Remainders After an Estate Tail

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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a fine was considered as a condition subsequent and the remainders were still regarded as vested.8 As the estate tail is obsolete in Pennsylvania, these remainders are likely to be of infrequent occurrence.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 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.

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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).

4 20 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

50. A contingent remainder, therefore, was a remainder 7 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,

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.

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Attributes of a Contingent Remainder at Common Law

51. A contingent remainder was nothing in the eye of the law. It was a mere possibility, and consequently was not transmissible to heirs, and was not alienable inter vivos, nor devisable by will. A contingent remainder was also liable to be destroyed by the destruction or termination of the preceding particular estate before the happening of the condition precedent.10

52.

Attributes of a Contingent Remainder in Pennsylvania

Under the law of Pennsylvania, a contingent remainder, before the happening of the contingency, is subject to execution,' is inheritable when the person who is to take is ascertained, and probably devisable. A contingent remainder is not assignable at law by deed inter vivos, although the deed may operate as an estoppel in equity.3

Contingent Remainders in Pennsylvania

53. The same principles govern the creation of contingent remainders in Pennsylvania, as obtained at common law. A few examples are given in the note.*

9 Challis, Real Prop., 2 ed. (1892), p. 76. 10 For a discussion of this, see §§5462, post.

1 Drake v. Brown, 68 Pa. 223 (1871); see, however, Wilson v. Denig, 166 Pa. 29 (1895).

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2 Brooke's Est., 15 D. R. 137 (1905). Stewart v. Neely, 139 Pa. 309 (1890). Remainders to an unascertained person. Remainder to the heir male of A. if living at her death. Contingent remainder in the heirs male: Dunwoodie v. Reed, 3 S. & R. 435 (1817); Challis, Real Prop., 2 ed. (1892), p. 120. To A. for life, then to her only heir during its life; contingent remainder in the heir, as the meaning was, to such person as should be A.'s heir: Bennett v. Morris, 5 Rawle, 9 (1835). Remainders to a class are discussed §§67-71, post. Contingent remainders to an ascertained person subject to a condition precedent. To A. for life, and after his decease,

if he shall die leaving lawful issue, to his heirs as tenants in common, and their respective heirs and assigns forever, but in case he shall die without leaving lawful issue, then to B. and his heirs; contingent remainder in B.: Stump v. Findlay, 2 Rawle, 168 (1828). To A. for life, and if he have lawful issue, to him in fee, and if he should die without leaving issue, then to testator's other children in fee, in equal shares; contingent remainder in A.: Waddell v. Rattew, 5 Rawle, 231 (1835); see also Drake v. Brown, 68 Pa. 223 (1871). To a daughter and her husband for life, and if she dies without children, her husband, if he survives her, to have the property (by codicil) in fee, contingent remainder in husband: Fife v. Miller, 165 Pa. 612 (1895). Contingent remainders of this class are rare, as in most cases the court will construe, see §46, ante, the condition as a condition subsequent.

Preliminary Discussion of Destructibility of Contingent Remainders

54. Whenever the preceding particular estate came to an end or was destroyed before the happening of the event, the contingent remainder limited thereon was deprived of any opportunity of taking effect, or, as was more commonly though less accurately said, the contingent remainder was destroyed. The circumstances mentioned prevented the remainder from existing. It could not be destroyed before it existed. The common statement is, however, perhaps sufficiently accurate for practical use, and will be adopted in the discussion which follows. If the event happened before the termination or destruction of the preceding estate, the remainder at once became vested. The destruction or termination of the preceding estate might happen in one of several ways: (1) forfeiture, (2) surrender, (3) merger, (4) tortious alienation, (5) turning to a right of action, (6) natural expiration of the precedent estate. In England, as well as in some jurisdictions in this country, statutes have been passed saving contingent remainders upon the too early termination or the destruction of the preceding estate.? There is no such statute in Pennsylvania. It will therefore be necessary to ascertain how far the destruction of the preceding particular estate will destroy contingent remainders limited thereon in Pennsylvania. The subject can be conveniently discussed under the headings above indicated."

Forfeiture

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55. When the tenant of the preceding estate did any act which resulted in forfeiture of his estate, the contingent remainders limited thereon were destroyed if the event had not yet happened.1 The cases of forfeiture which could occur at common law are, with the exception of the common recovery, obsolete in modern times. There are a few instances, however,

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which may occur in Pennsylvania. Forfeiture for treason is limited by the constitution of Pennsylvania,3 to the life of the offender. It is doubtful how far forfeiture of the life estate in such case would destroy the contingent remainders limited thereon. Where there is a valid clause of forfeiture attached by a donor to a life estate, with contingent remainder limited thereon, and the forfeiture takes place, it is apprehended, although no case has been found, that the contingent remainders will be destroyed. So also alienation in mortmain without license will work a forfeiture, and probably destroy the contingent remainders limited on the life estate aliened.

Surrender

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56. Surrender was where the tenant of the precedent estate gave up his estate to the next vested remainderman. This resulted at common law law in squeezing out the intervening contingent remainders, if any. There is no reason why the law should be different in Pennsylvania. The question does not seem to have arisen.

Merger

57. Merger was where the next vested estate of inheritance came to the tenant of the preceding estate, which could happen by a conveyance or devise. Merger operated to destroy the contingent remainders limited on the preceding estate.3 The law in Pennsylvania appears to be the same." Where the merger takes place simultaneously with the creation of

3 Art. 1, §19, Const. of 1874.

There is a dictum in Evans v. Davis, 1 Yeates, 332 at 341, 342 (1794), that forfeiture of the particular estate for treason destroys the contingent remainders limited thereon, which dictum was criticised by Gibson, J., in Lyle v. Richards, 9 S. & R. 322 at 344 (1823), on the ground that the life estate only was forfeited to the commonwealth, just as it existed in the traitor, and there was no annihilation of the life estate itself. No other case on the point has been found.

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