« EdellinenJatka »
And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.'*
2. By executory devise a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A and his heirs ; but, if he dies before the age of twenty-one, then to B and his heirs: this remainder, though void in a deed, is good by way of executory devise. But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a moderate  term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors: because by perpetuities (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation i) estates are made incapable of answering those ends, of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one and twenty years afterwards.‡ As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.*?
f Cro. Jac. 593.
g 2 Mod. 289.
h 12 Mod. 287. 1 Vern. 16
i Salk. 229.
- Quoted, 20 Pa. St. 515. ?Cited, 6 Hill, 605; 24 Ga.
k Forr. 232.
Cited, 8 Conn. 361. 143; 3 Yeates, 239.
3. By executory devise a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life estate being esteemed of a higher and larger nature than any term of years. And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place:m for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held," that the devisee for life hath no power of aliening the term, so as to bar the remainderman: yet in order to prevent the danger of perpetuities, it was settled, that though such remainders may be limited to as many persons successfully as the devisor thinks proper, yet they must all be  in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman who happens to survive the rest: or, that such remainder may be limited to take effect upon such contingency only as must happen (if at all) during the life of the first devisee.p*
Thus much for such estates in expectancy, as are crcated by the express words of the parties themselves; the most intricate title in the law. There is yet another
1 8 Rep. 95.
m Bro. tit. chatteles. 23. Dyer. 74.
n Dyer. 358. 8 Rep. 96,
o 1 Sid. 451.
p Skinn. 341. 3 P. Wms. 358.
9 Ninth edition reads, "and it was also settled."
9 Ninth edition inserts, "not."
9 Ninth edition inserts, "unless."
9 Ninth edition omits.
*Cited 3 Desaus. Eq. 259; 4 Am. Dec. 619; 4 Mon. 219.
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 reversion 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 the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is 2 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  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 eyidence that the lands are holden at all. Where rent is r 1 Inst. 142,
q Co. Litt. 22.
2 Previously, "therefore never."
*Cited, 5 Cal. 401; 4 Ga. 80; 82 Pa. St. 127; 60 Wis. 387.
(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*
These 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.*
 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.
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 leholden, shall (upon application to the court of chancery ay and order made thereupon) once in every year, if resquired, 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 The estate may enter upon and hold the lands and teneatements, till the party shall appear to be living.
* Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whento ever a greater estate and a less coincide and meet in an one and the same person, without any intermediate ya estate, the less is immediately annihilated; or, in or the law phrase, is said to be merged, that is, sunk or drowned, in the greater. Thus, if there be tenant for er years, and the reversion in fee-simple descends to or is er 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.** An estate-tail is an exception to this
y 3 Lev. 437.
z Plow. 418. Cro. Jac. 275. Co. Litt. 338.
- Quoted, 8 Bush, 555.
- Quoted, Cowen, 300; 37 Wis. 477. Cited, 4 Zab. 617; 4 How. (Miss.) 212; 1 Neb. 28; 29 W. Va. 654.
- Quoted, 44 Ind. 399. Ref. 4 McCord, 105.
1-1 Quoted and criticised, 33 Md. 89.
*-** Quoted, 44 Ind. 398.