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tent ourselves for the present with noticing the fact of their existence, and reserve the consideration of them for the next chapter.
We have already spoken generally of the aliena- Alienation of tion of remainders, but must add a few words on this coupled with possibility point, with reference to contingent remainders. Such an interest. of these as are contingent on the birth of some unborn person are evidently inalienable. But one which depends upon the happening of a future event (as, to repeat a former example, an estate given to A for life, and if B survives him, then to B in fee), and which is sometimes spoken of as possibility coupled with an interest, is in a different position. In early times, indeed, it could not be disposed of either by deed or by will. Afterwards, however, it became disposable by will,2 and now it has been enacted by the Real Property Amendment Act 3 that a possibility Real Property coupled with an interest, in any tenements or heredita- Act. ments, of any tenure, whether the limitation of such interest or possibility be or be not ascertained, may
be disposed of by deed. And the Wills Act pro- Wills Act. vides that the power of disposition by will shall extend to all contingent interests in any real, or personal, estate, whether the testator may, or may not, be ascertained as the person, or one of the persons, in whom the same may become vested, and whether he may be entitled thereto under the instrument by which the same respectively were created, or under any dispositions thereof by deed or will.
The fact that a contingent remainder is destroyed Destruction if not capable of vesting at the moment when the
1 Bishop v. Fountaine, 3 Lev. 427.
2 Roe v. Jones, 1 H. Bl. 30.
88 & 9 Vict. c. 106, § 6.
4 7 Wm. IV. & 1 Vict. c. 26, § 3.
of contingent remainders.
Trustees to preserve contingent remainders.
particular estate comes to an end, made it necessary · formerly to take special precautions with reference. to this point. For the particular estate might be destroyed by some act of the tenant; as if he did any thing which caused it to be forfeited, or if he surrendered it to the owner of the reversion, or obtained a release of the reversion to himself, by both of which means the particular estate was merged in the reversion.
In the case, then, of an estate being limited to A, a bachelor, for life, with remainder to his issue in tail, with remainder to B in fee-simple; here A at any time before he had issue might, by any of the above-mentioned ways, put an end to his own estate, and, as a consequence, to that of his issue. It was necessary therefore to interpose another estate between those of A and of his issue, and this was done by giving to trustees, " upon trust to preserve contingent remainders," an estate which was to take effect if A's estate came to an end during his lifetime, and, in that case, to endure so long as A lived. By this means the contingent remainder was protected against any thing which A could do, and as to the trustees the Court of Chancery would interfere to prohibit them from doing any thing which would amount to a breach of their trust.1
But limitations to trustees, in order to preserve contingent remainders, have now been rendered unnecessary by the Real Property Amendment Act,2 which enacts, that a contingent remainder, existing at any time after the 31st of December, 1834, shall be, and if created before the passing of the act shall be
1 See Moody v. Walters, 16 Ves. 283; Biscoe v. Perkins, 1 Ves. & B. 485.
deemed to have been, 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. It must be remembered, however, that a contingent remainder still remains liable to destruction if not ready to take effect when the particular estate comes to a natural determination.
OF AN EXECUTORY INTEREST.
EXECUTORY interests, the explanation of which will interests a be attempted in this chapter, came into existence of the Statute as a consequence of the passing of the Statute of Uses. They may be created by deed or by will. If by deed they can only take effect by virtue of the statute, but if by will they may, or may not, be limited so to take effect by way of use.2 We will begin with the consideration of those executory interests which are created under the statute.
May take effect under the statute or by will.
Executory in- It has been already shown how limitations of legal terests under the Statute of estates, by way of remainder, are subject to various restrictive rules, amongst which we may specially mention that which forbids the limitation of any estate after a fee-simple, and that which compels every remainder to await the determination of its particular estate, before it can take effect. Prior to the passing of the Statute of Uses, uses, being subject to the rules of equity only, might be limited in ways not Conditional permissible in the case of legal estates. Thus, if land were given to A and his heirs, to hold to the use of B and his heirs until the happening of some future and uncertain event, and then to the use of C and his heirs; the Court of Chancery would compel A, on the
limitations before the statute.
1 27 Hen. VIII. c. 10.
2 Gilb. Uses, 356 n.
happening of that event, to hold the land to the use of C and his heirs. But it is plain that this "conditional limitation was one which, if made of a legal estate, would have been invalid as being obnoxious to the rules to which we have just referred.
use after the
After the Statute of Uses was passed, uses con- Limitations ferred legal, as well as equitable estates; limitations by way of of them became, therefore, subject to the jurisdic- statute. tion of law. But, nevertheless, they were still allowed to retain, in a great measure, the freedom which they had acquired when mere creatures of equity. For now, if land were limited by its owner to the use of himself and his heirs until the happening of some future event, and then to other uses, this would be perfectly good,3 although it would be a limitation of an estate after a fee-simple. And an estate may also be well limited by means of uses, although it is to take effect by destroying a preceding estate, and is thus opposed to the rule governing remainders, which requires a subsequent estate to await the natural determination of that which precedes it. Thus, a limitation would be valid by which an estate was given to A, to hold to the use of B until C pays a sum of money, or until B acquires some other property;5 with a proviso that on the happening of either of these events the estate is to be held to the use of C. It may be noticed that it is the power of limiting an estate after a fee-simple that enables a land-owner, about to be married, to effect a settlement for the benefit of himself alone until marriage, and then for that of himself, his wife, and children.
1 Fearne, C. R 384 n.
8 Woodliff v. Drury, Cro. Eliz. 439.
4 Lloyd v. Carew, Prec. Ch. 72.
2 27 Hen. VIII. c. 10.
5 Nicolls v. Sheffield, 2 Bro. C. C. 214; Carr v. Erroll, 6 East, 58.