inconsistent with an estate for life only.62 Nor is a remainder made contingent by an uncertainty as to the amount of the property that may remain undisposed of at the expiration of the particular estate, where the life tenant has the power of disposition.63

§ 1012. The Same Subject: In Trust.

64

Where an estate is given to one for life in trust for the use of himself and other designated persons, coupled with the power to sell the property and invest the proceeds, using what may be necessary for support and education, with remainder over, such remainder is vested and not contingent. It makes no difference as to the vesting of a remainder whether the legal estate be devised to trustees to convey according to the directions of the will, or whether the interest takes effect without their intervention; nor is it material whether the trust provides for the accumulation of income until the period of payment or distribution.65

§ 1013. Contingent Remainders as Affected by the Rule as to Perpetuities.

The rule as to perpetuities has its foundation in the settled policy of the common law which opposed those restraints upon the alienation of property which were supposed to be conducive to the power and grandeur of

62 Melton v. Camp, 121 Ga. 693, 49 S. E. 690.

See § 973.

63 Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037.

As to a devise over of what remains unexpended by a devisee, see § 930.

As to statutory regulations re

garding life estate coupled with power of disposition, see § 974.

64 Roberts v. Roberts, 102 Md. 131, 111 Am. St. Rep. 344, 5 Ann. Cas. 805, 1 L. R. A. (N. S.) 782, 62 Atl. 161.

65 Tayloe v. Mosher, 29 Md. 443, 451; Roberts v. Roberts, 102 Md. 131, 111 Am. St. Rep. 344, 5 Ann.

ancient families. Whether it is applicable to contingent remainders as it is to executory devises, the authorities are not fully agreed. In a leading case against its application it was admitted that by the old law the doctrine of remoteness was applicable to remainders, but that it is now done away with, and the rule applies only to springing and shifting uses and executory devises. This distinction is put on the ground that as to vested remainders there can be no remoteness, and as to contingent remainders they must vest at the termination of the particular estate or they can not take effect at all.66

Some authorities hold that this would be no safeguard against remoteness because if the rule does not apply to remainders, a succession of particular estates may be limited to unborn persons and thus the inheritances may be followed for many generations, so long, in fact, as the persons to whom the estates are so limited come into being in time to take the remainder at the termination of the particular preceding estates. It is clear that this would be in conflict with the policy which has dictated the rule as to perpetuities, for the principle of that rule applies to contingent remainders equally with springing and shifting uses and executory devises. In fact, the principle as to perpetuities was, in substance, applied to contingent remainders at a period long before the institution of springing uses and executory devises.67

A contingent remainder is good if it vests within the time limited by the rule against perpetuities, although the right of enjoyment be postponed beyond that time, for the

Cas. 805, 1 L. R. A. (N. S.) 782, 62 Atl. 161.

66 Sir Edward Sugden in Cole v. Sewall, 2 Con. & Law. (Ir. Ch.) 344.

67 Co. Litt. 271; Seaward v. Willock, 5 East. 198.

Executory devises as affected by the rule as to perpetuities, see § 1030.

reason that it has vested and the rule against perpetuities does not apply to vested remainders." Where, however, the remainder is contingent and the period fixed by the will for the gift to take effect in the remainderman is too remote and therefore violates the rule against perpetuities, both the particular estate and the remainder fail with the result that the property passes to the heirs at law.69

§ 1014. The Same Subject: Where Two Contingencies Are Expressed.

When a devise over includes two contingencies, which are in their nature divisible, and one of which can operate as a remainder, they may be divided even though included in one expression, and the invalidity of one alternative will not necessarily defeat the other." So where a testator clearly expresses one limitation to take effect at a period within the lawful limit, this will be held good as a remainder although there be an alternative disposition which is objectionable as an executory devise on the ground of remoteness."1

§ 1015. Alternative Contingent Remainders.

Two concurrent fees may be limited by way of remainder as alternatives, the one to take effect in case the other should fail to vest in interest.72 Thus a will may

68 Madison v. Larmon, 170 III. 65, 62 Am. St. Rep. 356, 48 N. E. 556.

69 Kountz's Estate, 213 Pa. St. 390, 5 Ann. Cas. 427, 3 L. R. A. (N. S.) 639, 62 Atl. 1103.

70 Evers v. Challis, 7 H. L. Cas. 531.

71 Halsey v. Goddard, 86 Fed. 25.

See § 1030, as to executory de vises.

72 2 Minor's Inst. 394; Leppes v. Lee, 92 Ky. 16, 17 S. W. 146; Allison v. Allison's Exrs., 101 Va. 537, 63 L. R. A. 920, 44 S. E. 904.

create a life estate in one with a contingent fee in his child or children, and upon the failure of this intervening estate the ultimate remainder to vest in those who are the heirs at law of the testator at his death."

73

Where two contingent remainders are created, the one as a substitute or alternative for the other, the second remainder vests only when the first fails.74 Where, for example, a testator devises property to his widow for life, remainder to her children should she marry again and leave children, and if not, then to the brothers and sisters of the testator and the children of such as might be dead, the brothers and sisters take only a contingent remainder.

§1016. Limitations and Conditional Limitations Defined."

An estate upon limitation is one which determines upon the happening of some future event. Thus a devise by a testator to his wife "during," "while," or "so long as" creates an estate upon limitation. Technical words, however, are unnecessary, if the intention of the testator is clear. It differs from an estate upon condition subsequent in that the happening of the contingency in itself terminates the estate, re-entry not being necessary.75

73 Allison v. Allison's Exrs., 101 Va. 537, 63 L. R. A. 920, 44 S. E. 904.

74 Leppes v. Lee, 92 Ky. 16, 17 S. W. 146.

75 2 Bl. Com. **155, 156; Taylor v. McCowen, 154 Cal. 798, 99 Pac. 351; Ashley v. Warner, 11 Gray (77 Mass.) 43; Owen v. Field, 102 Mass. 90, 105; Miller v. Levi, 44 N. Y. 489.

"This distinction may be illustrated by a familiar example. A

grant to A B, provided she continues unmarried, is an estate upon condition; and if she marries, nobody can take advantage of it to defeat the estate but the grantor or his heirs. But a grant to A B, so long as she continues unmarried, is a limitation. The moment she marries, the time for which the estate was to be held has expired, and the estate is not technically defeated, but determined." -1 Washburn, Real Prop. *458.

The term "conditional limitation" is used to designate the estate limited to take effect upon the happening of the contingency which determines the estate upon limitation. A condition refers to the cause for the determination of the estate whereby it may be recovered by the grantor or his heirs; a conditional limitation refers to the new estate transferred over to a third party.7

§ 1017. Executory Devises Defined.

An executory devise is a future estate or interest in lands created by will and limited so that it can not take effect as a remainder or a future use. It does not vest at the death of the testator, but only on the happening of some future contingent event." It is such a limitation of a future estate or interest in lands as the law admits in the case of a will, though contrary to the rules of limitations regarding conveyances at common law.78 It can be created without the intervention of a preceding estate, and it may be limited after a fee.79 Such an estate or interest was instituted to support the will of the testator in cases where, by the rules of law, a devise of a future estate could not operate as a remainder, as in case of a

76 1 Washburn Real Prop. *459; Tiedeman Real Prop., § 211.

77 Doe V. Considine, 6 Wall. (U. S.) 458, 18 L. Ed. 869; Bristol v. Atwater, 50 Conn. 402; Crawford v. Clark, 110 Ga. 729, 36 S. E. 404; Miller v. Miller, 91 Kan. 1, Ann. Cas. 1917A, 918, L. R. A. 1915A, 671, 136 Pac. 953; Starr v. Minister & Trustees of Starr Methodist Church, 112 Md. 171, 76 Atl. 595; Holden v. Wells, 18 R. I. 802, 31 Atl. 265.

78 Fearne Cont. Rem., 386; 2 BI. Com. *172; Ashby v. McKinlock, 271 Ill. 254, 111 N. E. 101; St. Amour v. Rivard, 2 Mich. 294; Burleigh v. Clough, 52 N. H. 267, 13 Am. Rep. 23; Paterson v. Ellis' Exrs., 11 Wend. (N. Y.) 259; Holden v. Wells, 18 R. I. 802, 31 Atl. 265; Rutledge v. Fishburne, 66 S. C. 155, 97 Am. St. Rep. 757, 44 S. E. 564; Chipps v. Hall, 23 W. Va. 504; Ryan v. Monaghan, 99 Tenn. 338, 42 S. W. 144.

794 Kent. Com. *269.