Изображения страниц
PDF
EPUB
[blocks in formation]

therefore, it is necessary to have trustees appointed to preserve the contingent remainders, in whom there is vested an estate in remainder for the life of the tenant for life, to commence when his estate determines; when, if the estate of the tenant for life determines otherwise than by his death, the estate of the trustees for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders depending in contingency. In devises by will, however, remainders may be created contrary to the rules before laid down, and these are called executory devises, or devises hereafter to be executed.

An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three material points; it needs not any particular estate to support it; and by it a fee simple or other less estate, may be limited after a fee simple. By this means, a remainder may be limited of a chattel interest, after a particular estate for life created therein. The first case happens when a man devises a future estate to arise upon a contingency; and till that contingency happens, does not dispose of the fee simple, but leaves it to descend to his heir-at-law. As if one devises land to a feme sole and her heirs upon her day of marriage: here there is in effect a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise. For, since by a devise, a freehold may pass without corporal tradition or livery of seisin, therefore it may commence in futuro. By executory devise a fee, or other less estate, may limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A. and his heirs; but if he dies before the age of twenty-one, then to B. and his heirs; this remainder, though void in a deed, is good by way of executory devise. But in both these species of executory devises the contingencies ought to be such as may happen within one or more life or lives in being, and twenty-one years afterwards; for courts of justice will not indulge even wills so as to create a perpetuity which the law abhors: because thereby estates are made incapable of answering those ends of social commerce for which property was first

established.

mainder may

be limited of a chattel interest after a particular estate for life created in

the same.

8 Rep. 95.

3 P. Wms.258.

Skin. 341.

version.

Co. Litt. 22.

By executory devise, a term of years may be given to one By it a reman for his life, and afterwards limited over in remainder to another, which could not be done by deed; for by law the first grant of it to a man for life was a total disposition of the whole term; a life estate being esteemed of a higher and larger nature than any term of years. And it has been settled, that though such remainders may be limited by will to as many 1 Sid. 451. persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee; and 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. An estate in reversion is the residue of an estate left in the Estates in res grantor, to commence in possession after the determination of some particular estate granted out by him. 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 law; and so also after an estate for life, years, or at will. A reversion is never therefore created by deed or writing, but arises from construction of law; whilst 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, though taking effect in futuro. The doctrine of reversions is derived from the feodal constitution; for where a feud was granted to a man for life, or to him and his issue male, rendering either rent or services; then on his death, or the failure of issue male, the feud was determined and resulted back to the lord or proprietor. And hence the usual incidents to reversions are said to be fealty and rent. 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, by 6 Ann. c. 18, all persons on whose lives 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 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.

Whenever a greater estate and less coincide and meet in Of the doctrine one and the same person, without any intermediate estate, the of merger. less is immediately annihilated; or, in the law phrase, is said 3 Lev. 437.

2 Rep. 61. 8 Rep. 74.

to be merged, that is, sunk or drowned in the greater. But they must come to one and the same person in one and the same right; else if the freehold be in his own right, and he has a term in right of another, there is no merger. An estate tail is an exception to this rule: for estates tail are preserved from merger by the operation and construction of the statute de donis, which have probably arisen upon this consideration: that in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant has the sole interest in them, and has power at any time to defeat, destroy, or surrender them to the reversioner; therefore the merger in this case is considered by the law as a virtual surCro. Eliz. 302. render of the inferior estate; but a tenant in tail can only bar or destroy his estate by certain prescribed modes; and it would have been improvident to have allowed him by purchasing the reversion in fee to merge his particular estate and defeat the inheritance of his issue.

CHAPTER XII.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY,

AND COMMON.

ESTATES of any quantity or length of duration, and whether they are in actual possession or expectancy, considered with respect to the number and connexions of their owners, may be held in four different ways: in severalty, in joint-tenancy, in coparcenary, and in common.

He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein.

An estate in joint-tenancy is where lands or tenements are granted to two or more persons to hold in fee-simple, fee-tail, for life, for years, or at will. The creation of an estate in joint-tenancy depends on the wording of the deed, or devise by which the tenants claim title; for this estate can only arise by purchase, or grant, that is, by the act of the parties, and never by the mere act of law. If an estate be given to a plurality of persons without adding any restrictive, exclusive, or explanatory words, as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands.

of the nature and property regard to the connexions of

of estates with

number and

the tenants.

Estates in severalty.

Estates in jointtenancy.

Litt. s 277.

The properties of a joint-estate are derived from its unity, Its properties. which is fourfold: the unity of interest, the unity of title, the unity of time, and the unity of possession; that is, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. The estate cannot arise by descent; but only by purchase or acquisition. Joint- Unity of postenants are seised by the half or moiety, and by all; that is, they each of them have the entire possession, as well of every Litt. s. 288. 5 Rep. 10. parcel as of the whole. They have not, one of them a seisin of one-half or moiety, and the other, of the other moiety; nor can one be exclusively seised of one acre, and his companion of another: but each has an undivided moiety

session.

of the whole, and not the whole of an undivided moiety (a). The incidents to a joint-estate depend upon the principles of a thorough and intimate union of interest and possession. If two joint-tenants let a verbal lease of their land, reserving rent to one of them, it enures to both in respect of the joint reversion. Ibid. 49. 195. If livery of seisin be made to one joint-tenant it enures to both,

Bract. 1. 5, tr. 5, c. 26. Incidents to the union of interest and possession Co. Litt. 214.

319. 364.

Of the jus accrescendi, or right of survivorship.

and the entry of one is as effectual as if it were the act of both; and in all actions relating to their joint-estate one joint-tenant cannot sue or be sued without joining the other. When two or more persons are seised of a joint-estate of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate whatever it be, whether an inheritance or a common freehold only, or even a less estate. This right of survivorship is called by our ancient authors, the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors. This jus accrescendi ought to be mutual, which is one reason Fleta, 1, 3, c. 4. why neither the king nor any corporation can be a joint-tenant with a private person. There is no mutuality, the private person can never be seised of the entirety by survivorship; for the king and the corporation can never die.

Litt. s. 280, 281.

Bract. l. 4, tr. 3, c. 9. s. 3.

Co. Litt. 190. Finch, L. 83. 2 Lev. 12.

The modes by

which a joint

tenancy may

An estate in joint-tenancy may be severed and destroyed by destroying any of its constituent unities. It may be destroyed be severed and without any alienation, by merely disuniting the possession. destroyed. As if two joint-tenants agree to part their lands and hold them in severalty, they are no longer joint-tenants. By the common law one joint-tenant could not compel the other to make partition; but by 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, joint-tenants either of inheritances, or other less estates are compellable by writ of partition to divide their land (b). The jointure may be destroyed by destroying the unity of title. As if one joint-tenant aliens his estate to a third person: here the jointtenancy is severed and turned into tenancy in common; for the grantee and the remaining joint-tenant hold by different titles, one derived from the original, the other from the subsequent

Litt. s. 290.

Litt. s. 292.

(a) Under the new Statute of Limitations, 3 & 4 Wm. 4. c. 27, s. 12, a bar by length of enjoyment is no longer prevented by the unity of possession between joint tenants, coparceners, and tenants in common.

(b) The writ of partition was abolished by 3 & 4 Wm. 4, c. 27, s. 36, and the division is now, as it was for some time previous to the abolition of the writ of partition, effected by commission from the courts of chancery or exchequer.

« ПредыдущаяПродолжить »