" of the law works an injury to none." But in the event last supposed it seems also that the estate itself which is merged may, at least under some circumstances, have a virtual continuance.

See 3 Prest.

Conv. 408, &c.

Ab. 852.

Thus if A. be tenant for life, with remainder to Anon. 5 Bac. B. in tail, remainder over to C.; and A. and B. join in a Fine to D., and then B. die without issue in the lifetime of A., it appears to have been considered that D. should still hold the land for the life of A. This however depends upon the circumstance of both estates passing at once from their several owners to the third party: (767.) and it seems to be a necessary prerequisite that no forfeiture of the life estate should have been incurred by the transaction; a danger which perhaps would not be 1 Sid. 83. avoided, if the conveyance were by Feoffment

instead of Fine, since to the former no entirely

lawful operation upon either of the estates could. (39. 72. 671. be attributed.

698.)

CHAP. IV.

OF SETTLEMENTS.

SECT. 1.-Of Settlements by Deed.

(768.) IT has been seen that at this day no Chap. 2, s. 2. certain or permanent Settlement can be made by a mere Entail: and it is equally clear that if there be two persons, as Father and Son, who

Chap. 3, s. 2.

are intended to take real property in succession, the object may be secured by giving a life estate to the first, and an estate in remainder to the second. (769.) But it generally happens that one material object of a Settlement is to make a provision for persons unborn; and this, by the rules of the Common Law, can only be (122.32.34.) effected by means of those Contingent Remainders, which are exposed to so many destructive accidents. There is, however, a contrivance by which those accidents may be and usually are prevented; in order to the explanation of which it will be proper to resume the subject of the Destruction of Contingent Remainders.

(32.)

(770.) A Contingent Remainder, however good and valid in its creation, will always fail or be destroyed, if during the contingency an ulterior estate become an estate possession; and this may happen by the determination of the Particular Estate in three different ways; viz. by its natural expiration, by merger, or by (741.747.) an act of forfeiture followed up by the entry of the party entitled. (771.) And there is also one other mode, not yet noticed, in which the Contingent Remainder may be destroyed; namely, by the destruction of the Particular Estate, although no advantage be taken of that destruction by the person in whom the ulterior remainder or reversion is vested. Thus, if A. be tenant for life of land in possession, with remainder to his eldest son (unborn) in tail, remainder to B. in fee, and A. make a feoff

Lane v. Vane,

T. Jones, 98;

ment in fee, or levy a Fine to C.; by this act C. acquires the fee simple, which B. may defeat by entering for the forfeiture; but whether he enter or not, the estate of A. is alike irrecoverably destroyed, and the Contingent Remainder with it. (772.) But if in this case there were a previous estate for life, so that A. should be Tenant for life in remainder only, it seems 5 Bac. Ab. 857. that no act of A., however destructive to his own estate, (as a conveyance to B., which would merge it,) could destroy the Contingent Remainder while the previous estate subsisted: (773.) nor could the Tenant of that previous estate, while A.'s estate continued, effect that destruction; for the worst which the former could do by destroying his own estate, would be to change the estate of A. into a present Fearne, C. R. right of entry, which is sufficient to support a Contingent Remainder, though a mere right of action is not. (774.) And it may here be observed that, although where a Contingent Re- 2 Saund. 387. mainder is once excluded by the ulterior estate coming into possession, no revival of the particular estate can restore it, yet a mere temporary Fearne, C. R. failure of support from the preceding estates will not cause the remainder to fail, if there be a sufficient estate or subsisting right of entry to support it at the time when the contingency

ceases.

(775.) It is obvious that the only way to ensure the preservation of a Contingent Remainder, is by giving a vested estate, sufficient

286.

349. 289.

(718.)

to support it, to a person who may be trusted for that purpose; and that this estate must be commensurate with the utmost duration of the contingency; though to make it more than commensurate would be a needless inconvenience. (776.) Upon this plan Settlements are commonly made. The property is conveyed. to the use of A. for his life, (generally without impeachment of waste,) and upon the determination of that estate by forfeiture or other means (731.733.) in his lifetime, to the use of* B. and C., and their heirs, (or executors and administrators,) during the life of A., in trust for him, and to preserve contingent remainders; and after his decease, to the use of his first son in tail, or otherwise, according to the intention. (778.) If indeed the estate thus given to the Trustees were only a contingent remainder, the object would not be accomplished, as A. might destroy

(777.) There is no necessity on this occasion for more than one Trustee; but it is convenient to have two, that the trust may go with the estate to the survivor, and not, upon the death of one person, to his representatives, who may be strangers to the principal parties in the Settlement. And it is usual to provide for the appointment of a new Trustee upon the death of either, and for the transfer of the Estate held in trust, and of all powers connected with it, to the Trustees for the time being. however the life estate in remainder should happen to be transmitted to the representatives of the survivor, they will of course be under the same obligations (which may be enforced by a Court of Equity) as the original Trustees.

If

that and the remainder to his unborn son to

218.

gether; but it has been long ago decided that Fearne, C. R. the remainder to B. and C., during the life of A., is vested. It is true that it depends upon a contingent event, whether this estate will ever come into possession; but so it would be, if the remainder were after the death of A., or other determination of his estate, to B. for his own life, or even in tail; as A. might outlive the period of either estate. It is true also that the estate given to the Trustees is expressed to depend upon the determination of A.'s estate in a particular mode; but this is only because the other mode of determination, (viz. by the death of A.,) would coincide with the extreme limit of the estate in remainder, and therefore it would be nugatory to mention that as an event upon which the enjoyment of the latter estate should commence. It may be laid down with certainty, that the vesting of a remainder, so long as it has any existence, never depends upon the quantity of estate; but that remainder which, if it were in fee simple, would be vested, is vested, though it be for ever so short a term. Now a remainder in fee simple is certainly vested, if, supposing the Particular Estate or Estates immediately to determine by any means whatever, the actual enjoyment of the property under it would instantly commence. And here the remainder given to the Trustees, if it were in fee simple, would be made to commence in actual enjoyment upon any determi