lands shall be a chattel interest, and on the death of such executor shall go to his executors: because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid. 1 Co. Litt. 42. CHAPTER THE ELEVENTH. OF ESTATES IN POSSESSION, REMAINDER, AND RE VERSION. Hitherto we have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates therefore, with respect to this consideration, may either be in possession, or in expectancy: and of expectancies there are two sorts; one created by act of the parties, called a remainder; the other by act of law, and called a reversion. I. Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory), there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of attention. [164] II. An estate then in remainder may be defined to be an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A for twenty years, and, after the determination of the said term, then to B and his heirs forever: here A is tenant for years, remainder to B in fee. In the first place an estate for years is cre ated or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee." *They are indeed different parts, but they constitute only one whole:* they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs forever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions: there is first A's estate for years carved out of it; and after that B's estate for life; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that † no remainder can be limited after the grant of an estate in fee-simple: because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all a Co. Litt. 143. b Plowd. 29. 2 Vaugh. 269.2 *-* Quoted, 14 Lea (Tenn.) 255. +-+ Quoted, 50 Ind. 459. Cited, 75 Mo. 258; 59 Ind. 529. [165] the remainders expectant thereon, is only onefee-simple; as 401. is a part of 100l. and 607. is the remainder of it: wherefore, after a fee-simple once vested,. there can no more be a remainder limited thereon, than after the whole 1007. is appropriated there can be any residue subsisting.* Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded. I. And, first, there must necessarily be some particu-lar estate, precedent to the estate in remainder. As, an estate for years to A, remainder to B for life; or, an estate for life to A, remainder to B in tail. This preced-ent estate is called the particular estate, as being only a small part, or particular, of the inheritance; the residue. or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for, where the whole is conveyed at once,. there cannot possibly exist a remainder; but the in-. terest granted, whatever it be, will be an estate in possession.† An estate created to commence at a distant period of time without any intervening estate, is therefore properly no remainder: it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the antient law, to be executed either now or hereafter, as the contracting parties should agree: but an estate of freehold must be created to commence immediately. For it is an antient rule of the common law, that no estate of free-. c Co. Litt. 49. Plowd. 25. d Raym. 151. 2 BLACKST.-24. *Cited, 2 Ga. 121. hold can be created to commence in futuro; but it ought to take effect presently either in possession or remainder;e because at common [166] law no freehold in lands could pass without †livery of seisin: which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession.† Therefore, though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is 2 completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A; here by the livery the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainderman is seised of his remainder at the same time that the termor is possessed of his term. [See note 36 a, page 292.] The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in futuro.? e 5 Rep. 94. 9 Ninth edition reads, "an estate of freehold cannot." 2 Misprinted in first edition, "it." - Quoted, 4 McCord, 15; 17 Am. Dec. 701. Cited, 29 Ala. 496; 6 Ark. 119; 9 Fla. 295. +-+ Quoted, 14 Mich. 92; 90 Am. Dec. 226. Cited, 7 Leigh, 713. 2 Cited, 50 Me. 153; 46 N. H. 235; 73 N. Y. 364; 2 Halst. 187. |