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 .
Abstracts 86; 4 Kent's Comm. 197; Leake, Prop. In Land p. 41; Digby, Hist. Law Real Prop. (4th Ed.) 260; Challis, Real Prop. (3rd Ed.) 83.
It is some times said that while a reversion is created by the law, a remainder springs from the act of the parties.43 In so far as this statement may seem to imply that an estate assumes the character of a remainder without reference to any rule of law and merely because the parties so desire, it is misleading. The correct view is, that as the law says that, when one person creates an estate less than his own in favor of another, without disposing of his own estate, his estate is thereafter an estate in reversion, so the law says that, when one creates, by one instrument, two or more estates, so that the possession incident to one estate is temporarily exclusive of the possession incident to another, the latter is an estate in remainder as regards the other. Even an express declaration by the grantor that such estate is not to be a remainder would be nugatory. The statement referred to is correct only if construed as meaning that while an estate assumes the character of a reversion as a result of the conveyance, not of that estate, but of a less estate, an estate assumes the character of a remainder as a result of the conveyance of that estate itself. A reversion, as well as a remainder, springs from the act of parties or, regarding a conveyance as a unilateral transaction,44 of a party.45
43. 2 Blackst. Comm. 163, 175; Williams Real Prop. (21st Ed.) 333; and see, to the same effect,
Challis. Real Prop. (3rd Ed.) 77.
44. Post Sec. 463.
45. Except in the case of a
Since, as above explained, an estate is a remainder by reason of its deprivation of possession by another estate created by the same instrument, independently of whether the party or parties intend that it shall be a remainder, the particular language used in introducing the limitation of such estate is immaterial. Occasionally, perhaps usually in this country, it is introduced by the words "remainder to," but in such case the estate is a remainder, not because of the use of such words, but because such is its nature. Frequently, a remainder upon an estate for life is introduced by the words "after his death." Other expressions which may be used in this connection are "from and after the determination of that estate," "in default of," "for want of," or "upon failure of." But whatever language may be used to introduce the limitation of an estate subject to an estate previously limited by the same instrument, it is to be regarded, not as fixing the character of that estate as a remainder vel non,. but as "merely an expression employed by the testator (or settlor) in carrying on the series of limitations."46 incidentally serving to reconcile the limitations and to aid in ascertaining the order in which they are to be regarded as operative.
A number of remainders may be created in the same land at one and the same time. For instance, one having a fee simple estate may, by one and the same instrument, convey a life estate to A, a life estate to B, an estate in fee tail to C, and an estate in fee simple to D.47 In such case each estate, except that of D, is to be regarded as a particular estate, and each estate, except that of A, is to be regarded as a remainder with referreversion upon an estate of dower or curtesy, in which case the reversion springs from an act of the law. See post, Sec. 208.
46. 1 Jarman, Wills, 5th Ed. 757.
47. In New York, and other states which have adopted its legislation in this regard, if more than two successive estates for life are created, all those subsequent to the first two are void. New York Real Prop. Law, Sec. 43.
- (b) The particular estate. The particular estate, by reason of the interposition of which an estate conveyed or devised by the same instrument acquires the character of a remainder, is more usually an estate for life,48 but it may be an estate in fee tail,49 or an estate for years.50
The particular estate may be subject to a special limitation, as in the case of a limitation to A for life or during her widowhood, with remainder to B, in which case B's right of possession will accrue when A's life estate comes to an end, whether this is by reason of A's death or by reason of her remarriage.51 And so, in jurisdictions in which estates in fee tail are still recognized, there might be a remainder upon an estate to a man and the heirs of his body so long as they bear a certain name.52
There can be no remainder upon an estate in fee simple, for the reason that, by disposing of such an estate, one divests himself of all interest in the land, and has no estate to transfer to another.53 Nor can there, for the same reason, be a remainder upon a determinable fee.54 A tenant in fee simple who creates a deter48. Fearne, Cont. Rem. 3, and Butler's note. Or an estate per autre vie, Kenyon's Petition, 17 R. I. 149.
49. Litt. 215; Co., Litt. 143a; Gray, Perpetuities, Sec. 111; Fearne, Cont. Rem., Butler's note, c. 1; Webb v. Hearing, Cro. Jac. 415; Taylor v. Taylor, 63 Pa. St. 481, 3 Am. Rep. 565; Hall v. Priest, 6 Gray (Mass.) 18.
50. See Litt. Sec. 60; Fearne Cont. Rem. 3, Butler's note, 2 Blackst. Comm. 164.
51. Fearne, Cont. Rem. 13, and Butler's note; Challis, Real Prop.
63; Perkins v. Gibbs, 153 Fed. 952, R. P.-31
83 C. C A. 68; Fletcher v. Hoblit-zell, 209 Pa. 337, 58 Atl. 672.
52. See Fearne, Cont. Rem. 254, note E.
53. 2 Blackst. Comm. 164; Fearne, Cont. Rem. 12, 4 Kent, Comm. 200; Willion v. Berkley, Plowd. 248; Horton v. Sledge, 29 Ala. 478; Macumber v. Bradley, 28 Conn. 445; Lambe v. Drayton, 182 111 110, 55 N. E. 189; Blanchard v. Brooks, 12 Pick. (Mass.) 47; Burleigh v. Clough, 52 N. H. 273, 13 Am. Rep. 23; Goodrich v. Harding, 3 Rand. (Va.) 280.
54. Co. Litt. 18a; Challis, Real Prop. 83; 2 Cruise, Dig. tit. 16. c.
Minable fee in favor of another, has thereafter no estate to transfer to a third person, but merely the possibility of an estate.
In discussing the subject of estates in fee tail, the effect of a devise to A, with a limitation over in favor of B on the "failure of issue of A," or with the use of similar words, as creating an estate in fee tail in A, was considered.55 When an estate in fee tail is created in A, by the use of such language, B is regarded as taking an estate subject to A's estate, that is, an estate in remainder, to vest in possession when A 's issue comes to an end.56
The effect of the creation of an estate by way of vested remainder upon a particular estate which is subject to an express condition subsequent is a question upon which the authorities are not in accord. Occasionally it has been said that the effect of the creation of the remainder is to destroy the condition annexed to the particular estate,57 upon the theory, apparently, that a condition, to be valid, necessarily involves a right of re-entry in the grantor, and there cannot be a right of re-entry in the grantor.when the right of possession, upon the termination of the particular estate, is in the remainderman. Other authorities take the view that the condition is valid and effective, and that re-entry there-under has the effect of destroying the remainder.58 This latter view, that re-entry destroys not only the particular estate hut also the remainder, has been in one case based upon the theory that one who reenters for breach of a condition necessarily acquires the same estate as he had before the condition was created,59 while in another case it is said that the re-entry defeats the livery of seisin by which both estates were created.60 Neither of these two reasons for regarding the re-entry upon the particular tenant as destroying the remainder appears entirely Convincing, and a more satisfactory view would seem to be indicated in one or two decisions in this country,60a that such re-entry, if it terminates the remainder as well as the particular estate, does so because such was the intention in the creation of the remainder, that is, that the condition subsequent extends to both estates and that, as the particular tenant holds in behalf of the remainderman as well as in his own behalf, the enforcement of the forfeiture affects both alike. Adopting this view, the enforcement of a forfeiture of the particular estate would obviously not affect that in remainder if the intention was that the former only should be subject to the condition.61 In one case in England,62 it was decided that in the case of a devise, as distinguished from a conveyance, of an estate for life, subject to a condition subsequent, with remainder in favor of another, the heir of the grantor could re-enter and hold the land for the balance of the life named, without affecting the remainderman's right of possession thereafter. It is difficult, however, to understand how, the particular estate having come to an end by the reentry, the heir could have a right of possession, even for a limited time, as against the remainderman, who has an estate, and as incident thereto, it would seem, the right of possession, in the absence of a prior estate in another.
1, Sec.Sec. 5, 6; Fearne, Cont. Rem. 12, and Butler's note; Proprietors of Church in Brattle Square v. Grant, 3 Gray (Mass.) 142; Sullivan v. Garesche, 229 Mo. 496, 129 S. W. 949; Hennessy v. Patterson, S5 N. Y. 91. That a remainder cannot be limited upon a common-law conditional fee, see Selman v. Robertson, 46 S. C. 262; Challis, Real Prop. 83.
55. Ante Sec. 26.
56. Marsden, Perpetuities, c. 10; Lewis, Perpetuity. 177; Doe d. Ellis v. Ellis, 9 East, 382; Willis v. Bucher, 3 Wash. C. C. 369, Fed. Cas. No. 17,769; Richardson v. Richardson, 80 Me. 585; Wooten v. Frick, 38 Md. 428; Allen v. Trustees of Ashley School Fund, 102 Mass. 263; Dorr v. Johnson, 170 Mass. 540; Morehouse v. Cot-heal, 21 N. J. Law, 480; Taylor v. Taylor, 63 Pa. St. 481.
57. Mary Portington's Case, 10 Co. Rep. 40b; Preston's note to Sheppard's Touchstone at p. 120, 1 Preston. Estates, 91; 1 Rolle's Abr. 472 (I); Fearne, Cont. Rem. 270; Challis, Real Prop. 82; Edwards, Prop. Land (4th Ed.) 106 note. But see 32 Law Quart. Rev. at p. 359, article on Acceleration of Remainders, by F. E. Farrer, Esq., and refere ces therein to Perkina, Conveyancing, Sec.Sec. 563, 565.
58. Newis v. Larke, Plowd. 412; Foye v. Hyrde, Wm. Jones 58; Sheppard's Touchstone, 120; Comyn's Dig. Condition (T.); Fearne's Cont. Rem. 383, Butler's note; See Williams v. Angell, 7 R. I. 145; Conger v. Lowe, 124 Ind. 368, 9 L. R. A. 165, 24 N. E. 889. See also Litt. Sec. 723.
59. Newis v. Larke, Plowd. 412, Perkins, Conveyancing, 564.
60. Warren v. Lee, 2 Dyer 126b. 60a. Lowe v. Stepp, 132 Ky. 75, writers,68 and by numerous decisions.69 In a few eases, however, in this country, the courts have failed to recognize this certainty of the remainderman as an essential characteristic of a vested remainder, the error usually arising from oversight, apparently, and not from any purpose of departing from the established line of decisions on the subject.70
116 S. W. 293; Crumpton v. De-mumbrun, 148 Ky. 498, 146 S. W. 1100; Lumsden v. Payne, 120 Tenn. 407, 114 S. W. 483 31 L. R. A. (N. S.) 605.
61. See Jarvis v. Davis, 99 N. Car. 37.
62. Craven v. Brady, L. R. 4 Eq; 209, 4 Oh. App. 296.