This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
The rules governing the creation of contingent remainders were of gradual growth, and up to the year 1845 were entirely common law rules.
These common law rules still govern contingent remainders, and the later statutory rules are only applied to such remainders if they have failed to take effect by reason of the strictness of the common law rules.
Rule I. - The seisin must never be without an owner. If a person was seised of land in fee simple he could convey the fee simple direct to another person, but if he attempted to give it to another from a future date, the gift was void.
Thus, A could not grant land "to B and his heirs after two years," because it was thought that A by granting the fee simple away has lost the whole of his estate, and as B was not to get it for two years, there would have been a gap of two years during which no one was seised of the land.
So also a gift to B for 50 years and then to C in fee simple was void; for during the 50 years B had merely a term or personal estate in the land, and no one was seised.
Hence the following rule was laid down, which is really only an explanation of Rule I.
I. (a) Every contingent remainder of freehold must have a particular estate of freehold to support it.
Thus a gift "to A for life, remainder to his eldest son at 21," was a good gift, for the seisin is given to A (a life estate being a freehold estate). But if A died before the son reached 21, then again there would be no particular estate of freehold to support the contingent remainder. Hence the following further rule: -
I. (b) Every contingent remainder must vest during the continuance of the particular estate, or at the very moment that it determines.
Thus it frequently happened that a contingent remainder in favour of a son, would fail to take effect, because the father did not live long enough. But this very liability to failure often saves contingent remainders from being destroyed by the rule against perpetuities.
E.g. A gift to A for life with remainder to the first son of A who shall reach 35. At first sight one would think that this gift to the son might tale effect more than 21 years after A's death (i.e. more than 21 years after a "life in being ") (see the rule on p. 135); but this is not so really; for if A died before the son reached 35, there would be a gap in the seisin, and the gift to the son would fail: therefore the gift to the son must take effect, if it take effect at all, at the end of A's life.
By reason of this and the following rule, the rule against perpetuities seldom applies to a contingent remainder.
Rule II. - If an estate is granted to an unborn person, a contingent remainder cannot be granted to the child of that unborn person.
- Thus land could not be given to A for life, remainder to his eldest son for life, with remainder to the eldest son of A's eldest son. The last gift would be void.
An estate can, however, be granted to an unborn person for life, and an estate can then be granted to some other person who is not a child of the tenant for life (a), provided the rule against perpetuities is not infringed.
Rule III. - A contingent remainder which (while complying with the common law rules) might possibly infringe the rule against perpetuities, is void.
It is not very easy to frame a contingent remainder which shall offend against the rule of perpetuities; for by common law the remainder can only take effect at the end of some particular estate, and therefore it cannot infringe the rule if the particular estates are all granted to lives in being; and again, if you give particular estates to unborn persons, and then give remainders over, you will probably find that you have given a remainder to the child of that unborn person, and the remainder will be void at common law.
Recently, however, a case occurred where particular estates were given to unborn persons, and a contingent remainder was given at the end of the particular estates, which was not a gift to the child of an unborn person.
Re Ashforth, Sibley v. Ashforth,  1 Ch. 535.
The effect of the will was roughly as follows: - Land was given to A for life, remainder to all the children of A in equal shares for their lives, with remainder to the last survivor of A's children in fee simple.
Here A was the "life in being," and the gift to the last survivor of A's children would not take effect until all the children of A except one were dead. The testatrix died in 1864 and A died in 1870, leaving three daughters, all of whom might have lived to be over 90, and the gift to the survivor might therefore not take effect for many more than 21 years after A's death.
(a) The doubt expressed by Lord Davey in Honywood v. Honywood ( 92 L. T. 814) does not appear to be founded on authority. See Brudenell v. Elwes, (1801) 1 East. 452, where an appointment by a mother, under a special power, to the daughter for life, remainder to the son for life (neither of whom was alive when the power was created), was treated as valid, although it was argued that the life interests were void.
Held (therefore) that the gift to the survivor of the children of A was void.
Ride IV. - A gift creating a "possibility on a possibility" was void.
It is doubtful whether this rule ever existed independently of Rule II., and it is still more doubtful whether it exists at the present day (b). The rule is therefore of little practical importance.
Statutes affecting Contingent Remainders.
Act of 1845. - A contingent remainder was, as we have seen, always liable to be defeated by the particular estate corning to an end, before the remainderman was ready to take the land. This rale caused great hardship, and was sometimes used for the purpose of fraudulently destroying contingent remainders by destroying the particular estate before the death of the life tenant.
Thus, if land were granted - to A for life, remainder to his first son who should reach 21, remainder to B in fee simple,
A and B could arrange to destroy A's life estate before the son reached 21. This could be done by A surrendering his life estate to B, or by B conveying the fee simple to A. In either case the life estate would merge (see p. 148) in the fee simple, and thereupon come to an end; and if the contingent remainder was not ready to vest, it would thereupon fail.
But now by the Real Property Amendment Act, 1845, s. 8 (c), a contingent remainder shall not fail by reason merely of the destruction of the particular estate by merger, forfeiture, or surrender, during the life time of the tenant for life.
For the exact words of this section see p. 309. Even after this Act a contingent remainder
(b) "William's Real Property," p. 356, citing re Frost, (1890) 43 Ch. D. at p. 253, and re Ashforth,  1 Ch. 535. (c) 8 & 9 Vict. c. 10G.
was always liable to be defeated by the particular estate coming to an end by natural means before the remainderman was ready to take.
Thus, if in the last example A died when his son was 20 the gift to the son would fail.
The following case was one of great hardship and led to the alteration of this rule.
Cunliffe v. Branker (1876), 3 Ch. Div. 393.
Land was given by will to trustees to the use of the husband for life, remainder to the use of such of his children as should be living at the death of both the husband and the wife. The husband died during the life of the wife. Therefore the children who were to take were not ascertainable until a future date, namely the death of the wife, and were therefore not ready to take the land.
Held, the gift to the children fails.
Hence Parliament desired to save such hardships. This could have been done simply by repealing the rule that the seisin must never be without an owner; but the result of that would have been in many cases to bring in the rule against perpetuities and make gifts void which were good before.
Thus we have seen that a gift - to A for life, remainder to his son at 35 was good, if the son reached 35 before A's death, just because it could not take effect unless he did.
But if the same gift is given in such a way that there shall be no gap in the seisin, it would have been void from the beginning by reason of the rule against perpetuities.
Thus, in case of a gift unto and to the use of T on trust for A for life, remainder on trust for the first son of A who shall reach 35. This gift need not necessarily take effect immediately on A's death, for the seisin will be in T, if the son has not reached 35 on A's death.
But the son might be only 5 years old when A dies, consequently this gift might take effect more than 21 years after A's death, and is therefore void from the beginning by the rule against perpetuities.
Thus the rule against perpetuities would often destroy an executory interest, while it spared a contingent remainder. Therefore Parliament left the old common law rules still subsisting, but said that if the contingent remainder should fail, then it might still be good, provided it would not have infringed the rule against perpetuities if it had been given in such a way as to prevent a gap in the seisin.
The enactment was as follows: -
By the Contingent Remainders Act, 1877 (d), a contingent remainder shall not fail by reason of the termination of the particular estate before the remainder has vested, but shall be capable of taking effect as if it had been originally created as an executory interest.
For the full text of this section see p. 311.
Application of the Act. - A future gift created after 1877 must always be construed, if possible, as a contingent remainder; and if it would have been valid by the common law rules, it is valid now.
But if it fails under the common law rules, then the statute will save it, unless it would have infringed the rule against perpetuities if it had been made by means of a trust.
Thus a gift to the first son who shall reach 35 (as above) cannot be saved by the Act, if the son does not reach 35 in the father's life.
But if the gift is to the first son to reach 21 (e), and the
(d) 40 & 41 Vict. c. 33.
(e) A doubt has been raised whether the statute would apply where a contingent remainder is granted by deed without a use, see p. 311.
father dies when the son is under 21, the statute will save it, because a gift unto and to the use of T in trust for A for life, remainder in trust for the son of A at 21, would be good (for it must vest within 21 years after A's death)