Front Page Titles (by Subject) CHAPTER XI.: ESTATES IN POSSESSION, REMAINDER, AND REVERSION. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XI.: ESTATES IN POSSESSION, REMAINDER, AND REVERSION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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.1
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.
II. An estate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. **164]As if a man seised in fee-simple granteth lands to 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 afterwards, 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, 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, cannot be reserved after the whole is disposed of. A particular estate, with all *[*165the remainders expectant thereon, is only one fee-simple: as 40l. is part of 100l. and 60l. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole 100l. 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 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 cannot 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 be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder;(e) because at *[*166common law no freehold in lands could pass without livery of seisin; 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 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.2 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 of years. The whole estate passes at once from the grantor to the grantees, and the remainderman 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.
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.(f) 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 seisin must be given at the time of its creation; and the entry of the grantor to do this determines the estate at will **167]in the very instant in which it is made:(g) 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 preceding particular estate is taken.(h) And hence it is generally true, that if the particular estate is void in its creation, or by any means is defeated afterwards, 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 must commence or pass out of the grantor at the time of the creation of the particular estate.(m) As, where there is an estate to A. for life, with remainder to B. in fee: here B.’s remainder in fee passes from the grantor at the same time that seisin is delivered to A. of his life-estate in possession. And it is this which 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.(n) 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 cannot 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 remainder must vest in the grantee during the continuance of 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 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 forever.(q) 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:(r) the thing supported must fall to the ground, if once its support be severed from it.3
It is upon these rules, but principally the last, that the doctrine 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 *[*169particular estate is spent. As if A. be tenant for twenty years, remainder to B. in fee; here B.’s is a vested remainder, which nothing can defeat, or set aside.
Contingent or executory remainders (whereby no present interest 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 effect.(s)4
First, they may be limited to a dubious and uncertain person. 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 of 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. Nay, by the strict rule of law, if A. were tenant for life, remainder to his eldest son in tail, and A. died without issue born, but leaving his wife enseint, or big with child, 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.(t) But, to remedy this hardship, it is enacted by statute 10 & 11 W. III. c. 16, that posthumous children shall be 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.(u)5
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.(w) As if an estate be *[*170made to A. for life, remainder to the heirs of B.; now, 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, for the possibility of B.’s dying before A. is potentia propinqua, and therefore allowed in law.(x) But a remainder to the right heirs of B., (if there be no such person as B. in esse,) is void.(y) For here there must two contingencies happen: first, that such a person as B. shall be born; and, secondry. that he shall also die during the continuance of the particular estate; which make it potentia remotissima, a most improbable possibility. A remainder to a man’s eldest son who hath none (we have seen) is good, for by common possibility he may have one; but if it be limited in particular to his son John, or Richard, it is bad, if he have no son of that name; for it is too remote a possibility that he should not only have a son, but a son of a particular name.(z)6 A limitation of a remainder to a bastard before it is born, is not good:(a)7 for though the law allows the possibility of having bastards, it presumes it to be a very remote and improbable contingency. Thus may a remainder be contingent, on account of the uncertainty of the person who is to take it.
A remainder may also be contingent, where the person to whom it is limited is fixed and certain, but the event upon 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 with remainder to B. in fee: here B. is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, the uncertainty of his surviving A. During the joint lives of A. and B. it is contingent; and if B. dies first, it never can vest in his heirs, but is forever gone; but if A dies first, the remainder to B. becomes vested.
**171]Contingent remainders of either kind, 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;(b) 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.8
Contingent remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby 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.9 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 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.10 If therefore his estate 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 **172]particular estate in possession, sufficient to support the remainders depending in contingency. This method is said to have been invented by Sir Orlando Bridgman, Sir Geoffrey Palmer, and other eminent counsel, who betook themselves to conveyancing during the time of the civil wars; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who before were usually left at the mercy of the particular tenant for life:(d) and when, after the restoration, these gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and introduced it into general use.11
Thus the student will observe how much nicety is required in creating and securing a remainder; and I trust he will in some measure see the general reasons upon which this nicety is founded. It were endless to attempt to enter upon the particular subtleties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions.12 I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice,) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of 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.13 It differs from a remainder in three very material points: 1. That it needs not any *[*173particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.
1. 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 heirs at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here 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.(e) For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all,) therefore it may commence in futuro; because the principal reason why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in præsenti. And since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.(f)
2. By executory devise, a fee, or other less estate, may be 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 deed, is good by way of executory devise.(g) But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a mode **174]rate term of years, for courts of justice will not indulge even wills so as to create a perpetuity, which the law abhors:(h) because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation,)(i) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one-and-twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.(k)14
3. By executory devise, a term of years may be given to one man 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.(l) 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 remainderman: yet, in order to prevent the danger of perpetuities, it was settled,(o) that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be *[*175in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainderman 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)15
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 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 in the grantor, to commence in possession after the determination of some particular estate granted out by him.(q) Sir Edward Coke(r) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. 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 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 præsenti, though taking effect in future.
The doctrine of reversions is plainly derived from the feodal constitution. 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 **176]lord or proprietor, to be again disposed of at his pleasure. 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 tenure, 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 principale.”(t)
These incidental rights of the reversioner, and the respective 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 continuance of A.’s estate.(x)
**177]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 death, it is enacted by the statute 6 Anne, c. 18 that 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, 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 reversions, 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,16 that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. 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, (en auter droit,) there is no merger.17 Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife.(z) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee.(a) For estates-tail are protected and preserved from merger by the *[*178operation and construction, though not by the express words, of the statute de donis: which operation and construction 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 hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate.(b) But, in an estate-tail, the case is otherwise; the tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like:(c) it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.
[1 ]1. An estate in possession gives a present right of present enjoyment.
2. A vested remainder is an estate to take effect after another estate for years, life, or in tail, which is so limited, that if that particular estate were to expire or end in any way, at the present time, some certain person would become thereupon entitled to the immediate enjoyment.
3. A contingent remainder is where either the person to whom or the event upon which the future estate is to be enjoyed is at present uncertain.
4. An executory devise is a future estate limited by will which would not be valid in a conveyance at common law, owing to the fact of its being limited on a fee, or not having a sufficient particular estate to support it, or to its respecting personal property.
5. A contingent use is where a future estate is limited to arise in a conveyance to uses which would not be good in a conveyance at common law for the same reasons as have been stated in regard to executory devises.—Sharswood.
[(a) ] Co. Litt. 143.
[(b) ] Plowd. 29. Vaugh. 269.
[(c) ] Co. Litt. 49. Plowd. 25.
[(d) ] Raym. 151.
[(e) ] 5 Rep. 94.
[2 ] Yet deeds acting under the statute of uses, such as bargain and sale, covenant to stand seised, or a conveyance to uses, or even a devise, may give an estate of freehold to commence in futuro; as a bargain and sale to A. and his heirs, from and after Michaelmasday now next ensuing, is good; and the use, in the mean time, results to the bargainor or his heir. See 2 Prest. Conv. 157. Saund. on Uses and Trusts, 1 vol. 128; 2 vol. 98.—Archbold.
The Real Property Commissioners propose to abolish this distinction between the rule of the common law and the rule under the statute of uses, and to enact that estates may at common law be conveyed or created to commence at a future time, whether certain or uncertain. If this be done, the first rule laid down by Blackstone will, so far as it relates to future estates, be abolished, and in effect a remainder may then be created without any particular estate to support it.—Stewart.
[(f) ] 8 Rep. 75.
[(g) ] Dyer, 18.
[(h) ] Raym. 151.
[(i) ] Co. Litt. 298.
[(k) ] 2 Roll. Abr. 415.
[(l) ] 1 Jon. 58.
[(m) ] Litt. 671. Plowd. 25.
[(n) ] Litt. 60.
[(o) ] Co. Litt. 49.
[(p) ] Plowd. 25. 1 Rep. 66.
[(q) ] 1 Rep. 138.
[(r) ] 3 Rep. 21.
[3 ] By the feudal law, the freehold could not be vacant, or, as it was termed in abeyance. There must have been a tenant to fulfil the feudal duties or returns, and against whom the rights of others might be maintained. If the tenancy once became vacant, though but for one instant, the lord was warranted in entering on the lands; and the moment the particular estate ended by the cession of the tenancy, all limitations of that estate were also at an end. From these principles are deduced the rules that no contingent freehold remainder can be well created unless it is supported by an immediate estate of freehold, vested in some person actually in existence, who may answer the præcipe of strangers; and also that it is necessary the remainder should take effect during the existence of such particular estate, or eo instanti that it determines. Watk. on Conv. 94. But, as to a contingent remainder for years, there does not appear to be any necessity for a preceding freehold to support it. For, the remainder not being freehold, no such estate appears requisite to pass out of the grantor in order to give effect to remainder of that sort. And although every contingent freehold remainder must be supported by a preceding freehold, yet it is not necessary that such preceding estate continue in the actual seisin of its rightful tenant: it is sufficient if there subsists a right to such preceding estate, at the time the remainder should vest; provided such right be a present right of entry, and not a right of action only. A right of entry implies the undoubted subsistence of the estate; but when a right of action only remains, it then becomes a question of law whether the same estate continues or not: till that question be determined, upon the action brought, another estate is acknowledged and protected by the law. See Fearne, ch. 3. Where the legal estate is vested in trustees, that will be sufficient to support the limitations of contingent remainders, (see post, pp. 171, 172,) and there will be no necessity for any other particular estate of freehold; nor need the remainders vest at the time when the preceding trust-limitations expire. Habergham vs. Vincent, 2 Ves. Jr. 233. Gale vs. Gale, 2 Cox, 153. Hopkins vs. Hopkins, Ca. temp. Talb. 151.—Chitty.
[(s) ] Ibid. 20.
[4 ] See in general the celebrated work of Fearne on Contingent Remainders and Executory Devises, edited by Butler. “It is not the uncertainty of ever taking effect in possession that makes a remainder contingent; for to that every remainder for life, or in tail, expectant upon an estate or life, is, and must be, liable, as the remainderman may die, or die without issue, before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent.” 2 Cruise Dig. 270. See also Fearne Cont. Rem. 216, 7 ed. 2 Ves. Jr. 357. “A contingent remainder is a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding estate; for if the preceding estate (unless it be a term) determine before such event or condition happens, the remainder will never take effect.” Fearne, Cont. Rem. 3. Bridgm. index, title Remainder.—Chitty.
It is the uncertainty of the right which renders a remainder contingent, not the uncertainty of the actual enjoyment. Williamson vs. Field, 2 Sandf. Ch. Rep. 513—Sharswood.
[(t) ] Salk. 288. 4 Mod. 282.
[(u) ] See book i. p. 130.
[5 ] The case of Reeve vs. Long, (1 Salk. 227,) which gives occasion to the statute mentioned in the text, was to the following purport:—
John Long devised lands to his nephew Henry for life, remainder to his first and other sons in tail, remainder to his nephew Richard for life, &c. Henry died without issue born, but leaving his wife pregnant. Richard entered as in his remainder, and afterwards a posthumous son of Henry was born. The guardian of the infant entered upon Richard; and it was held by the courts of Common Pleas and of King’s Bench that nothing vested in the posthumous son, because a contingent remainder must vest during the particular estate, or at the moment of its determination.
On an appeal to the house of lords, this judgment was reversed, against the opinion of all the judges, who were much dissatisfied. 3 Lev. 408. To set the question at rest, the statute was passed. Mr. Cruise, (2 Dig. 330,) however, remarks, it is somewhat singular that this statute does not mention limitations or devises by will. But, he says, there is a tradition, that as the case of Reeve vs. Long arose upon a will, the lords considered the law to have been settled by their determination in that case, and were therefore unwilling to make any express mention of limitations made in wills, lest it should appear to call in question the authority or propriety of their determination. Besides (he adds) the words of the act may be construed, without much violence, to comprise settlements of estates made by wills as well as by deeds.
Mr. Christian, in his note upon the passage in the text, considers the statute as a reproof given by the house of commons to the lords for their assumption; but, had it been so understood, the concurrence of the lords would probably not have been obtained.
In the case of Thelluson vs. Woodford, (4 Ves. 342,) lord Rosslyn said, the case of Reeve vs. Long (certainly overruling Archer’s case) decided that a posthumous child was to be taken to all intents and purposes as born at the time the particular estate, on which his remainder depended, determined. Undoubtedly, the court of Common Pleas first, and, upon a writ of error, the court of King’s Bench, had held differently. But it ought always to be remembered it was the decision of lord Somers; and that was not the only case in which he stood against the majority of the judges; and the better consideration of subsequent times has shown his opinion deserved all the regard generally paid to it. The statute of William III. was not to affirm that decision. It did by implication affirm it, but it established that the same principle should govern the case where the limitation was by deed of settlement. The manner in which the point has been treated ever since, in Verdet vs. Hopegood, (1 P. Wms. 487,) and the other cases (see 2 Ves. Jun. 673. 11 Ves. 139. 2 Ves. & Bea. 367) proves what the opinion has been upon the propriety of a rule which it is impossible to say is attended with real inconvenience, and which is according to every principle of justice and natural feeling.
A posthumous child claiming under a remainder in a settlement is entitled to the intermediate profits from the death of the father, as well as to the estate itself. Basset vs. Basset, 3 Atk. 203. Thelluson vs. Woodford, 11 Ves. 139. But a posthumous son who succeeds by descent can claim the rents and profits only from the time of his birth. Goodtitle vs. Newman, 3 Wils. 526. Co. Litt. 11, b., note 4.—Chitty.
Where an estate is given to a person for life, with remainder to after-born children, upon the birth of a child the estate vests in him, subject to open and let in after-born children. Macomb vs. Miller, 9 Paige, Ch. Rep. 265. Williamson vs. Berry, 8 Howard, U.S. 495.—Sharswood.
[(w) ] 2 Rep. 51.
[(x) ] Co. Litt. 378.
[(y) ] Hob. 33.
[(z) ] 5 Rep. 51.
[6 ] It is not merely there being two contingencies to happen, or what lord Coke calls a possibility on a possibility, in order to the vesting of the estate, which will make the possibility too remote; but there must be some legal improbability in the contingencies. Mr. Butler mentions a case (Routledge vs. Darril, 2 Ves. Jr. 357) where limitations of a money-fund were held valid, and yet, to entitle one of the objects to take under it, 1st, The husband and wife must have had a child; 2d, That child must have had a child; 3d, The last-mentioned child must have been alive at the decease of the survivor of his grandfather and grandmother; 4th, If a boy, he must have attained twenty-one; if a girl, that age or married. Fearne, Cont. Rem. 251, n. c. 7th ed.—Coleridge.
Mr. Preston is of opinion that a remainder to an unborn son of a particular name would be valid. 1 Abstr. 129.—Sharswood.
[(a) ] Cro. Eliz. 509.
[7 ] The several reports of the case to which our author refers as his authority for the passage in the text are very discordant; and it rather appears that it was finally unnecessary to decide the question whether a remainder to an unborn illegitimate child was necessarily invalid, as the claimant in Blodwell vs. Edwards (the case in question) turned out to be actually born in lawful wedlock. See Co. Litt. 3, b. and Mr. Hargrave’s note 1. However, lord Parker, (afterwards Macclesfield,) in the case of Methan vs. The Duke of Devon, 1 P. Wms. 530, said he inclined to think that a natural child en ventre sa mere could not take under a bequest in a will to all the natural children of a named man by a certain woman. And Sir W. Grant, M. R., in Earle vs. Wilson, 17 Ves. 531, said, whether the case referred to by lord Coke (which is also the case referred to by our author) does or does not fully warrant the rule laid down by him, yet his own great authority, and the adoption of it by lord Macclesfield, were sufficient to induce him to adhere to it, without nicely examining the reasons upon which it stands. The rule (he added) is, in substance, that a bastard cannot take as the issue of a particular man until it has acquired the reputation of being the child of that man,—which cannot be before its birth. Bayley vs. Snelham, 1 Sim. & Stu. 81. Yet, where a bequest is made to the natural child of which a particular woman is enceinte, without reference to any person as the father, there would be no uncertainty in that bequest, and probably it would be held good. But the rule of law does not acknowledge a natural child to have any father before its birth. By the latter cases of Gordon vs. Gordon, 1 Meriv. 153, and Evans vs. Massey, 8 Pr. 33, it seems to be now established that a prospective bequest to an illegitimate child with which a woman is supposed to be enceinte may be good, if the description of the object of bequest be not open to the uncertainty which must arise whenever it is made a condition precedent to the gift that the child should actually be the child of a particular father, and when the description is in other respects so distinct as to leave no doubt as to the individual for whom the legacy is intended; though a contrary opinion, as intimated in the text, certainly appears to have been held formerly. See Wilkinson vs. Adam. 1 Ves. & Bea. 468. Arnold vs. Preston, 18 Ves. 288.—Chitty.
[(b) ] 1 Rep. 130.
[8 ] But although every contingent freehold remainder must be supported by a preceding freehold, it is not necessary that such preceding estate continue in the actual seisin of its rightful tenant: it is sufficient if there subsists a right of entry to such preceding estate at the time the remainder should vest. As if A. be tenant for life, with contingent remainders over, and be disseised, the right of entry, while it remains in him, will support the contingent remainders; but if the disseisor should die, and the property should descend on his heir-at-law during the life of A., A. would lose his right of entry and have only a right of action, which would not be enough to support the contingent remainders; for in that case it is a question whether the particular estate on which the remainders depend subsists or not, another estate being protected by the law till that question is decided. Fearne, Cont. Rem. p. 286, 7th ed.—Coleridge.
[(c) ] Ibid. 66, 135.
[9 ] But a conveyance of a greater estate than he has by bargain and sale, or by lease and release, is no forfeiture, and will not defeat a contingent remainder. 2 Leo. 60. 3 Mod. 151.
But the tenant for life may bar the contingent remainders by a feoffment, a fine, or a recovery. 1 Co. 66. Cro. Eliz. 630. 1 Salk. 224.
Where there is a tenant for life, with all the subsequent remainders contingent, and he suffers a recovery to the use of himself in fee, he has a right to this tortious fee against all persons but the heirs of the grantor or devisor. 1 Salk. 224.—Chitty.
[10 ] Trustees to support contingent remainders are not essential in copyhold, the lord’s estate sufficing. 10 Ves. 282. 16 East, 406.—Chitty.
[(d) ] See Moor. 486. 2 Roll. Abr. 797, pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.
[11 ] Equitable contingent remainders could never be destroyed by any act of the tenant for life; and the Real Property Commissioners proposed to establish the same rule with respect to legal contingent remainders. And now, by stat. 8 & 9 Vict. c. 106, 8, it is enacted that a contingent remainder vesting at any time after Dec. 31, 1844 shall be, and if created after the passing of the act, shall be deemed to have been capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened.—Stewart.
[12 ] The student will now be prepared to understand the celebrated rule of law commonly called The Rule in Shelley’s Case, on account of the following distinct announcement of it which occurred in that case. 1 Rep. 104, a.:—“It is a rule in law, when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, that always in such cases ‘the heirs’ are words of limitation of the estate, and not words of purchase.” And this is a strict rule of law, which cannot be prevented by any expression of intention to the contrary. Thus, if a limitation is made to Jane Wood for life, remainder to B. for life, remainder to C. in tail, remainder to the heirs of Jane Wood, she takes an estate for life with the ultimate remainder to herself in fee; and such remainder descending to her heir would be descendible from him to the heirs ex parte materna.—Sweet.
[13 ] Mr. Fearne observes, upon the inaccuracy of a similar definition to this, that it is capable of comprehending more than the thing defined; for a contingent remainder created by will would exactly answer to it. He defines an executory devise thus:—“Such a limitation of a future estate or interest in lands or chattels (though in the case of chattels personal it is more properly an executory bequest) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law.” Cont Rem. 386, 7th ed.—Coleridge.
[(e) ] 1 Sid. 153.
[(f) ] Cro. Jac. 593.
[(g) ] 2 Mod. 289.
[(h) ] 12 Mod. 287. 1 Vern. 164.
[(i) ] Salk. 229.
[(k) ] Fort. 232.
[14 ] Lord Kenyon has explained the whole doctrine of executory devises in the following words:—“The rules respecting executory devises have conformed to the rules laid down in the construction of legal limitations; and the courts have said that the estate shall not be unalienable by executory devises for a longer term than is allowed by the limitations of a common-law conveyance. In marriage settlements, the estate may be limited to the first and other sons of the marriage, in tail; and until the person to whom the first remainder is limited is of age, the estate is unalienable. In conformity to that rule the courts have said, so far we will allow executory devises to be good. To support this position, I could refer to many decisions; but it is sufficient to refer to the duke of Norfolk’s case, in which all the learning on this head was gone into; and from that time to the present, every judge has acquiesced in that decision. It is an established rule that an executory devise is good if it must necessarily happen within a life or lives in being, and twenty-one years, and the fraction of another year, allowing for the time of gestation.” See Long vs. Blackall, 7 T. R. 100. In that case it was determined that a child en ventre sa mere was to be considered as a child born, and therefore that an estate might be devised to it for life, and after its death to its issue in tail.—Christian.
Peter Thelusson, Esq., an eminent merchant, devised the bulk of an immense property to trustees for the purpose of accumulation during the lives of three sons, and of all their sons who should be living at the time of his death or be born in due time afterwards, and during the life of the survivor of them. Upon the death of this last, the fund is directed to be divided into three shares,—one to the eldest male lineal descendant of each of his three sons: upon the failure of such a descendant, the share to go to the descendants of the other sons; and upon failure of all such descendants, the whole to go to the sinking-fund. When he died, he had three sons living, who had four sons living; and two twin-sons were born soon after. Upon calculation, it appeared that at the death of the survivor of these nine the fund would probably exceed nineteen millions; and upon the supposition of only one person to take and a minority of ten years, that it would exceed thirty-two millions. It is evident that this extraordinary will was strictly within the limits laid down in the text; and it was accordingly sustained both in the court of chancery and in the house of lords. See 4 Ves. Jr. 227. 11 Ves. Jr. 112. 1 New Rep. 357.—Coleridge.
The 39 & 40 Geo. III. c. 98 enacts that no person shall, by any deed, will, or by any other mode, settle or dispose of any real or personal property so that the rents and profits may be wholly or partially accumulated for a longer term than the life of the grantor, or the term of twenty-one years after the death of the grantor or the testator, or the minority of any person who shall be living or en ventre sa mere at the death of the grantor or the testator, or during the minority only of such person as would for the time-being, if of full age, be entitled to the rents and produce so directed to be accumulated: and where any accumulation is directed otherwise, such direction shall be void, and the rents and profits, during the time that the property is directed to be accumulated contrary to this act, shall go to such person as would have been entitled thereto if no such accumulation had been directed; provided that this act shall not extend to any provision for the payment of debts, or for raising protions for children, or to any direction touching the produce of woods or timber.
A direction for accumulation during a life was held to be good for twenty-one years after the death of the testator. 9 Ves. Jr. 127.—Chitty.
[(l) ] 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. 253.
[15 ] A future estate will always be construed to be a remainder when it can be, in preference to a springing use or executory devise. The reason is an obvious one: in the latter case the future estate cannot be barred, and the land is completely withdrawn from commerce. So between remainders the law favours their vesting, because that combines the interests of a free commerce in land with the rights of the proprietors. Wager vs. Wager, 1 S. & R. 374. Minnig vs. Baldorff, 5 Barr, 503. Den vs. Demarest, 1 New Jersey, 525. It is an inflexible rule that no limitation shall be deemed an executory devise if it may by any practicable construction be sustained as a contingent remainder: for the all-sufficient reason that these executory devises, being inconsistent with the policy of the common law, which, on account of its abhorrence of estates commencing in futuro, requires all the precedent parts of the fee to pass out of the grantor at the same instant, are barely tolerated, and only in favour of the explicit declaration of one who may have been compelled to dispose of his estates when unassisted by counsel. They are therefore to be sustained only in cases of clear necessity. Stehman vs. Stehman, 1 Watts, 466. Danwoodie vs. Read, 4 S. & R. 435. Willis vs. Beecher, 3 Wash. C. C. 369. Hawley vs. Northampton, 8 Mass. 3. Wolfe vs. Van Nostrand, 2 Comst. 436. Johnson vs. Valentine, 4 Sandf. S. C. 36.
It is the received doctrine of the courts, both in England and America, that when a devise is made to A. in fee, and if A. should die without issue then to B. in fee, the limitation over to B. as an executory devise would be void for its remoteness, as it depends upon an indefinite failure of the issue of A. Such a devise is construed to be an estatetail in A. and vested remainder in B. Any words which indicate an intention in the testator to confine the failure of issue to a dying without issue living at the death of the first taker will be sufficient to rebut the construction of an indefinite failure of issue Hall vs. Chaffee, 14 New Hamp. 215. Toman vs. Dunlop, 6 Harris, 72. Flinn vs. Davis, 18 Ala. 132. Jackson vs. Dashiel, 3 Maryland Ch. Dec. 257. In the case of such a limitation of personalty, however, it vests the entire and absolute estate in the first taker, and the limitation over is void. The smallest circumstance will be laid hold of to limit the failure of issue to the death of the first taker. Dashiell vs. Dashiell, 2 Har. & Gill, 127.—Sharswood.
[(q) ] Co. Litt. 22.
[(r) ] 1 Inst. 142.
[(s) ] Co. Litt. 143.
[(t) ] Ibid. 151, 152.
[(u) ] Cro. Eliz. 321.
[(w) ] 3 Lev. 407.
[(x) ] 1 And. 23.
[(y) ] 3 Lev. 437.
[16 ] Even if there be an intermediate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance,) when such coalition takes place by the conveyance or act of the parties. Purefoy vs. Rogers, 2 Saund. 387. But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent. These differences, however, may be reconciled by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited, and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders, (Boothley vs. Vernon, 9 Mod. 147. Plunkett vs. Holmes, 1 Lev. 12. Archer’s case, 1 Rep. 66;) in the second class of cases, it does merge them. Hartpole vs. Kent, T. Jones, 77, S. C. 1 Ventr. 307. Hooker vs. Hooker, Rep. temp. Hardw. 13. Doe vs. Scudamore, 2 Bos. & Pull. 294; and see Fearne, p. 343, 6th ed., with Serjt. Williams’s note to 2 Saund. 382, a.
A distinction (as already has been intimated) must be made between the cases where a particular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance, and those cases wherein the accession of the inheritance is by a conveyance, accident, or circumstance distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is otherwise. For where by the same conveyance a particular estate is first limited to a person, with a contingent remainder over to another, and with such a reversion or remainder to the first person as would in its own nature drown the particular estate first given him, this last limitation shall be considered as executed only sub modo; that is, upon such condition as to open and separate itself from the first estate when the condition happens; and by no means to destroy the contingent estate. Lewis Bowles’s case, 11 Rep. 80. Fearne, 346, 6th ed.
A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell vs. Morgan, 2 Vern. 90, a portion was directed to be raised out of a term for years for the testator’s daughter. The fee afterwards descended on her, and she, being under age, devised the portion. The court of chancery relieved against the merger of the term, and decreed the portion to go according to the will of the daughter. See also Thomas vs. Kemish, 2 Freem. 208. S. C. 2 Vern. 352. Saunders vs. Bournford, Finch, 424.—Chitty.
[17 ] Mr. Preston questions this position. 3 Conv. 277.—Sharswood.
[(z) ] Plowd. 418. Cro. Jac. 275. Co. Litt. 338.
[(a) ] 2 Rep. 61. 8 Rep. 74.
[(b) ] Cro. Eliz. 302.
[(c) ] See page 116.