baldwin v smith SC Cr Elizabeth Anders SC cite ace hob roll vent vent Skinner  Fitzgib SC cite send for Le Pollexf sand n lev lev Mod ld raym salk will Ves  sen Ves sen atk atk atk burr t r t r east east yes jun Ves and b Eden Inst a I  sheep touch Sugd pale yellow use d n Tr Eq that Edward Bl Com wood Fearn count  Rem Fearn ex day Watk Desc sand Us Cru dig d edit Cru dig press be d edit  press cony b Sugd pow d edit vin Abr descent I pl devise u a pl b pl estate X  pl fine d pl heir g pl parols h pl remainder l pl p pl voucher f pl Com dig  devise n descent b estate b Bac Abr legacy and devise d that edit vol go p  remainder g v use b seven see the reference and note infra under a devise to a  for life and to his right and next heir male and the heir male of the body of  such right and next heir a take a estate for life and the remainder over be  contingent though he have a son live at the time of the devise and if a enter  and make a feoff in fee the remainder be destroy a contingent remainder must  vest during the particular estate or at the instant of its determination the  destruction of the particular estate destroy the contingent remainder depend  upon it but a contingent remainder be not destroy by the descent of the  reversion on the estate for life where the descent be immediate from the  person by who will the particular estate and remainder be create a right of  entry will support a contingent remainder a tortuous alienation by tenant for  life do not defeat derivative estate or charge one may be bind by a warranty  though he can not by any mean avoid it between a Baldwin and smith in the  common plea which begin Trin Elizabeth rot in a replevin upon a special  verdict the case be such Francis archer be seize of land in fee and hold it in  socage and by his will in write devise the land to Robert archer the father  for his life and afterward to the next heir male of Robert and to the heir b  male of the body of such next heir male Robert have issue John Francis die  Robert feoff ken with warranty upon who John enter and ken reenter and  afterward Robert die c at first it be agree by Anderson walmesley totan cur  that Robert have but a estate for c life wonder because Robert have a a see  the reference above b keb c raym keb lev side sand n Bos and p wonder though  Robert take a estate for life only by the will yet by operation of law he have  the fee also in such sort that it shall not merge the estate for life but coke  report b er p express estate for d life devise to he ten and the remainder be  limit to the next e heir male of Robert in the singular number you and the  right heir there shall be a hiatus to let in the contingency when it happen  sir t raym lev side for where the inheritance become unite to the particular  estate by a immediate descent from the person by who will the particular  estate and contingent remainder be limit there the contingent remainder will  not be destroy id ibidem do d planner v Scudamour Bos and p Inst a I secas  where the descent of the inheritance be only mediate from the person who will  create the particular estate and the remainder ken v harpool vent Jones Hooker  v Hooker Rep tempt Hardw Fearn count Rem see infra n a ED d vent light Rep  raym keb Le salk will Ves sen atk burr east Eden sheep touch Sugd pale yellow  use Cru dig d edit press be d edit vin Abr devise u a pi b b pi Com dig devise  n Bac Abr legacy and devise d that Edward v use b seven X a express devise to  a person for life may be enlarge into a estatetail if the general intent of  the testator require that the issue of the devisee for life shall take by  descent from he see Langley v Baldwin I p wms attorneygeneral v Sutton p wms  bro p c sparrow v shaw d Robinson v Hicks d chapman v brown d do d Blandford v  applin t r den d web v Puckey t r do d cock v Cooper east but where no such  general intent be manifest the devisee will only take a estate for life upon  the rule that a forcing apparatus compose to be remiss Tacitus roll ab pi vent  Bamfield v Popham I p wms Blackburn v Edgeley I p wms and although a devise to  a person general with a power thou give and sell passes a feesimple Inst b I  and n n ib Timewell v Perkins atk Goodtitle v Otway will yet where a estate be  devise to a person express for life with a power of disposal the devisee will  only take a estate for life with a power to dispose of the reversion anon Leon  Leon Daniel v Uplee Noy Tomlinson v Dighton I p wms Hockley v mawley Ves jun  Reid v shergold Ves ED e raym keb godb side roll Rep Plowd b palm hetl sty  roll roll   a Bulstr more Cr Elizabeth Owen   light Cr James lev lev vern ld  raym salk Ves sen atk atk t r t r east Ves jun Ves and b Eden sheep touch Sugd  pale yellow use Tr Eq that edit sand Us Cru dig press be vin Abr descent pi  devise u a pl parols h pl Com dig descent b estate b Bac Abr legacy and devise  d go use b seven you in general where a estate of freehold be devise to the  ancestor with a subsequent limitation to the heir in the singular number the  ancestor will take a estatetail accord to the rule lie down in Shelleys case  post I   see burley case I vent Wilkins v whiting roll ab Bulst vern miller v  Leagrave rob gay dubber v Trollop Ambl case tempt Hardw Blackburn v stable Ves  and b and heir may be nomen proceeding by inference as well in a deed as a  will and operate in both in the same manner as heir in the plural number see  roll Abr roll Abr king pl godb t Jo cro Elizabeth robin gavelk burr vin Abr  devise Wa pl parols h Str Inst b a I but where as in this case word of  limitation be superadd to the word heir from which it appear to have be the  intention of the testator to denote by the word heir a new stock and root of  inheritance it will be construe a word of purchase and then the first devisee  will take only a estate for life see clarke v day more vin Abr pi Ambl  Loddington v kime salk do v coke report b er p male of Robert can enter for  the forfeiture in the life of Robert for he can be f heir as long as Robert  life second that the remainder to the right heir male of Robert be g good  although he can have a right heir during his life but it be sufficient that  the remainder vest eastern earnestness that the particular estate determine z  and so it be agree in Henry b and a Cranmer be case Elizabeth lamins burr pool  v pool Bos and p post   n so the word heir with word of limitation superadd be  a word of purchase in a deed it be construe as a description of the person  intend to take walker v snow palm Bayley v morris Ves and see post   b n press  be ED f vent keb   light a h b Br do and remainder   light a mirror c S vin  Abr heir g pl g vent see the reference cite in n e above Fearn count Rem pow  day godb pl robin gav b c p stram Inst b I I Haign law Tr burr Tr Eq Watk Desc  h Yelv more Leon and Leon Leon dyer go be Goldsb and light Rep Poph z a  remainder be define to be a residue of a estate in land depend on a particular  estate and create together with it Inst a a two and it be either vest or  contingent I as to a vest remainder vest remainder or remainder execute be  those by which a present interest passes to the party though to be enjoy in  going to be and by which the estate be invariable fix to remain to a  determinate person after the particular estate be spend as if a be tenant for  year remainder to b in fee hereby b s remainder be vest which nothing can  defeat or set aside Bl Com the person entitle to a vest remainder have a  immediate fix right of future enjoyment that be a estate in presenti though it  be only to take effect in possession and pernancy of the profit at a future  period and such a estate may be transfer alien and charge much in the same  manner as a estate in possession Cru dig d edit it may be convey by bargain  and sale Cru dig covenant to stand seize ld and lease and release Cru dig  press cony Inst two e and may be limit upon a estate for life give to a unborn  person Rutlege v Dorell Ves jun east t r but it can be limit after a feesimple  Inst a I post   b Vaugh Plowd dyer a ab Eq two as to contingent remainder and  saint as to the nature and different kind of contingent remainder a remainder  be contingent when it be limit to take effect on a event or condition which  may not happen or be perform at all or not till after the determination of the  precede particular estate in which case such remainder never can take effect  Fearn count Rem it be not however the uncertainty of ever take effect in  possession that make a remainder contingent for to that every remainder for  life or in tail expectant on a estate for life be and must be liable as the  remainderman may die or die without issue before the death of the tenant in  tail the present capacity of take effect in possession if the possession be to  become vacant and not the certainty that the possession will become vacant  before the estate limit in remainder determine universal distinguish a vest  remainder from one that be contingent Fearn count Rem press be d edit of  contingent remainder there be four kind saint where the remainder depend  entire on a contingent determination of the precede estate itself as if a make  a feoff to the use of b till c return from Rome and after his return then to  remain over in fee here the particular estate be limit to determine on the  return of c and only on that determination of it be the remainder to take  effect but as that be a event which possible may never happen the remainder  therefore which depend entire upon the determination of the precede estate by  it be contingent post   a Harton v hare Poph largess case Leon d where coke  report b er p dyer a three which be the principal point of the case it be  agree per some uncertain event unconnected with and collateral to the  determination of the precede estate be by the nature of the limitation to  precede the remainder as in the case of a lease for life to a b and c and if b  survive c then the remainder to b and his heir Inst a two here the event of  b s survive c do not affect the determination of the particular estate  nevertheless it must precede and give effect to b s remainder but as such  event be dubious the remainder be contingent learn count Rem and see do d  planner v Scudamour Bos and p d where it be limit to take effect upon a event  which though it certain must happen some time or other yet may not happen till  after the determination of the particular estate as if a lease be make to I S  for life and after the death of I d the land to remain to another in fee now  it be certain that I d must die some time or other but his death may not  happen till after the determination of the particular estate by the death of I  S and therefore such remainder be contingent post   a and that where it be  limit to a person not ascertain or not in be at the time when such limitation  be make as if a lease be make to one for life remainder to the right heir of I  S Inst a two and see post   a d there be however some case which fall literal  under one or other of the three and four description which be nevertheless  rank among vest estate thus a exception to the three class of contingent  remainder be afford by a limitation to a for eighty or ninety year if he shall  so long live with a remainder over after the death of a to b in fee which be  not deem a contingent remainder for the mere possibility that a life in be may  endure for eighty or ninety year after such a limitation be make do not amount  to a degree of uncertainty sufficient to render a remainder contingent napper  v sander hut Lord derby case light Rep Pollexf but it be otherwise if the term  of year be so short as to leave a common possibility that the life on which it  be determinable may exceed it as if a estate be limit to a for twentyone year  if he shall so long live and after his death to b in fee this be a contingent  remainder because there be do improbability in suppose that the life may  exceed the term post   a and see Beverley v Beverley vern Fearn count Rem the  exception to the four class arise first from a rule of law that wherever the  ancestor take a estate of freehold and a remainder be thereon limit in the  same conveyance to his heir or to the heir of his body such remainder be  immediate execute in the ancestor so take the freehold and be not contingent  Shelleys case post   Fearn count Rem dly from a principle that a ultimate  limitation to the right heir of the grantor will continue in he as his old  reversion and do as a remainder although the freehold be express limit from he  Inst b two dly from the respect which the law pay to the intent of a testator  where it can be plain collect from his will that he use the word heir of the  body as a description story personae or sufficient designation of the person  for the remainder to vest notwithstanding the general rule that no one be  haeres to live Fearn count Rem but the case fall under this last exception  have be either where the limitation to the heir special have be qualify by the  word now live or some other circumstance have appear in the will to manifest  the testator intention that the estate shall vest see Burchett v Durdant Ventr  caft long v Beaumont I p wms Eq Abr Eq Abr bro p c Goodright v white Bl Rep  and in none of these case do the ancestor take the legal estate of freehold  hence the distinction between vest and contingent remainder appear to be this  that wherever the precede estate be limit so as to determine on a event which  certain must happen and the remainder be so limit to a person in be and  ascertain that the precede estate may by any mean determine before the  expiration of the estate limit in remainder such remainder be vest Berrington  v Parkhurst atk will bro p c on the contrary wherever the precede estate  except in case before mention as exception to the description of a contingent  remainder be limit so as to determine only on a event which be uncertain and  may never happen or wherever the remainder be limit to a person not in be or  not ascertain or wherever it be limit so as to require the coke report b er p  totan cur that by the feoff of the tenant for life the remainder be I destroy  I side hob Poph bridge   a roll Rep Anders Cr car say palm hetl keb light Rep  lev ld raym will dougl t r east Eden Sugd pale yellow use n Tr Eq Woodd sand  Us vin Abr estate X pl Com dig estate b Bac Abr remainder g v concurrence of  some dubious uncertain event independent of the determination of the precede  estate and duration of the estate limit in remainder to give it a capacity of  take effect then the remainder be contingent Fearn cout Rem it be however a  settle rule that no remainder shall be construe as contingent where it can  consistent with the intention be take for vest because the latter tend to  support the estate the former to destroy it by put it in the power of the  particular tenant to defeat the remainder by a fine or feoff Ives v leg t r a  do you d Cholmondeley v Maxey east a intervene remainder may be contingent and  a subsequent one vest I Fearn press stand at a distance III thus upon a feoff  to the use of the feoff during the life of a and after his death to the use of  his first and other son successive in tail with several remainder over a have  no son at the time of the feoff it be resolve that all the use limit to person  not in be be contingent but the use to person in be be vest immediate and that  the contingent use when they shall come in be will vest by interposition if  the estate for life which ought to support they be not disturb chudleighs case  post   and where in the same conveyance au estate for life be limit to a  person and after that a contingent remainder to another follow by a remainder  to the heir or heir special of the first tenant for life this last limitation  shall be esteem execute only sub modus that be in such manner as to open and  separate itself from the first estate for life when the contingency happen  Lewis bowl case post   the precede case be instance where the contingency of  the intervene remainder arise from their be limit to person not in be but if  there be a remainder limit to a person in be so as to depend on a contingent  event if the same contingency be not consider as extend to the subsequent  limitation such of those limitation as be to person in be may be vest as in  the case of napper v sander hut where upon a feoff make by a to the use of  himself for life and after to the use of the feoff for eighty year if b and c  his wife shall so long live and if c survive b her husband then to the use of  her for life and after her decease to the use of d in tail remainder over  though it be agree that c s estate for life be contingent on the event of her  survive her husband yet it be hold that the subsequent remainder be vest and  see Tracey v Lethulier atk Ambl Whitfield v bewit p wms so a subsequent  contingent remainder may become vest in interest before a precede one which  will be no obstruction to its so vest uvedale v uvedale roll Abr though a fee  can in conveyance at commonlaw be mount on a fee yet two or more several  contingent fee may be limit mere as substitute or alternative one for the  other and not to interfere but so that one only can take effect and every  subsequent limitation be a disposition substitute in the room of the former if  that shall fail of effect Loddington v kime ld raym Barnardiston v carter bro  p c do v holme Bla Fearn count Rem as where a will be make in the word I give  my message c to my son I S for his life and after his death unto all and ever  his child equal and to their heir and in case he die without issue I give the  say premise unto my two daughter and their heir equal to be divide between  they it be determine that both the devise be contingent remainder in fee  Goodright v Dunham dougl and see do v perryn t r Ives v leg cite t r crump d  Woolley v Norwood marsh taunt stitch limitation be sometime call limitation on  a contingency with a double aspect sometime limitation on a double contingency  and sometime concurrent or contemporary limitation as to coke report b er p  for every king contingent remainder ought to vest either during the particular  king Cr car f salk Plowd a b b a   a   a raym and   a b b more Perk raym palm  Poph Pollexf atk Bl Com sum d pale yellow use n Watk Desc d Edward Cru dig vin  Abr remainder l pl which denomination see do v fonnereau dougl n in all case  however where the first contingent remainder be in fee absolute or where there  be concurrent remainder if the first remainder become vest all the subsequent  remainder be void for then they become remainder expectant on the  determination of a estate in feesimple Cru dig d edit keen v Dickson t r but  though no remainder limit after a feesimple can be vest Loddington v kime salk  king I ld raym do v Holmes will Bla Goodright v Dunham dougl do v perryn t r  yet it seem that a contingent determinable fee devise in trust for some  special purpose only will not prevent a subsequent limitation to one in be  from be vest see Tracey v Lethulier above Fearn count Rem say with n a that  edit p and where estate be subject to a power of appointment in the first  taker with remainder over in default of such appointment the power do not  suspend the effect of the subsequent limitation and keep they in contingency  Fearn count Rem maundrell v maundrell Ves Ves Sugd pow with respect to the  effect of a contingency annex to the precede estate upon the ulterior  limitation the case on this branch may be distinguish into three class saint  limitation after a precede estate which be make to depend on a contingency  that never take effect dly limitation over upon a conditional contingent  determination of a precede estate where such precede estate never take effect  at all dly limitation over upon the determination of a precede estate by a  contingency which though such precede estate take effect never happen Fearn  count Rem saint the case of napper v sander and Tracey v Lethulier  abovementioned appear to fall under the first class in which case we have see  the contingency affect only that estate to which it be first annex without  extend to the ulterior limitation and see Bradford v Foley dougl Horton v  Whitaker I t r the construction in these case as to the restriction of the  contingency to the estate first hinge upon it appear to depend on the testator  apparent intention not to extend it further for wherever there be no apparent  distinction in view in this respect between such estate and those which follow  it the contingency it seem will equal effect the whole ulterior train of  limitation Davis v Norton p wms do v Sheppard dougl Fearn count rein d as a  instance of that class where subsequent estate be limit on a conditional  determination of a precede estate and such precede estate never take effect at  all we may refer to the case of a devise to trustee for eleven year remainder  to the first and other son of b successive in tail male provide they shall  take the testator surname and in case they or their heir shall refuse to take  the testator surname or die without issue remainder to the first son of c  remainder over b die without have have any son c have a son at the time of the  devise the court do not agree as to the validity of the devise to the first  son of b be after a term of year without any precede freehold to support it  but resolve that the subsequent limitation to the first son of c who be then  in be and capable take effect and that the precede limitation to the first son  of b or the condition thereto annex do not operate as a precedent condition  which must happen to give effect to the subsequent limitation to the son of c  but be only a precedent estate attend with such limitation Scatterwood v edge  salk of the same opinion be Lord Hardwicke in the case of Avelin v ware Ves  who say he know of no case of a remainder or conditional limitation over of a  real estate whether by way of a particular estate so as to leave a proper  remainder or to defeat a absolute fee before limit by a conditional limitation  but if the precedent limitation by what mean soever be out of the case the  subsequent limitation shall take place Fearn coke report b er p estate or at  least eastern earnestness that it determine for if the particular estate be  end count Rem d as to case of the three class it may be observe that although  where a remainder be limit to take effect on a condition annex to a precede  estate and that precede estate fail it appear that the remainder shall  nevertheless take place yet where such precede particular estate take place  and the condition be not perform the remainder it have be hold will not take  effect at the expiration of such precede estate unless in those case where the  apparent general intention of the testator call for it Fearn count Rem adverb  of time when they refer to a thing which must of necessity happen do not  amount to a condition beat only denote the period when the remainder be to  vest in possession Borastons case post   and see the case cite in the note  there that a contingency be sometime consider as a condition subsequent so  that the estate become vest immediate subject to be defeat by the condition  when it happen as where a man surrender to the use of himself for life and  after his decease to the use of his son in fee if it happen that his say son  shall live until he reach the age of year provide that if he die before he  attain that age then to remain to the use of the surrender and his heir Edward  v Hammond Bos and p n r and see Bromfield v crowther id Cru dig dly as to the  event upon which a contingent remainder may be limit it be necessary saint  that it be a legal act see Cholmley case post do d that it be potenia relative  as death or death without issue or coverture post   a b and the note there d  it must not be repugnant to any rule of law post   b burr that nor contrariant  in itself Jermyn v Arscot post   a Cholmley v humble post   a corbet case post    b mildmay case post   foy v hind cro James that it must not operate so as to  abridge defeat or determine the particular estate Plowd b Leon sayer v hardy  cro Elizabeth this rule not only flow of necessity from the nature of a  remainder but also follow as the consequence of a maxim at commonlaw that none  shall take advantage of a condition but the party from who the condition move  I e the grantor and his heir for if he or his heir take advantage of a  condition by entry or claim the livery make upon the creation of the estate be  defeat and of course every estate then create be thereby annul and go but the  remainder ought to vest at the instant of the expiration of the precede estate  and remainder be defeat by the entry of the grantor therefore such remainder  be void it follow that a remainder proper so call can be limit to take effect  upon a condition which be to defeat the particular estate whether such  condition be repugnant to the nature of the estate to which it be annex or not  Fearn count Rem and the same law hold with regard to a subsequent remainder  limit to take effect on a condition which be to defeat a precede remainder  Cogan v Cogan cro Elizabeth where however land be lease to one for life and if  such a thing happen then to remain to b this shall not be understand as intend  to vest in possession immediate upon the happen of the condition and in  abridgment of the precede estate for then by the lastmentioned rule the  remainder will be void but it shall be construe to vest in interest upon the  happen of the condition and to remain as a remainder ought to do that be so as  to await the determination of the precede estate before it come into  possession Colthirst v Bejushin Plowd Fearn count Rem it may also happen that  not withstand a contingent limitation be express to commence from a period  eventual anterior to the determination of the particular estate yet the nature  of the case may be such as not to admit of its take effect in possession in  restraint abridgment or exclusion of the particular estate as if such  limitation over be to the grantee or devisee of the particular estate which  instead of operate in any degree to defeat exclude or curtail the particular  estate will in effect remove its limit and open it into a great estate thus in  the case of a lease to two with a limitation over after the death of the first  of they to the survivor this do not avoid defeat or abridge the estate of the  survivor but embrace it under the afflux of a great into which it will run  under the technical term of merge instead of be rescind or nullify the grantor  or his heir can have no title to enter and defeat the particular estate  because there be no condition or proviso to make coke report b er p or  determine in fact or in law before the contingency fall the remainder be it  cease or carry the estate either express or implicatively to any body from the  devisee of the particular estate nor can the limitation operate to the  prejudice of another videlicet the person otherwise entitle to the particular  estate because it be to that very person himself and the effect will have be  precise the same if the limitation have be and from and after the  determination of the estate aforesaid then to the survivor in fee nothing  therefore will in such case prevent the limitation over from operate strict as  a remainder at commonlaw Goodtitle v Billington dougl Fearn count Rem it be  further observable that although no remainder can be limit on a condition yet  it have be long settle that where in a devise a condition be annex to a  precede estate and upon the breach or nonperformance thereof the estate be  devise over to another the condition shall operate as a limitation  circumscribe the measure and continuance of the first estate and that upon the  breach or performance of it as the case may be the first estate shall Self  facto determine and expire without entry or claim and the limitation over  shall thereupon actual commence in possession and the person claim under it  whether heir or stranger shall have a immediate right to the estate thus be  the testator intention effectuate by substantiate the subsequent estate though  limit to a stranger and enforce the performance of the condition by the  determination of the precede estate upon the breach of it notwithstanding that  precede estate be limit to the heir himself and limitation of this kind be  proper call conditional limitation Fearn count Rem thus where a person devise  land to his mother for life and after her death to his brother in fee provide  that if his wife be then enseint be deliver of a son that then the land shall  remain to he in fee after the testator death a son be bear and it be hold that  the fee of the brother shall cease and vest in the son upon the happen of the  contingency dyer n d n cro James palm so where a devise land to his wife for  life and after her death to his grandchild b and the heir of her body provide  always and upon condition that she marry with the consent of d e and f or the  major part of they and in case she shall marry without such consent or die  without issue then he devise the premise to c neither b nor c be heir at law  to the testator after the testator death b marry without the consent of any of  the person name for that purpose and it be clear hold to be a estate to b till  she marry without such consent that here be a estatetail devise to b subject  to two limitation the one in law videlicet die without issue the other express  and in fact videlicet marry without consent which be proper a conditional  limitation and not a condition for if it be a condition it will descend to the  heir at law and be may enter for breach of it and defeat the limitation over  and it be therefore agree that the marriage without consent determine her  estatetail and cast the possession immediate on c lady Ann fry ease Ventr and  see Shuttleworth v barber Mod but where there be no express limitation over to  take effect upon the breach or performance of the condition annex to the  precede estate there it seem the condition or proviso be not always construe  as a conditional limitation Gulliver v Ashby Fearn ex Dev limitation of this  nature may also take effect by way of use for a use may be limit to cease as  to one person upon a future event and to vest in another Fearn count Rem post    b n with respect to those case where a particular estate be limit with a  condition that after the performance of a certain act or the happen of a  certain event the person to who the first estate be limit shall have a large  estate see Lord Stafford case post   dly as to the estate necessary to support  a contingent remainder though in the case of a vest remainder it be sufficient  if the particular estate be for year for a lease at will be of too slender and  precarious a nature to support a remainder over post   it be a general rule  that wherever a estate in contingent remainder amount to a freehold some vest  estate of freehold must precede it Fearn count Rem thus if land be grant to a  for ten year with remainder in fee to the right heir of b this remainder be  void but if rant to a for life with a like remainder it be good post I   for  unless the freehold passes out coke report b er p void a and in this case  inasmuch as by the feoff of Robert his estate for a the doctrine that the  destruction of the particular estate before the contingency happen destroy the  contingent remainder be settle by the decision in chudleighs case or Dillon v  Freine which be report post   a but be determine before the present case see  infra Pollexf Sugd pow Sugd pale yellow use n and that decision have always be  follow see Biggot v smyth cro car Fearn count Rem therefore where there be  tenant for life of the grantor at the time when the remainder be create such  freehold remainder be void it can pass out of he without vest somewhere and in  the case of a contingent remainder it must vest in the particular tenant else  it can vest nowhere unless therefore the estate of such particular tenant be  of a freehold nature the freehold can vest in he and consequent the remainder  be void Bl Com Fearn count Rem post   but a contingent remainder for year do  not require a precede freehold to support it for the remainder not be freehold  no such estate appear requisite to pass out of the grantor in order to give  due effect to a remainder of that sort Fearn count Rem although every  contingent freehold remainder must be support by a precede freehold yet it be  not necessary that such precede estate continue in the actual seize of its  rightful tenant it be sufficient if there subsist a right to such precede  estate at the time the remainder shall vest provide such right be a right of  entry and not a right of action only for while a right of entry remain there  can be no doubt that the same estate continue since the right of entry can  exist only in consequence of the subsistence of the estate but when the right  of entry be go and nothing but a right of action remain it then become a  question of law whether the same estate continue or not for the action be  nothing more than the mean of decide the question another estate be in the  mean time acknowledge and protect by the law till such question be solemnly  determine in a court of justice upon the action bring Fearn count Rem  therefore if a be tenant for life with a contingent remainder over and tenant  for life be seize all the estate be divest but the right of entry of the  tenant for life will support the contingent remainder but in this case if the  contingent remainder do not vest before such a descent be cast as will take  away the entry of tenant for life within the stat h c and drive he to his  action then be the contingent remainder go because there no long subsist any  right of entry to support it that right be turn into a right of action Thomson  v leech Mod infra and for the same reason where a contingent remainder be  limit after a estatetail and the tenant intail create a discontinuance the  contingent remainder will be destroy post   b this right of entry however to  support a contingent remainder must be a present right a future one will not  do it must also precede the contingency and be actual exist when that happen  for if it only commence at the same instant with it the remainder it seem will  not vest Fearn count Rem and where the estate be limit by way of use and be  afterward divest and turn to a right it have be hold that there must be a  actual entry in order to revest the estate Fearn count Rem the particular  estate also must be create by the same deed or instrument as create the  contingent remainder therefore a estate for life give by one deed will not  support a remainder give by another nor a estate for life settle by a on b by  deed enure to support a contingent remainder give by the will of a I Fearn and  see snow v cutler raym more v Parker Mod weal v low Pollexf do v fonnereau  dougl where the legal estate be in trustee a contingent remainder do not  require any other estate to support it for the legal estate in the general  trustee will be sufficient for that purpose and consequent in such case it be  not necessary that a contingent remainder shall vest by the time the precede  trust limitation expire Fearn count Rem chapman v Blissett Cas tempt Talb  Hopkins v Hopkins forest Ves atk thly at what time a remainder shall vest it  be a rule that a contingent coke report b er p life be determine by a  condition in law b annex to it and can be revive with a contingent remainder  expectant on his estate if he make a feoff levy a fine or suffer a recovery  cro Elizabeth salk or surrender his life estate Thompson v leech salk it will  destroy the contingent remainder so a contingent remainder with double aspect  be destroy by merger of the particular estate which support it crump d Woolley  v Norwood taunt and where there be a tenant for life with all the subsequent  remainder contingent and he suffer a recovery to the use of himself in fee he  have a right to this tortuous fee against all person but the heir of the  grantor or devisor salk but a conveyance by way of use as a bargain and sale  or lease and release by the tenant for life will not destroy the contingent  remainder because these conveyance only transfer what the person seize of the  land may lawful convey and do not divest any estate lev Mod though it be  otherwise if such conveyance be make to the person who have the immediate vest  reversion or remainder or if such person join in the conveyance or if the  tenant for life who make the conveyance have the remainder or reversion Fearn  count Rem that edit so a conveyance by cestuique trust will not destroy a  contingent remainder expectant on his estate because as he have no legal  estate any conveyance make by he passes only what he can lawful grant and a  right of entry reside in the trustee in who the legal estate be vest Penhey v  Hurrell Freem so if tenant for life of a copyhold surrender his estate it will  not destroy the contingent remainder because the freehold and inheritance be  in the lord Pawsey v Lowdall roll Abr pl sty Mildmay v Hungerford vern though  a contingent remainder of copyhold be destroy by destruction of the particular  estate after enfranchisement roe d Clemett v Briggs east so if tenant for life  accept a fine from a stranger though it amount to a forfeiture of his estate  yet it do not destroy or affect the contingent remainder Lloyd v brook vent  and see Inst a u Fearn a extinguishment of the particular estate however will  destroy a contingent remainder Purefoy v Roger sand Mod and any alteration in  the quantity of the precede estate before the remainder vest will destroy it  Leon though it seem otherwise as to a alteration in its quality only Fearn  lane v pannel roll ab Harrison v belsey raym the descent of the reversion on  the particular estate will destroy the contingent remainder where the descent  be only mediate from the person who will create the particular estate and the  remainder ken v harpool vent Jones Hooker v Hooker Rep tempt Hardw Fearn count  Rem so where the accession of the inheritance be by a conveyance accident or  circumstance distinct from that conveyance which create the particular estate  Fearn count Rem but where a particular estate be limit with a contingent  remainder over and afterward the inheritance be subjoin to the particular  estate by the same conveyance the contingent remainder be not destroy but such  last limitation shall be consider as execute only sub modus that be upon such  condition as to open and separate itself from the first estate when the  condition happen and by no mean destroy or preclude the particular estate  Lewis bowless case post   so where the inheritance become unite to the  particular estate by a immediate descent from the person by who will the  particular estate and contingent remainder be limit as in the present case  there the contingent remainder will not be destroy see Plunkett v Holmes raym  do d planner v Scudamour Bos and pull ante p b n wonder as to trustee to  preserve contingent remainder see infra n m ED b Viz that if the tenant for  life take upon he to convey a great estate or interest than that which he have  whereby the estate in remainder or reversion S divest such conveyance will  operate as a forfeiture of his estate for life and the person in remainder or  reversion may enter for the forfeiture Inst b two ante p a n l ED remainder  must vest during the particular estate or at the very instant of its  determination ante p b Plowd therefore if a gift be make to a for his life  coke report b er p afterward by any possibility for this reason the contingent  remainder be destroy and after the death of a and one day to b this remainder  to b be void because it can take effect immediate upon the determination of  the precede estate ibidem this rule be original find on feudal principle and  be intend to avoid the inconvenience which may arise by admit a interval when  there shall be no tenant of the freehold to do the service to the lord or  answer to the praecipe of stranger as well as to preserve a uninterrupted  connexion between the particular estate and the remainder which in  consideration of law be but several part of one whole estate cro dig former in  consequence of this principle where a estate be limit to a for life remainder  to his first and other son in tail a posthumous son of a can not take it a  father have devise a estate to his son for life with remainder to the first  and other son of the son in tail the son die leave his wife pregnant who be  afterward deliver of a son the court of common plea and king bench hold clear  that the grandson not be bear at the expiration of the estate for life be not  entitle to tale it but the lord move by the hardship of the case reverse the  judgement of the court below contrary to the opinion of all the judge reeve v  long salk but the house of Commons in reproof of this assumption of  legislative authority in the lord immediate bring in the and W each pass into  a statute the statute only mention marriage and other settlement and it be  probable that devise be design oh be express from a delicacy that the  authority of the judgement of the peer may not be too open impeach Bl Com  however the word of the Act may be construe without much violence to comprise  settlement of estate make by will as well as settlement of estate make by deed  bull n p as the statute say the posthumous son in this case shall take the  estate as if bear before the death of the father he be entitle to the  intermediate profit from the death of the father which be different from the  case of a descent divest by the birth of a posthumous child Bassett v Bassett  vin Abr atk though at the commonlaw and under the learning of remainder a gift  to a class of person will not admit to a participation any who be bear after  the determination of the particular estate yet such afterborn person may take  under a gift operate by executory devise or spring or shift use mogg v mogg  Meriv press convey from the principle that a contingent remainder must vest at  or before the determination of the particular estate it follow that a estate  limit on a contingency may fail as to one part and take effect as to another  wherever the precede estate be in several person in common or in severalty for  the particular tenant of one part may die before the contingency and the  particular tenant of another part may survive it lane v pannel roll Rep Fearn  count Rem so likewise a contingent remainder may take effect in some and not  in all the person to who it be limit accord as some may come in be before the  determination of the particular estate and other not comb and see Inst a I and  n ib wild case post   b but if a contingent remainder can take effect on the  determination of the particular estate in what way soever it be determine it  can vest afterward though the particular estate shall revive sand b salk lev  only it seem that the reversal of a fine by Act of parliament will restore a  contingent remainder destroy by that fine though a reversal for error will not  keb coal v Levingstone ld raym Fearn count Rem a vest remainder may in some  case take effect though the precede estate be defeat as where the lessor seize  a his lessee for life and make a lease to b for the life of a remainder to c  in fee here though a reenter and defeat the estate for life yet the remainder  to c have once vest by good title be valid Inst a two so if a lease be make to  a infant for life with remainder over if the infant at his full age disagree  to the estate for life yet the remainder be good id ib that a contingent  remainder of inheritance be transmissible to the heir of the person to who it  be limit weal v low Pollexf unless the existence of the devisee of the  remainder at some particular time make part of the contingency itself coke  report a er p against the opinion of Gascoigne in Henry b m but if the tenant  for life have be seize and die coke Report67a yet the remainder be good for  there the particular estate do remain in right c and may have be revested as  it be say in Henry but it be otherwise in the case at the bar for by his feoff  no right of the particular estate do remain and it be say it be so agree by  Popham chief justice and diverse justice in the argument of the case between a  Dillon and Freine and deny by none see b r title detinue and note the  judgement of the book and the reason thereof which case there adjudge be a  strong case than the case at the bar but note reader that after the feoff the  estate for life to some purpose have c continuance for all lease charge c make  by the tenant for life shall stand during his life d but the estate be suppose  to continue as to those only who claim by the tenant for life before the  forfeiture but as to all other who do not claim by the tenant for life himself  the particular estate be determine e and by the better opinion the d warranty  shall bind the remainder m post b palm Poph case tempt ld Hardw Fearn count  Rem Cru dig vin Abr remainder p pi post Inst and ib Plowd c that a present  right of entry will support a contingent freehold remainder ante p b n z but a  right of entry without a actual entry will not preserve contingent use see  chudleighs case post I   Cru dig d edit ED a Poph and   a jenk cent Pollexf  Sugd pow ante p b n a b light Rep palm c Poph Dall   b blow a   light b   a  keb press cony d so the surrender or merger of the lifeestate will not defeat  any underleases or charge previous create by the tenant for life for as in  other instance the original estate must determine by fill the time of its  limitation or by condition in order to defeat the derivative estate press  stand at a distance Inst b two ED e the effect of a feoff by tenant for life  be to give a fee to his alienee but as the fee never be in he his widow can be  dowable even of the seize acquire by the feoff roll Abr but where tenant for  year or at will make a feoff and thereby passes a fee the feoff be estopped  from deny the title of the wife of the feoff to be endow see press stand at a  distance h a mosely v tailor sir W Jones bro Abr seize pi Inst b I as to the  consequence of this species of seize with respect to those in remainder or  reversion see Goodright v forester taunt press stand at a distance ante p b  and n d ED d   b   light b b Jones palm Cr Elizabeth sheep touch vin Abr fine  d pi upon which such interest be intend to take effect see Moorhouse v  wainhouse I Bl Rep Fearn and contingent estate and possibility couple with a  interest where the person who be to take be certain see do v tomkinson maul  and S Fearn count Rem so that the same may be descendible be also devisable  Selwin v Selwin burr Bl Rep roe v Griffiths Bl Rep roe v Jones h Bl more v  Hawkins t r Eden cite h Bl Jones v roe east and such contingent interest may  be release press stand at a distance may pass by the bargain and sale of  commissioner of bankrupt id ibidem may be bind or extinguish by estoppel by  deed or fine or by a common recovery whereof the owner thereof come in as  vouchee weal v low above Vick v Edward p wms Fearn count Rem but it can be  grant or transfer by the ordinary rule of the commonlaw though it may be bind  in equity by contract press be d edit with respect to the mean by which a  contingent remainder may be destroy and as to trustee to preserve contingent  remainder see b a and m infra as to remainder limit by way of use see  chudleighs case post I   c and the note there ED coke report a er p although  the warranty be create before the remainder attach or vest f and although the  remainder be in the e consideration of the law and he who shall be bind by it  never can have avoid it by entry or otherwise yet forasmuch as the remainder  do commence and have its be by force of the devise which be before the  warranty for this reason it shall bind the remainder but the same be not  unanimous agree and as the feoff of the tenant for life shall destroy the  remainder which be in consideration of law so et a strong the warranty of his  ancestor by who he be intend to be advance shall bind he and in many case one  hall be bind and bar of his right by a warranty who can never have defeat it  by any mean as in Edward and f ass p lessee for life be seize to who g a  collateral ancestor of the lessor release h and die he shall be bar I vide  Henry a king and Henry Br guaranty a feme covert who can enter nor avoid the  warranty shall be bar so if tenant for life the remainder to the right heir of  I S have be seize and the seize have levy a fine at the commonlaw l the right  heir of I S shall be f so a warranty be bind though the warranty and right  descend to the heir at the same time Inst two or though the warranty descend  first if the right be in be in any of the ancestor at the time of the descent  ibidem but a warranty do not extend to a right which commence after the  warranty make ibidem and in order that a warranty may bind the estate whether  in possession remainder or reversion must be divest or turn to a right of  action at the time of or before the descent of the warranty ibidem but the  effect of a warranty by tenant for life be now take away by stat and Ann c S  which enact that all warranties make after the saint day of Trinity term by  any tenant for life of any land tenement or hereditament the same descend or  come to any person in reversion or remainder shall be void and all collateral  warranties make after that day by any ancestor who have no estate of  inheritance in possession shall be void against his heir ED e roll Rep f roll  Jon vin Abr voucher f pl g j the seize h the release in the case propose must  be understand to be with warranty ED I but it have be otherwise if the lessee  or his lessor for where a lessee for life be seize the lessor may enter to  avoid a warranty or a descent Inst b three b have reenter before the death of  the ancestor roll Abr for where the estate of the warranty be defeat the  warranty be no bar Inst sect l a two collateral warranties make by any  ancestor not in possession be now take away as to the heir see n f above ED  king in the case of Henry a William Lindsey be tenant in tail remainder to his  sister Alicia the wife of I rutter in tail levy a fine with warranty and it be  hold that the warranty bar his sister from claim the land though she be under  coverture at the time of the descent of the warranty and such a warranty will  be bind at this day for the stat and Ann c only make void all warranties by  tenant for life and all collateral warranties make by any ancestor not have a  estate of inheritance in possession so that if a be tenant in tail remainder  to b his next brother in tail which be a very common case arise upon almost  every marriage settlement and a be in possession make a feoff with warranty or  levy a fine in which there be always a warranty of the estatetail and die  without issue this warranty be collateral to b who claim by way of remainder  will bar he without asset rob gay Inst two m ante p a n b ED l by the  commonlaw a fine may be avoid in four different way two by matter of record as  namely by a entry of a claim on the record at the foot of the fine which be  now take away or by real action bring within a year and a day of to the fine  be levy and two by matter in pais as by a entry upon the land by the person  who have a right or if that can not be do by a continual claim Inst Leon Plowd  b Com dig claim b Bl Com but by coke report a er p bind and yet he can not  enter nor make claim but the point adjudge be g that by the feoff of the  tenant for life the remainder be destro ed m the stat Henry fine shall be  proclaim in manner therein mention and by sect it be enact that the  proclamation so have or make shall be final c with a save to every person and  person and to their heir other than the party to the say fine of such right  title and interest as they have to or in the land tenement or other  hereditament at the time of such fine engross so that they pursue their title  claim or interest by way of action or lawful entry within five year next after  the same proclamation have and make with a further save to all other person of  such action right title claim and interest in or to the say land c as shall  first grow remain or descend or come to they after the say fine engross and  proclamation make by force of any gift in tail or by any other cause or matter  have and make before the say fine levy so that they take their action or  pursue their say right and title accord to law within five year next after  such action right claim title or interest to they accrue descend fall or come  a entry or claim to avoid a fine operate by nonclaim under this statute must  be prosecute within one year or it will be nugatory by stat Ann c S on the  construction of the stat Henry see post   b             Inst three l cruise on  fine press stand at a distance ED g post b b   Leon see now the late stat Ann  cap sect for ousting the effect of collateral warranties and see Wilson f note  to former edition see n f sup m from the determination of this case and  chudleighs case hill Elizabeth post l   the invention of limitation to trustee  to preserve contingent remainder take its rise though it be not introduce into  general use among conveyancers till the time of the usurpation see Garth v  Colton dick Bl Com by this mode a estate be limit to trustee and their heir to  commence from the determination of the particular estate by forfeiture or  otherwise in the lifetime of the tenant for life and to continue during the  life of the tenant for life upon trust to support the contingent remainder  afterward limit from be defeat or destroy by which mean if the tenant for life  shall alien or forfeit his estate or if it shall be merge or destroy by any  other mean the trustee have a vest remainder immediate acquire a right of  entry which as already observe be sufficient to support the contingent  remainder trustee to preserve contingent remainder can be create by bargain  and sale or covenant to stand seize because no use will arise under these  conveyance without a consideration Cru dig and such trustee be not necessary  where the contingent limitation be only trust Fearn ante p b n z nor in the  case of copyhold Ves jun ante p b n a trustee to preserve contingent remainder  be appoint to preserve estate in family and for no other purpose if they join  in a conveyance to destroy the remainder it be a breach of trust for which  they will be answerable and any person take under such conveyance if voluntary  or have notice will be liable to the same trust pie v George p wms Mansell v  Mansell p wms forest moody v Walters Ves Biscoe v Perkins Ves and in some case  however equity have refuse to punish trustee for destroy the remainder as  where upon a subsequent remainder to the right heir a collateral relation only  have be affect by it there have be no issue of the marriage tip v Pigot ab Eq  so where the application to the court for relief have be make by one who be  not at the time nor possible ever may be entitle to the remainder under the  word of the limitation else v Osborn p wms Fearn count Rem in some instance  also trustee have be direct to join in destroy the remainder but this have  only happen under peculiar circumstance either of pressure to discharge  encumbrance prior to the settlement Platt v spring vern or in favour of  creditor where the settlement be voluntary Bassett v Clapham p wms moody v  Walters above or for the advantage of coke report a er p the person who be the  first object of the settlement as to enable the old son to make a settlement  upon a advantageous marriage winnington v Foley p wms Fearn count Rem but the  court have repeat refuse to interpose in case where such ingredient be want  see Davies v wield vern Abr Eq townsend v Lawton p wms Symance v Tattam atk  Woodhouse v Hoskins forest ms atk Barnard v large p wm n Ambl bro c c moody v  Walters above in the above cite case of Woodhouse v Hoskins and Barnard v  large a distinction be make between punish trustee for join and the compel  they to join but see Fearn count Rem pie v George p wms Basset v Clapham p wms  n and the late case Biscoe v Perkins I Ves and b in which Lord Eldon c observe  the case be uniform to this extent that if trustee before the first tenant in  tail be of age join in destroy the remainder they be liable for a breach of  trust and so be every purchaser under they with notice but when we come to the  situation of trustee to preserve remainder who have join in a recovery after  the first tenant in tail be of age it be difficult to say more than that no  judge in equity have go the length of hold that he will punish they as for a  breach of trust even in a case be they will not have be direct to join the  result be that they seem to have lie down as the safe rule for trustee but  certain most inconvenient for the general interest of mankind that it be  better for trustee never to destroy the remainder even if the tenant in tail  of age concur without the direction of the court Ves and b the trustee be also  bind to preserve the entire inheritance consist of the land timber and i and  in the execution of this trust they be entitle to every assistance which a  court of equity can afford they Garth v Colton dick and where there be trustee  to preserve remainder the court will not permit a tenant for year to join with  the person entitle to the inheritance for the time be to cut down timber on  the estate SC and the trustee ard guilty of a neglect of their duty if they  permit the tenant for life liable to impeachment for waste or a tenant pur  autre vie who that the nature of his estate be liable for waste to destroy  timber Stansfield v Habergham Ves so if they permit a tenant for life or year  by the destruction of his estate to be forward a remainder to himself or  another for the purpose of cut timber Garth v Colton above atk Ves Stansfield  v Habergham Ves the estate of the lord will preserve contingent remainder of  copyhold ante p b d a Garth v Colton above but it seem doubtful whether it be  his duty to interpose active to prevent waste Ves that trustee to preserve  contingent remainder can maintain a action of waste Garth v cotton above but  the may bring a bill for a injunction to stay waste SC how far they be  Chargeable in equity with a breach of trust see pie v George Prec Ch OP wms l  salk tip v Pigot Eq Abr pale yellow Eq Rep Mansell v Mansell p wms Eq Abr  Garth v cotton above Biscoe v Perkins above as to the doctrine of cross  remainder see post   b n Inst I sand Cru dig d vol p green v Stephens Ves Ves  horn v Barton Ves do d George v web taunt Ashertons v pie t r pery v white  Cowp do d cock v Coover I east do d burden v Barville east n roe d wren v  Clayton east Cooper v Jones barn and a Meyrick v Wishaw barn and a ED coke  report a er p