much a conflict in statutes as a conflict in state decisions which is responsible for the uncertainty and indefiniteness of our law in regard to corporations, and in regard to such subjects as contracts in restraint of trade and monopolies. And it is the conflict in the general law— the so-called common law-not in the statutory law, which causes most of our legal difficulties. This evil at any rate can be remedied without a surrender by the states of their independent legislative powers, and it may seriously be questioned how far a greater centralization of the legislative power is to be desired.

That it is desirable for our general law, which the courts are supposed to base upon principles which are applicable alike throughout the country, to be the same in all the states, there can be no doubt. And an organization of our courts which makes it possible for such a law, based on general or common-law principles, to be declared and enforced differently in different states, cannot but be unfortunate, and tend to lower the standing of our courts and to decrease respect for the law. But to continue to leave this general law at the mercy of the independent state courts, and at the same time attempt to escape from some of our legal difficulties by surrender by the states of some of their legislative powers to the federal government, is a much more debatable suggestion. If our courts were so organized as to make legislative co-operation by the states, when desired, effective, it might be better policy to leave the responsibility for legislative changes in our law with the separate states. Legislative freedom and responsibility should, certainly in the case of most subjects not already delegated to the control of the federal government, continue to belong to the separate states. But such independent legislative power should be exercised in connection with, and subject to, a general constitutional and common law which should always be the same in all the states. It would then be in the power of the separate states, by means of legislation, to accomplish such changes in the law as were desired. Uniform legislation would no longer be futile. The possibility of securing desirable changes in the law by means of such legislation would call to the attention of legislatures their responsibilities in such matters, and there can be little doubt that such a change in conditions would tend greatly to improve the character and quality of the legislation in the different states. Such an increase in the power and responsibility of the states in matters of legislation would be a great benefit to the whole country. Each state would be expected to have a part and share in developing the law of the country, and would be required to consider carefully those matters in which it preferred to develop a policy and law of its own. There is certainly much to be said in favor of preserving to the states their independent legislative powers, provided such powers are exercised in connection with a body of courts capable of preserving a uniformity of law in all matters in which some of the states do not deliberately prefer to adopt and pursue a policy of their own.

THE LATER HISTORY OF THE RULE OF

DESTRUCTIBILITY OF CONTINGENT

REMAINDERS

ALBERT M. KALES

Chicago Bar

Contingent remainders-Defined: A contingent remainder is a legal future interest after a particular estate of freehold limited upon an event (precedent in fact and in form to its taking effect in possession) which may happen before or after, or at the time of or after, the termination of the preceding estate of freehold. This group of remainders is not described for the mere pleasure of abstruse classification but because certain important legal attributes attach to remainders of this class.1 From the time of the feudal land law to the present day they have been inalienable inter vivos while they remained contingent. Prior to 1430 they were wholly void. After that they became valid if the event upon which they were limited happened before or at the time of the termination (whenever and however that might occur) of the preceding estate of freehold. This was later translated into the rule that the contingent remainder was destroyed unless the event upon which it was limited happened before or at the time of the termination of the preceding estate of freehold. Thus the rule became the rule of destructibility of contingent remainders. Then illogically enough, after springing and shifting future interests by way of use or devise became valid and indestructible, contingent remainders still continued to be destructible by a rule of law defeating intent even when the contingent remainder was created by way of use or devise. The characteristics of inalienability and destructibility (together, no doubt, with others) have required the drawing of a line between contingent remainders-which are inalienable and destructible, and vested remainders-which are alienable and indestructible. Because shifting and springing executory interests were held to be indestructible it is also necessary to draw a line between them and contingent remainders.

The continuation of the rule of destructibility of contingent remainders after springing and shifting future interests become valid and indestructible: It became settled in Chudleigh's Case and

1

1 [The attention of the learned reader is called to further discussion of such attributes in Sweet, Contingent Remainders and Other Possibilities (1918) 27 YALE LAW JOURNAL, 977.-ED.]

2

2 (1594) I Coke 120a, Kales, Cases on Future Interests, 82.

Archer's Case,3 at the end of the sixteenth century, that the rule of destructibility would apply to contingent remainders created by way of use or devise. It was not till later that it became settled that springing and shifting uses and devises were not only valid but indestructible. When that occurred the logical incongruity in leaving contingent remainders destructible by a rule of law defeating intent, if as events turned out they would take effect as springing future interests, became apparent. Renewed efforts seem, therefore, to have been made to defeat the application of the rule of destructibility of contingent remainders. These failed presumably because the feudal rule of destructibility had become established and acted upon. The announcement that contingent remainders would still be destructible in spite of the fact that springing and shifting uses and devises were valid and indestructible was made by declaring in substance that if a future interest after a particular estate of freehold could by possibility take effect as a remainder it must do so or fail entirely. It could not take effect as a springing or shifting future interest. Lord Hale in Purefoy v. Rogers said:

5

"Where a contingency is limited to depend on an estate of freehold which is capable of supporting a remainder, it shall never be construed to be an executory devise, but a contingent remainder only and not otherwise."

Lord Northington in Carwardine v. Carwardine3 said:

"It is a certain principle of law, that wherever such a construction can be put upon a limitation as that it may take effect by way of remainder, it shall never take place as a springing use or executory devise."

Lord Ellenborough in Doe v. Roach said:

it is a rule of law that no limitation shall operate by way of executory devise, which, at the time of the testator's death, was capable of operating by way of contingent remainder."

3

Lord St. Leonards in Cole v. Sewell said:

* (1599) 1 Coke 66b, Kales, Cases on Future Interests, 98.

'Pells v. Brown (1620, K. B.) Cro. Jac. 590, Kales, Cases, 65; Gray, Rule Against Perpetuities, sec. 159; Snow v. Cutler (1664, K. B.) 1 Lev. 135; Gray, op. cit. sec. 165.

*Weale v. Lower (1672, K. B.) Poll. 65; Southcot v. Stowell (1678, C. B.) I Mod. 226, 237, 2 Mod. 207; Sugden, Powers (8th ed.) 33-34.

'Weale v. Lower, Southcot v. Stowell, supra; Carwardine v. Carwardine (1757-8, Eng. Ch.) 1 Eden, 27, 34; Sugden, Powers (8th ed.) 34-37.

(1681, K. B.) 2 Wms. Saund. 380, 388; Kales, Cases, 101.

(1757-8, Eng. Ch.) 1 Eden, 27, 34.

(1816, K. B.) 5 M. & S. 482, 491, 492.

(1843, Eng. Ch.) 4 D. & War. 1, 27.

"Now, if there be one rule of law more sacred than another, it is this, that no limitation shall be construed to be an executory or shifting use, which can by possibility take effect by way of remainder."

9911

The same idea as that contained in the above quoted passages was expressed in the rule that you could not by events happening after the interests were created turn a contingent remainder into a springing executory interest. This in effect forbade any attempt to split by operation of law the contingencies upon which the contingent remainder was limited. You could not say that the happening of the contingency before or at the time of the termination of the preceding estate of freehold was one event, and that the same event happening afterwards was another, and that the two were split by operation of law because if the event happened before or at the time of the termination of the preceding estate of freehold the future interest became a vested remainder, while if it happened afterwards it took effect as a springing executory interest.

Application of the rule of destructibility in the modern cases-where the remainder is limited to an individual: Where the future interest after the particular estate of freehold was limited to an individual on an event which might happen before or at the time of or after the termination of the preceding estate of freehold, the event must happen before or at the time of the termination of the preceding estate or fail entirely. The common instance of this is where the limitations are to A for life and then to the first son of A who reaches twenty-one. Here the expressed intent is that the son of A who first reached twenty-one, either before or after the termination of A's life estate, is to take.12 Nevertheless, if A dies before any son reaches twenty-one the entire remainder fails.18 Nor would the result be any different if the testator said that the rule of destructibility was not to apply. In White v. Summers1 it was held that where the remainder was limited to the eldest son of A "who shall first attain or have attained the age of twenty-one years," the testator meant to include the eldest son no matter when he reached twenty-one, whether before or after the termination of the life estate. Nevertheless the contingent remainder was destroyed. It is submitted that even if the limitations were to A for life and then to the eldest son of A who "either before or after A's death" shall have attained twenty-one, the case is not in the least altered. The meaning expressed is the same. The remainder is still limited "Many other expressions to the same effect can be found. See Gray, op. cit. (3d ed.) secs. 920, 921.

12 White v. Summers [1908] 2 Ch. 256, Kales, Cases, 134.

18 White v. Summers, supra. If In re Wrightson (C. A.) [1904] 2 Ch. 95, is contra, it must be regarded as wrong or as repudiating the entire rule of destructibility of contingent remainders. For explanation of this case see White v. Summers, supra; Gray, op. cit. sec. 926; Kales, Future Interests, sec. 91.

to the same person and upon the same event precisely as it was before. There are not two gifts on separable contingencies. There is one gift in remainder on one event with a precautionary phrase declaring that it is no part of the event upon which the eldest son is to take that he shall reach twenty-one before the termination of the life estate. The future interest as limited may take effect as a remainder. The rule requires that it do so or fail.

Again, take the common case where the limitations are to A for life and then to B if he survive A. This means that B is to take whenever he survives A, either at the termination of A's life estate or after the premature termination of A's life estate, by forfeiture or merger. Yet B's remainder fails if the life estate terminates prematurely during A's life.15 Can it then make any difference that the remainder is limited "to B if he survive A, whether such survivorship occur at the time of or after the termination of A's life estate"? The expressed intent is the same as it was before. The additional words used merely emphasize the fact that B is to take no matter when the survivorship occurs with reference to the termination of the preceding life estate. This makes more plain, but it adds nothing to, what was said before. The character of the remainder is the same. It should be held destructible.

Suppose the remainder be limited to a class and when the life estate terminates no member of the class has attained a vested interest: Suppose, for instance, the limitations be to A for life, remainder to such children of A and B as survive A and B. It is conceded that this means that the children who survive A and B no matter when that occurs whether at the time of or after the termination of A's life estate are to take.16 Yet, if at A's death B is still living so that no children have survived B, the remainder to the entire class of children fails by reason of the rule of destructibility.17

Dunwoodie v. Reed (1817, Pa.) 3 Serg. & R. 434. The same result occurred where the remainder was limited to an individual on a collateral contingency other than survivorship. Lyle v. Richardson (1823, Pa.) 9 Serg. & R. 322; Waddell v. Rattew (1835, Pa.) 5 Rawle, 231.

1 Cunlyffe v. Brancker (1876) 3 Ch. Div. 933. Here Jessel, M. R., speaking of just such a future interest, says: It is impossible that the will should take effect not "through any defect of expression of intention, but through the fault of the rule of law."

"Cunlyffe v. Brancker, supra.

So where the remainder is to a class who to take must survive the life tenant, and the life estate terminates prematurely by forfeiture or merger, none have survived the life tenant and therefore the remainder to all is destroyed: Redfern v. Middleton (1839, S. C.) Rice L. 459; Faber v. Police (1877) 10 S. C. (10 Rich.) 376; McElwee v. Wheeler (1877) 10 S. C. (10 Rich.) 392; Abbott v. Jenkins (1823, Pa.) 10 Serg. & R. 296; Stump v. Findlay (1828, Pa.) 2 Rawle, 168; Beiding v. Parsons (1913) 258 Ill. 422, 101 N. E. 570; Barr v. Gardner (1913) 259 Ill. 256, 102 N. E. 287; Messer v. Baldwin (1914) 262 Ill. 48, 104 N. E. 195; Smith v. Chester (1916) 272 Ill. 428, 112 N. E. 325; Blakeley v.