Front Page Titles (by Subject) REMAINDERS AFTER CONDITIONAL FEES 1 - The Collected Papers of Frederic William Maitland, vol. 2
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REMAINDERS AFTER CONDITIONAL FEES 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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REMAINDERS AFTER CONDITIONAL FEES1
If I venture to criticise a passage in Mr Challis's admirable book on the Law of Real Property, it is not with the intention of disputing anything that he says about the law as it now is, but merely in the interests of antiquarianism. With good warrant, as it seems, he lays down the rule that there cannot be a remainder after a conditional fee. He admits that there is “a somewhat obscure passage in Bracton” to the contrary, but thinks that “the clear and reiterated opinion of Lord Coke, which has the advantage of being manifestly in accordance with general principle, is more than sufficient to outweigh the opinion of Bracton; especially as the latter does not seem to be aware that his opinion, if true, would be a remarkable anomaly” (p. 64). This, we may all agree, is sound legal reasoning; but as to the mere historical question whether, before the passing of the De Donis, remainders were limited after conditional fees, I make no doubt that Bracton was right, for such remainders were common enough.
Perhaps the practice of creating them might be traced back even into John's reign. There is a fine of 1192 by which Bartholomew grants land to Mary for her life; after her death it is to “revert” to her son Hugh or (vel) to his heirs begotten on an espoused wife, and if he shall die without an heir begotten on an espoused wife, it is to “revert” to Stephen, brother of Hugh or (vel) his heirs (Hunter, Fines, Vol. i. p. 34). It was not all at once that men distinguished between “reverting” and “remaining,” and we had better lay but little stress on this very early document with its somewhat ambiguous “vel.” But before the end of Henry III's reign we may find instances which leave nothing to be desired in the way of precision. At some date before 1269, as is found by an inquest post mortem, one W gave lands to T and the heirs begotten by him, but so that if he should die without an heir begotten by him, then they should remain to his brother L and the heirs begotten by him; and if L should die without an heir of his body in the lifetime of his sisters C and D, then they should remain to C and D and their heirs (Roberts, Calendarium Genealogicum, 137). Here is a “strict settlement” made in 1256:—a fine is levied by which land is recognised to be the right of Warin, to hold of Wymund and his heirs to Warin and the heirs of his body; and after his death, if he shall die without issue, to Wymund (No. 2) and the heirs of his body; and after his death, if he shall die without issue, to Reginald and the heirs of his body; and after his death, if he shall die without issue, to Richard and the heirs of his body; and after Warin, Wymund (No. 2), Reginald, and Richard shall die without issue, then the lands shall revert to Wymund (No. 1) and his heirs (Feet of Fines, Devon, Hen. III, No. 492).
Having seen a few such settlements, I took up at random a parcel of fines belonging to Edward I's reign, all earlier than the De Donis, namely, a parcel of Hertfordshire fines. Among the first fifty, no less than five contained remainders subsequent to conditional fees. In some cases there are several successive remainders. In some cases it is difficult to say whether the remainders are not contingent; difficult, because we know little about the early history of “the rule in Shelley's case.” Take this for example:—To A, and B his wife, and his son C, and the heirs of the body of C; but if C shall die without an heir of his body, then the lands shall remain to the other heirs whom A shall beget on B, and if B shall die without an heir begotten by A, then to the other heirs of A. Or again:—To Roger and Nicholas and the heirs of the body of Nicholas, but if he shall die without an heir of his body, or if the heirs whom he shall have begotten shall die without heirs of their bodies (de se), then the lands shall remain to the nearest heirs of Roger. Or again:—To Thomas for life, and after his death to John and the heirs of his body; but if he shall die without an heir of his body, or if the heirs whom he shall beget shall die without heirs of their bodies (de se) in the lifetime of Adam and Joan his wife, then to Adam and Joan and the heirs whom Adam shall beget upon Joan. Or once more:—To Gilbert and the heirs of his body; but if he shall die without an heir of his body, Agnes living, then to Agnes for life, and after her death to Simon and the heirs of his body; and if he shall die without an heir of his body, then to Joan and the heirs of her body; and if she shall die without an heir of her body, then to the right heirs of Gilbert (see Feet of Fines, Hertfordshire, Edw. I, Nos. 4, 10, 25, 35, 42, 118, 127). It may well be doubted whether the conveyancers of this age were fully alive to the distinction that we draw between vested and contingent remainders. I am inclined to think that if asked they would have said that every remainder after a conditional fee must be contingent. The almost invariable phrase with which they introduce such remainders is “et si forte contigerit,” and no phrase could more clearly “import a contingency” than this does. Doubtless they had still many things to learn, but certainly they had learnt that there might be a remainder after a conditional fee.
In passing, I may remark that the “feet of fines” at the Record Office will prove invaluable, if the history of conveyancing is ever to be minutely written. They are precisely dated, well preserved, and admirably arranged, and I think that for the earlier members of the series we may even claim some authoritative value. In Edward I's time they had to be read solemnly in court before at least four justices, and though we must not argue that the court in any way guaranteed the validity of the limitations, still we shall have some difficulty in believing that documents thus publicly brought into open court habitually contained limitations of a kind utterly unknown to the law; they must at least have been very well known to the justices.
One of the most curious instances is that of a settlement made in 1278 by Thomas Weyland, who was already a justice of the Common Pleas and in the same year became Chief Justice. He is famous among our justices because he committed felony and abjured the realm. He held a manor of the Earl of Gloucester. By fine he recognised this to one Geoffrey of Ashley, who thereupon granted it back to Thomas, Margery his wife and Richard his son, to hold to Thomas, Margery and Richard and the heirs of the body of Richard, so that Thomas and Margery should hold it of the chief lords of the fee during their lives, and after their deaths it should remain to Richard and the heirs of his body to be held of the right heirs of Thomas; and if it should happen that Richard should die without an heir of his body, then it should remain to the heirs male of Thomas begotten on Margery to be held of the right heirs of Thomas; and if it should happen that the said heirs begotten of Thomas should die without heirs of their bodies (de se), then it should remain to the right heirs of Thomas to be holden of the chief lords of the fee. This remarkable settlement came before the courts. After Weyland's felony and abjuration, the Earl of Gloucester made a determined effort to upset it, contending that he was entitled to an escheat. The case was so important and unprecedented that it was heard before the whole council, the justices of both benches and the barons of the exchequer, who finally after many doubts, which are stated on the Parliament Roll, upheld the fine (Rolls of Parliament, 1. 66). The validity of the remainders was not the point in question, for the wife of the fallen justice was yet living, and the argument for the earl was, to put it shortly, that the settlement was a fraud, a covinous attempt to deprive the lord of his feudal dues; but still we here see what a judge of the Common Pleas thought that he could do in 1278; not only could he create remainders after conditional fees, but he could play some tricks with tenures which seem very odd to us who have the happiness of living under Quia Emptores1 .
“It is an indubitable fact,” says Mr Challis “that by the common law there did exist a formedon en reverter for the benefit of the donor, as is expressly stated in the statute De Donis; while there did not exist a formedon en remainder in respect of conditional fees.” But really there are two facts here: the former, the existence of the formedon en reverter is indubitable, while the latter, the non-existence of the formedon en remainder seems to me extremely doubtful. Certainly that writ was not expressly given by the statute, and no word in the statute implies that it is wanted. There are so many yet extant copies of the Registrum Brevium as it stood before the De Donis, that I should not like to speak confidently as to their contents. But even suppose we grant that there was as yet no “writ of course” suited to this case, this would prove but little, for in Henry III's reign the Chancery held itself very free to issue “brevia formata,” writs adapted to special cases. Thus throughout the reign writs of trespass are occasionally found; but there seems to be strong evidence that they did not become “writs of course” until the last years of the reign. I cannot but believe that the conveyancers of the time knew their own business, and were not devising futilities when they limited remainders after conditional fees. The fines upon which I place reliance are obviously not the work of laymen, but of trained lawyers, and at the very least they prove “a general opinion in the profession” that such remainders were sanctioned by law.
It may be allowed me to add that our use of the word “remainder” is apt to suggest a false view of history. It may seem to us that a remainder is what remains when a smaller estate has been deducted from a larger. Were this the origin of the term it would be difficult to explain why we do not give the name “remainder” to reversions; for surely a reversion is what remains when a smaller estate has been deducted from a larger. But if we look at the documents of the thirteenth century we soon see that the word “remanere” did not express any such notion of deduction or subtraction. The regular phrase is that “after the death of A,” or “if A shall die without an heir of his body,” then “the said land” or “the said tenements shall remain to B,” that is, shall await, shall abide for, shall stand over for, shall continue for, B. We may compare the then common phrase “loquela remanet,” the parol demurs, the action stands over until some one is of age or some other event happens; or, to use a form of speech not yet forgotten, the action “is made a remanet.” The term “remainder” does not therefore at this time serve to express that quantitative conception of “an estate” which is so remarkable a feature in the real property law of a somewhat later time, the conception that an estate has size, that, for example, a fee tail is larger than a life estate but smaller than a fee simple, that small estates may be “carved” out of larger estates. There seems to me to be no proof that such an idea had ever entered the head of Bracton or of any contemporary lawyer. They had not even the terms in which to express it. In Bracton's mouth the word status, so far from being equivalent to the estate of our real property law, has no reference to proprietary rights, but means personal condition, means that which modern lawyers, having appropriated estate for another use, are once more obliged to call status. As the art of conveyancing develops, as new kinds of limitation are devised, we can see the word status and its French and English equivalents changing their meaning; instead of speaking simply of the land which their ancestors held, men are obliged to speak of their ancestors’ estate (status) in the land, and more and more the word gets involved in those complexities of the land law which “the estates of the realm” suffer to exist. It may therefore be doubted whether even Mr Challis would succeed in convincing Bracton that his opinion about remainders was “a remarkable anomaly”; at least he would have to begin with some instruction in the very rudiments of the law. If he began by speaking of “the quantum of an estate in fee,” the benighted old gentleman would, I fear, reply that a feodum is not a status, and that neither a feodum nor a status can be said to have quantity. The calculus of estates has not yet been invented.
Law Quarterly Review, Jan. 1890.
My attention was drawn to this case by Mr Cyprian Williams.