ascertained person subject to a preceding life estate or series of life estates in the same property created by the same instrument.

Pepper & Lewis's Definition of a Vested Remainder

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43. The learned editors of Pepper & Lewis's Digest of Decisions, title Remainders, offer the following definition of a vested remainder: "A vested remainder may be defined as an estate in real or personal property which will necessarily take effect in possession upon the termination of a precedent estate created by the same instrument, and which is subject to no other contingency than the termination of the precedent estate; and it is immaterial that the remainderman will not necessarily be in esse when the precedent estate ends, since the certainty of his actual possession of the property in the future is not a pre-requisite to the immediate vesting of the remainder in interest." To this definition, there are several serious objections. (1) It assumes the disputed point whether there can be a be a remainder in personal property.10 (2) The notion that it must necessarily take effect in possession upon termination of the precedent estate is clearly erroneous. Thus, suppose a devise to A. for life, then to B. for life, then to C. in fee. In this case the life estate of B. is vested, although since he may die before the death of A. it may never take effect in possession. (3) The suggestion that "it is immaterial that the remainderman will not necessarily be in esse when the precedent estate ends is difficult to understand. The learned editors perhaps meant by this phrase that if the remainder in fee is vested it is immaterial if the remainderman dies during the continuance of the precedent estate, as in such case his heirs will take. This is the law, but if they meant it, they should have said so. Even thus qualified, the remark applies only to a remainder in fee, and not to a remainder for life. (4) The last part of the definition, "since the certainty of his actual possession is not a pre-requisite to the immediate vesting," is more accurate but totally inconsistent with the first part of the definition, which says that the remainder must necessarily take effect in possession upon the termination of the precedent estate.

9 Column 30294.

10 See 8895, 93, 97, as to future interests in personal property.

Attributes of a Vested Remainder

44. A vested remainder has always been freely alienable, descends to heirs, and is devisable, the same as a fee or a reversion, and the same principle, without doubt, obtains in Pennsylvania today." Cases of vested legal remainders, except where there is a remainder to a class, are very rare in modern times owing to the increasing use of equitable limitations.

Remainders Subject to a Term of Years

2

45. The tenant for years was not seised.' Consequently when the seisin was distributed at the time of the feoffment, an attempt to give any part of the same to a lessee was nugatory, and any attempt to give the seisin to the remainderman after the expiration of the term, was unavailing as an attempt to create a freehold to begin in futuro. In order that the remainder might not fail, the courts construed words importing a gift of the remainder after the term as an immediate gift of the freehold subject to a term of years. All terms were originally short, and the long terms were introduced after the rule became fixed. The error, therefore, if any, was not in allowing such a construction of the gift, but in permitting terms of undue length. A limitation of this kind was before the court of Common Pleas of Philadelphia County, in Morris v. Fisher.* Sulzberger, J., in delivering the opinion of the court, admitted that the law in England was as stated, and then came to the conclusion that the law in Pennsylvania was otherwise, on grounds which are not easy to understand. This was a case of a gift of an estate tail subject to a term of ninety-nine years." No other case on the point has been found in Pennsylvania.

3

Conditions Subsequent and Vested Remainders

46. A condition subsequent did not affect the quality of the remainder as a vested remainder, because the condition

would not affect the immediate grant by the feoffor to the remainderman. Indeed, the condition subsequent could not operate unless there had been a previous vesting. If the condition subsequent happened, it was said to divest the remainder, and if the condition was uncertain or might happen before the termination of the preceding estate, it would necessarily follow that the remainder might never vest in possession. A vested remainder, therefore, partook of the nature of both kinds of future interests-those which were sure to arise, and those which might never arise. The court will, however, whenever possible, construe a condition as a condition subsequent or as annexed to other estates. This is a rule of construction supposed to be founded on the alleged partiality of the law for vested rather than contingent remainders. There is room to surmise that this is not the real reason. This point will not be further pursued, as rules of construction will, so far as possible, be avoided. A few examples of the application of the rule in Pennsylvania are given in the note," and it may be remarked, before leaving the subject, that a large part of the cases on vested remainders arise over the application of this rule of construction. There is, first, the principle of law that a condition subsequent does not make a remainder less vested, then the principle of construction, which turns every condition into a condition subsequent whenever possible.

For a further discussion of this point, see $63, n. 2, post.

7A devise to A. for life, and if he leaves lawful issue, to such issue, and if he dies without issue or they die under 21 without lawful issue, then to B. and his heirs and assigns, on condition that he pay three hundred pounds to a hospital three months after the death of A.; held, an estate tail in A., with a vested remainder in B.; Evans v. Davis, 1 Yeates, 332 (1794); Shippen, J., at 341 said that the condition as to payment was a charge, particularly as it was payable after the death of A. To A. for life, and to his heirs, if he have any, and if he does not have any heirs, then to his grandchildren, B., C. and D.; A.

took a fee tail; B., C. and D. took vested remainders; Bassett v. Hawk, 118 Pa. 94 (1888). To A. for life, and at her death, to testator's son, provided he shall "remain with my wife and myself until our decease," and provided also, that he shall pay certain sums to testator's other children upon certain contingencies; vested remainder in the son; McCall v. McCall, 161 Pa. 412 (1894). So also where there is a power of appointment and a remainder in default of appointment, the exercise of the power is construed as a condition subsequent and the remainders are vested; Gray, Rule Perp., 2 ed. (1906), §112; Challis, Real Prop., 2 ed. (1892), p. 65, semble; Freeman's Est., No. 1, 35 Super. Ct. 185 (1908).

Remainders After an Estate Tail

9

8

47. A remainder after an estate tail, not subject to any condition precedent, was, of course, vested. When such remainders could be barred by the destruction of the estate tail, the contingency of the tenant in tail not suffering a recovery or levying a fine was considered as a condition subsequent and the remainders were still regarded as vested. As the estate tail is obsolete in Pennsylvania, these remainders are likely to be of infrequent occurrence. Vested remainders after an estate tail, when it is turned into a fee, become executory devises.10 As a case of an old estate tail may arise, it is perhaps worth noting that a limitation over after indefinite failure of issue after a previous life estate or a fee, was construed as an estate tail. This was a rule of construction adopted in order that the limitation over could take effect. Consequently, the limitation which would otherwise be void as an executory devise was valid as a vested remainder. The dictum contra of Woodward, J., in Vaughan v. Dickes, is inexplicable.

Origin of Contingent Remainders

48. Where, however, the remainder was subject to a condition precedent, the case was different. It could not be said to vest immediately in anyone, because it could not vest until the condition happened. It could not, therefore, fulfill the feudal notion of substitution for the reversion, nor could it partake of the seisin distributed by the feoffor at the time

8 Gray, Rule Perp., 2 ed. (1906), §111; Eichelberger v. Barnitz, 9 Watts, 447, Sergeant, J., at 450 (1840), semble; Lapsley v. Lapsley, 9 Pa. 130 (1848), vested remainders after an estate tail were barred by a common recovery in Pennsylvania and by a deed under the Act of January 16, 1799. Eichelberger v. Barnitz, 9 Watts, 447 (1840); Vaughan v. Dickes, 20 Pa. 509 (1853). 9 See $23, ante.

10 For instances of a vested remainder after an estate tail, see Clark v. Baker. 3 S. & R. 470 (1817), and Irvin v. Dunwoody, 17 S. & R. 61 (1827).

2 Lewis, Perp., (1843), pp.177,178. It is to be observed, however, that the failure may be in issue of the devisce taking an estate capable of being enlarged or diminished, or may be failure in the issue of a third party. There is, of course, no room for implication of an estate tail except in the first instance. See Jarman on Wills, 6th Amer. ed. (1893), Vol. 1, Chap. 17, §6; Lewis, Perp. (1843), pp. 175-177.

3 See remark of Sergeant, J., in Eichelberger v. Barnitz, 9 Watts, 447 at 450 (1840).

420 Pa. 509 at 514 (1853).

he made the feoffment. The result was the same whether the condition was sure to happen or might never happen. A remainder subject to a condition precedent was therefore utterly void at the early common law. The history of contingent remainders is involved in great obscurity, and many interesting points yet remain to be cleared up.

Contingent Remainders Valid

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49. The validity of remainders subject to a condition precedent, was finally allowed when the contingency happened before or at the termination of the preceding estate. The contingent remainderman was then entitled to the remedy of a vested remainderman, the remainder becoming vested. The difficulty consisted in giving the remainderman any seisin when the contingency happened. He was not present at the feoffment; how, then, could he acquire any seisin? The difficulty was gotten over by the fiction of a constructive seisin, by the notion that a seisin sprang from another part of the fee to sustain the remainder, when the event happened. If the contingency happened after the termination of the preceding estate, the contingent remainder could never take effect."

Definition of a Contingent Remainder

7

50. A contingent remainder, therefore, was a remainder subject to a condition precedent, which condition might be (1) the ascertainment of a person; (2) the happening of an event other than the regular termination of the preceding estate.

5 Date uncertain. Digby, Hist. Law Real Prop., 5 ed., (1897), p. 265, says by the reign of Edward III., middle of 14th Cent.; Williams on Real Prop., 6 Amer. ed. (1886), p. 263, says by the end of the 15th Century. Earliest form appears to have been to A. for life, and then to the heirs of B. Digby, ubi supra. p. 266.

For further discussion of this point, see §§54-62, on destructibility of contingent remainders.

7 Mr. Fearne's definition is as follows: Remainders, p. 3: "A contingent remainder is a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the

determination of the preceding estate,

8

for if the preceding estate determine before such event or condition happens, the remainder will never take effect."

8

This is the classification suggested by Lord Chief Justice Willes, in Smith v. Packhurst, House of Lords, 3 Atk. 135 (1742): (1) where a remainder is limited to a person not in being, and who may possibly never exist; (2) where the remainder depends on a contingency collateral to the continuance of the particular estate. All four classes of Mr. Fearne may be reduced to these two heads. See article Vested and Contingent Interests and the Rule against Perpetuities, 56 Univ. of Pa. Law Rev., p. 245 (1908).; Challis, Real Prop., 2 ed. (1892), p. 65.