147 P. 935 | Or. | 1915
delivered the opinion of the court.
“If the particular estate determine, or be destroyed before the contingency happens on which the expectant estate depended, and leave no right of entry, the remainder is annihilated. * * The particular estate in the tenant in tail, or for life, may be destroyed by feoffment or fine; for these conveyances gain a fee by disseisin, and leave no particular estate in esse, or in right, to support the contingent remainder, (d) So, if the tenant for life disclaimed on record, as by a fine, a forfeiture was incurred upon feudal principles; and if the owner of the next vested estate of freehold entered for the forfeiture, the contingent remainder was*75 destroyed, (a) A merger, by the act of the parties, of the particular estate, is also equally effectual as a fine to destroy a contingent remainder, (b) But with respect to this doctrine of .merger, there are some nice distinctions arising out of the case of the inheritance becoming united to the general estate for life by descent; for, as a general rule, the contingent remainder is destroyed by the descent of the inheritance on the particular tenant for life. Out of indulgence, however, to last wills, the law makes this exception: That if the descent from the testator or the particular tenant be immediate, there is no merger; as if A devises to B for life, remainder to his first son unborn, and dies, and the land descends on B as heir at law. Here the descent is immediate. But if the fee, on the death of A had descended on C, and at his death on B, here the descent from A would be only mediate, and the contingent remainder to the unborn son of B would be destroyed by merger of the particular estate on the accession of-the inheritance. Mr. Fearne (c) vindicates this distinction, and reconciles the jarring cases by it; and it has been since judicially established, in Crump v. Norwood [7 Taunt. 362] (d).”
To like effect, see Bennett v. Morris, 5 Rawle (Pa.), 9; Dunwoodie v. Reed, supra; Archer v. Jacobs, 125 Iowa, 467 (101 N. W. 195).
Upon the whole case we are satisfied that by the conveyances before mentioned the contingent remainders of possible unborn children of plaintiff and Fred D. Love have been annihilated, that plaintiff is the owner in fee simple of the property in controversy, and that his title thereto is marketable. The decree of the Circuit Court is therefore affirmed. Affirmed.