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for by law the first grant of it, to a man for life, was a estate for life total disposition of the whole term; a life estate being created in the 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 (n), that the devisee for life hath no power of aliening the term, so as to bar the remainder-man: yet, in order to prevent the danger of perpetuities, it was settled (o), that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be * in esse during the life of the first devisee, for then all the [175] candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainder-man who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee (p) (16).

(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. 258.

(16) A limitation over of a term, or other personalty, in case the previous legatee shall die "without issue," is too remote; and the absolute interest in the property vests in the first taker. In some of the early cases, indeed, the judges inclined to hold those words to mean, without issue at the death of the party; but ever since the case of Beauclerk v. Dormer, (2 Atk. 309), a different rule has prevailed; and it is now settled, that unless there are expressions or circumstances, from which it can

be collected that the words were used
in a more confined sense, they are to
have their ordinary legal signification;
viz. death without issue generally.
(Barlow v. Salter, 17 Ves. 481. Donn v.
Penny, 19 Ves. 547). If a combined
devise and bequest be made to a man
and the heirs of his body, with a limi-
tation over "if he has no such heirs,"
as these words do not point to any time
less indefinite than a general failure of
issue, the limitation over is void; and
the first taker will have an absolute in-

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

terest in the personal property. (Jeffe ry v. Sprigge, 1 Cox, 63). But, where the limitation over of leasehold, or a term in real estate is, in case the first taker in tail dies "and leaves no such heirs," the settled construction is that it means at his death: (Crooke v. De Vandes, 9 Ves. 202, 204): and if, after a devise over of freehold estate in those terms, the testator makes a bequest over of his personalty, not combined with the devise over, but shewing a plain intention to make the bequest dependent on the same event as the devise, the bequest over may be good, by way of executory bequest. (Foley v. Irwin, 2 Ball & Beat. 443). Yet, the devise over would be void; for, it must be understood that the construction of the words “leaving issue," as meaning at the party's death, is admitted only as to personal estate; the same words, when used with reference to freehold estate, are always held to import a general failure of issue. (Franklyn v. Ley, 6 Mad. 260).

Words of limitation in a will, which, either directly or constructively, give an estate tail in freehold property, will pass an absolute estate in personalty: (Britton v. Twining, 3 Meriv. 183. Elton v. Eason, 19 Ves. 78): unless other words can be found in the will, which shew that the testator meant to tie up his personalty as long as the rules of law allow. (Chandless v. Price, 3 Ves. 101). A bequest over of leasehold, or other personal estate, in default of issue of the first taker living at his death, will clearly evince an intention not to give the absolute interest, and the be

quest over will be valid, since it must take place (if at all) within the limits prescribed by the policy of the law, and there is no danger of a perpetuity being created. (Donn v. Penny, 19 Ves. 547. Kirkpatrick v. Kirkpatrick, 13 Ves. 484). In such case, the legatees over may take as purchasers; but it will be vainly attempted to direct the succession to leasehold, or other personalty, so as to go concurrently with freehold. Neither leaseholds, nor any other descriptions of personal property, can be entailed so as to make them transmissible in a course of succession to heirs; they must go to personal representatives. (Countess of Lincoln v. Duke of Newcastle, 12 Ves. 225. Keiley v. Fowler, Wilmot's Notes, 310). It is, no doubt, a sound general rule, to give the same meaning to the same words throughout a will: (Goodright v. Dunham, 1 Dougl. 267. Doe v. Jesson, 5 Mau. & Sel. 69. Haws v. Haws, 3 Atk. 526. Turner v. Moor, 6 Ves. 559): but the very same words may be differently construed, and have very different operations, when applied, in the same will, to different descriptions of property, governed by different rules: (Forth v. Chapman, 1 P. Wms. 667. Elton v. Eason, 19 Ves. 77); thus, the same words which would give only an estate tail in freehold estate, will carry the absolute interest in leasehold: (Green v. Stephens, 19 Ves. 73. Crooke v. De Vandes, 9 Ves. 203: and see supra, another instance mentioned, in which the same words operate differently upon different descriptions of property).

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

III. Estates in


The residue of the estate left which reverts to

in the grantor,

him on the determination of

the estate grant

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 (q). Sir Edward Coke (r) 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 ed by him. 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 (17), though taking effect in fu


and nature of


The doctrine of reversions is plainly derived from the of the origin feodal constitution (18). 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. [176] 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 ten

(g) Co. Litt. 22.

(r) 1 Inst. 142.

(17) Although a person can only be said to be entitled to, not seised of, a reversion; yet reversions are vested in. terests, which may be aliened and charged much in the same manner as

estates in possession. (Wiscot's case, 2
Rep. 61).

(18) See ante, chap. 4, pp. 45, 56,
with the notes thereto.

What constitutes a reversion.

ure, 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 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 (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 con[177] tinuance of A.'s estate (x).

Protection of reversioners

against the fraudulent conceal

ment of the

death of the cestui que vie.

*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 persons on whose lives

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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 its 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 tenements, till the party shall appear to be living.

Before we conclude the doctrine of remainders and re- Of the doctrine of merger. versions, 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 (y), the less is immediately annihilated; or, in the law phrase, is said to be merged (19), that is, sunk or drowned in the greater. Thus, (y) 3 Lev. 437.

(19) Even if there be an intermediate 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 v. Kent, T. Jones, 77, S. C. 1 Ventr. 307. Hooker v. Hooker, Rep. temp. Hardw. 13. Doe v. Scudamore, 2 Bos. & Pull. 294; and see Fearne, p. 343, 6th ed., with Serjt. Williams's note to 2 Saund. 382 a).

A distinction (as already has been intimated), must be made between the cases where a particular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance; and those cases wherein the accession of the inheritance is by a conveyance, accident, or circumstance, distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is

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