 52 N. H. 267; Wolfe v.

Van Nostrand, 2 N. Y. 436; Watson v. Smith, 110 N. C. 6, 28 Am. St. Rep. 665, 14 S. E. 640; Waddell v. Rattew, 5 Rawle (Pa.) 230; Arnold v. Brown, 7 R. I. 188; Bouknight v. Brown, 16 S. C. 155. 27. Challis, Real Prop. 124; Fearne, Cont. Rem. 395; White v. Summers (1908) 2 ch. 256; Contra, Thompson v. Hoop, 6 Ohio if. in connection with language which would otherwise create a contingent remainder, expressions are used indicating an intention that the vesting may be deferred till after the expiration of the particular estate, since this is incompatible with a contingent remainder, the language is to be regarded as creating an executory devise, and there is a later English decision which tends to give confirmation to this view.30 In the latest English case,31 however, bearing on the subject, the decisions referred to are distinguished on the theory that in them the limitation to a class was construed as divisible into a limitation of a contingent remainder in favor of the members of the class who could take as remaindermen, and an executory devise in favor of those who could not so take, and the intention of the testator, except as it hears on the construction in this regard of the language used, was declared to he immaterial.32

Real Property.

[Sec. 162

In the ease of a devise to A for life, and, after her death, to such members of a class-her children, for example-as attain a certain age or marry, or comply with some other qualification, the limitation is regarded as creating a contingent remainder and can operate in favor of those children only who have complied with the qualification at the time of A's death, and may fail entirely for want of such children.28 But it has been decided in England that if it is clearly expressed in the will that not only those who comply with the qualification before A's death, but also those who comply therewith after her death, shall take, the limitation cannot be regarded as creating a contingent remainder, but must be regarded as an executory devise.29 These English decisions appear in effect to assert that determinable fee only, rather than an estate in fee simple liable to be divested. The same idea is occasionally conveyed by saying that the first taker, A, has in such case a base fee,36 a qualified fee,37 or a conditional fee.38 Such a view, that the effect of a limitation over in favor of another, divesting an estate upon a certain event, changes the character of that estate, is not in accord with the treatment of the subject by the authortative writers thereon,39 and is, it is submitted, erroneous.40 The executory limitation in favor of B is en36. Farr v. Perkins, 173 Ala. 500, 55 So. 923; Sterling v. Huntley, 139 Ga. 21, 76 S. E. 375; Mayer v. McCracken, 245 111. 551, 92 N. E. 355; Simonds v. Simonds, 112 Mass. 157; Tebow v. Dougherty, 205 Mo. 315, 103 S. W. 985; Schmitter v. McManaman, 85 Neb. 337, 123 N. W. 299; In re New York, L. & W. Ry. Co., 105 N. Y. 89, 59 Am. Rep. 478, 11 N. E. 492. Perrett v. Bird, 152 N. C. 220, 67 S. E. 507; In re Tyler, 30 R. I. 590, 76 Atl. 661.

St. 480. Thus in the case of a devise to testator's wife for life, with a remainder to his son for a term of years, and, after the death of both the wife and son, then to the heirs of the body of the son, it was held that the limitation to the heirs of the body was a contingent remainder, which failed by the death of the wife before the son, there being thereafter no particular estate of freehold to support it, and it could not be supported as an executory devise. Doe d. Mussell v. Morgan, 3 Term R. 763.

In Re Gunnings Estate, 234 Pa. 144, 83 Atl. 61, it was held that a contingent remainder failed because the particular estate was subject to a condition precedent, which was not satisfied. That the so called contingent remainder did not take effect as such, there being no particular estate, is obvious, but why the limitation was not valid as an executory devise is not apparent.

In Hayward v. Spaulding, 75 N. H. 92, 71 Atl. 219, there was a gift to A for life and at her death to B's children, and it was held that, A having died before the birth of the children to B, an estate would be implied in the executor to prevent the failure of the contingent remainder. This apparently involved the reading of the devise as to A for life, with remainder to the executor in fee simple, with a limitation over in favor of the children of B upon their birth, that is as creating an executory interest, and not a contingent remainder, in favor of the children.

28. Festing v. Allen, 12 Mees. & W. 279; Rhodes v. Whitehead, 2 Drew & S. 532.

29. In re Lechmere & Lloyd 18 Ch. Div. 524, Miles v. Jarvis, 24 Ch. Div. 633, Dean v. Dean, (1891) 3 Ch. 155.