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II. An estate, then, in remainder may be defined to be an [164] estate limited to take effect and be enjoyed after another estate 11. 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. 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 re· served 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).)

ticular es

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. There must 1. And, first, there must necessarily be some particular esbe some par

tate, precedent to the estate in remainder. As, an estate for tate prece- years to A., remainder to B. for life; or, an estate for life to A., dent,

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.

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 crein futuro.

ated to commence in futuro; but it ought to take effect pres

ently, 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

hold commence

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

d Raym., 151.

e 5 Rep., 94.

(3) An estate in fee-tail is considered limitation, no remainder can be limited to be less than a fee-simple, and there. after it. (Co. Litt., 18, a; 10 Rep., 97, fore may have a remainder limited after b; Badham v. Mee, 1 M. & Sc., 14; í it; and even when the issue are barred, Myl. & K., 32.). The rule does not proand the entail converted into a base fee, hibit the limitation of alternative conthe remainder may subsist. But a con- tingent remainders; as, where the limditional fee, such as an estate-tail was itation is to A. for life, remainder to his before the statute De Donis (ante, p. unborn son in fee, and if he have no 112), can not be followed by a remain- son, to B. This is not properly a reder; it leaves only a possibility of re- mainder upon a fee, i. e., an estate to verter in the donor. (5 Scott, 770.) take effect on the expiration of a fee, And although, by creating an estate-tail but a substituted limitation in case the with remainder, and subsequently con- former never vesta, or, as it is called verting the entail into a base fee, there a contingency with a double aspect may be a remainder upon a base fee, (Fearne, C. R., 373, 7th ed. ; 3 T. B, yet, if a base fee is created by original 495; 2 Marsh., 161.)

imports an immediate possession. 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 forever 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 seizin 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 grantees, and the remainder-man is seized 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.

As no remainder can be created without such a precedent An estate at particular estate, therefore the particular estate is said to sup-support a port the remainder. But a lease at will is not held to be such remainder. a particular estate as will support a remainder over. 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 seizin 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 [167] which it is made :: 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 pre

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(4) The livery to A. passes the free- intended remainder-man can not, from hold' at once to B., A. taking it as B.'s the necessity of the case, express any tenant.

will in the matter, for, until after the cre

ation of the remainder, he has no estate (5) A lease at will, however, leaves a upon which his will can operate; and reversion, which may be released to the the will of the original grantor is detenant at will. The better reason is, termined by the very act of willing that that an estate at will requires for its ex- some other person shall have the reistence the concurrence of the wills both version, i. e., that the tenant at will shall of the tenant and the reversioner; and cease to hold of himself. in the case supposed, the reversioner or VOL. II.-N



2. Remain

tate must

If particular ceding particular estate is taken.h And hence it is generally feated, re

true, that if the particular estate is void in its creation, or mainder is by any means is defeated afterward, 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 ;l in either of these cases the remainder over is void.

2. A second rule to be observed is this: that the remainder der and particular es

must commence or pass out of the grantor at the time of the creation of the particular estate.m

As where there is an espass out of

tate to A. for life, with remainder to B. in fee : here B.'s regrantor at same time. mainder in fee passes from the grantor at the same time that

seizin is delivered to A. of his lite estate in possession. And it is this which induces the necessity at common law of livery of seizin 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 seizin, in order to convey the freehold from and out of the grantor, otherwise the remainder is void. 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 can not 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 him in remainder, as both are but one estate in law.o? ( 168 ) 3. A third rule respecting remainders is this: that the re3. Remain- mainder must vest in the grantee during the continuance of ly upon de Raym., 151.

m Litt., 671. Plowd., 25. termination i Co. Litt., 298.

a Litt., Ø 60. of particular * 2 Roll. Abr., 415.

o Co. Litt., 49. 1 Jon., 58.

der must vest instant



(6) The student will perceive, from to the freehold, of an estate in possession. what follows in this chapter, that a Thus, an estate-tail expectant on a term vested remainder is not liable to be de- of years is considered to be in possesfeated by the failure of the particular sion. " It is said that an estate-tail lim


ited after an estate for years is a re

mainder. I deny that, as a general prop (7) The possession of a tenant for osition. Can any case be shown where years is considered by the law to be the an estate for years was given to A., with seizin of the reversioner or freeholder; limitation over to B. for life or in fee, so that where land is conveyed to A. for and B. was held not to take an immediyears, remainder to B. for life or in fee, ate estate of freehold ?" (Per Patteson, and seizin is given to A., the effect is, J., 4 B. & Ad., 306.) Hence it is that that B. becomes presently seized in a contingent remainder can not be expossession, by reason of the occupation pectant upon a term of years merely; of A., his tenant for years. In truth, the for the seizin can not remain in the termterm “ remainder" is not strictly appli- or, and, until the event happens, it can cable to an estate of freehold expectant not pass out of him to the contingent reupon an estate for years, at least when mainder-man; it therefore passes on and created by a common-law conveyance; vests in the next vested remainder-man, it has all the properties and incidents of or in the reversioner, forever shutting a reversion, if we look at the right to the out the contingent estate. possession, and, if we confine our regard

the particular estate, or eo instanti that it determines.P As, if A. be tenant for life, remainder to B. in tail: here 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 supposing that B. should afterward 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 forever. 9 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 : the thing supported must fall to the ground, if once its support be severed from it.

It is upon these rules, but principally the last, that the doc- Vested retrine of contingent remainders depends. For remainders are either vested or contingent. Vested remainders (or remainders executed whereby a present interest passes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed, to remain to a determinate person, after the particular estate is spent. As, if A. be tenant for twenty years, remainder to B. [169] in fee; here B.'s is a vested remainder, which nothing can defeat or set aside.

Contingent or executory remainders (whereby no present in- Contingent terest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take


p Plowd., 25. 4 1 Rep., 138.

1 Rep., 66.

13 Rep., 21.
* 3 Rep., 20.

(8) “ It is not the uncertainty of ever and not the certainty that the possession taking effect in possession that makes a will become vacant before the estate remainder contingent, for to that every limited in remainder determines, univerremainder for life or in tail is and must sally distinguishes a vested remainder be liable, as the remainder-man may die, from one that is contingent. For inor die without issue, before the death stance, if there be a lease for life to A., of the tenant for life. The present ca- remainder to B. for life; here the repacity of taking effect in possession, if mainder to B., although it may possibly ihe possession were to become vacant, never take effect in possession, because

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