be tenant for twenty years, remainder to B. in fee; here B. has a vested remainder: (1 St. C. 322, 8th edit.; Will. R. P. 255, 13th edit.)

Q. What are cross-remainders?

will?

Can they be implied in a deed or

A.-Cross-remainders arise on a grant of lands to two or more as tenants in common, with a particular estate limited to each of the grantees in his share, with remainder over to the other or others of them. As, if a man gives land to his two children as tenants in common in tail, and directs that on failure of the issue of one of them his share shall go over to the other in tail, and vice versa. In a deed they can be given only by express limitation, and can never be implied; but in wills they may be raised not only by actual limitation, but also by implication: (1 St. C. 351, 8th edit.; 2 Jar. Wills 458, &c.)

Q. Can the owner of an estate in fee simple in land convey the land to A., a bachelor, for life, with remainder to his son for life, and if not why?

A.-He may do so; there is no breach of the rule against perpetuities here. Had A. been unborn, the limitation would have been bad, or if there had been a limitation superadded to that of the unborn son: (see Will. R. P. 276, 13th edit.)

Q. What is a contingent remainder?

one.

Show the technical creation of

A.-Contingent remainders are those limited either to an uncertain person or upon an uncertain event. As, a limitation to A. for life, remainder to the first son of B., who has then no son born; here is a contingent remainder, for it is not certain that B. will ever have a son : (see 1 St. C. 322, 8th edit.; Will. R. P. 265, 13th edit.) (a)

Q.-Will a chattel interest support a remainder?

A.—It will support a vested remainder, (b) as if a person seised in fee grant lands to A. for twenty years, and after the determination of the said term to B. and his heirs; here A. is tenant for years (a chattel interest), and B. has a vested remainder. But a contingent remainder, if it amounts to a freehold, cannot be limited after an estate for years, or any other particular estate less than a freehold: (1 St. C. 320, 322, 325, 8th edit.)

Q. Can a limitation be good as a contingent remainder which would be void for perpetuity as an executory interest? and if so, give an example.

A.-If lands be given to A. for life, and after his decease to such son of A. as shall first attain the age of twenty-four years, as a contingent remainder the estate is well created; and if A. has a son who attains twenty-four before A.'s death it becomes vested. Such a limitation would be void by way of executory interest, as it might infringe the rule against perpetuities: (see Wms. R. P. 273, 13th edit.)

(a) By 40 & 41 Vict. c. 33, a contingent remainder created after the passing of the Act (2nd Aug. 1877) in the event of the particular estate determining before the contingent remainder vests, is capable of taking effect if it would have been valid as a springing or shifting use or executory devise or other limitation, had it not had a sufficient estate to support it as a contingent remainder.

(6) A lease at will is not such an interest as will support it.

Q. It is said of a freehold that it must always be vested in somebody. Show how this doctrine has affected the law of real property.

A.-In consequence of this rule a contingent remainder formerly failed if it did not vest during the continuance of the particular estate, or immediately that it determined, This has now been removed by 8 & 9

Vict. c. 106, s. 8, and 40 & 41 Vict. c. 33.

Q.-State the difference between a remainder and a reversion.

A. In addition to what has been already stated, they differ in this respect, that the former always has its origin in express grant, whilst the latter arises incidentally by operation of law in consequence of the grant of the particular estate. But it is said that a remainder chiefly differs from a reversion in this: That between the owner of the particular estate and the owner of the remainder no tenure exists, as there does between the particular tenant and the reversioner: (see Will. R. P. 244, &c., 13th edit.)

Q.-State the difference between a remainder and an executory devise, and between an executory devise and a conditional limitation.

A.—A remainder differs from an executory devise in the following particulars-1. A remainder may be created either by deed or will, an executory devise (a) by will only. 2. A remainder requires a particular estate to support it, and must await the regular determination of such particular estate; whereas as executory devise may be limited to commence in futuro without any preceding estate to support it, and if there be a preceding estate, may operate to the absolute determination of such interest. 3. A remainder, as such, cannot be limited after a fee simple, but an executory devise may: (see Fearn. Cont. Rem. 10, 14, 225, 504, &c., and notes by Butler.)

The distinction between an executory devise and a conditional limitation is slight a conditional limitation, as such, arises under the Statute of Uses, and in a deed is also known as a shifting use, and operates to abridge or determine a preceding estate on breach or non-performance of a condition annexed thereto. Such a limitation in a will would be designated as an executory devise. But it is not necessary that an executory devise should be limited after a prior estate on condition: (Fearn. Cont. Rem. 17, 272, 504.)

Q.-Distinguish a condition subsequent from a conditional limitation. A.-"A condition subsequent " on its breach avoids the previous estate, but at common law entry was necessary by the grantor or his heirs to avoid it; but this is not necessary in the case of "a conditional limitation" where the preceding estate determines on the happening of

the event.

Q.-State the rule in Shelley's case.

A.-Whenever an estate of freehold is given, and by the same conveyance or will an ulterior estate (whether mediately or immediately) is limited to the heirs of the same person in fee or in tail, such ulterior estate vests in that person himself in the same manner as if it had been

(a) For a definition of an executory devise, see post, tit. "Testamentary Alienation."

expressly given to him and his heirs. The word "heirs "being a word of limitation and not of purchase: (L. C. Conv. 148; 1 St. C. 330, 8th edit.; Will. R. 255, 13th edit.) (a)

A. It is originally reported in the 1st Coke's Reports, 104 a; but it will also be found in any of the text-books on the principles of conveyancing (see them cited ante.)

Q.-If real property be limited to A. for life, remainder to B. for life, remainder to the right heirs of the body of A., with remainder to the right heirs of B., what estate do A. and B. take respectively?

A.-A. will take an estate tail, subject to B.'s life estate, and B. will take the remainder in fee, under the rule in Shelley's case.

Q.-B. granted the manor of Stoke to A. for life, with remainder to C. and the heirs of his body, with an ultimate remainder to the right heirs of A.; he also demised an adjoining farm to A. for the term of ninetynine years, limiting the reversion in like manner to C. and the heirs of his body, with an ultimate remainder to the right heirs of A. What estate or interest has A. in each case?

A. In the first case A. will take an estate in fee simple, subject to the intervening estate tail to C. and the heirs of his body. This is by the rule in Shelley's case. In the second case, as no estate of freehold is limited to A., the rule does not apply, and A. has an interest for a term of ninety-nine years only.

Q.-Is there any, and what difference between a limitation of an estate to E. F. for life, with remainder to the heirs of his body, and a limitation to G. H. for life, with remainder to his first and other sons successively and the heirs of their respective bodies?

A. Yes; in the first case E. F. takes an estate tail under the rule in Shelley's case (supra); but the second limitation being to the heirs of the bodies of his sons respectively, G. H. takes only a life estate, and his sons estates tail successively.

Q.-Explain accurately the effect of the following:-1. Grant to A. for life, remainder to B. for life, remainder to the heirs of A. 2. Grant to A. for life, remainder to the heirs male of B. 3. Grant to A. and B. (husband and wife) and C. jointly, remainder to the heirs of the body of D. remainder to the heirs of A.

A.-1. Here A., by the rule in Shelley's case, has an estate in fee simple, subject to the intervening life estate of B.

2. A. takes a life interest. B.'s heirs a remainder in fee contingent on B.'s dying in A.'s lifetime. The reversion in fee being left in the grantor.

3. D.'s heirs of his body have an estate tail contingent on D.'s death in the lifetime of the others, and subject to A., B., and C.'s life estates held now in equal shares, those of B. and C. being held in joint tenancy, and

(a) This rule is thus humorously stated in Coke's Rep. in verse:

"Shelley, whose ancestors a freehold take,
The words (his heirs) a limitation make."

that of A. in common, through the accession of interest to A. by the ultimate remainder to his heirs, which also gives A. the fee subject to the preceding estates.

By 40 & 41 Vict. c. 33, if the grants were subsequent to 2nd of August, 1877, the contingent remainders to B.'s heirs male, and to D.'s heirs of body might take effect, although B. and D. did not respectively pre-decease the tenants for life.

Q.-A. on his marriage limited a freehold estate to the use of himself for life, with remainder to the use of his first and other sons successively in tail, with remainder to the use of B. in fee. Is either and which of the above remainders vested or contingent?

A. The limitation of the remainder to the use of B. is a vested remainder. But the limitation of the remainder to the use of the sons of A. is a contingent remainder for the reasons stated ante: (Will. R. P. 255, 269, 13th edit.)

Q. Why were limitations to trustees to preserve contingent remainders formerly necessary, and why are they no longer required?

A. They were formerly necessary, because, if the particular estate had been prematurely determined by the voluntary act of the tenant for life, the contingent remainder would have been destroyed. They are no longer required, because the 8 & 9 Vict. c. 106, s. 8, enacts that a contingent remainder shall be capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold in the same manner in all respects as if such determination had not happened: (see 1 St. C. 328, 8th edit.; Will. R. P. 281, 285, 13th edit.)

Q.-In limitations in strict settlement, was the estate limited to trustees to preserve contingent remainders vested or contingent? State the reason for your answer.

A. The estate given was vested. For otherwise, if the particular estate had been prematurely determined by forfeiture, surrender, or merger, the contingent remainders would have been destroyed; because a contingent remainder of freehold requires a freehold to support it: (see Will. R. P. 285, 13th edit.) But now see 40 & 41 Vict. c. 33, note (a), ante, p. 201.

Q.-An estate is limited to A. for life, with remainder to the first and other sons of B. in tail, with remainder to C. in fee. A. dies, leaving B. and C. surviving, but B. is still unmarried; to whom does the estate devolve?

A.-The remainder to the sons of B. in tail is a contingent remainder which must vest during the continuance of the particular estate, or the moment it determines, therefore, if A. dies before the birth of a son to B., the estate will go over to C. at once. The 8 & 9 Vict. c. 106, s. 8, as above shown, provides a remedy for the premature determination of the particular estate by forfeiture, surrender, and merger, but not in case of death: (1 St. C. 330, 8th edit.; Will. R. P. 269, 281, 318, 13th edit.)

If the contingent remainder were created after 2nd August, 1877, now, by 40 & 41 Vict. c. 33, it might take effect as a shifting use or execu

tory devise, in case B. had a son born within twenty-one years of A.'s death.

Q. What was the advantage of taking a conveyance of a reversion by lease and release, instead of by grant?

A. Because it saved the expense, in future investigations of the title, of proving the existence of a particular estate at the time the reversion was conveyed as such (Watk. Con. 193, n., Cov. edit.), and obviated the consequences of the mistake if it turned out that the estate was not in fact a remainder or reversion: (2 Sm. C. Comp. 744, 4th edit.) (a)

Q. What are the requisites to produce a merger of an estate?

A. There must be a greater and less estate meeting in the same person in the same right, without any intermediate estate, which will at once cause the less estate to be merged in the greater if the latter be the more remote: (1 St. C. 313, 8th edit.; Will. R. P. 283, 13th edit.) (b)

Q.-If a tenant in tail becomes also possessed of the immediate remainder or reversion in fee, expectant on the determination of his estate tail, by failure of his own issue, will the estate tail merge in the fee? State the reasons for your answer.

A. The estate tail will not merge in the fee; for it is preserved and protected from merger by the operation and construction, though not by the express words, of the statute De Donis, 13 Edw. 1, c. 1: (Will. R. P. 283, 13th edit.; 1 St. C. 313, 8th edit.)

ESTATES IN SEVERALTY, JOINT TENANCY, TENANCY IN COMMON, AND COPARCENARY, &c.

Question.-What is an estate in severalty?

Answer. An estate held by a man in his own right only, without any other person being joined or connected with him in point of interest during his estate therein: (1 St. C. 335, 8th edit.; Will. R. P. 105, 138, 13th edit.)

Q. Who are joint tenants? and why are joint tenants so called?

A. Where an estate is acquired by two or more persons in the same land by the same title (not being a title by descent), and at the same period, and without any words importing that they are to take in distinct shares, they will take the estate as joint tenants: (1 St. C. 336, 8th edit.) Joint tenants are so distinguished, as they have a unity of possession, a unity of interest, a unity of title, and a unity of time in the commencement of their title: (Will. R. P. 135, 13th edit.)

A.-A tenancy in common is where two or more hold the same land,

(a) Previous to 8 & 9 Vict. c. 106, an estate in possession in corporeal hereditaments could not be conveyed by grant.

(b) By the 1873 Act, s. 25, sub-s. 4, there will be now no merger at law where the beneficial interest is not merged in equity.