adverse possession against the tenant of the precedent life estate. The remainder, if it is going to take effect at all, becomes vested at or immediately before the termination of the preceding estate. The right of action or right of entry on the part of the remaindermen, therefore, accrues at that time, and the statute begins to run from the termination of the precedent life estate." The Natural Termination of the Precedent Particular Estate 61. A contingent remainder was always destroyed by the termination of the precedent life estate before the happening of the contingency. It is clear that this is the law in Pennsylvania today. It was doubtful at common law whether an infant en ventre sa mere could take by virtue of a contingent remainder if the precedent estate expired before his birth.3 This doubt has been remedied by statute in England. There is no such statute in Pennsylvania, and the law, therefore, is in the same condition of uncertainty as at common law, as the point does not appear to have been decided. By statute in England, contingent remainders which conform to the rule against perpetuities are saved from destruction by the termination of the precedent estate before the happening of the contingency. There is no such act in Pennsylvania, and the law is clear that the remainders are destroyed by such termination. Summary of Law in Pennsylvania as to Destructibility of Contingent Remainders 8 or 62. It will therefore appear that contingent remainders in 7 surrender, merger Pennsylvania are destroyed by the surrender, natural expiration of the preceding estate upon which they depend, and also by a common recovery suffered by the tenant of that preceding estate tail; that it is doubtful whether they are destroyed by forfeiture of the preceding estate for treason or for violation of a restriction imposed by a previous owner of the title,10 and that they are not destroyed by a 5 Challis, Real Prop., 2 ed. (1892), p. 129. 2 See Gernet v. Lynn, 31 Pa. 94 (1857), semble. The point does not appear to have been expressly decided. 3 Challis, Real Prop., 2 ed. (1892), p. 128. 4 129. 6 §56, ante. 7 §57, ante. 8 §61, ante. 9 Challis, Real Prop., 2 ed. (1892), p. 9 §55, ante. conveyance of the preceding estate by a lease and release,11 by a Pennsylvania deed under the Act of 1715," or by a conveyance by the cestui que trust."1 Distinction Between Vested and Contingent Remainders 63. It is not easy to state the distinction between a vested and contingent remainder. The difficulty is caused by the perhaps unconscious effort to make the conception of a vested and contingent remainder square with the natural idea of certain and uncertain future interests. It is therefore frequently concluded that the uncertainty of its ever taking effect is a distinguishing characteristic of a contingent remainder. This notion is erroneous, as is also the idea that a vested remainder is a remainder which is certain to take effect. A vested remainder may be just as uncertain of coming into possession as is a contingent remainder. The distinction between a vested and contingent remainder lies solely in the absence or presence of a condition precedent incorporated into the gift, and the certainty or uncertainty of its ever coming into possession is utterly immaterial. This distinction was a vital one while the common law doctrines relating to seisin prevailed. Although the importance of seisin has disappeared, the distinction remains as a mere empty form of words entirely disassociated from any natural conception of a classification of future interests, and it is this unhappy legacy from the common law which causes the difficulty. The distinction has 11 §59, ante. 1 See remarks of Willes, C. J., in Smith v. Packhurst, 3 Atk. 135, House of Lords (1742), as follows: "The definition of a contingent remainder laid down by the counsel for the plaintiff that a remainder was contingent when it was uncertain whether it would take effect or not, is by no means the legal notion of a contingent remainder." See also remarks of Allison, J., in Kirk's Est., 6 Phila. 73 at middle of page 74, (1865). 2 A vested remainder is uncertain to arise when it is liable to be prevented from coming into possession by the happening of an uncertain event. Thus, where there is a devise 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, B. has a vested remainder which may never take effect. This is the case discussed by Mr. Gray, Rule Perp., 2 ed. (1906), §104 et seq., and Mr. Kales, 20 Harv. Law Rev., 192 (1907). The difficulty in the case is caused by the attempt to force this remainder into the class of contingent remainders, merely because it is uncertain to arise, and the condition is precedent to the coming into possession. been perpetuated because of the difference in the attributes of the two kinds of remainders.3 5 6 Mr. Gray's Distinction 64. Mr. Gray draws the line between vested and contingent remainders thus: "A remainder is vested in A., when throughout its continuance, A., or A. and his heirs, have the right to immediate possession whenever and however the preceding estate may determine." This test is merely a statement of the practical result of the circumstance that a vested remainder is never subject to a condition precedent. There is, therefore, no inconsistency between this and the language of Mr. Gray, where he says that the distinction depends on the language used. The question whether there is a condition precedent depends on the form of the gift. If there is no condition precedent, the practical results stated in the test follow. Mr. Kales appears to have misunderstood this proposition. Mr. Gray says the remainder is vested in A., when throughout its continuance, A., etc. Mr. Kales speaks of the remainder as being vested, when the remainder is ready throughout its continuance, etc., overlooking the fact that there must be a specific person who is ready, etc. From this misapprehension, he slips into the fallacy that a limitation to A. for life, remainder to his surviving children, may be a vested remainder in the children because under certain construction which may be put upon the gift, the gift, the children are ready at all times to take whenever and however the precedent estate ends. This remainder, however, cannot be vested, because even if there is a child ascertained he cannot take until he has fulfilled the condition precedent of surviving A. It is further to be observed that Mr. Gray's test does not actually solve the problem because the vital question is this: when there is a right to immediate possession, and the answer to this question depends on whether there is or is not a condition precedent. 3 The learned reader will observe that a remainder may be contingent as originally limited in the settlement, but by the happening of the event may, when the time for the consideration arises, be a vested remainder. 5 Rule Perp., 2 ed. (1906), §101. Gray, Rule Perp., 2 ed. (1906), §108, although Mr. Kales, in 20 Harv. Law Rev., 192, 193 (1907), supposes such an inconsistency to exist. 620 Harv. Law Rev., 192, 193 (1907) 40 VESTED, CONTINGENT REMAINDERS DISTINGUISHED [65–67] Obliteration of the Distinction Between Vested and 3 2 Contingent Remainders 65. The vesting in interest of the vested remainder gave it certain attributes which did not pertain to a contingent remainder. The contingent remainder has acquired all of the attributes in Pennsylvania of a vested remainder except two: (1) the quality of assignability at law inter vivos; but as a contingent remainder is unquestionably assignable in equity, the distinction is not of great practical importance. (2) The other distinction is the destructibility of the contingent remainder, by the termination of the preceding estate before the happening of the contingency. It is hardly likely that the court can get rid of these distinctions without the assistance of the legislature. It is very much to be desired that these distinctions be abolished, as there is no practical usefulness whatever in maintaining the two kinds of remainders. Remainder to the Unborn Child of an Unborn Person 66. It has been said that there was a common law rule that you could not limit a remainder to the unborn child of an unborn person, because you could not have a possibility upon a possibility. Mr. Gray examines this doctrine most thoroughly, and comes to the conclusion that there is no such rule of common law. It appears to have been recognized in England, and it is perfectly possible for the Supreme Court in Pennsylvania to reach a similar conclusion. The question whether this rule shall be adopted seems to be one rather of expediency than of principle, and is discussed in the subsequent part of the work relating to the application of the rule against perpetuities to contingent legal remainders.8 Remainders to a Class 67. The case of a remainder to a class stands midway between a vested remainder and a contingent remainder. The statement usual in the books is that the remainder is to the class, as if the class were an entity; that the remainder vests as soon as one member of the class is ascertained and then opens to let in after-born children." Mr. Gray's View of Remainders to a Class 68. Mr. Gray 10 is of the opinion that although the remainder is said to be vested, it is in truth contingent; that it is vested in so far as it is certain that whenever and however the preceding estate determines there will be one or more persons who will surely come into possession of the land ;1 but contingent in so far as it is not certain what the number of those persons will be. In other words, as the number and consequent size of the share is contingent, the remainder cannot be truly said to be in all respects vested. This position of the learned author is made necessary by his apparent acceptance of the notion that the gift is to the class. The test suggested, as to the vesting of the remainder, only applies to the case where one or more members are ascertained. This view has the further disadvantage that under it the remainder is named as vested, and then described and analyzed as contingent, a confusion in terminology to be avoided, if possible. Author's View of Remainders to a Class 69. It is suggested that the remainder is not to the class but to the members of the class as individuals. Those who 9 See Keller v. Lees, 176 Pa. 402 (1896). In this case the court said that the remainder became vested as soon as a child was born, and therefore the case was not within the Act of 1853, see $59, n. 9, ante, providing for the sale of land subject to contingent remainders. If, however, the interest of one child was vested, that was enough, under the law as it then stood, to prevent the sale. The other remainders could not be divested and the one remain, because it could not be determined until the termination of the life estate, what the share of each in the land would be. It is suggested that this was the proper ground for the decision. Crawford v. 1 This language should, of course, be understood, although such may not have been the author's meaning, to have reference only to the case where there has been at least one member of the class already ascertained. 2 If the uncertainty that a remainder will ever take effect cannot destroy its quality as a vested remainder, neither, it is submitted, can the uncertainty of the value of the remainder be of any moment. |