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Remainder

estate, vested, time, contingent, created, fee, limitation, particular and freehold

REMAINDER. An estate in re mainder is defined by Coke to be " a remnant of an estate in lands or tene ments, expectant on a particular estate, created together with the same at one time." According to this definition, it must be an estate in lands or tenements, including incorporeal hereditaments, as rents and tithes; and it is an estate which at the time of its creation is not an estate in possession, but an estate the enjoyment of which is deferred. The estate in remainder may exist in lands or hereditaments held for an estate of in heritance or for life. 'It must be created at the same time with the preceding estate, and by the same instrument ; but a will and a codicil are for this purpose the same instrument. A remainder may be limited by appointment, which is an execution of a power created by the in strument that creates the particular estate ; for the instrument of appoint ment is lrvally considered as a part of the original instrument. A remainder may also be created either by deed or by will; and either according to the rules of the common law, or by the operation of the Statute of Uses, which is now the more usual means.

If a man seised in fee simple grants lands to A for years or for life, and then to B and his heirs, B has the remainder in fee, which is a present interest or estate, and he has consequently a present right to the enjoyment of the lands upon the determination of A's estate ; or, in other words, he has a vested estate, which is cal led a vested remainder. A reversion differs from a remainder in several respects. He who grants an estate or estates out of his own estate, retains as his reversion whatever he does not grant ; and upon the determination of the estate or estates which he has granted, the land reverts to him. There may be several re mainders and a reversion expectant on them. If A, tenant in fee simple, limits his estate to B for years, with remainder to C for life, with remainder to D in tail, this limitation does not exhaust the estate in fee simple. By the limitation B becomes tenant in possession for years, C has a vested remainder for life, D a vested remainder in tail, and A has the reversion in fee. If the limitation by A exhaust the whole estate, as it would have done in the preceding instance if the limitation had been to C and his heirs, A has no estate left. It is a neces sary consequence that if a man grants all his estate, he can grant nothing more ; and therefore the grant of any estate after an estate in fee simple is void as a remainder. Indeed, the word re mainder implies that what is granted as such is either a part or the whole of something which still remains of the original estate.

The estate which precedes the estate in remainder or in reversion is called the particular estate, being a partieula or portion of all the estate which is limited ; and the particular estate may be any estate except an estate at will and an estate in fee simple. It must therefore

be either an estate for years, or for life, or in tail.

Estates for years may be granted to commence at a future time ; but by the rules of the common law, no estate of freehold can be created to commence at a future time. If therefore such an estate of freehold is granted, there must be created at the same time an estate for years, which shall continue till the time fixed for the enjoyment of the estate of freehold. If a freehold remainder ex pectant on an estate for years is created at common law, there must be livery of seisin to the tenant for years, for it is necessary that the freehold should pass to the grantee at the time of the grant, and the livery to the tenant for years enures to give a seisin to him to whom the estate of freehold is granted.

A remainder cannot be granted so as not to take effect immediately on the de termination of the particular estate. If there is any interval left between the particular estate and the remainder in their creation, the remainder is absolutely void. A grant of an estate to A, and one day after the determination thereof to B, is a void remainder.

Estates in remainder are either vested or contingent. The remainder may vest at the time of the limitation, or it may vest afterwards : in either ease the remainder-man acquires an estate in the land, to the enjoyment of which he is entitled upon the determination of the preceding estate. But it may happen that a vested remainder may never become an estate in possession.

A vested remainder is an estate which, by the terms of the original limitation or conveyance, is limited or conveyed un conditionally. If a remainder is riot vested, it is contingent.

A contingent remainder is defined by Fearne to be remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed. till after the determination of the pre ceding estate." Accordingly it is the limitation of the remainder which is con ditional, and there is no remainder limited or given until the condition hap pens or is performed. The uncertainty of the remainder becoming an estate in possession is no part of the notion of a contingent remainder; for this kind of uncertainty may exist, as already ob served, in the case of vested remain ders.

Fearne has made four classes of con tingent remainders, to some one of which he considers that all kinds of contingent remainders may be reduced, but he adds that " several cases which fall literally under one or other of the two last of those four descriptions, are nevertheless ranked among vested estates." The sub ject of contingent remainders is fully discussed in the elaborate treatise of Fearne, on Contingent .Remainders and Executory Devises.