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stated ?. If, however, B's interest be construed as expressly limited to take effect upon the termination of A's life estate, whenever and however that may occur, provided there is at that time a default of appointment, it is bound to take effect in possession, if at all, by way of succession. The condition is no less precedent in fact and no less expressed as precedent in form, yet B's interest is held vested, and properly so. Doubtless the construction here resorted to has not usually been allowed outside of the case of gifts over in default of appointment. Thus, if the limitations be to A for life and then to A's eldest son and his heirs, and in default of any son of A to B and his heirs, by the usual construction B's interest cannot possibly come into possession till, by the actual death of A, it is determined that there can be no son of A. B's interest can, therefore, if it take effect as limited, do so by way of interruption after the premature determination of A's life estate by merger or forfeiture. It is, therefore, held to be a contingent remaindera. The significant fact, however, to be noticed is that when a construction of the settlor's expressed intention is adopted which makes it clear that the remainder will take effect, if at all, by way of succession, the remainder becomes vested with a certainty quite as mathematical as the results obtained by the application of the Rule against Perpetuities, or the Rule in Shelley's case.
It would be strictly in accordance with the above authorities and the reasoning upon which the remainder in these cases is held vested to hold B’s remainder vested where the limitations are 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. Here B's interest will take effect by act of the parties and by way of succession, if at all. It is clearly distinguishable from the cases where the limitations are to A for life, and then, if B survive A, to B and his heirs. There the condition that B survive A is taken
1 This appears from the fact that Lord Hardwicke in Walpole v. Conway (Barnard Ch. Reports, 153) rosted his decision, that a remainder in default of appointment was contingent, upon the decision in Loddington v. Kime (1 Salk. 224). In the latter case the limitations were to A for life and then to A's issue male (there being none at the time), and if A died without issue male, to B and his heirs. It was held that B took a contingent remainder. This was because B's interest was construed not to be able to take effect in possession till, by the death of A, it was actually determined that he was not to have any issue male. If the gift in default of appointment be construed in the same way as not being able to take effect in possession until, by the death of A, it is positively concluded that he will make no appointment, the analogy between the two cases is perfect.
Loddington v. Kime, i Salk. 224 (5 Gray's Cases on Property, 54). The time-worn rule that there can be no vested remainder after a contingent remainder in fee is no more than a declaration that the second remainder in fee, which must always be subject to a condition precedent in fact, is usually to be construed as expressly limited, not to take effect in possession at all until it has been determined by the actual death of the holder of the particular estate, that the contingency cannot happen which will prevent B's estate from ever coming into possession.
literally, so that if A's estate terminate before A's death, B cannot, by the expressed language, take till A dies. Hence there is no certainty that B's interest will take effect, if at all, by way of succession. So, if the limitations are to A for life, remainder to the heirs of J. S., provided said heirs of J. S. are ascertained before the termination (whenever and however) of the preceding estate, the heirs of J. S. have, it is submitted, in the purely feudal sense, a vested remainder, because their interest is bound by the express provision of the settlor to take effect, if at all, by way of succession. If you call the remainder in either of these cases contingent, you can hardly say that it is destructible other than by the happening of the event as expressed by the settlor. It is not destructible by a rule of law defeating his intention. It, therefore, lacks the distinguishing attribute of a contingent remainder-an attribute which it has been attempted to be shown is the very origin and definition, from the feudal point of view, of a contingent remainder.
Professor Gray !, in dealing with this class of remainders, seems to say that whether the remainder is vested or contingent depends upon the language employed. "If,' he says, “the conditional element is incorporated into the description of, or the gift to the remainderman, then the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting it, the remainder is vested. Thus on a devise to A for life, remainder to his children, but if any child dies in the lifetime of A, his share to go to those who survive, the share of each child is vested, subject to be divested by its death. But on a devise to A for life, remainder to such of his children as survive him, the remainder is contingent. Certainly the results reached by the application of the test in the cases put are correct. It is submitted, however, that the rational ground of difference in the results reached is, that in the first case the future interest from its form of expression is bound to take effect, if at all, by way of succession, while in the second the form of language used so far alters the condition that there is introduced the chance that the future interest, if carried out according to the expressed intention of the settlor, may do so by way of interruption--as for instance, where A's life estate terminates prematurely before A's death. It is believed, therefore, that the true test is not the mere form of words, but the actual effect of the expressed language in requiring the future interest to take effect by way of succession, if at all, or giving it the chance of taking effect by way of interruption. It is believed, therefore, that the remainder may be subject to a condition in substance and in form precedent, and yet it may,
Rule against Perpetuities, ist and 2nd ed., s. 108.
according to the feudal distinction, properly be called vested. Thus, if the gifts be to A for life and if B survive the termination (whenever and in whatever manner) of A's life estate, then to B and his heirs, B's interest must in the proper feudal sense be called vested.
The error in making the test the mere form of words is that it imposes to an appreciable extent upon the purely feudal conception of vested and contingent remainders a modern or non-feudal distinction-rational enough to-day-between contingent and noncontingent future interests. Professor Gray apparently starts with the idea that all remainders in fact subject to a condition precedent in fact to their taking effect in possession, might logically have been called contingent remainders ?. This is equivalent to saying that the feudal law might have adopted the purely modern line of distinction. Then Professor Gray seems to intimate that calling the remainder vested, because the condition is expressed in form as subsequent, is a relaxation of the view logically correct from the feudal point of view, due to the preference of the law for vested interests? This, it is submitted, is incorrect. The modern line of distinction between contingent and non-contingent remainders is entirely irrelevant. The feudal or common law distinction between vested and contingent remainders was not at all built upon a distinction between contingent and non-contingent future interests. The contingency was immaterial in making the contingent remainder, except so far as it created the chance that the remainder might not, if carried out as limited, take effect in possession after the termination, whenever and in whatever manner, of the preceding interest. Whenever the contingency failed to produce that effect the remainder failed to be a contingent remainder and was vested. Where the contingency was expressed as in form subsequent, there was created a case where the condition precedent failed to furnish the chance that the future interest might not take effect till after the termination of the preceding interest. The remainder, therefore, was vested upon the application of entirely correct feudal principles. It is improper to say that there was any relaxation of a logically correct view in holding the remainder vested.
The following statement of the purely feudal distinction between vested and contingent remainders is proposed. Vested remainders are, (a) those future interests after a particular estate of freehold which are sure to take effect in possession, and when they do, must so take effect by way of succession, and (?) those which, while not sure ever to take effect in possession, are bound by the expressed terms upon which they are limited to do so, if at all, by way of succession. Contingent remainders, on the other hand, include those future interests after a particular estate of freehold, which, if they take effect as expressly limited, may do so by way of succession or interruption, according as the event upon which they are limited happens before, or at the time of, or after the termination of the preceding interest, but which, according to a rule of law, must take effect by way of succession or fail entirely.
1 Gray's Rule against Perpetuities, ist and 2nd ed., s. 105.
If this statement of the distinction is correct it can be expressed in even more precise terms. The event or events which must happen before a future interest after a particular estate of freehold can come into possession, must necessarily occur either before, or at the time of, or after the termination of the particular estate. If by the expressed intention of the settlor they are bound to occur, if at all, before or at the time of the termination (whenever and however that may occur) of the particular estate, then the remainder is vested. If by the expressed intention of the settlor they may do so before, or at the time of, or after the termination (whenever and in whatever manner) of the preceding interest, the remainder is contingent. Once settle the question of when the event or events upon which the future interest is to take effect in possession must or may occur, and the application of the feudal rule, which determines whether the remainder is vested or contingent, is as mathematical in its character as the Rule in Shelley's case, or the Rule against Perpetuities.
A third listinction peculiar to some States and especially Illinois. It has already been pointed out that from a purely modern point of view the distinction between vested and contingent future interests would naturally be equivalent to that between non-contingent and contingent future interests by way of succession after a particular estate of freehold. This would add to the list of contingent remainders a class of contingent future interests which the common law (and very properly from its point of view) called vested. A well defined tendency to this effect is, as has been intimated ?, to be found in the decisions of the Supreme Court of Illinois. A new distinction between vested and contingent remainders adopted by some American States, and, curiously enough, most strikingly by the Supreme Court of Illinois, seems to go to quite an opposite extreme. It incorporates into the class of vested remainders contingent future interests after a particular estate of freehold which the common law called, and properly called, contingent remainders. Thus, the Illinois Supreme Court has within the last few years apparently irrevocably adopted the rule that a remainder
Supra, p. 384.
is vested at any particular time, provided it is ready to take effect in possession, if the preceding interest should then come to an end. Pursuant to this rule, in Boatman v. Boatman", it was actually held that where the limitations were substantially to A for life and then to such child or children of A as survive him (there being no child in esse), but if A dies leaving no child or children surviving him, then to B and his heirs, B's interest was vested so long as A was without issue. Here, of course, B's interest might have been held vested according to the common law or feudal conception of a vested remainder, if the remainder to B could have been construed to have been limited to take effect in possession, whenever and however A's life estate might determine. This, however, the court did not do, nor, it is believed, could it properly have done so in view of the authorities generally, and under the wording of the contingency as expressed. The case, therefore, stands for a new definition of a vested remainder. If this innovation obtains and is pressed to its logical extreme, then, where the limitations are to A for life and then to B if he survive A (meaning literally if he outlive A without reference to when A's life estate may determine), B will have a vested remainder,
II. APART FROM THEIR USE AS LIMITING THE APPLICATION OF THE RULE AGAINST PERPETUITIES, WHAT PURPOSES DO THESE SEVERAL DISTINCTIONS SERVE? — The modern or non-feudal distinction. As for the purely modern distinction it simply furnishes in the word vested a synonym for non-contingent. The consequences of the distinction are those which follow from a future interest being contingent or non-contingent. These consequences, it is believed, are entirely rational from the modern point of view. It is worth noticing, however, that where the Illinois Supreme Court in dealing with the limitations 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, tended to hold that B had a contingent remainder, it was impelled to do so for the purpose of getting rid of the feudal rule that after a vested remainder in fee you cannot have a valid contingent future interest. In short, the conception of a contingent remainder as one which was subject to a condition precedent in fact, was adopted in order to avoid, without disturbing the language of the feudal rule, the application of the common law principles which forbade the creating of shifting future interests 2.
1 198 III. 414. See also in accord Chapin v. Nott, 203 III. 341.
? It would, it is submitted, have been better to have squarely held that shifting future interests by deed were valid. This might have been done upon several grounds : Kales' Future Interests (Illinois), ss. 149-52.