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species, which is created by the act and operation of the law itself, and this is called a reversion.

III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. Sir Edward Coker describes a roversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of tho whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A. reversion is never therefore 2 created by deed or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in præsenti, though taking effect in futuro.*

The doctrine of reversions is plainly derived from the feodal constitution. For, when a feud was granted to a man for life, or to him and his issue male, rendering either rent, or other services; then, on his death or the failure of issue male, the feud was determined and resulted back to the [176] lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowlegement of superiority; being frequently the only evidence that the lands are holden at all. Where rent is.

q Co. Litt. 22.

2 Previously, "therefore never."

r 1 Inst. 142.

* Cited, 5 Cal. 401; 4 Ga. 80; 82 Pa. St. 127; 60 Wis. 387.
2 BLACKST. - 25.

reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is, "accessorium non ducit, sed sequitur, suum principale." t

Those incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one, seised of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion,"† to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done: for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B and his heirs, B hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A's estate.

[177] In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their deaths, it is enacted by the statute 6 Ann. c. 18. that all

s Co. Litt. 143.

t Ibid. 151, 152.

u Cro. Eliz. 321.

w 3 Lev. 407.

x

1 And. 23.

*Cited, 4 N. H. 254; 82 Pa. St. 127; 17 Conn. 219; 45 Conn. 233.

+ Cited, 30 Miss. 570; 92 N. C. 75.

persons on whose lives any lands or tenements are holden, shall (upon application to the court of chancery and order made thereupon) once in every year, if required, be produced to the court, or it's commissioners; or upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenéments, till the party shall appear to be living.

*Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated; ‡ or, in the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; ¶ else, if the freehold be in his own right, and he has a term in right of another (en auter droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife.z** An estate-tail is an exception to this

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- Quoted, 2 Cowen, 300; 37 Wis. 477. Cited, 4 Zab. 617; 4 How. (Miss.) 212; 1 Neb. 298; 29 W. Va. 654.

- Quoted, 44 Ind. 399. Ref. 4 McCord, 105.

I-¶ Quoted and criticised, 33 Md. 89.

*** Quoted, 44 Ind. 398.

rule for a man may have in his own right both an estate-tail and a reversion in fee; and the estate-tail, though a less estate, shall not merge in the fee. For estates-tail are protected and preserved from merger by the [178] operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that, in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fe, the law considers it in the light of a virtual surrender of the inferior estate. But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or to destroy it; and now can only do it by certain special modes, by a fine, a recovery, and the like: it would therefore have been strangely improvident, to have permitted the tenant in tail by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue: and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.*

NOTE OF THE AMERICAN EDITOR TO CHAPTER XI.

(36 a) The remainderman is seised of his remainder at the same time the termor is possessed of his term, page 166.

In strict logic, there can be neither remainder nor reversion after a term for years. As Blackstone here shows, "the freehold is immediately created [or in case of a reversion is reserved] and vested in [the remainderman] B during the continuance of A's term of c See pag. 116.

a 2 Rep. 41. 8 Rep. 74.

b Cro. Eliz. 302.

*Cited, 6 Conn. 389; 2 Dutch. (N. J. L.) 582; 1 Brev. 363.

years." Hence B's estate is an estate of freehold in possession, whether it comes to him from another by livery of seisin made to the termor in his behalf, or being in him is not parted with, when he creates the term himself. Hence, also, there can be no contingent remainder after such a term, any more than there possibly can be such a thing as a contingent reversion. If this rule had always been recognized, the entire doctrine of remainders would be greatly simplified: it would have to deal only with freehold estates, the rules of which are comparatively simple. But it is altogether too late to correct the usage, which dates at least from the thirteenth century, as Britton shows, and from a time when seisin was predicated as freely of terms and other chattel interests, and even of personal chattels, as it has since been of freeholds. This is beginning to be well understood: indeed the chief difficulty now seems to be, to convince historical students that there is no mystery in this original use of the word "seisin " for mere possession. But it will assist the beginner, materially, to remember that all the rules for remainders after chattel interests in land really belong to estates that are already freehold, and in seisin, although the mere possession is in the termor: or in other words, that so far as the doctrine of remainders is concerned, the term of years may be regarded as a nullity, or as a mere contract with the real owner of the land, not an estate in it. (See note 35, page 253.)

(37) Vested remainders are where the estate is invariably fixed, to remain to a determinate person after the particular estate is spent, page 169.

This definition requires that the person who will certainly take at the end of the particular estate (provided he lives until then), be now determined. But the definition given by Kent, and repeatedly approved by the United States Supreme Court and other American

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