At common law there was a rule that no limitation of an estate was valid which would put the freehold in abeyance; or, as it was otherwise expressed, a freehold could not be created to commence in futuro.37 This is but another form of the rule that the particular estate which precedes and supports a remainder must be a
29 Phelps v. Phelps, 17 Md. 120, 134; Nelson v. Russell, 135 N. Y. 137, 31 N. E. 1008; Livingston v. Greene, 52 N. Y. 118; Jones v. Swearingen, 42 S. C. 58, 19 S. E. 947; Doren v. Gillum. 136 Ind. 134, 35 N. E. 1101.
30 See ante, p. 34.
31 Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159.
32 See 2 Wasbb. Real Prop. (5th Ed.) 586.
33 1 stim. Am. St. Law, § 1424d.
34 Proprietors of Church in Brattle Square v. Grant, 3 Gray (Mass.) 142.
35 Driver v. Edgar, 1 Comp. 379.
36 Dareus v. Crump, 6 B. Mon. (Ky.) 363; Macknet's Ex'rs v. Macknet, 24 N. J. Eq. 277; Yeaton v. Roberts, 28 N. H 459. But see Blatchford v. Newberry, 99 111. 11.
37 Buckler v. Hardy, Cro. Eliz. 585.
§§ 164-165) freehold. This was due to the technical doctrine that there must always be some one seised of the inheritance.38 This rule did not apply, as has been seen,39 to the creation of chattel interests, because for them no seisin was required, the only thing transferred to the tenant being the possession. And there is the further reason that a leasehold to begin in the future is a contract to create an estate for years, which is executed by the lessee taking possession. It was possible, however, at common law, to create reversions and remainders, because, though they were future estates, their creation did not place the freehold in abeyance, the tenant of the particular estate having the seisin of a freehold. Remainders cannot be created to begin in futuro.40 By statute, in many states, freeholds may now be limited to commence in futuro, with or without a preceding estate,41 and freeholds in futuro may be created by conveyances not operating at common law; that is, by conveyances operating under the statute of uses or the statute of wills. These are springing and shifting uses and executory devises. They take effect without a particular estate to support them or in derogation of such an estate. Remainders cannot be valid in either of these cases. Limitations of future estates must not be good as remainders, or they will be so construed.* If a limitation takes effect as a remainder, it cannot subsequently operate as a springing or shifting use or an executory devise when it has failed as a remainder.†
But a limitation in a will which would be good as a remainder at the time the will was executed, but, on account of an event occurring before the death of the testator, becomes impossible as a remainder, may take effect as an executory devise.‡ But an estate which has become operative as springing or shifting use or executory devise will be turned into a remainder at any time when that becomes possible.**
38 See ante, p. 32.
39 See ante, p. 133.
40 Doe v. Considine, 6 Wall. 458, 474; Brown v. Lawrence, 3 Cush. (Mass.) 390, 398; Wilkes v. Lion, 2 Cow. (N. Y.) 333.
41 1 Stim. Am. St. Law, § 1421.
*Sawley v. Northampton, 8 Mass. 3; Parker v. Parker, 5 Mete. (Mass.) 134; Stehman v. Stehman, 1 Watts (Pa.) 466; Manderson v. Lukens, 23 Pa. St. 31; Doe v. Selby, 2 Barn. & C. 926; Hasker v. Sutton, 1 Bing. 500.
†Manderson v. Lukens, 23 Pa. St. 31; Crozier v. Bray, 39 Hun, 121; Doe v. Howell, 10 Barn. & C. 191; Purefoy v. Rogers, 2 Saund. 3S0. But see Doe v. Roach, 5 Maule & S. 482.
‡Hopkins v. Hopkins, Cas. t. Talb. 44; Doe v. Howell, 10 Barn. & C. 191.
166. Successive Remainders - One remainder may be limited to take effect after another, until the fee is exhausted. Such limitations are called successive remainders.
One remainder may be limited to take effect after another, and so on until the fee is exhausted.42 For example, there may be an estate given to A. for life, with remainder to B. for life, with remainder to C. for life; and, if no further disposition of the estate was made on the death of C, the estate would revert to the grantor or his heirs. These successive remainders must, like other remainders, take effect immediately after each other.43
167. Cross Remainders - Remainders after two or more particular estates which all go over to the last survivor of the particular tenants are called cross remainders.
Where two or more have particular estates, the remainders of which are so limited that on the death of any one his share goes over to the others, and so on until all the shares are vested in the last survivor,44 the estates which are limited over in this way are
**Thompson v. Hoop, 6 Ohio St. 480; Wells v. Ritter, 3 Whart. (Pa.) 208. At common law, future estates cannot be created out of chattel interests. A life estate and a remainder cannot be limited out of a term of years, though the duration of the term be greater than the possible duration of the life of the first taker. Maulding v. Scott, 13 Ark. 88; Merrill v. Emery, 10 Pick. (Mass.) 507. But such limitations may be made either as future uses or executory devises. Smith v. Bell, 6 Pet. G8; Gillespie v. Miller, 5 Johns. Ch. (N. Y.) 21; Maulding v. Scott, 13 Ark. 88; Wright v. Cartwright. 1 Burrows, 282; Lampet's Case, 10 Coke, 46.
42 2 Washb. Real Prop. (5th Ed.) 589.
43 Whitcomb v. Taylor, 122 Mass. 243.
44 Hawley v. Northampton, 8 Mass. 3; Seabrook v. Mlkell, 1 Cheves (S. C.) 80. But see, for cases where the whole does not go to the last survivor,.
§ 168) called cross remainders. The term applies only to the limitation over after the particular estates, and not to those estates themselves. The limitation may be either by deed 45 or by will.46 Those in whom cross remainders are vested in some respects resemble joint tenants.47
168. Alternate Remainders-when remainders are so limited after a particular estate that only one of them can ever take effect they are called alternate remainders.
Two or more remainders in fee may be so limited that one of them only can take effect. For example, land may be given to A. for life, and, if he have issue male, then to such issue male and his heirs forever, but, if he die without issue male, then to B. and his heirs forever.48 In this case only one remainder could take effect, and the other would be absolutely void; or, in other words, an alternate remainder in fee can be limited to take effect in place of another, but not subsequently to it, for there can be no remainder after a fee.49 Limitations of this character are called alternate remainders in fee, substitutional fees, and fees with a double aspect50
McGee v. Hall, 26 S. 0. 179, 1 S. E. 711; Reynolds v. Crispin (Pa. Sup.) 11 Atl. 236.
45 Bohon v. Bohon, 78 Ky. 408. But they will not be raised in a deed by implication. Doe v. Worsley, 1 East, 416; Doe v. Dorvell, 5 Term R. 518.
46 Atherton v. Pye, 4 Term R. 710. Cf. Doe v. Cooper, 1 East, 229. In a will they may arise by implication. Watson v. Foxon, 2 East, 36; Doe v. Webb, 1 Taunt. 234; Ashley v. Ashley, 6 Sim. 358.
47 See post, p. 333. But It is not necessary that the four unities which are required for joint tenants be present in the case of cross remainders.
48 Terrell v. Reeves, 103 Ala. 264, 16 South. 54; Loddington v. Kime, 1 Salk. 224; Goodright v. Dunham, Doug. 264; Smith v. Horlock, 7 Taunt. 129.
49 See Demill v. Reid, 71 Md. 175, 17 Atl. 1014; Taylor v. Taylor, 63 Pa. St. 481; Beckley v. Leffingwell, 57 Conn. 163, 17 Atl. 766; Bank v. Ballard's Assignee, 83 Ky. 481.
50 See Whitesides v. Cooper, 115 N. C. 570, 20 S. E. 295.
169. Vested Remainders-a vested remainder is one where neither the right to the estate nor the person entitled is uncertain. The only uncertainty is as to the enjoyment.
It will be seen from this definition that in a rested remainder only the possession is postponed; that is, a vested remainder is a present right to the future enjoyment of an estate, and will vest in possession as soon as the particular estate determines.51 No amount of uncertainty as to enjoyment makes a remainder contingent. For instance, a vested remainder may be given to A. for life, to take effect after an estate tail in B. In this case, if A. is a person in being, the remainder is vested, although he will probably never enjoy his estate.52 In doubtful cases remainders are construed as vested, rather than as contingent.53 A contingent remainder becomes vested upon the happening of the event which makes it contingent, and is then in all respects like other vested remainders.54
Remainders to a Class.
Where a remainder is given to a class of persons, as "to the children of A.," as soon as A. has children the remainder becomes vested; but, if other children are born before the particular estate determines, it will open to admit them.55 A conveyance by the children in whom
51 Croxall v. Shererd, 5 Wall. 268, 288; Haward v. Peavey, 128 111. 430, 21 N. E. 503; Marvin v. Ledwith, 111 111. 144; Hill v. Bacon, 106 Mass. 578; In re Young, 145 N. Y. 535, 40 N. E. 226; Crews' Adm'r v. Hatcher, 91 Va, 378, 21 S. E. 811.
52 Kemp v. Bradford, 61 Md. 330; Gourley v. Woodbury, 42 Vt. 395.
53 Scofleld v. Olcott, 120 111. 362, 11 N. E. 351; Wedekind v. Hallenberg, 88 Ky. 114, 10 S. W. 368; Anthony v. Anthony, 55 Conn. 256, 11 Atl 45; Weatherhead v. Stoddard, 58 Vt. 623, 5 Atl. 517; Dingley v. Dingley, 5 Mass. 535.
54 Doe v. Considine, 6 Wall. 458; Wendell v. Crandall, 1 N. Y. 491; Van Giesen v. White (N. J. Ch.) 30 Atl. 331; Doe v. Perryn, 3 Term R. 484.
55 Rudebaugh v. Rudebaugh, 72 Pa. St. 271; Minnlg v. Batdorff, 5 Pa. St 503; Ross v. Drake, 37 Pa. St. 373; Doe v. Provoost, 4 Johns. (N. Y.) 61; In re Young, 145 N. Y. 535, 40 N. E. 226; Haggerty v. Hockenberry (N. J. Ch.) 30 Atl. 88; Downes v. Long, 79 Md. 382, 29 Atl. 827; Security Co. v. Cone, 64 Conn. 579, 31 Atl. 7; Parker v. Leach (N. H.) 31 Atl. 19; In re the remainder had vested would not bar the rights of others subsequently born, not even if the conveyance was made by a guardian of the children under an order of court56 Limitations of this kind, however, are to be distinguished from those which are not to take effect until the death of the parent; for instance, where a remainder is given "to the children of A. living at his death." In this case the remainder is contingent, and does not vest until A.'s death, because up to that time the persons who are to take cannot be ascertained.57