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 (b) (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 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 *the remainders expectant thereon, is only ( *165 ] one fee-simple; as 40l. is part of 100l., and 60l. 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 100l. 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.

1. And, first, there must necessarily be some particular estate, precedent to the estate in remainder (c) (3). 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 precedent estate 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.

(b) Plowd. 29. Vaugh. 269.

(2) Nor after a qualified or base fee. (Co. Litt. 18 a. Edward Seymour's case, 10 Rep. 97 b, and see ante, VOL. II.

(c) Co. Litt. 49. Plowd. 25,

chap. 7, sect. 2, with the notes thereto)
(3) See ante, note (30) to chapter 7.

X

of the rules to the creation of remainders.

be observed in

1. There must

be some estate
precedent to the
estate in re-
is called the par-
ticular estate.

mainder; which

An estate to commence at a future period,

An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no rewithout any in- mainder; it is the whole of the gift, and not a residuary is no remainder. part. And such future estates can only be made of chattel

tervening estate,

interests, which were considered in the light of mere contracts by the antient 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 antient 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 [*166] remainder (e): because at *common 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 (4). 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 for ever 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 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 gran

(d) Raym. 151.

(e) 5 Rep. 94.

(4) See ante, chapter 9, p. 144, and note (8) thereto.

tees, and the remainder-man is seised of his remainder at the same time that the termor is possessed of his term. 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.

mainder.

As no remainder can be created without such a precedent what estate will particular estate, therefore the particular estate is said to support a resupport 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 determines the estate at will in the very instant in which it is [ *167] 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 (1); in either of these cases the remainder over is void.

(f) 8 Rep. 75.

(g) Dyer, 18.

(h) Raym. 151.

(i) Co. Litt. 298.

(k) 2 Roll. Abr. 415.
(1) 1 Jon. 58.

(5) See ante, chapter 9, sect. 2, with the notes thereto.

2. The remainder must pass at the time of

2. A second rule to be observed is this: that the remainder must commence or pass out of the grantor at the the creation of time of the creation of the particular estate (m). As, where

the particular estate;

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

[ *168] him in remainder, as both are but one estate in law (o).

3. And must vest in the grantee during the continuance of the

*3. A third rule respecting remainders is this: that the remainder must vest in the grantee during the continuance

of the particular estate, or eo instanti that it determines (p). particular estate, As, if A. be tenant for life, remainder to B. in tail: here

or eo instanti that it determines.

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 sup

(m) Litt. s. 671. Plowd. 25.
(n) Litt. s. 60.

(0) Co. Litt. 49.
(p) Plowd. 25. 1 Rep. 66.

posing 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).

(g) 1 Rep. 138.

(6) By the feudal law, the freehold could not be vacant, or, as it was termed, in abeyance. (See ante, note (10) to chap. 7). There must have been a tenant to fulfil the feudal duties or returns, and against whom the rights of others might be maintained. If the tenancy once became vacant, though but for one instant, the lord was warranted in entering on the lands; and the moment the particular estate ended, by the cession of the tenancy, all limitations of that estate were also at an end. From these principles are deduced the rules, that no freehold remainder can be well created, unless it is supported by an immediate estate of freehold, vested in some person actually in existence, who may answer the præcipe of strangers; and also, that it is necessary the remainder should take effect during the existence of such particular estate, or eo instanti that it (Watk. on Conv. 94). But, as to a contingent remainder for years, there does not appear to be any

(r) 3 Rep. 21.