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 .
Since a limitation which is always subject to destruction at the option of one having an estate in fee tail in the land is not invalid under the rule, however remote may be the possible time of vesting thereunder,45 it follows that, in jurisdictions where estates in fee tail are still recogBrewst. (Pa.) 383; Thaw v. Gaff-ney, 75 W. Va. 229, 83 S. E. 983; Contra, Morrison v. Rossignol, 5 Cal. 64.
41. See e. g. London & S. W. R. Co. v. Gomm, 20 Ch. 562, 579; In re Tyrell's Estate (1907) 1 Ir. R. 194.
42. "The covenant to renew is part of the lessee's present interest." Gray, Perpetuities Sec. 230.
43. See ante Sec. 183, notes 25, 26.
44. See ante Sec. 183, note 13.
45. Ante 184, note 38.
Nized, in the ease of a devise to A, or to A and his heirs, and, upon the (indefinite) failure of the issue of A, then over to another or others, since A takes an estate tail, the limitation over is not within the rule, and is valid. The case is, however, different if there is a limitation over on the failure of issue, not of the first taker, but of some third person, as if, for instance, the limitation over in the above case were on the failure of the issue of "B." The limitation over is then, as in the first case, presumptively on an indefinite failure of issue, and this is liable to occur at a time in the future indefinitely remote. In this case there is not, as in the other, an estate tail in the first taker to save the limitation over from the operation of the rule, and it is consequently void.46
If the failure of issue referred to is not an indefinite failure of issue, but a failure upon the death of a living person, the limitation over is upon a contingency within the period prescribed by the rule, and consequently is valid, although no estate in fee tail is created.47 ever the previous limitations can be regarded as dependent on those subsequent, so that they cannot be separated without doing violence to the whole testamentary plan, the prior limitations will also fail as a result of the remoteness of those subsequent.51
46. Gray, Perpetuities, Sec.Sec. 212, 213; Marsden, Perpetuities, 183; Lewis, Perpetuity, c. 15; 1 Jarman, Wills, 217; Barter v. Pittsburg Ft. W. & C. R. Co., 166 U. S. 83, 41 L. Ed. 925; Taylor v. Taylor, 63 Pa. St. 481. In 4 Kent's Comm. 276, the author says: "The series of cases in the English law have been uniform, from the time of the Year Books down to the present day, in the recognition of the rule of law that a devise in fee, with a remainder over if the devisee dies without issue or heirs of the body is a fee cut down to an estate tail; and the limitation over is void, by way of executory devise, as being too remote, and founded on an indefinite failure of issue." The first clause of this statement is correct if restricted to cases in which a "definite" failure is not intended (see ante, 24); but the second clause is singularly incorrect, since the presence of the estate tail prevents invalidity for remoteness. Of the numerous authorities cited by the learned chancellor, all but two support merely the statement that an estate tail is created by such a devise. Of these two, one (Doe d. Fonnereau v. Fonnereau. 2 Doug. 504) decided that a limitation after an estate tail so created is valid, and the other (Barlow v. Salter, 17 Ves. 479) decided that a limitation over of personalty after an indefinite failure of issue is void. There was no rule against renoteness in the time of the Year Books.
In jurisdictions in which estates in fee tail are changed into estates in fee simple, a limitation over upon an indefinite failure of issue is a limitation in attemped defeasance of a fee simple estate and is invalid as being too remote.48
When one who has a term of years devises it to A with a limitation over on the indefinite failure of issue of A, there cannot be an estate tail in A, since an estate tail in a term for years is not recognized, and consequently the limitation over on failure of issue is invalid, as being too remote.49