Manually corrected from John Austin's Province of Jurisprudence Determined - volume 3
LECTURE LIII
In this evening's discourse, I shall consider the distinction between vested and contingent rights.
In order to the existence of a right, the two following (amongst other) essentials must concur:—1st. A determinate person or persons, presently existing, in whom the right resides. 2ndly. That the title, mode of acquisition, or investitive fact, to which the law annexes the right, be presently consummate or complete.
Hence it follows, that the epithet " present" or " vested," as applied to a right, is superfluous or tautological. Every right, properly so called, is of necessity present or vested: that is to say, it presently resides in, or is presently vested in, a present and determinate party, through the title, or investitive fact, to which the law annexes it as a legal consequence or effect.
When we oppose a vested or present, to a future or contingent right, we are not, I apprehend, opposing a right of one class to a right of another class, but we are rather opposing a right to the chance or possibility of a right. Accordingly, the contingent right of the apparent or presumptive heir to rights which the party presently entitled may alien from him, is frequently styled, not a right, but spes successionis: that is to say, the chance or possibility, that the heir, who has not presently a right, may hereafter acquire one. And, generally, a contingent right is frequently styled "spes; spes incerla; hoffnungarecht" or hope-right: a present chance, or a present possibility, that a right may hereafter arise, and may vest in a person in being, or hereafter to be. When, then, in compliance with custom, I use the expressions "vested and contingent rights," I am not opposing rights of a class to rights of another class, but right* to chances or possibilities of rights.
And here I would advert to a meaning, frequently annexed to the expressions "vested rights," which is mentioned in Mr. Lewis's treatise " On the Use and Abuse of Political Terms."
When it is said that the legislature ought not to deprive parties of their "vested rights" all that is meant is this: that the rights styled "vested" are sacred or inviolable, or are such as the parties ought not to be deprived of by the legislature. Like a thousand other propositions, which sound speciously to the ear, it is either purely identical and tells us nothing, or begs the question in issue.
If it mean that there are no cases in which the rights of parties are not to yield to considerations of 'expediency, the proposition is manifestly false, and conflicts with the practice of every legislature on earth. In every case, for example, in which a road or canal is run by authority of parliament through the lands of private persons, the rights, or vested rights, of the private owners are partially abolished by the legislature. They are compelled to yield up a portion of their rights of exclusion, and to receive compensation agreeably to the provisions of the Act.
When the expression "vested right" is used on such occasions, it means one or another of two things:—1st. That the right in question ought not to be interfered with by the legislature; which (as I have remarked already) begs the question at issue; or, 2ndly, that, in interfering with rights, the legislature ought to tread with the greatest possible caution, and ought not to abolish them without a great and manifest preponderance of general utility. And, it may be added, the proposition, as thus understood, is just as applicable to contingent rights, or to chances or possibilities of rights, or to vested rights, or rights properly so called. To deprive a man of an expectancy, without a manifest preponderance of general utility, were just as pernicious as to deprive him of a right without the same reason to justify the measure.
Before I proceed to contingent rights, or to chances or possibilities of rights, I must remark that vested rights, or rights properly so called, are divisible into two classes;— 1st Present or vested rights which are coupled with a present right to enjoyment or exercise: 2ndly. Present or vested rights which are not coupled with a right to present enjoyment or exercise.
For example: If I am absolute owner of land or a moveable, not subject to a right in another of limited duration, I have not only a present right to or in the subject, but also a right to the present possession of it: that is to say, a present right to enjoy or exercise my present right of ownership.
But if the subject be let to another, I have a present right of ownership without a present right to exercise my right of ownership: I have merely a reversion, expectant on the determination of the lease, and which, till the lease determine, cannot take effect in possession.
Or if a legacy be given to an infant, but with a direction in the will that the legacy shall not be paid to him till be come of age, he has a present or perfect right to the legacy, although he cannot touch it before he shall become adult. For if he should die before he come of age, the legacy would not lapse, (or the gift would not be inoperative), but the legacy would pass to the successors of the legatee, and not to those of the testator. It is not a gift conditioned to take effect in case the infant shall come of age, but an absolute gift with a direction suspending the payment to him until he shall come of age. If he should die before be come of age, 1) is successors would be entitled to present payment, as well as to a present right in the subject of the bequest.
A right, therefore, may be present or vested, although the right to enjoy it or exercise it, be contingent or uncertain. Or, in other words, a present and certain right to possession is not of the essence of a present and certain right.
For example: In the case of the legacy, to which I have just adverted, it is presently uncertain whether the infant will over be entitled to the payment: but still he has a present right to the subject of the bequest, inasmuch as the right would pass to his successors though he himself were to die before the period fixed for payment.
Again: In every case of a vested right, expectant on the determination of a preceding right, the right of the expectant to possession or enjoyment is necessarily uncertain. For, though he has a present or perfect right, to take effect ill possession on the determination of the preceding right, ha may die himself (or even die without representatives capable of enjoying the expectancy), before the preceding right shall come to an end.
The distinction which I have tried to explain ought to be carefully marked. For it is often supposed, even by writers who commonly perceive the distinction between vested and contingent rights, that a right to present enjoyment is of the essence of a present right: or, what comes to the same thing, that a right of which the enjoyment or exercise is uncertain is necessarily an uncertain or contingent right.
[Examples:—Blackstone, vol. ii. p. 163. " Of estates in possession whereby a present interest panes to and resides in the tenant, not depending on any subsequent circumstance or contingency, etc" as if a right not in possession might not be coupled with a present interest.]
I have said already, that in order to the existence of a present right, or in order to the existence of a right properly so called, the two following (amongst other) essentials, most concur:—1st. A determinate person or persons, presently existing, in whom the right resides, or in whom it is vested. 2ndly. That the title, mode of acquisition, or causa, to which the right is annexed as a legal consequence or effect, be presently consummate or complete.
Hence it follows, that a right is contingent in either of the following cases:—1st. The right is contingent, if the person to whom it is destined or determined, (or in whom it is to reside or vest,) be not presently existing. In this case it is supposed that the events constituting the title whereon the right is to arise have already happened wholly or in part: but that though the title be presently consummate, the right nevertheless is presently contingent, inasmuch as the person to whom it is determined may never exist to take it.
2ndly. The right is contingent, if the person to whom it is determined be presently existing, but the title, or mode of acquisition, whereon it is to vest in that person, be not presently consummate, and never may be.
In this last case, it is necessarily supposed that the title is complex (or consists of two or more successive events): that one or more of those events has already happened: but that one or more of those events has not yet happened, and may never happen.
For example: If land be now given by deed or will to A for his life, and after A's death to the eldest son (now unborn) of B, in tail or in fee, the right which is determined by the gift to the unborn son of B is contingent. By the gift itself the title is presently complete: for if B had now It son, the estate in tail or in fee would now be vested in him, although his right to possession, or to the enjoyment or exercise of his right, would not begin till after the determination of A's estate for life. But though the title is presently consummate, the right nevertheless is presently contingent i for it is presently uncertain whether B will have a son, and whether the persou to whom the right is determined will ever exist.
Again: If land be given to A for his life, and, in case B (a person now existing) shall survive A, to B in fee, the right which is determined by the gift to B and his heirs general is presently a contingent right. For though the person to whom it is determined is now in existence and capable of taking it, the title, or mode of acquisition, whereon the right is to arise, is presently inchoate only, and perhaps will never be consummate. By the gift to B, in case he shall survive A, a part only of the complex title has presently happened. Before it can be consummate, and the right determined to B can vest or come into existence, A must die, leaving B surviving him: which event, forming a part of the entire complex title, has not yet occurred, and possibly may never occur.
Wherever, therefore, the person to whom the right is determined is not presently in being, or wherever the title is presently inchoate, and its consummation is presently uncertain, the right is contingent: that is to say, there is not properly a right, (residing, as a right must do, in a present person or persons), but a present chance or possibility that a right may arise hereafter, and may reside in the person or persons, existing or to exist, to whom it is determined or destined.
The two grounds of uncertainty to which I now have adverted may happen to exist together in one and the same case: that is to say, the person to whom the right is determined may not be yet in being, and the title determining the right to the person may yet be merely inchoate, and its consummation contingent. Insomuch that the right would be presently contingent, although the party were* presently existing.
For example: If an estate were given to the eldest son of B, (B having presently no son) on condition of B or bis son doing some given act, the right would be contingent in two ways. For it is uncertain whether the person to whom the right is determined will ever exist. And, though the person presently existed, the deed or performance which is a part of the entire title, would be contingent. Until B have a son, and B or his son do the given act, there is no right properly so called, but a mere chance or possibility that a right may arise and vest in a given party.
As a further example of contingent rights, I may mention the spas successionis which resides in the presumptive or apparent heir: meaning, for the present, by the heir, the person who takes from the domino*, or absolute owner, in the way of succession ab intestato.
Strictly speaking, the apparent or presumptive heir is not heir. For nemo est haeres vicentis. In order to the existence of the relation between the predecessor and the successor, the predecessor, in the case of heirship, must have died: that is to say, must have died physically, or must have died civilly. By the apparent heir, we mean the person who would be heir presently, if the party, to whom he is heir apparent, presently died intestate. By the presumptive heir, we mean the person who would be heir presently, if the party presently died intestate, and no person entitled to take as heir in preference to the presumptive heir came into existence before the decease.
Now it is manifest that the right of the apparent heir is a contingent or uncertain right. Before he can acquire as heir properly so called, he must not only survive the party to whom he is heir apparent, but that party must die intestate; and, in case the subject of the uncertain succession be some single right, and not the university or aggregate of the party's rights, that party must also die without having aliened the right in his lifetime.
The right of the presumptive heir is more uncertain still For before be can acquire as heir properly so called, the party to whom he is heir presumptive must die in his own lifetime; the party also must die intestate, or intestate and without aliened the right by act inter vivos; and no party entitled to the heritage in preference to the presumptive heir must come into being, between the time present and the happening of all those other contingencies.
Such is the influence of words over the understanding, that I thought, at first, the right in question was not a contingent right: that it was a present or vested right liable to end on certain contingencies, that is to say, the death of the so called heir before the decease of the party to whom he is presently heir (apparent or presumptive); alienation by the party in the way of will or otherwise; and so on.
But this difficulty arose from the name which is improperly to the apparent or presumptive heir. In truth he is not heir: for nemo est haeteres viventis. He is merely the person who will be heir in case certain contingencies shall conspire to cast the heritage upon him. He has not a present or perfect right; but he has merely an inchoate right which may become consummate, in case certain facts necessary to the completion of his rights shall arise hereafter in his favour. And, accordingly, his so-called right is commonly called spes successionis : that is to say, not a right, but a chance or possibility that he may acquire a right.
The test, then, of a vested right (or of a right as opposed to contingent right or to the chance or possibility of a right) is, I apprehend, this:--
If the right be perfectly acquired, or if the whole series of facts necessary to its existence have already happened, the right is present or vested, or (in other words) is a right. If the right be not perfectly acquired, or if that whole series of facts be presently incomplete and may never become consummate, the right is contingent or uncertain, or is rather a chance or possibility that a right may hereafter arise.
And in order to the perfect acquisition of the right, or to the completion of the series of facts whereon the right arises, two things must conspire.
1st. The title to which it is annexed must be consummate: that is to say, the fact (or the whole series of facts), constituting the title, must have happened already.
2ndly. The person to whom it is determined by the title must have come into existence, and must actually be entitled to the right, or (if he have died, and the right be transmissible), must have transmitted it to his own successors.
If the title be not consummate, or if part of it consist of a contingency or of a fact which may never happen, the right is presently contingent. And though the title be consummate, the right also is presently contingent, in case the title determine it to a person who is not yet in existence For, to the being of a perfect right, the existence of a person in whom it resides is not less requisite, than the consummation of the title by which the right is vested in him.
I apprehend that a right is contingent, in case the title be incomplete and may never become consummate, although the completion of the title depend upon the will of a present party to whom the title determines the right. This, for example, is the case, in the Roman Law, where a party dies intestate, but the heritage is not cast on the apparent or presumptive heir ipso jure: that is to say, where the heir, in order to the completion of his title, or in order that he may become heir perfectly and trudy, must adire haeredilatem, or accept the heritage.
Until he accept the heritage, he has a right deferred or proffered by the law (jus delalum), but he has not a right fully acquired (jus acquisitum): so that if he repudiate the inheritance, it passes over to a party who takes aa heir to the intestate, and not through the party to whom the heirship has been merely proffered. In this case, the party who has jus delatum has merely -a contingent right, although the happening of the contingency necessary to the consummation of bis title, depends upon his own will.
The same may be said of the right of the heir (according to the law of England), who baa not completed his title, upon the death of the ancestor, by doing some act which amounts to seisin: that is to say, taking possession (physically or constructively), of the laud which has descended from the ancestor. The ancestor being dead, intestate and without otherwise aliening, the heir has jus delatum (to borrow the language of the Roman Law), which he may turn into jus acquisitum by an act of his own: that is to say, by taking seisin or possession of the subject. But, until he fully acquire by seisin or possession, he has not a present or vested, but merely a contingent right. Insomuch that if he die before seisin, the land will not descend through him, but will descend to some party who acquires as immediate successor to the predeceased ancestor.
The same may be said of parties who are entitled to probate or to take out letters of administration. By virtue of the will, or of the relation wherein they stand to the deceased, they have jus delatum.- which, by proving the will, or by taking out administration, they may convert into jus acquisitum. But they are not ipso jure representatives of the deceased; and must do a contingent act, depending on their own will, before their inchoate right can become consummate.
If, then, a right be determined to a party who may never come into existence, or if the title be incomplete, and may never be consummate, the right is contingent; that is to say, it is presently uncertain whether the right will ever arise. And this is the only mark of a contingent right which I have been able to discover.
Mr. Fearne, in his beautiful essay "on Contingent Remainders and Executory Devises" lays down the following, as the invariable test by which a vested remainder is distinguished from a contingent one. "It is not the uncertainty of ever taking effect in possession, that makes a remainder contingent The present capacity of taking effect in possession, if the possession were now to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent."
Now I cannot help thinking that this test of a vested remainder is fallacious.
For we may imagine a contingent remainder which is presently capable of taking effect in possession, in case the preceding estate were presently to end.
For example: If land be given to A for life, and, in case B survive A, to B in fee, B has a contingent remainder: For it is uncertain whether B will survive A. And yet the estate of B, so long as B lives, is presently capable of taking effect in possession, in case A's estate presently determined. For if A were now to die, leaving B him surviving, B's estate would not only become vested by the happening of the given contingency, but, by the happening of the same event, would also take effect in possession: that is to say, B would become entitled to a present or perfect right coupled with a right to present enjoyment or exercise.
The present capacity of taking effect in possession, if the possession were now to become vacant, will not then distinguish a vested from a contingent remainder: inasmuch as there are contingent as well as vested remainders to which that same capacity is incident.
But whether Mr. Fearne's test be or be not a test of a vested remainder, it certainly will not distinguish vested rights generally from contingent rights generally. For, by our own law, and other systems of law, there are numberless present rights, and numberless contingent or uncertain rights, which are not vested or contingent remainders, and have little or no resemblance to them.
In the ease, for example, of a specific legacy given to an infant absolutely, but with a direction that the payment shall be deferred till the infant come of age, the test can have no application. There, the right of the legatee is a present right, and cannot take effect in possession till he come of age. But there can be no question about its present capacity of taking effect in possession. For there is no preceding interest on which it is expectant, and on the determination of which the enjoyment is to commence. The absolute ownership is now in the infant, and yet the infant cannot enjoy until the arrival of the period fixed by the will.
The only marks of a contingent right which I have been able to discover are those which I have endeavoured to explain.
1st. Although the facts constituting the title have all of them happened, (or, more briefly, although the title be consummate,) the right is a contingent or uncertain right, if it be determined to a party who may never come into existence.
2ndly. Although that party be in existence, the right nevertheless is a contingent right, if the title be not consummate, and may never be completed.
And here I would remark, that a contingent right, or a chance or a possibility of a right, may be transmissible to the heirs or representatives of the party to whom the right is determined. It may, indeed, happen, that the existence of the party, at a given time, may be the very contingency, or parcel of the very contingency, on which the right is to arise. And, on that supposition, if the party die before the given time, the contingent right can never vest, and there is no possibility transmissible to his representatives.
For example: If land be given to A for life, and in case B survive A, to B and his heirs, if B die before A, the contingent right can never vest.
But if the existence of the party at a given time be not parcel of the contingency, the contingent right (if it be calculated to endure beyond the party's life,) may devolve to his representatives.
For example: If land be given to A for life, and, in case C survive A, to B and bis heirs, B has a contingent right transmissible to his representatives. The contingency on which the right is to arise is the death of A, leaving C surviving. And if B die before the contingency happens, the chance or possibility still exists, and may pass from B himself to the heirs or representatives of B.
[Query. Whether jus in rem may be future without being contingent?
In all these cases there seems to be a present or perfectly acquired right, of which the enjoyment is postponed to a future but certain period.]
There are two senses wherein a right may be styled contingent: one of which senses is large and vague; the other, more strict and definite.
In the large and vague sense, any right to which any body (now in being or hereafter to be,) may any how become entitled, is a contingent right. It is possible, for example, that I or you, or any body now in being or hereafter to be, may become owner or proprietor of A's house, or, more generally still, of any house whatever.
But when we oppose a contingent right to a present or vetted right, we commonly mean by a "contingent right" a specifically determined right: and we commonly mean moreover that the right is inchoate, although the right is not consummate, and although its consummation be uncertain. A contingent right is a determinate right of which the title is inchoate, or an indeterminate right of which the title is not even inchoate, (unless in so far as capacity to take be a commencement.)
The contingent rights which are subjects of legal rules, are those which are inchoate: ¦*. e. the title to which has begun, although (being a complex title, or consisting of several incidents) it is not consummate, and never may be: i e. some of the incidents necessary to complete it, have not happened.
The right also must be determinate: i. e. the inchoate title must not. consist in a mere general capacity to take rights, or rights of a given class: e. g. The right of the presumptive or apparent heir is a contingent right determinate and inchoate.
The mere capacity of taking an estate in fee simple is not a title to any determinate right.
The mere capacity of husband is also distinguishable from that of heir. It is a capacity to take his share of any rights to which the wife may become entitled. But that of the heir is an inchoate and determinate right i i. e. the party stands in a relation to the deceased which forms part of the title, and the right itself is a right to a given res singula or to a given universitas.
Sometimes, however, we speak of contingent rights in the larger and vaguer meaning. For example: The contingent rights embraced by the spes successionis, are any contingent rights to which the heir will become entitled on the death of the predecessor. So, again, a mortgage of all a man's future rights.
In considering the distinction between present and contingent rights, I have considered it as abstracted from all the peculiarities of the English Law. To expound the distinction as concrete in those peculiarities, with vested remainders, contingent remainders, executory devises, conditional limitations, etc., and all these implicated with distinctions between law and equity, and real and permanent property, would take volumes.
These spring mainly from seisin.
In treating of vested and contingent rights, I have confined my remarks to jura in rem, or to rights which avail against the world at large. But distinctions resembling those to which I have just adverted also obtain between rights of the opposite class.
Every jus in personam, or which avails exclusively against a person or persons determinate, is a right to an act or forbearance. But the act to be done, or the forbearance to be observed, may be to be done, or to be observed, either certainly, or on the happening of a given contingency. If it be to be done certainly, the right may lie deemed vested. If it be to be done on a condition, or on the happening of a contingency, the right may be deemed contingent.
And if it be to he done certainly, it may be to be done presently, (or on the demand of the obligee,) or it may be to be done at a determinate future time. In the first of which cases, the right may be deemed a present right, coupled with a right to immediate fulfilment. And in the last of which cases, the right may be deemed a present right, of which the fulfilment is presently postponed.
A right (vested or contingent), which is liable to end before the lapse of its possible duration.
First, as to vested rights.
(a. 1.) Where the right is a right of limited and defined possible duration, it may be made liable to end, on happening of a given contingent event, before the lapse of the defined period for which it is calculated to endure. (See Blackstone, vol. ii. p. 143.)
(a. 2.) Where the right is a right of limited but indefinite possible duration, it may be made to end, on happening of a given contingent event, before happening of certain facts up to which it is calculated to endure. (See Black-stone, vol. ii. p. 121.)
(b.) Where the right is a right of unlimited duration, it also may be made to end, on the happening of a contingent event, before the lapse of its possible duration : t. e. to end on another given contingency before the contingent failure of the line of successors to whom it is capable of devolving, etc (See Blackstone, vol. ii. p. 154.)
Secondly, as to contingent rights.
What has been said of a vested, is applicable (with a few modifications,) to a contingent right. For it may be made liable to end {if tt should ever vest,) on a given contingency before the lapse of its possible duration.
Notes.
The fidei-commissa and trust-substitutions of Roman Lawyers are placed with inheritances : for, with them, contingent interests were created by will. Even, therefore, where the subject was a res singula, it was considered after testaments.
Contingent interests not allowable by strict Roman Law.
Dispositions suspending vesting, and preventing alienation.
In the case of usus, etc., there was no remainder over to a third party (still leas an uncertain party on an uncertain event,) but a mere reversion in the grantor descendible to his heirs.
(Gaius, Lib. ii.; from § 179 to § 274.)
Conditional fees and estates tail to be ranked with substitutions, fidei-commissa, etc. To rank them with inheritances, (i.e. with rights which devolve agreeably to law in default of a disposition,) leads to nothing but confusion. Such an inheritance or fee ought to be considered as a aeries of life-interests. The language resembles that of the Roman Fidei-commissa. (See Mackeldey.)
Various means of limiting inalienability: In the Roman Law, directly : In the English, by fictions. (Blackstone, vol. ii. p. 110.)
