Remainder, in law, an interest in that which remains of a whole estate, after a partial or particular estate, as it is called, which was reserved out of the whole, has been determined. Like many other branches of the common law, it had its foundation in the feudal polity. In the long lapse of time, and under the influence of other branches of the English real property law, the learning of remainder has been wrought out into manifold distinctions and refinements. Sir Edward Coke says a remainder is "a remnant of an estate in land, depending upon a particular prior estate, created at the same time and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it." Thus, if a man who is seized in fee of lands grant them to A for 20 years, and, after that term has expired, to B and his heirs for ever, A is tenant for years, and B has remainder in fee. But the residue of the estate after A's term may be still subdivided; for example, the limitation to B may be for life, then a limitation to 0 in tail, remainder over to D in fee.
It matters not how many partial estates may be thus successively reserved or carved, as the phrase is, out of the fee; all together, with the final limitation, form one whole estate. - It is one of the cardinal rules respecting remainders, that ho remainder can be limited upon or after the grant of an estate in fee, for the fee is the whole and there can be nothing left. Nor can there be a remainder without a prior partial estate. This partial or particular estate is also essential to the existence of any subsequent remainder that amounts to a freehold; for, by an old rule of the common law, a freehold cannot be created to commence in futuro, but must commence at the time of the grant; and inasmuch as, with all partial estates, the remainder forms but one whole, delivery of possession to the first particular tenant vests possession in the freehold tenant also. The seisin which the grantor gives to the first taker is transmitted by him, and by each, to his successor, until it passes at last to the first remainderman. Each estate supports that which follows it. Hence arises another cardinal rule, that the remainder must vest in the grantee during the continuance of the partial estate, or on the instant that it is determined.
Thus, if A and B be joint tenants for life, remainder to the survivor in fee, on the death of A the joint estate is severed; B becomes in the moment of A's death the designated remainderman, and the remainder is good. But if the limitation be to A for life, remainder to the son of B in tail, and A die and so his estate determine before B have a son, then the remainder fails. - Remainders are either vested or contingent. They are vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment, it being the present capacity of taking effect in possession if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested remainder from one that is contingent. Thus a limitation to A for years, remainder to B and the heirs of his body, gives B a vested remainder, for he is capable of taking should the particular estate fall in, though it is not certain that he will not die without heirs before A's death.
A contingent remainder depends on an event or condition which may either never happen or be performed, or not till after the determination of the preceding estate; or, to use the definition of the New York statute, which Chancellor Kent commends for its brevity and precision, a remainder is contingent while the person to whom or the event upon which it is limited to take effect remains uncertain. An example of a remainder contingent as to the person would be a limitation to A for life, remainder to B's eldest son (as yet unborn) in tail. This last limitation is contingent, because it is uncertain whether a son will be born to B; and if A dies before that happens, the remainder is gone. A case of contingency in respect to the event would be presented by a limitation to A for life, and in case B survives him, then to B in fee. Here the uncertainty of B's surviving A is that which renders the remainder a contingent one. - The English doctrine of remainders, that is, the common law doctrine, remains unaltered in most of the United States. In one or two states slight changes, and in New York some which are quite material, have been made by statute.