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issue, and neither A nor the heirs of his body do any act to bar the estate tail and the remainder dependent upon it, then to B and his heirs. In the same way, if the gifts be to A for life, and if B survive the termination of d's life estate (whenever and however it may come to an end) then to B and his heirs, B's interest is subject to a condition precedent in fact and in form, but it must take effect, if at all, by way of succession. The same may be said of the gift to the right heir of J. S. where the limitations are to A for life and after A's death to the right heir of J. S., provided said right heir of J. S. be ascertained before the termination (whenever and in whatever manner) of the preceding estate. Whether the strictly feudal law recognized the validity of the future interest in these cases is a fact of history in regard to which the writer has no knowledge. It would, however, seem strange that where the validity of the future interest was involved a difference should be made between the case where the future interest was subject to a condition expressed as precedent in form and where it was subject to the same condition expressed as subsequent in form.

There is a further reason which appears to be very convincing in favour of the view that the real feudal ground for holding valid the future interest in the above cases was that it was bound to take effect by way of succession, and had notbing to do with whether the condition expressed was precedent or subsequent in form. As early as 1430 a future interest after a particular estate of freehold limited upon such a condition that it might, according to the expressed intention of the settlor, take effect by way of succession or interruption according as the event upon which it was limited occurred before or at the time of or after the termination of the preceding estate, was held valid provided it in fact took effect by way of succession. Otherwise it failed. Certainly if the law was ready at that time to allow a future interest which might take effect by way of succession provided it did so, it would have been ready at perceptibly earlier time to have allowed it when the expressed intention of the settlor required it to take effect by way of succession or not at all. Suppose, for instance, the remainder after a freehold interest to preserve contingent remainders had been invented before the Statutes of Uses and Wills 1. Thus, suppose a feoffment to A for life, and after the determination of the preceding estate by forfeiture or otherwise, in the lifetime of A, to B and his heirs during the life of A, remainder to the heirs of C. Here the

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1 It appears that the device of giving the freehold to trustees to preserve contingent remainders was not invented until the middle of the seventeenth century: Garth v. Cotton, 1 Dick. 183, 188, 191; I Ves. Sr. 524; 1 Jurid. Soc. Papers, 53-5 (Gray's Rule against Perpetuities, ist and 2nd ed., s. 192, n. 2).

estate to B is subject to a condition precedent in fact which is expressed as precedent in form, and yet it is believed that the feudal or common law of land would have held it a valid future interest, because it was bound to take effect in possession, if at all, by way of succession. If it can be laid down as a general principle of feudal land law that all future interests which are bound to take effect, if at all, by way of succession after a particular estate of freehold are valid even though subject to a condition precedent in fact and expressed as precedent in form, then a long step will have been taken in justification of Mr. Jenks's assertion that the fact that a future interest took effect by way of succession was an 'essential' rather than an 'accidental' circumstance.

(6) After terms for years. The difficulty from the feudal point of view with recognizing the validity of a freehold after a term for years was that it was apparently a freehold to begin in futuro. It was apparently limited to take effect after a certain number of years without any freehold to support it. There was, therefore, either a complete gap in the seisin, or, as we would now say, there was before the contingency happened a reversion in the settlor, and the freehold would take effect by way of interruption of such reversion. In either view there was a fatal objection to the validity of the future interest at common law. If, however, the interest after the term could be regarded as an immediate present freehold, all objection to it disappeared. There was then no gap in the seisin and no reversion to be interrupted. The freehold after the term was, therefore, valid, provided it could be regarded as a present freehold interest. Curiously enough the test for determining whether the freehold after the term could be regarded as a present interest seems to have followed closely the question as to whether it was bound to take effect, if at all, in possession by way of succession after the term. For instance, if the limitation after the term was sure to take effect some time, and when it did so was bound by the expressed intention of the settlor to do so by way of succession, it was clearly a valid present freehold interest subject to a term. That was most clearly true of the interest in B where the limitations were to A for ten years and then to B and his heirs 1. One case in particular indicates very clearly that the fact that the future interest after a term is bound to take effect by way of succession is the basis for holding it valid. If a feoffment is made to A for the term of twenty years, if he so long live, and after A's death to B and his heirs, B's interest was void?. On the other hand, if the feoffment was to A for ninety-nine years, if he so long

2 Ibid. 327

Leake, Digest of Land Law, 326.

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live, and at A's death to B and his heirs, B's interest was valid'. There is only one line of distinction between these two cases.

In the first B's interest is not sure to take effect by way of succession. If A outlives the term, B's interest must take effect by way of interruption. In the latter case, however, B's interest is, on account of the practical certainty that A will not outlive the term and by construing the words 'at A's death 'to mean ‘at A's death or sooner termination of the term,' sure to take effect by way of succession

Suppose, however, the interest after the term is not sure ever to take effect in possession, because subject to a condition precedent in fact, but if it does so it must, by the expressed intention of the settlor, take effect by way of succession. Here, because of the actual existence of a condition precedent to the taking effect of the freehold, it is proportionately more difficult to say that there is no gap in the seisin or no interruption of the reversion in the settlor. And yet, the interest after the term seems, even in this case, to have been held valid. Thus, so long as the condition precedent is not expressed at all, or if so, is expressed as a condition in form subsequent, it seems that the interest after the term may be treated as a present interest, and is valid. Thus, if the limitations be to A for ten years and then to B for life, B's interest is clearly valid ? So, if the limitations are to A for ten years and then to B and his heirs, but if B die before the termination of A's interest, then to C and his heirs, it is submitted that B's interest would be valid.

Suppose, now, that the condition precedent in fact be expressed in form as a condition precedent, can it still be said that the interest after the term is valid? As an original question, the writer would have supposed that while the case was in fact no different from that where the precedent condition was expressed as in form subsequent, yet those actually guiding the development of the feudal land law might well have said that there was relaxation enough where the condition was expressed as subsequent in form, and that there should be no further relaxation where the condition was precedent in fact and expressed as precedent in form. Nevertheless, the actual decision in Smith d. Dormer v. Packhurst 4, and the effort of eminent writers to support it on principle 5, almost compels the

* Leake, Digest of Land Law, 327; Napper v. Sanders, Hutt. 118 (5 Gray's Cases on Property, 48).

• The reasoning upon which the validity of B's interest is sustained has always been substantially this, though the word 'succession' has not been used (Fearne, C. R. 21).

Leake, Digest of Land Law, 327.

3 Atk. 135, 5 Gray's Cases on Property, p. 55; Fearne, C. R. 220. 3 Challis, Real Property, 2nd ed., 133-6.

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conclusion that the interest after the term was valid, even where the condition precedent existed in fact and was expressed as in form precedent. In that case the limitations were in substance to the use of A for ninety-nine years, if he should so long live, and from and after the death of A or sooner determination of the estate limited to him for ninety-nine years, to the use of trustees and their heirs during the life of the said A upon trust to preserve contingent estates, and at the expiration of the said term to the use of the first and other sons of A successively in tail male, with divers remainders over. A having come into possession of the term for ninety-nine years and having a son, he, together with that son, when he came of age, levied a fine of the lands to make a tenant to the praecipe, and suffered a recovery of the same, in which the son was vouched. The son died without issue, and afterwards A died without leaving any other son. The next surviving remainderman made his actual entry within five years, and the question was: Whether the recovery had barred his remainder? This point depended entirely, as Fearne says , on another question: Whether the freehold was in the trustees during the life of A or not? If it was, the recovery was not well suffered for want of a good tenant to the praecipe, and consequently did not bar the remainder ; but if the trustees had not the freehold, then it was in the son, and of course he was capable of making a good tenant to the praecipe, and the recovery in that case was well suffered. The question, therefore, was not really whether the trustees to preserve contingent remainders had a vested or contingent estate, but whether the interest in the trustees was a present freehold, or a future interest valid, if at all, as a springing use, which might in certain events become a present freehold in possession. The court held the estate in the trustees was a present freehold interest. This means that if such an estate had been created before the Statute of Uses in a settlement by way of feoffment to A for ninety-nine years, if he so long lived, and from and after the death of A or other sooner determination of the estate limited to the said A for ninety-nine years, to B and his heirs during the life of the said A, B's interest would have been valid as a present freehold. The only explanation of this is that the interest after the term for years, though actually subject to a condition precedent, and expressed in form as precedent, is valid because it is so limited that it is bound according to the expressed intention of the settlor to take effect, if at all, by way of succession.

III. BY WAY OF SUCCESSION OR INTERRUPTION-after freeholds. Future interests of this sort include all those which are limited after a particular estate of freehold on an event which may happen either before, or at the time of, or after the termination (whenever and in whatever manner) of the preceding interest. Thus, if the limitations be to A for life and then to A's eldest son, provided he attain the age of twenty-one, and no matter whether he does so attain that age before, or at the time of, or after the death of A or sooner termination of A's estate, we have most clearly a case where the event upon which A's eldest son will take may, according to the expressed intention of the settlor, happen either before, or at the time of, or after the termination of the particular estate. If the limitations are to A for life and then to A's eldest son when he reaches twenty-one, we have precisely the same case. The expressed intention is the same. The form or emphasis of the language only is different?. If the limitations are to A for life and then to all the children of A and B who are living at the death of the survivor of A and B, it is clear that the event upon which the future interest is limited may occur at the time of, or after the termination of A's life estate. The situation is exactly the same if the limitations are to A for life and then to such children of A as survive him. Here also the future interest to the surviving children is limited upon a condition which may happen at the time of the termination of A's life estate or subsequent to it. So, if the limitations be to A for life and then to the heirs of B, the heirs of B may be ascertained either before or after the termination of A's life estate. In all these cases then, the future interest clearly must take effect by way of succession or interruption according as the event upon which it is limited happens before, or at the time of, or after the termination of the preceding interest. If it happens before or at the time of the termination of the preceding estate, the future interest will take effect by way of succession. If it happens after the termination of the preceding interest, then the future interest will take effect by way of interruption of a reversion which has come into possession.

1 Contingent Remainders, 220.

Future interests of this sort were originally wholly void according to the feudal or common law system of land law, and so remained absolutely void down to about 1430. Was this result reached because the future interest, if given effect according to the expressed intention of the settlor, was contingent, or because it might possibly take effect after a gap in the seisin or by way of interruption of a reversionary freehold which had come into possession ? It is submitted that the latter is the real reason. This, it is believed,

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1 This point was fully dealt with in a former article entitled Contingent Future Interests after a Particular Estate of Freehold, L. Q. R. xxi. 118; see also 19 H. L. R. 546.

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