and is in frequent use today. There could be no life estate in a chattel real, because there was a legal presumption that a life estate was greater than a term of years, which, no matter how long, would merge in the life estate; consequently, when there was a grant of a long term of years to one for life, with remainders over, the grant was void and the life tenant took the whole, and, if he died, it went to his executors. This seems to be the law in England today. No case has been found in Pennsylvania. Mr. Gray thinks that a grant of a life estate with remainders over by deed inter vivos would be good in the United States generally. It is probable that the Supreme Court will find some way to sustain the gift. 4 Transfers by Will of Chattels Real 93. The validity, however, of a limitation of a future interest in a term of years after a life estate when made by will, was established in the sixteenth century. The theory upon which it was sustained was this: the apparent order of the limitation was reversed, and the gift of the term to A. for life and after his death to B., was considered as a gift by way of an executory devise or bequest of the whole term to B., after the death of A., and then a gift of what remained to A. The validity of such limitations has been confined in England to gifts by will. No case has been found in Pennsylvania which raises the point nor has any case been found of a limitation of a future interest in a term of years. There is no reason why the law should be different from that which obtains at the common law, and unless, therefore, some particular reason should be pointed out, it would seem that the law in Pennsylvania is the same. Reason Why Question of Future Interest in a Chattel Real Has Not Arisen in Pennsylvania 94. The lessor, the owner of the land, had a reversion after the termination of the lease. A gift to A. for ten years 1 Pollock & Maitland's Hist. Eng. Law, Vol. 2, 1 and 2 ed., 112; Gray, Rule Perp., 2 ed. (1906), §806. In such case, the reversion remains in the owner of the chattel and is a vested interest. Gray, ubi supra §806. 2 Lewis, Perp., (1843), p. 85; Gray, Rule Perp., 2 ed. (1906), §§71, 807, 808. 3 Gray, Rule Perp., 2 ed. (1906), §71b. 4 Gray, Rule Perp., 2 ed. (1906), §71b. 5 Lewis, Perp., p. 85 (1843); Gray, Rule Perp., 2 ed. (1906), §813. 6 Gray, Rule Perp., 2 ed. (1906), §§74, 815. 7 See §§37, 45, ante. 7 created a term of years in A., a leasehold interest. The idea familiar in modern times is that a lease implies a payment of rent and must be drawn up on some one of the forms in common use for that purpose. This idea is not altogether accurate, but represents practically the view of a chattel real in modern times. The tenant is a The tenant is a man who must pay the rent, and that liability to pay the rent is of very little value. The terms of years are usually very short--three or five years generally the longest, and no interest in a leasehold is likely to be of any value until real estate conditions change very materially, and until that time none of the questions presented by this discussion are likely to occur in Pennsylvania law. A gift of a term of years is very rare in Pennsylvania. Gifts Inter Vivos of Chattels Personal 8 9 95. An absolute interest was the only kind of interest recognized in chattels personal and a gift of a life estate carried the whole ownership. There could be no reversion or remainder in a chattel personal. The absolute owner of chattels personal, however, might give the use and occupation thereof to another. He might make a bailment. Since a parol gift of a chattel is invalid without delivery, there can be no gift of a chattel personal by parol to begin in futuro.10 If the conveyance is by deed or for value, the law, of course, is otherwise. It seems, therefore, that in England there can be no limitation of a future legal interest in chattels personal by deed inter vivos. Mr. Gray points out there is no decision or authoritive dictum to that effect, that the authority of Blackstone 2 is to the contrary, and that it is the law in the United States generally that legal future interests in personal property may be limited by deed inter vivos.3 No case has been found in Pennsylvania on this point, but there is no reason why such a limitation should not be valid 8 Gray, Rule Perp., 2 ed. (1906), §822; Ames, Disseisin of Chattels, 3 Harv. Law Rev., 23, 313, 337 (1890); Maitland, Seisin of Chattels, 1 Law Quar. Rev., 324 (1885). 'Gray, Rule Perp., 2 ed. (1906), §§78, 825. 10 Gray, Rule Perp., 2 ed. (1906), §77. 1 Gray, Rule Perp., 2 ed. (1906), §829. 22 Bl. Com., 398. 3 Gray, Rule Perp., 2 ed. (1906), §§91, 97, 844. 4 The validity of such limitation seems to be admitted by Woodward, J., in a dictum in Brink v. Michael, 31 Pa. 165 at 169, 3rd paragraph, opinion (1858). and of the same nature as a future interest limited by will.5 But on the other hand since an executory bequest cannot be created by deed, it seems that such an interest, if limited by deed, must take effect as a remainder. Gift by Will of Chattels Personal 96. The validity of a bequest of chattels personal to A. for life, and after his death to B., was established by the last half of the seventeenth century, on the ground that there was a bequest of the use and occupation to the life tenant for his life, and a bequest of the right of property to B., and the validity of such bequests in modern times is unquestioned." Law as to Future Legal Interests in Personal Property Created by Will in Pennsylvania 97. A future legal interest in personal property can be created by will in Pennsylvania, is devisable, assignable in equity, and passes to personal representatives if the legatee as 7 Gray, Rule Perp., 2 ed. (1906), §95. The theory upon which the bequest is to be sustained is not clear. There are, according to Mr. Gray, taking the case of a bequest of a personal chattel to A. for life, and at his death to B., three views: (1) A. may be considered having a right to possession at law, and the immediate vested right of property as being in B. (2) A. may be considered as having the legal right to property which at his death shifts to B. (3) The whole interest may pass at law to A., who will hold the chattel in trust for himself for life, and, on his death, for B. Mr. Gray, ubi supra §90a, says that the choice between the theories is material in determining whether (1) there is a reversion after a gift of a life estate, without any disposition of the remainder; (2) whether the future interest violates the rule against perpetuities. It is submitted that the first question does not concern us here, because if there is a reversion, it is not subject to the rule, and if there is no reversion, the first taker has the whole interest, and there is no occasion for the rule to apply. As to the second, the learned reader will find the subject discussed in chapter 16, dealing with the interests subject to the rule. See also Gray, Rule Perp., 2 ed. (1906), Appendix F. 8 Fearne, Remainders, 549. As to the assignability in equity, it is to be observed that the phrase is not strictly accurate. The assignment is of the legal interest, but cannot take effect before the happening of the contingency, because there is nothing to assign. A court of equity, however, compels the assignor to make good the assignment when the contingency happens. The assignment, therefore, does not take place in equity, but is an attempted assignment at law of the legal interest, which the assignor is compelled to perfect under processes of the court of equity, in order to prevent unjust enrichment on his part at the expense of the assignee who has paid for the interest. 9 dies before the happening of the contingency. No case discussing the nature of such an interest has been found, and the remarks of the judges are conflicting. The cases are poorly digested and difficult to find. A few have been collected in the note.10 A future legal interest in personal property created by will may be described as a remainder or executory devise. Unfortunately, however, the courts have carried over into the construction of limitations of future interests in personal property, the feudal notions which obtain at common law with respect to limitations of future interests in real property, and have said that a future interest in personal property is vested when limited by the words which would create a vested interest if the limitation were of real estate, and is contingent when 9 Hopkins v. Jones, 2 Pa. 69 (1845). 10 Pennsylvania cases of future legal interests: Scott v. Price, 2 S. & R. 59 (1815), Tilghman, C. J., said of a gift of money, that it was an executory devise; Deihl v. King, 6 S. & R. 29 (1820), executory devise; Patterson v. Hawthorn, 12 S. & R. 113 (1824). Where there was a gift of personal estate to C. for life, with a gift over at her death if there was a certain sum left to B. and D. and B. died before C. An action of debt was brought by the administrators of B. against the executors of C. Judgment for the plaintiff in the court below was affirmed on appeal. Rogers, J., in the Supreme Court, said: "We are therefore of the opinion that this was an executory devise of all the personal estate to C. with a vested legacy to B. and D. and as such, transmissible to representatives;" Candler v. Dinkle, 4 Watts, 143 (1835); Brownfield's Est., 8 Watts, 465, Kennedy, J., at 469 (1839); King v. King, 1 W. & S. 205 (1841); Kelso v. Dickey, 7 W. & S. 279 (1844); executory bequest; Hopkins v. Jones, 2 Pa. 69 (1845). Fearne, Remainders, p. 402, Butler's Note; Burd v. Burd, 40 Pa. 182 (1861); Stehman's App., 45 Pa. 398 (1863); Kirk's Est., 6 Phila. 73 (1865); Umstead & Reiff's App., 60 Pa. 365 (1869); Chess's App., 87 Pa. 362 (1878); Pennock v. Eagles, 102 Pa. 290 (1883); Gormley's Est., 154 Pa. 378 (1893); Bruch's Est., 185 Pa. 194 (1898). Called a remainder; Zimmerman's Est. 23 Super. Ct. 130 (1903). Future legal interests in personal property are designated as remainders in the Acts of Feb. 24, 1834, P. L. 70, and May 17, 1871, P. L. 269, as to which see $99. Heiss' Est., 1 Pa. C. C. 397 (1886), is a good instance of a life estate in personal property followed by a limitation, called by Penrose, J., at p. 399, an executory bequest. In many cases of a gift of personal property, which, strictly speaking, are limitations at law, the court has said that there was a trust, and considered the case accordingly: Bruch's Est., 185 Pa. 194 (1898); McKee's Est., 198 Pa. 255 (1901); Reilly's Est., 200 Pa. 288 (1901); Menoher's Est., 18 Super. Ct. 335 (1901). In many cases of a residuary clause, where there is real and personal property, the court has not made any distinction. Menoher's Est., 18 Super. Ct. 335 (1901). In a number of cases, where a legacy is given at a future time, the court has said that the legacy is vested in interest with the postponement of time of payment. Maxwell v. McClintock, 10 Pa. 237 (1849). the limitations would create a contingent interest in real estate.1 A future legal interest in personal property, therefore, whatever its nature, may be vested or contingent. This is a case where the law of real property has invaded the domain of personal property. A future legal interest in personal property can take effect even though there is a gap between that and the precedent particular estate, as the doctrines of merger, surrender and tortious alienation are not applied to personal property, and the destruction of the precedent estate will not affect the validity of the contingent interest. The fungible nature of personal property makes all future interests thereof precarious in a manner which does not obtain with respect to remainders in personal property. This difficulty has been remedied in Pennsylvania by the legislation hereinafter referred to.2 Conversion 98. Where there is such a direction in the will that there is an equitable conversion, the conversion operates immediately as of the death of the testator, and the limitations are to be construed as if they were limitations of personal property.3 Strictly speaking, however, the interests are equitable and should not be considered as legal limitations. This point seems to have been overlooked in practice. Pennsylvania Statutes Relating to Future Interests in Personal Property 99. The Act of February 24, 1834, provides that the executors of a will shall not be compelled to deliver personal property bequeathed to a legatee not having an absolute interest therein, without security being given to secure the interest of those entitled in remainder. The Act of May 17, 1871,5 provides that an executor or trustee shall deliver the personal property upon security being entered, and the Act of April 17, 1869, provides that the owner of a contingent interest in personal property may require an account and compel the 1 Candler v. Dinkle, 4 Watts, 143 (1835); Burd v. Burd, 40 Pa. 182 (1861). 2 See §99, post. 3 Patterson v. Hawthorn, 12 S. & R. 113 (1824); Eby's App., 84 Pa. 241, see remarks of Gordon, J., at 245 (1877); Ashton's Est., 134 Pa. 390 (1890). 4 P. L. 70, $49. 5 P. L. 269, §1. |