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 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 remainder-man 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 praesenti, 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 lease at will is not held to be such a particular estate as will support a remainder over. (ƒ) 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 in the very instant in which it is made: (g) or if [167] the remainder be a chattel interest, though perhaps the deed of cre ation 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 the person not in esse; (k) or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate; (1) 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 free f 8 Rep. 75. g Dyer, 18. k 2 Roll. Abr. 415. 11 Jon. 58. h Raym. 151. (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 comnience in futuro; as a bargain and sale to A. and his heirs, from and after Michaelmas-day 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 hold 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 parti cular estate, to relate and enure to him in remainder, as both are but one estate in law. (0) 3. A third rule respecting remainders is this: that the remainder [168] 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 for ever. (9) 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 sup ported 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 contin gent 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 [169] 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 no present interest passes) are where the estate in remainder is limited to take effect, either to a dubi ous 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) 3 (3) 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 for 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 Con Rem. 216. 7 ed. 2 Ves. J: 257 "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 to Tor. I 65 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 posthun.oús 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)* 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 made to A for life, remainder to the heirs of B; now, [170] if A dies before B, the remainder is at an end; for during B's life he has no heir, nemo est haeres 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, 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 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) A limitation of a remainder to a bastard before it is born, is not good: (a) for though the law allows the possibility of having bastards, it presumes 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 t Salk. 288. 4 Mod. 282. x Co. Litt. 378. y Hob. 33. u See Book I.. 130. w 2 Rep. 51. a Cro. Eliz.509. after the determination of the preceding estate (unless it be a term) determinable before such event or condition happens, the remainder will never take effect." Fearne Cont. Rem. 3. Bridgm index, title Remainder. Chilly (4) See the case of Reeve v. Long, 1 Salk. 227 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, [171] 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 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. (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. 5 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. 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 particular estate in possession, sufficient to [172] 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, 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 at h 1 Rep. 130, c 1 Rep. 66. 135. d See Moor. 486. 2 Roll. Abr. 797. pl. 12. 2 Sid. 159. 2 Chan. Rep. 170. (5) 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. Christian. (6) Trustees to support contingent remainders are not essential in copyhold, the lord's estate sufficing. 10 Ves. 282. 16 East, 406. (7) As to executory devises in general, 6 Cruise, index, Devise; 2 Saund. index, Executory Devise; Fearne on Ex. Dev.; and Preston's Estates. tempt 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 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. It differs from a remainder in three very material points; [173] 1. That it needs not any particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a feesimple. 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 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. (ƒ) 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 [174] 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: (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 of lives in being, and he and twenty years afterwards. As when lands e 1 Sid. 153. f Cro. Jac. 592. 2 Mod. 269. h 12 Mod, 287, 1 Vern. 164. i Salk. 229 |