This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Private Corp. (2nd Ed.) Sec. 1032; Richards v. Northwestern Coal & Min. Co. 222 Mo. 149, 119 S. W. 953.
35. See ante Sec. 9.
36. Ante Sec. 11.
37. 2 "Pollock & Maitland, Hist. Eng. Law, 22.
38. Challis, Real Prop. 33.
39. See post.
39a. A vested remainder "would be an estate in possession, were it not that other estates have a prior claim; and their priority alone postpones, or perhaps may entirely prevent possession being taken by the remainderman. The gift is immediate; but the enjoyment must necessarily depend on the determination of the estates of those who have a prior right to the possession." Williams, Real Prop. (21st Ed.) 345.
The statement occasionally made that a vested remainder is an estate which is limited to take effect or commence in possession upon the determination of the particthe case of a vested remainder, as in the case of a reversion, there is a limitation of a particular estate,40 which is less in quantum than the estate of the person creating it. In the case of a vested remainder there is, besides the limitation of this particular estate, a limitation of another estate by the same instrument, which other estate cannot take effect in possession, that is, give a right of possession, until the particular estate is out of the way. This estate, deprived of the right of immediate possession by the existence of the particular estate, is what is known as an estate in remainder, or vested remainder. It is, like a reversion, a present, actually existent, estate, and not a future estate.
The word "vested," as used in the expression "vested remainder," would appear to refer merely to the consideration that it is an estate in the land. The word "vest" meant originally to deliver the seisin,41 and since, in the earlier development of the English law, all estates were estates of freehold, and consequently involved the element of seisin, one could ular estate, (Challis, Real Prop. 81; Leake, Prop, in Lands, 317, 319; 2 Blackst. Comm. 164; Smith, Executory Interests, Sec. 159) appears to involve the erroneous idea that one who gives to another a legal estate in land can fix the time at which the latter shall take possession. One who acquires a legal estate has the right of immediate possession, irrespective of the grantor's expression of desire in that regard, except as another may have a superior right of possession.
40. Ante Sec. 129, note 7.
41. Gray, Perpetuities, Sec. 100; 2 Pollock & Maitland, 32, 85; Hawkins, Wills, 221.
In some decisions, the term "vested" is applied to an interest to which one has such a title or claim that he may transfer or devise it. See Gray, Pepe-tuities, Sec. 118, and authorities there cited. Bartram v. Powell, 88 Conn. 86, 89 Atl. 885. Thus, in some cases a "vested interest in a contingent remainder" is spoken of, meaning an interest which is transferable or transmissible. Cummings v. Stearns, 161 Mass. 506; Shaw v. Eckley, 169 Mass. 119; Love v. Lindstedt, 76 Ore. 66, Ann. Cas. 1917A., 898, 147 Pac. 935. This secondary use of the term "vested" is liable to cause confusion, and must be carefully distinguished from its use to describe an estate or interest not subject to a condition precedent.
[Sec. 135 properly be regarded as vested with the seisin whenever he had an estate. The significance of the expressions "vest" and "vested," thus established, was naturally not affected by the later recognition of estates less than freehold, although these did not involve the element of seisin, and one who had merely an estate for years, as well as one having an estate of freehold, would properly be referred to as having a vested interest therein. A remainder, therefore, is appropriately designated as vested, in so far as it is an estate in land. A remainder which is not an estate but merely a prospect or possibility of an estate is not a vested, but a contingent, remainder.
The expression "remainder," in connection with the law of land, is shown by the modern historians of English law41a to have had its origin in the word "remain," which served to describe the course of land if, after the termination of a particular estate created therein, instead of reverting to the grantor, it was to stay out or " remain" to another person, the word "remainder" being of much later introduction in this connection than the word "remain." In view of this showing as to the origin of the word, it is with very considerable confidence that we question the assertion, made by Coke and repeated by later writers of the highest standing,42 that a remainder is a residuary part of the estate of the grantor, being what "remains," or is left after the creation of the particular estate. This attempt to explain a technical term with reference to the meaning of the term as used in popular phraseology has, it is conceived, conduced to a misunderstanding ,of the nature of a remainder. A remainder is not, it is submitted, a part of the estate of the grantor. If one who has an estate in fee simple creates an estate for life in favor of A, and by the same instrument undertakes to convey his fee simple estate to B, B acquires, not a part of the grantor's estate, hut the whole thereof, though acquiring it subject to the prior right of A to possession during his life. If the effect of the creation of the particular estate in favor of A were to diminish to that extent the estate of the grantor, B would acquire from the latter, not an estate in fee simple, but merely the prospect of an estate in fee simple, to commence when the estate of A comes to an end.
Ence to the estate or estates previously created, by which it is deprived of the present possession.
41a. 2 Pollock v. Maitland, Hist. Eng. Law, 2nd Ed. 21.
42. Co. Litt. 49a. 143a: Fearne, Cont. Rem. (10th Ed.) p. 12; 2 Blackst. Comm. 164; 1 Preston.