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course of time, grown out of it, are considered, will be found to surpass all the modifications of property in the difficulties which attend the study and the practice of it. The subdivision of the interest of an estate, to be enjoyed partitively, and in succession, is a very natural and obvious contrivance, and must have had a place in early civilization.a
If the whole fee be granted, there cannot, as a matter of course, be any remainder. So, if an estate be granted to A. and his heirs, till C. returns from Rome, and then to the use of B. in fee, the limitation to B. cannot be good as a remainder, though it may enure as a shifting use or executory limitation; for the entire fee passed to. A. as a base or qualified fee, in which the grantor retained only a possibility of reverter.c . But if the estate had been granted to A. without words of inheritance, until C. returned from Rome, he would have taken only a freehold estate, and the residue of the estate, upon the return of C., if limited to the use of B., would be a remainder. It would equally have been a remainder, if the estate had been limited to A. and the
a Mr. Cornish has detected, in some ancient authoritics, the evidence that partial interests, carved out of the inheritance, with a limitation of remainders over, existed among the Anglo Saxons.—Essay on Remainders, p. 3.
6 This is a clear principle of the common law; but the New-York Revised Statutes, vol. i. 729. sec. 16. have changed the whole doctrine on this point, and allowed a contingent remainder in fee to be created on a prior remainder in fee, and to take effect in the event that the persors to whom the first remainder is limited, shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age. So, a fee may be limited upon a fee, upon a contingency which, if it should occur, must happen within the period prescribed by the article, that is, two lives in being at the creation of the estate. Ibid. sec. 24.
c 10 Co. 97. b. 1 Eq. Cas. Abr. 186. E. 1. vide supro, p. 10. in notis.
heirs of his body, until the return of C. from Rome, and then to the use of B. in fee; for an estate tail, not being the whole inheritance like a qualified fee, but only a por. tion of the entire estate, the remnant to B. would be a remainder. There can be no remainder limited after an estate of inheritance, except it be after an estate tail. There may be a future use, or executory devise, but it will not be a remainder. In a devise a subsequent interest may frequently be supported as a remainder, notwithstanding a limitation to the heirs of the prior devisee, provided the generality of the word heirs be restrained to issue, as a devise to A. and his heirs, and if he dies without issue, remainder over. If the prior fee be contingent, a remainder may be created to vest in the event of the first estate never taking effect, though it would not be good as a res mainder, if it was to succeed, instead of being collateral to the contingent fee. Thus, a limitation to A. for life, remainder to his issue in fee, and in default of such issue remainder to B., the remainder to B. is good as being collateral to the contingent fee in the issue. It is not a fee mounted upon a fee, but it is a contingent remainder with a double aspect, or, as Mr. Douglas says with less quaintness, on a double contingency. But if the remainder over to B.
a 2 Inst. 336. Fearne on Rem. p. 7, 8.
6 Doe v. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 ibid. 253. Dansey v. Griffith, 4 Maule & Selw. 61. The series of cases on this subject, as Mr. Humphreys expresses it, in his Observations on Real Property, have been “obscurely shading down from a fee simple to a fee tail.” The N. Y. Revised Statutes, (vol. i. 722. sec. 3, 4.) have provided for the preservation of valid remainders, limited upon every estate, which, under the English law, would be adjudged an estate tail. They are declared valid, as conditional limitations upon a fee, and vest in possession on the death of the first taker, without issue living at the time of his death.
c Luddington v. Kine, 1 Lord Raym. 203. Doug. Rep. 505. note.
had been merely in the event of such issue dying before twenty-one, it would have been good only as a shifting use or executory devise, for it would have rested on an event which rescinds a prior vested fee. There is likewise a double contingency when estates are limited over in the alternative, or in succession. If the previous estate takes effect, the subsequent limitation awaits its determination, and then vests. But if the first estate never vests by the happening of the contingency, then the subsequent limitation vests at the time when the first ought to have vested. The New York Revised Statutes have provided for this case of limitations in the alternative, by declaring, that two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it. and take effect accordingly. W
have Cross remainders are another qualification of these expectant estates, and they may be raised expressly by deed, and by implication in a devise. If a devise be of one lot of land to A., and of another lot to B. in fee, and if either dies without issue, the survivor to take, and if both die without issue, then to C. in fee, A. and B. have cross-remainders over by implication, and on the failure of either, the other, or his issue, takes, and the remainder to C. is postponed. So, if different parcels of land are conveyed to different persons by deed, and by the limitation they are to have the parcel of each other when their respective interests, shall determine, they take by cross-remainders ; and this complex doctrine of cross-remainders, in the mode in which the parties become entitled, and in their proportions, though not in their interests, has a great analogy, as Mr.
a Cornish on Remainders, p. 27–29.
Preston observes, to the order of succession between coparceners."
(2.) Of vested remainders.
An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoy. ment. It gives a legal or equitable seisin." The definition of a vested remainder in the New-York Revised Statutes, appears to be accurately and fully expressed. It is “ when there is a person in being who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate." A grant of an estate to A. for life, with a remainder in fce to B., is a grant of a fixed right of immediate enjoyment in A., and a fixed right of future enjoyment in B. So, if the grant was only to A. for life, or years, the right under it would be vested in A. for the term, with a vested reversion in the grantor. Reversions, and all such future uses and executory devises as do not depend upon any uncertain event or period, are vested interests. A vested remainder is a fixed interest to take effect in possession after a particular estate is spent. If it be uncertain whether a use or estate limited in futuro shall ever vest, that use or estate is said to be in contingency. But though it may be uncertain whether a remainder will ever take effect in possession, it will nevertheless be a vested remainder if the interest be fixed. The law favours vested estates, and no remainder will be construed to be contingent, which may, consistently with the intention, be deemed vested. A grant to A. for life, remainder to B., and the heirs of his body, is a vested remainder, and yet it is uncertain whether B. may not die without heirs of his body, before the death of A., and so the remainder never take effect in possession. Every remainder-man may die, and without issue, before the death of the tenant for life. It is the present capacity of taking effect in possession, if the possession were to become vacant, that distinguishes a vested from a contingent remainder. When the event on which the preceding estate is limited, must happen, and when it also may happen before the expiration of the estate limited in remainder, that remainder is vested; as in the case of a lease to As for life, remainder to B. during the life of A., the preceding estate determines on an event which must happen, and it may determine by forfeiture or surrender before the expiration of A.'s life, and the remainder is, therefore, vested: A remainder. limited upon an estate tail, is held to be vested, though it must be uncertain whether it will ever take place. The lines of
a Preston on Estales, vol. i. 94. 98.
6 Preslon on Estates, vol. i. 64. Mr. Preston says, there may be an executory interest, which is neither vested nor contingent, and yet carries with it a certain and fixed right of future enjoyment; and he instances the case of a devise of a freehold, to commence on the death of B. This, he says, is a certain interest, which is not executed immediately, so as to be vested ; but this is excessive refinement. Is it not a vested right of future enjoyment? The distinction appears to be fanciful. CN. Y. Revised Statutes, vol. i. 723. sec. 13. d Fearne's Int, to his Treatise on Remainders. c 10 Co. 85. a.
a Parkhurst v. Smith, Willes' Rep. 337. Fearne on Rem. 277.278. Mr. Cornish, however, observes very justly, that there are cases in which a remainder is vested, without a present capacity for taking effect in possession, if the particular estate were to determine immediately.-- Essay on Rem. 102.
b Fearne, 279-286.
c Badger v. Lloyd, 1 Salk. 232. 1 Lord Raym. 523. S. C. Ives v. Legge, 3 Term Rep. 488. note. Thus, in a case of a devise to A, and the heirs of his body, and in default thereof to B.; or in the case of a devise to B., and after his death, without male issue, to C.; and after his death, without male issue, to D. ; and if D. die without male issue, none of these prior devisees being living, to E. in fee; here the remainder to B., in the one case, and to E., in the other, is vested. There was a like decision in Luddington v. Kime, 1 Lord Raym. 203. though the judges were not unanimous on the question, whether the remainder was vested or contingent.