i sione donatori, sive hæredibus suis post douum finitum, Sc. as in the cases that Littleton (sect. 215.) hath put. gent remainders were limited, there the contingent remainders will not be destroyed. Archer's case, 1 Rep. 66. Plunkett v. Holmes, Raym. 28. Doe d. Planner v. Scudamore, 2 Bos. & Pul. 295. But where the accession of the inheritance is by a conveyance, accident, or circumstance, distinct from that conveyance which created the particular estate; or where the descent of the inheritance on the particular estate is only mediate from the person whose will created the particular estate, and the remainder, there is no necessity to exempt the particular estate from the operation of merger by descent; and therefore, on such event happening, the contingent remainder will be destroyed. Kent v. Harpool, 1 Vent. 306. Jones, 76. Hooker v. Hooker, Rep. Temp. Hardw. 13. Fearn. Cont. Rem. 503. 507. The several ways whereby contingent remainders may be defeated having been considered, it remains to advert to the mode invented to preserve them from being destroyed, namely, by the intervention of trustees. This is done by limiting an estate to trustees and their heirs, to commence from the determination of the particular estate, by forfeiture or otherwise, in the life-time of the tenant for life, and to continue during the life of the tenant for life, upon trust, to support the contingent remainders afterwards limited, from being defeated or destroyed; by which means, if the tenant for life should alien or forfeit his estate, or if it should be merged or destroyed by any other means, the trustees, having a vested remainder, immediately acquire a right of entry, which, as we before observed, is sufficient to support the contingent remainders. This improvement is generally attributed to Sir Orlando Bridgeman and Sir Geoffrey Palmer, who retired from the bar during the civil wars, and confined themselves to conveyancing. And when, after the restoration, these persons came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use. 2 Bl. Com. 172. 2 Cru. Dig. 381, 2. But trustees to preserve contingent remainders are not necessary where the contingent limitations are only trusts; for a conveyance by a cestui que trust will not destroy a contingent remainder expectant on his estate; because the legal estate being in his trustees, there remains a right of entry in them which will support the remainders. Fearn. Cont. Rem. 472. It should also be observed, that where an estate is limited in a bargain and sale, or covenant to stand seised, to a stranger, upon trust to preserve contingent remainders, it will be void; because no use will arise under these conveyances without a consideration. 2 Cru. Dig. 382. Trustees to preserve contingent remainders being appointed to preserve estates in families, and for no other purpose, if, instead of so doing, they join in a conveyance to destroy the remainders, such conduct will be a breach of trust, and they will be answerable for the same; and any person taking under such conveyance, if voluntarily, or having notice, will be liable to the same trusts. Pye v. George, 1 P. Wms. 128. Mansell v. Mansell, 2 P. Wms. 678. Forrest. 252. Moody v. Walters, 16 Ves. 303. 307. Biscoe v. Perkins, 1 Ves. & B. 491. There have been some cases, however, wherein a court of equity has refused to punish trustees for joining in a conveyance to destroy contingent remainders: As where, upon a subsequent remainder to the right heirs, a collaternal relation only has been affected by it, there having been no issue of the marriage. Tipping v. Pigot, 1 Ab Eq. 335. So also, where the application to the court for relief has been made by one who was not at the time, por possibly ever might be, entitled to the remainder, under the words of the limitation. Else v. Osborn, 1 P. Wms. 387. Fearn. Cont. Rem. 481. In some instances, also, the court has directed the trustees to join with the tenant for life, or his first son, in barring the subsequent contingent remainders. But this has only happened under peculiar circumstances, either of pressure to discharge incumbrances prior to the settlement, Platt v. Sprigg, 2Vern. 303; or in favour of creditors where the settlement was voluntary, Bassett v. Clapham, 1 P.Wms. 358. Moody v. Walters, 16, Ves.. 305; or for the advantage of the persons who were the first objects of the settlement; as to enable the eldest son to make a settlement upon an advantageous marriage. Winnington v. Foley, 1 P. Wms. 536. Fearn. Cont. Rem. 483, 484. But, however, the court of chancery may judge it proper to direct trustees to concur in destroying contingent remainders, under the above mentioned circumstances, it has repeatedly denied the same interposition, in cases where such ingredients were wanting. See Davies v. Weld, 1 Vern. 181. 1 Ab. Eq. 386. Townsend v. Lawton, 2. P. Wms. 379. Symance v. Tattam, 1Atk. 613. Woodhouse v. Hoskins, Forrest. MSS. 3 Atk. 22. Barnard v. Large, 2 P. Wms. 684 n. Ambl. 774. 1 Bro. C. C. 534. Moody v. Walters, 16 Ves. 291. In the above mentioned cases of Woodhouse v. Hoskins, and Barnard v. Large, a distinction was made between punishing trustees for joining, in some cases, to destroy contingent remainders, and the compelling them to join. This distinction seems to flow from the supposing any discretion at all in the trustees, in cases of this nature; because there may be circumstances sufficient to justify, though short of an obligatory call for such an exercise of their discretion. But however this may be, says Mr. Fearne, it seems the safest way for trustees, not to act, except in the clearest cases, without the direction of the court; and he recommends to their attention the words of Lord Harcourt in Pye v. George (2 P. Wms. 684.), that it would be a dangerous experiment for trustees, in any case to destroy remainders, which they were appointed by the settlement to preserve. Fearn. Cont. Rem. 493. And see Mr. Cox's note to Basset v. Clapham, 1 P. Wms. 358, and the late case of Biscoe v. Perkins, 1 Ves. & B. 435; in which the doctrine on the duties and liabilities of trustees to preserve contingent remainders was considered. "The cases," says Lord Eldon, C. "are uniform to this extent; that if trustees, before the first tenant in tail is of age, join in destroying the remainders, they are liable for a breach of trust; and so is every purchaser under them with notice: but when we come to the situation of trustees to preserve remainders, who have joined in a recovery after the first tenant in tail is of age, it is difficult to say more, than that no judge in equity has gone the length of holding, that he would punish them as for a breach of trust, even in a case, where they would not have been directed to join. The result is, that they seem to have laid down as the safest rule for trustees, but certainly most inconvenient for the general interests of mankind, that it is better for trustees never to destroy the remainders, even if the tenant in tail of age concurs, without the direction of the court." 1 Ves. & B. 491. It is further to be observed, that trustees to preserve contingent remainders are also bound to protect the inheritance, and to keep it as entire as possible; and as the inheritance consists of land, timber, mines, &c. all these are under their protection; and, in the execution of this trust, they are entitled to every assistance which a court of equity can afford them. And, where there is a limitation to trustees to preserve contingent remainders, the court of chancery will not permit a tenant for years to join with the person entitled to the inheritance for the time being, to cut down timber on the estate. Garth v. Cotton, 1 Dick. 183. 2 Cru. Dig. 402. And it is held, that trustees to preserve contingent remainders are 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 by the nature of his estate is liable for waste, to destroy timber. Stansfield v. Habergham, 10 Ves. 283. Neither ought trustees to preserve contingent remainders to permit a tenant for life or years, by the destruction of his estate, to bring forward a remainder to himself or another, for the purpose of cutting timber. Garth v. Cotton, supra. 3 Atk. 751. 1 Ves. 524.546. Stansfield v. Habergham, 10 Ves. 279. In the case of copyholds, the lord's estate will preserve contingent remainders, without any ex (140)* (Ante, 142 b. Plowd. 151. 162. 196. 197. Cro. Cha. 400.) Reversion remains in the feoffor, after gift in tail, &c. *A reversion is (5) where the residue of the estate always doth continue in him that made the particular estate, or where the particular estate is derived out of his estate (L), as in the case of Littleton (sect. 19.), tenant (5) By what words a reversion will pass, see Vin. Abr. Reversion, G. and Com. Dig. Estates, B. 12.[Hargr n. 1. 22 b.] press nomination of trustees for that purpose, Garth v. Cotton, supra.; but it seems doubtful, whether it is his duty to interpose actively, to prevent waste. 10 Ves. 282. Before we quit this subject, it may be proper to observe, that a contingent remainder is transmissible to the heirs of the person to whom it is limited, if such person chance to die before the contingency happens, Weale v. Lower, Pollexf. 54: though Mr. Fearne remarks, that some cases may arise, where the existence of the devisee of a contingent remainder, at some particular time, may, by implication, enter and make part of the contingency itself, upon which such interest is intended to take effect, in which case it cannot descend. Fearn. Cont. Rem. 534. Moorhouse v. Wainhouse, 1 Bl. Rep. 638. And although a contingent remainder cannot be passed or transferred by a conveyance at law, before the contingency happens, otherwise than by estoppel by fine, or by a common recovery, wherein the person entitled to the contingent estate comes in as vouchee, Weale v. Lower, supra. Vick v. Edwards, 3 P. Wms. 372.1 Prest. Conv. 301; yet it seems that contingent estates are assignable in equity. Fearn. Cont. Rem. 537. And it is now settled, that where contingent remainders are descendable to the heirs of the persons entitled to them, they may be devised by will like any other estates. Ibid. Selwin v. Selwin, 2 Bl. Rep. 222.251. 2 Burr. 1131. Roe v. Jones, 1 H. Bl. 30. Moor v. Hawkins, 3 T. R. 88. cited in 1 H. Bl. 33. With respect to remainders limited by way of use, and executory devises, see the notes to Chap. 43. Of Conveyances under the Statute of Uses; and Chap. 46. Of Alienation by Devise. For some observations on the rule in Shelley's case, seen (P) infra.-[Ed.] (L) The idea of a reversion is founded on the principle, that where a person has not departed with his whole estate and interest in a piece of land, all that which he has not given away remains in him; and the possession of it reverts or returns to him, upon the determination of the preceding estates. If, therefore, a person, who is seised in fee, conveys an estate for life to A, remainder for life to B., remainder over to twenty other persons for life, he still retains the see simple of the lands in himself, because he has not departed with it; but as such fee-simple can only return or fall into possession upon the determination of the preceding estates, it is only an estate in reversion. So where a person, having only a particular estate in lands, grants a smaller estate than his own, he has a reversion left in himself. Thus, if tenant in tail grants an estate for life, he has a reversion in him; because he has not departed with the whole of his interest. In the same manner, where a person, who has an estate for ninety-nine years, grants an estate for ninety-eight years, or for any shorter term, he has a reversion left in him. 2 Cru. Dig. 454,5,6. 2 Bl.Com. 175. The possession of the lands is said to return to the grantor on the determination of the grant, for a present interest, though taking effect in futuro, remains, even during the existence of the grant, in the person making it; and this interest is what is called his reversion, or, more properly, his right of reverter. Watk. Convey. 59. 2 Bl. Com. 175. Plowd. 151.-[Ed.] in fee-simple maketh gift in tail (M). So it is of a lease for life or for years. *If a man extend lands by force (141)* of a statute merchant, staple, recognizance, or elegit, he or after an extent by leaveth a reversion in the conusor. But since Littleton statute merchant, &c.; wrote, the description must be more large upon the statute of (f) 27 H. 8., for at this day, if a man seised of (f) 27 H. 8. са. 10. (Cro. Cha. 24. 1 Rol. lands in fee make a feoffment in fee (and depart with his Abr. 625. 1 Co. 104 b. whole estate, and limit the use to his daughter for life, 2 Co. 91. 2 Rol. Abr. $417. 1 Leon. 182.) and after her decease, to the use of his son, in tail, and after to the use of the right heirs of the feoffor: in this or where an use, after case, albeit he departed with the whole fee-simple by the divers particular estates, is limited to the feoffment, and limited no use to himself, yet hath he a feoffor's right heirs; reversion (6) (N); (g) for whensoever the ancestor takes (g) 38 E. 3. 26. 27 E. 3. Page 118. an estate for life, and after a limitation is made to his right 24 E. 3. 36. 40 Ε. 3. heirs, the right heirs shall not be purchasers. And here in this case when the limitation is to his right heirs, and right heir he cannot have during his life (non est hæres viventis) the law doth create an use in him during his life, until the future use cometh in esse, and consequently the right heirs cannot be purchasers; and no diversity when the law creates the estate for life, and when the party. And all this was adjudged between (h) Fenwicke and Mitford, in the King's Bench: and if the (2) Tr. 31 Eliz. inter Fenwicke & Mitford. limitation had been to the use of himself for life, and af-32 H. 8. Gard, 93. ter to the use of another in tail, and after to the use of 28 H. 8. Dier 8, 9, 10, &c. Buckenham's his own right heirs, the reversion of the fee had been in case. 5 Marie. Dier him, because the use of the fee continued over in him 163. (1) Rol. Abr. 828. Mo. 284.) (7); and the statute doth execute the possession to the use (6) "Vid. 3 & 4 P. & M. Dy. 134. contra." - Hal. MSS. But see the case cited by Lord Hale in the next note, and also post, 12 b. and (M) Before the statute de donis conditionalibus, no reversion remained in the grantor or donor after he had created a conditional fee; because the grantee of such an estate was considered as having the absolute property of it, and the grantor had only a possibility of reverter. But, as soon as the statute De donis was made, the judges determined, that an estate given to a man and the heirs of his body, was only a particular estate; and, therefore, that there remained an estate in reversion in the grantor. Ant. 22 a, b. vol. 1. p. 526, 527.-[Ed.] (N) See n. (E) ant. p. 128. and more fully in the notes to the Chapter of Uses. Post, Chap. 43.-[Ed.] (142)* in the same plight, quality, and degree, as the use was limited. * (i) If a man make a gift in tail, or a lease for life, or where a man makes the remainder to his own right heirs, this remainder.is a gift in tail, remainder to his right heirs, (1) 1 Н. 5. 8. 4 Η. 6. 20. 9 Eliz. Dier. Bromley's case. his body. adjudged. Beudlowes void, and he hath the reversion in him (o), for the ancestor during his life beareth in his body (in judgment of law) all his heirs, and therefore it is truly said, that hæres est pars antecessoris. And this appeareth in a common case, that if land be given to a man and his heirs, all his heirs are so totally in him, as he may give the lands to whom he will. or to the heirs male of (k) So it is, if a man be seised of lands in fee, and by (k) Dier 5. Marie indenture make a lease for life the remainder to the heirs 156. Groswold's case male of his own body, this is a void remainder; for the Serjeant in his re- donor cannot make his own right heir a purchaser of an port agreeth. (Hob. 30. 33. 1 Mod. 2371. estate tail, without departing of the whole fee-simple out 1 Rol. Rep. 240.) of him (8): as if a man make a feoffment in fee to the use of the heirs male of his body, this is a good estate tail executed in himself, and the limitation is good by way of use, because it is raised out of the state of the feoffees, which the feoffor departed with, and that is apparent, for a limitation of use to himself had without question been good. & 35 Eliz. Poph. n. 8. Feofsment ed by A. by fine for the life of A. remainder to A.'s right heirs. It is a reversion in A. and he may grant it." Hal. MSS. "Dy. 237. Fine to husband, as that which he and his wife have of his gift, which render to the conusor for life, remainder to the right heirs of the husband. It is a void remainder, and the wife survivor shall have it for life." Hal. MSS.-[Hargr. n. 3. 22 b. (134).] (8) "Where heir shall be pur (0) The right of reverter can only arise by the act of law, and cannot be created by the act of the party, though it is a consequence of his previous act. Therefore, where a person, as in the case put by Lord Coke, limits particular estates to strangers with the ultimate limitation to his own right heirs, or to himself in fee, the latter limitation shall not take effect as a remainder, or by reason of the express limitation of the gran |