Limitation on failure of issue.

In discussing the subject of estates tail, the effect of a devise to A., with a limitation over to B. on the "failure of issue" of A., or similar words, as creating an estate tail in A., was considered. 33 When an estate tail is thus created in A., the estate which B. will take on the failure of issue of A. is an estate in remainder, after the fee tail in A., since it is limited by the same instrument, and is to commence on the termination of A.'s estate. 34

119. The particular estate-(a) Necessity.

There was, at common law, a very stringent requirement to the effect that every act of parties was void, the effect of which was to place the seisin or immediate freehold in abeyance,that is, which would have the effect of leaving the freehold without a tenant; this being based on the necessity that there be some person against whom an action concerning the land could be brought, who could meet adverse claims thereto, and who could render the feudal services to the lord.35 From this requirement, and likewise from the nature of livery of seisin, by which alone an estate of freehold could be created, and which must take effect immediately or not at all, it resulted that at common law there could be no conveyance of an estate

more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled shall be void. 1 Rev. St. p. 723, § 17; N. Y. Real Prop. Law, § 33; Comp. Laws, Mich. 1897, § 8799; Gen. St. Minn. 1894, § 4378.

88 See ante, § 25.

34 Marsden, Perpetuities, c. 10; Lewis, Perpetuity, 177; Doe d. Ellis v. Ellis, 9 East, 382; Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; Richardson v. Richardson, 80 Me. 585; Allen v. Trustees of Ash. ley School Fund, 102 Mass. 263; Dorr v. Johnson, 170 Mass. 540; Taylor v. Taylor, 63 Pa. St. 481; Morehouse v. Cotheal, 21 N. J. Law, 480. See post, § 156.

35 1 Leake, 47; Challis, Real Prop. 78; 4 Kent, Comm. 259.

of freehold to commence in the future, and any such attempted conveyance was void.88

The creation of an estate in remainder after a particular estate was not regarded as a violation of this rule, since the tenant of the particular estate received the livery of seisin, and held the seisin, so long as his estate endured, in behalf of the tenant or tenants in remainder, these latter participating in the seisin, as it were, in the order of their succession, and all the successive estates constituting, so far as the requirements of seisin were concerned, but one estate.87

The rule forbidding the abeyance of the freehold rendered it necessary, however, not only that there be a particular estate, but also that the remainder begin immediately upon the termination of the particular estate, since otherwise there would be a period of time during which there would be an abeyance. Consequently, in a conveyance to A. for life, and, after the lapse of a day from his death, then to B. in fee or for life, the limitation to B. is void at common law.3 38

(b) Character of estate.

The particular estate after which a remainder may be limited may be an estate tail39 or an estate for life, this latter being the ordinary case.40

A freehold estate limited to commence upon the termination of a term of years, though commonly referred to as a

36 Co. Litt. 217a; 2 Bl. Comm. 165; Challis, Real Prop. 80, 81; Barwick's Case, 5 Coke, 94b; Buckler v. Hardy, Cro. Eliz. 585, 5 Gray's Cas. 44.

37 Co. Litt. 49b, 143a; 2 Bl. Comm. 166; Challis, Real Prop. c. 11; 1 Leake, 41, 42.

38 2 Bl. Comm. 168; 1 Leake, 318; Challis, Real Prop. 62, 63, 81; Fearne, Cont. Rem. 307.

39 Litt. 215; Co. Litt. 143a; Gray, Perpetuities, § 111; Fearne, Cont. Rem., Butler's note, c. 1; Webb v. Hearing, Cro. Jac. 415, 5 Gray's Cas. 47; Taylor v. Taylor, 63 Pa. St. 481. See cases cited ante, note 34.

40 Fearne, Cont. Rem. 3, and Butler's note; Williams, Real Prop. 250.

remainder," is not a "remainder," in the strict sense of the word, since the limitation of such estate of freehold takes immediate effect, subject to the term, the presence of which in no way affected the seisin, even at common law.42

An estate in remainder can be limited only after the regular termination of the particular estate, and cannot take effect in derogation of it, upon its termination by condition subsequent, this being a result of the common-law rules that only the grantor or his heirs can take advantage of a condition, and that the seisin could pass from one person to another only by livery of seisin. Thus, in the case of a limitation to A. for life, and, on the marriage of A., then in remainder to B., the remainder is void.48 A remainder may, however, be limited after an estate in tail or for life on special limitation, as in the case of a limitation to A. during her widowhood, and, on her death or marriage, then to B.44

There can be no remainder after an estate in fee simple, since it could only take effect in derogation of the estate previously limited;45 nor can there be one after what we have referred to in a previous part of this work as a determinable, base, or qualified fee.1o

The remainder and the particular estate must be created or pass out of the grantor simultaneously and by the same in

41 See Litt. § 60; 4 Kent, Comm. 198.

42 Challis, Real Prop. 77; 1 Leake, 320.

48 Challis, Real Prop. 62; 1 Leake, 318; Fearne, Cont. Rem. 14, 261. 44 Fearne, Cont. Rem. 13, and Butler's note; Challis, Real Prop. 63; 1 Leake, 217, 318.

45 2 Bl. Comm. 164; Fearne, Cont. Rem. 12; 4 Kent, Comm. 200; Macumber v. Bradley, 28 Conn. 445; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Horton v. Sledge, 29 Ala. 478; Goodrich v. Harding, 3 Rand. (Va.) 280.

46 Co. Litt. 18a; Challis, Real Prop. 64; 2 Cruise, Dig. tit. 16, c. 1, §§ 5, 6; Fearne, Cont. Rem. 12, and Butler's note; Proprietors of Church in Brattle Square v. Grant, 3 Gray (Mass.) 142; Hennessy v. Patterson, 85 N. Y. 91, Finch's Cas. 868. That a remainder cannot be limited after a common-law conditional fee, see Selman v. Robertson, 46 8. C. 262.

strument, since, if the particular estate were first created, the residue after such estate would be a reversion, and not a remainder; and if the remainder were first created, it would be void, as previously stated, for want of a particular estate to support it.47

(c) Relaxation of common-law requirements.

The common-law requirements in connection with the creation of future estates, to the effect that this can be only by way of remainder, and that the remainder must take effect immediately on the termination of the particular estate, and not before, have to a very considerable extent lost their practical importance at the present day, for, even apart from the statutory provisions in various states allowing the creation of a future estate with or without a precedent estate to support it,48 a limitation of a future estate in a conveyance inter vivos, if not answering to the requirements of a remainder at commo law, can, in almost every case, as we shall presently see, be supported as a future use, and, when contained in a will, as an executory devise.49 It is, however, most desirable to have a thorough acquaintance with these requirements, since this is assumed in all discussions of the subject of future estates, and they are intimately connected with rules which still, in many jurisdictions, are of importance with regard to that class of remainders termed "contingent remainders."

In two or three states, in which the Statute of Uses is not in force, it has been decided that, since livery of seisin is obsolete, the common-law rules based upon abeyance of the seisin do not control, and that, apart from any express statutory authorization, future estates can be created by conveyance inter vivos, unsupported by any precedent estate."

50

47 Litt. § 721; Co. Litt. 378a; 2 Bl. Comm. 167; Fearne, Cont. Rem. 302. 48 See post, § 150.

49 See post, § 134.

so Bunch v. Nicks, 50 Ark. 367; Gorham v. Daniels, 23 Vt. 600; Abbott

120. Vested and contingent remainders distinguished-(a) Ascertainment of remaindermen.

That a remainder cannot be vested 51 unless there be some certain person or persons in being in whom it can be regarded as vested, is a proposition as to which, upon principle, it would seem that there could be little doubt,52 and that such is the law is recognized by the most authoritative writers, and by numerous decisions.53 In a few cases, however, in this country, the courts have failed to recognize this certainty of the remainderman as an essential characteristic of a vested remainder, the error arising from oversight, apparently, and not

v. Holway, 72 Me. 298. See Wyman v. Brown, 50 Me. 139, Finch's Cas. 909; Savage v. Lee, 90 N. C. 320. See Gray, Perpetuities, §§ 67, 68.

"A remainder was originally said to be "vested" because the remain. derman was considered to be "invested" with an actual portion of the fee, though the time of the falling into possession was uncertain. In the case of a remainder subject to a condition precedent, that is, one which was "contingent," the remainderman could not be regarded as invested with a portion of the fee, and in this way the terms “vested" and "contingent" came to be used in opposition to each other as descriptive of different classes of remainders. Hawkins, Wills, 221. See Gray, Perpetuities, § 100.

In some decisions, the term "vested" is applied to an interest to which one has such a title or claim that he may transfer or devise it. See Gray, Perpetuities, § 118, and authorities cited. Thus, in some cases in Massachusetts a "vested interest in a contingent remainder" is spoken of, meaning an interest which is transferable or transmissible. Cummings v. Stearns, 161 Mass. 506; Shaw v. Eckley, 169 Mass. 119. This secondary use of the term "vested" is liable to cause confusion, and must be carefully distinguished from its use to describe an estate or interest not subject to a condition precedent.

52 "A vested remainder is ex vi termini vested in somebody." Gray, Perpetuities, § 108, note.

53 Mr. Fearne, in his work on Contingent Remainders (page 9), states as one class of such remainders, "where a remainder is limited to a person not ascertained or not in being at the time when such limitation is made." See, also, 2 Bl. Comm. 168, 169; 1 Leake, 322; Ducker v. Burnham, 146 Ill. 9; Starnes v. Hill, 112 N. C. 1; Robinson v. Palmer, 90 Me. 246; and the cases cited post, notes 55-59.