remainderman or reversioner, is the law in Maryland,' but has been changed by statute in other jurisdictions.5 The following remarks are intended to show why the older rule revived in part for Illinois is preferable to the rule which is at present more generally observed. 6 When a testator creates life estates with remainders, he does one of two things: he either gives property to a designated person or persons, subject to a life provision for some other person, or he makes a life provision and leaves it to be determined by circumstances existing at the end of the life where the property is to go. These two alternatives represent the real difference between vested and contingent remainders; "vested subject to be divested," when applied to an estate in expectancy, is in reality contingent; and the treating of such a remainder as vested subject to be divested, for the purpose of avoiding certain restrictions or liabilities attaching to contingent remainders, is a mere conventional mode of construction that should not mislead or confuse us. Whenever a testator makes a disposition dependent on circumstances existing at a future time, he seeks to project himself and his will, as far as feasible, to that point of time; if he could, he would only then make his dispositions. It may safely be assumed that he does not intend to benefit persons who would not be the natural beneficiaries of his will were his will made at the later point of time. Results contrary to his presumed interest may, however, easily follow, if remainders are treated as vested, or if contingent remainders are treated as descendible, devisable, or alienable. It will then not infrequently happen that his property at the time to which he desires to project his control will pass to persons who are strangers to him. So in the very common case that the remainderman dying in the life of the life tenant leaves a wife or husband as heir, or that the remainder descends to a child and the child later dies, leaving the other parent • Barnitz's Lessee v. Casey, 7 Cranch (U. S.), 456, 469, 470 (1812); Buck v. Lantz, 49 Md. 439 (1878); and in Georgia, Payne v. Rosser, 53 Ga. 662 (1875). 5 Cook v. Hammond, 4 Mason (U. S.), 467 (1827); Kean's Lessee v. Roe, 2 Harr. (Del.) 103 (1835); Hillhouse ». Chester, 3 Day (Conn.), 166 (1808); Cote's Appeal, 79 Pa. St. 235 (1875); Early v. Early, 134 N. C. 258, 46 S. E. 503 (1904); Hicks v. Pegues, 4 Rich. Eq. (S. C.) 413 (1852). See the citations in note in KALES, CASES ON FUTURE INTERESTS, 184. I • Nonalienability: Blanchard v. Blanchard, 1 Allen (Mass.), 223 (1861); 5 GRAY, CASES ON PROPERTY, 2 ed., 77; destructibility: Doe v. Martin, 4 T. R. 39 (1790); 5 GRAY, CASES ON PROPERTY, 2 ed., 55. as its heir. To avoid this result, the Supreme Court of Illinois has in several cases interpreted a remainder not only as contingent, but as contingent upon the remainderman outliving the life tenant. So in the common form of limitation "to my wife for life, upon her death to my children, and if any of my children die leaving issue either before me or before my wife, then the issue of the child so dying shall take the share which the parent would have taken if living at her death," the children take remainders contingent upon their surviving the wife," with the result that if a child leaves husband or wife, but no issue, the husband or wife will take nothing. In most states there is probably no hard and fast rule preventing courts from seizing upon slight forms of expression to read a contingent remainder as contingent upon the contingent remainderman surviving the life tenant, and particularly the provision in favor of his issue, should he die before the life tenant, will aid that construction. The trouble is that such a construction would aid the testator's scheme only if he had made express provision for issue. of the contingent remainderman, for normally the testator desires that a contingent provision for a relative should inure to the benefit of the latter's children should he die prior to the happening of the contingency. The rule in Golladay v. Knock is an additional aid in carrying out the testator's presumable intent, for while it lets in the son of the contingent remainderman, it does not let in either the son's wife or the son's mother, should the son die before the interest vests in possession. If, however, the testator's presumable intent is to shut out all those who are strangers to his blood, the rule of Golladay v. Knock does not go far enough, for it lets in the contingent remainderman's wife, so far as she is her husband's heir. The shutting out of all strangers requires either an explicit appropriate provision or a statute. An abstract direction inserted in a will that a remainder shall not, while it is still an interest in expectancy, pass to strangers, would of course be futile; a testator can neither alter the legal course of descent nor render property inalienable. The only common-law exception to this rule is the estate tail. At common law a remainder in tail will prevent the property from passing out of the stock 7 Cummings v. Hamilton, 220 Ill. 480, 77 N. E. 264 (1906); Kales, Cases on FUTURE INTERESTS, 175; People v. Byrd, 253 Ill. 223, 97 N. E. 293 (1912); KALES, ibid., 477. by any testamentary act; and before the remainder has vested in possession, the remainderman in tail cannot dispose of his interest (by common recovery or its statutory substitute) without the concurrence of the life tenant. In this country the entail legislation of the state where the land is situated will have to be carefully examined, and in most states it will be found that the remainder in tail is not available for the testator's purpose. In any event it would not serve in case of personal property. What the testator can do is to create alternative contingent limitations. This is what the Supreme Court of Illinois did for the testator in Golladay v. Knock. It construed the contingent Temainder in fee as a remainder in the alternative to the person named or to his heirs at the time of the vesting of the possession. Under the facts of that case the construction operated to exclude the stranger claiming under the nonsurviving heir of the remainderman. Had the remainderman, however, died leaving no children, but a widow surviving the life tenant, she would under the law of descent of Illinois have been the heir to the extent of one half of the property. The form of limitation "to B or his heirs" is therefore not adequate. The proper form is: to A for life, remainder to B and his heirs, or if B dies during the life of the life tenant, to such heirs of B as would be also heirs of my own, had I died immediately after the life tenant. If this form is substituted for "to A for life, remainder to B and his heirs" (instead of for: to A for life, remainder to B or his heirs), the testator should bear in mind that he turns a vested into a contingent remainder, and that the latter may violate the rule against perpetuities where the former would not. That simply means that a testator, intent upon pushing his tying-up scheme to the furthest limits, will encounter legal obstacles of one sort or another. In the ordinary case of life estates confined to the first generation, the testator has his free choice between vested and contingent provisions following the life estate, and the natural desire of keeping remainders from passing to strangers can be given full effect. The difficulty arising from the rule against perpetuities would be avoided by a statutory rule for the transmission of remainders. The rule would be substantially as follows: "A remainder given to a relative shall before it vests in possession be transmissible by intestacy, will, or gift in the nature of a provision, to such heirs of the remainderman only as would be also heirs of the original testator or donor had he lived until after the death of the life tenant. This rule shall apply by analogy to personal property and to executory limitations." This rule would, in accordance with the presumed intent of the giver, exclude also the adopted child of the remainderman. A gift in remainder not to a relative may well be left to explicit testamentary provision, if testator desires to keep it in the stock of the donee. If a statutory provision were deemed desirable, it Iwould have to restrict transmission to descendants of the remainderman. The suggested rule would not touch alienation inter vivos except where it is a gift in the nature of a provision. In so far as speculative dispositions are considered undesirable, they may be left to any existing restrictive rules, and they would in any event be effectually discouraged by the risk purchasers would run of not outliving the life tenant; a disposition in the ordinary course of business or management, however, which may be effected by remaindermen joining with life tenants, so far as it is possible now, ought not to be rendered impossible, but on the contrary facilities should be created where they are now lacking. A rule restricting the transmissibility of remainders would in a manner revive the policy of the doctrine of "last seised" in the common law of descent. So long as the law did not recognize husband or wife as possible heirs, and so long as here was a rule forbidding the passing of property from the paternal to the maternal stock and vice versa, that doctrine had an extremely limited application. The rule now suggested would in one sense be of much wider application, for it would include devise as well as descent, and personal as well as real property, but it would recognize, as the common law recognized, that so long as a person has a merely expectant or future interest in property, the expectancy is not an asset to which persons having no blood connection with the source of the property have any equitable claim. If it be suggested that the rule would operate harshly with respect to a widow, let it be remembered that dower presupposes seisin, and that the law makes no provision for the widow of a son dying before his father, out of the father's estate, while it makes such provision for the issue of the son. 2. THE SEPARABILITY OF LIMITATIONS Gray, in The Rule Against Perpetuities, says: "Very often, indeed generally, a future contingency which is too remote may in fact happen within the limits prescribed by the Rule against Perpetuities, and a gift conditioned on such a contingency may be put into one of two classes according as the contingency happens or does not happen within those limits; but unless this division into classes is made by the donor, the law will not make it for him, and the gift will be bad altogether." And he illustrates: "Thus a gift to B. if no child of A. reaches twenty-five is bad, although A. dies without children; while if the gift over had been if A. dies without children, or if his children all die under twenty-five, then on A.'s death without children, the gift over would have taken effect."9 The rule may be English law; but it is submitted that it is a most unreasonable rule. The rule should be that if a remote limitation not only in its terms logically includes a valid limitation, but also leaves no doubt whatever as to what the valid limitation thus included is, and the valid limitation plainly carries out the testator's intent, the valid limitation will be given effect. To apply this rule, not only should, in the instance given by Gray, the gift over be given effect if A died without children, but also if his children all died under twenty-one. "To the unborn son of A., but if he dies under twenty-five, over" — clearly includes: but if he dies under twenty-four, under twenty-three, under twenty-two, or under twenty-one; and if he dies under twenty-one, the gift over is valid. If he dies over twenty-one, the gift, unless it can be saved on some other principle, is invalid, because remotely taken away from him, and therefore remains in him. There cannot be the slightest difficulty of validating a limitation under the circumstances indicated. It is conceded that there is no sense in the English rule. Jessel, M. R., says: "This is a question of authorities." "The law is purely technical." 10 Why should American courts follow such a rule? Simply from that sense of reverence which, as has been happily said, is always at the service of the incomprehensible. The English Real Property Commissioners recommended a change 8 § 331. 9 8332. 10 Miles v. Harford, 12 Ch. D. 691, 703, 704 (1879); quoted, Gray, The Rule AGAINST PERPETUITIES, § 349, note. |