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to commence at some future time.1 Supposing, then, that the owner of an estate in fee-simple had (1) granted out of it an estate to A for life; or (2) granted an estate for years to B, with remainder to A for life; or (3) granted an estate to A for life, with remainder to B in fee-simple. In the first case he would have had to make livery of seisin to A ; in the second case he would have had to make it to B, as the bailiff or agent of A, and to take effect for the benefit of A's estate; and in the third case he would have had to make it to A, and this would have taken effect for the benefit of B's estate as well as for that of A.
If the remainder-men in the second and third of our cases were ascertained, living persons, or, in other words, if their remainders were vested, this would be simple enough. Nor would there be any difficulty in our third case, even if the remainder. were contingent; since, as we said, livery of seisin could be made to A. But it would be otherwise if the remainder limited in our second supposed case were contingent. For B could not receive livery of seisin as the agent of a non-existent person; livery of seisin could not, therefore, be made to any one, and consequently the contingent remainder would be invalid, because the rule which required delivery of the seisin on the creation of every estate of freehold had not been complied with. And though estates of freehold may now be transferred without livery of seisin, this rule of law as to contingent remainders continues unaltered. Hence we arrive at another rule, namely: That every freehold contingent remainder must be supported by a freehold particular
The next rule to be considered relates also exclu
1 Barwick's Case, 5 Rep. 93 b.
to issue of unborn person
estate for life
sively to contingent remainders. These remainders No remainder were not, at one time, permitted at all; the law not allowing an estate in land to be given to a person who following might possibly never exist. Afterwards however they to such were recognized, subject to the rules which we have person. stated. But a trace of the old prejudice against them was to be found in a rule which was in force in Coke's time, and which prohibited any remainder which depended upon the coming into existence of two unborn people, or, as it was said, endeavored to limit a possibility after a possibility. This rule was not, it would seem, applied from any fear of such a limitation acting as a restraint on alienation,2 and since the only cases to which it was likely to apply are those in which an endeavor is made to keep the same estate inalienable, in the same direct line of descent, it only survives in a modified form derived from the general principle. The rule in its present shape may be stated as follows: If an estate is limited to an unborn person for life, with remainder to the children of such unborn person, this remainder is absolutely void. Hence, if an estate be given to A, a bachelor, for life, with remainder to his son for life, with remainder to that son's son, this last remainder cannot take effect. The operation of the Cy près above rule is however modified, in one particular case, doctrine. by the application of what is known as the Cy près doctrine. For it sometimes happens that, in a will, an estate is given by words which, although when read in their strictly technical sense confer an estate for life only on an unborn person with remainder to his issue in tail, yet are considered by the courts to show that the testator's primary object was that the 1 See 2 Rep. 51 b.
2 See judgment of Ld. Brougham in Cole v. Sewell, 2 H. L. C. 230. 8 See Cole v. Sewell, 4 Dru. & War. 1, 32.
* Fearne, C. R. 502; Spencer v. Marlborough, 3 Bro. P. C. 232; Brudenell v. Elwes, 1 East, 442, 452 note (c), & 458.
Rule as to vesting of contingent
land should continue in the issue of the first taker, and that the mode in which the issue should take it was a secondary object. In such a case, the courts will give effect to his intention, as nearly as possible,2 by advancing the estate given by the will to the first taker, and holding that he has an estate tail, thus leaving his issue a chance of succeeding him as tenants in tail. But this indulgence is only shown where such limitations are endeavored to be made by will, and is not extended to cases where the testator has shown an unmistakable intention to infringe the rule of law, as where it is clearly intended that the first unborn person should take as tenant for life," or that the second should take as tenant in fee-simple.
Besides the above rules relating to the creation of remainders, there is another which applies to a conremainders. tingent remainder after it has been created, and is a corollary to the rule that every remainder must have a particular estate to support it. Every vested remainder is, by its definition, ready to come into possession whenever the particular estate determines, and continues, therefore, to exist as an estate, though not as an estate in remainder, after the particular estate has come to an end. But it is otherwise, in such a case, with a contingent remainder, which being unable either to become an estate in possession, or (having lost its particular estate) to exist any longer as a remainder, is destroyed altogether. Hence we arrive at the rule that every contingent remainder must, in order to take effect in possession, be changed into a vested remainder either before, or at the mo
See Doe v. Aplin, 4 T. R. 82; Doe v. Halley, 8 T. R. 5.
4 See Brudenell v. Elwes, 7 Ves. 381, 389.
5 Seaward v. Willock, 5 East, 198.
6 Hale v. Pew, 25 Beav. 335.
ment when, the preceding particular estate comes to an end.
In the construction of this rule, it is now well set- Child en ventre tled that a child begotten, but not born, or as the legal phrase is en ventre sa mère, is to be considered as being already in existence. This was not the case formerly, and the way in which a change in the old law was brought about is somewhat curious. In a case1 tried in the sixth year of William and Mary, a father had devised an estate to his son for life, with remainder to that son's sons in tail. The son died without having had a son born to him, but leaving his wife pregnant of a child, who was afterwards born and proved to be a son. The Courts of Common Pleas and of Queen's Bench were unanimous in holding that the grandson, not having been born at the expiration of the estate for life, could not take the estate tail. This decision was, however, afterwards reversed by the House of Lords, contrary to the opinion of all the judges. But the House of Commons, in reproof of what they considered an assumption of legislative authority by the Lords, brought in a bill which was passed as the 10 & 11 10 & 11 Wm. Wm. & Mary, c. 22, and which enacted that when any estate, by any marriage, or other, settlement, should be limited in remainder to the first or other son of the body, or to the daughter, or daughters, of any person, with any remainders over; any son or daughter of such person, born after the decease of his, or her, father, should take such estate so limited to the first or other sons, or to the daughter or daughters, in the same manner as if born in the lifetime of his, or her, father. And it is now laid down as a fixed principle, that when such consideration would
1 Reeve v. Long, Salk. 227.
& M. c. 22.
be for his benefit every child en ventre sa mère is to be considered as absolutely born.1
It may assist the reader if we pause here, in order to recapitulate the rules which we have deduced as governing the existence of remainders. They are:
1. That every remainder must await the determination of its particular estate, and that no remainder can be limited after an estate in fee-simple.
2. That every remainder must have a particular estate to support it.
3. That if the remainder is contingent and also freehold, the particular estate must also be one of freehold.
4. That no remainder can be limited to an unborn person for life, followed by an estate to the issue of such unborn person. And,
5. That every contingent remainder must vest before, or at the moment when, the precedent particular estate is determined.
It should be mentioned, at this stage of our subject, that the strict rules which applied to remainders, properly so called, were not, even in early times, enforced against limitations created by a will which sought to give estates by way of remainder. For wills have been always more leniently construed than deeds, and consequently from an early date it was allowable to make by will a limitation, distinguished as an "executory devise," which would have failed altogether if inserted in a deed. But executory devises having, since the passing of the Statute of Uses,2 been brought within the rules which govern limitations taking effect under that act, we will con
1 Watkins on Descents, 180; Doe v. Clarke, 2 H. Bl. 399; Mogg v. Mogg, 1 Mer. 654; Trower v. Butts, 1 S. & S. 181.
2 27 Hen. VIII. c. 10.