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CHAPTER IV.

ESTATES CLASSIFIED AS TO TIME OF THEIR

ENJOYMENT.

SECTION 38. IN GENERAL. Estates as to the time of their enjoyment are divided into estates in possession and estates in expectancy. An estate in possession is one which entitles the holder to the possession of the property at the present time. An estate in expectancy is one which is to begin in the future. Estates in expectancy are divided into reversions and remainders.

SECTION 39. REVERSIONS. A reversion is the estate left in the grantor or his heirs after the preceding estate or estates have been granted away. A reversion is the residuary estate and always exists where the full fee has not been granted away.

If the estate reverting to the grantor or his heirs depends upon a contingency, the estate is then known as a possibility of reverter. Thus, there will be a reversion after a life estate, or after an estate for a term of years, but a possibility of reverter after a fee-tail or an estate on condition subsequent.

SECTION 40. REMAINDERS. A remainder is a future estate created in favor of some other person than the grantor. There are four important general rules governing the creation of remainders. (1) The remainder must have a preceding estate to support it; (2) The remainder must be created at the same time as the preceding estate; (3) The remainder must take effect immediately after the termination of the preceding estate; and (4) The remainder must not take effect in derogation of the preceding estate. This last rule explains why there cannot be a remainder after an estate on condition subsequent.

SECTION 41. CLASSIFICATION OF REMAINDERS.

“Remainders are either vested or contingent. Vested remainders, or remainders executed, are those by which a present interest passes to the party, though to be enjoyed in futuro, and by which the estate is invariably fixed to remain to a determinate person after the particular estate is spent. As if A, be tenant for years, remainder to B in fee: hereby B's remainder is vested, which nothing can defeat or set aside. The person entitled to a vested remainder has an immediate fixed right of future enjoyment, that is, an estate in presenti, though it is only to take effect in possession and permanency of the profits at a future period. And such an estate may be transferred, aliened, and charged, much in the same manner as an estate in possession.

A remainder is contingent when it is limited to take effect on an event or condition, which may not happen or be performed, or which may not happen or be performed till after the determination of the preceding particular estate; in which case such remainder never can take effect. It is not, however, the uncertainty of ever taking effect in possession, that makes a remainder contingent, for to that every remainder 1 2 BI. Com., 169.

: Fearn. Cont. Rem., 3. . 2 Cro. Dig., 260, 261.

for life, or in tail, expectant on an estate for life, is and must be liable; as the remainder-man 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 before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is con

tingent.”

SECTION 42. CONTINGENT REMAINDERS.

Contingent remainders are those in which both the right of property and right of enjoyment are postponed. Besides the general rules governing all remainders, there are certain special rules governing contingent remainders as follows; (1) the preceding estate in the case of a contingent remainder must be a freehold; and (2) the contingency must not be illegal, - Fearn. Cont. Rem., 329; Prest.

termination of the preceding Est., 32, 33. Note to Thomas'

estate, is, by the nature of the Edition of Coke Institute.

limitation, to precede the re• According to Mr. Fearne, there

mainder; as in the case of Doe are four kinds of contingent

d. Planner v. Scudamore, cited remainders:- 1st. Where the

above, and in the instance put remainder depends entirely on

by Lord Coke of a lease for life a contingent determination of

to A., B., and C., and if B. the preceding estate itself. As

survive C. then the remainder if A, makes a feoffment to the

to B. and his heirs; here the use of B. till C. returns from

event of B.'s surviving C. does Rome, and after such return of

not affect the determination of C. then to remain over in fee;

the particular estate; neverhere the particular estate is

theless, it must precede and limited to determine on the re

give effect to B.'s remainder; turn of C. and only on that

but as such event is dubious, determination of it is the re

the remainder is contingent. mainder to take effect; but

Fearn. Cont. Rem. 4, 5. 3d. that is an event which possibly

Where it is limited to take may never happen; and, there

effect upon an event, which, fore, the remainder, which de

though it certainly must happends entirely upon the deter

pen some time or other, yet mination of the preceding

may not happen till after the estate by it, is contingent. 3

determination of the particular Rep., 20 a. Et. vid. Arton v.

estate; as if a lease be made to Hare, Poph. 97. Large's case,

I. S. for life, and after the death 3 Leon. 182. 2d. Where some

of J. D. the lands to remain to uncertain event, unconnected

another in fee; now it is certain with, and collateral to the do

that J. D. must die some time

against public policy, double or too remote.

The reason why a contingent remainder can only be created ic take effect after a freehold must be found by a reference to thFeudal principles of land-owneror other; but his death may not

Pollexf. 67. But if the term of happen till after the determina

years is so short, as to leave a tion of the particular estate by

common possibility, that the the death of J. S. and therefore

life on which it is determinable such remainder is contingent.

may exceed it, the remainder 3 Rep. 20 a. And 4th. Where

will be deemed contingent. it is limited to a person not

And therefore, if an estate is ascertained, or not in being at

limited A. for twenty-one the time when such limitation

years, if he shall so long live, is made; as if a lease be made

and after his death to B. in fee, to one for life, remainder to the

this is a contingent remainder; right heirs of S. S. Supra, 378 a.

because there is no im robaEt vid. 3 Rep. 20 a. So where

bility in supposing that the life a remainder is limited to the

may exceed the term. 3 Rep. first son of B. who has no son

20 a. Et vid. Beverley v. Beverley then born; here B, may never

2 Vern. 131. Fearn. Cont.Rem. have a son, or if he should, the

20, 23. The exceptions to the particular estate may deter

fourth sort of contingent remine before the birth of such

mainders arise, first, from a son; therefore this remainder is

rule of law, that wherever the contingent. 1 Ventr. 806. So

ancestor takes an estate of if an estate be liruited to two

freehold, and a remainder is for life, remainder to the sur

thereon limited in the same vivor of them in fee, the re

conveyance to his heirs, or to mainder is contingent; because

the heirs of his body, such reit is uncertain which of them

mainder is immediately exewill be the survivor. Cro. Car.

cuted in the ancestor so taking 102. Fearn. Cont. Rem. 6. It

the freehold, and is not conshould however, be observed,

tingent. Shelley's case, 1 Rep. that there are some casc3 which

104. Fearn. Cont. Rem. 3o. fall literally under one or other

Infra n. (P). Secondly, from a of the 3d and 4th descriptions,

principle that an ultimate limiwhich are nevertheless ranked

tation to the right heirs of the among vested estates.

With

grantor will continue ip him, as respect to those c ses which are

his old reversion, and not as a exceptions to the third kind of

remainder, although the freecontingent ro aindc:s, it has

hold be expressly limited from been hel ., that a limitation to

him. Post, 22 b. Thirdly, A. for eighty or ninet; years, if from the respect which the law he shall so long ive, with a

pays to the intent of a testator, remainder over, after the death where it can be plainly collected of A., to B. in ice, is not deemed

from his will, that he used the a contingent remainder; for

words heirs of the body, as a the mero possibility, that a life

descriptio persona, or sufficient in being may tudure for eighty

designation of the person for or ninety years after such å

the remainder to vest, notwithlimitation is made, does not

standing the general rule, that amount to a degree of uncer

nemo est hæres viventis. Fearn. tainty sufficient to render a

Cont. Rem. 319. But the cases remainder contingent. Napper

falling under this last excepv. Sanders, Hutt. 119. Lord

tion, have been either, where Derby's case, Lit. Rep. 370.

the limitation to the heir special

ship. Under the Feudal system, seisin must exist at all times in 3omu person and ceisin could only be transferrod at the time the estate was created. In the case of a freehold estate followed by a remainder, the seisin

has been qualified by the words With respect to the effect of con"now living,” or some other

tingent remainders intervening circumstances have appeared

between the particular estate in the will, to manifest the

and the remainders over, in testator's intention, that the

making them contingent, it is estate should vest. See Bur

observable, that wherever a chett v. Durdant, 3 Ventr. 311.

contingent remainder is limited, Cart. 154. Long v. Beaumond,

which is followed by another 1 P. Wms. 229. 1 Eq. Abr.

limitation over, if the con114. 2 Eq. Abr. 331. 1 Bro.

tingent limitation be not in fee, P. C. 489. Goodright v. White,

the subsequent limitation may 2 BI. Rep. 1010. And it is also

be vested, if it be made to a observable, that there was not

person in esse. Fern. Cont. one of these cases in which the

Rem. 338. As upon a feoffment ancestor took the legal estate

to the use of the feoffees during of freehold. To sum up the

the life of A., and after his distinctions between vested and

death, to the use of his first and contingent remainders, it may

other sons successively in tail, be observed, that wherever the

with several remainders over; preceding estate is limited, so

and A. having no sons at the as to determine on an event

time of the feoffment, it was which certainly must happen;

resolved that all the uses limand the remainder is so limited

ited to persons not in esse were to a person in esse and ascer

contingent, but the uses to pertained, that the preceding es

sons in esse were vested immetate may, by any means, deter

diately; and that the contingent mine before the expiration of

uses when they should come in the estate limited in remainder,

esse, would vest by interposisuch remainder is vested. Bers

tion, if the estate for life, which ington v. Parkhurst, 3 Atk. 135.

ought to support them, was not Willes, 327. 6 Bro. P. C. 352.

disturbed. Chudleigh's case, On the contrary, wherever the

1 Rep. 137. And where, in the preceding estate (except in the

same conveyance, an estate for cases before-mentioned, as ex

life is limited to a person, and ceptions to the descriptions of a

after that a contingent recontingent remainder) is limit

mainder to another, followed by ed so as to determine only on

a remainder to the heirs or heirs an event which is uncertain,

special of the first tenant for and may never happen;

life, this last limitation shall be wherever the remainder is lim

or

esteemed executed only sub ited to a person not in esse, or

modo; that is, in such manner as not ascertained; or wherever it

to open and separate itself from is limited so as to require the

the first estate for life, when the concurrence of some dubious

contingency happens. Lewis uncertain event, independent

Bowles' case, 11 Rep. 80. The of the determination of the pre

preceding cases are instances, ceding estate and duration of

where the contingency of the the estate limited in remainder,

interve ring remainders arose to give it a capacity of taking

from their being limited to pereffect, then the remainder is

sons not in esse. But if there be contingent. Fearn. Cont.Rem.

a remainder limited to a person 330, 331.

in esse, so as to depend on a

Vol. VI.

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