One having an estate in fee simple may, even at common law, create an estate for years to commence in the future, since the matter of seisin is not involved.27 And one who has an estate for years may create a less estate for years to commence in the future.28 For instance, one having an estate for fifty years may create an estate for forty years to commence at the end of ten years.

One having an estate in fee simply can create an estate for years in one person and by the same conveyance a greater estate in another person, in which case the latter estate will be a vested remainder, as being an estate deprived of the right of present possession by reason of the existence of another estate created by the same instrument. For instance, one having an estate in fee simple may create an estate for ten years in favor of A, and by the same instrument convey or devise an estate for twenty years to B. Even though the language used is "to A for ten years with remainder to B for ten years," B may be regarded as acquiring an estate for twenty years, one for a term equal to the nominal term of his estate plus the term of A's estate, the nominal term being that during which he is expected to enjoy the possession of the land after A's estate is out of the way.29

25-26. Theobald, Wills (6th Ed.) 711; Skey v. Barnes, 3 Me. 335; Fenby v. Johnson, 21 Md. 1ll; Picot v. Armistead, 37 N. C. 226; Pennsylvania Insur. etc. Co. 5, Appeal, 109 Pa. 489, 1 Atl. 82.

27. 2 Preston, Abstracts, 7, Barwick'a Case, 5 Coke 93b;

Wright v. Cartwright, 1 Burrow, 282.

28. Gray, Perpetuities, Sec. 74. Raymond v. Gold, Moore, 635; Welckden v. Elkington, 2 Plowd 519, 523; Culbreth v. Smith, 69 Md. 450, 1 L. R. A. 538, 16; Atl. 12.

29. This appears to be the

Not only may one having an estate in fee simple create an estate for years with a vested remainder for years, but, it seems clear, one having an estate for years may do so. For instance, one having an estate for twenty years may create an estate for ten years in favor of A and by the same instrument convey his estate for twenty years to B, in which case B will have a vested remainder. Occasional statements that no remainders can be limited in chattels real30 appear to be erroneous, as applied to such a case. They would seem to be based exclusively on the cases, next to be referred to, in which the particular estate was an estate for life.

If one having an estate for years undertakes to create an estate for life in another, the theory that a life estate is always greater than an estate for years31 would produce the result that he thereby disposes of his estate for years, and any subsequent limitation by him in the same instrument can consequently not operate as creating a remainder.32 That one having an estate for years may, however, create a life estate in favor of another with remainder thereon has been decided in at least one state.33 In England the view has been taken, at least in the case of a devise as distinct from a conveyance inter vivos, that while the gift of the estate for life does consume the estate for years, a subsequent limitation in the same instrument may be given effect as an executory devise. For instance, if one having an estate for years only undertakes to devise the land to A for life and after his death to B, A explanation of Coke's statement that "if a man make a lease for ten years, the remainder for twenty years, he in the remainder releaseth all his right to the lessee, he shall have an estate for thirty years." Co. Litt. 273b. The estate in remainder is actually for thirty years, though nominally for twenty years.

30. 1 Jarman, Wills (5th Ed.) 837; Fearne's Cont. Rem. p. 401, Butler's note; per Stirling, J., in Johns v. Pink, (1900) 1 Ch. 296.

81. Ante Sec. 129, note 3.

32. See Welckden v. Elkington, 2 Plowd. 519, 520; Woodcock v. Woodcock, Cro. Eliz. 795.

33. Culbreth v. Smith, 09 Md. 450, 1 L. R. A. 538, 16 Atl. 112.

It has been decided that an attempted limitation by devise of a contingent remainder upon an estate less than freehold, though ineffective for such purpose,35 is to be given effect as an executory devise,36 but there arc decisions adverse to the giving such an effect to the limitation by conveyance inter vivos of a use to arise in the future, following the limitation of an estate for years in the same instrument.37 These latter cases have, however, been disapproved by prominent writers as unsound on principle,38 and they have even been referred to as overruled by the later decisions above cited in reference to the analogous case of a devise.39

Conceding that if a contingent remainder is not supported by a particular estate of freehold it may be upheld as an executory interest, the question remains whether upon its vesting the particular estate for years is to be regarded as divested, in violation of the intention of the creator of the limitations. In two of the decisions above referred to in which there was held to be a valid executory devise under such circumstances, the estate for years was subject to a special limitation corresponding to the condition precedent to the vesting, that is, the same event which caused the executory de34. Manning's Case, 8 Co. Rep. 94b; Lampet's Case, 10 Co. Rep. 46b. See the lucid and exhaustive article by Professor John C. Gray, on Future Interests in Personal Property, in 14 Harv. Law Rev. 397, afterwards incorporated as Appendix F. to his work on The Rule Against Perpetuities.

35. Ante Sec. 140, note 17.

36. Gore v. Gore, 2 P. Wms. 28; Haywood v. Stillingfleet, 1

Atk. 422; Harris v. Barnes, 4

Burr. 2157.

37. Adams v. Savage, 2 Ld. Raym. 854, 2 Salk. 679; Rawley v. Holland, 22 Vin. Abr. 189, 2 Eq. Cas. Abr. 753.

38. Sugden's Gilbert, Uses, 167, 168 note; Sugden, Powers (8th Ed.) 35; Hayes, Limitations, 67 note, 72 note; 1 Sanders, Uses & Trusts (5th Ed.) 147, 148; 1 Law Quart. Rev. 412, article by Mr. Challis.

39. Gray, Perpetuities, Sec. 60.

Not only may one having an estate in fee simple create an estate for years with a vested remainder for years, but, it seems clear, one having an estate for years may do so. For instance, one having an estate for twenty years may create an estate for ten years in favor of A and by the same instrument convey his estate for twenty years to B, in which case B will have a vested remainder. Occasional statements that no remainders can be limited in chattels real30 appear to be erroneous, as applied to such a case. They would seem to be based exclusively on the cases, next to be referred to, in "which the particular estate was an estate for life.

If one having an estate for years undertakes to create an estate for life in another, the theory that a life estate is always greater than an estate for years 31 would produce the result that he thereby disposes of his estate for years, and any subsequent limitation by him in the same instrument can consequently not operate as creating a remainder.32 That one having an estate for years may, however, create a life estate in favor of another with remainder thereon has been decided in at least one state.33 In England the view has been taken, at least in the case of a devise as distinct from a conveyance inter vivos, that while the gift of the estate for life does consume the estate for years, a subsequent limitation in the same instrument may be given effect as an executory devise. For instance, if one having an estate for years only undertakes to devise the land to A for life and after his death to B, A explanation of Coke's statement that "if a man make a lease for ten years, the remainder for twenty years, he in the remainder releaseth all his right to the lessee, he shall have an estate for thirty years." Co. Litt. 273b. The estate in remainder is actually for thirty years, though nominally for twenty years.

30. 1 Jarman, Wills (5th Ed.) 837; Fearne's Cont. Rem. p. 401, Butler's note; per Stirling, J., in Johns v. Pink, (1900) 1 Ch. 296.

31. Ante Sec. 129, note 3.

32. See Welckden v. Elkington, 2 Plowd. 519, 520; Woodcock v. Woodcock, Cro. Eliz. 795.

33. Culbreth v. Smith, G9 Md. 450, 1 L. R. A. 538, 16 Atl. 112.

Thereby acquires the whole estate for years, subject to an executory devise to B of an estate for years to commence on the death of A.34

It has been decided that an attempted limitation by devise of a contingent remainder upon an estate less than freehold, though ineffective for such purpose,35 is to be given effect as an executory devise,36 but there are decisions adverse to the giving such an effect to the limitation by conveyance inter vivos of a use to arise in the future, following the limitation of an estate for years in the same instrument.37 These latter cases have, however, been disapproved by prominent writers as unsound on principle,38 and they have even been referred to as overruled by the later decisions above cited in reference to the analogous case of a devise.39

Conceding that if a contingent remainder is not supported by a particular estate of freehold it may be upheld as an executory interest, the question remains whether upon its vesting the particular estate for years is to be regarded as divested, in violation of the intention of the creator of the limitations. In two of the decisions above referred to in which there was held to be a valid executory devise under such circumstances, the estate for years was subject to a special limitation corresponding to the condition precedent to the vesting, that is, the same event which caused the executory deS4. Manning's Case, 8 Co. Rep. 94b; Lampet's Case, 10 Co. Rep. 46b. See the lucid and exhaustive article by Professor John C. Gray, on Future Interests in Personal Property, in 14 Harv. Law Rev. 397, afterwards incorporated as Appendix F. to his work on The Rule Against Perpetuities.

35. Ante Sec. 140, note 17.

36. Gore v. Gore, 2 P. Wms. 28; Haywood v. Stillingfleet, 1

Atk. 422; Harris v. Barnes, 4

Burr. 2157.

37. Adams v. Savage, 2 Ld. Raym. 854, 2 Salk. 679; Rawley v. Holland, 22 Vin. Abr. 189, 2 Eq. Cas. Abr. 753.

38. Sugden's Gilbert, Uses, 167, 168 note; Sugden, Powers (8th Ed.) 35; Hayes, Limitations, 67 note, 72 note; 1 Sanders, Uses & Trusts (5th Ed.) 147, 148; 1 Law Quart. Rev. 412, article by Mr. Challis.

39. Gray, Perpetuities, Sec. 60.

Vise to ripen into an estate also, by force of the language which created the estate for years, caused this estate to come to an end, and these decisions accordingly furnish no aid in answering this question. In two decisions,40 however, it appears to have been assumed that, under such circumstances, the vesting of the executory devise would not affect the estate for years, thus carrying out the intention of the testator. The somewhat illogical effect of such a view is that a limitation, which can be upheld only by regarding it as creating an executory interest and not a remainder, is made to operate as if it created a remainder and not an executory interest.