freehold which are sure to take effect, and those which are not. In short, the distinction would be between those which are non-contingent and those which are contingent. Courts to-day are, it is believed, frequently to be found using the terms vested and contingent in such a sense. For instance, when the person to whom the future interest is limited, dies before the death of the life tenant, courts will be found considering whether the deceased took a vested or contingent remainder. In reality, all that they are considering is whether he had a future interest in fact subject to a condition precedent of survivorship1. Such a use of the terms 'vested remainder and 'contingent remainder' is equivalent to 'non-contingent future interest' and 'contingent future interest.' The reference is to remainders not subject to any condition precedent in fact, and those which are subject to a condition precedent. From this point of view, then, B's interest in the following limitations may very properly be called contingent: to A for life, remainder to B and his heirs, but, if B does not survive the termination of A's estate, then to C and his heirs. Here, if the contingency ever affects A's interest at all it will prevent it from coming into possession. It can never affect B's interest after it has once come into possession. The condition is, therefore, precedent in fact, and from the purely modern point of view we might, as a line of Illinois cases seems to have tended to do 2, well call the remainder contingent. In the same way, where the gift is to A for life, remainder to B for life, B's interest from the purely modern point of view could be called contingent.

The Feudal or Common Law Distinction. Primarily, however, the distinction between vested and contingent remainders is a feudal one, just as the conception of a remainder itself is purely feudal. It need cause no surprise, therefore, to find that a perfectly rational and proper distinction from the point of view of to-day played little or no part in the distinction between vested and contingent remainders which the feudal system of land law felt called upon to recognize.

At the beginning of the fifteenth century it is believed that the principal problem of future interests was the ascertainment of what

1 It is believed also that there are many other instances where courts use vested. and contingent in the modern sense as describing contingent and non-contingent interests. For instance, in any rule that a contingent remainder-man cannot maintain a bill for partition, it is submitted that contingent remainder-man' may well include all holders of future interests which are in fact subject to a condition precedent, whether the same may, under the feudal distinction between vested and contingent remainders, be called vested or not.

* City of Peoria v. Darst, 101 Ill. 609; McCampbell v. Mason, 151 Ill. 500; Furnish v. Rogers, 154 Ill. 569; Seymour v. Bowles, 172 Ill. 521; Kales' Future Interests (Illinois), ss. 96-99.

ones were valid and what invalid. It was clear at that time that those which were bound to take effect by way of succession after a particular estate of freehold were remainders and valid. Those which were sure to take effect by way of interruption were invalid. Those which, if they took effect according to the expressed intention of the settlor, might do so either by way of succession or interruption, according as the event upon which they were limited happened before, or at the time of, or after the termination of the preceding interest, were still held absolutely void. At this point, then, the distinction was between remainders, which were valid, and interests that were not remainders which were void.

In this condition of the feudal land law it came to be held in 14301 that a contingent future interest after a particular estate of freehold, which, if it took effect according to the expressed intention of the settlor, might do so by way of succession or interruption, could take effect if it did so in the former mode. Otherwise it would fail entirely. This rule was the origin of the 'contingent remainder.' It applied to a contingent future interest limited after a particular estate of freehold upon an event which might happen either before, or at the time of, or after the termination of the particular estate. As Butler, in his notes to Fearne, has stated in an ill-worded but most illuminating passage 2: All contingent remainders appear to be so far reducible under one head, that they depend for their vesting on the happening of an event, which, by possibility, may not happen during the continuance of the preceding estate, or at the instant of its determination 3. Such an interest. might, if carried out as limited, take effect by way of succession or interruption, according as the event upon which it was limited happened before, or at the time of, or after the termination of the preceding interest. It was It was a remainder because a rule of law required that it take effect by way of succession or fail entirely. Because of this rule of law the future interest was bound to take effect, if at all, by way of succession. At this point, then, the distinction between vested and contingent remainders arose. It was fundamentally not at all a distinction between contingent and noncontingent future interests. At least two learned writers have agreed that the word "vested" had originally no reference to the

1 Williams, Real Property, 17th ed., pp. 412-13; Gray's Rule against Perpetuities, 1st ed., s. 134.

Fearne, C. R. 9, Butler's Note g.

6

Challis (Real Property, 2nd ed., pp. 114-15) has re-written this passage as follows: All contingent remainders have this common characteristic, that they depend for their vesting upon the happening of some event, which is such that by possibility it may happen neither during the continuance of the precedent estate or eo instanti with the latter's determination.'

Gray's Rule against Perpetuities, 1st and 2nd ed., s. 100; Hawkins, Wills, 221. VOL. XXII.

Ee

absence of contingency.' The vested remainder, on the contrary, was the future interest after a particular estate of freehold (whether subject to a condition precedent or not) which was bound to take effect by way of succession, not, however, because of any rule of law, but because the expressed intention of the settlor so provided. The large distinction was between the future interest which must take effect by way of succession because it was so expressly provided, and the future interest which did so only under a penalty, which always operated to defeat the expressed intention of the settlor, that it fail entirely if it did not do so.

In the course of time (and, it is believed, perhaps a considerable time subsequent to 1430) a future interest after a particular estate of freehold which was not sure ever to take effect in possession, because subject to a condition precedent in fact, but which by the expressed intention of the settlor was sure to take effect, if at all, in that mode, became more common. Thus, in the limitations to A for life and then to B for life, B's interest is not certain to come into possession, because he may die before A, but if it does it must do so by way of succession. So, if the limitations be to A for life, remainder to B and his heirs, but if B die before the termination of A's life estate, then to C and his heirs, B's interest is clearly subject to a condition precedent in fact. It is, however, so limited that if it takes effect at all it must do so by way of succession. So, if the gift be to A for life, and if B survive the termination of A's life estate (whenever and however it may come to an end) then to B and his heirs, B's interest 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. when the limitations are to A for life and after A's death to the right heir of J. S., provided the right heir of J. S. be ascertained before the termination (whenever and in whatever manner) of the preceding estate. The contingent future interests in all these cases are clearly valid 1, because they are bound to take effect, if at all, by way of succession. Are they to be called vested or contingent remainders?

From the purely modern point of view which rationally separates future interests into those which are contingent and those which are non-contingent, such future interests would be clearly contingent. From the feudal point of view it is submitted that they were most clearly vested. The feudal distinction was between those future interests which were objectionable because they might take effect by way of interruption if carried out as limited, and those which were unobjectionable because, if carried out as limited, they

1 Supra, pp. 253-5.

were bound to do so by way of succession. On principle it must have been perfectly immaterial that these latter were in fact subject to a condition precedent so that they might never take effect at all. The feudal system of land law did not object to contingent future interests as such, but only to those which were limited upon such a condition and in such a way that if the future interest was carried out as limited there might be a gap between the termination of the preceding interest and the taking effect in possession of the future interest. When, therefore, a future interest after a particular estate of freehold was contingent in fact, but as limited it was sure to take effect, if at all, by way of succession, it was, from the point of view of the feudal system, wholly unobjectionable. It was, therefore, ranged over against the future interest which was objectionable because it might, as limited, possibly take effect by way of interruption. The latter, when it was recognized upon the condition that it take effect by way of succession, became a 'contingent remainder.' The contingent interest which was so limited that, if it took effect at all, it did so by way of succession, naturally fell, according to the feudal distinction, into the class of vested remainders.

It is most clear that when the condition precedent in fact is either not expressed at all or is expressed as in form subsequent, the future interest is a vested remainder. Thus, if the limitations. are to A for life and then to B for life, B's interest is a vested remainder1. So, if the limitations be to A for life, remainder to B and his heirs, but if B die before the termination of A's life estate, then to C and his heirs, B's interest is vested 2. It is believed the real reason for this is that by the proper construction of the limitations the gift to B is expressly required to take effect, if at all, whenever and however the preceding estate may determine—that is, by way of succession.

It is submitted also that the remainder, which is bound, according to the expressed intention of the settlor, to take effect, if at all, by way of succession, is equally vested, though it is subject to a condition precedent which is expressed in form as such.

Suppose, for instance, the limitations be to A for life, and if B overlive 4, then to B for life. Here, if you take the contingency literally, B has a contingent remainder, because the event of B's overliving 4 might not occur till after A's estate had come to an end prematurely by forfeiture or merger. The New Hampshire court, so long as it took the contingency literally as stated, was perfectly sound in holding the remainder to B contingent 3. The

1 Gray's Rule against Perpetuities, 1st and 2nd ed., s. 102.

2 Ibid., s. 108. Littlejohns v. Household, 21 Beav. 29; Blanchard v. Blanchard, I Allen (Mass.), 223.

3 Hall v. Nute, 38 N. H. 422; Hayes v. Tabor, 41 N. H. 521.

approved construction, however, has always been that the phrase 'if B overlive A' means 'if B survive the termination, whenever and however, of B's life estate.' Under this construction of the language used, B's interest is bound to take effect, if at all, by way of succession. It is, therefore, properly held vested1, though it is subject to a condition precedent in fact, and the condition is expressed a precedent in form. So, if the limitations are to A for life, and if B overlive 4 then to B and his heirs, B's interest is vested or contingent according as you construe the terms of the contingency. Should the phrase 'if B overlive A' be held to mean 'if B survive the termination of A's life estate, whenever and however that may occur,' then the remainder is vested. It is subject to a condition precedent in fact and in form, but it is bound to take effect, if at all, by way of succession. This, however, is never the construction given when the remainder to B is in fee, but the language is taken literally as not permitting B's interest to take effect in possession until he actually survives the death of A. Hence there is the chance that B's interest, if it takes effect as limited, will never come into possession till after the termination of A's life estate. It is, therefore, a contingent remainder.

If the limitations are to A for life with power to appoint a remainder, and in default of appointment, to B and his heirs, B has, it is now settled, a vested remainder 2. There was a time when it was doubtful if this was to be the law 3. It is believed that the soundness or unsoundness of holding the remainder in default of appointment vested, will clearly appear the moment the test of whether it is bound according to the expressed intention of the settlor, to take effect, if at all, by way of succession, is applied. The result reached from the application of this test will depend upon the construction given to the terms of the contingency as expressed by the settlor. If B's interest is required by the expressed intention of the settlor, to await the final determination of whether the power would be exercised or not, before it could take effect in possession, then it might, if A's life estate prematurely terminated by forfeiture or merger before A's death, take effect, if at all, by way of interruption. It must in this view have been a contingent remainder. This was the result first reached, and the reasoning upon which it was rested by Lord Herdwick was precisely that

1 Webb v. Hearing, Cro. Jac. 415 (5 Gray's Cases on Property, 47). Gray's Rule against Perpetuities, 1st and 2nd ed., s. 111; Doe d. Willis v. Martin,

4 T. R. 39, 5 Gray's Cases on Property, 62.

3 Fearne, C. R. 226-7. Lord Hardwick seems actually to have held thus in the case of Sir Robert Walpole v. Lord Conway, Barnard Ch. Reports, 153.

* Leonard Lovie's case, 10 Co. 78 a, 85 a; Walpole v. Conway, Barnard Ch. Reports, 153; Fearne, C. R. 226-7.