Estates by statute and elegit are chattels.

I shall conclude what I had to remark of these estates by statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke.h "These tenants have uncertain in[162] terests in lands and tenements, and yet they have but chatteis and no freeholds" (which makes them an exception to the general rule); "because, though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors; for ut is similitudinary: and though, to recover their estates, they shall have the same remedy (by assize) as a tenant of the freehold shall have,i yet it is but the similitude of a freehold, and nullum simile est idem." This, indeed, only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold; but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has, therefore, thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts, if recovered, would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the

h 1 Inst., 42, 43.

i The words of the statute De Mercatoribus are, "Puisse porter bref de

(15) This passage is put together from two places in Co. Litt., a good deal transposed and altered in parts; the words "estate of inheritance or for life" do not occur in the original; and I conceive that the fact of the land going to the executor, and not to the heir, shows that the estate can in no case be one of inheritance. [COLERIDGE.] The learned annotator has here, perhaps, misconceived the intention with which the

novele disseizine, aux sicum de frank tenement."

words "estate of inheritance or for life" were used in the text, which seem to have reference to the estate of the debtor, and not to that of the creditor; the commentator's meaning, it is suggested, being, in more words, that "the creditor may take an estate of inheritance or for life belonging to his debtor, and hold it by elegit, ut liberum tenementum," until the debt be paid.

the English colonies were made chargeable with debts, and subject to the like process of execution as personal estate. The practice of selling real estate by virtue of executions has been continued, and become permanently established in the several states of the Union, subject to certain rules, regulations, and restrictions; the most important of which is, that the creditor is required in the first instance to resort to the personal estate as the primary fund, and to look to the real estate only after the personal estate shall have been exhausted and found insufficient. In New York, the land is sold on six weeks' public notice, and in separate parcels, if required by the owner; a certificate of sale is given to the purchaser, which entitles him to a deed from the officer at the expiration of fifteen months, if, in the mean time, the property be not redeemed by the debtor, or by his representatives, or creditors who hold junior judgments against the property. On this subject of the sale of lands by virtue of judgments and decrees, and the regulations established in the several states to guard against hardships and prevent abuses, see 4 Kent's Comm., 428-439.

testator be discharged, this interest in the lands shall be a chattel interest, and, on the death of such executor, shall go to his executors; because they being liable to pay the original testator's debts, so far as his assets will extend, are, in reason, entitled to possess that fund out of which he has directed them to be paid.

* Co. Litt., 42.

189

163

Time of enjoyment of

estates.

I. Estates in possession.

CHAPTER XI.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

HITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt of the rents and other advantages arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession or in expectancy; and of expectancies there are two sorts: one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

I. Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory), there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will, therefore, require a minute discussion, and demand some degree of attention.**

(1) It must be remembered that through the greater part of this chapter the author is speaking of the common law only, and that many limitations here

stated to be inadmissible may be good when they are limited to take effect under the Statute of Uses or of Wills.

* By the Revised Statutes of New York, an estate in possession is defined to be an estate where the owner has an immediate right to the possession of the land; and an estate in expectancy is defined to be an estate where the right of possession is postponed to a future period. Estates in expectancy are divided into, 1. Estates commencing at a future day, and denominated future estates; and, 2. Reversions. A future estate is (defined to be) an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a prece dent estate created at the same time."-(1 R. S., 723, § 8, 9, 10.) The last paragraph was framed by the revisers to comprehend every species of expectant estates created by the acts of parties; viz., remainders strictly so called, future uses, executory devises, and even contingent limitations; and upon a foundation thus laid, the superstructure has been fully carried out. The change thus introduced into this branch of the law will not be attempted to be here noted, except in a few particulars. The reader is referred to the Statutes, and to the notes of the revisers on the subject.—(1 R. S., 721-727; and 3 R. S., 568–579.)

der.

II. An estate, then, in remainder may be defined to be an [164] estate limited to take effect and be enjoyed after another estate II. Estates is determined. As, if a man seized in fee-simple granteth lands in remainto A. for twenty years, and, after the determination of the said term, then to B. and his heirs forever; here A. is tenant for years, remainder to B. in fee. In the first place, an estate for years is created or carved out of the fee, and given to A.; and the residue or remainder of it is given to B. But both these interests are, in fact, only one estate; the present term of years and the remainder afterward, when added together, being equal only to one estate in fee.a They are, indeed, different parts, but they constitute only one whole; they are carved out of one and the same inheritance; they are both created, and may both subsist, together; the one in possession, the other in expectancy. So, if land be granted to A. for twenty years, and, after the determination of the said term, to B. for life; and, after the determination of B.'s estate for life, it be limited to C. and his heirs forever: this makes a tenant for years, with remainder to B. for life, the remainder over to C. in fee. Now here the estate of inheritance undergoes a division into three portions; there is, first, A.'s estate for years carved out of it; and, after that, B.'s estate for life; and then the whole that remains is limited to C. and his heirs. And here, also, the first estate and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the 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 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, can not be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple; as [165] £40 is part of £100, and £60 is the remainder of it; wherefore, after a fee-simple once vested, there can no more be a re

a Co. Litt., 143.

b Plowd., 29. Vaugh., 269.

(2) It is scarcely necessary to remind an estate vested in A. for his own life is, the student that this reference of the law in the eye of the law, greater than an of remainders to mathematical reasoning estate vested in B. for the life of C.; alis a mere flight of our author's fancy, though, if A. and B. were to convey and, perhaps, in little better taste than their respective estates to C., the relaLord Coke's illustration of one of the tion between them would be suddenly rules of inheritance by the laws of grav- inverted, and the law would then regard ity. It will soon be found that, in law, that estate as the greater which before things which are equal to the same thing the conveyance was the lesser. (Infra, are not always equal to each other; that p. 177, n. (23).)

There must be some par

ticular es

dent,

mainder limited thereon, than after the whole £100 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 As, an estate for tate prece 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 can not possibly exist a remainder; but the interest granted, whatever it be, will be an estate in possession.

hold can

An estate created to commence at a distant period of time,, without any intervening estate, is, therefore, properly no remainder; it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law,d to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must as no free- be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold can not be created to commence in futuro; but it ought to take effect presently, either in possession or remainder ;e because at common [166] law no freehold in lands could pass without livery of seizin; 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 e Co. Litt., 49. Plowd., 25.

commence

in futuro.

(3) An estate in fee-tail is considered to be less than a fee-simple, and therefore may have a remainder limited after it; and even when the issue are barred, and the entail converted into a base fee, the remainder may subsist. But a conditional fee, such as an estate-tail was before the statute De Donis (ante, p. 112), can not be followed by a remainder; it leaves only a possibility of reverter in the donor. (5 Scott, 770.) And although, by creating an estate-tail with remainder, and subsequently converting the entail into a base fee, there may be a remainder upon a base fee, yet, if a base fee is created by original

d Raym., 151.

e 5 Rep., 94.

limitation, no remainder can be limited after it. (Co. Litt., 18, a; 10 Rep., 97, b; Badham v. Mee, 1 M. & Sc., 14; 1 Myl. & K., 32.) The rule does not prohibit the limitation of alternative contingent remainders; as, where the limitation is to A. for life, remainder to his unborn son in fee, and if he have no son, to B. This is not properly a remainder upon a fee, i. e., an estate to take effect on the expiration of a fee, but a substituted limitation in case the former never vests, or, as it is called a contingency with a double aspect (Fearne, C. R., 373, 7th ed.; 3 T. R. 495; 2 Marsh., 161.)