*249

and the person who succeeded took by purchase. But the decision of the K. B. upon that point was reversed by the house of *lords;a and it is now the settled law in England and in this country, that an infant en ventre sa mere, is deemed to be in esse, for the purpose of taking a remainder, or any other estate or interest which is for his benefit, whether by descent, by devise, or under the statute of distributions.b

The remainder must be so limited as to await the natural determination of the particular estate, and not to take effect in possession upon an event which prematurely determines it. This is the true characteristic of a remainder; and the law will not allow it to be limited to take effect on an event which goes to defeat, or abridge, or work the destruction of the particular estate; and if limited to commence on such a condition, it is void. Thus, if there be a lease to A. for life, and if B. do a certain act, that the estate of A. shall then cease, and the remainder immediately vest in C., it is clear that the remainder will be void in that case.d This rule applies to common law conveyances, and follows from the maxim that none but the grantor and his heirs shall take advantage of a condition; and both the preceding estate and the remainder are defeated by the entry of the grantor. If limitations on such conditions be made in conveyances to uses and in wills, they are good as conditional limitations, or future or shifting uses, or executory devises; and upon *250 the breach of the *condition the first estate, ipso facto, determines without entry, and the limitation over com

Reeve v. Long, 1 Salk. 227.

Willes, Ch. J., in Goodtitle v. Wood, cited in 7 Term Rep. 103, note. Stedfast v. Nicoll, 3 Johns. Cas. 18. Swift v. Duffield, 5 Serg. & Rawle, 38. Statute of Alabama, 1812. Harper v. Archer, 4 Smedes & Marshall, 99. Marsellis v. Thalkimer, 2 Paige, 35. In the two last cases it was decided, that, as respects the rights of others, a child born dead, within such an early stage of pregnancy as to be incapable of living, is not deemed to have been in esse; and if born within the first six months after conception, the presumption is that it was incapable of living. This is the rule of the civil law, as adopted in the Code Napoleon, art. 312. 314, and in the Civil Code of Louisiana, art. 205.

• Cogan v. Cogan, Cro. Eliz. 360. Ploud. Rep. 24. b. 29. a. b. Plowd. Rep. 29. b.

Fearne on Remainders, 332.

mences in possession. The distinction appears to turn essentially on the difference between a limitation and a condition; and the remainder over will be good in the former case; for it is of the nature of a limitation to embrace those estates to which fixed boundaries are prescribed, and which, by the terms of the instrument creating them, expire when they have arrived at those limits.b

The New-York Revised Statutesc allow a remainder to be limited on a contingency, which, in case it should happen, would operate to abridge or determine the precedent estate; and every such remainder is to be construed a conditional limitation, and to have the same effect as such a limitation would have at law. This legislative provision meets the very case, and abolishes the strict and hard rule of the old law applicable to common law conveyances; but as a rule was never applied to conveyances to uses, or to devises, the statute only reaches a dormant principle, which is rarely, if ever, awakened at the present day. The New-York Revised Statutes, in many other respects, have made very essential alterations in the common law doctrine of remainders; and a summary of those alterations cannot be unacceptable to the student in every state. Thus, a contingent remainder in fee may be created on a prior remainder in fee, to take effect in the event that the prior estate determines before the person to whom it is limited attains the age of twenty-one.d No remainder can be created upon an estate for the life of any other person or persons than the grantee or devisee of such estate, unless such a remainder be a fee; nor can a remainder be created upon such an estate in a term for years, *unless it be for the whole residue of such term.e Nor #251 can a remainder be made to depend upon more than two successive lives in being; and if more lives be added, the remainder takes effect upon the death of the first two persons named. A contingent remainder cannot be created on

Fearne on Remainders, 319.

See supra, p. 126.

• Vol. i. 725. sec. 27.

d New-York Revised Statutes, vol. i. 723. sec. 16.

Ibid. vol. i. 724. sec. 18.

f Ibid. sec. 19.

a term for years, unless the nature of the contingency on which it is limited be such that the remainder must vest an interest during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof.a No estate for life can be limited as a remainder on a term of years, except to a person in being at the creation of such estate. A freehold estate, as well as a chattel real, (to which these regulations equally apply,) may be created to commence at a future day; and an estate for life may be created in a term of years, and a remainder limited. thereon; and a remainder of a freehold or chattel interest, either contingent or vested, may be created expectant on the determination of a term of years. Two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it; and no future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect. When a remainder on an estate for life, or for years, shall not be limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect only on the death of the first taker, or the expiration by lapse of time, of such term of years. No expectant estate shall be defeated or barred by any alienation, *252 or other act of the owner of the intermediate estate,

e

nor by any destruction of such precedent estate by disseisin, forfeiture, surrender, merger or otherwise, except by some act or means which the party creating the estate shall,

New-York Revised Statutes, vol. i. 724. sec. 20.

Ibid. vol. i. 724. sec. 21. Upon a devise to A. for fifty years as an absolute term, remainder to B. for life if he should marry C., and remainder to the children of such marriage; here the remainder to B. is contingent, but must vest in interest, if ever, in his lifetime, and fails if he dies within the term. The ultimate remainder must vest, if ever, within the period of one life in being at the death of the testator. The first child would, upon its birth, take a vested interest in the ultimate remainder in fee, subject to open and let in after-born children. Marsellis v. Thalkimer, 2 Paige, 35. Hawley & King v. James and others, 5 Paige, 318. S. C. 16 Wendell, 61. Vide supra, p. 205.

a Ibid. vol. i. 724. sec. 24.

d Ibid. vol. i. 724. sec. 25, 26.

e Ibid. vol. i. 725. sec. 29.

in the creation thereof, have provided for or authorized.a Nor shall any remainder be defeated by the determination of the precedent estate before the happening of the contingency on which the remainder is limited to take effect; and should the contingency afterwards happen, the remainder shall take effect in the same manner, and to the same extent, as if the precedent estate had continued to the same period.b

Some of the above enactments are not very material, and are only declaratory of the existing law; but those which relate to the precedent estate, and render such an estate no longer requisite to sustain the remainder, will produce a very beneficial change in the doctrine of remainders, and disperse a cloud of difficulties, and a vast body of intricate learning relating to the subject. As these provisions do not affect vested rights, nor the construction of deeds and instruments which took effect prior to the first of January, 1830, the learning of the English law on the subject of remainders and conveyances to uses, will not become dormant in New-York during the existence of the present generation.

A contingent remainder may fail as to some, and take effect as to other persons, in consequence of some only of the persons entitled in remainder coming in esse during the particular estate; as in the case of a remainder to the right heirs. of A. and B., and A. only dies during the continuance

*of the preceding estate, whereby the remainder vests *253 in his heirs.d

The Massachusetts Revised Statutes of 1835, part 2. tit. 1. c. 59. sec. 7, have made the same provision for the preservation of expectant estates.

New-York Revised Statutes, vol. i. sec. 32, 33, 34. The remainder-man may be let in to defend suits brought against the tenant of the particular estate, or to recover the same when lost by the tenant's default. Ibid. vol. ii. 339. sec. 1, 2. No undue recovery against the tenant bars the title of the remainder-man to relief. Ibid. vol. ii. 340. sec. 6, 7. In Virginia, the doctrines of the common law, relating to the destruction of contingent remainders, by the determination of the particular estate before the contingency, have also undergone essential changes by statute, and the policy of the legislature was to place contingent remainders beyond the reach of accident to the particular estate. Trustees, to preserve contingent remainders, are no longer in much use. Lomax's Digest, vol. i. 457. 463.

• New-York Revised Statutes, vol. i. 750. sec. 11.

d Bro.tit. Done and Rem. pl. 21. Matthews v. Temple, Comb. 467. Fearne on Remainders, 393.

VIII. Of the destruction of contingent remainders.

If the particular estate détermine, or be destroyed before the contingency happens on which the expectant estate depended, and leave no right of entry, the remainder is annihilated. The alteration in the particular estate which will destroy the contingent remainder, must amount to an alteration. in its quantity, and not merely in the quality; and, therefore, the severance of the jointure between two joint-tenants for life, will not destroy the contingent remainder, limited after their joint estate. The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine; for these conveyances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder. So, if the tenant for life disclaimed on record, as by a fine, a forfeiture was incurred upon feudal principles; and if the owner of the next vested estate of freehold entered for the forfeiture,

the contingent remainder was destroyed. A merger, *254 by the act of the parties, of the particular estate, is

also equally effectual as a fine to destroy a contingent remainder.d But with respect to this doctrine of merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the particular estate for life by descent; for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception, that if the descent from the testator, or the particular tenant, be immediate, there is no merger; as

Fearne on Remainders, 426. Lane v. Pannel, 1 Rol. Rep. 238. 317.438. Harrison v. Belsey, T. Raym. 413.

b Archer's Case, 1 Co. 66. Chudleigh's Case, 1 Co. 120. 137. b. 2 Rol. Abr. 418. pl. 1, 2. Purefoy v. Rogers, 2 Lev. 39. Chudleigh's Case is a strong authority to prove that a feoffment, without consideration, and even with notice in the feoffee of the trust, will destroy a contingent remainder. It is a doctrine flagrantly unjust, and repugnant to every settled principle in equity, as now understood.

• Co. Litt. 252. a. There has been a long and vexed question in the English law, how far a common recovery, suffered by a tenant in tail, would bar a remainder to the king. It was declared by the highest authorities, in the House of Lords, in the late case of Blosse v. Clanmorris, (3 Bligh, app. 62,) to be still a doubtful point of law. I allude to it merely as fresh proof of the everlasting uncertainty that perplexes this branch of legal science.

d Purefoy v. Rogers, 2 Saund. Rep. 386.