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to the time of their enjoyment, when the actual pernancy or taking of the rents and profits begins. Estates therefore with regard to this consideration, may either be in possession or in expectancy.
Estates in Expectancy. These are in remainder, by the act of the parties, and in reversion, by act of law. I. ESTATES IN POSSESSION.
Defined. These 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. All the estates herein before referred to are of this kind, and nothing more need be said of them; but the doctrine of estates in expectancy contains some of the most abstruse learning in the English law. II. ESTATES IN REMAINDER.
Defined. An estate in remainder is an estate limited to take effect and be enjoyed, after another estate is determined. As where a man seised in fee-simple grants lands to A for twenty years, and after the end of said term, then to B and his heirs forever; here A is tenant for years, remainder to B in fee. An estate for years is here first 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, being equal, when added together, only to one estate in fee. They are indeed different parts, but they constitute but one whole; they are carved out of one inheritance, are both created, and subsist together, the one in possession, the other in expectancy.
Example. So if land be granted to A for twenty years, and then to B for life, and at B's death, to be limited to C and his heirs forever, this makes A a tenant for years, with remainder to B for life, remainder over to C in fee. In this case, the estate of inheritance undergoes a division into three parts, and if there were a hundred remainders, there would be but one estate.
Contrasted with Fee-simple Estate. No remainder can be limited after the grant of a fee-simple estate, because such fee-simple is the highest and largest estate that one can enjoy, and he who is tenant in fee has in him the entire estate. A remainder therefore, which is a 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 feesimple. Certain rules must be observed in the creation of remainders.
1. Must be some Precedent Estate. Some particular estate must precede the estate in remainder, as an estate for years to A, with remainder to B. This precedent-estate is termed 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 particular estate, is because the term "remainder" is a relative expression, and implies that some part of the thing has been previously disposed of, for where the whole has been conveyed at once, there cannot possibly be a remainder, but the interest granted would be an estate in possession.
Freehold Estates must be with Livery of Seisin. An interest created to commence at a future 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 chattels, by contracts to be executed in the future, while an estate of freehold must be created to commence immediately, because at common law no freehold in lands could pass without livery of seisin, which must operate either immediately or not at all. It would be contradictory, if an estate, which is to commence in futuro, 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.
The Two Estates are one in Law. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred to a future time, it is necessary to create a previous particular estate, which may subsist, till that time is completed, and for the grantor to deliver immediate possession of the land to the tenant of such particular estate, which is construed to give possession also to him in remainder, since the two estates are one and the same in law. The whole estate passes at once from the grantor to the grantee, and the remainder man is seised of his remainder, at the same time that the termor is possessed of his term. The enjoyment must be deferred, but it is, to all intents, an estate commencing in praesenti, though to be occupied and enjoyed in futuro.
Cannot be an Estate at Will. The particular estate is said to support the remainder. A lease at will is not such a particular estate; as an estate at will is too slender and precarious to be 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 to do this, the entry of the grantor at once determines the estate at will.
Void Remainder. If the remainder be a chattel interest, 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. Hence if the particular estate is void at its creation, or be defeated afterwards, the remainder, supported thereby, shall be defeated also, as where the particular estate is for the life of one not in esse.
2. When the Remainder Must Commence. The remainder must commence or pass out of the grantor, at the time of the creation of the particular estate. 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. A common law livery of seisin must be made on the particular estate, whenever a freehold remainder is created. Where limited on an estate for years, it is necessary that the lessee for years have livery of seisin, in order to obtain the freehold from the grantor, otherwise the remainder is void. Not that the livery is requisite to the estate for years, but as livery is required to convey the freehold, and yet cannot be given to him in remainder, without infringing the possession of the lessee for years, the law allows such livery made to the lessee, to relate to him in remainder, as both are but one estate in law.
3. When the Remainder Must Vest. It must vest in the grantee during the continuance of the particular estate, or en instanti, it determines. As 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, the remainder vests instantly in the survivor, where 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 has a son, here the remainder will be void, for it did nor vest in any one during the continuance, or at the end of the particular estate; and it would not alter matters, if B should subsequently have a son, for the remainder is gone forever. For there can be no intervening estate between the particular estate and the remainder supported thereby; the thing supported must fall to the ground, if once its support be detached.
Result of these Rules. Upon these rules, but principally the last, the doctrine of contingent remainders depends.
Division of Remainders. Remainders are either vested or contingent. VESTED REMAINDERS.
Defined. These are remainders executed, whereby a present interest passes to the party, though to be enjoyed in futuro. The estate in this case is invariably fixed, to remain to a determinate person, after the particular estate is spent. As if A be a tenant for twenty years, remainder to B in fee, B has a vested remainder, which nothing can defeat. CONTINGENT REMAINDERS.
Defined. These are remainders executory, whereby no present interest passes. They exist, 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 may never take effect.
The Person Uncertain. 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 not, but the instant that a son is born, the remainder becomes vested, and no longer contingent. 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.
Posthumous Child. By the strict rule of law, if A were tenant for life, remainder to his son in tail, and A died without issue born, but leaving his wife pregnant, and after his death a posthumous son was born, this son could not take the land by virtue of the remainder, for he was not in esse, when the particular estate was determined. To remedy this hardship, a statute
of William III enacted, that posthumous children shall take in remainder, the same as if they had been born in their father's lifetime.
Probable Possibility. This species of contingent remainder to a person not in being, must however be limited to some one, that may, by common possibility or potentia propinqua be in esse, before the particular estate determines. As if an estate be made to A for life, remainder to the heirs of B; now 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.
Remote Possibility. But a remainder to the right heirs of B, if there be no such person as B in esse, is void. Two contingencies must happen in such case; 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 makes it potentia remotissima, a most improbable possibility. A remainder to a man's eldest son, who has none, is good, for by common possibility, he may have one, but if it be limited to his son John, 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 that particular name. A limitation of a remainder to an unborn bastard is void, the contingency being too remote. Thus may a remainder be contingent, on account of the uncertainty of him who is to take it.
Uncertain as to the Event. 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 contingent, depending upon a dubious event, the uncertainty of his surviving A.
Not Limited on an Estate for Years. 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, with remainder in fee to the heirs of B, this remainder is void, but if granted to A for life, with a like remainder, it is good. For