contingent event, if the same contingency be not considered as extending to the subsequent limitations, such of those limitations as are to persons in esse may be vested; as in the case of Napper v. Sanders, Hutt. 119; where, upon a feoffment made by A. to the use of himself for life, and after to the use of the feoffees for eighty years, if B. and C. his wife should so long live; and if C. survived B. her husband, then to the use of her for life; and after her decease to the use of D. in tail, remainder over; though it was agreed, that C.'s estate for life was contingent, on the event of her surviving husband, yet it was held, that the subsequent remainders were vested. Et vid. Tracey v. Lethulier, 3 Atk. 774. Ambl. 204. Whitfield v. Bewit, 2 P. Wms. 240. So a subsequent contingent remainder may become vested in interest before a preIceding one, which will be no obstruction to its so vesting. Uvedale v. Uvedale, 2 Roll. Abr. 111. But where there is a contingent limitation in fee absolute, no estate limited afterwards can be vested. Loddington v. Kime, 1 Salk. 224. Ld. Raym. 208. Doe v. Holmes, 3 Wils.237, 241. 2 Bla. 777. Goodright v. Dunham, Dougl. 251. Doe v. Perryn, 3 T. R. 484. It seems, however, that a contingent interminable fee, devised in trust for some special purposes only, will not prevent a subsequent limitation to one in esse from being vested. See Tracey v. Lethulier, supra. Fearn. Cont. Rem. 342. vid. n. (a), 6th edit. p. 226. And where estates are subject to a power of appointment in the first taker, with remainders

Sed

over in default of such appointment, such a powe. does not suspend the effect of the subsequent limitations, and keep them in contingency.

Fearn.

Cont. Rem. 343, 344. Et vid. acc. Maundrell v. Maundrell, 7 Ves. 567. 10 Ves. 246. Sugd. Pow. 141. It is further to be observed, that although a fee cannot, in conveyance at common law, be mounted on a fee, yet two or more several contingent fees may be limited, merely as substitutes or alternatives, one for the other, and not to interfere; but so that one only can take effect, and every subsequent limitation be a disposition substituted in the room of the former, if the former should fail of effect, Loddington v. Kyme, 1 Ld. Raym. 203. Barnardiston v. Carter, 3 Bro. P.C. 64. Doe v. Holme, 2 Bla. 777. Fearn. Cont. Rem. 547, 550; as where a will was made in these words: "I give my messuage, &c. to my son J. S. for his life, and after his death unto all and every his children equally, and to their heirs; and in case he dies without issue, I give the said premises unto my two daughters and their heirs, equally to be divided between them;" it was determined, that both the devisees were contingent remainders in fee. Goodright v. Dunham, Dougl. 265. Et vid. Doe v. Perryn, 3 T. R. 484. Ives v. Legge, cited 3 T. R. 488. Crump, d. Woolley v. Norwood, 2 Marsh. 161. Such limitations are sometimes called limitations on a contingency with a double aspect; sometimes limitations on a double contingency; and sometimes concurrent or contemporary limitations; as to which denominations see Mr. Douglas's

note (2) Doe v. Fonnereau, Dougl. 504. But in all cases where the first contingent remainder is in fee, or where there are concurrent remainders, if the first remainder becomes vested, all the subsequent remainders are void: for then they become remainders expectant on the determination of an estate in fee-simple. 2 Cru. Dig. 286. Keene v. Dickson, 3 T. R. 495.

As to the cases wherein a contingency annexed to a preceding estate is, or is not, considered as a condition precedent to give effect to the ulterior limitations, such cases may be distinguished into three classes. 1st. Limitations, after a preceding estate, which is made to depend on a contingency that never takes effect. 2dly. Limitations over upon a conditional contingent determination of a preceding estate, where such preceding estate never takes effect at all. 3dly. Limitations over upon the determination of a preced ing estate by a contingency, which, though such preceding estate takes effect, never happens. Fearn. Cont. Rem. 355. 1st. The cases of Napper v. Sanders, and Tracey v. Lethuher, above mentioned, appear to fall under the first class; in which cases, we have seen, the contingency affected only that estate, to which it was first annexed, without extending to the ulterior limitations. Et vid. Bradford v. Foley, Dougl. 63. Horton v. Whitaker, 1 T. R. 346. The construction in these cases, as to the restriction of the contingency, to the estate first hinged upon it, appears to depend on the testator's apparent intention, not to extend it further. For, wherever there is no

apparent distinction in view in this respect, between such estate, and those which follow it, the contingency, it seems, will equally affect the whole ulterior train of limitations. Davis v. Norton, 2 P. Wms. 390. Doe v. Sheppard, Dougl. 75. Fearn. Cont. Rem. 358. 2d. As an instance of that class, where subsequent estates were limited, on a conditional determination of a preceding estate, and such preceding estate never took effect at all; we may refer to the case of a devise to trustees for eleven years, remainder to the first and other sons of B. successively in tailmale, provided they should take the testator's sirname; and, in case they or their heirs should refuse to take the testator's sirname, or die without issue, remainder to the first son of C., remainder over. B. died without having had any son, C. had a son at the time of the devise. The court did not agree as to the validity of the devise to the first son of B., being after a term of years, without any preceding freehold to support it; but resolved that the subsequent limitation to the first son of C., who was then in esse, and capable, took effect; and that the preceding limitation to the first son of B., or the condition thereto annexed, did not operate as a precedent condition which must happen, to give effect to the subsequent limitation to the son of C., but was only a precedent estate attended with such limitation. Scatterwood v. Edge, 1 Salk. 229. Of the same opinion was Lord Hardwicke, in the case of Avelyn v. Ward, 1 Ves. 422; who said he knew of no case of a remainder or conditional limita

tion over, of a real estate, whether by way of a particular estate, so as to leave a proper remainder, or to defeat an absolute fee before limited by conditional limitation, but if the precedent limitation, by what means soever, be out of the case, the subsequent limitation should take place. Fearn. Cont. Rem. 361. 3d. As to cases of the third class, it may be observed, that although where a remainder is limited to take effect on a condition annexed to a preceding estate, and that preceding estate fails, it appears, that the remainder shall nevertheless take place; yet, where such preceding particular estate takes place, and the condition is not performed, the remainder, it has been held, will not take effect at the expiration of such preceding estate, unless in those cases where the apparent general intention of the testator calls for it. Fearn.Cont. Rem. 362. It sometimes happens, that a remainder is limited in words which seem to import a contingency, though in fact they mean no more than would have been implied without them; or do not amount to a condition precedent, but only denote the time when the remainder is to vest in possession. Thus, where there was a devise of land to A. and B. for eight years, and after the said term to remain to the testator's executors, till such time as H. should accomplish his age of twenty-one years; and when the said H. should come to his full age of twentyone years, then the testator willed that H. should enjoy the lands to him and his heirs forever. H. died under twentyone; and it was contended that

the remainder did not vest in H., because he did not live to attain the age of twenty-one years; for that, as he was not to have it until his age of twentyone, it was contingent on that event, it being uncertain whether he ever would attain that age. But it was held, that the case was nothing else in effect, than a devise to the executors till H. attained the age of twenty-one years, remainder to H. in fee; and that the adverbs of time, when, &c. and then, &c. do not make anything necessary to precede the settling of the remainder, any more than in the common case of a lease for life or years, and after the decease of the lessee or the term ended, remainder to another, in which cases the remainder vests presently. And that these adverbs expressed the time when the remainder to H. should take effect in possession, and not when it should become vested. Boraston's

case, 3 Rep. 19. Fearn. Cont. Rem. 367, 8. Et vid. 1 P.Wms. 170. Holcroft's case, Moor, 487. Webb v. Herring, Cro. Jac. 416. King v. Rumball, Cro. Jac. 448. Chadock v. Cowley, Cro. Jac. 695. Fortescue v. Abbott, Pollexf. 479. T. Jo. 79. Anon. 2 Ventr. 365. Goodtitle v. Whitby, 1 Burr. 228. Doe v. Lea, 3 T. R. 41. And see the late case of Doe, d. Hunt v. Moore, in which it was held, that, under a devise of real estate in fee to J. M. when he attains the age of twenty-one but in case he dies before twenty-one, then to his brother, when he attains twenty-one; with like remainders over; J. M. the devisee took an immediate vested interest, liable to be divested upon his dying under

twenty-one. 14 East, 601. (Ed.)

(F) Here we shall offer some remarks, 1st. With respect to the nature of the event upon which a contingent remainder may be limited. 2d. As to the estate necessary to support a contingent remainder. The doctrine with respect to the time when & contingent remainder must vest, will be explained in a subsequent part of this chapter. 1st. With respect to the nature of the contingency upon which a remainder may be limited:It is to be observed, 1st. That it must be a legal act, "for the law (says Lord Coke, 2 Rep. 51 b.) will never adjudge a grant good by reason of a possibility or expectation of a thing which is against law; for it is potentia remotissima et vana, which by intendment of law nunquam venit in actum." 2d. It must be potentia propinqua; as death, or death without issue, or coverture. Hence it has been determined, that a remainder to a corporation, which is not in being at the time of the limitation, is void, although it be erected afterwards, during the particular estate. 2 Rep. 51 a. So, although a lease for life, remainder to the right heirs of J. S. is good; yet, if there be no such person as J. S. at the time of the limitation of the remainder, notwithstanding such a person should afterwards be born, and die during the life of the tenant for life, his heir shall not take by virtue of such limitation; because the possibility on which the remainder is to take effect is too remote; for it amounts to the concurrence of two several contingencies, viz. 1st. That such a person as J. S. should be born, which is very uncertain; and 2dly. That he should also

3d. It

die during the particular estate, which is another uncertainty grafted upon the former. This is called a possibility upon a possibility, which Lord Coke observes, is never admitted by intendment of law. Ant. 25 b. vol. 1. p. 541; 184a vol. 1, p. 743. Cholmley's case, 2 Co. 51 b. Upon the same ground arises the distinction between a remainder limited by a general description, as to the right heirs of J. D., who is alive, or primogenito filio of B., who has no son then born, which is good; and one limited by a particular name to a person not in esse, which is void. Fearn. Cont. Rem. 375, 378. must not be repugnant to any rule of law. 6 Rep. 40 b. 4 Burr. 1941. 4th. Nor contrariant in itself. Jermin v. Arscot, 1 Rep. 85 a. Cholmley v. Humble, 1 Rep. 86 a. Corbet's case, 1 Rep. 83 b. Mildmay's case, 6 Rep. 40. Foy v. Hinde, Cro. Jac. 697. 5th. That it must not operate so as to abridge, defeat, or determine the particular estate. Plowd. 29 b. 2 Leon. 16. Plowd. 24. Sayer v. Hardy Cro. Eliz. 414. This rule not only flows, of necessity, from the nature of a remainder, as exhibited in the above definition of it by Lord Coke, but also follows, as the consequence of a maxim at common law, that none shall take advantage of a condition, but the party from whom the condition moves (i. e. the grantor) and his heirs; for, if he or his heirs take advantage of a condition, by entry or claim, the livery made upon the creation of the estates is defeated; and, of course, every estate then created is thereby annulled and gone. But the remainder ought to vest at the instant of the expiration of the preceding estate, and remain

not in esse.

ders are defeated by the entry of the grantor, therefore such remainder is void. It follows, that a remainder properly so called, cannot be limited to take effect upon a condition, which is to defeat the particular estate, whether such condition be repugnant to the nature of the estate to which it is annexed, or not. Fearn. Cent. Rem. 391. And the same law holds with regard to a subsequent remainder, limited to take effect on a condition, which is to defeat a preceding remainder. Cogan v. Cogan, Cro. Eliz. 360. Where, however, land is leased to one for life, and, if such a thing happen, then to remain to B., this shall not be understood as intended to vest in possession, immediately upon the happening of the condition, and in abridgment of the preceding estate; for then, by the last mentioned rule, the remainder would be void; but it shall be construed to vest in interest upon the happening of the condition, and to remain as a remainder ought to do; that is, so as to await the determination of the preceding estate, before it comes into possession. Colthirst v. Bejushin, Plowd. 23. Fearn. Cont. Rem. 393. It may also happen, that notwithstanding a contingent limitation is expressed to commence from a period eventually anterior to the determination of the particular estate, yet the nature of the case may be such, as not to admit of its taking effect in possession in restraint, abridgment, or exclusion of the particular estate; as if such limitation over were to the grantee or devisee of the particular estate; which, instead

of operating in any degree to defeat, exclude, or curtail the particular estate, would in effect remove its limits, and open it into a greater estate. Thus, in the case of a lease to two, with a limitation over, after the death of the first of them, to the survivor, this does not avoid, defeat, or abridge the estate of the survivor, but embraces it under the afflux of a greater, into which it will run under the technical term of merging, instead of being rescinded or nullified. The grantor or his heir can have no title to enter and defeat the particular estate, because there is no condition or proviso to make it cease, or carry the estate either expressly or implicatively to any body, from the devisee of the particular estate. Nor can the limitation operate to the prejudice of another, viz. the person otherwise entitled to the particular estate; because it is to that very person himself, and the effect would have been precisely the same, if the limitation had been, and from and after the determination of the estate aforesaid, then to the survivor in fee. Nothing, therefore, will, in such case, prevent the limitation over from operating strictly, as a remainder at common law. Goodtitle v. Billington, Dougl. 725. Fearn. Cont. Rem. 397, 8. It is further to be observed, that although no remainder can be limited on a condition; yet, it has been long settled, that, where in a devise a condition is annexed to a preceding estate, and upon the breach or nonperformance thereof, the estate is devised over to another, the condition shall operate as a