161. The future estates or interests possible under the common law are:
(a) Reversions (p. 280).
(b) Possibilities of reverter (p. 281).
(c) Remainders (p. 282).
162. A reversion is the estate which remains in an owner after he has granted away part of his estate. The estate granted is called the particular estate. There may be a reversion after any estate except a fee.
"An estate in reversion is the residue of an estate left in the grantor to commence in possession after the determination of some particular estate granted out by him." 1 A reversion can be created out of any estate except an estate at will or at sufferance. Out of the latter estates there can be no reversion, because in creating a reversion the grant of a particular estate is necessary, and no alienation is possible of the whole or of part of an estate at will or at sufferance.2 Any number of particular estates may be created by one owning a fee-simple, and still a reversion may remain, so long as the fee itself is not disposed of. For example, the owner of a fee may grant a fee tail, and on failure of the specified heirs the estate will revert to the grantor or his heirs. So out of a fee tail a life estate might be granted, and there would be a reversion, or out of a life estate there might be a reversion after an estate for years. The owner of an estate for years may grant to another a term for a shorter time than his own, and the balance may revert to him; but, if he grants an estate of as long duration as his own, it will be an assignment, and there will be nothing to revert.3 Reversions may exist, also, after estates created by operation of law; for instance, after an estate of dower.4 So, too, there are reversionary interests in equitable estates, as where there is a resulting trust to the grantor after an equitable life estate in another person.5 In each case the estate which precedes the reversion is called a particular estate.
1 2 Bl. Comm. 175.
2 See ante, pp. 157, 164.
3 See ante, p. 148. And see, as to reversions generally, Cook v. Hammond, 4 Mason, 467, Fed. Cas. No. 3,159; State v. Brown, 27 N. J. Law, 13; Me-kelway v. Seymour, 29 N. J. Law, 321.
4 See ante, p. 102.
5 Loring v. Eliot, 16 Gray (Mass.) 568; Read v. Stedman, 26 Beav. 495.
The nature of a reversion after an estate less than a freehold has already been considered, and in that connection the right of a reversioner to rents, and the rights and liabilities of the parties on covenants contained in the lease, have been treated of.6 The rights of reversioners will be considered in connection with the incidents of future estates in general.7 When both the particular estate and the reversion are united in the same person, they will merge.8 This is true whether the estates are freehold or leasehold.9 And, if the latter, a particular estate consisting of a longer term of years will merge in a shorter reversion, and the former estate will be destroyed, leaving only the shorter term.10 Disseisin of the tenant of the particular estate does not affect the reversioner, because he has no immediate right of entry. And the statute of limitation under such disseisin does not begin to run before the time at which the reversioner becomes entitled to the possession.11
163. After a fee on condition or on limitation, the interest remaining in the grantor is called a possibility of reverter.
As has been stated, a reversion may exist after any particular estate less than a fee. Where a fee is granted, and a right of entry reserved for the breach of a condition, no reversion exists. There is only what is called a possibility of reverter.12 The same was true of a fee conditional at common law before the statute de donis, though there was a possibility that the estate might revert to the grantor for the failure of heirs of the body of the grantee; yet, this possibility not being an estate, there was no reversion, but only a possibility of reverter.13 In such case, however, after the statute de donis had changed the fee conditional into an estate tail, there was a reversion.14 A possibility of reverter may be transferred.15 "In Gray's rule against perpetuities,16 it is contended that since quia emptores, abolishing tenure between feoffor and feoffee on a grant of the fee simple, possibilities of reverter are not valid interests in land, and that by virtue of that statute base fees have ceased to exist. But in the United States base fees are not considered as dependent on the existence of tenure, and are still recognized as valid estates, as Prof. Gray concedes and laments."*
6 Ante, p. 134.
7 Post, p. 302.
8 2 Washb. Real Prop. (5th Ed.) 806.
9 See Martin v. Tobin, 123 Mass. 85.
10 Hughes v. Robotham, Cro. Eliz. 302; Stephens v. Bridges, 6 Madd. 66. 11 Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390.
12 Slegel v. Lauer, 148 Pa. St. 236, 23 Atl 996; Nicoll v. Railroad Co., 12 N. Y. 121.
164. A remainder is an estate depending on a preceding particular estate, created by the same instrument, and limited to arise on the termination of the preceding estate, but not in derogation of it.
165. Remainders are either
(a) Vested (p. 288), or
(b) Contingent (p. 289).
It will be seen from the above definition of a remainder that it differs from a reversion principally in that the residue of the estate remaining after the particular estate in the case of a reversion goes back to the grantor or his heirs, but in a remainder this residue is limited over to a third person.17 Remainders are always created by express limitation, and can never arise by operation of law.18 A remainder must always be created by the same instru13 See ante, p. 45.
14 2 Washb. Real Prop. (5th Ed.) 801.
15 Slegel v. Lauer, 148 Pa. St. 236, 23 Atl. 996; Scheetz v. Fitzwater, 5 Pa. St. 126. Contra, Nicoll v. Railroad Co., 12 N. Y. 126.
16 Sections 31-42.
♦Graves, Real Prop. 135, citing Boiling v. Mayor, etc, of Petersburg, 8 Leigh (Va.) 229; Leonard v. Burr, 18 N. Y. 96.
17 Booth v. Terrell, 16 Ga. 20; Phelps v. Phelps, 17 Md. 120.
18 See Dennett v. Dennett, 40 N. H. 498. As to the difference between purchase and descent, see post, p. 399.
Ment as the particular estate which precedes it.19 This is, in effect, an assignment of the reversion at the time of the creation of the particular estate. But, if the reversion is assigned at a subsequent time, it is still called a reversion, and not a remainder. A remainder must always be so limited as to take effect at once on the termination of the particular estate on which it depends.20 But it is held that a child in ventre sa mere at the termination of the preceding estate is capable of taking a remainder which vests then.21 The rule that remainders must take effect immediately on the termination of the preceding estate has been changed in some states by statute.28 A remainder must not take effect in derogation of the particular estate on which it depends; that is, the vesting of the remainder must not cut short the preceding estate.28 Such a limitation can take effect only as a shifting use or a shifting devise.24 There may, however, be a remainder after an estate on limitation.25 That is, when an estate is given to determine absolutely on the happening of an event, a valid remainder may be limited to begin on the termination of that estate. For example, an estate may be given to A. and his heirs until B. returns from Rome, and then the remainder given to C. This would be valid, since the remainder does not cut short the prior estate. But if the limitation was to A. and his heirs, but, if B. returns from Rome, then to C, the estate could not take effect as a remainder. The preceding estate, being one on condition, is cut short by the event on which it is attempted to cause the remainder to vest.27 A remainder may be created out of an equitable estate.28 Any estate as to quantity may be created in remainder; that is, a fee, fee tail,
19 2 Washb. Real Prop.
20 Hennessy v. Patterson, 85 N. T. 91; Doe v. Oonsidine, 6 Wall. 458, 474.
21 See Burdet v. Hopegood, 1 P. Wms. 486.
22 l stim. Am. St. Law, §§ 1421, 1426.
23 2 Washb. Real Prop. (5th Ed.) 601. In New York, Michigan, and some other states contingent remainders are not bad because they may defeat the preceding estate. 1 Stim. Am. St Law, § 1426 C. And see Gillespie v. Allison, 115 N. C. 542, 20 S. E. 627.
24 See post, pp. 299, 300.
25 See ante, p. 177.
27 See Proprietors of Church In Brattle Square v. Grant, 3 Gray (Mass.) 142.
28 Scofield v. Alcott, 120 111. 362, 11 N. E. 35L life estate, etc., may be created to take effect in futuro as remainders. In limiting such estates the technical words to be used are the same as when creating estates in possession.29