Sivut kuvina


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 (I). 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 (), 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 be collected that the words were used other personalty, in case the previous in a more confined sense, they are to legatee shall die “without issue,” is have their ordinary legal signification; too remote; and the absolute interest viz. death without issue generally. in the property vests in the first taker. (Barlow v. Salter, 17 Ves. 481. Donn v. In some of the early cases, indeed, the Penny, 19 Ves. 547). If a combined judges inclined to hold those words to devise and bequest be made to a man mean, without issue at the death of the and the heirs of his body, with a limi-, party; but ever since the case of Beau- tation over “if he has no such heirs," clerk v. Dormer, (2 Atk. 309), a differ- as these words do not point to any time ent rule has prevailed; and it is now less indefinite than a general failure of settled, that unless there are expressions issue, the limitation over is void; and or circumstances, from which it can 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. quest over will be valid, since it must ry v. Sprigge, 1 Cox, 63). But, where take place (if at all) within the limits the limitation over of leasehold, or a prescribed by the policy of the law, and term in real estate is, in case the first there is no danger of a perpetuity betaker in tail dies " and leaves no such ing created. (Donn v. Penny, 19 Ves. heirs,” the settled construction is that 547. Kirkpatrick v. Kirkpatrick, 13 it means at his death: (Crooke v. De Ves. 484). In such case, the legatees Vandes, 9 Ves. 202, 204): and if, af- over may take as purchasers; but it ter a devise over of freehold estate in will be vainly attempted to direct the those terms, the testator makes a be- succession to leasehold, or other perquest over of his personalty, not com- sonalty, so as to go concurrently with bined with the devise over, but shew- freehold. Neither leaseholds, nor any ing a plain intention to make the be- other descriptions of personal property, quest dependent on the same event as can be entailed so as to make them the devise, the bequest over may be transmissible in a course of succession good, by way of executory bequest. to heirs; they must go to personal re(Foley v. Irwin, 2 Ball & Beat. 443). presentatives. (Countess of Lincoln v. Yet, the devise over would be void; Duke of Newcastle, 12 Ves. 225. Keifor, it must be understood that the con- ley v. Fowler, Wilmot's Notes, 310). It struction of the words " leaving issue,” is, no doubt, a sound general rule, to as meaning at the party's death, is ad- give the same meaning to the same mitted only as to personal estate; the words throughout a will: (Goodright same words, when used with reference v. Dunham, 1 Dougl. 267. Doe v. Jes. to freehold estate, are always held to im. son, 5 Mau. & Sel. 69. Haws v. Haws, port a general failure of issue. (Frank- 3 Atk. 526. Turner v. Moor, 6 Ves. lyn v. Ley, 6 Mad. 260).

559): but the very same words may Words of limitation in a will, which, be differently construed, and have very either directly or constructively, give different operations, when applied, in an estate tail in freehold property, will the same will, to different descriptions pass an absolute estate in personalty: of property, governed by different rules: (Britton v. Twining, 3 Meriv. 183. El- (Forth v. Chapman, 1 P. Wms. 667. ton v. Eason, 19 Ves. 78): unless other Elton v. Eason, 19 Ves. 77); thus, the words can be found in the will, which same words which would give only an shew that the testator meant to tie up estate tail in freehold estate, will carry his personalty as long as the rules of the absolute interest in leasehold : law allow. (Chandless v. Price, 3 Ves. (Green v. Stephens, 19 Ves. 73. Crooke 101). A bequest over of leasehold, or v. De Vandes, 9 Ves. 203: and see other personal estate, in default of is. supra, another instance mentioned, in sue of the first taker living at his death, which the same words operate differentwill clearly evince an intention not to ly upon different descriptions of progive the absolute interest, and the be- perty).

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 III. Estates in the grantor, to commence in possession after the determi- The residue of nation of some particular estate granted out by him (9). Sir the estate left Edward Coke (r) describes a reversion to be the returning which reverts to of land to the grantor or his heirs after the grant is over. him on the deAs, if there be a gift in tail, the reversion of the fee is, with- the estate grantout 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 presenti (17), though taking effect in futuro.

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

and nature of reversions.

(9) Co. Litt. 22.

(r) 1 Inst. 142.

(17) Although a person can only be estates in possession. (Wiscot's case, 2 said to be entitled to, not seised of, a Rep. 61). reversion; yet reversions are vested in. (18) See ante, chap. 4, pp. 45, 56, terests, which may be aliened and with the notes thereto. charged much in the same manner as

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). What consti- These incidental rights of the reversioner, and the retutes a reversion.

spective 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).

*In order to assist such persons as have any estate in reagainst the frau- mainder, reversion, or expectancy, after the death of others, dulent conceals against fraudulent concealments of their deaths, it is enacted ment of the death of the ces

by the statute 6 Ann. c. 18, that all persons on whose lives tui que vie. (s) Co. Litt. 143.

(w) 3 Lev. 407. (t) Ibid. 151, 152.

(x) 1 And. 23. (0) Cro. Eliz. 321.

Protection of re

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 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,

of merger.

(y) 3 Lev. 437.

(19) Even if there be an intermedi- greater estate does not merge and ate contingent estate, it will be destroyed drown the intermediate contingent reby the union and coalition of the mainders; (Boothley v. Vernon, 9 Mod. greater estate and the less, (unless the 147. Plunkett v. Holmes, 1 Lev. 12. greater estate is subjoined to the less by Archer's case, 1 Rep. 66); in the sethe same conveyance), when such coa- cond class of cases, it does merge them. lition takes place by the conveyance or (Hartpole v. Kent, T. Jones, 77, S. C. act of the parties. (Purefoy v. Rogers, 1 Ventr. 307. Hooker v. Hooker, Rep. 2 Saund. 387). But the reports of temp. Hardw. 13. Doe v. Scudamore, adjudged cases apparently differ with 2 Bos. & Pull. 294; and see Fearne, respect to the destruction of an inter- p. 343, 6th ed., with Serjt. Williams's mediate contingent estate, in cases where note to 2 Saund. 382 a). the greater estate becomes united to A distinction (as already has been the less by descent: these differences, intimated), must be made between the however, may be reconciled, by dis- cases where a particular estate is limittinguishing between those cases where ed, with a contingent remainder over, the descent of the greater estate is im- and afterwards the inheritance is submediate from the person by whose will joined to the particular estate by the the less estate, as well as the interme- same conveyance; and those cases diate contingent estate, were limited; wherein the accession of the inheritand the cases where the less estate and ance is by a conveyance, accident, or the contingent remainders were not circumstance, distinct from that concreated by the will of the ancestor from veyance which created the particular whom the greater estate immediately estate. In the latter cases, we have descends on the less estate. In the seen, the contingent remainder is genefirst set of cases, the descent of the rally destroyed; in the former it is

« EdellinenJatka »