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iner. A remainder, it will be remembered, is an estate so limited as to come into effect and enjoyment at the natural expiration of a prior estate, less than a fee. But it is competent to create by devise an estate in one and his heirs, and yet so limit it, that upon the happening of some condition or contingent event, his estate shall cease and go over to another. Now the first cannot be a particular estate, for it is in its terms a fee, and if the condition or event do not happen, it will forever remain a fee. The second cannot be a remainder, because it is to take effect, not at the natural determination of the first, for that being a fee, such a determination could never happen, but it comes in and destroys or defeats the first estate before its natural expiration, and becomes substituted in the place of the other. Nor is there a conditional estate at common law in the first taker, for if there was, no one but the heirs or devisees of the devisor could take advantage of it, and then only by regaining the original estate by entry, which would not go over to the second devisee named, but remain in the original owner or his heirs. The courts therefore hold, that though an estate thus limited cannot take effect as a remainder, it shall be held by the first taker as a conditional limitation, that is, his estate though nominally a fee, is limited in its duration by the happening of the condition or contingent event; that as soon as that happens, if at all, his estate ceases, and then the residue of the fee passes like a remainder over to the devisee, who, by the devise, is to take upon the happening of such event. This, however, is rather by way of explaining, for the present, wherein such a limitation differs from a remainder, than to enter into any detail of the rules of law applicable to conditional limitations. And it may be remarked, though hereafter to be repeated, that a limitation is never construed as an executory devise, when it is capable of taking effect as a remainder, nor is a remainder ever deemed to be a contingent one, when it can be construed to be vested, within the intention of the one who creates it.2

1 Fearne, Cont. Rem. 3, 407, and Butler's note, 10; Watk. Con v. 179, Coventry's note, 204 ; Proprs. Brattle Sq. Church v. Grant, 3 Gray, 149; Watk. Descent, 2d ed. 248; 2 Cruise, Dig. 238; 1 Prest. Est. 91 ; Cogan v. Cogan, Cro. Eliz. 360 ; Pells v. Brown, Cro. Jac. 590; 2 Fearne, Cont. Rem. Smith's ed. 158–160. See post, Sect. 7, pl. 2.

2 Blanchard v. Blanchard, 1 Allen, 225 ; Johnson v. Valentine, 4 Sandf. 36; Man. derson v. Lukens, 23 Penn. St. 31 ; Doe v. Selby, 2 B. & C. 930 ; Leslie v. Marshall, 31 Barb. 566 ; post, p. *251.

*13. The effect of the foregoing doctrine would be, that [*227] had estates tail remained as they were at common law, there could never be a remainder limited upon the failure of issue in the tenant in tail. Such estates were deemed conditional fees determinable only upon the donee's dying without issue. But since the statute de donis turned the estate of the tenant in tail theoretically into an estate for life, which is certain to have a natural termination at his death, it is entirely compatible with the rules of law to limit a remainder after his death, to take effect if he dies without issue. And the English cases to this effect will be found to be very numerous and common.1

14. The term Remainder, it should be observed, is not one of art, which it is necessary to employ in creating an estate in expectancy, such as has been described. Any form of expression indicating the intention of the grantor or devisor to do this, would be sufficient.2

15. It should be remembered, too, that no degree of uncertainty as to the remainder-man's ever enjoying the estate which is limited to him by way of remainder, will render such remainder a contingent one, provided he has, by such limitation, a present absolute right to have the estate, the instant the prior estate shall determine. Thus if, for illustration, an estate is given to A for years, remainder to B for years or life, remainder to C for life, each of these persons being alive and having a perfect right to the land in the order named, B or C, for instance, being only postponed in the enjoyment of his estate till the preceding tenant's term or life shall end, they have each of them a vested remainder. And yet C may die before B's estate, or B before A's estate shall be determined, so that neither may ever, in fact, enjoy any benefit or estate whatever in the *land. On the other hand, had the estate to C been [*228] in fee instead of for life, though he might not have lived to enjoy it, it would descend to his heirs, who would take in his place ; or whether in fee or for a less estate, he might have conveyed it in

1 Willion v. Berkley, Plowd. 235; Wilkes v. Lion, 2 Cow. 333, 392; Hall v. Priest, 6 Gray, 18.

? 2 Cruise, Dig. 203.

8 Parkhurst v. Smith, Willes, 338; Watk. Conv. 173, Coventry's note ; 2 Flint. Real Prop. 267; Wms. Real Prop. 207; Fearne, Cont. Rem. 216; Williamson v. Field, 2 Sandf. Ch. 533; Manderson v. Lakens, 23 Penn. St. 31.

his lifetime by deed, and his grantees would take the same rights in respect to it that he himself possessed. 1

16. An estate is accordingly said to be vested in one in possession, when there exists in his favor a right of present enjoyment. It is vested in interest, when there is a present fixed right of future enjoyment. In this sense, therefore, a vested remainder is, to all intents, an estate commencing in presenti, though to be enjoyed in futuro.3

17. “ The present capacity of taking effect in possession, if the possession were now 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.”+ By capacity, as thus applied, is not meant simply that there is a person in esse interested in the estate, who has a natural capacity to take and hold the estate, but that there is further no intervening circumstance, in the nature of a precedent condition, which is to happen before such person can take. As, for instance, if the limitation be to A for life, remainder to B, B has a capacity to take this at any moment when A may die. But if it had been to A for life, remainder to B, after the death of J. S., and J. S. is still alive, B can have no capacity to take till J. S. dies. When J. S. dies, if A is still living, the remainder becomes vested, but not

before. And as the common law stood, if A died in the life [*229] of *J. S., the remainder in B would fail, although he was

then alive..

* NOTE. — In view of the prevalent disposition of the courts to hold remainders vested, rather than contingent, upon grounds of general policy, it may seem somewhat remarkable, that the courts of New Hampshire have recently adopted a principle of contingency in respect to remainders, which does not appear to have been heretofore recognized in other quarters, or, even to a casual observer, to find support in the authority on which the doctrine is said to rest. The principle is this, that where an estate is limited to .one for life, or during his natural life, and after his decease to another, though an ascertained person

1 Wms. Real Prop. 207; 2 Cruise, Dig. 203, n.

3 Watk. Conv. 173, Coventry's note ; 4 Kent, Com. 202; Fearne, Cont. Rem. 2; Marshall v. King, 24 Miss. 90.

8 2 Flint. Real Prop. 259; Pearce v. Savage, 45 Me. 101.

* Fearne, Cont. Rem. 216 ;&Co. Lit. 265, note 213. See 2 Greenl. Cruise, Dig. 210, n.; Brown v. Lawrence, 3 Cush. 390, 397.

6 1 Prest. Est. 70; Co. Lit. 265, note 213 ; ? Cruise, Dig. 210; 2 Crabb, Real Prop. 966.

18. From the fact that while a remainder is contingent by reason of the person who is to take it not being ascertained, it is not capable

then in being, there is such a possibility of the first taker committing a forfeiture of his estate, or surrendering it, or its merging in the inheritance during his life, that the remainder over is a contingent and not a vested one. And this too, while so many of the states are discarding the doctrine of contingent remainders being affected by defeating the particular estates on which they rest. In the case referred to, of Hall v. Nute, 38 N. H. 422, approved of as settled law in Hayes v. Tabor, 41 N. H. 521, the facts were these: A testator devised lands to Esther Tuttle, “ to hold as long as she lives a natural life, also the land which I have given to Esther Tuttle as long as she lives, after her decease I give and bequeath the same to my son, William Tuttle, as long as he lives a natural life, and no longer, and after his decease, I give and bequeath the same to his heirs and assigns.” These being the terms of the devise, the opinion of the court is given, that no injustice may be done to the reasoning or conclusions upon these premises. “Was the remainder limited to William Tuttle vested or contingent? The land is devised to Esther Tuttle, as long as she lives, and after her decease to William Tuttle, as long as he lives a natural life, and no longer, and after his decease to his heirs. William Tuttle, under this devise, could not take the estate limited to him in remainder until the death of Esther Tuttle. If her estate were destroyed during life, by forfeiture, or by surrender and merger in the inheritance, the remainder limited to William Tuttle could never vest in possession, though he might survive his mother, because there would be no particular estate to support the remainder. If the remainder had been limited on the life estate of Esther Tuttle, then, whenever that estate determined, whether by her death or otherwise, William Tuttle, while he lived, would have been an ascertained person qualified to take, and the remainder would have been a vested and not a contingent remainder. But this remainder is not limited to take effect on the determination of Esther Tuttle's estate for life, but can only take effect on and after her death, and this makes the remainder contingent." This doctrine is further carried out in the case, and W. T. having by deed released his interest in the land to E. T., it was held to convey nothing, and did not estop him from claiming the land after E. T.'s death: “A vested remainder may be conveyed by deed operating on the estate at the time when the deed is made, but not a contingent remainder.”

Chancellor Kent, on the other hand, in illustrating by example what would be a vested remainder, says: A grant of an estate to A for life, with remainder in fee to B, or to A for life and after his death to B in fee, is a grant of a fixed right of immediate enjoyment in A, and a fixed right of future enjoyment in B.” (4 Kent, Com. 202). So Mr. Butler, in his note to Fearne on Remainders (p. 2), says: "If A convey or devise to C for life, and after C's decease to B and his heirs, B's estate is vested in him in interest.” In a case found in the 12 Am. Law Reg. 262 (to be reported in 40 Barb.), Carter v. Hunt, the devise was as follows: “I give and devise to J. M. the house and lot I now occupy, to be

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of alienation, as well as because, at common law, it was always possible to defeat such a remainder by destroying the particular estate before the remainder vested, courts have always been inclined to construe the limitation of a remainder as a.vested one, wherever the terms in which it is created will admit of such a construction.1 Thus, upon a devise to A for life, remainder to the surviving children of J. S., it is obvious that, in terms, it is equivocal whether the surviving relates to the death of the testator or of A. If to the latter, the remainder must be a contingent, since no one can tell who will be such survivors, until the death of A. Whereas, if the term relate to the testator's death, and J. S. then have children, the remainder is a vested one, since there is then an ascertained person, in esse, capable of taking the estate in præsenti at any moment. And accordingly courts construe an estate thus limited to be a vested remainder. Another illustration of this proposition is found in a recent

used and enjoyed by him during the term of his natural life, and from and immediately after his decease, I give and devise the same to S. the daughter of J. M., her heirs and assigns forever.” And it was held, that S. took a vested remainder in fee. Nor is it easy to see how the doctrine of Hall v. Nute, finds support from that of Doe v. Holme, 2 W. Bl. 777, on which it is said by the court to rest. In that case the devise was “to J. S. for the term of his natural life, and after his decease to the heirs male and female of J. L.” The court, of course, held this a contingent remainder, but not because J. L. might forfeit or surrender or merge his particular estate, but simply because, there being no heir of J. L. capable of being ascertained so long as J. L. lived, it could not be otherwise than contingent. Besides, the cases are too numerous and familiar, to multiply them by way of citation, that “it is the uncertainty of the right of enjoyment which renders a remainder contingent, not the uncertainty of its actual enjoyment.” Price v. Sisson, 13 N. J. 168, 176 ; Williamson v. Field, 2 Sandf. Ch. 533; Moore r. Lyons, 25 Wend. 144; ante, pp. *227, *228. Nor does the court state how, if the limitation be in terms a vested remainder, the owner of the particular estate claiming under the same devise that creates the remainder, can “surrender” and merge it in the inheritance, so as thereby to change what would otherwise be a vested remainder into a contingent one.

1 Dingley v. Dingley, 5 Mass. 535, 537 ; Doe v. Perryn, 3 T. R. 484 ; Doe v. Prigg, 8 B. & C. 231; Doe v. Provoost, 4 Johns. 61 ; Moore v. Lyons, 25 Wend. 119; Boraston's case, 3 Rep. 20; Duffield v. Duffield, 1 Dow & C.311; Tud. Lead. Cas. 680 ; ante, p. *226, post, p. *251 ; Den v. Demarest, 1 N. J. 525; Fay v. Sylvester, 2 Gray, 171.

2 Doe v. Prigg, 8 B. & C. 231; Moore v. Lyons, 25 Wend. 119; Chew's Appeal, 37 Penn. St. 23; Eldridge v. Eldridge, 9 Cush. 516; Manderson v. Lukens, 23 Penn. St. 31.

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