BOOK 2, CHAPTER 11 Of Estates in Possession, Remainder, and Reversion

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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 act of the parties, called a remainder; the other by act of law, and called a reversion.

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. As if a man seized 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. 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.1 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 for ever: 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 on 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:2 because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee has 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 the remainders expectant thereon, is only one fee-simple; as 40£ is part of 100£ and 60£ is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100£ is appropriated there can be any residue subsisting.

Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded.

1. And, first, there must necessarily be some particular estate, precedent to the estate in remainder.3 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 interest, which were considered in the light of mere contracts by the ancient law,4 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 no estate of freehold can be created to commence in futuro; but it ought to take effect presently either in possession or remainder:5 because at common law no freehold in lands could pass without livery of seizin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which 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 for ever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time it completed; and for the grantor to deliver immediate possession of the land to the tenant of his particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seizin to A; here by the livery the freehold is immediately created, and vested in B, during the continuance of A’s term of years. The whole estate passes at one from the grantor to the grantees, and the remainder-man is seized of his remainder at the same time that the tremor 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 praesenti [immediately], though to be occupied and enjoyed in futuro [in the future].

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.6 For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder. Besides, if it be a freehold remainder livery of seizin must be given at the time of its creation; and the entry of the grantor, to do this, determines the estate at will in the very instant in which it is made:7 or, if it be a chattel interest, though perhaps it might operate as a future contract, if the tenant for years be a party to the deed of creation, 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.8 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:9 as where the particular estate is an estate for the life of a person not in esse;10 or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate;11 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.12 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 seizin is delivered to A of his life estate in possession. And it is this, which induces the necessity at common law of livery of seizin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seizin, in order to convey the freehold from and out of the grantor; otherwise the remainder is void.13 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 inure to him in remainder, as both are but one estate in law.14

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 [from the instant] that it determines.15 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 has 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 for ever.16 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:17 the thing supported must fall to the ground, if once its support be severed from it.

It is upon these rules, but principally the last; that the 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 particular 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 on 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.18

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 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. Nay, 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 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 being], in whom the remainder could vest.19 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 womb20

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.21 As if an estate be made 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 haeres viventis [no one is heir to the living]: 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.22 But a remainder to the right heirs of B (if there be no such person as B in esse) is void.23 For here there must two contingencies happen; first, that such a person as B shall be born; and, secondly, 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 has 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.24 A limitation of a remainder to a bastard before it is born, is not good:25 for though the law allow the possibility of having bastards, it perfumes 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 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 for ever gone; but if A dies first, the remainder to B becomes vested.

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:26 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 no where: 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 remainders may be defeated, by destroying or determining the particular estate upon which they depend, before the contingency happens whereby they become vested.27 Therefore when there is tenant for life, with diverse 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 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 determines. If therefore his estate for life determines otherwise than by his death, their estate, for the residue of his natural life, will then take effect, and become a particular estate in possession, sufficient to support the remainders de pending in contingency. This method is said to have been invented by Sir Orlando Bridgman, Sir Geoffery Palmer, and other eminent council, 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 life28 and when, after the restoration, those 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.

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. I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops concilii [without counsel], are always more favored in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice) in these divises, 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 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 very material points: 1. That it needs not any particular estate to support it. 2. That by it a fee-simple or other less estate, maybe 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 heir 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 devise29 For, since by a devise a freehold may pass without corporal tradition or livery of seizin. (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 seizin, which always operates in praesenti. 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.30

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 a deed, is good by way of executory devise.31 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 in being, or within a moderate term of years; for courts of justice will not indulge even wills, so as to create a perpetuity, which the law abhors:32 because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation33) 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 has been decreed to be a good executory devise.34

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.35 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:36 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,37 that the devisee for life has no power of aliening the term, so as to bar the remainder-man: yet in order to prevent the danger of perpetuities, it was settled,38 that, though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be in esse during the life of the first devisee; for then all the candles are li9ghted and are consuming together, and the ultimate remainder is in reality only to that remainder-man who happens to survive the rest: or, that such remainder may be limited to take effect upon such contingency only, as must happen (if at all) during the life of the first devisee.39

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.40 Sir Edward Coke41 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 therefore never 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 praesenti, though taking effect in futuro.

The doctrine of reversions is plainly derived from the feudal 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 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 held at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion42 The rent may be granted away, reserving the reversion; and the reversion 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 [on the other hand]: for the maxim of law is, “accessorium non ducit, sed sequitur, suum principale” [“the accessory does not precede but follows his principal”].43

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, seized of a paternal estate in fee, makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion,44 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:45 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 has 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.46

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, it is enacted by the statute 6 Ann. c. 18. that all persons on whose lives any lands or tenements are held, 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,47 the less is immediately annihilated; or, in the law phrase, is said to be merged, 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. Therefore, if tenant for years dies, and makes him who has the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he has the fee in his own right, and the term of years in the right of the testator, and subject to is debts and legacies. So also, if he who has the reversion in fee marries the tenant for years, there is no merger; for he has the inheritance in his own right, the lease in the right of his wife.48 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.49 For estates-tail are protected and preserved from merger by the operation and construction, though not by the express word, 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 has the sole interest in them, and has full power at any time to defeat, destroy, or surrender them to him that has 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.50 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 to destroy it; and now can only do it by certain special modes, by a fine, a recovery, and the like:51 it would therefore have been strangely improvident, to have permitted the tenant in tail, b 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.

NOTES

     1.    Co. Litt. 143.

     2.    Plowd. 29.

     3.    Co. Litt. 49. Plowd. 25.

     4.    Raym. 151.

     5.    Rep. 94.

     6.    8 Rep. 75.

     7.    Dyer. 18.

     8.    Raym. 151.

     9.    Co. Litt. 298.

   10.    2 Roll. Abr. 415.

   11.    1 Jon. 58.

   12.    Litt. § 671. Plowd. 25.

   13.    Litt. § 60.

   14.    Co. Litt. 49.

   15.    Plowd. 25. 1 Rep. 66.

   16.    1 Rep. 138.

   17.    3 Rep. 21.

   18.    3 Rep. 20.

   19.    Salk. 228. 4 Mod. 282.

   20.    See Vol. I. pag 126.

   21.    2 Rep. § 1.

   22.    Co. Litt. 378.

   23.    Hob. 33.

   24.    5 Rep. 51.

   25.    Cro. Eliz. 509.

   26.    1 Rep. 130.

   27.    Ibid. 66. 135.

   28.    See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170.

   29.    1 Sid. 153.

   30.    Cro. Jac. 593.

   31.    2 Mod. 289.

   32.    12 Mod.187. 1 Vern. 164.

   33.    Salk 229.

   34.    Forr. 232.

   35.    8 Rep. 95.

   36.    Bro. tit. chatteles. 23. Dyer. 74.

   37.    Dyer. 358. 8 Rep. 96.

   38.    1 Sid. 451.

   39.    Skinn. 341. 3 P. Wms. 258.

   40.    Co. Litt. 22.

   41.    1 Inst. 142.

   42.    Co. Litt. 143.

   43.    Ibid. 151. 152.

   44.    Cro. Eliz. 321.

   45.    3 Lev. 407.

   46.    1 And. 23.

   47.    3 Lev. 437.

   48.    Plow. 418. Cro. Jac. 275. Co. Litt. 338.

   49.    2 Rep. 61. 8. Rep. 74.

   50.    Cro. Eliz. 302.

   51.    See pag. 116.

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