I. Kinds of future estates, the characteristics of each and the mode of their creation.
1. Reversions; Interests and Possibilities Analogous Thereto.
13 Johnson (N. Y.), 260. - 1816. [Reported herein at p. 460]
1 '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." 2 Bl. Com. 175. See also N. Y. R. P. L., § 29, "A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised." " If there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law; and so also the reversion after an estate for life, years, or at will, continues in the lessor. * * * A reversion is never, therefore, created by deed or writing, but arises from construction of law." 2 Bl. Com. 175. Bates v. Shraeder, supra, p. 460. Since the creation of an "estate" for years or at will leaves the lessor still "seised," his interest is not a true "reversion." It seems, however, to have been called by that name ever since those "estates" passed over from mere contract rights into interests in the land.
Reversions are always vested rights. In Floyd v. Carow, 88 N. Y. 560, occurs the following language: "The estates devised to the unborn issue of the life tenants were contingent remainders in fee, depending upon a double contingency, viz.: the birth of issue and their survivorship. There was left in the testator a contingent reversion in fee, expectant upon the determination of the life estates, and the failure of issue of the life tenants. * * * The life tenants died, after the death of the testator, without issue. Upon their death, the contingent reversion of the testator in the lands devised to them and their issue was changed into an absolute fee, which, not having been specifically devised, descended to the plaintiff as heir-at-law, unless it passed to the appointees of the testator's wife under the sixth clause of the will." See also Chaplin's Suspension of the Power of Alienation, § 129. It is submitted that the condition here is subsequent as to the reversion and not precedent and that the reversion is vested. See Gray's Rule Against Perpetuities, §§ II and 113,
b. Equitable reversions.
16 Gray (Mass.), 568. - 1860.
Hoar, J. - The construction of the deed of trust made by Elizabeth Fleet Eliot1 to her father was settled by this court in the case of Hil-dreth v. Eliot, 8 Pick. 293, so far as it was necessary to determine the questions which that case presented. It was there held, and we have no doubt, correctly, that the trustee took the entire legal estate, and that the equitable estate of Mrs. Hildreth was only for life, so that her children, if she should leave any at her decease, would take a remainder as purchasers. The grant was to the trustee and his heirs forever. It was in trust to sell the whole or any part and apply the proceeds to her support as she should judge necessary; and the estate of the trustee must be co-extensive with the trust.
The only question which remains to be considered is whether any equitable estate was created in Mrs. Hildreth by force of the provision that, in case of her death leaving no children, the trustee should convey the estate to her heirs-at-law, and this must depend upon the consideration whether the words "heirs-at-law" in this conveyance are to be construed as words of limitation or of purchase.
In Shelley's Case. 1 Co. 103, the rule was stated, "when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases 'the heirs' are words of limitation of the estate, and not words of purchase." This rule was abolished by the St. of 1791, c. 60, § 3, as to wills; but it remained in force as to deeds until the Rev. Sts. c. 59, § 9, terminated its application to deeds as well as wills. As this deed was executed in 1817, the rule in Shelley's Case was therefore in force, and is to be regarded in its construction.
The equitable estate of Mrs. Hildreth was, from the time of her marriage, an estate for life, with a contingent remainder in fee to her children, in case she should leave any at her decease; and a farther limitation, which, if made to any person by name, would have been a contingent remainder, collateral to the first remainder in fee, and therefore good in law. 4 Kent's Com. (6th ed.) 200; 2 Doug.
Reversions may arise by the creation of a less estate out of a fee of any quality. of out of an estate for life. The residue of a term of years remaining in one who has given a sub-lease is also termed a "reversion." - Ed.
1 Miss Eliot married Hildreth. The deed in question was a marriage settlement. - Ed.
505, note, and cases there cited. But as the second limitation is to her heirs-at-law, it seems to fall precisely within the rule in Shelley's Case, to wit, that the ancestor taking an estate for life, and in the same conveyance an estate being limited mediately (that is to say, with an estate interposed between the two) to the heirs, this remainder shall attach in the ancestor, and shall not be in abeyance. 2 Rol. Abr. 417; Remainder, H. pl. 3. And by an application of the same principle, a conveyance in fee, with a limitation of an ultimate use to the heirs of the grantor, is construed as retaining a reversion in him; "for the ancestor during his life beareth in his body (in judgment of law) all his heirs." "And if the limitation had been to the use of himself for life, and after to the use of another in tail, and after to the use of his own right heirs, the reversion of the fee had been in him, because the use of the fee continued ever in him." Co. Lit. 22 b.