A further limitation to the general doctrine of merger, is, that the two estates do not unite by merger, unless they be held in the same right. Thus, if a lessee for years dies and makes the freehold reversioner his executor, so that the term vests in him, yet, it being held en autre droit, there is no merger. So, if tenant in fee marries the lessee for years, there is no merger, for he has the entrance in his own right, but the term in that of his wife (s); and if the wife survives her husband, and he have not alienated the land and the term, the term survives to her (†). If one of the estates be a mere legal estate vested in the tenant as trustee, there will still be a merger at law, for courts of law take no notice of trusts, but of course equity will interfere to protect those who claim under the trusts from injury (u). case. *We must next notice a celebrated rule of construction of instru[*330] ments which is intimately connected with the theory of remainders. Rule in Shelley's It is usually called the Rule in Shelley's case, from the distinct enunciation which Lord Coke gives in his report of that case (x), although the rule itself is of ancient date (y). "It is a rule in law when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, that always in such cases the heirs' are words of limitation of the estate, and not words of purchase." (304) In other words that, observing that the effect of adding to a gift to a man (which, taken alone, would give him a life estate), an immediate subsequent gift to his heirs, is to enlarge the life estate to a disposable fee simple; so the gift to his heirs in any subsequent part of the limitation of estates produces the same effect of giving him a remainder in fee simple; if the words used be heirs of his body,' of course the result is a fee tail (z). Reverting now to contingent remainders, we come to a peculiarity which they possess, and which formerly was of far greater consequence than it is now. This, which we have already hinted at, is their liability to being defeated in certain cases. The cases in which this happens are now few, since the legislature has interfered to protect them from most of the dangers which for life and remainderman in fee conditional (or for any estate less than an absolute feesimple), convey their estates to a third person by the same assurance, there is no merger. Bredon's Case, 1 Rep. 76; Lord Clarickard's Case, Hob. 273; 3 Prest. Conv. 409. (8) Co. Litt. 338; Plowd. 418; Platt v. Sleap, Cro. Jac. 275. (t) If the husband had the term in right of his wife, and the inheritance descend upon her, it seems doubtful whether there would not be a merger. It has been held that if the husband, having the term in right of his wife, purchase the reversion, the term merges. Anon., 4 Leon. 37; s. c. Godb. 1. This arises (as C. J. Manwood said) from the power of disposal over the term, which, in that case, the husband is deemed to have exercised for his own benefit. On the other hand, if the husband has the term in his own right, and the inheritance descend upon his wife, there is no merger. Platt v. Sleap, Cro. Jac. 275. (u) Nurse v. Yerworth, 3 Swanst. 608. No merger will be allowed to interfere with a restriction against alienation by a married woman. Whittle v. Henning, 2 Ph. 736. (x) 1 Rep. 104 a. (y) 18 Ed. 3, 577; see 7 M. & G. 944 n; 38 Ed. 3, 26 b; 40 Ed. 3, 9. (2) Much intricate learning has arisen out of this rule, for which readers may consult Fearne's Conting. Rem. 76; Hayes' Principles for Expounding Dispositions to Ancestors and Heirs in tail; and 1 Hayes' Introduction to Conveyancing, 542; see, also, Coupe v. Arnold, 4 De G. M. & G. 574, for one of the most recent discussions on the application of the rule. (304) This rule of the common law, which has been so generally recognized by the courts of this country, is now materially changed when not abrogated by statute. For a reference to many of these statutes, see 2 Washb. Real Prop. 275 (561), 4 Kent's Com. 214. * used to beset them. If the particular estate upon which a remainder depended determined before the contingency happened whereby it became vested, since at the only moment when it could become an estate in possession it was not ready to do so, some other vested estate fell into possession and could not afterwards be defeated: or, if not some other estate limited [* 331] as a remainder, then the grantor's original estate reverted to him and could not again be taken out of him. Thus, where there was an estate for life limited to A. with remainder to the eldest son of B. for life (B. having no son at the date of the settlement), remainder to C. in fee, unless B.'s son was born when A.'s life estate determined, C. would take possession, and B.'s son never could come in. Not only, however, did such a disappointment occur, if B.'s son were not born at the date of the death of the tenant for life, or the determination of his estate by forfeiture, but if A. conveyed his estate for life to C., so that C. became seised of an estate in possession together with the first subsequent vested estate in remainder, there was in this case also a defeat of the contingent remainder. Because the effect of such a union of two estates in the same person is to merge the lesser estate in the greater, or C.'s estate pur autre vie became lost in the greater estate in fee, which being therefore vested in possession could not afterwards be affected by any contingency. It will be seen that these doctrines gave considerable power to the tenant for life, and those in remainder, by collusion to defeat the intention of the settlor. To prevent these consequences, conveyancers (a) invented a means of securing contingent remainders from destruction, by limiting after the particular estate for life an estate to trustees for the natural life of the tenant for life upon trusts to preserve the contingent remainders. This being a vested remainder, always ready to come into possession when the particular estate should determine by forfeiture or otherwise than by death, prevented the possibility of the ultimate estates becoming united in * possession as long [332] as there was a possibility that the contingent estate might arise. The usual form of family settlements became then much of this sort: to A. (the head of the family) for life, remainder to B. the eldest son of A. (usually a bachelor at the date of the settlement) for life, with remainder, after the determination of these estates by forfeiture or otherwise, to trustees during the life of B., upon trust to preserve contingent remainders with remainder to the eldest and other sons of B. successively in tail, with remainder to C., another son of A., for his life, and so on. It will be seen that the principal danger in settlements of this class, from which conveyancers had to protect the contingent remainders, limited to the unborn sons, were those arising from the sudden determination by forfeiture, surrender, or merger, of the preceding freehold estates. These then are the dangers from which the legislature has protected those who have not had the assistance of skilled conveyancers; they are obviously dangers which one venturing to make his own will, though unlearned in legal subtleties, would assuredly pass over sicco pede. By the act amending the law. of real property (b), it is provided that contingent remainders shall be, and if created before the passing of the act, shall be deemed to be, capable of taking (a) Sir Orlando Bridgman, Sir Geoffrey Palmer, and other counsel who lived during the civil wars, have the credit of this invention. But see Holcroft's Case, Moor. 486, VOL. I. - 80 temp. Eliz.; 2 Roll. Abr. 797, pl. 12; 2 Chan. effect, notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold, in all respects as if such determination had not happened. It is to be observed that this act, though in ordinary family settlements it has rendered the limitation to trustees to preserve contingent remainders unnecessary, yet has not obviated their necessity in all cases. To take the example above stated of a limitation to A. for life, with remainder to the eldest son of B. (a bachelor), or to A. for life, and remainder to such of his children as should attain the age of twenty-one (c). In these cases the contingent remainder might not take effect, even though the particular estate should determine in the natural mode by the death of A. [* 333] * In such cases a limitation to trustees to preserve the contingent remainders is still necessary. But it is obvious that the liability to defeat in these cases depends upon the character of the limitations, and the simple rule of law that the freehold must vest in some one, and if it vests under a limitation subsequent to the contingent remainder, the estate so vested can never be divested in favour of a prior limitation: therefore, after the determination of the life estate, if there were no trustees, and no child had then attained twenty-one, (or in the first case if B. had no son,) there being no one to take the freehold except the subsequent remaindermen, their estate would vest indefeasibly. We have said that under the Statutes of Uses (d) and Wills (e) limitations not falling within the definition of remainders, and which would be void if attempted to be created by simple grant, are within certain restrictions permitted. Those which depend upon the operation of the former statute will more properly be considered when we come to speak of the mode of alienation of real property by deed, inasmuch as the present system of conveyancing depends for much of its efficacy upon that statute. But the limitations which have been sanctioned in wills (which being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great *caution, forethought, and [* 334] advice), are in some measure contrary to the rules which have been laid down. They have been called executory devises, or devises hereafter to be executed. In many cases there may be some little difficulty in determining whether a limitation is an executory devise or a contingent remainder: the distinction was nevertheless of the greatest importance formerly when contingent remainders were liable to destruction from so many more events than is now the case. It was then adopted as an inflexible rule that a limitation which could take effect as a contingent remainder should never be construed as an executory devise (f). This rule, were such questions now to arise, would still govern the decision of the courts. An executory devise may then be defined as a limitation contained in a will, (c) In Festing v. Allen, 12 M. & W. 279; s. c. 5 Hare. 573; and in Holmes v. Prescott, 33 L. J. Ch. 264, a limitation such as that stated in the text was held contingent, V.-C. Wood, in the latter case, dissenting from Browne v. Browne, 3 Sm. & G. 568; and the limitation to trustees to preserve contingent remainders being only during the life of the tenant for life, the contingent remainders were consid. ered to fail, as to real estate. (d) 27 Hen. 8, c. 10. (e) 32 Hen. 8, c. 1. (f) Fearne, Conting. Rem. 386, where a number of cases were cited. In Reeve v. Long, Salk. 228, 4 Mod. 282, as we before remarked, the rule was, on the hardship of the case, broken into. Ante, p. 324. devise. of a future estate or interest in lands which the law permits, although if it Executory were contained in a conveyance at common law it would be void (g). (305) Thus, if a devise to A. and his heirs for ever, and if he die without issue in the lifetime of B., then to B. and his heirs (h); or a devise to A., a spinster, and her heirs, upon the day of her marriage, these devises will take effect according to their tenor. Yet it will be observed that in the former case there is a previous gift of a fee simple, and in the latter, no previous gift at all; in either case, therefore, such a limitation would be void in a common law conveyance. * The importance of this distinction between an executory devise [*335] and a contingent remainder arose from the fact that the former were indestructible, and when the event took place upon which they were to become vested estates, that result followed, whatever might have happened to the other estates which existed; with, however, this exception, that an executory devise, or conditional limitation made upon an estate tail, could always be barred by the recovery of the tenant in tail, and may now be barred by a disentailing deed duly executed and enrolled before the happening of the event on which the ulterior limitation was to arise, for in such a case the executory devise might be considered as a remainder upon the estate tail, only subject to the limitation imposed by the condition. Thus, if a devise be made to A., a spinster, and the heirs of her body by B. begotten, provided and upon condition that if she married any one but B. the land should go to C. and his heirs, A., by a disentailing deed executed before her marriage, could bar the executory devise, and her subsequent marriage with another would have no effect to defeat her estate in fee simple thus acquired (i). The only restriction which is put upon the arbitrary caprice of testators in the choice of events upon which these executory devises are to take effect is that contained in the well-known rule against perpetuities (as it is Rule against perpetuities. usually called), a rule unknown to the common law, to which indeed executory devises were themselves unknown, and yet not imposed by statute, but established by the judges in accordance with the established policy of not permitting estates to be made incapable of answering the ends of social commerce, and providing for the purposes of private life as the interest of society requires. The limit, as finally determined by the highest authority, within which the contingency must happen upon which an executory devise is to take effect, is the period of a life or any number of lives in being and twenty-one years afterwards, with a further period of gestation. [* 336] in those cases where gestation exists (k). Or this last part of the rule might be perhaps better stated as follows: that for the purpose of giving a benefit, an infant shall be deemed to be in existence whilst in its mother's womb. Any number of lives in being, it may be observed, may be chosen, for * freehold, is an executory devise." 1 Jarm. (h) Pells v. Brown, Cro. Jac. 590. (g) An executory devise is thus defined by a distinguished writer:-" Every devise of a future interest which is not preceded by an estate of freehold created by the same will (whether consisting of one or more testamentary papers), or which, being so preceded, is limited to take effect before or after and not at the expiration of such prior estate of (305) See 4 Kent's Com. 264; and, for a collection of American cases, see the notes on pages 277, 278, 279 of the same work, 12th ed. See, also, 2 Washb. Real Prop. 337 (631). (k) Cadell v. Palmer, 1 Cl. & Fin. 372. For a history of the rule, see Mr. Hargrave's argument in Thellusson v. Woodford, 4 Ves. 247, and Lewis on Perpetuities. "all the candles being lighted up at once are all burning at the same time” (1). The time at which the lives are to be in existence is the death of the testator (m). In applying the rule to determine the question of the validity of any limitation, the courts do not inquire whether in the events that have happened, the executory limitation takes effect within the time allowed; but unless the limitation be such that it must take effect within that period, it is absolutely void ab initio (n). (306) The rule regulating the validity of devises of freehold interests in land is equally applicable to bequests of chattel interests. Limitations of chattel interests stand upon a different footing to those of freeholds, for they do not involve the peculiarity which distinguishes those of freeholds; as there is no feudal rule rendering them liable, even if of the nature of contingent remainders, to destruction, therefore their validity never depends upon the character of the limitation, whether it be a contingent remainder, or substantive and [* 337] independent executory gift (0); * but every reason which can be urged for restraining a devise from operating over too prolonged a period, is equally applicable to the limitations of a term. A chattel interest may therefore be given over by way of executory bequest at any time before the expiration of twenty-one years following any number of lives in being (p). Amid the various capricious devices which testators invent as to the destination of their property, it often happens that they neglect to dispose of the annual income of their property, during some interval preceding the time when a contingent executory gift takes effect; in such a case the rent and annual income become part of the residuary estate, or if that be undisposed of, go to those who would have been entitled if there had been no will; they do not, as, perhaps not unnaturally, it has been contended, go to the person entitled under the contingent gift (7). In this place, as closely connected with the rule prohibiting what the law calls perpetuities, we may mention another restriction upon the disposition of property which the legislature has imposed. (307) The rule accumulation of against perpetuities put, as we see, a limit upon the postponement of the vesting of property, but it did no more; it put no Restriction upon income. (1) Per Lord Talbot, 3 P. W. 264. (m) Or, where the question concerns "limitations" in a deed operating under the Statute of Uses, as to which the same rule applies, the period is the date of the deed. Monypenny v. Dering, 2 De G. M. & G. 145; Dungannon v. Smith, 12 Cl. & Fin. 546; and numerous other cases. A child will not be considered to be in existence whilst in its mother's womb, for the purpose of constituting one of the lives in being, or for any purpose except to give it a benefit. Blasson v. Blasson, 2 De G. J. & S. 665; see as to infants en ventre, Nurse v. Yerworth, 3 Swanst. 608. (n) Leake v. Robinson, 2 Mer. 363. See Re Sayer's Trusts, L. R. 6 Eq. 319. (0) See Holmes v. Prescott, 33 L. J. Ch. 264, where a gift of leaseholds was supported, though given by reference to a preceding gift of freeholds, which failed for want of a particular estate to support the contingent remainder. (p) 1 Vern. 234; 2 ib. 151; 2 P. W. 421; 3 Atk. 282; 19 Ves. 547. (q) Hopkins v. Hopkins, Ca. T. Talb. 44; s. c. 1 Atk. 581; Duffield v. Duffield, 1 Dow. & Cl. 268; Wills v. Wills, 1 Dru. & War. 439; Hodgson v. Earl Bective, 1 Hem. & M. 376 (which case was affirmed in D. P.); see also Holmes v. Prescott, 33 L. J. Ch. 264. (306) For cases illustrative of the text, see Hawley v. James, 16 Wend. 61, 121; Scott v. Monell, 1 Bradf. Surr. Rep. 431; Hannan v. Osborn, 4 Paige, 336; Sears v. Putnam, 102 Mass. 5, 7. (307) For a collection of references to constitutional and statutory provisions relating to this subject, see 2 Washb. Real Prop. 383-385 (680–684). |