quaintness, on a double contingency." But if the remainder over to B. *had been merely in the *201 event of such dying before twenty-one, it would have been good only as a shifting use or executory devise, for it would have rested on an event which rescinds a prior vested fee. There is likewise a double contingency when estates are limited over in the alternative, or in succession. If the previous estate takes effect, the subsequent limitation awaits its determination, and then vests. But if the first estate never vests by the happening of the contingency, then the subsequent limitation vests at the time when the first ought to have vested. The New-York Revised Statutes have provided for this case of limitations in the alternative, by declaring, that two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly. Cross-remainders are another qualification of these expectant estates, and they may be raised expressly by deed, and by implication in a devise. If a devise be of one lot of land to A., and of another lot to B., in fee, and if either dies without issue, the survivor to take, and if both die without issue, then to C. in fee, A. and B. have cross-remainders over by express terms; and on the failure of either, the other, or his issue, takes, and the remainder to C. is postponed; but if the devise had been to A. and B. of lots to each, and remainder over on the death of both of them, the cross-remainders to them would be implied. So, if different parcels of land Luddington v. Kine, 1 Lord Raym. 203. Doug. Rep. 505, note. Cornish on Remainders, 27-29. • Doug. supra. Vol. i. 724, sec. 25. • Chadock v. Cowley, Cro. Jac. 695. 2 Blacks. Com. 381. Baldrick vWhite, 2 Bailey's S. C. Rep. 442. are conveyed to different persons by deed, and by the limitation they are to have the parcel of each other when their respective interests shall determine, they take by cross-remainders; and this complex doctrine of crossremainders, in the mode in which the parties become entitled, and in their proportions, though not in *202 their interests, has a great analogy, as Mr. *Preston observes, to the order of succession between coparceners. The courts lean in favour of cross-remainders, in order to effectuate the intention. It is a method to bring the estate together. (II.) Of vested remainders. C Remainders are of two sorts, vested and contingent. An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. It gives a legal or equitable seisin." The definition of a vested remainder in the New-York Revised Statutes, appears to be accurately and fully expressed. It is "when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate." A grant of an estate to A. for life, with the remainder in fee to B., or to A. for life, and after his death to B. in fee, is a grant of a fixed right of immediate enjoyment in A., and a fixed right of future enjoyment in B. So, if the grant was only to A. for life, or years, the right under it would be vested in A. for the term, with a vested reversion in the grantor. Reversions, and all such future • Preston on Estates, vol. i. 94. 98. b Ibid. vol. i. 64. Mr. Preston says, there may be an executory interest, which is neither vested nor contingent, and yet carries with it a certain and fixed right of future enjoyment; and he instances the case of a devise of a freehold, to commence on the death of B. This, he says, is a certain interest, which is not executed immediately, so as to be vested; but this is excessive refinement. Is it not a vested right of future enjoyment? • Vol. i. 723, sec. 13. uses and executory devises as do not depend upon any uncertain event or period, are vested interests. A vested remainder is a fixed interest, to take effect in possession after a particular estate is spent. If it be uncertain whether a use or estate limited in futuro shall ever vest, that use or estate is said to be in contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless *be a vested remainder if the interest be fixed. 203 The law favours vested estates, and no remainder will be construed to be contingent, which may, consistently with the intention, be deemed vested. A grant to A. for life, remainder to B., and the heirs of his body, is a vested remainder; and yet it is uncertain whether B. may not die without heirs of his body, before the death of A., and so the remainder never take effect in possession. Every remainder-man may die, and without issue, before the death of the tenant for life. It is the present capacity of taking effect in possession, if the • Fearne's Int. to his Treatise on Remainders. 10 Co. 85, a. • In Moore v. Lyons, 25 Wendell, 119, it was held in the court of errors of New-York, after a very able and learned discussion, that in a devise of real estate to A. for life, and after his death to three others, or to the survivors or survivor of them, their heirs and assigns forever, the remaindermen took a vested interest at the death of the testator. Survivorship is referred to the period of the death of the testator, if there be no special intent manifest to the contrary so as not to cut off the heirs of the remainder-man who should happen to die before the tenant for life. They are vested and not contingent remainders. This is now become the settled technical construction of the language and the established English rule of construction. Doe ex dem. Waring v. Prigg, 8 Barn. & Cress. 231, and the decision of Sir John Leach in Cripps v. Wolcott, 4 Madd. Rep. 11, is overruled. King ♥. King, 1 Watts & Serg. Rep. 205, S. P. It is the uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, which renders a remainder contingent. The present capacity of taking effect in possession, if the possession were to become vacant, distinguishes a vested from a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues. Vice-chancellor, 2 Sandford's Ch. Rep. 533, Williamson v. Field. possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested; as in the case of a lease to A. for life, remainder to B. during the life of A., the preceding estate determines on an event which must happen; and it may determine by forfeiture or surrender before the expiration of A.'s life, and the remainder is, therefore, vested. A remainder, limited upon an estate tail, is held to be vest ed; though it must be uncertain whether it will *204 ever take place. The lines of "distinction between vested and contingent remainders are so nicely drawn, that they are sometimes difficult to be traced; and, in some instances, a vested remainder would seem to possess the essential qualities of a contingent estate. The struggle with the courts has been Fearne on Rem. 277, 278. Parkhurst v. Smith, Willes' Rep. 337. Vander Heyden v. Crandall, 2 Denio Rep. 18. serves very justly, that there are cases in which a remainder is vested, without a present capacity for taking effect in possession, if the particular estate were to determine immediately. Essay on Rem. 102. Fearne, 279-286. • Badger v. Lloyd, 1 Salk. 232. 1 Lord Raym. 523, S. C. Ives v. Legge, 3 Term Rep. 488, note. Thus, in a case of a devise to A. and the heirs of his body, and in default thereof to B.; or in the case of a devise to B. and after his death, without male issue, to C.; and after his death, without male issue, to D.; and if D. die without male issue, none of these prior devisees being living, to E. in fee; here the remainder to B., in the one case, and to E. in the other is vested. There was a like decision in Luddington v. Kine, 1 Lord Raym. 203, though the judges were not unanimous on the question, whether the remainder was vested or contingent. A vested remainder is an interest, said Chancellor Walworth, in Hawley & King v. James, (infra p. 230,) which cannot be defeated by third persons, or contingent events, or by failure of a condition precedent, if the remainder-man lives, and the estate limited to him by way of remainder continues, until all the precedent estates are determined. for that construction which tends to support the remainder by giving it a vested character; for if the remainder be contingent, it is in the power of the particular tenant to defeat it by a fine or feoffment. The courts have been subtle and scrutinizing in their discriminations between vested and contingent remainders. The stability of title has depended very much on the distinction; and the judges observed, in the case of Parkhurst v. Smith, that if they were to adopt the definition of a contingent remainder contended for upon the argument, they would overturn all the settlements that ever were made. A limitation, after a power of appointment, as, to the use of A. for life, remainder to such use as A. shall appoint, and in default of appointment, remainder to B., is a vested remainder, though liable to be divested by the execution of the power. The better opinion also is, that if there be a devise to trustees and their heirs, during the minority of a beneficial devisee, and then to him, or upon trust to convey to him, it conveys a vested remainder in fee, and takes effect in possession when the devisee attains twenty-one. The general rule is, that a trust estate is not to continue beyond the period required by the purposes of the trust; and notwithstanding the devise is to trustees and their heirs, they take only a chattel interest, for the trust, in such a case, does not require an estate of a higher quality. If the devisee dies before the age of twenty-one, the estate descends to his heirs as a vested inheritance. The Master of the Rolls said, that the trustees in such a case • Cunningham v. Moody, 1 Ves. 174. Doe v. Martin, 4 Term Rep. 39. If a mere power be given to appoint a remainder among a number of ascertained persons, with a limitation over to the whole number of persons in default of appointment, the remainder is vested, subject to be divested by the execution of the power. Sugden on Powers, 151, 5th London edit. |