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unless the freehold pass from 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 nowhere, and if his estate be not of a freehold nature, the freehold cannot vest in him.
How Defeated and Destroyed. Contingent remainders may be defeated, by destroying or determining the particular estate, upon which they depend, before the contingency happens, whereby they become vested. Therefore, when there is a 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 remainder vests; the consequence of which is, that he utterly defeats them all. As if there be a tenant for life, with remainder to his eldest son unborn in tail, and such tenant before his son be born, surrender 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.
Trustees Appointed. In these cases, it is necessary to have trustees appointed to preserve the contingent remainders, in whom there is vested an estate in remainder, to commence when the life estate determines. If therefore the estate for life determines otherwise than by the death of the life tenant, 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 support the remainders depending in contingency.
Latitude as to Terms in a Will. Great nicety is required in creating and securing a remainder. In devises by last will and testament, which are usually drawn up, when the party is inops consilii, the courts give greater latitude of construction than in formal deeds, which are presumed to be made with great caution and advice; hence in such cases, remainders may be created in some measure contrary to the rules, but they are not termed remainders, but executory devises, or devises hereafter to be executed. EXECUTORY DEVISES.
Defined. 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.
1 But a conveyance of a greater estate than he possesses is no forfeiture, and will not defeat a contingent remainder.
Differs from a Remainder. It differs from a remainder in three material points :
1. It needs no particular estate to support it.
2. By it a fee-simple, or less estate, may be limited after a feesimple.
3. By this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same.
1. When it may Arise. It may exist, when one devises a future estate to arise upon a contingency, and until that contingency happens, leaves it to descend to his heirs at law. As if one devises lands to a feme sole and her heirs, upon her day of marriage; here in effect is a contingent remainder without any particular estate to support it; a freehold commencing in futuro. This limitation, though void in a deed, yet is good in a will, by way of executory devise. For since, by a devise, a freehold may pass without livery of seisin, therefore it may commence in futuro; the reason why it cannot commence in futuro in other cases being the necessity of actual seisin, which always operates in praesenti. Since it may 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. Such devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.
2. A Fee Limited after a Fee. A fee or other less estate may be limited after a fee. This happens, where a testator 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 years, then to B and his heirs; the remainder, though void in a deed, is good in an executory devise.
Reasonable Time. In both these species of executory devises, the contingencies ought to be such, as may happen within a reasonable time; as within a life or lives in being, or within a moderate term of years, for courts of justice are opposed to a perpetuity, which the law abhors. Where there is no power of alienation, estates are rendered incapable of answering those ends of social commerce, for which property was at first established.
1 Fearne, in his book on Remainders, defines an executory devise to be : “Such a limitation of a future estate or interest in lands or chattels, as the law admits in the case of a will though contrary to the rules of limitation in convey. ances at common law."
Utmost Limit of Time. The utmost length of time allowed for the contingency of an executory devise of either kind to happen, is that of a life or lives in being, and twenty-one years thereafter. As when lands are devised to such unborn son of a feme covert , as shall first attain the age of twenty-one years, and his heirs; the utmost length of time, that can happen before the estate can vest, is the life of the mother and the subsequent minority of the son.
3. Limited on a Term of Years. By executory devise, a term of years may be given to one man for his life, with remainder over, which could not be done by deed, for by law, the first grant of it to a man for life, was a total disposition of the whole term; a life estate being esteemed a larger estate than one for years. At first, the courts hesitated to restrain the devisee for life from aliening the term, but only held, that if he died without exerting that act of ownership, the remainder over should then take place. Subsequently it was held, that the devisee for life had no power to aliene his term, so as to bar the remainderman, and though such remainders may be limited to as many persons successively, as the devisor thinks proper, yet they must all be in esse during the life of the first devisee, and the ultimate remainder is to the one who survives the rest. Such remainder may not be limited to take effect, unless upon such contingency, as must happen, if at all, during the life of the first devisee.
III. ESTATES IN REVERSION.
Defined. This is the residue of an estate left in the grantor, to commence in possession, after the determination of some particular estate granted out by him. Coke describes a reversion, to be the returning of land to the grantor, or his heirs, after the grant is over. As if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law, and so also the reversion, after an estate for life, for years or at will, continues in the lessor. A reversicn is never created by deed, or other writing, but arises from construction of law; a remainder can never be limited, unless by deed or devise. Both are equally transferable, when actually vested, being both estates in praesenti, to take effect in futuro.
Fealty and Rent. The doctrine of reversion is derived from the feudal constitution. For when a feud was granted to a man for life, or to him and his issue male, rendering rent or service; then on his death or the failure of issue male, the feud was determined, and resulted back to the lord. Hence the usual incidents to reversions are fealty and rent. Even where no rent is reserved, fealty results of course as a badge of tenure, being often the only evidence, that the lands are held at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion, and the reversion may be granted away, reserving the rent, by special words. By a general grant of the reversion, the rent will pass with it, as an incident, though by the grant of the rent generally, the reversion will not pass.
Distinction from Remainders. Great care is requisite in distinguishing reversions from remainders, as they differ in the incidental rights of the reversioner, and the respective modes of descent. Thus, if one, seised of a paternal estate in fee, makes a lease for life, with remainder to him and his heirs, this is properly a mere reversion, to which rent and fealty shall be incident, and which shall only descend to the heirs of his father's blood, and not to his heirs generally, as a remainder limited to him by a third person would have done, for it is the old estate, which was originally in him, and has not left him.
Concealment of Death. To assist those having estates in remainder, reversion or expectancy, after the death of others, against fraudulent concealment of their death, it is enacted by statute of Anne, that such persons, on application to the court of chancery, and order made therein, once in every year shall, if required, be produced to the court or its commissioners. Upon neglect or refusal, they shall be deemed dead, and the person entitled to such expectant estate may enter upon the lands, till the party shall appear to be living.
Doctrine of Merger. Whenever a greater estate and a lesser coincide and meet in the same person, without any intermediate estate, the lesser one is at once annihilated, or in law phrase, merged, that is, sunk in the greater. Thus if there be tenant for years, and the reversion in fee-simple becomes his, the term of years is merged in the inheritance, and no longer exists. But they must come to the same person in one and the same right, else if the freehold be in his own right, and he has a term in another's right, en autre droit, there is no merger. If he who has the reversion in fee marries the tenant for years, it is no merger, for he has the inheritance in his own right, the lease in the right of his wife.
Estate-tail an Exception. An estate tail is an exception to this rule, for a man may have in his own right both an estate tail and a reversion in fee, and no merger occurs.
Estates tail are preserved from merger by the operation of the statute de donis, on the probable consideration that, in the usual cases of merger of estates for life or years, by uniting with the inheritance, the particular tenant has the sole interest, and has power to defeat, destroy or surrender them to him who has the reversion; therefore when united with the reversion in fee, the law deems it a surrender of the inferior estate. But in an estate tail, for a long time, the tenant had no power to bar or destroy it, and now can only do it by certain special modes, by fine, or recovery, or the like, hence it would have been unjust to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue. It is a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.
CHAPTER XII.-ESTATES IN SEVERALTY, JOINT TEN
ANCY, COPARCENARY, AND COMMON.
Preamble. We now shall treat of estates, with respect to the number and connection of their owners, the tenants, who occupy and hold them. Estates of any quantity or length of duration, and in either actual possession or expectancy, may be held in four different ways: in severalty, joint-tenancy, coparcenary and common. I. SEVERALTY.
Defined. He who holds lands or tenements in severalty,