damages are fully paid: and during the time he so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate. defeasible as soon as the debt is levied. But it is remarkable that the feudal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores, (f) it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the statute therefore of Westm. 2, permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same year) (g) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner. (19) I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke. (h) "These tenants have uncertain interests in lands and tenements, and yet they have but chattels and no freeholds;" (which makes them an exception to the general rule)" because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors: for ut is similitudinary; and though to recover their estates, they shall have the same remedy (by assize) as a tenant of the freehold shall have, (i) yet it is but the similitude of a freehold, and nullum simile est idem. This indeed [*162] only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold; but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable from a principle of natural equity, that the security and remedy should be vested in those to whom the debts if recovered would belong. For upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors: (k) because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund out of which he has directed them to be paid.

CHAPTER XI.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

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:

(f) 18 Edw. I.

(g) 13 Edw. I

(h) 1 Inst. 42, 43.

(i) The words of the statute de mercatoribus are, puisse porter bref de novele disseisine, auxi sicum de franktenements.

(k) Co. Litt. 42.

(19) The remedy by elegit has been greatly enlarged by recent statutes, which will be referred to hereafter.

and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion. (1)

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.(2) *As if a

man seised in fee-simple granteth lands to A for twenty years, and, after [*164]

the determination of the said term, then to B and his heirs forever: 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. (a) 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 forever; 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 in 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: (b) because a fee-simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath 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 407. is part of 100l. and 60%. is the [*165]

remainder of it; wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole 1007. is appropriated, there can be any residue subsisting.

(1) An estate in possession exists where the owner is entitled to immediate possession; an estate in expectancy is where the right to possession is postponed to a future period.

A remainder is a future estate, to take effect in possession on the determination of a precedent estate which is created by the same instrument. It is a vested remainder when there is a person in being who would have an immediate right to possession upon the ceasing of the precedent estate. It is a contingent remainder if the person to whom, or the event upon which it is limited, is uncertain.

A reversion is the residue of an estate left in the grantor, or in the heirs of a testator, and to which he or they will succeed in possession on the determination of a particular estate granted or devised by him.

(2) The law regarding remainders has been much changed by statutes in some of the American states, and without attempting to point out the changes specifically, the reader is referred to the 57th Lecture of Chancellor Kent, and to 2 Washb. on Real Property, 264. The author last named gives references to the statutes of the several states.

VOL. I.-56

441

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. (c) 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 interests, which were considered in the light of mere contracts by the ancient law, (d) 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 an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder; (e) because at *common law no freehold in [*166] lands could pass without livery of seisin; 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 forever from the end of three years next ensuing, is void.(3) 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; hereby the livery of 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 præsenti, 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 a lease at will is not held to be such a particular estate as will support a remainder over. (f) 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 the remainder be a chattel interest, (f) 8 Rep. 75. (g) Dyer, 18.

[*167]
(c) Co. Litt. 49. Plowd. 25

(d) Raym. 151.

(e) 5 Rep. 94,

(3) This doctrine, however, does not apply to conveyances having operation under the statute of uses; such as bargain and sale, covenant to stand seized, &c., under which the use, until the time limited, will result to the bargainor and his heirs. And by statute in many of the American states the rule as stated in the text is abolished or essentially modified. See 2 Washb. Real Prop. 264.

though perhaps the deed of creation 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) (4) as where the particular estate is an estate for the life of a person not in esse; (k) or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate; (7) 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 even limited on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold 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 particular estate, to relate and inure to him in remainder, as both are but one estate in law. (0)

*3. A third rule respecting remainders is this: that the remainder must vest in the grantee during the continuance of the particular estate, [*168]

or eo instanti that it determines. (p) (5) 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 forever. (7) 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 supported must fall to the ground, if once its support be severed from it. (6)

(h) Raym. 151.

(7) 1 Jon. 58.

(i) Co. Litt. 298. (k) 2 Roll. Abr. 415. (m, Litt. § 671. Plowd. 25. (n) Litt. § 60. (p) Plowd. 25. 1 Rep. 26. (g) 1 Rep. 138. (r) 3 Rep. 21.

(0) Co. Litt. 49..

(4) It is provided otherwise by statute in several of the Prop. 266.

United States. 2 Washb. Real
See 4 Kent, 246.

(5) This rule is also changed by statute in some of the states. (6) [By the feudal law, the freehold could not be vacant, or, as it was termed, in abeyance. There must have been a tenant to fulfill the feudal duties or returns, and against whom the rights of others might be maintained. If the tenancy once became vacant, though but for one instant, the lord was warranted in entering on the lands; and the moment the particular estate ended, by the cession of the tenancy, all limitations of that estate were also at an end. From these principles are deduced the rules, that no freehold remainder can be well created, unless it is supported by an immediate estate of freehold, vested in some person actually in

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. [*169] 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 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. (s) (7) 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 whom the remainder could vest. (t) But, to remedy this hardship, it is enacted by statute 10 and 11 Wm. 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) (8)

(8) Ibid. 20.

(t) Salk. 228. 4 Mod. 282.

(u) See Book I, p. 130.

existence, who may answer the præcipe of strangers; and also, that it is necessary the remain der should take effect during the existence of such particular estate, or co instanti that it determines. Watk. on Conv. 94. But, as to a contingent remainder for years, there does not appear to be any necessity for a preceding freehold to support it. For, the remainder not being freehold, no such estate appears requisite to pass out of the grantor, in order to give effect to a remainder of that sort. And although every contingent freehold remainder must be supported by a preceding freehold, yet it is not necessary that such preceding estate continue in the actual seisin of its rightful tenant; it is sufficient if there subsists a right to such preceding estate, at the time the remainder should vest; provided such right shall be a present right of entry, and not a right of action only. A right of entry implies the undoubted subsistence of the estate; but when a right of action only remains, it then becomes a question of law whether the same estate continues or not: till that question be determined, upon the action brought, another estate is acknowledged and protected by the law. See Fearne, ch. 3. Where the legal estate is vested in trustees, that will be sufficient to support the limitations of contingent remainders: see post, pp. 171, 172; and there will be no necessity for any other particular estate of freehold; nor need the remainders vest at the time when the preceding trust limitations expire. Habergham v. Vincent, 2 Ves. Jun. 233; Gale v. Gale, 2 Cox, 153; Hopkins v. Hopkins, Ca. Temp. Talb. 151.]

(7) [See in general the celebrated work of Fearne on Contingent Remainders and Executory Devises, edited by Butler; 2 Cruise Dig. 270.

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 till after the determination of the preceding estate; for if the preceding estate (unless it be a term) determine before such event or condition happens, the remainder will never take effect. Fearne Cont. Rem. 3; Bridgın. index, title Remainder.]

It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment which marks the difference between a vested and contingent interest. 4 Kent, 206; 2 Washb. Real Prop. 242.

(8) [The case of Reeve v. Long, 1 Salk. 227, which gives occasion to the statute mentioned in the text, was to the following purport: John Long devised lands to his nephew, Henry, for life, remainder to his first and other sons in tail, remainder to his nephew, Richard, for life, &c. Henry died without issue born, but leaving his wife pregnant. Richard entered as in his remainder, and afterwards a posthumous son of Henry was born. The guardian of the infant entered upon Richard: and it was held by the courts of common pleas and of king's bench, that nothing vested in the