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 .
It may so pass by estoppel, even though the person estopped by his conveyance was not ascertained to be the remainderman at the time of making it. Myers v. McClurg, 129 Md. 112, 98 Atl. 491; Robertson v. Wilson, 38 N. H. 48; Jackson v. Everett (Tenn.) 58 S. W. 340.
11. Morse v. Proper, 82 Ga. 13, 8 S. E. 625; McDonald v. Bayard Sav. Bank, 123 Iowa, 413, 98 N. W. 1025; Nutter v. Russel, ' 3 Mete. (Ky.) 163; Defreese v.
At one time in England it was considered that a contingent remainder was not within the meaning of the Statute of Wills, and consequently could not he devised,13 hut subsequently a different view was taken,14 and at the present day such an interest created in favor of an ascertained person is probably everywhere devisable.15
A contingent remainder in favor of an ascertained person passes by descent upon his death intestate.16 As regards the descent of a contingent remainder in favor of unascertained persons, it is difficult to conceive of a case in which one could be ascertained as a remainderman after his death,16a but assuming that such a case could occur, the remainder would probably cannot claim any interest under one of such class who fails to survive.20
Lake, 109 Mich. 415, 32 L. R. A. 744, 67 N. W. 505, 63 Am. St. Rep. 584; Godman v. Simmons, 113 Mo. 122, 20 N. W. 972; Griffin v. Shepard, 124 N. Y. 70, 26 N. E. 339; Young v. Young, 89 Va. 675, 23 L. R. A. 642, 17 S. E. 470.
12. See Gardener v. Hooper, 3 Gray (Mass.) 398; Pierce v. Lee, 9 Gray (Mass.) 42; Dunn v. Sargent, 101 Mass. 336; Cummings v. Stearns, 161 Mass. 506; Grayson v. Tyler, 80 Ky. 358; Beacom v. Amos, 161 N. Car. 357, 77 S. E. 407.
13. Bishop v. Fountaine, 3 Lev. 427.
14. Doe d. Perry v. Jones, 1 H. Bl. 30; Jones v. Perry's Lessee, 3 Term R. 88; See note 9 Columbia Law Rev. at p. 546.
15. Morse v. Proper, 82 Ga. 13, 8 S. E. 625; Collins v. Smith, 105 Ga. 525, 31 S. E. 449; Mohn v. Mohn, 148 Iowa, 288, 126 N. W. 1127; Fisher v. Wagner, 109 Md. 243, 21 L. R. A. N. S. 121, 71 Atl.
999; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Eckle v. Ryland, (Mo.) 165 S. W. 1035; Havens v. Seashore Land Co., 47 N. J. Eq. 365; Pond v. Bergh, 10 Paige (N. Y.) 141; Loring v. Arnold, 15 R. I. 428 8 Atl. 335.
16. Fearne, Cont. Rem. 364; Barnitz's Lessee v. Casey, 7 Cranch (U. S.) 469; Adams v. Merrill, 45 Ind. App. 315, 85 N. E. 114, 87 N. E. 36; Buck v. Lantz, 49 Md. 439; Winslow v. Goodwin, 7 Mete. (Mass.) 363; Kenyon v. See, 94 N. Y. 563; Clark v. Cox, 115 N. C. 93, 20 S. E. 176; Chess-Appeal, 87 Pa. St. 362, 30 Am. Rep. 361; Loring v. Arnold, 15 R. I. 428, 8 Atl. 335. 25467 179 Howard Sept. 2
16a. A possible case is suggested in an article in 26 Yale Law Journ, at p. 28, by Professor M. O. Hudson, who considers that such a remainder should properly pass by descent
[ Sec. 147 pass by descent in any state in which a remainder in favor of unascertained persons is regarded as alienable.16b case, the remainder in favor of A and his heirs being contingent, the particular estate will not merge therein, but, upon the vesting of the remainder by the death of B before A, merger will take place, and A will have, as in the previous case, an estate in fee simple or fee tail in possession.25
In some jurisdictions in which a contingent remainder in favor of an ascertained person is regarded as freely transferable, a remainder in favor of unascertained persons is not so regarded,17 while in others a remainder in favor of uncertain persons is regarded as alienable by the persons who would take if the remainder were immediately to vest.18 Even though the remainder is in favor of an ascertained person, no interest of any value whatsoever can pass by descent or devise if the survivorship of the deceased is a condition precedent to the vesting, that is, the remainder is in such case in effect destroyed as being incapable of vesting.19 And so in the case of a remainder in favor of those of a class who survive a certain event, one
16b. Post, this section, note 18.
17. In re Hoadley, 101 Fed. 233; Kean v. Hoffecker, 2 Harr. (Del.) 103, 29 Am. Dec. 336; Morse v. Proper, 82 Ga. 13, 8 S. E. 625; Robeson v. Cochran, 255 111. 355, 99 N. E. 649; Mohn v. Mohn, 148 Iowa 288, 126 N. W. 1127; Fisher v. Wagner, 109 Md. 243, 21 L. R. A. (N. S.) 121, 71 Atl. 999; Scha-piro v. Howard, 113 Md. 360, 78 Atl. 58; De Lassus v. Gatewood, 71 Mo. 371; Teets v. Weise, 47 N. J. L. 154; Clark v. Cox, 115 N. C. 93, 20 S. E. 176; Smith v. Block, 29 Ohio, St. 488; Loring v. Arnold, 15 R. I. 428, 8 Atl. 335; Roundtree v. Roundtree, 26 S. C. 450, 2 S. E. 474; Cooper v. Cooper, 78 S. C. 317, 88 S. E. 950.
18. Grayson v. Tyler's Adm'x, 80 Ky. 358; Belcher v. Burnett, 126 Mass. 230; Putnam v. Story, 132 Mass. 205; Wainwright v. Sawyer, 150 Mass. 168, 22 N. E. 885;
Brown v. Fulkerson, 125 Mo. 400, 28 S. W. 632; Clowe v. Seavey, 208 N. Y. 486, 47 L. R. A. (N. S.) 284, 102 N. E. 521; Harris v. Mc-Elroy, 45 Pa. 216; Rembert v. Evans, 86 S. C. 445, 68 S. E. 659; Young v. Young, 89 Va. 675, 23 L. R. A. 675.
19. Fearne, Cont. Rem. 364; Strode v. McCormick, 158 111. 142; Eckle v. Ryland, 256 Mo. 424, 165 S. W. 1035; Kelso v. Lorillard, 85 N. Y. 177; Hennessy v. Patterson, 85 N. Y. 95; Brown v. Williams, 5 R I. 308. See Whitesides v. Cooper, 115 N. C. 570, 20 S. E. 295. For instance, a remainder limited to B, provided C survive A, will pass to the heirs of B, but this will not happen if the remainder is to B, provided B survive A and A is still living at B's death, since the death of B before A destroys the remainder.
A contingent remainder has occasionally been held to be subject to sale under execution for the debts of the remainderman,21 while a contrary view has also been taken,22 it being to a great extent a question of the const ruction of the state statute as to executions.
IV. The Rule in Shelley's Case.