« EdellinenJatka »
estate limited to an estate limited to take effect and be enjoyed after another another estate is estate is determined. As if a man seised in fee-simple determined.
granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs for ever : here A. is tenant for years, remainder to B. in fee. In the first place, an estate for years is created 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 (a). 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 for ever: 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 (6) (2): because a fee-simple is the highest and largest estate that a subject is capable of enjoying ; and he that is tenant in fee bath in him the whole of the estate : a remainder therefore, which is only a portion, or residuary part of the estate, can
(a) Co. Litt. 143.
(6) Plowd. 29; Vaugh. 269.
with which he may be embarrassed, in (2) Nor after a qualified or base fee. the examination of the doctrines of (Co. Litt. 18 a; Edward Seymour's contingent remainders and executory case, 10 Rep. 97 b; and see ante, p. devises.
110, with the notes thereto.)
be observed in
estate in re
is called the par
not be reserved after the whole is disposed of. A particular estate, with all *the remainders expectant thereon, is only [ * 165 ] one fee-simple; as 401. is part of 1001., and 601. 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 1001. is appropriated there can be any residue subsisting.
Thus much being premised, we shall be the better enabled of the rules to to comprehend the rules that are laid down by law to be ob- the creation of served in the creation of remainders, and the reasons upon which those rules are founded.
1. And, first, there must necessarily be some particular 1. There must estate, precedent to the estate in remainder (c) (3). As, an precedent to the estate for years to A., remainder to B. for life; or, an estate mainder; which for life to A., remainder to B. in tail. This precedent es- ticular estate. tate is called the particular estate, as being only a small part, or particula, 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 interest granted, whatever it be, will be an estate in possession. An estate created to commence at a distant period of time, An estate to
. without any intervening estate, is therefore properly no re- future period, mainder : it is the whole of the gift, and not a residuary tervening estate, part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law (d), 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 ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro ; but it ought to take effect presently, either in possession or remainder (e): because at *common law no freehold in lands [ * 166 ]
commence at a
without any in
is no remainder.
(e) 5 Rep. 94.
(c) Co. Litt. 49; Plowd. 25. (d) Raym. 151.
(3) See ante, p. 113, note, and post, p. 168, note.
could pass without livery of seisin ; which must operate ei-
As no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will (5) is not held to be such a particular estate as will support a remainder over (f). For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of
its creation; and the entry of the grantor to do this deter* 167 ) mines the estate at will *in the very instant in which it is
What estate will support a remainder.
(f) 8 Rep. 75.
(4) See ante, chapter 9, p. 144, and note thereto.
(5) See ante, p. 145, chapter 9, sect. 2, with the notes thereto.
der must pass
the creation of
made (g): or if the remainder be a chattel interest, though perhaps the deed of creation might operate as a future contract, if the tenant for years be a party to it, yet it is void by way of remainder; for it is a separate independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken (h). And hence it is generally true, that if the particular estate is void in its creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also (i): as where the particular estate is an estate for the life of a person not in esse (k); or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate (I); in either of these cases the remainder over is void.
2. A second rule to be observed is this : that the re- 2. The remainmainder must commence or pass out of the grantor at the at the time of time of the creation of the particular estate (m). As, where the particular there is an estate to A. for life, with remainder to B. in fee: here B.'s remainder in fee passes from the grantor at the same time that seisin is delivered to A. of his life estate in possession. And it is this which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years,
it is necessary
that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor, otherwise the remainder is void (n). Not that the livery is necessary
) to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and enure to him in remainder, as both are but one estate in law (0).
*3. A third rule respecting remainders is this: that the [ * 168] remainder must vest in the grantee during the continuance 3. And must vest of the particular estate, or eo instanti that it determines (p). during the con
in the grantee
(9) Dyer, 18.
(m) Litt. s. 671; Plowd. 25.
or eo instanti that it determines.
particular estate, As, if A. be tenant for life, remainder to B. in tail: here B.'s remainder is vested in him, at the creation of the
particular estate to A. for life: or if A. and B. be tenants for their joint lives, remainder to the survivor in fee; here, though during their joint lives the remainder is vested in neither, yet on the death of either of them, the remainder vests instantly in the survivor: wherefore both these are good remainders. But, if an estate be limited to A. for life, remainder to the eldest son of B. in tail, and A. dies before B. hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and even supposing that B. should afterwards have a son, he shall not take by this remainder; for, as it did not vest at or before the end of the particular estate, it never can vest at all, but is gone for ever (q). And this depends upon the principle before laid down, that the precedent particular estate, and the remainder, are one estate in law; they must therefore subsist and be in esse at one and the same instant of time, either during the continuance of the first estate, or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate, and the remainder supported thereby (r): the thing supported must fall to the ground, if once its support be severed from it (6).
(6) By the feudal law, the freehold of freehold, vested in some person accould not be vacant, or, as it was tually in existence, who may answer termed, in abeyance. (See ante, p. the precipe of strangers; and also, 107, note.) There must have been a that it is necessary the remainder tenant to fulfil the feudal duties or re- should take effect during the existence turns, and against whom the rights of of such particular estate, or eo instanti others might be maintained. If the that it determines. (Watk. on Conv. tenancy once became vacant, though 94.) But, as to a contingent remainbut for one instant, the lord was war- der for years, there does not appear ranted in entering on the lands; and to be any necessity for a preceding the moment the particular estate freehold to support it. For, the reended, by the cession of the tenancy, mainder not being freehold, no such all limitations of that estate were also estate appears requisite to pass out of at an end. From these principles are the grantor, in order to give effect to deduced the rules, that no freehold re- a remainder of that sort. And almainder can be well created, unless it though every contingent freehold reis supported by an immediate estate mainder must be supported by a pre