132 See Wilson v. White, 109 N. Y. 59, 15 N. E. 749; Taylor v. Taylor, 63 Pa. St. 481; Dunwoodie v. Reed, 3 Serg. & It. (Pa.) 435.
133 Allen v. Trustees, 102 Mass. 2G2; Parker v. Parker, 5 Metc. (Mass.) 134; Hawley v. Northampton, 8 Mass. 3; Wolfe v. Van Nostrand, 2 N. Y. 436; Reinoehl v. Shirk, 119 Pa. St. 108, 12 Atl. 806; Titzell v. Cochran (Pa. Sup.) 10 Atl. 9; Richardson v. Richardson, 80 Me. 585, 16 Atl. 250. But see, for limitations which have been held to create executory devises, Jackson v. Chew, 12 Wheat. 153; Richardson v. Noyes, 2 Mass. 56; Lion v. Burtiss, 20 Johns. (N. Y.) 483; Jackson v. Thompson, 6 Cow. (N. Y.) 178; Nicholsou v. Bettle, 57 Pa. St. 384.
134 Gatenby v. Morgan, 1 Q. B. Div. 6S5; Jackson v. Noble, 2 Keen, 590.
135 Moffat's Ex'rs v. Strong, 10 Johns. (N. Y.) 12; Doe v. Craig, Busb. (N. C.) 169; Pells v. Brown, Cro. Jac. 590. But see Gray, Perp. §§ 142, 147.
136 Doe v. Eyre, 5 C. B. 713; Robinson v. Wood, 27 Law J. Ch. 726. See, also, Murray v. Jones, 2 Yes. & B. 313; Avelyn v. Ward, 1 Ves. Sr. 420; Lomas v. Wright, 2 Mylne & K. 769; Tarbuck v. Tarbuck, 4 Law J. Ch. 129.
The rights and duties of the owners of future estates are the correlatives of the rights and duties of the owners of the estates which precede them, and these have already been considered in treating of the different estates in possession.137 So, too, the right to dower and curtesy in future estates has been treated of in the chapters on those subjects.138 And in other connections it has been seen that the tenant of an estate which precedes a future estate has no claim on the owner of the latter for improvements.139 The methods by which the different future estates may be destroyed have been touched upon briefly in connection with reversions 140 and remainders,141 and as to the other it may be said that no act of the tenant of the particular estate can destroy the future estate.142
182. There is a relation of tenure bet-ween the owner of a future estate and the tenant of the preceding estate only in the case of a reversion.
Possession by the tenant of the particular estate is in no case adverse to the owner of the future estate, and so the former cannot disseise the latter.143 In reversions, tenure exists between the tenant of the particular estate and the reversioner.144 In case the particular estate is a freehold, the tenant of the particular estate has the seisin, but, when the particular estate is less than a freehold, the actual seisin is in the reversioner.145 In remain137 Ante, pp. 49, 58, 134.
138 Ante, pp. 79, 91.
139 Ante, p. 61.
140 Ante, p. 281.
141 Ante, pp. 289, 293.
142 Archer's Case, 1 Coke, 66b; Chudlelgh's Case, Id. 120. And as to executory devises, see ante, p. 302.
143 Jackson v. Schoonmaker, 4 Johns. (N. Y.) 390; Jackson v. Sellick, 8 Johns. (N. Y.) 262; Jackson v. Johnson, 5 Cow. (N. Y.) 74; Davis v. Dickson, 92 Pa. St. 365; Miller v. Shackleford, 3 Dana (Ky.) 289; Meraman's Heirs v. Caldwell's Heirs, 8 B. Mon. (Ky.) 32; Stubblefield v. Menzies, 8 Sawy. 41, 11 Fed. 268.
144 2 Washb. Real Prop. (5th Ed.) 803.
145 2 Washb. Real Prop. (5th Ed.) 804; Williams, Real Prop. (17th Ed.) 387.
Ders there is no tenure between the tenant of the particular estate and the remainder-man, because both hold under the same person.146 In future uses and devises, no relation of tenure exists.
183. Waste by the tenant in possession will be restrained in favor of the owner of a future estate, unless that is a contingent remainder, which may be defeated by the tenant of the preceding estate.
Subject to the following exceptions, waste by the tenant of the particular estate will be restrained in favor of the owner of the future estate.147 And, for injuries to the corpus of the estate committed by strangers, both the owner of the particular estate and of the future estate may have actions according to their interests.148 At common law, while waste would be restrained in favor of the owner of a vested remainder, it would not be for the owner of a contingent remainder, because the tenant of the particular estate could defeat the contingent remainder absolutely.149 This was not the case, however, when there was immediate limitation to trustees to preserve the contingent remainders, because the tenant then had no power to destroy the remainders.150 As soon as a contingent remainder becomes vested, waste would be restrained; and it will now, in these jurisdictions where the power to destroy contingent remainders has been abolished. Springing and shifting uses and executory devises are indestructible by the tenant in possession, and so he will be enjoined from committing waste; but, when the limitation is after a fee, ordinary waste by the owner of the fee will not be restrained, but equitable waste will be.151
146 Van Deusen v. Young, 29 N. Y. 9; Hill v. Roderick, 4 Watts & S. (Pa.) 221.
147 See ante, p. 66. Livingston v. Reynolds, 2 Hill (N. Y.) 157.
148 Foot v. Dickinson, 2 Mete. (Mass.) 611; Bates v. Shraeder, 13 Johns. (N. Y.) 260; Elliot v. Smith, 2 N. H. 430; Chase v. Hazelton, 7 N. H. 17L But see Peterson v. Clark, 15 Johns. (N. Y.) 205.
149 Hunt v. Hall, 37 Me. 363; Bacon v. Smith, 1 Q. B. 345. 150 See ante, p. 293.
151 Matthews v. Hudson, 81 Ga. 120. 7 S. E. 286; Robinson v. Litton, 3 Atk. 209. As to what constitutes equitable waste, see ante, p. 62.
184. Any future estate may be transferred, if the person who is to take is ascertained.
The transfer of a reversion after a term of years has already been considered.152 Estates in reversion may be conveyed by deed or by devise, and the transfer may be of part of the reversion only.153 At common law, however, a reversion could not be conveyed by feoffment, unless the particular estate was less than a freehold.154 Reversions may be conveyed by any form of deed operating under the statute of uses.
A vested remainder may be transferred by the owner in the same way, and under the same conditions as to the kind of conveyance, as a reversion.155 But a contingent remainder at common law could only be released or conveyed by will, though transfers of contingent remainders are now upheld.156 A contingent remainder, however, in which the contingency consists in the uncertainty of the person who is to take, can in no case be transferred until such person is ascertained.157 The same rule applies, also, to springing and shifting uses and executory devises.158 At common law, executory devises are not subject to alienation.159 In equity, however, these interests may be devised or assigned if the person entitled is in being and ascertained.160
152 See ante, p. 147. 153 Doe v. Cole, 7 Barn. & C. 243. 154 Co. Litt. 48b.
155 Stewart v. Neely, 139 Pa. St. 309, 20 Atl. 1002; Robertson v. Wilson. 88 N. H. 48; Brown v. Fulkerson, 125 Mo. 400, 28 S. W. 632.
156 Kenyon v. Lee, 94 N. Y. 563; Ackerman's Adm'rs v. Vreeland's Ex'r, 14 N. J. Eq. 23, 29; Godman v. Simmons, 113 Mo. 122, 20 S. W. 972; Hall v. Chaffee, 14 N. H. 216.
157 Havens v. Land Co., 47 N. J. Eq. 365, 20 Atl. 497.
158 Young v. Young, 89 Va. 675, 17 S. E. 470; Nutter v. Russell. 3 Mete. (Ky.) 163; Jacob v. Howard (Ky.) 22 S. W. 332; Hall v. Chaffee. 14 N. H. 216.
159 Hall v. Chaffee, 14 N. H. 215; Lampet's Case, 10 Coke, 46b.
160 Bayler v. Com., 40 Pa. St. 37; Wright v. Wright, 1 Ves. Sr. 409; Crofts v. Middleton, 8 De Gex, M. & G. 192.
185. When the person who is to take a future estate is ascertained, it descends, on his death intestate, to his heirs, except: Exception-in states where the rule has not been changed by statute, a reversion descends only to those who can trace their descent from the one last seised.
A reversion descends to the heirs of the reversioner, but at common law it was subject to the rule that no one could take a reversion as heir unless he could trace his descent as heir of the one last actually seised of the reversion.161 If the reversion is transferred the transferee becomes a new stock, from whom subsequent persons claiming the reversion as heirs must trace their descent.162 This rule has been abolished in many states by statute.163 Re-mainders, future estates under the statute of uses, and executory devises descend to the heirs of their owners, except in cases where the person who is to take is not ascertained.164 The owner may dispose of his estate by will, and cut off any chance of his heirs inheriting. The future estate, in order that it may descend, must in any case be of sufficient quantity; that is, it must be an estate of inheritance.