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Obliteration of the Distinction Between Vested and

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

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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.

Remainders to a Class

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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

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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.
Forest Oil Co., 208 Pa. 5 (1904).
10 Rule Perp., 2 ed. (1906), §§110,
110a, 205a.

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.

are ascertained when the gift is made3 take vested remainders.* The notion that the gift is to a class is a fiction, which no doubt played a part in the development of contingent remainders. While it is not likely that the Supreme Court will easily abandon the notion, it is necessary to clear thinking to bear in mind what the real nature of the remainder is. If the class is such that other members may be ascertained after the date of the gift, there is a contingent remainder as to such members.5 The contingency as to those members not in esse at the time of the gift is that the remainder is to unascertained persons. Such a remainder might partake of the nature of either class of contingent remainders: (1) A gift to a class all of whom will be ascertained before the expiration of the preceding particular estate; a contingent remainder of the second class. (2) A gift to a class, some of whom may not be ascertained until after the expiration of the preceding particular estate; a contingent remainder partaking of the nature of both classes. The remainders vested in the members already ascertained are not disturbed, but there is a diminution in the size or value of each remainder.

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Conditions Annexed to Remainders to a Class

71. A condition may be annexed to a gift of the remainder to a class, which condition may be precedent or subsequent.

3 This is at the testator's death, in the case of a will, and the date of the deed in the case of a gift inter vivos.

4 Gift by a testator to his widow for life, and at her death to his children in equal shares, gives a vested remainder in the children who are ascertained at the testator's death; McKee's App., 96 Pa. 277 (1880); Algaier's Est., 16 D. R. 913 (1907).

5 Consequently, an action of partition at law will not lie during the continuance of the life estate; Gest v. Way, 3 Whart., 445 (1837). The law on this point partially changed by the Act of June 3, 1840, P. L. 593. See opinion of the court below in Seiders v. Giles, 141 Pa. 93 at 99 (1891). For a case of a defective partition under the Act, see Holmes v. Woods, 168 Pa. 530 (1895); see also

Holmes v. Fulton, 193 Pa. 270 (1899). Judgment in ejectment will not be entered for those already ascertained to the exclusion of those who may afterward be ascertained; Rudebaugh v. Rudebaugh, 72 Pa. 271 (1872).

E. g., a gift to A. for life, and after his death to his children, would partake only of the second class, as all his children must be ascertained at his death. There would be no contingency of any child being ascertained after the termination of the preceding particular estate.

7E. g., a gift to A. for life, and after his death to his grandchildren, would partake of the first class, as the grandchildren born after the death of A. could not take because they would be ascertained after the termination of the preceding particular estate.

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When the condition is subsequent, it will not affect the vesting in the members of the class as they are ascertained. The same rule of construction applies here as noted before, and the court will construe the condition as a condition subsequent whenever possible.10

Definition of a Possibility of Reverter

72. The possibility that a fee other than a fee simple absolute may revert to the grantor by the natural determination of the fee or by breach of the condition upon which it is granted, is a possibility of reverter. It is not an estate but a possibility to have an estate at a future time.1

Validity of Possibility of Reverter

73. Mr Gray takes the ground that the Statute of Quia Emptores put an end to determinable fees by abolishing the

8 Thus, a devise to A. for life, remainder to his children, but if any child dies in the lifetime of A., his share to go to those who survive. The remainder is vested in each child as born, subject to be divested. For an instance of a remainder to members of a class vested in one member subject to an executory devise, see DeHaas v. Bunn, 2 Pa. 335 (1845).

9 See $46, ante.

10 See Johnson v. Morton, 10 Pa. 245 (1849). The usual difficulty is over the word "surviving," which will be construed to mean surviving at the death of the testator unless a contrary meaning is clearly indicated. Thus, where there was a devise to A. for life, and when she shall depart this life, the children born of her body shall possess the land, and I give the land at the time of A.'s decease to the children which are born of her body. The children of A. living at the death of the testator took vested remainders: Minnig บ. Batdorff, 5 Pa. 503 (1847). To A. for life, and at his death, to be divided equally among his surviving children. Vested

remainder in the children living at testator's death. Ross v. Drake, 37 Pa. 373 (1860). For a few cases where the remainder was construed as contingent, see Waddell v. Rattew, 5 Rawle, 231 (1835); Goddard v. Goddard, 10 Pa. 79 (1848); Rudy's Est., 185 Pa. 359 (1898).

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1 Gray, Rule Perp., 2 ed. (1906), §31; Challis, Real Prop., 2 ed. (1892) p. 73. Mr. Challis distinguishes several possibilities of reverter. He also points out, p. 66, note, that the word "possibility" has been used in a number of different senses. The distinctions he draws would seem to have no practical value in Pennsylvania law. The word "possibility" is rarely used with us, and when used, would seem to be confined to the possibility of reverter. The use of the word with reference to a contingent remainder is perhaps obsolete now that contingent remainders have acquired a present legal value. See §52, ante, on the attributes of a contingent remainder. 2 Rule Perp., 2 ed. (1906), §§31-41, and Appendix E.

3 Westminster III, 18 Edward I., c. 1 (1289).

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possibility of reverter, without which the words of qualification would be a mere empty declaration. Mr. Challis says that the statute did not put an end to determinable fees, and the instances of determinable fees which he cites which have been recognized in England, would seem to make the question of little practical value. There is a doubt whether the Statute of Quia Emptores is in force in Pennsylvania. Since possibilities of reverter have been recognized and enforced in England, where the statute is admittedly in force, and have also been recognized and enforced in Pennsylvania, any discussion on the Statute of Quia Emptores in this connection would seem to be somewhat remote and is therefore omitted.

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Possibilities of Reverter in Pennsylvania

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74. The cases relating to determinable fees already cited" impliedly recognize the validity of a possibility of reverter. In only three cases has the right actually been enforced. In Henderson v. Hunter v. Hunter the fee had determined, and the grantees thereof were not allowed to recover in an action of trespass q. c. f., as their title was gone. In Courtney v. Keller the right was enforced in an action of ejectment. In Slegel v. Lauer 10 the parties entitled to enforce the reverter filed a bill in equity to have the original deed of conveyance of the determinable fee cancelled, and the court made a decree ordering the deed delivered up and the recorder to cancel the deed on the record. The interposition of equity here seems questionable. The title went back of itself, and if possession were refused the parties entitled could have brought ejectment or trespass, and if there was any doubt about the marketa

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