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OF A TENANCY BY ENTIRETIES.

1 Vict. c. 26.

WHERE an estate is conveyed or devised to a man and his
wife during coverture, they are said to be tenants by entireties,
that is, each is said to be seised of the whole estate, and neither
of a part. The consequence is, that the husband's convey-
ance alone will not have any effect against his wife surviving.
The husband, being seised of the whole estate during cover-
ture either in his own right or jure uxoris, can of course depart
with that interest; but, to make a complete conveyance of all
the interests held in entirety, the wife must concur; and,
being under coverture, she must [before the operation of the
statutes 3 & 4 Will. 4. c. 74. and 4 & 5 Will. 4. c. 92. have
joined in a fine; and since those statutes she must concur
with her husband in a deed of disposition acknowledged in
conformity with their requirements.] Joint-tenants are seised
per my et per tout.
Tenants by entireties are seised per tout

only. Co. Litt. 326. 3 Co. 27 b. 8 Co. 72. Under a joint-
tenancy one moiety merely survives, the surviving joint-
tenant being already seised of the other moiety. Under a
tenancy by entireties there is in fact no survivorship, as the
whole is in each tenant during coverture as much as it is in
the survivor after it has ceased. The survivor takes the whole
by original limitation, and not by the occurrence of a subse-
quent event.
But although there is in fact no survivorship,
the effect is, that the surviving husband or wife takes the whole
estate, not as a new acquisition, but as an estate freed from
participation by another. The consequence, it is presumed,
is, that if the husband [even before the 1st of January 1838,
made] his will and survived his wife, the will would be good

without republication, which we have seen would not be the ease if he were a joint-tenant, ante, p. 157. And it should follow, that if tenants by entireties for life join in a conveyance to A. B., he will take the whole for the life of the survivor; a point which has been so decided in Doe v. Wilson, ante, p. 163. This species of tenancy seems to be an exception to the rule that the husband and wife are one person in law; if they are to be considered as one person, the husband should be able to convey alone, which he is not enabled to do.

As a consequence of this peculiar tenancy, if a grant be made to three persons, two being husband and wife, the husband and wife take one moiety, and the stranger the other moiety, as between themselves they hold in joint-tenancy; but to enable the stranger to take by survivorship, he must survive both the husband and wife, so that he has one chance against two. The husband and wife hold their moiety as tenants by entireties; but though the husband has the freehold during coverture, he and the stranger cannot make a valid lease to bind the wife surviving; to effect that, she must concur. A gift to a man and woman who afterwards intermarry does not make them tenants by entireties. They are c. 92. s. 68. &c. joint-tenants both before and after marriage, and the husband alone may in that case create a severance by aliening his moiety; and it should be observed, that if a husband and wife hold a term for years as tenants by entireties, the husband alone may assign the term so as to bind his wife surviving. Co. Litt. 187 b. 356. 1 Pres. Conv. 55. 155. 2 Abs. 39.

3 & 4 Will. 4.

c. 74. s. 77. &c.

4 & 5 Will. 4.

CHAP. XIII.

2 Bl. Comm.

164. 1 Fearne,

a.

OF A REMAINDER.

A REMAINDER is that portion of interest

[Co. Litt. 49. which, on the creation of a particular estate, is limited over to another.

143 a.]

[* A remainder may exist in lands held for an estate of inheritance, and in lands held for an estate of freehold only. In chattels real and personal, a remainder, in the strict legal and technical sense of the word, cannot be limited. It was formerly considered that they were incapable of any limitation over, after a previous limitation of a partial interest; it is now established they are susceptible of such limitations over. On the limitations of chattels, see Roper on Legacies, vol. 2. 445. ed. 1828. The grantor of the fee simple may multiply the particular estates indefinitely; if by any assurance executed before or upon the 31st December 1833, the ultimate remnant of the estate is limited to his own right heirs, he is in of his former estate, and retains his old reversion; but if by assurance executed after that day, such a limitation by virtue of the statute 3 & 4 Will. 4. c. 106. s. 3., confers upon the grantor a new estate by purchase; and he is not to be considered entitled thereto as of his former estate: but where no such limitation is made, it is conceived that the ultimate use, as a portion of the old estate, results, as before the act to the grantor, and continues as his reversion in fee.]

Remainders are either vested* or contingent: See 3 Atk. 138. a vested remainder is that which is limited, or is transmitted, to a person who is capable of receiving the possession should the particular estate happen to determine; as to A. for life, remainder to B. and his heirs: here, as B. is in existence, he is capable (or his heirs if he die) of taking the possession whenever A.'s death may occur.

A remainder is contingent when the particular estate may happen to determine before the per

[* An estate is vested when there is an immediate fixed right of present or future enjoyment. An estate is vested in possession when there exists a right of present enjoyment. An estate is vested in interest when there is a present fixed right of future enjoyment. An estate is contingent when a right of enjoyment is to accrue on an event which is dubious and uncertain. Fearne's Rem. 2.]

[t Fearne defines a contingent remainder to be a remainder limited so as to depend on an event or condition which may never happen or be performed, or which may not happen or be performed till after the determination of the preceding

estate.

The student should be apprised that it is not the uncertainty of ever taking effect in possession that makes a remainder contingent; for to that, every remainder for life or in tail is and must be liable; as the remainderman may die, or die without issue, before the death of the tenant for life. 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, distinguishes a vested remainder from one that is contingent. Fearne's C. R. 216.]

son to whom the remainder is limited can take the possession; as to A. for life, with remainder to the right heirs of B. Now, during B.'s life the remainder is contingent, as he cannot have an heir till his death; and, therefore, should A. die before B. there could be no one to take the possession.

In the creation of remainders the following rules must be observed :

1st, There must be a present, or particular, estate created, which, if the remainder be a

* Such estate, however, need not be in the actual seisin or possession of the particular tenant: it is sufficient that it confer a right to the possession, for while a, right of entry remains, there can be no doubt that the same estate continues, since the right of entry subsists only in consequence of the existence of the estate; but when the right of entry is gone, and nothing but a right of action remains, it then becomes a question in law whether the same estate continues or not, for the action is nothing more than the means of deciding this question. Fearne, 286. 7th ed. Hence an interesse termini should be a sufficient support to a vested remainder, as that is something more than a right of entry-being assignable. [But an interesse termini intervening between a prior term and the reversion will not prevent the merger of the term in the reversion when they unite in the same person in the same right. 4 Mod. 1. 5 Barn. & Cress. 111. infrà, ch. LEASE, note (a). Preston's Merger, 120. ed. 3. 6 Cru. Dig. 470., 478. ed. 4.] An estate at will cannot support a freehold remainder, because entry to deliver seisin to the remainderman would be a determination of the will.. Dy. 18 b. 5 Bac. Abr. 822.

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