probably have put a stop to any further concessions or compacts of the kind for the future. At present a chief who lacks either the power or the capacity to check disorder within his lands, or to manage his own affairs, permits an agent of the supreme Government to remodel his administration, to put down unruly factions with a strong hand, to organize and improve, in the sure confidence that the work is done for his benefit, and that the British agent is acting in his name, and with his consent. But if the doctrine were to prevail that these concessions might be fatal to his independence, that they were undermining his sovereignty, and that the GovernorGeneral's benevolent interposition covered a design of removing his neighbour's landmarks, he would certainly be on his guard against any such arrangements for the future. He might be likely to inquire why the principles of equity and good conscience, which the Courts established in his country were supposed to inculcate, had not been found applicable to the dealings of the British Government with defenceless States under its protection.

A. C. LYALL.

IN

FUTURE INTERESTS IN LAND.

I.

Na recent article in this REVIEW1 Mr. Edward Jenks suggests that in 1840, before the commencement of modern English legislation on the subject, 'future interests in land could be limited in two ways, viz. the way of succession and the way of interruption.' In a still more recent article2 he declares that in using this terminology he was careful to select words which should remind us of essentials rather than accidentals.' This would seem to indicate that the learned writer believed that he was putting forward a suggestion for a new and more rational classification of future interests in land.

Mr. Jenks did not, however, carry his reclassification farther than to use future interests by way of succession as descriptive of remainders, and future interests by way of interruption as descriptive of executory interests, viz. springing and shifting future interests. It is believed that if, as seems to have been claimed, the suggestion made is to be the basis for a more rational classification of future interests, a thorough reclassification pursuant to it ought to be undertaken. It is apparent that only by such a course can the value of Mr. Jenks's suggestion be finally tested. The writer, therefore, proposes to undertake in Part I of this article the humbler duty of making a thorough reclassification of all future interests in land from the point of view of Mr. Jenks's suggestion. In Part II an attempt will be made to show how the analysis of future interests as developed in Part I throws light upon the distinction between vested and contingent remainders.

PART I.

A RECLASSIFICATION OF FUTURE INTERESTS IN LAND.

INTRODUCTORY. Before entering directly upon this proposed reclassification of future interests in land two preliminary matters must be settled. How are future interests by way of succession and interruption to be defined? What is to be the aim and purpose of the attempted reclassification?

A future interest takes effect by way of succession when it comes into possession, if at all, whenever and however the preceding

1

XX. 280.

2 L. Q. R. xxi. 265.

estate may determine, otherwise than by being prematurely cut short by the expressed provision of the settlor. Thus, to A for life and then to B and his heirs. Here B's interest takes effect in possession by way of succession. If the limitations be to A for life and then to B for life, B's interest may never take effect at all, because B may not overlive the termination of A's life estate, but B's interest, if it takes effect at all in possession, is bound to do so by way of succession. If the interest be limited to 4 for life and then to B in fee, but if B does not survive the termination of A's estate, then to C and his heirs, B's interest is still bound to take effect, if at all, by way of succession. The same is true of B's interest where the limitations are to A for life and then, if B survive the termination (whenever and in whatever manner it may occur) of A's interest, to B and his heirs. Even if, after a life estate to A, a future interest be limited to the heirs of B with the express proviso that the heirs of B must be ascertained before the termination, whenever and in whatever manner of A's life estate, B's heirs have an interest by way of succession. A future interest, on the other hand, takes effect by way of interruption when it is limited so that it will come into possession by way of interruption or cutting short of the preceding interest expressly limited, or a reversionary interest in fee. Future interests by way of interruption, therefore, include what are usually known as springing and shifting future interests.

The acceptance of a classification as worth while depends, assuming it to attain the object sought to be accomplished, on the relative importance of that object. The aim and purpose of the classification about to be attempted is to furnish a more convenient means of determining the validity of all future interests. It is an effort not only to catalogue those which are valid and those which are invalid, but to do so by means of such general expressions as will indicate to an appreciable extent on the face of the classification the reason why the future interest is valid or invalid. This is precisely the sort of thing which Mr. Jenks has done when he reminds us that future interests by way of succession after a particular estate of freehold (i. e. remainders) were valid at common law, while future interests by way of interruption were not.

The precise scope of our first principal inquiry then is this: How far were future interests by way of succession valid at common law, and how far were future interests by way of interruption invalid under the same system? How far are both sorts of future interests valid under conveyances by use or devise? How far was the fact that a future interest took effect by way of succession or interruption an essential element in determining its validity or invalidity?

A.

COMMON LAW OR FEUDAL FUTURE INTERESTS.

I. BY WAY OF INTERRUPTION. So far as future interests attempted to be limited by way of interruption to one other than the feoffor were concerned, the feudal system of land law certainly accorded them no recognition. In short, what we know of as springing and shifting future interests were absolutely void. On the other hand, if the future interest taking effect by way of interruption, if at all, were created in favour of the original feoffor, it was valid. The interest, however, was inalienable and could be taken advantage of only by the feoffor or his heirs1. It was known historically by the name of a Right of Entry for Condition Broken 2.

II. BY WAY OF SUCCESSION-Arising by operation of law. The common law or feudal future interests taking effect by way of succession and arising by operation of law included possibilities of reverter, reversions, and resulting interests after terms for years. These were all reversionary interests left by operation of law in the transferor upon the conveyance of less than a fee simple. Possibilities of reverter were reversionary interests after the transfer of a fee simple, which was limited to expire upon the happening of some event in the future 3. A reversion was what was left in the transferor upon the conveyance of a freehold estate less than a fee simple. A resulting interest after a term for years was what was left by operation of law in the transferor upon a lease for years *, All these interests were bound to take effect, if at all, by way of succession.

Possibilities of reverter were recognized as valid before the Statute of Quia Emptores. Whether since then they could properly exist has recently been a matter of much discussion. As to reversions and resulting interests after terms for years, they have always been recognized as valid. Observe also that it made no difference

1 Gray's Rule against Perpetuities, 1st and 2nd ed., s. 12.

2 If, as some writers have contended (Determinable Fees, by H. W. Challis, 3 L. Q. R. 403; Challis, Real Property, 2nd ed., 398), so-called possibilities of reverter persisted as valid future interests after the Statute of Quia Emptores, it is submitted the future interest became one which took effect by way of interruption in favour of the feoffor.

3 Gray's Rule against Perpetuities, 1st and 2nd ed., s. 13.

These last are often spoken of as reversions. They are, however, given a definite name here out of deference to Challis's suggestion that they cannot properly be called reversions (Challis, Real Property, 2nd ed., p. 70). The reason for this seems to have been that the so-called reversion after a term is a present freehold.

L. Q. R. iii. 399, 403: Articles by Professor Gray and Mr. Challis. See also Gray's Rule against Perpetuities, 1st and 2nd ed., ss. 13, 31–42; and 2nd ed., ss. 774 et seq.

if the future interest by way of reversion might never come into possession at all—that is, that it was contingent. Thus, if the limitations were to A for life and then to B's heirs, there was a reversion in the transferor which, after the gift to B's heirs was recognized as valid at all, never took effect in possession if B died before A's life estate had terminated. Here if the condition ever affects the transferor's reversion at all, it will prevent it from coming into possession. It will never divest it after it has once come into possession. At first apparently it was not conceded that there was any reversion in such a case 1. In accordance with this opinion the fee was really in abeyance, but the more modern view is the other way-that what has not been disposed of must remain to the feoffor or transferor as a reversion in fee 2.

By Act of the Parties-(a) After a particular estate of freehold. Certainly the validity of the future interest was clear if it was sure to take effect some time, and when it did so was bound, according to the expressed intent of the settlor, to do so by way of succession. Thus, to A for life, remainder to B and his heirs.

Suppose, however, the future interest after the particular estate of freehold, while bound by the expressed intention of the settlor to take effect, if at all, by way of succession, was not sure ever to take effect, because it was in fact subject to a condition precedent.

It is believed that so long as the condition precedent was not expressed at all, or if expressed, was in form a condition subsequent, the future interest was recognized as valid. For instance, in the limitations to A for life and then to B for life, B's interest is not certain ever to come into possession, because he may die before A, but if it does, it must do so by way of succession. So, where the limitations are to A and the heirs of his body with remainder to B and his heirs, B's interest is not certain to come into possession, because by a recovery or fine the estate tail and the remainders dependent upon it could be barred, 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 dies 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.

Suppose now that the same conditions precedent are expressed as in form precedent. For instance, suppose the limitations be to A for life, and then if B overlive the termination of A's life estate to B for life; or to A and the heirs of his body, but if A die without

1 Co. Lit. 342 b.

2 Fearne, C. R. 361; Williams, Real Property, 17th Int. Ed. 413, 414; Contra Prest. Abst. 100-107.