illustrated and explained in the early chapters of this work, to the theory of creating future estates in land, whose possession and enjoyment are postponed for a longer or shorter time, let it be supposed that the owner of a fee-simple wishes to create an estate in favor of A B for twenty years. To effect this, after entering into a proper contract, he simply puts A B into possession of the land, but does not part with his own seisin, though he does with his possession. So far as the seisin is concerned, A B is his bailiff, acting for him in keeping it.1 Suppose, instead of simply creating this estate in A B, the owner has, at the same time, and by the same deed, given to CD all his estate in the land except what was given thereby to A B, and A B has accepted this deed as the grant under which he is to hold his estate. He will in this way have assented to act for C D, as he would have acted for the owner in the former case supposed, so far as holding the seisin unimpaired for him as such owner, since that in effect was the condition upon which alone he entered upon his estate. The grantor, in the latter case, will have parted with his entire seisin, and transferred it to CD, through the agency of A B, when the latter has taken possession, in carrying into effect the grant in his own favor, and ipso facto, become for that purpose the bailiff of C D.2 In the cases above supposed, the estate in A B might as easily have been for life as for years, except that to make it for life there must have been a livery of seisin to the first taker, and the seisin and possession would both thereby have been intrusted to him, in order to enable him to meet the requirements of the feudal tenure. But as the tenant takes by a deed which ex- [*222] pressly recognizes a concurrent ownership of the land in another, out of whose larger estate his own has been derived as a part of the same, he is, by implication of law, regarded as holding in accordance with and not adversely to the title of the owner of the general fee, and as holding the seisin of the estate for the mutual benefit of both, according to their respective interests and estates. Consequently, for the purposes of keeping alive that entity, the seisin, the tenant acts for the general owner, until the same actually passes to the latter on the termination of the estate of the former.3 1 Brodie v. Stephens, 2 Johns. 289. In one 2 Co. Lit. 143 a; 2 Flint. Real Rrop. 259; Watk. Conv. 175, 177, Coventry's note; Wins. Real Prop. 206; ante, Vol. I. pp. *36-*38. 3 Wms. Real Prop. 206. of the cases above supposed, the general owner having only parted with a term of years or a life estate to A B, the balance of the fee remains in him, to which the law gives the name of a reversion. In the other, when he parted with the life estate or the term to A B, he, at the same time and by the same deed, parted with all besides that to C D, who thereby acquired what thus remained of the entire estate, except what was granted to A B, and to this the law gives the name of a remainder. This sub-division might be carried still further and with the same effect, as if, instead of an estate to A B for years or life and then to C D in fee, it had been to A B for years or life and then to J. S. for life or years, and then to CD in fee, limiting any number of remainders, one after the other, provided the last one only was a fee-simple, for when the fee-simple had been given to any one, there would be nothing further which the grantor could give.1 And the remainder-man, in such case, takes by the deed though a stranger thereto. This may seem to be occupying too much space in illustrating what is, in fact, so simple a rule of law. But it is hoped that it will aid in defining à remainder, and simplifying what must necessarily at times become complex and difficult of application. 6. A remainder, therefore, may be defined to be an estate or interest in lands or tenements to take effect in possession or enjoyment immediately upon the determination of a prior estate, which [*223] is created at the same time and by the same ́act *or instrument, and upon which such first-mentioned interest is made to depend. And it may be added, that a remainder-man always takes by purchase and never by descent. The court of Ver mont, however, in treating of an interest of an heir in his ancestor's estate who shall die indebted, assuming that such interest is limited to what shall remain after paying the ancestor's debts, apply to it the term remainder; "a vested remainder is the strongest expression in their favor at all descriptive of their title.5 7. This prior estate is called the particular one, from particula, 1 Wms. Real Prop. 208; Fearne, Cont. Rem. 4, Butler's note. 2 Phelps v. Phelps, 17 Md. 134. 8 Co. Lit. 143 a; 2 Bl. Com. 163; Fearne, Cont. Rem. 3, and Butler's note; id. 4; Brown v. Lawrence, 3 Cush. 390, 397; Booth v. Terrell, 16 Geo. 20; Leslie v. Marshall, 31 Barb. 564. Dennett v. Dennett, 40 N. H. 504. 5 Langdon v. Strong, 2 Vt. 254. part or parcel, of which with the remainder the entire or whole estate is made up. It is this particular estate by which the possession, or the possession and seisin as the case may be, with which the grantor parts when he creates the limitation, are sustained until the remainder-man is ready to take, and if there is a break or interval of time between the one and the other, the second estate would be simply a future one, but not in any legal sense, a remainder.1 But the interests of the particular tenant and the remainder-man are so independent and distinct, that the former can make no claim upon the latter for improvements made by him upon the estate.2 Nor can he make any agreement which will bind the estate of the remainderman. There can be no remainder where there can be no reversion. But the converse of the proposition is not strictly true. Thus if a grant be made to A and his heirs so long as a certain tree stands, it constitutes a base or determinable fee, since it assumes that the estate, though a fee, may determine at some time. If it does determine, the estate will come back to him who created it, in the nature of a reversion. But still it is not such an interest as is regarded by law as susceptible of being limited by way of a remainder, because the first estate limited was, in terms, a fee.1 And it may be stated general proposition, that if a fee be given by way of a vested limitation, but a determinable one, and a remainder be limited after it, such remainder can only take effect as an executory devise.5 as a 8. Another suggestion somewhat preliminary may be made, that, provided the estate be so limited that there is always some one in esse who holds the seisin, there is no violence done to the rules of the common law,,whether the one who is to take the secondary estate is in esse or ascertained at the time of creating the estate, or becomes in esse or is ascertained afterwards; provided he be ready to take the seisin the instant the estate with the seisin in the first taker determines by its natural limitation. Thus an estate might be to A for 1Wms. Real Prop. 197; Burt. Real Prop. §§ 28, 29, 30; Prest. Est. 93; Wilkes v. Lion, 2 Cow 333, 389; Watk. Conv. 174, 177, n. 174; 2 Flint. Real Prop. 258. 1 Thurston v. Dickinson, 2 Rich. Eq. 317. 3 Hill v. Roderick, 4 W. & S. 221. 2 Flint. Real Prop. 265; 1 Eq. Cas. Abr. 186. The reader should bear in mind that the positions in the text relate to the common-law rules of property. The limitation of future estates by way of executory devises or springing uses remains to be considered. Buist v. Dawes, 4 Strobh. Eq. 37. Doe v. Selby, 2 B. & C. 930. [*224] years or for life, with a "remainder to B in fee who is a known person in esse, or to A for life, remainder to the oldest son of B in fee, though B at the time of creating the estate had no son, and the remainder might be in suspense until B died or had a son. But in the latter case A's estate must obviously be a freehold, in order to his keeping the seisin, until there shall be a remainder-man ready and capable to take it, and this A cannot do if his interest is only a chattel one. 9. The first of these supposed cases presents what is known as a vested remainder. The latter exemplifies what are called contingent remainders. The broad distinction between vested and contingent remainders is this. In the first, there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate upon the expiration of the existing particular estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have determined, so that the estate in remainder will never take effect.2 10. Whether vested or contingent, it is essential to a remainder, for the reasons above stated, and is an imperative rule of law, that it should take effect immediately on the determination of the prior estate, the particular estate and remainder together forming one continuous ownership. Otherwise, instead of being an estate, it would be a mere contract for an estate to take effect at a future time, and if this was a freehold it could not be created to commence in that manner.3 Consequently, no remainder can be created without a particular estate to support it, and it must be so limited as to take effect immediately on the regular and natural determination of this [*225] prior estate, and not so as to abridge it. And for *the reasons stated, this particular estate must, in case of a contingent remainder, be one of freehold.5 Though at common law if this particu 1 Brown v. Lawrence, 3 Cush. 390, 397; Leslie v. Marshall, 31 Barb. 564. 2 2 Cruise, Dig. 204; Price v. Sisson, 13 N. J. 176; Hawley v. James, 5 Paige, Ch. 466; Williamson v. Field, 2 Sandf. Ch. 553; Moore v. Lyons, 25 Wend. 144; Leslie v. Marshall, 31 Barb. 564. 81 Prest. Est. 93; 2 Flint. Real Prop. 263. 5 Watk. Conv. 175, n. 181; Wms. Real Prop. 224. 4 1 Prest. Est. 91. lar estate was by any means defeated, or had expired before the contingent remainder vested, the latter must have failed altogether, this is now corrected by statute in England, and in most if not all the United States, though this does not affect the manner of creating this class of remainders originally.1 11. From the doctrine above stated, that the particular estate and remainder form together when united but one estate of the extent or duration of the two, it follows that while ever so many remainders in succession may be carved out of a fee-simple if each is less than a fee, no remainder can be limited after a fee, for when a fee has once been created, there can be nothing left by way of remainder to give away. Nor does it make any difference that this fee is a qualified one, for so long as it exists it is deemed to be indefinite in its duration, and no remainder can be expectant upon it. It has accordingly been held, that if an estate is given to one with a full and absolute power of control and disposal, there can properly be no remainder limited after his estate, though this was in terms a contingent one. Thus where the devise was to A and his heirs, and if he should die and leave no heirs, what estate he should leave was devised to J. S.; it was held that the devise to J. S. was void, from the implied power of disposal of the estate given to the first devisee. Though a similar devise in England has been held good as an executory devise to J. S.4 It was early decided, that upon a devise to A and his heirs, so long as J. S. had issue, and after the death of J. S. without issue, remainder over to another, the devise of the remainder was void, as the first taker had a fee.5 12. It may be well, in this connection, to explain the dis- [*226] tinction there is between a remainder and a contingent or conditional limitation, which, by the way, was unknown to the common law, as there exists between the two, especially where the remainder is á contingent one, a similarity which might mislead a casual exam 1 Stat. 8 and 9 Vict. ch. 106, § 8; Wms. Real Prop. 233, Rawle's note. Sect. 7, pl. 4. See post, 2 Wimple v. Fonda, 2 Johns. 288; Co. Lit. 18 a, 143 a; 2 Flint. Real Prop. 257; Willion v. Berkley, Plowd. 235; Seymor's case, 10 Rep. 97; Fearne, Cont. Rem. 308. Ide v. Ide, 5 Mass. 500; Jackson v. De Lancy, 13 Johns. 557; Attorney-General v. Hall, Fitzg. 314; McLean v. Macdonald, 2 Barb. 534. Doe v. Glover, 1 C. B. 148. 1 Eq. Cas. Abr. 185. See also, 2 Cruise, Dig. 203. |