ON PETITION FOR REHEARING. In their brief on petition for rehearing appellants continue to rely upon Hull v. Beals (1864), 23 Ind. 25, now saying it holds "that a reconveyance by a life tenant to his grantor 5. in whom the reversion is vested will merge and destroy all contingent remainders limited on such life estate, under the common law which that case holds is in force in Indiana." The statement is inaccurate and too broad. Nor is it warranted by the language of the opinion which bases the decision on the premise that "whatever estate passed out of Hull and wife was transmitted no further than Beals and wife; and, as they retransferred it, it was reinvested in plaintiffs, . . ." That premise is sound if the Beals had a fee simple which was possible only by the application of the rule in Shelley's case. If, as Judge Hanna reasons in the *Page 525 preceding page and a half, the Beals had only a life estate and their heirs, including Cora, had contingent remainders, the premise cannot be true for the remainders certainly passed out of Hull and just as certainly passed "further than Beals and wife" to their heirs, including Cora. Even though the decision might be harmonized with the proposition for which appellants contend, there is no suggestion that any such proposition was in the mind of Judge Hanna. An opinion which does not mention the principle for which the case is supposed to be authority carries little weight, particularly since the decision may be harmonized with another principle which is mentioned in the opinion.
But we do recognize in the facts of that case and of the case at bar a problem which is suggested by appellants' language above quoted. Appellees say that the question is belatedly presented and decline to discuss it. While it is little more than suggested in any of the briefs, we think it cannot be ignored.
At common law a contingent remainder could not be created by conveyance without concurrent creation of a particular estate of freehold as support for the remainder. The reason is 6, 7. stated in Miller v. Miller (1913), 91 Kan. 1, 136 P. 953, Ann. Cas. 1917A, 918, 920, as follows:
"The doctrine of the particular estate arose from the necessity under the feudal system of always having a tenant to fulfil feudal duties, defend the estate, and represent it so that other claimants might maintain their rights. The only way to pass a freehold estate was by livery of seisin which operated immediately or not at all, and if the freehold became vacant the lord had an immediate right of entry and all limitations of the tenancy came to an end. The result was that in order to create a freehold estate, the enjoyment of which was to be postponed to a future time, it was necessary to support it by a precedent particular estate *Page 526 taken out of the inheritance, and to make livery of seisin to the particular tenant, which by fiction inured to the remainder man or remainder men."
Consequently if the particular estate for any reason ceased to exist before the happening of the contingency, ipso facto the contingent remainder was destroyed. This could occur through merger of the particular estate with the "next succeeding vested interest, whether a remainder or a reversion." "The merger operated to destroy the freehold estate upon which the contingent remainder was limited and the contingent remainder was necessarily lost there being no freehold estate upon which it could depend. Unless there is some statutory modification of this rule either expressly or by fair implication presumably the rule still obtains." Gavit, Future Interests in Indiana, § 90.
Our inquiry therefore is directed to the question of whether by fair implication there has been such statutory modification and more particularly to the fundamental question whether under our statutes a particular estate is required as foundation for a contingent remainder. If not, then what happened to the life estate of Lewis Paidrick is of no consequence for the remainder, once created, could not be destroyed by his conveyance of his interest and would vest with the happening of the contingency.
The law of seizin was the only reason for the common-law rule that a contingent remainder required support. Seizin has been abolished in Indiana. Gavit, supra. When the reason 8-10. for a rule has ceased, the rule itself should cease. This view is suggested by Dean Gavit and, we think, is sound.
Other than the abolition of estates tail in 1831, Chapter XXIX, § 11, common law rules as to conveyancing and *Page 527 estates were in force in Indiana with little statutory 11. modification until 1843 when all the statutory law "concerning the acquisition, the enjoyment, and the transmission of property . . ." was gathered into one chapter. Ch. 28, R.S. 1843. The existing laws were not merely codified; they were supplemented by new statutes making substantial changes in the common law. The first three articles of this chapter, containing 79 sections and occupying 11 pages, were nine years later condensed into 41 sections occupying less than 7 pages. Ch. 23, R.S. 1852. What remained of the law of seizin after the revision of 1843 completely disappeared in 1852. Even the word "seized," which still occasionally appears in the statutes, has lost its common law significance and is used in the sense of "owned" or, sometimes, "possessed." See Gavit, supra, p. 58, note.
In the process of condensation numerous sections of the 1843 statutes were not carried forward. From Article 111 of Chapter 28, eighteen sections were not reenacted in 1852. Examination thereof reveals that most, if not all of them, were surplusage in that they were merely explanatory of other sections that were reenacted. Dean Gavit thinks that this circumstance is explanatory of the failure to carry forward § 63 which contained "an express provision saving a contingent remainder as against the law of merger." Gavit, supra, § 90. The House and Senate Journals of 1852 throw no light upon the subject. The trend of public opinion was then away from the intricacies of the common-law. In the Constitution formulated in 1851 is an express mandate to this Assembly to abolish common law pleading and practice. Article VII, Section 20. The members of the convention desired that the law be so simple that any voter of good moral character *Page 528 should be able to practice in all courts. Article VII, Section 21. One member of the convention even introduced a resolution "to abolish the common law of England" which was the occasion of much merriment. Debates in Indiana Convention, Vol. I, pp. 722-724.
It is hardly conceivable that a Legislature so minded would intentionally restore an abandoned common-law concept which not only had lost its support in reason but had already been abolished in England and changed "in divers ways" by statute in many of the states. Ann. Cas. 1917A, pp. 906, 908, 33 Am. Jur.,Life Estates, etc., §§ 164, 165, 1 Tiffany, Real Property, §§ 141, 177, Gavit, supra. In § 240 of the Restatement of the Law of Property the rule is stated.
"When a remainder is subject to a condition precedent, the termination, before such condition precedent is fulfilled, of all prior interests created simultaneously therewith does not destroy the remainder."
The historical background and the present statutory status are referred to later in the section.
In Kansas the result was reached as Dean Gavit thinks it should be reached in Indiana. Miller v. Miller, supra. It is interesting to note from the opinion that an earlier 12. statute (1855) making unnecessary a particular estate to support a contingent remainder and permitting by deed, as well as by will, the creation of an estate of freehold to commence in futuro, was condensed in 1859 to this simple statute: "Estates may be created to commence at a future day." In Indiana, § 37 of Ch. 23, R.S. 1852, was result of similar condensation. But Kansas went further and in 1868 eliminated the section. We still have § 37, supra, being § 56-139, Burns' 1933, § 14697, Baldwin's 1934. The Kansas general statute as to conveyancing *Page 529 is substantially like ours (§ 56-103, Burns' 1933, § 14657, Baldwin's 1934) which has stood unchanged since it was adopted as § 4 of Ch. 23 R.S. 1852. The Supreme Court of Kansas, considering such legislative history, stated in conclusion as follows:
"The legislature of 1855 placed conveyances by deed on the same footing as wills so far as the creation of future estates was concerned, but following the lead of legislatures of some of the older states, the Kansas legislature of 1868 undertook not only to permit the granting of future estates but to abolish other common-law restrictions on alienation not suited to allodial tenures and modern conveyancing, and to make transfers of interests in land as free as possible. The concluding portion of section 3 of the act of 1868, quoted above expressly abolishes the common-law ceremony of livery of seisin, which stood as an insuperable bar to the creation of freeholds to begin in futuro unless supported by a particular estate. The language was adapted from statutes of other states, which usually provided that deeds duly acknowledged and recorded should be valid and pass estates in land `without livery of seisin, attornment, or other ceremony whatever.'
"It follows that the remainders to Nettie J. Miller and to the heirs of the body of George W. Miller do not require the support of the life estate to George W. Miller in order to be valid."
We think the same result has been accomplished by the similar Indiana statutes. Consequently, we hold that no particular estate was necessary to support the contingent remainders of appellees and they were unaffected by the deed from Lewis to David. That deed carried all of Lewis' interest to David. His subsequent deed to William Rouse carried all of his interest. Neither of them could convey the interests of the contingent remaindermen. When Lewis, who survived *Page 530 David, died leaving appellees his children and grandchildren surviving, the remainders vested.
As Dean Gavit suggests in § 90 it has been assumed in two Indiana cases since 1852 that a contingent remainder may still be destroyed by merger but no case has been found so 13. deciding. Since there has been no previous judicial examination of the question we feel free to adopt the view taken in Miller v. Miller, despite appellant's contention that Hull v. Beals decides otherwise. Their further contention that our decision impairs the obligation of a contract is unsound. On their facts, Haskett v. Maxey (1893),134 Ind. 182, 33 N.E. 358 and Stephenson v. Boody (1894), 139 Ind. 60, 38 N.E. 331, upon which appellants rely for such contention, are distinguishable in that the statute involved had received uniform judicial construction in numerous cases over a long period of years. It may also be observed that the authority of the two cases, both based upon a dictum in Insurance Co. v. Debolt (1853), 16 How. 415, is shaken by the later decisions contra of the United States Supreme Court referred to in 16 C.J.S.,Constitutional Law, § 280, including Fleming v. Fleming (1924), 264 U.S. 29, 68 L.Ed. 547, 44 Sup. Ct. 246.
The petition for rehearing is overruled.
NOTE. — Reported in 49 N.E.2d 528.