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The feudal or common law distinction. As for the feudal distinction, at least two peculiarly feudal consequences make it important. If the remainder were contingent in the feudal sense it was ex hypothesi destructible, that is, it failed entirely unless it took effect by way of succession. If a vested remainder, it was destructible, that is, it failed, if at all, only because it was expressly provided that it should fail in the events which happened. Vested remainders were transferable inter vivos by grant and attornment. There were, however, two feudal difficulties with the transfer inter vivos to strangers in the same manner of the remainders which the common law called contingent. It was literally true that from the feudal point of view, the contingent remainder was nothing until, by the happening of the event upon which it was limited, before the termination of the preceding interest, it became certain that it would take effect by way of succession. Until then it was void 1. There was a natural difficulty about sustaining the effectiveness of the transfer of an interest which had no actual existence. Then there was a feudal public policy which regarded the transfer of such interests as champertous 2. These consequences of holding a remainder contingent in the feudal sense no longer exist, except where legislative progress has been slow, or courts unalive to the effect of modern statutes. The state of the law generally upon the destructibility of contingent remainders has already been reviewed in a former article 3. By statute in England, contingent remainders seem now entirely transferable by deed without covenants of warranty 4. It is submitted that the same result might have been reached in Illinois, under certain provisions of the Act concerning conveyances 5. The Supreme Court of Illinois, however, has from time to time intimated otherwise, and seems to feel itself still bound to follow the feudal rule concerning the non-transferability of contingent remainders.

The third distinction peculiar to some States and especially Illinois. As for the new distinction which the recent Illinois cases have made between vested and contingent remainders, that seems to have been invented only for the single purpose of getting rid of the feudal rule regarding the non-transferability of contingent remainders by quit claim deed. In Boatman v. Boatman", the case

1 Supra, p. 258.

Williams, Real Property (17th Int. Ed.), 422; The Mystery of Seisin, F. W. Maitland, L. Q. R. ii. 481. 48 & 9 Vict. c. 106, s. 6 (1845).

3 L. Q. R. xxi. 118.

5 R. S. 1874, Ch. 30, s. 10.

6 O'Melia v. Mullarkey, 124 Ill. 506; Walton v. Follansbee, 131 Ill. 147, 159; Williams v. Esten, 179 Ill. 267; Boatman v. Boatman, 198 Ill. 414; Kales, Future Interests (Illinois), ss. 76, 77.

7 198 Ill. 414.

which is the foundation of this distinction, the new definition of a vested remainder was introduced solely for the purpose of making the future interest alienable by quit claim deed, and the Illinois court seems (quite unnecessarily it is true), in Chapin v. Nott1, have followed the new definition in order to hold the future interest descendible 2.

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III. THE SCOPE OF THE APPLICATION OF THE RULE AGAINST PERPETUITIES AS AFFECTED BY THE DEFINITIONS OF A VESTED REMAINDER-As affected by the new definition adopted in some States and especially Illinois. It has now become well settled that the Rule against Perpetuities does not apply to vested remainders. It is coming to be said, quite commonly, that it applies to contingent remainders 3. In what sense are vested' and' contingent' here used? It is not believed possible that in the use of these terms reference can be made to the future interests after a particular estate of freehold, which the recent Illinois cases called vested.' To do so would be to hold a gift in fee to an ascertained person after an indefinite failure of issue in the life tenant valid, so long as the life tenant had no issue at all. It should be appreciated that this new definition of vested remainders was adopted by the Illinois court to get rid of the feudal restriction upon the transferability of contingent remainders. Perhaps it might with equal logic be used, if necessary, to get rid of the rule of destructibility of contingent remainders. By so doing, however, the future interest called a contingent remainder would at once cease to be a remainder, since it would no longer, by act of the parties or by operation of law, be sure to take effect, if at all, by way of succession. It would lose its feudal character and become what it is according to the intention of the settlor-an interest which may take effect either by way of interruption or succession. Even if the Rule against Perpetuities does not apply to feudal contingent remainders, it must apply to such an interest. The logical result, then, of the Illinois cases making certain future interests after a particular estate of freehold vested is (paradoxical as it may seem) to make them most clearly subject to the Rule against Perpetuities 4.

1 203 Ill. 341.

2 It is submitted that the better course would have been to have recognized that the statutory quit claim deed was sufficient to pass a contingent remainder (Kales, Future Interests, s. 78), and that all contingent remainders descend unless the death of him who is to take upon the happening of the contingency is such an event as for ever makes it impossible for his interest to vest (Kales, Future Interests, s. 72).

3 In re Frost, 43 Ch. Div. 246 (5 Gray's Cases on Property, 598); In re Ashforth's Trusts, 21 T. L. R. 329 (1905); Gray's Rule against Perpetuities, 1st and 2nd ed., s. 248. 4 It is not clear that the Illinois Supreme Court perceived this, for if it had, the future interest in Chapin v. Nott, 203 Ill. 341, which was held to be vested, might

Whether limited by the feudal or common law distinction between vested and contingent remainders or by the modern or non-feudal distinction. If we use vested' in the feudal sense, can it be said that the Rule against Perpetuities does not apply to any remainder which is vested, even though it be in fact contingent? This is substantially the same as the question whether the Rule applies to all remainders which might from the purely modern point of view be called contingent. Suppose, for instance, the limitations are to 4 for life. and then to A's unborn son for life, remainder to B and his heirs, but if B or his issue do not survive the unborn son, then to C for life. Here, B takes a vested remainder in the feudal sense at once. He has, in fact, an interest subject to a condition precedent that he or his issue shall survive a person now unborn, who may die twenty-one years after A's death. It would, therefore, be a contingent remainder from the modern point of view. Is B's future interest void for remoteness ? 1

Of course there need be no inquiry along this line unless we at least assume that the Rule against Perpetuities applies to the future interests which the feudal system called contingent remainders. If this rests upon the broad ground that the rule is a modern one, applicable to contingent future interests generally, and that it is desirable that no exception be made of contingent remainders, even if they are feudal interests which were valid long before the Rule against Perpetuities ever existed, then it ought equally to apply to contingent future interests which are called vested, i.e. to remainders which would be called contingent from the purely modern point of view.

It is hard to see, also, why the same reasoning would not cause the rule to apply to all vested remainders which were not subject to any condition precedent, but which might come into possession at too remote a time. A gift to take effect in possession after twenty-two years is too remote. What difference should it make that there is a gift to A for twenty-two years and then to B in fee? A gift to take effect after the death of an unborn person, or the certainty of his non-existence, is too remote. Why should it make any difference that the limitations are to A for life, then to the unborn son of A for life, and then to B and his heirs? The only difference in both instances is that where the future interest is held valid it is bound to take effect by way of succession. But why

well have been held to be too remote. The application, however, of the Rule against Perpetuities seems not in any way to have been touched upon either by court or counsel.

1 The case put raises this question clearly, for if the Rule does apply then, under Monypenny v. Dering, 2 De G. M. & G. 145, C's life estate will fail. If the Rule does not apply to B's interest then C's will be valid.

should that make any difference in the application of the Rule against Perpetuities? That is only the reason that made the future interest inoffensive under the feudal system of land law. If that is not a good reason when dealing with contingent remainders which are bound to take effect by way of succession, or vested remainders which are in fact contingent, why is it not equally bad when we come to vested remainders which are non-contingent? If the fact that the future interest is valid under the feudal system of land law is a good reason why the Rule against Perpetuities does not apply where the future interest is a vested remainder and noncontingent, it is an equally good reason where it is a vested remainder, though contingent, and where it is a contingent remainder. Nothing can be more firmly settled, however, than that remainders which are vested and non-contingent are not subject to the objection for remoteness, though they may not take effect in possession for too long a time1. It must follow that a remainder which is vested under the feudal system of land law, but which is in fact contingent, cannot be void for remoteness. Thus, in the case put, where the limitations are to A for life and then to A's unborn son for life, remainder to B and his heirs, but if B or his issue do not survive the unborn son, then to C in fee, B's interest is not too remote. These results, it is believed, necessarily rest upon the ground that, historically, vested remainders are interests which were valid under a system of land law which never felt the necessity of the Rule against Perpetuities. That reason applies with equal force to all the other future interests which the feudal system recognized 2, including contingent remainders 3.

The proper explanation of the modern tendency to single out contingent remainders in the feudal sense and say that the Rule applies to them, and not to remainders which are, from the feudal point of view, vested, but in fact contingent, would seem to be this: the feudal contingent remainder is in reality an executory interest which may take effect by way of succession. It is by nature a nonfeudal future interest. This is clear from the fact that the feudal

1 Gray's Rule against Perpetuities, 1st and 2nd ed., ss. 206-7.

However it may be in England since in Re Hollis' Hospital [1899] 2 Ch. 540, it is conceded that in America Rights of Entry for Condition broken must be regarded as not subject to the Rule against Perpetuities (Gray's Rule against Perpetuities, 1st and 2nd ed., ss. 304-11). The Illinois Supreme Court has recently in terms so held Wakefield v. Van Tassell, 202 Ill. 41.

3 The doctrine that contingent remainders are not subject to the modern Rule against Perpetuities is supported by the authority of the following judges and writers(1) Mr. Fearne; (2) Mr. Charles Butler; (3) Mr. Preston; (4) Mr. Burton; (5) The Real Property Commissioners (Lord Campbell, W. H. Tinney, Lewis Duval, John Hodgson, Samuel Duckworth, P. B. Brodie, and John Tyrrell); (6) Lord St. Leonards; (7) Mr. Joshua Williams; (8) Mr. George Sweet; (9) Mr. Leake; (10) Mr. Challis.' (Perpetuities, by Mr. Charles Sweet, L. Q. R. xv. 71, 85.) See also Challis, Real Property, 2nd ed., pp. 183-6.

system originally refused to recognize its validity. It became a feudal future interest only when it became destructible-that is, when it was required to take effect by way of succession or fail entirely. The moment, then, that the contingent remainder ceases in the slightest degree to be destructible, it becomes a future interest which is liable to take effect in possession by way of interruption under some circumstances. The future interest, therefore, ceases to have the absolutely necessary characteristics of a remainder. It becomes of necessity an executory interest and subject to the Rule against Perpetuities. Thus, where the limitations were all equitable the contingent future interest was indestructible and subject to the Rule 1. In precisely the same way all contingent remainders governed by the Contingent Remainders Act of 18772 must be subject to the Rule. In American jurisdictions where by statute or the action of the courts contingent remainders are no longer destructible, and perhaps never have been, the same result must be reached. In the recent cases.3, however, where it has been held that the contingent remainder was subject to the Rule against Perpetuities, the limitations involved were governed by the Contingent Remainders Act of 18454. Nevertheless, by the same reasoning, when that Act provided that the contingent remainder should be capable of taking effect 'notwithstanding the determination by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects, as if such determination had not happened,' the future interest became liable to take effect by way of interruption in case of the premature determination of the particular estate by forfeiture, surrender, or merger. It, therefore, became an executory interest and subject to the Rule 5. The same results must follow in American jurisdictions where the statute is similar in effect to the Contingent Remainders Act of 1845.

CONCLUSION. The objection to the usual attempted distinction between vested and contingent remainders (assuming it to avoid the error of suggesting that it is fundamentally a distinction

2

1 Abbiss v. Burney, 17 Ch. Div. 211 (5 Gray's Cases on Property, 575). 40 & 41 Vict. c. 33.

3 In re Frost, 43 Ch. Div. 246 (5 Gray's Cases on Property, 598); In re Ashforth's Trusts, 21 T. L. R. 329 (1905).

48 & 9 Vict. c. 106, sec. 8.

The fact that the Real Property Commissioners who recommended the Contingent Remainders Act of 1845 also recommended that in case that Act were passed contingent remainders should be made subject to the Rule against Perpetuities, does not, it is submitted, indicate that the latter statute was absolutely necessary. Nor does the fact that Parliament refused to act upon the latter recommendation necessarily indicate that it was supposed that the Rule against Perpetuities would have no application. The legislature may as well be thought to have regarded an Act to that effect unnecessary. For a contrary opinion, however, see Perpetuities, by Charles Sweet, L. Q. R. xv. 83.