The leading case on this point is the case known as Archer's Case." The decision in which case was as follows: limitation, circumscribing the measure and continuance of the first estate; and that upon the breach or performance of it, as the case may be, the first estate shall ipso facto determine and expire, without entry or claim; and the limitation over shall thereupon actually commence in possession; and the person claiming under it, whether heir or stranger, shall have an immediate right to the estate. Thus is the testator's intention effectuated, by substantiating the subsequent estate, though limited to stranger; and enforcing the performance of the condition, by the determination of the preceding estate upon the breach of it, notwithstanding that preceding estate be limited to the heir himself: and limitations of this kind are properly called conditional limitations. Fearn. Cont. Rem. 405-9. Thus, where a person devised lands to his mother for life, and after her death to his brother in fee; provided that if his wife (being then enseint) be delivered of a son, that then the land should remain to him in fee; after the testator's death, a son was born; and it was held, that the fee of the brother should cease, and vest in the son upon the happening of the contingency. Dyer, 127 n. Id. 33 n. Cro. Jac. 592. Palm. 135. So, where A. devised lands to his wife for life, and after her death to his grandchild B. and the heirs of her body; provided always, and upon condition that she married with the consent of D., E., and F., or the major part of them, and in case she should marry without such consent, or die without issue, then he devised the premises to C. (neither B. nor C. being heir at law to the • Reported I Coke, 66 B., 159-7. testator). After the testator's death B. married without the consent of any of the persons named for that purpose; and it was clearly held to be an estate to B. till she married without such consent; that here was an estate-tail devised to B. subject to two limitations, the one in law, viz. dying without issue, the other express, and in fact, viz. marrying without consent; which was properly a conditional limitation, and not a condition; for, if it were a condition, it would descend to the heir at law, and he might enter for breach of it, and defeat the limitation over; and it was therefore agreed, that the marriage without consent determined her estate-tail, and cast the possession immediately on C. Lady Ann Fry's case, 1 Ventr. 199. Et vid. Shuttleworth v. Barber, 2 Mod. 7. But where there is no express limitations over to take effect upon the breach or performance of the condition, annexed to the preceding estate; there, it seems, the condition or proviso is not always construed as a conditional limitation. Gulliver v. Ashhy, Fearn. Ex. Dev. 60. Limitations of this nature may also take effect by way of use; for a use may be limited to cease as to one person upon a future event, and to vest in another Fearn. Cont. Rem. 412. With respect to those cases where particular estate is limited, with a condition, that after the performance of a certain act, or the happening of a certain event, the person to whom the first estate is limited, shall have a larger estate, see the last chapter, ante, p. 18, n. (1). 2d. As to the estate necessary to support a contingent remainder:-Though in the case of a vested remainder it is sufficient, "Between Baldwin and Smith, in the Common Pleas, which began Trin. 39, Eliz. rot., 1676, in a replevin, upon a special verdict, the case was such; Francis Archer was seized of land in fee, and held it in socage, 1 if the particular estate be for years (for a lease at will is of too slender and precarious a nature to support a remainder over. 8 Rep. 75.), it is a general rule, that wherever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it. Fearn. Cont. Rem. 423. Thus, if land be granted to A. for ten years, with remainder in fee to the right heirs of B., this remainder is void: but if granted to A. for life, with a like remainder, it is good. Rep. 130. For unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void; it cannot pass out of him without vesting somewhere; and in the case of a contingent remainder, it must vest in the particular tenant, else it can vest nowhere: unless, therefore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him; and consequently the remainder is void. 2 Bl. Čom. 171. Fearn. Cont. Rem. 423, 24, 25. 3 Rep. 20. But a contingent remainder for years does not require a preceding freehold to support it; for the remainder not being freehold, no such estate appears requisite to pass out of the grantor, in order to give due effect to a remainder of that sort. Fearn. Cont. Rem. 429, 43. Although every contingent freehold remainder must be supported by a preceding freehold, yet it is not necessary that such preceding estate continue in the actual seisin of its rightful tenant; it is sufficient, if there subsists a right to such preceding estate, at the time the remainder should vest; provided such right be a right of entry, and not a right of action only; for, whilst a right of entry remains, there can be no doubt that the same estate continues; since the right of entry can exist only in consequence of the subsistence of the estate; but when the right of entry is gone, and nothing but a right of action remains, it then becomes a question of law, whether the same estate continues or not; for the action is nothing more than the means of deciding the question. Another estate is, in the mean time, acknowledged and protected by the law, till such question be solemnly determined in a court of justice, upon the action brought. Fearn, Cont. Rem. 430, 431. Therefore, if A. be tenant for life, with a contingent remainder over, and tenant for life be disseised, all the estates are divested; but the right of entry of the tenant for life will support the contingent remainders; but in this case if the contingent remainder does not vest, before such a descent be cast as will take away the entry of tenant for life within the stat. 32 H. 8. c. 33, and drive him to his action, then is the contingent remainder gone; because there no longer subsists any right of entry to support it, that right being turned into a right of action. Thomson v. Leach, 12 Mod. 174. And for the same reason, where a contingent remainder is limited after an estate-tail, and the tenant in tail creates a discontinuance, the contingent remainder will be destroyed. 1 Rep. 135 b. This right of entry, however, to support a contingent remainder must be a present right; a fu and by his will in writing devised the land to Robert Archer the father, for his life, and afterwards to the next heir male of Robert, and to the heirs male of the body of next such heir male: Robert had issue, John, Francis died, Robert enfeoffed Kent with warranty upon whom John entered, and Kent re-entered, and afterwards Robert died, etc. At first, it was agreed by Anderson, Walmsley et totum cur', that Robert had but an estate for life because Robert had an express estate for life devised to him, and the remainder is limited to the next male heir of Robert in the singular number; and the right heir male of Robert cannot enter for the forfeiture in the life of Robert, for he cannot be heir as long as Robert lives. Secondly, that the remainder to the right heir male of Robert is good, although he cannot have a right heir during his life; but it is sufficient that the remainder vests eo instanti, that the particular estate determines. And so it is agreed in 7 Hen. 4, 6b, and Cranner's Case 14 Eliz., ture one will not do: it must also precede the contingency, and be actually existing when that happens; for if it only commences at the same instant with it, the remainder, it seems, will not vest. Fearn. Cont. Rem. 433. And where the estates are limited by way of use, and are afterwards divested and turned to a right, it has been held that there must be an actual entry, in order to revert the estates. Fearn. Cont. Rem. 435. In regard to the estate requisite to support a contingent remainder, it is further to be observed, that the estate supporting, and the remainder supported, should both be created by one and the same deed or instrument: therefore an estate for life given by one deed, will not support a remainder given by another; nor an estate for life settled by A. on B. by deed, enure to support a contingent remainder given by the will of A. Fearn. Cont. Rem. 446, 447. Et vid. Snow v. Cutler, Raym. 162. Moor v. Parker, 4 Mod. 316. Weale v. Lower, Pollexf. 66. Doe v. Fonnereau, Dougl. 486. It seems, however, that where the legal estate is in trustees, there is no necessity for any preceding particular estate of freehold, to support contingent remainders; for the legal estate in the general trustees will be sufficient for the purpose; and consequently, in such cases, it is not necessary, that a contingent remainder should vest by the time the preceding trust limitation expires. Fearn. Cont. Rem. 449, 450. Et vid. Chapman v. Blissett, Cas. Temp. Talb. 145. Hopkins v. Hopkins Forrest. 44. 1 Ves. 268. 1 Atk. 581.-Note to Thomas' Edition of Coke's Institutes. Dyer, 309a. Thirdly, (which was the principal point of the case), it was agree per totam cur', that by the feoffment of the tenant for life, the remainder was destroyed; for every contingent remainder ought to vest, either during the particular estate, or at least eo instanti, that it determines; for if the particular estate, be ended, or determined in fact, or in law, before the contingency falls, the remainder is void. And in this case, inasmuch as by the feoffment of Robert, his estate for life was determined by a condition in law annexed to it, and cannot be revived afterwards by any possibility; for this reason the contingent remainder is destroyed, against the opinion of Gascoigne, in 7 Hen. 4, 23b. But if the tenant for life has been disseised, and died, yet the remainder is good, for there the particular estate doth remain in right, and might have been vested, as it is said in 32 Hen. 6. But it is otherwise in the case at bar, for by his feoffment no right of the particular estate doth remain. And it was said it was so agreed by Popham, Chief Justice, and divers justices in the argument of the case between Dillon and Friene, and denied by none. See II. R. 2. tit, Detinue, 46. And note the judgment of the book, and the reason thereof, which case there adjudged is a stronger case than the case at the bar. But note, reader, that after the feoffment, the estate for life to some purpose had continuance, for all leases, charges, etc., made by the tenant for life shall stand during his life, but the estate is supposed to continue as to those only who claim by the tenant before the forfeiture, but as to all others who do not claim by the tenant for life himself, the particular estate is determined; and by the better opinion, the warranty shall bind the remainder, although the warranty was created before the remainder attached or vested, and although the remainder was in the consideration of the law, and he who shall be bound by it, never could have avoided it by entry, or otherwise; yet forasmuch as the remainder did commence, and had its being by force of the devise, which was before the warranty, for this reason it shall bind the remainder; but the same was not unanimously agreed; and as the feoffment of the tenant for life shall destroy the remainder, which was in consideration of law, so, et a fortiori, the warranty of his ancestor, (by whom he is intended to be advanced) shall bind him. And in many cases one shall be bound, and barred of his right by a warranty, who could never have defeated it by any means, as in Edw. 44, 3, 30, and 44 Ass. p. 35. Lessee for life is disseised, to whom a collateral ancestor of the lessor releaseth, and dieth, he shall be barred. Vide, 3 Hen., 7, 9a, and 33 Hen. 8, Br. Guarantee, 84, a feme covert, who cannot enter nor avoid the warranty, shall be barred. So if the tenant for life, the remainder to the right heirs of J. S. had been disseised, and the disseisor had levied a fine at the common law, the right heir of J. S. shall be bound, and yet he could not enter nor make claim. But the point adjudged was, that by the feoffment of the tenant for life, the remainder was destroyed." |