Ancestor need not have an estate for the by the words of the gift or conveyance, a purchaser of any separate and independent estate for himself. The rule, it will be observed, requires that an estate of freehold merely should be taken by the ancestor, and whole of his life. not necessarily an estate for his own life or in tail. In the examples we have given, the ancestor has had an estate at least for his own life, and the enjoyment of the lands by other parties has postponed the enjoyment by his heirs. But the ancestor himself, as well as his heirs, may be deprived of possession for a time; and yet an estate in fee simple, or fee tail, may be effectually vested in the ancestor, subject to such deprivation. For instance, suppose lands to be given to A., a widow, during her life, provided she continue a widow and unmarried, and after her marriage, to B. and his heirs during her life, and after her decease, to her heirs. Here A. has an estate in fee simple, subject to the remainder to B. for her life, expectant on the event of her marrying again (g). For, to apply to this case the same reasoning as to the former ones, A. has still an estate to her and to her heirs. She has the freehold or feudal possession, and, after her decease, her heirs are to have the same. It matters not to them that a stranger may take it for a while. The terms of the gift declare, that what was once enjoyed by the ancestor, shall afterwards be enjoyed by the heirs of such ancestor. These very terms then make an estate in fee simple, with all its incidental powers of alienation, controlled only by the rights of B. in respect of the estate conferred on him by the same gift. Where the an estate of free But, if the ancestor should take no estate of freehold cestor takes no under the gift, but the land should be granted only to his heirs, a very different effect would be produced. In such a case, a most material part of the definition of an hold. (g) Curtis v. Price, 12 Ves. 89. estate in fee simple would be wanting. For, an estate in fee simple is an estate given to a man and his heirs, and not merely to the heirs of a man. The ancestor, to whose heirs the lands were granted, would accordingly take no estate or interest by reason of the gift to his heirs. But the gift, if it should ever take effect, would be a future contingent estate for the person, who, at the ancestor's decease, should answer the description of heir to his freehold estates. The gift would, accordingly, fall within the class of future estates, of which an explanation is endeavoured to be given in the next two chapters (h). (h) The most concise account of the rule in Shelley's case, together with the principal distinctions which it involves, is that given by Mr. Watkins in his Essay on the Law of Descents, pp. 154, et seq. (194, 4th edit.) Vested remain ders do not ren der the land inalienable. CHAPTER II. OF A CONTINGENT REMAINDER. HITHERTO We have observed a very extensive power of alienation possessed by a tenant in fee simple. He may make an immediate grant, not of one estate merely, or two, but of as many as he may please, provided he ascertain the order in which his grantees are to take possession (a). This power of alienation, it will be observed, may in some degree render less easy the alienation of the land at a future time; for, it is plain, that no sale can in future be made of an unincumbered estate in fee simple, in the lands, unless every owner of each of these estates will concur in the sale, and convey his individual interest,-whether he be the particular tenant, or the owner of any one of the estates in remainder. But, if all these owners should concur, a valid conveyance of an estate in fee simple can at any time be made. The exercise of the power of alienation, in the creation of vested remainders, does not, therefore, withdraw the land for a moment from that constant liability to complete alienation, which it has been the sound policy of modern law as much as possible to encourage. But, great as is the power thus possessed, the law has granted to a tenant in fee simple, and to every other owner to the extent of his estate, a greater power still. Future estates, For, it enables him, under certain restrictions, to grant estates to commence in interest, and not in possession merely, at a future time. So that, during the period which may elapse before the commencement of such es (a) Ante, pp. 188, 189. } kinds. tates, the land may be withdrawn from its former liability to complete alienation, and be tied up for the benefit of those who may become the owners of such future estates. The power of alienation is thus allowed to be exercised in some degree to its own destruction. For, till such future estates come into existence, they may have no owners to convey them. Of these future estates there hitherto of two have hitherto been two kinds, a contingent remainder, and an executory interest. The former was allowed to be created by any mode of conveyance. The latter ́ could arise only by the instrumentality of a will, or of a use executed, or made into an estate, by the Statute of Uses. But, by the recent act to simplify the transfer Contingent of property (b), it is provided (c), that, after the 31st of remainders now December, 1844, no estate in land shall be created by way of contingent remainder; but every estate, which, before that time, would have taken effect as a contingent remainder, shall take effect, (if in a will or codicil,) as an executory devise, and (if in a deed) as an executory estate of the same nature, and having the same properties, as an executory devise. The nature of an executory devise will be explained in the next chapter. The present will be devoted to contingent remainders, which, though abolished for the future, still subsist under instruments executed prior to the commencement of the operation of the recent act. abolished. anciently il naol The simplicity of the common law allowed of the Contingent recreation of no other estates than particular estates, fol- mainders were lowed by the vested remainders, which have already legal. occupied our attention. A contingent remainder,—a remainder not vested, and which never might vest,was long regarded as illegal. Down to the reign of Henry VI., not one instance is to be found of a con tingent remainder being held valid (d). The early authorities on the contrary are rather opposed to such a conclusion (e). And, at a later period, the authority of of Littleton is express (ƒ), that every remainder, which beginneth by a deed, must be in him to whom it is (d) The reader should be informed that this assertion is grounded only on the writer's researches. The general opinion appears to be in favour of the antiquity of contingent remainders. (e) Year Book, 11 Hen. IV. 74; in which case, a remainder to the right heirs of a man, who was dead before the remainder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, with remainder to the right heirs of a man who was living, the remainder would be void, because the fee ought to pass immediately to him to whom it was limited. Note also, that in Mandeville's case, (Co. Litt. 26 b,) which is an ancient case of an heir of the body taking by purchase, the ancestor was dead at the time of the gift. The cases of rents are not apposite, as a diversity was long taken between a grant of a rent and a conveyance of the freehold. The decision in 7 Hen. IV. 6 b, cited in Archer's case, (1 Rep. 66 b,) was on a case of a rent charge. The authority of P. 11 Rich. II. Fitz. Ab. tit. Detinue, 46, which is cited in Archer's case, (1 Rep. 67 a,) and in Chudleigh's case, (1 Rep. 135 b,) as well as in the margin of Co. Litt. 378 a, is merely a statement by the judge of the opinion of the counsel against whom the decision was made. It runs as follows:"Cherton to Rykhil,-You think (vous quides) that inasmuch as A. S. was living at the time of the remainder being limited, that if he was dead at the time of the remainder falling in, and had a right heir at the time of the remainder falling in, that the remainder would be good enough. Rykhil-yes, Sir; and afterwards, in Trinity Term, judgment was given in favour of Wad: [the opposite counsel], quod nota bene." It is curious that so much pains should have been taken by modern lawyers to explain the reasons, why a remainder to the heirs of a person, who takes a prior estate of freehold, should not have been held to be a contingent remainder, (see Fearne, Cont. Rem. 83, et seq.) when the construction adopted, (subsequently called the rule in Shelley's case,) was decided on before contingent remainders were allowed. (f) Litt. s. 721; see also M. 27 Hen. VIII. 24 a. |