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III. Estates in reversion.
Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another 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 The residue of in the grantor, to commence in possession after the determiin the grantor, nation of some particular estate granted out by him (q). Sir
to him on the de. Edward Coke (r) describes a reversion to be the returning the estate grant- of land to the grantor or his heirs after the grant is over. ed by him.
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 the 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 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 (18), though taking effect in fu
turo. Of the origin The doctrine of reversions is plainly derived from the
feodal constitution (19). 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
and nature of reversions.
(9) Co. Litt. 22.
(r) 1 Inst. 142.
Doe v. Jesson, 5 Mau. & Sel. 69 ; Vandes, 9 Ves. 203 :) and see supra, Haws v. Haws, 3 Atk. 526; Turner another instance mentioned, in which v. Moor, 6 Ves. 559 :) but the very the same words operate differently same words may be differently con- upon different descriptions of prostrued, and have very different opera
perty. tions, when applied, in the same will, (18) Although a person can only be to different descriptions of property, said to be entitled to, not seised of, a governed by different rules : (Forth v. reversion ; yet reversions are vested Chapman, 1 P. Wms. 667; Elton v. interests, which may be aliened and Eason, 19 Ves. 77 :) thus, the same charged much in the same manner as words which would give only an estate estates in possession. (Wiscot's case, tail in freehold estate, will carry the 2 Rep. 61.) absolute interest in leasehold: (Green (19) See ante, chap. 4, pp. 45, 56, v. Stephens, 19 Ves. 73; Crooke v. De with the notes thereto.
the *lord or proprietor, to be again disposed of at his plea
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 acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident; though not inseparably so, to the reversion (s). 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 prin“ cipale" (t).
These incidental rights of the reversioner, and the re- What constispective 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 (u), 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 (w): 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 (x).
*In order to assist such persons as have any estate in re- [ * 177 ] mainder, reversion, or expectancy, after the death of others, Protection of reagainst fraudulent concealments of their deaths, it is enacted against the frauby the statute 6 Ann. c. 18, that all persons on whose lives ment of the
tui que vie. (8) Co. Litt. 143.
(w) 3 Lev, 407, (t) Ibid. 151, 152.
(x) 1 And. 23, (u) Cro. Eliz. 321.
any lands or tenements are holden, shall (upon application
Before we conclude the doctrine of remainders and re-
or the doctrine of merger.
(y) 3 Lev. 437.
(20) Even if there be an intermedi. ate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance,) when such coalition takes place by the conveyance or act of the parties. (Purefoy v. Rogers, 2 Saund. 387.) But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent: these differences, however, may be reconciled, by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited ; and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders ; (Boothley v. Vernon, 9 Mod. 147; Plunkett v. Holmes, 1 Lev. 12; Archer's case, 1 Rep. 66 ;) in the second class of
cases, it does merge them. (Hartpole
A distinction (as already has been
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 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(a). For estates-tail are protected and preserved from merger by the *operation and construc- [ *178 ] tion, 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 fee, the law considers it in the light of a virtual surrender of the inferior estate (6). But, in an estate tail, the case is otherwise: the
(2) Plow. 418; Cro. Jac. 275 ; Co. Litt. 338.
(a) 2 Rep. 61 ; 8 Rep. 74.
first estate, when the condition hap- years, for the testator's daughter. The pens; and by no means to destroy the fee afterwards descended on her, and contingent estate. (Lewis Bowles' she, being under age, devised the porcase, 11 Rep. 80; Fearne, 346, 6th tion. The Court of Chancery relieved ed.)
against the merger of the term; and A court of equity will in some cases decreed the portion to go according to relieve against the merger of a term, the will of the daughter. (See also, and make it answer the purposes for Thomasv. Kemish, 2 Freem. 208; S.C. which it was created. Thus, in Powell 2 Vern. 352; Saunders v. Bournford, v. Morgan, (2 Vern. 90,) a portion was Finch, 424.) directed to be raised out of a term for
tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like (c): 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.
(c) See pag. 116.