such determination had not happened.' If the expression contingent remainder' includes remainders which are subject to a condition precedent which must happen according to the express intent of the settlor before or at the time of the termination of the preceding estate, then this Act will defeat the settlor's express intent by making such remainders indestructible where the event upon which they are limited fails to happen before the preceding estate terminates by forfeiture, surrender, or merger.' That, of course, is a reductio ad absurdum in the construction of the statute. 'Contingent remainder,' as used in the Act, obviously includes only those remainders which are, by the express intent of the settlor, limited to take effect in possession upon an event which may happen either at the time of or after the termination of the preceding interest. To those interests only have the Real Property Commissioners applied the term 'contingent remainders.'

D. I find it hard to answer you, but if you are right concerning the use of vested,' then, where the limitations are to A for life, remainder to the unborn son of B, provided he is born before the termination, whenever and in whatever manner, of A's life estate, B's son who is unborn will take a vested remainder. This is too much of a strain upon usage. Vested remainder,' as the words have been used, is too much opposed to the remainder limited to an unborn person to allow of any such application. The point is not susceptible to reason. It is an arbitrary matter of usage. Challis, Butler, and the Real Property Commissioners would never have said that the remainder to the unborn son of B in the case put was a vested remainder.

S. Then you absolutely refuse to concede that vested remainders are equivalent to remainders indestructible by a rule of law defeating intent, and that contingent remainders are equivalent to remainders liable to be destroyed by a rule of law defeating intent?

D. I must indeed.

S. What other case do you think of where the distinction between vested and contingent remainders seems to become important?

D. Where the question is whether the remainder is alienable or not by a deed without covenants.

S. You mean that if the remainder is vested it may be so conveyed and if contingent it cannot?

D. Exactly.

S. This seems curious. Are not to-day both sorts of interests generally alienable in the same way?

D. That is by statute.

S. Then there is no rational objection to both being alienable?

D. I suppose not.

S. The reason for the older distinction was again historical I suppose?

D. Well, it was said that the contingent remainder did not exist till it vested. Till then it was nothing at all, and therefore inalienable.

S. That is strange. This saying that a remainder was alienable because it was something and inalienable because it was nothing, was not referable to the fact that of some remainders there was actual seisin and of others not, for of all remainders alike, as you have said, there was no actual seisin.

D. That is so.

S. Then why were some remainders something and others nothing? Both are mere rights-intangible idealities. One may be sure to come into possession and the other may not, but as they stand divorced from actual possession, is it any more difficult to conceive of one as something than the other? Now that all remainders have become fully alienable do we not most naturally speak of all remainders as something that can be dealt with as property? Some are of more value than others, doubtless depending upon the certainty of their enjoyment in possession, but surely one is no less property than the other.

D. The view certainly has been advanced that when it came to be said that the contingent remainder did not exist or was nothing unless the event upon which it was limited happened, it was meant merely that the remainder was void till it vested.

S. Is not that the fact? Did you not say that prior to 1430 remainders limited upon a condition which might happen before or at the time of or after the termination of the particular estate, so that there might be a gap in the seisin, were wholly void? You said also that after 1430 they were still regarded as void, but that upon the happening of the event before or at the time of the termination of the preceding estate the chance for a gap ended and the future interest was regarded as valid. It seems to me extremely reasonable to suppose that after 1430, when remainders were said to be nothing until they vested, what was really meant was that they were regarded as wholly void until the event upon which they were limited happened prior to or at the time of the termination of the preceding interest.

D. No doubt such a view is plausible, and I am reminded of what Williams says1, that when contingent remainders were first recognized as valid at all it was said that at the time of the grant

1 Real Property, 17th ed., p. 412.

the remainder was in a manner void.' But you forget that the idea that the conveyance of contingent interests was champertous had something to do with making them inalienable.

S. From what you have already said about contingent interests being fully alienable to-day, I take it this reason for holding contingent future interests alienable has long since disappeared, so that you are now able to call some remainders alienable which are actually contingent-as, for instance, where the limitations are to A for life, remainder to B and his heirs, but if B dies before the termination of the particular estate, then to C and his heirs. Here you say that B's remainder is alienable 1, but at the same time it is clearly subject to a condition precedent to its ever taking effect in possession.

D. That is true.

S. Then can we not say that in the absence of some actual decision to the contrary depending upon the application of public policy against champertous transactions, the distinction between what remainders are alienable inter vivos and what are not is the same distinction exactly as that between those future interests which before 1430 were regarded as valid as limited and those which before 1430 were regarded as wholly void, and were recognized as valid after 1430 only provided the contingency upon which they were limited happened before or at the time of the termination of the particular estate?

D. I suppose so.

S. That is the same inquiry as to whether the remainder is indestructible by a rule of law defeating intent, and whether it is so destructible.

D. Yes.

S. You would have to say then that the remainder to trustees to preserve contingent remainders, in spite of the fact that it is subject to a condition precedent to its ever taking effect in possession, which is expressed as precedent in form, is alienable.

D. Yes.

S. In the same way where the limitations are to A for life, and if B overlive A, then to B for life, B's remainder would be alienable, and if the limitations were to 4 for life with power to appoint, and in default of appointment to B and his heirs, B's remainder would be alienable.

D. Yes.

S. Would you not have to say then, that remainders to trustees

1 Blanchard v. Blanchard, 1 Allen (Mass.), 223 (5 Gray's Cases on Property, 85).

to preserve contingent remainders and the remainders to B for life, and to B and his heirs in the two cases put, were valid before 1430?

D. Why?

S. Because by the feudal law future interests were valid unless there was a feudal reason for defeating the intention of the settlor. Such a feudal reason existed to defeat the interests, if as limited they were bound to take effect after a gap or by way of lapping over the preceding interest, and also if there was a chance that there might be a gap. In the case of trustees to preserve contingent remainders there is no lap and no chance of a gap. Is there, then, any feudal reason against its validity?

D. There seems to be none.

S. The same is true, is it not, of the remainder to B for life where the limitations are to A for life, and then if B overlive A, to B for life, and of the remainder to B and his heirs where the limitations are to A for life with power to appoint, and in default of appointment to B and his heirs?

D. It would seem so.

S. Suppose, then, the limitations are to A for life, and then if B survive the termination of A's life estate, whenever and however that may occur, to B and his heirs. Is not B's interest alienable?

D. I should say not.

S. Would it not have been valid prior to 1430?

D. How do I know?

S. Do you know that it would not have been valid?

D. I do not.

S. Do you know any reason against its validity?
D. I cannot say that I do.

S. Is it not reasonable to suppose that when the law in its endeavour to support expressed intent as often as was consistent with feudal policy allowed certain contingent future interests, provided they took effect in possession without a gap, that it would have allowed a remainder expressly limited so that it must have taken effect, if at all, without a gap?

D. I cannot say that it is unreasonable to so suppose.

S. Why, then, do you say that such an interest is inalienable by the common law?

D. Because it cannot be vested, and the rule is that remainders not vested are inalienable.

S. But is not that a childish application of words without reference to their meaning? Is it not deciding the issue contrary to reason and then producing the decision as the reason for the

result? Is it not setting yourself up as the judge and then quoting yourself as the authority?

D. I see no answer to what you say.

S. I take it, then, that you do not see any valid reason for saying that the remainder to B and his heirs in the case put is alienable by deed at common law, just as much as is the remainder to B in the case where the limitations are to A for life, remainder to B and his heirs, but if B dies before the termination of the particular estate, then to C and his heirs?

D. I do not.

S. Will you then, where the remainder is to B and his heirs, provided B survive the termination of A's life estate, call the remainder vested'?

D. I cannot. That would violate the usage of centuries. It must be called 'contingent.'

S. Then here again your idea of the distinction between vested and contingent remainders cannot be said to be equivalent to the distinction between remainders which are alienable and those which are not.

D. That seems to be the case.

S. Do you think of any other case where the distinction between vested and contingent remainders seems important?

D. The Rule against Perpetuities does not apply where the limitations are vested. I think it does apply where they are contingent, and the recent authorities have so held 2.

S. The Rule against Perpetuities I suppose took the distinction between vested and contingent remainders as it found it?

D. Yes. The Rule against Perpetuities is comparatively modern, and it dealt only with an established distinction and did not make that distinction to suit itself.

S. Then the distinction between vested and contingent remainders is here a distinction which had served a practical purpose before the Rule against Perpetuities arose?

D. Yes.

S. What purpose had it served?

D. Let me see. I suppose I cannot say that it had marked the distinction between remainders which are destructible by a rule of law defeating intent and those which were, nor can I say that it marked the distinction between remainders which were alienable and those which were not.

S. Hardly. If it did, that would make the rule inapplicable to remainders clearly subject to a condition precedent in form and in 1 Gray's Rule against Perpetuities, 2nd ed., § 284 et seq.

2

In re Frost, 43 Ch. Div. 246.