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Contingent and executory interests.
administrator by remainder. Thus a remainder in a term of years, though it never vested in the testator in possession, and though it continue a remainder, shall go to his executor. Where a lease for years is bequeathed by Will to A. for life, and afterwards to B., who dies before A., although B. never had the term in possession, yet it shall devolve on his executor (f).
With respect to contingent and executory interests, it is established, that contingent and executory estates and possibilities in chattels real, accompanied by an interest, are transmissible to the personal representative of a person dying before the contingency upon which they depend takes effect (g). Thus, in the case above put, where a lease for years is bequeathed to A. for life, and after his death to B. for the residue of the term, B. has only an executory interest during the life of A.; but this interest is transmissible to B.'s executors or administrators (h).
Lord Coke says, that “if a man make a lease for life to one, the remainder to his executors for twenty-one years, the term of years shall vest in him ; for even as ancestor and heir are correlativa as to inheritance, (as if an estate for life be made to A., the remainder to B. in tail, the remainder to the right heirs of A., the fee vesteth in A., as it had been limited to him and his heirs), even so are the testators and executors correlativa as to any chattel. And, therefore, if a lease for life be made to the testator, the remainder to his executors for years, the chattel shall vest in the lessee himself, as well as if it had been limited to him and his executors” (i). And in accordance with this doctrine is the case of Sparke v. Sparke, (40 & 41 Eliz.) in the Common Pleas (k), where the lessor leased for eighty years, if the
Lease for life remainder to the executors of lessee.
(f) Wentw. Off. Ex. 189, 14th edit.
(9) Fearne, 554. 2 Saund. 388, n. note (9), to Purefoy v. Rogers. See post, Pt. II. Bk. III. Ch. III.
(h) Manning's case, 8 Co. 95. Lampet's case, 10 Co. 46: and see
Mr. Fraser's notes in his edition of
(i) Co. Lit. 54, 6.
(k) Cro. Eliz. 666. S. C. Owen, 125. Hal. MS. note (4), to Co. Lit.
lessee should live so long, remainder after his decease to the executors and assigns of the lessee for forty years; and the whole Court was of opinion that this term vested in the lessee, and should go to his executors or administrators as assigns in law.
On the other hand, in a later case of Sparke v. Sparke, K. B. 43 Eliz. (I), (where the facts are stated to be that the lessor let the land to the lessee for ninety years, if he should live so long, and, further, by the same deed vult et concedit, that, after the decease of the lessee, the said land should remain to the executors and assigns of the lessee for forty years), according to the report in Croke, although the Court did not deliver any certain opinion, Popham, J., said stronger case had been adjudged, 17 Eliz., where a lease was made to two for life, remainder to him who should survive of those two, and to his executors for forty years ; they both joined in a grant for this, yet the grant was merely void, because the term was not vested in any of them: And Gaudy, J., seemed to incline, that this term did not vest in the intestate, but it was to be to the executor as a purchaser: And in the reports of the case in Moore (m) and Yelverton (n), it is said to have been adjudged that the lease never vested in the lessee, and therefore did not pass to his administrator, though it would have gone to his executor if he had made one, as a purchaser. So in Cranmer's Case (o), where the Archbishop Cranmer had made a feoffment to the use of himself for life, and after his decease, remainder for twenty years to the use of his executors, and afterwards the Archbishop was attainted; it was held that the remainder for years was not forfeited, because it was never vested in Cranmer in his lifetime. In the earlier case of Sparke v. Sparke (p), Walmsley, J., attempted to reconcile the two
The difference between them, he says, was, that in
(1) Cro. Eliz. 840. S. C. Noy. 32.
(m) Moor., 666. (n) Yelv. 9.
(0) Dyer, 309. S. C. 1 And. 19. 2 Leon. 5. 3 Leon. 20. Moor. 100. Bendl. 113.
(P) Cro. Eliz. 666.
Cranmer's Case it was limited by way of use, and that by the party himself; so he shows himself his own intent, that it should not vest in himself but in his executor; but in the present case the limitation was by a stranger wherein no intention appears, but that it should vest in the lessee himself. This distinction seems to be supported by two other cases, both of which are reported in Moore (9). The first is Finch v. Finch (r). The case, on special verdict, appeared to be the following: Feme sole levied a fine to the use of herself for life, and after her death to the use of her executors for five years, with remainder over; and then she married, and with her husband granted the term of five years to the plaintiff, and then she and her husband levied a fine sur conusance de droit tantum : The first question was, whether the use to the executors was good; and the Court agreed unanimously in the affirmative; and that if the possession were not disturbed, it would arise accordingly: The second question was, whether the feme could grant it during her life, and they held not; and they further held, that it could not be forfeited: In the next place, they agreed that it might be extinguished by fine, and, therefore, that the fine sur conusance de droit tantum had extinguished it. The other case is Remington v. Sarage (8), where J. S. levied a fine to the use of himself for life, remainder to his wife for life, remainder to his executors for years; and then he levied a second fine to the same uses, omitting the estate for years: it was held that the term being in abeyance was extinguished (t). But the application of this distinction will not reconcile the decision of Sparke v. Sparke, in C. B., with the subsequent one in K. B., nor
(9) “ This, though called a conceit in Wentw. Off. Ex. (189, 14th edit.) is the only way in which the judgment in Cranmer's case can be reconciled to Co. Lit. 54, b. and several other authorities; and this conceit was strongly urged in the argument of the case in 2 Leon.
6, 7:" MS. Serjeant Hill, in his copy of Viner, in Lincoln's Inn Library, tit. Executors (B.)
(r) Moor. 339. S. C. nom. Finch v. Bodyll, 2 And. 91.
(s) Moor. 745.
(t) Chambers on Landlord and Tepant, 167.
some other contradictory authorities to be found in the older Reports (u).
Perhaps the only point for which the case of Sparke v. Sparke, when in K. B., is really an authority, is, that where a lease is made for 99 years, if the lessee lives so long, and if he dies within that term, remainder to his executors and assigns for 40 years, in such case this term shall not vest in the lessee, but his executors are purchasers, because it is a conditional limitation, and a mere possibility to vest; for there is a condition precedent that it shall not be a lease, unless he died within the term, which peradventure would not be, for he might survive the term (x). This case was put by the Court, and agreed upon, according to the report in Croke (y), but their judgment on the principal case was not given ; and in Yelverton and Moore, this case, which was merely a supposed one according to Croke, is reported as containing the actual facts before the Court: and the report in Yelverton concludes by stating that the chief reason for their decision was, because the term to the executors is but a possibility.
Since these remarks were sent to the press, the writer has had the good fortune to find some important MS. observations on the subject by Mr. Serjeant Hill, in his copy
of Viner, in Lincoln's Inn Library. They are appended to tit. Executors, vol. II. p. 406, (B.) pl. 4, where the dictum of Anderson, J., that the executors should take as purchasers, is stated, according to the report of Sparke v. Sparke, in Owen, p. 125, and are as follows:-“This is not law, and was improperly inserted by Viner ; for though the opinion in Owen, 125, was as here cited, yet the judgment in the principal case, which in effect is the same with that here
(u) See Gravenor v. Parker, Anders. 19. S. C. Benloe, 74. Anon. 3 Leon. 32. Ante, p. 596, 597. See also Wentworth's Off. Ex. 189, 14th edition,
(.x) As the law is now established, the mere possibility that a life in
being may endure for eighty years to come, does not amount to a degree of uncertainty sufficient to constitute a contingent remainder. See Fearne, p. 20, et
seq. (y) Cro. Eliz. 841.
put by Anderson, was contrary; and Owen concludes the case in p. 126, thus ;—' At last judgment was given, that the administrator should hold it (viz. the term) for forty years, as a thing vested in the testator.' And Rolle, in several parts of his Abridgment, viz., 1 Rol. Abr. 916, Y. 3, 2 Rol. Abr. 47, pl. 6, 418, pl. 6, and Lord Coke, in 1 Inst. 54, b., cite the case agreeable to that judgment; and Cro. Eliz. 666, reports the case to have been adjudged the same way, and is more full and clear than Owen ; for he states the question, and that all the Justices delivered their opinion severally that the term vested in the intestate, and shall go to his executors as assigns in law, and not as a perquisite by themselves; and, therefore, Anderson must have changed the opinion he gave at another time before judgment. And yet afterwards, in Cro. Eliz. 840, the same point between the same parties, in a different action and Court, came again in question, and the Court seemed to be of a different opinion : but Croke says, the Court did not deliver any opinion certainly therein, because none was there to argue on the other part; Vid. Moor. 666, pl. 911, Yelv. 9, who both report the last case as of Mich. 44 & 45 Eliz. B. R., which was an action of debt; whereas Owen reports the case in ejectment, Mich. 40 & 41 Eliz. C. B.; and in Co. Litt. 54, b, the case is cited as of Mich. 40 & 41 Eliz. in C. B. in trespass; and in 2 Rol. Abr. 47, pl. 6, 418, pl. 6, the case is also cited as of Mich. 40 & 41 El. B., and all of them refer to the same Roll, viz., Rot. 2215; so that there can be no doubt but the case in Cro. Eliz. 840, Moor. 666, Yelv. 9, is a later and a different case from the former, though on the same point and between the said parties, and though adjudged contrary; but quære the law. In Yelverton, 9, it is admitted, that if the term had been limited to the executors for payment of debts, it would have vested in the testator. N. B. that Lord Coke and Rolle took the law to be agreeable to the first judgment, and take no notice of the last, which it is extraordinary they should not have done, if it was adjudged as reported by Moore and Yelverton; and in 1 Roll. Abr. 916, (Y) 3, the