der can be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such a remainder be a fee; nor can a remainder be created upon such an estate in a *251 term for years, *unless it be for the whole residue of such term." Nor can a remainder be made to depend upon more than two successive lives in being; and if more lives be added, the remainder takes effect upon the death of the first two persons named. A contingent remainder cannot be created on a term for years, unless the nature of the contingency on which it is limited be such that the remainder must vest an interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof. No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. A freehold estate, as well as a chattel real, (to which these regulations equally apply,) may be created to commence at a future day; and an estate for life may be created in a term of years, and a remainder limited thereon; and a remainder of a freehold or chattel interest, either contingent or vested, may be created expectant on the determination of a term of years. Two or more future estates may be created to take effect in the alternative, a New-York Revised Statutes, vol. i. 724, sec. 18. b Ibid. sec. 19. e Ibid. vol. i. 724, sec. 20. a Ibid. vol. i. 724, sec. 21. Upon a devise to A. for fifty years as an absolute term, remainder to B. for life if he should marry C., and remainder to the children of such marriage, here the remainder to B. is contingent, but must vest in interest, if ever, in his lifetime, and fails if he dies within the term. The ultimate remainder must vest, if ever, within the period of one life in being at the death of the testator. The first child would, upon its birth, take a vested interest in the ultimate remainder in fee, subject to open and let in after-born children. Marsellis v. Thalkimer, 2 Paige, 35. Hawley & King v. James and others, 5 Paige, 318. S. C. 16 Wendell, 61. Vide supra, p. 205. • New-York Revised Statutes, vol. i. 724, sec. 24. so that if the first in order shall fail to vest, the next in succession shall be substituted for it; and no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect. When a remainder on an estate for life, or for years, shall not be limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death of the first taker, or the expiration by lapse of time, of such term of years. No expectant estate shall be defeated or barred by any alienation, or *other act of the owner of the intermediate *252 estate, nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger, or otherwise, except by some act or means which the party creating the estate shall, in the creation thereof, have provided for or authorized. Nor shall any remainder be defeated by the determination of the precedent estate before the happening of the contingency on which the remainder is limited to take effect; and should the contingency afterwards happen, the remainder shall take effect in the same manner, and to the same extent, as if the precedent estate had continued to the same period.d • New-York Revised Statutes, vol. i. 724, sec. 25, 26. Ibid. vol. i. 725, sec. 29. The Massachusetts Revised Statutes of 1835, part 2, tit. 1, c. 59, sec. 7, have made the same provision for the preservation of expectant estates. d New-York Revised Satutes, vol. i. sec. 32, 33, 34. The remainder-man may be let in to defend suits brought against the tenant of the particular estate, or to recover the same when lost by the tenant's default. Ibid. vol. ii. 339, sec. 1, 2. No undue recovery against the tenant bars the title of the remainder-man to relief. Ibid. vol. ii. 340, sec. 6, 7. In Virginia, the doctrines of the common law, relating to the destruction of contingent remainders, by the determination of the particular estate before the contingency, have also undergone essential changes by statute, and the policy of the legislature was to place contingent remainders beyond the reach of accident to the particular estate. Trustees to preserve contingent remainders are no longer in much use. Lomax's Digest, vol. i. 457. 463. Some of the above enactments are not very material, and are only declaratory of the existing law; but those which relate to the precedent estate, and render such an estate no longer requisite to sustain the remainder, will produce a very beneficial change in the doctrine of remainders, and disperse a cloud of difficulties, and a vast body of intricate learning relating to the subject. As these provisions do not affect vested rights, or the construction of deeds and instruments which took effect prior to the first of January, 1830, the learning of the English law on the subject of remainders, and conveyances to uses, will not become dormant in New-York during the existence of the present generation. A contingent remainder may fail as to some, and take effect as to other persons, in consequence of some only of the persons entitled in remainder coming in esse during the particular estate; as in the case of a remainder to the right heirs of A. and B., and A. only dies *253 during the continuance of the preceding estate,. whereby the remainder vests in his heirs." VIII. Of the destruction of contingent remainders. If the particular estate determine, or be destroyed before the contingency happens on which the expectant estate depended, and leave no right of entry, the remainder is annihilated. The alteration in the particular estate which will destroy the contingent remainder, must amount to an alteration in its quantity, and not merely in the quality; and, therefore, the severance of the jointure between two joint-tenants for life, will not destroy the contingent remainder, limited after their joint New-York Revised Statutes, vol. i. 750, sec. 11. b Bro. tit. Done and Rem. pl. 21. Matthews v. Temple, Comb. 467. Fearne on Remainders, 393. • Fearne on Remainders, 426. Lane v. Pannel, 1 Rol. Rep. 238. 317.. 438. Harrison v. Belsey, T. Raym. 413. estate. The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine; for these conveyances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder. So, if the tenant for life disclaimed on record, as by a fine, a forfeiture was incurred upon feudal principles; and if the owner of the next vested estate of freehold entered for the forfeiture, the contingent remainder was destroyed. A merger, by the act of the parties, of the particular estate is *254 also equally effectual as a fine to destroy a contingent remainder. But with respect to this doctrine of merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the particular estate for life by descent; for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception, that if the descent from the testator, or the particular tenant, be immediate, there is no merger; as if A. devises to B. for life, remainder to his first son unborn, and dies, and the land descends on B. as heir at law. Here the descent is immediate. But if the fee, on the death of A., had descended on C., and at his death on B., here the descent from A. would be only * Archer's case, 1 Co. 66. Chudleigh's case, 1 Co. 120. 137, b. 2 Rol. Abr. 418, pl. 1, 2. Purefoy v. Rogers, 2 Lev. 39. Chudleigh's case is a strong authority to prove that a feoffment, without consideration, and even with notice in the feoffee of the trust, will destroy a contingent remainder. It is a doctrine flagrantly unjust, and repugnant to every settled principle in equity, as now understood. b Co. Litt. 252, a. There has been a long and vexed question in the English law, how far a common recovery, suffered by a tenant in tail, would bar a remainder to the king. It was declared by the highest authorities, in the House of Lords, in the late case of Blosse v. Clanmorris, (3 Bligh, app. 62,) to be still a doubtful point of law. I allude to it merely as fresh proof of the everlasting uncertainty that perplexes this branch of legal science. • Purefoy v. Rogers, 2 Saund. Rep. 386. mediate, and the contingent remainder to the unborn son of B. would be destroyed by merger of the particular estate on the accession of the inheritance. Mr. Fearne vindicates this distinction, and reconciles the jarring cases by it; and it has been since judicially established, in Crump v. Norwood. In equity, the tenant for life of a trust cannot, even by a fine, destroy the contingent remainder dependant thereon; and it will only operate on the estate he can lawfully grant. A court of equity does not coun*255 tenance the *destruction of contingent remainders; and Lord Loughborough observed, that it had been intended to bring a bill into parliament to prevent the necessity of trustees to preserve contingent remainders. There is also an established distinction between those wrongful conveyances at common law which act on the possession, and those innocent conveyances which do not; and, therefore, a conveyance of a thing lying in grant does not bar a contingent remainder. Nor do conveyances which derive their operation from the statute of uses, as a bargain and sale, lease and re Fearne on Remainders, 432-434. b7 Taunt. Rep. 362. This is one among a thousand samples of the refinements which have gradually accumulated, until they have, in a very considerable degree, overshadowed and obscured many parts of the English law of real property; and I am more and more impressed with a sense of the great utility of the provision, rescuing contingent remainders, by legislative authority, from all perplexing dependence on the particular estate. Lord Hardwicke, in Lethieullier v. Tracy, 3 Atk. Rep. 730. 5 Vesey, 648. This has been done, as we have already observed, in New-York, by the New-York Revised Statutes, vol. i. 725, sec. 32. 34, rendering expectant estates or remainders no longer dependent on the continuance of the precedent estate. So, in Mississippi, by the Revised Code of 1824, p. 459, the same rule is declared, and an estate of freehold or inheritance may be made to commence in futuro by deed as well as by will. Mr. Cornish thinks, that the doctrine of remainders can scarcely be said to apply to equitable estates; for every ulterior limitation of a trust is, in substance, an executory trust, and more analogous to a future use or executory devise than to a remainder. Cornish on Remainders, 208. |