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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.

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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.2

"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 12 Bl. Com., 169. Fearn. Cont. Rem.,

2 Cro. Dig., 260, 261.

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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 contingent.'

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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.

Est., 32, 33. Note to Thomas' Edition of Coke Institute. According to Mr. Fearne, there are four kinds of contingent remainders:-1st. Where the remainder depends entirely on a contingent determination of the preceding estate itself. As if A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. then to remain over in fee; here the particular estate is limited to determine on the return of C. and only on that determination of it is the remainder to take effect; but that is an event which possibly may never happen; and, therefore, the remainder, which depends entirely upon the determination of the preceding estate by it, is contingent. Rep., 20 a. Et. vid. Arton v. Hare, Poph. 97. Large's case, 3 Leon. 182. 2d. Where some uncertain event, unconnected with, and collateral to the de

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termination of the preceding estate, is, by the nature of the limitation, to precede the remainder; as in the case of Doe d. Planner v. Scudamore, cited above, and in the instance put by Lord Coke of a lease for life to A., B., and C., and if B. survive C. then the remainder to B. and his heirs; here the event of B.'s surviving C. does not affect the determination of the particular estate; nevertheless, it must precede and give effect to B.'s remainder; but as such event is dubious, the remainder is contingent. Fearn. Cont. Rem. 4, 5. 3d. Where it is limited to take effect upon an event, which, though it certainly must happen some time or other, yet may not happen till after the determination of the particular estate; as if a lease be made to I. S. for life, and after the death of J. D. the lands to remain to another in fee; now it is certain that J. D. must die some time

against public policy, double or too remote.

The reason why a contingent remainder can only be created to take effect after a freehold must be found by a reference to the Feudal principles of land-owner

or other; but his death may not happen till after the determination of the particular estate by the death of J. S. and therefore such remainder is contingent. 3 Rep. 20 a. And 4th. Where it is limited to a person not ascertained, or not in being at the time when such limitation is made; as if a lease be made to one for life, remainder to the right heirs of J. S. Supra, 378 a. Et vid. 3 Rep. 20 a. So where a remainder is limited to the first son of B. who has no son then born; here B. may never have a son, or if he should, the particular estate may determine before the birth of such son; therefore this remainder is contingent. 1 Ventr. 806. So if an estate be limited to two for life, remainder to the survivor of them in fee, the remainder is contingent; because it is uncertain which of them will be the survivor. Cro. Car. 102. Fearn. Cont. Rem. 6. It should however, be observed, that there are some cascs which fall literally under one or other of the 3d and 4th descriptions, which are nevertheless ranked among vested estates. With respect to those coses which are exceptions to the third kind of contingent remainders, it has been held, that a limitation to A. for eighty or ninety years, if he shall so long ive, with a remainder over, after the death of A., to B. in fee, is not deemed a contingent remainder; the merc possibility, that a life in being may cadure for eighty or ninety years after such a limitation is made, does not amount to a degree of uncertainty sufficient to render a remainder contingent. Napper v. Sanders, Hutt. 119. Lord Derby's case, Lit. Rep. 370.

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Pollexf. 67. But if the term of years is so short, as to leave a common possibility, that the life on which it is determinable may exceed it, the remainder will be deemed contingent. And therefore, if an estate is limited to A. for twenty-one years, if he shall so long live, and after his death to B. in fee, this is a contingent remainder; because there is no improbability in supposing that the life may exceed the term. 3 Rep. 20 a. Et vid. Beverley v. Beverley 2 Vern. 131. Fearn. Cont.Rem. 20, 23. The exceptions to the fourth sort of contingent remainders arise, first, from a rule of law, that wherever the ancestor takes an estate of freehold, and a remainder is thereon limited in the same conveyance to his heirs, or to the heirs of his body, such remainder is immediately executed in the ancestor so taking the freehold, and is not contingent. Shelley's case, 1 Rep. 104. Fearn. Cont. Rem. 30. Infra n. (P). Secondly, from a principle that an ultimate limitation to the right heirs of the grantor will continue in him, as his old reversion, and not as a remainder, although the freehold be expressly limited from him. Post, 22 b. Thirdly, from the respect which the law pays to the intent of a testator, where it can be plainly collected from his will, that he used the words heirs of the body, as a descriptio persona, or sufficient designation of the person for the remainder to vest, notwithstanding the general rule, that nemo est hæres viventis. Fearn. Cont. Rem. 319. But the cases falling under this last exception, have been either, where the limitation to the heir special

ship. Under the Feudal system, seisin must exist at all times in some person and ceisin could only be transferred 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 "now living," or some other circumstances have appeared in the will, to manifest the testator's intention, that the estate should vest. See Bur

chett v. Durdant, 3 Ventr. 311. Cart. 154. Long v. Beaumond, 1 P. Wms. 229. 1 Eq. Abr. 114. 2 Eq. Abr. 331. 1 Bro. P. C. 489. Goodright v. White, 2 Bl. Rep. 1010. And it is also observable, that there was not one of these cases in which the ancestor took the legal estate of freehold. To sum up the distinctions between vested and contingent remainders, it may be observed, that wherever the preceding estate is limited, so as to determine on an event which certainly must happen; and the remainder is so limited to a person in esse and ascertained, that the preceding estate may, by any means, determine before the expiration of the estate limited in remainder, such remainder is vested. Berrington v. Parkhurst, 3 Atk. 135. Willes, 327. 6 Bro. P. C. 352. On the contrary, wherever the preceding estate (except in the cases before-mentioned, as exceptions to the descriptions of a contingent remainder) is limited so as to determine only on an event which is uncertain, and may never happen; wherever the remainder is limited to a person not in esse, or not ascertained; or wherever it is limited so as to require the concurrence of some dubious uncertain event, independent of the determination of the preceding estate and duration of the estate limited in remainder, to give it a capacity of taking effect, then the remainder is contingent. Fearn. Cont.Rem. 330, 331.

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With respect to the effect of contingent remainders intervening between the particular estate and the remainders over, in making them contingent, it is observable, that wherever a contingent remainder is limited, which is followed by another limitation over, if the contingent limitation be not in fee, the subsequent limitation may be vested, if it be made to a person in esse. Fern. Cont. Rem. 338. As upon a feoffment to the use of the feoffees during the life of A., and after his death, to the use of his first and other sons successively in tail, with several remainders over; and A. having no sons at the time of the feoffment, it was resolved that all the uses limited to persons not in esse were contingent, but the uses to persons in esse were vested immediately; and that the contingent uses when they should come in esse, would vest by interposition, if the estate for life, which ought to support them, was not disturbed. Chudleigh's case,

1 Rep. 137. And where, in the same conveyance, an estate for life is limited to a person, and after that a contingent remainder to another, followed by a remainder to the heirs or heirs special of the first tenant for life, this last limitation shall be esteemed executed only sub modo; that is, in such manner as to open and separate itself from the first estate for life, when the contingency happens. Lewis Bowles' case, 11 Rep. 80. The preceding cases are instances, where the contingency of the intervening remainders arose from their being limited to persons not in esse. But if there be a remainder limited to a person in esse, so as to depend on a

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