CH. 1, s. 3. reverts to the person or the representatives of the person PT. II. T. 9, who created the partial interest (w). 859. The whole or a part of this reversion or undisposed of portion of ownership may be made the subject of a disposition by a subsequent instrument. 860. reversion, or of it, an interest of it, is con- vested and And contingent. when A reversion, which remains undisposed of, is always When a vested (); and so a reversion, or the immediate part when simply transferred, is always vested; but a tingent interest may be created out of a reversion. where a future interest is of such a nature, that, if it had been limited by the same instrument by which a preceding partial interest was created, it would have been a vested remainder expectant on such preceding interest, it will, if limited by a subsequent instrument, constitute the reversion, or the immediate part of the reversion, expectant on such preceding interest, and will be a vested interest. But where a future interest is of such a nature, that, if it had been limited by the same instrument by which a preceding partial interest was created, it would have been a contingent remainder or other executory interest, it will, if limited by a subsequent instrument, be an executory interest of some kind other than a contingent remainder, in relation to such preceding interest (y). Hence, when the whole of the reversion, or that part of it which immediately adjoins a partial interest previously created, is made the subject of disposition by a subsequent instrument, and limited to take effect in possession (subject only, in the case of real estate, to any term of years or contingent interest that may intervene) simply on the regular expiration of the partial interest previously created, such (w) See 2 Bl. Com. 175; 2 Cruise T. 17, § 1-3; Watk. Conv. 3rd ed. by Prest. 108. (x) See 2 Cruise T. 17, § 13. tinctions on the subject of rever- c. 9. CH. 1, s. 3. PT. II. T. 9, limitation passes a vested interest. But a limitation of the whole or of a part of such undisposed of portion of ownership in any other way passes only an executory interest; as for instance, where the subsequent disposition of the whole of such undisposed of portion of ownership is made to depend on a contingency unconnected with the expiration of the partial interest previously created, or where the subsequent disposition affects only that part of such undisposed of portion of ownership, which remains to be had from and after a time subsequent to the expiration of the partial interest previously created. 861. No reversion on a qualified fee. Reversion forming part of a Where a gift is made of a qualified or base fee, no reversion remains in the donor (≈), but only a possibility of reverter. 862. Where a person having only a particular estate in lands, Particular grants a smaller estate than his own, he has a reversion left in himself (a). 863. estate. Reversion on an estate for years. Rent incident to Where a person creates an estate for years, by demise at common law, he has a reversion as soon as the lessee enters, and not before. But when an estate for years is created by a conveyance deriving its effect from the Statute of Uses, the person to whom such estate is limited acquires the actual possession without entry; and consequently the person who creates the estate for years has a reversion immediately upon the execution of the conveyance (b). 864. Rent reserved is incident to the reversion, though not a reversion. inseparably so. By special words, the reversion may be granted away, reserving the rent. But by a general grant of the reversion, the rent will pass with it as incident thereunto; for the incident passes by the grant of the principal: accessiorium sequitur suum principale (c). 865. (z) 2 Cruise T. 17, § 6. (b) Id. § 7. (c) 2 Bl. Com. 176. SECTION IV. Of Executory Interests other than Contingent Remainders or Quasi Remainders. Ch. 1, s. 4. Contingent remainders are executory interests, as op- PT. II. T. 9, posed to vested interests. But the term executory interests is generally used to denote such executory interests as are not limited by way of remainder. Of such executory interests there are several kinds, to which it is convenient, and indeed necessary, if we would avoid confusion of ideas, to assign distinct specific names, even where it has not been usual to do so. 866. interests, One kind is a description of interest, which, when created Springing by way of use, has been termed a springing use, and which may therefore be conveniently termed a springing interest, as that term will include such interests when created by way of devise, as well as those which are created by way of use in a deed. 867. "A springing interest in real estate is an interest by way of use or devise, to take effect at a future time, without being supported by, and without affecting, any other interest of the measure of freehold" (d). Of these interests, there are several species (e). 868. But they are all created by way of use or devise. They would be void if inserted in a deed at common law. For, at the common law an estate of freehold in corporeal hereditaments could not be made to commence in futuro, otherwise than in remainder immediately after the regular expiration of another estate of freehold in possession; because the law was anxious that it should always be matter of notoriety who was the owner of the land, that the lord might be certain on whom he was to call for the (d) See Smith's Executory Interests annexed to Fearne, § 117. (e) See Id. § 118-127. CH. 1, s. 4. Pr. II. T. 9, services due for the estate; and that, if the rightful claimant were excluded, he might know against whom to bring his action, which could only be against the tenant of the freehold for the time being (ƒ). Although when they are by way of use, they are sometimes termed springing uses, yet when they are by devise, they are usually designated by the generic name of executory devises (g). 869. interests. A springing interest in personal estate is "an interest by way of bequest or of trust, to take effect at a future time, without being preceded by, and without affecting any other interest. Limitations of this kind, by way of bequest, are usually designated by the generic name of executory bequests (h). 870. Alternative Another kind of executory interest is what may be termed an alternative interest. This is "an interest that is only to vest in case the next preceding interest should never vest in any way, through the failure of the contingency on which such preceding interest depends. As where a testator devises to A. for life; and if he have issue male, then to such issue male and his heirs for ever; and if he die without issue male, then to B. and his heirs for ever: or, where a testator bequeaths personal estate to the first son of A., and if A. should have no son, then to B." (i). 871. These interests "considered in conjunction with those for which they are substitutionary, are sometimes termed contingencies with a double aspect" (k). 872. But a limitation which is simply an alternative limitation, will be allowed to take effect, if, in any way, the next (f) Burton, § 22; 1 Pres. Shep. T. 212; 4 Cruise T. 32, c. 4, § 5, 6; Watk. Conv. 3rd ed. by Prest. 31-3, 73, 91, 92, 94; Co. Litt. 217 a. (7) Smith's Executory Interests annexed to Fearne, § 127 a. (h) Id. § 127 b. CH. 1, s. 4. preceding limitation fails to take any effect, even though PT. II. T. 9, the precise event on which such alternative limitation is to take effect never happens (). 873. under tive limita tions. Another kind of executory interest is what may be Interests termed (for want of any other specific term), an interest augmentaaugmented in a given event, or an interest under an augmentative limitation or under a limitation causing "an enlargement of an estate upon a condition." This is an interest arising by deed at common law, under which a term for years previously created in things that, under the old law, lay in livery, or a term for years in things that lay in grant, or a preceding estate for life or in tail, created by the instrument containing such limitation, is, in a given event to be absorbed by, or transmuted into, a larger estate, of the same quality, in case such preceding estate remains unaliened, and unchanged in quality, till the fulfilment of the condition (m). 874. under limitations. Another kind is what may be termed (for want of any Interests other specific term) an interest diminished in a given event, diminuent or an interest under a diminuent limitation. This is an interest under "a clause by which it is provided, whether in a deed at common law or by way of use or devise, that, in a particular event, an interest previously given by the same instrument shall be transmuted into one of a lower denomination. As where a man makes a lease for life, and if the lessee within one year pay not 207. that he shall have but a term for two years" (n). 875. Another kind of executory interest is an interest under a Interests conditional limitation (o). 876. under conditional limitations. the term The term executory devise, bequest, or limitation, when Senses of used in contradistinction, as it generally is, not only in a executory (2) Smith's Ex. Int. § 694. On the subject of alternative limitations, see also Id. Part II. c. 21, 22, 24. (m) Smith's Executory Interests, § 137; see also § 138-146. (0) See supra, par. 168-171. |