Where the fee is granted to begin at the end of another estate granted at the same time, the fee is said to be divided into two parts called the "particular estate" and the "remainder" of the fee. Thus, if A grants an estate to B for life and then to C and his heirs, B's estate is known as a particular estate and C's estate is known as the remainder because it commences after the termination of the particular estate and does not come back to the grantor. If in this case A had granted to B for life, making no disposition of the fee after B's death the estate would come back to A and his heirs and A's interest would be known as the "reversion."
At common law a fee could not be granted to take effect in the future. There had to be livery of seizin. But this did not prevent the creation of remainder to begin after the termination of a particular estate because it was considered that the particular estate and the remainder together made up the fee and as the tenant of the particular estate could take the seizin at once the rule in reference to livery of seizin was satisfied. Subsequently by various devices and direct legislation to that effect the fee could be conveyed in futuro, but a division of the fee in this case is still known as a remainder.
Remainders are known as "vested" and "contingent."
A vested remainder is one, the right to enjoy which (after the termination Of the particular estate) has already become certain.
A vested remainder is one which the remainderman has already acquired, though because of the particular estate, he has as yet no enjoyment thereof. Thus a grant by A to B for life and after B's death to C and his heirs, C being at that time alive, vests an estate in C as much as in B, though B has the present enjoyment. Yet C owns the fee and C is the one from whom title must come to any purchaser thereof. It is true C may not live to enjoy his estate. But so is it true that one who has leased his land to another for any term, however short, may die before the tenancy ends, yet he is no less the owner thereof. So in any state of remainder, the remainderman in fee is the owner thereof though his possession may be delayed beyond his death. But remember that in all cases of vested remainders, the estate must really have vested. The person to take must have come into existence and there must not be any condition which may defeat title.
A remainder may vest at the time of the grant or gift, or thereafter on the happening of a contingency.
A remainder is contingent when it is not certain that it will ever vest in the remainderman or his heirs.
A contingent remainder is one which may never vest. The contingency happening, it may become a vested remainder. A remainder may be contingent for a number of reasons. The remainderman named may not yet be in existence and his coming into existence is therefore a contingency on which the vesting depends, as where an estate is granted to A for life and then in fee to the unborn eldest son of A, otherwise to B and his heirs. Or it may be contingent because though the remainderman is in existence, some event may transpire to keep him from ever coming into the enjoyment thereof, as where a particular estate is granted to B and then over to C in the event that he has a son.
A particular estate is necessary to the creation of a remainder, and in contingent remainders must be a freehold estate.
To have a remainder there must be a particular estate upon which the remainder is supported and the remainder must begin immediately upon the termination of the particular estate. Thus, a grant by A to B is a mere conveyance of the fee in its entirety and there is no outstanding remainder. So a grant from A to B to begin in futuro is a mere conveyance of a future estate and no remainder (a future conveyance of the fee was not possible at common law). To support a contingent remainder a particular estate of freehold was necessary.
The law favors the vesting of estates, and a remainder will vest as soon as possible. Where the remainder is to a class, the estate vests in the members of the class as they come into being subject to being opened up for subsequent members.
It is the policy of the law that estates should vest at the earliest possible moment. For this reason where there is any doubt as to whether a remainder is contingent or vested, the court will construe it as a vested remainder. For this reason also an estate will be considered as having vested at the earliest possible moment. Where the gift is to a class none of the members of which are yet in existence, but who come into existence during the life of the particular estate, the remainder will vest in each member as he comes into being subject to being opened up for possible future members.
The rule against perpetuities is a rule which forbids the postponement of the vesting of an estate beyond a certain period. Estates must vest during a life or lives in being or twenty-one years thereafter.
The law forbids the tying up of an estate by remote contingencies whereby it may vest upon their event. The policy of the law in this respect is expressed in what is termed the "rule against perpetuities." This rule has no application to vested estates. Thus a gift to A of an estate which is subject to a lease for 999 years would be good and the rule against perpetuities would not apply to it. The rule is, that if a grant is made to take effect upon a contingency the gift is void unless the contingency must occur and the estate thereby vest either during the life of the tenant, or lives of the tenants, named, or within twenty-one years after his or their death. This permits a gift to an unborn son of the living tenant to take effect on his 21st birthday.
Where an estate less than the fee is created, the fee, subject to this estate remains in the grantor or testator, his heirs or assigns, and is an interest known as the reversion.
By the term reversion we indicate the title which one has in property when he has granted an estate to another which is less than the fee and has not disposed of that fee by way of remainder. Thus, if A owns land in fee and rents it for ninety-nine years to B, the reversion is said to be in A who is the owner of the fee after the ninety-nine years have elapsed. He may sell this reversion or dispose of it as he will but it must pass of course subject to the rights of the tenant.
An executory devise is a gift of real estate by will to take effect on a future contingency without the intervention of a particular state.
An executory devise is, as the name implies, a gift of real estate by will, to take effect upon some future contingency, as where "one devises land to a femme sole and her heirs upon her day of marriage";80 an executory devise needs no particular estate to support it, as in the illustration given, and at common law the same gift by deed would have been void as a conveyance of the fee in futuro. But by executory devise this was permitted.
It was also said that one by executory devise could "limit a fee upon a fee" which was not permissible by deed as "if a man devises land to A and his heirs; but if he dies before the age of twenty-one, then to B and his heirs."
The executory devise is void if it is contrary to the rule against perpetuities.
80. Blackstone, Book II, p. 173.