« ElőzőTovább »
property, memorable for its antiquity, and for the patient cultivation and discipline which it has received.
(5.) Of the particular estate requisite to support a remainder.
Tuiste must be a particular estate to precede a remaindegy for it necessarily implies, that a part of the estate has been already carved out of it, and vested in immediate possession in some other person. The particular estate must be valid in law, and formed at the same time, and by the same instrument, with the remainder. The latter cannot be created for a future time without an intervening
a The juridical scholar, on whom his great master, Coke, has bestowed some portion of the “gladsome light of jurisprudence,” will scarcely be able to withhold an involuntary sigh, as he casts a retrospective glance over the piles of learning, devoted to destruction by an edict, as sweeping and unrelenting as the torch of Omar. He must bid adieu for ever to the renowned discussions in Shelley's Case, which were so vehement and so protracted as to arouse the sceptre of the haughty Elizabeth. He may equally take leave of the multiplied specimens of profound logic, skilful criticism, and refined distinctions, which pervade the varied cases in law and equity, from those of Shelley and Archer, down to the direct collision between the courts of law and equity, in the time of Lord Hardwicke. He will have no more concern with the powerful and animated discussions in Perrin v. Blake, which awakened all that was noble and illustrious in talent and endowment, through every precinct of Westminster Hall. He will have occasion no longer, in pursuit of the learning of that case, to tread the clear and bright paths illuminated by Sir William Blackslone's illustrations, or to study and admire the spirited and ingenious dissertation of Hargrave, the comprehensive and profound disquisition of Fearne, the acute and analytical essay of Preston, the neat and orderly abridgment of Cruise, and the severe and piercing criticisms of Reeve. What I have, therefore, written on this subject, may be considered, so far as my native state is concerned, as a humble monument to the memory of departed learning.
b Plowd. 25. a. Dr. & Stud. Dial. 2. ch. 20. Moor v. Parker, 4 Mod. Rep. 316.
estate to support it. If it be an estate of freehold, it must take effect presently, either in possession or remainder, for, at common law, no estate of freehold could pass without livery of seisin, which must operate either immediately, or not at all. “If a man,” said Lord Coke,a « makes a lease for life to begin at a day to come, he cannot make present livery to a future estate, and, therefore, in that case, nothing passeth.” Though a term for years may be granted to commence in futuro, an estate of freehold, limited on such future interest, would be void. When, therefore, a freehold remainder is intended to be created and vested, it is necessary to create a previous particular estate to subsist in the mean time, and to deliver immediate possession of it, which is construed to be giving possession also to him in remainder, since the particular estate, and the remainder, constitute one and the same estate in law. The remainderman is seised of his remainder at the same time that the tenant of the particular estate is possessed of his estate. It was necessary to make livery of seisin on the particular estate, even though that particular estate was a chattel interest, as a term for years, provided a freehold vested remander was to be created. In no other way could a freehold in remainder be created at common law. It could not be made directly to the person in remainder without destroying the estate of the lessee for years, and livery to the particular tenant enures to the benefit of the remainderman, as the particular estate and the remainder are but one estate. It follows, from these principles, that an estate at will cannot support a remainder, for, livery to the tenant
a Barwick's Case, 5 Co. 94. b. b 2 Blacks. Com. 166.
c Litl. sec. 60. Co. Litt. ibid. Co. Litt. 217. a. Plowd. 25. The refinements anciently adopted upon this rule were very subtle and technical. Thus, to use the illustrations made by one of the serjeants in the case from Plouden, if a lease be made to A. for years, and the lessor afterwards confirms the estate for years, with remain
at will, and the limitation over, would either of them determine the will.
If the particular estate be void in its creation, or be defeated afterwards, the remainder, created by a conveyance jat common law, and resting upon the same title, will be defeated also, as being, in such a case, a freehold commencing in futuro. The person in remainder cannot take advantage of conditions annexed to the preceding estate. If, therefore, an estate for life be upon condition, and the grantor enters for breach of the condition, and avoids the estate, the remainder over, as we have already seen;" will be defeated, because the entry defeats the livery made to the first lessee or feoffee on the creation of the original estate, and the grantor is in of his old estate. But if a vested remainder rests upon good title, and not upon the defeasible title of the particular estate, it will remain, though the particular estate be defeated, as in the case put by Coke, of a lease to an infant for life, remainder to B. in fee, though the infant disagrees to the estate for life when he comes of age, yet the remainder shall stand, for it did
der over in fee, the remainder is void, because the estate for years was created before, and not at the time of, the confirmation and the remainder. And if the lessor disseise his tenant for life, and then grants him a new lease, with remainder over in fee, the remainder is void, because the tenant for life is remitted to his first estate. So, if the heir endows the widow with remainder over in fee, the remainder is void, though livery of seisin be made to the widow, because the dower has relation back to the death of the husband, and therefore the remainder was not coeval with it in point of time. To destroy an estate by the operation of such legal fictions, is very unreasonable and absurd. It is actually reversing the maxim, that in fictione juris semper æquitas existit. • a Bacon's Abr. tit. Remainder and Reversion, G. This head of Gwillim's Bacon was taken from a MS. treatise, by Lord Ch. B. Gilbert, furnished by Mr. Hargrave.
b Supra, p. 122. C Wm. Jones' Rep. 58. Co. Litt. 298. a. 1 Rol. Abr. 474. P.
not depend upon the same title with the particular estate, and it was once vested by a good title. In Doo v. Bra
bant, Lord Thurlow declared the old rule of law to be, Ithat where there was a particular estate created, with a
remainder over, and the first estate is void, as if made to a person incapable of taking, the remainder-man will take immediately, as if it were an original estate. The observation can only be correct as to uses and devises, for, in conveyances at common law, and not to uses, the rule is clearly otherwise ; and it is repugnant to the general principle, that a remainder cannot be created without a particular estate to precede it in its creation. The rule is well established in the old law, that if the particular estate be void in its inception, the remainder limited upon it is void also. In the case of a grant for life to a person incapable of taking, or to a person not in rerum natura, with remainder over, the remainder is not good, for there is no particular estate to support it. Though in wills and conveyances to uses, the remainder may be good, notwithstanding the particular estate be void, yet, in future uses, and executory devises, if one class of limitations be void, the limitations over will be void for the same reason.
If the estate in remainder be limited in contingency, and amounts to a freehold, a vested freehold must precede it, and pass at the same time out of the grantor. This rule holds equally in the limitation of uses, and in estates exe
cuted in possession at common law. Thus, in the case of la devise to B. for fifty years, if he should so long live, remainder to the heirs of his body, the remainder was held foid for want of a freehold to support it. But if the remainder had been to trustees during the life of B., remain der to the heirs of his body, in that case the contingent re mainder had been good, because preceded by a vested fred hold remainder to the trustees. The reason of the rule requiring a contingent remainder to be supported by a freehold, was that the freehold should not be in abeyance, and that there should be always a visible tenant of the freehold, who might be made tenant to the precipe, and answer for the services required. It does not apply to contingent interests for years, for they were considered, in the case of Corbet v. Stone,d to be merely executory contracts. It will be sufficient if a right of entry exists in the rightful tenant of the particular estate, when the contingent remainder vests. The contingent remainder is not destroy. ed, though there be no actual seisin ; for though a mere right of action will not, yet a right of entry will support a l contingent remainder. Lord Holt, in Thompson y. Leach, illustrates the distinction by saying, that if there be tenant for life with a contingent remainder over, and he be disseised, the whole estate is devested, but the right of entry remaining in the tenant will support the remainder ; whereas, if, during the disseisin, the contingent remainder expectant upon the life estate, does not vest before five years after a descent cast, the remainder is gone for ever, for the right of entry is turned into a right of action.
a Co. Lill. 298. a.
d Serjeant Rolle cites for this 9 Hen. VI. 24. b. and he raises the true distinction in this respect between a grant and a devise. 2 Rol. Abr. 415. C. The same examples, by way of illustration, taken by Rolle from 9 Hen. VI. are relied on in Plowden, 35. a. 414. a. and in Comyn's Dig. tit. Estate, B. 14. in support of the same rule.
e Co. Litt. 217. a. 1 Co. 130. 134. b.
(6.) Of remainders limited by way of use.
Remainders may be limited by way of use, as well as by common law conveyances, but the operation which the
a Goodright v. Cornish, 1 Salk. Rep. 226.