-unless engrafted on an estate tail.

it is to be observed, that in this and all other cases, if the executory devise is in defeasance of or immediately] subsequent to an estate tail, it will be good, because the power which resides in the owner of that estate to destroy all [defeating or] posterior limitations, executory as well as vested, takes the case out of the mischief of, and consequently out of the rule against, perpetui*ties. (q) Thus, if a person, by deed or will, creates an estate tail, and annexes to it a proviso divesting the estate in favor of another in case the devisee, or his issue in tail, should at any time thereafter neglect to assume the name and bear the arms of the testator, or in case another property should at any future time devolve to him or them, or on any other such event; this executory limitation, though it would have been clearly void, if engrafted on an estate in fee-simple, is good as applied to an estate tail. (r)

[But to bring the case within this saving the event must be one which will necessarily happen, if at all, at or before the determination of the previous estate tail; otherwise there will or may be an interval during which the executory devise will be indestructible, and the limitation will consequently be void ab initio. (s)

Difference between an executory

devise and a remainder.

But the remoteness of the event upon which a remainder after an estate tail is to vest is immaterial, since it is always barrable as long as the estate tail continues; and if, being unbarred, it is not vested when the latter determines, it fails for want of a particular estate. Thus, in Jack v. Fetherston, (t) estates were limited by settlement to T. S. W. for life, with remainder to his first and other sons in tail male,

Jack v. Fetherston.

tor intended a definite failure of issue on the death of the first taker: issue spoken of as children, McLeod v. Dell, 9 Fla. 427; Matthis v. Hammond, 6 Rich. L. 399; death without issue under age or before marriage, Jones v. Sothoron, 10 Gill & J. 187; Adams v. Chaplin, 1 Hill Eq. (S. C.) 265; limitation over to survivor on death of first taker without issue, Moffat V. Strong, 10 Johns. 12; Carson v. Kennerly, 8 Rich. L. 259. See, also, Brashear v. Macey, 3 J. J. Marsh. 91; Armstrong v. Armstrong, 14 B. Mon. 333; Simmonds v. Simmonds, 112 Mass. 157; Stevenson Evans, 10 Ohio St. 307; Berg v. Ander

V.

son, 72 Penna. St. 87; Zimmerman & Wolfe, 4 Rich. L. 329; Badger v. Hardin, 6 Rich. L. 149.

(q) Gulliver v. Ashby, 4 Burr. 1929; [Att.-Gen. v. Miller, 3 Atk. 111; as to a charge subsequent to an estate tail, Goodwin v. Clark, 1 Lev. 35; Faulkner v. Daniel, 3 Hare 199; Morse v. Ormonde, 1 Russ. 382; Bristow v. Boothby, 2 S. & St. 465.]

(r) Nicolls v. Sheffield, 2 B. C. C. 215; Carr v. Earl of Erroll, 6 East 58; Earl of Scarborough v. Doe d. Saville, 3 Ad. & Ell. 897.

[(8) Banks v. Holme, stated below. (t) 2 Huds. & Br. 320.

case

A remainder

may be good' though limited upon an event

Cole v. Sewell.

and for default of such issue male, and in case of issue female only of T. S. W., to T. S. W. in fee, and in of failure of issue of T. S. W., then further limitations too remote. were made. It was argued that the ultimate limitations being deferred till a general failure of issue of T. S. W., while previous estates were limited to his issue male only, were too remote; but Bushe, C. J., said that this objection was in some degree founded on a misapprehension of Mr. Fearne's meaning, and in not distinguishing the limitation from the event: the event might be such that it might happen either before or after the future estate was to vest, and yet the possibility it might happen after did not affect the nature of the limitation. So that the remoteness of the event is immaterial, if the estate is not too remote. In Cole v. Sewell (u) the same question arose as to the validity *of estates limited by deed to take effect in case of a general failure of issue by way of remainder after previous estates tail limited to some only of such issue. Lord St. Leonards (then L. C. Ir.) said: "As to the question of remoteness, at this time of day I was very much surprised to hear it pressed upon the court, because it is now perfectly settled, that where a limitation is to take effect as a remainder, remoteness is out of the question: for the given limitation is either a vested remainder, and then it matters not whether it ever vest in possession, because the previous estate may subsist for centuries, or for all time; or it is a contingent remainder, and then, by the rule of law, unless the event, upon which the contingency depends, happen so that the remainder may vest eo instanti the preceding limitation determines, it can never take effect at all. There was a great difficulty in the old law, because the rule as to perpetuity, which is a comparatively modern rule (I mean of recent introduction, when speaking of the laws of this country,) was not known, so that, while contingent remainders were the only species of executory estate then known, and ases, and springing and shifting limitations were not invented, the law did speak of remoteness and mere possibilities as an objection to a remainder, and endeavored to avoid remote possibilities: but since the establishment of the rule as to perpetuities, this has long ceased, and no question now ever arises with reference to remoteness; for if a limitation is to take effect as a springing, shifting, or secondary use, not depending on an estate tail, and if it is so limited that it may go

(u) 4 D. & War. 1, corrected by the judge himself, and differing in some material passages from 2 Con. & L. 344.

beyond a life or lives in being and twenty-one years and a few months, equal to gestation, then it is absolutely void; but if, on the other hand, it is a remainder, it must take effect, if at all, upon the determination of the preceding estate. In the latter case, the event may or may not happen before or at the instant the preceding estate is determined, and the limitation will fail, or not, according to that event. It may thus be prevented from taking effect, but it can never lead to remoteness. That objection, therefore, cannot be sustained against the validity of a contingent remainder. If the remainder over had been regularly in default of issue male of the daughters, it would have taken effect when and if that failure happened. Now the remainder over is in default of issue generally, but it can only take effect when and if there is a failure of issue male, that is, upon the regular determination of the previous estate; there is no distinction in the point of *perpetuity between the limitations, either only can take effect at the same period. The simple distinction is, that although the event happen, the latter gift-depending upon the contingency-may never take effect; but that introduces no question of remoteness." In a subsequent part of his judgment, after citing a passage from Coke Litt. 378, which speaks of a remainder depending on the contingency of one man dying before another as being "a common possibility," he continued: "The concluding words show that in those early times they were looking to the period when the contingency might arise. The effect, however, of the modern rule against perpetuities has been to render this doctrine obsolete, although it has rendered void successive life estates to successive unborn classes of issue. In Nicolls v. Sheffield (x) the court held that a proviso for shifting an estate after an estate tail was valid ; and Lord Kenyon would not listen to an argument founded on remoteness, because the limitation over might at any time be barred by the previous tenant in tail." He therefore held the remainder good. This decision was affirmed in D. P. (y) Lord Cottenham observed: "It is said that this last limitation is too remote, because, there being no previous limitation to issue generally, there might be a failure of all the prior limitations and yet issue, as in the case of a son of a daughter, might exist, so that this last limitation would not take effect. But if this be a remainder it would be barrable, (2) and the objection there

(x) 2 B. C. C. 215.

(y) 2 H. L. Cas. 186.

(2) This must be taken to mean "always barrable," which would not always

have been the case with an executory limitation, e. g. when the estates tail had determined, see Banks v. Holme, infra, p. *261.

fore would not arise." He then went on to show that the limitation in question was a remainder limited on a contingency, and therefore good.

Doe v. Perratt.

So in Doe d. Winter v. Perratt, (a) where the devise was to I. C. in tail male, with remainder to the first male heir of the branch of R. C.'s family who lived at H., the branch of R. C.'s family who lived at H. might have consisted for an indefinite time of females only: so that the gift to the first male heir who should come into existence was too remote, had it not been limited by way of contingent remainder; but being so limited, no doubt of its validity was expressed on this ground; the only question was, who was meant by "first male heir."

Cole v. Sewell.

The judgment of Lord St. Leonards in Cole v. Sewell has *been criticised, (b) as if it had asserted that contingent remain- Remarks on ders were in no case subject to the rule against perpetuities, being sufficiently restricted by the rule which requires them to vest, if at all, at or before the determination of the particular estate. But this does not appear to have been his real meaning. He nowhere says that the event upon which the preceding particular estate (upon which the contingent remainder is to depend) is limited to determine need not be within the limits allowed by the rule. On the contrary, he says, "The modern rule against perpetuities has rendered void successive life estates to successive unborn classes of issue," (c) and (as he has since remarked) (d) he relied on the previous estate tail. The rule here referred to prevents the existence of a particular estate which, by enduring to a too remote period, might support a too remote contingent remainder; while in the case before him the estate tail removed all question of perpetuity. The event upon which the particular estate is to determine need not be, and in Cole v. Sewell was not, the same as the event upon which the contingent remainder is to arise: and the L. C.'s judgment is directed only to show that where the former event is not obnoxious to the rule against perpetuity, the remoteness of the latter event is immaterial. It is quite consistent with the very words of his judgment, and is required indeed by the general tenor of it, to hold with Sir W. P. Wood (e) that "a contingent remainder cannot be limited as depending on the termination of a particular estate whose determination will not necessarily take place within the period allowed

(a) 9 Cl. & Fin. 606.

[(b) See Appendix A.

(c) See above, p. *257, and 2 D., M. &

G. 170.

(d) Law of Prop., p. 120.
(e) 11 Hare 374, 375.

by law;" and that "a perfectly accurate statement of the law is made in the able argument of Mr. Preston in Mogg v. Mogg, (ƒ) where he says 'a gift to an unborn child for life is good if it stops there, but if a remainder is added to his children or issue as purchasers it is not good, unless there be a limitation of the time within which it is to take effect:"" thus connecting, if not identifying, the rule against perpetuities with the rule which prohibits the limitation of successive estates to successive unborn classes of issue.] (g)

*A term of years (like any other estate) may be made expectant by Term of years, way of remainder on an estate tail; but sometimes it

whether ulte

rior or precedent to estate tail.

happens that the term is so limited as to render it hard to say whether it is ulterior or precedent to the estate tail. If the term is precedent to the estate tail, of course it cannot be defeated by the acts of the tenant in tail: (h) and in such case, if the trusts of the term are not to arise until the failure of issue under the entail, those trusts are necessarily void. As, in Case v. Drosier, (1) where a testator devised his estates at M. and T. to trustees for 500 years, upon the trusts after declared, and he then devised the M. estate, subject to the term, to A. for life, with remainder to his sons and daughters in tail, in strict settlement, in the usual manner, with remainder to B. and his sons and daughters, in like manner. He then devised the T. estate in a similar manner, except that B. was put in the place of A. And the testator declared the trusts of the term of 500 years to be, for the purpose (among others) of raising portions for two granddaughters, payable at twenty-one, and further portions, in case either A. or B. should die without issue, and all which were to sink in case they died under age and unmarried. Lord Langdale, M. R., thought that the words "without issue" meant without issue who were objects of the prior limitations; but as this might be a remote event, and as there were no means by which the charges would be barred, the trusts could not be supported. "They depend," he observed, "on a term, and that term is precedent to the estates tail, so that after a

(ƒ) 1 Mer. 664.

(g) See Gilbert Uses, n. by Sugd., p. 260. Mr. Joshua Williams treats the two rules as independent, and denies the validity of such successive limitations, although restricted as suggested by Mr. Preston. He gives a specimen of such limitations which he considers to be unprecedented, and therefore invalid, Law

of R. P. 264; Appendix F, 9th ed. But see Cadell v. Palmer, stated on this point, post p. *279.

(h) Eales v. Conn, 4 Sim. 65. (i) 2 Kee. 764, [affirmed by Lord Cottenham, 5 My. & Cr. 246. See Sykes v. Sykes, L. R., 13 Eq. 56, acc.]; and see Hayes' Introd. vol. 1, p. 135, vol. 2, p. 170, n., 5th ed.