pendently of the event on which the condition is to operate. But though a remainder, to take effect on the évent expressed in a condition, which is to defeat a prior estate, be void, when it is inserted in a conveyance at the common law, it will be good in limitations of use under conveyances to uses, and also in gifts by will. And even at the common law a remainder may be limited to commence on the event which is to determine the preceding estate, as in the instance of a gift to A till his return from Rome, and from and after his return, to B (n); and also of a gift to A and his heirs males of his body, until an act done, and after the act done, to another in fee (o). It is true, that in both these instances the limitations were in conveyance to uses; but there is not any reason to doubt of the like limitations being perfectly good if found in a common law conveyance. The event is part of the measure of the estate or duration of ownership, and not of a condition. The event is to determine the estate by limitation, and not to defeat it by condition. The particular estate must have filled the measure of duration, before the remainder can confer a right to the possession. So that on Arton and Hare, and the other cases of that class, it is observable that the (n) 3 Rep. 20 a. (0) Arton and Hare, Poph. 97. particular estate is not determined by the remainder, but by the limitation which created the particular estate; and though the remainder takes effect on the event which determines the particular estate, it does not take effect in derogation or abridgment of that estate. Indeed, the material point is, that a remainder, to take effect on an event expressed in a condition, which is to defeat an estate, would, if allowed to operate, take effect in derogation and abridgment of the estate to be so defeated. And, as applicable to the learning of estates to be defeated by springing use, &c. it may be remarked, that if an estate previously limited is to be defeated on an event, it will not, at least in some cases, be defeated in that event, though it should happen, unless the person who is to take under the limitation over, should be capable of claiming under that limitation. The case of Fynemore v. Crockford (p), affords an example of this description. From these observations, it may be deduced, that if an estate be limited to a man and his heirs until A shall attain the age of twenty-one, the estate will necessarily determine if A should die under that age. But possibly it may be contended, that if an estate should be devised to or limited to the use of A and his heirs, provided that if A should die under twenty-one, (p) 2 Siderf. 130. 151.` the lands should remain to B and his heirs, the estate of A would not be defeated, although he should die under the age of twenty-one years, unless B should be capable of claiming; and therefore the estate of A would become absolute by the death of B, before the publication of the will or the date of the conveyance to uses. In the former instance, the words until, &c. are clearly part of the limitation, and circumscribe the continuance of the estate; in the latter instance, they are words of conditional limitation to defeat the estate, and it may be urged that they stand on the ground of a condition become impossible. This doctrine, however, is very questionable, since the sounder course, and it should seem the practice, is to consider every limitation over as a quasi remainder, and abridging the measure of the former estate, by giving it a determinable quality for the benefit of the heir, by way of lapse, as well as the person who was intended to take under the limitation over. Indeed, from Goodright v. Searle (p), Goodtitle v. White (q), Doe v. Vincent (r), to be examined in the chapter on Fees, it should seem that a limitation over, after a fee determinable by executory devise, is a quasi remainder, and induces similar consequences. Unfortunately, however, the analogy is weakened if not de(g) 2 New Rep. 383. (p) 2 Wils. 31. stroyed by the decision (s), which overrules Scott v. Scott (t), and treats the estate of a devisee (being the heir) of a fee determinable by executory devise, as the old estate vesting in him by descent, and not as a new estate acquired by purchase. The case of Doe v. Timins, or rather its principle, will, in all probability, become the subject of further discussion. Provisoes, in the nature of conditions, inserted in conveyances to uses, or in bargains and sales, for determining or defeating the uses previously limited, belong to the learning on uses (u). Estates by shifting use generally owe their effect to provisoes of this sort; and these provisoes partake, at the same time, of the nature of a limitation and of a condition. And interests in land, arising by executory devise, owe their operation to provisóes which are the same in form or in effect, and in general are denominated executory devises. Limitations of shifting use, and executory devises are, in effect, as to the persons whose estate they defeat, of the nature of conditions; and as to the persons in whose favour they are made, of the nature of limitations. In truth, they bear some resemblance to one and the other, and are different from both (x). (s) Doe v. Timins, 1 Barn. & Alders. 531. (t) Amb. 383. (u) 1 Inst. 237 a; Show. P. Ca. 137; Sand. on Uses, 186; 1 Tr. Atk. 591; Fry and Porter, 2 Lev. 21. (x) 1 Collect. Jur. 425: Com. Dig. Uses, L. 4. For, First, Limitations must give estates in successive order; and Secondly, Conditions must defeat the estate, in favour of the person by whom the conveyance is made; or his heirs, when the estate is of inheritance; and his executors, when it is of a chattel quality. Thirdly, Estates of freehold are determined by clauses of shifting or springing use, and executory devise, without any entry (y); and a limitation by a proviso in a conveyance to uses, or in a will, may, under the doctrine of shifting uses or executory devises, substitute one estate in the place of another, by defeating that other estate, or by postponing it (z); and may give the estate to any one, without distinction of persons: and even at the common law, there may be concurrent limitations, one to take place in case the other should fail of effect (a); but under the rules of the common law, with the exception of estates to be enlarged on condition, a limitation cannot defeat an estate once vested under another limitation or gift. (y) Com. Dig. Uses, L. 4. (z) Fearne, 10. 390. (a) Loddington and Kime, 1 Salk. 224; Doe v. Burnsall, 6 T. Rep. 30. |