CHAPTER XI. OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. Of estates in mainder, and possession, re ESTATES, with regard to the time of their enjoyment, are either All the estates before treated of are estates in possession, or Estates in estates executed; these are distinguished from estates executory possession. in this, that by the former, a present interest passes to and resides in the tenant; whilst the latter depend on subsequent circumstances or contingencies. mainder. An estate in remainder is an estate limited to take effect, Estate in reand be enjoyed after another estate is determined (a). As if a man seised in fee simple grants lands to A. for twenty years, and after the determination of the said term, then to B. and his heirs for ever: here A. is tenant for years, remainder to B. in fee. An estate for years is created or carved out of the fee and given to A.; and the remainder of it is given to B. Yet both these interests are in fact only one estate; the term of years, and the remainder when added together, being equal only to one estate in fee. The remainder the time of the Co. Litt. 143. Rules to be ob- There are three rules laid down by law to be observed in the creation of remainders. There must be some particular estate, precedent to the estate in remainder. must commence or pass out of the grantor at creation of the particular estate. grantee during the continuance of the particular estate, or eo There must necessarily be 1 Rep. 66. instanti that it determines (6). And it must vest in the Plowd. 25. Litt. s. 671. Plowd. 25. (a) A remainder is a residue of an estate in land, depending upon a particular estate, and created together with the same, and in law Latin it is called remanere.-Co. Litt. 49 a. (b) Formerly the doctrine of the necessity that the remainder should vest at the very instant of the determination of the particular estate, at farthest, was extended to the case of a posthumous son; but by 10 Wm. 3, c. 16, where any estate is, by marriage, or any other settlement, settled in remainder to children, with remainders over, any posthumous child may take in the same manner as if born in the father's life-time; and see the case of Reeve v. Long, 1 Salk. 227; Co. Litt. 298 a, n. 3. An estate of freehold can not be created to commence in futuro. Co. Litt. 19. lar estate must be created to support it. some particular estate to support the remainder. 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 which, in order to make a good remainder, arises from the reason, that remainder is a relative expression, and implies that some part of the thing is previously disposed of. An estate created to commence at a distant period of time, without any intervening estate, is properly no remainder. Such an estate can only be made of chattel interests; but an estate of freehold must be created to commence immediately; for it is an ancient rule of the common law, that an estate cannot be created to commence in futuro; but it ought to take effect presently, either in possession or remainder; because, at common law, no freehold lands could pass without livery of seisin, which must operate either immediately or not at all. Therefore, though a lease to A. 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 But a particu- 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. The whole estate passes at once from the grantor to the grantees, 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. What estate will support a remainder. As no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will, is not held to be such a particular estate as will support a remainder over; for it 8 Rep. 75. 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. 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 made: or, if the remainder be a chattel interest, though Dyer, 18. 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. And hence it is, that if a particular Raym. 151. estate is void in its creation, or be defeated afterwards, the remainder supported thereby is defeated also. The remainder must commence or pass out of the grantor at the time of the creation of the particular estate; and this 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. The remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines. 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. But if an estate be limited to A. for life, remainder to the eldest son of B. in tail, and A. dies before B. has a son, 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 if 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. And this depends upon the principle 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. Co. Litt. 298. The remainder must com creation of the particular mence at the estate. Litt. s. 60. Remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines. 1 Rep. 138. 3 Rep. 21. Vested remainders. Contingent or executory remainders. 3 Rep. 20. Remainders are of two sorts, either vested or contingent. Vested remainders 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. in fee; here B. has a vested remainder, which nothing can defeat or set aside. Contingent or executory remainders 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 effect. As if A. be tenant for life with remainder to B.'s eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B. will have a son or no; but the instant that a son is born, the remainder is no longer contingent, but vested. Though if A. had died before the contingency happened, that is, before B.'s son was born, the remainder would have been absolutely gone; for the particular estate was determined before the remainder could vest. And, by the strict rule of law, if A. were tenant for life, remainder to his own eldest son in tail, and A. died without issue born, but leaving his wife enceinte, and after his death a posthumous son was born, this son could not take the land by virtue of this remainder; for the particular estate determined before there was any person in esse in whom the remainder could vest. But by 10 & 11 Wm. 3, c. 16, posthumous children are rendered capable of taking in remainder in the same manner as if they had been born in their father's lifetime: that is, the remainder is allowed to vest in them, while yet in their mother's womb. This species of contingent remainders to a person not in being, must however, be limited to some one, that may, by common possibility or potentia propinqua, be in esse at or before the particular estate determines. As if an estate be made to A. for life, remainder to the heirs of B.; here, if A. dies before B. the remainder is at an end; for during B.'s life he has no heir nemo est hæres viventis; but if B. dies first, the remainder then immediately vests in his heir, who will be entitled to the land on the death of A. This is a good contingent remainder, Co. Litt. 378. for the possibility of B.'s dying before A. is potentia propinqua, and therefore allowed in law. But a remainder to the right heirs of B. (if there be no such person as B. in esse) is void; for here two contingencies must happen; first, that such a person as B. shall be born; and that he shall also die during Salk. 228. 4 Mod. 282. 2 Rep. 51. Hobb 33. the continuance of the particular estate; which make it potentia remotissima, a most improbable possibility. event upon which it is to uncertain. A remainder may also be contingent where the event upon Where the which it is to take effect is vague and uncertain. As where land is given to A. for life, and in case B. survives him, then take effect is with remainder to B. in fee: here, during the joint lives of A. and B., the remainder is contingent; and if B. dies first, it never can vest in his heirs, but is for ever gone; but if A. dies first, the remainder to B. becomes vested. Contingent remainders, if they amount to a freehold, cannot be limited on an estate for years, or any other particular estate less than a freehold. Thus, if land be granted to A. for ten years, with remainder in fee to the right heirs of B., this remainder is void; but if granted to A. for life, with a like remainder, it is good. For unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void: it cannot pass out of him without vesting somewhere; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest nowhere; unless, therefore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void. Contingent re mainders, if they amount to freehold, can a not be limited on any less estate than a freehold. 1 Rep. 130. how defeated. Contingent remainders may be defeated, by destroying or Contingent determining the particular estate upon which they depend, remainders, before the contingency happens, whereby they they become vested (c). Therefore, when there is tenant for life, with divers remainders in contingency, he may, not only by his death, but by alienation, surrender, or other methods, destroy and determine his own life-estate before any of those remainders vest; the consequence of which is, that he utterly defeats them all. As if there be tenant for life, with remainder to his eldest son unborn in tail, and the tenant for life, before any son is born, surrenders his life estate, he by that means defeats the remainder in tail to his son; for his son not being in esse when the particular estate determined, the remainder could not then vest; and, as it could not vest then, by the rules before laid down, it never can vest at all. In these cases (e) Equity discountenances the destruction of contingent remainders, yet if they really are barred, a purchaser will be compelled to accept the title. This point, which was formerly doubted, was very fully argued before Lord Eldon, who several times expressed a strong opinion upon it in favour of the seller, although he was not called upon to decide the point; and ultimately it was decided by Sir John Leach, when ViceChancellor.--Sugd. V. & P. 10th ed. v. 2, p. 187. M |