Contingent Remainder - Definition - Law Dictionary Home Dictionary Definition contingent-remainder

Definition :

Contingent remainder, a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate, Fearne, Cont. Remainders.

The legal estate in contingent remainders has been abolished by the Law of Property Act, 1925, s. 1. S. 4, whoever, provides that they can take effect as equitable interests, and any instrument creating a contingent remainder has become a settlement under s. 1 (ii) of the (English) S.L. Act, 1925. See SETTLED LAND.

In Smith d. Dormer v. Parkhurst, (1740) 18 Vin. Abr. 413; 6 Bro. Cas. Par. 351, the Court held that, in every case where an estate is given to A. for life, the grantor has an interest remaining in him to enter upon the estate, if it should determine by any act of the tenant amounting to a forfeiture; that this right is inherent in the grantor, from the nature of the estate itself, and may be conveyed to trustees; and that, when it is conveyed to them, it vests in them as a vested remainder for the life of A. On this ground, the limitation (usual in old settlements) to trustees 'for preserving contingent remainders' was held to confer on then a vested estate and not a contingent remainder.

The interposition of trustees to preserve contingent remainders was rendered unnecessary in most cases by the Real Property Act, 1845 (8 & 9 Vict. c. 106), s. 8, which enacts 'that a contingent remain-der existing at anytime after the 31st day of December, 1844, shall be, and, if created before the passing of this Act, shall be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold, in the same manner, in all respects, as if such determination had not happened.

Contingent remainders, it will be observed, were not preserved by this statute in all possible cases of the determination of the particular estate; they were only preserved against those destructive acts by or with the concurrence of the owner of the particular estate which prematurely determine it, and a contingent remainder still failed of effect, if the particular estate regularly and naturally expired before the contingency happened, upon which the remainder vested.

As to contingent remainders created by any instru-ment executed after 2nd August, 1877, however, the (English) Contingent Remainders Act, 1877 (40 & 11 Vict. c. 33), provides that every contingent remainder shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation. Contingent remainders are subject to the rule against perpetuities [Re Ashforth, (1905) 1 Ch 535].

Before the Act of 1877 (English) was passed the rules for the creation of a contingent remainder, said Mr. Joshua Williams, might be reduced to two:--

1. The seisin, or feudal possession, must never be without an owner, i.e., every contingent remainder of an estate of freehold must have a particular estate of freehold to support it.

This rule has disappeared with the abolition of the legal estates for life and remainder under the L.P. Act, 1925, and has been supplanted by the modern doctrine of an estate owner with power to alienate the entire fee simple or term of years in the property.

2. An estate cannot be given to an unborn person for life followed by any estate to any child of such unborn person; for in such a case the estate given to the child of the unborn person is void, Williams on Real Property; and see, as to this second rule, Whitby v. Mitchell, (1890) 44 Ch D 85; Re Nash, (1910) 1

Ch 1.

This rule has been subjected to very strong criticism. It is apparently an extreme extension of the meaning of the original rule that the law will not give effect to a possibility upon a possibility such as a gift to an unborn person if his name shall be Nicodemus, and it has been applied to cases where the gift complied with the rules against perpetuities in every other respect. A gift to A. for life remainder to the right heirs of B., a living person, is good, but the heirs are not ascertainable until B.'s death and might well be unborn children of unborn children of B. So far as a remainder or gift in an instrument taking effect after 1925 maybe limited to the unborn children or issue of an unborn child the rule has been abrogated by the (English) L.P. Act, 1925, s. 161(1). See also s. 163 of that Act.

The only rule now is that the remainder must vest within lives in being at the date of settlement or at the death of the testator and twenty-one years thereafter plus a period of gestation, and see also CONTINGENT LEGACY, and s. 163 (English) L.P. Act, 1925.

The whole subject of contingent remainders, together with that of executory limitations, is elaborately dealt with in a celebrated treatise by Charles Fearne, of the Inner Temple (see a good account of him in the Dictionary of National Biography), first published as a comparatively short essay in 1772, expanded into two volumes by the author shortly before his death in 1794, and edited in that form by Charles Butler, and afterwards by Josiash Smith, who in his preface to the 10th and last edition, published in 1844, spoke of the 'justly celebrated treatise of the profound Fearne.' An epitome by 'H. W. C.' appeared in1878, and the Law of Real Property, by the late H.W. Challis, published in 1892, contains a chapter on 'Contingent Remainders' which is recommended for careful perusal.