CHAPTER VII.

OF ESTATES IN POSSESSION, REVERSION, AND REMAINDER.

[HITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners may have therein. We are now to consider them with regard to the time of their enjoyment, as being either estates in possession or estates in expectancy. Where a man is entitled immediately to the pernancy or taking of the profits, his estate is said to be in possession; and when entitled to it, not immediately, but at some future time, his estate is said to be in expectancy. And of such expectancies, there are, at the common law, two sorts, the one a reversion, and the other a remainder.

I. Of estates in possession not much remains to be said. But it is material to remark, that a man may have an estate in possession in land, and may yet not be in actual possession of the land. For it has long been the settled rule of law, that a freehold interest which is merely subject to a term of years, is an interest in possession; and the owner of such freehold interest, if actually in receipt of the profits of the term, is properly described as being seised in his demesne as of fee (or freehold) (y). The origin of this rule was, undoubtedly, the doctrine of the common law, that the occupation of the lessee for years was not seisin, but a minor kind of possession, the existence of which was not inconsistent with the seisin of the lessor. And although, by changes in the law, this distinction has become of less importance, yet the old rule survives for some purposes, e.g., to enable a widow

(y) See Challis, Real Property (2nd ed.), p. 89.

[to claim dower out of her husband's reversion on a term of years, which she cannot do out of a true reversion (z).

II. An estate in reversion is where any estate is derived, by grant or otherwise, out of a larger one, leaving in the original owner an ulterior estate immediately expectant on that which is so derived. And the derivative estate is called the particular estate (as being only a part or particula of the original one), and the ulterior interest is called the reversion (a). Thus, when the owner of the fee simple creates an estate in tail, or an estate for life or for years, the residue of the fee simple which is undisposed of is the reversion expectant upon the particular estate in tail, for life, or for years, so created; and it continues vested in him who was before the owner of the whole, without any special reservation for the purpose (b). For, where a smaller estate is merely taken out of a larger, the residue remains, of course, in the original proprietor; and such reversion is an actual estate. But if the "particular" estate is an estate of freehold, the reversion is an estate in expectancy only; because the reversioner, after creating the particular estate, has no right to the possession until the particular estate is determined.

The tenant of a particular estate in tail, for life, or for years, holds of the reversioner, by fealty and by such services as are reserved between them; and the usual incidents to reversions are therefore said to be fealty and rent. The fealty is an inseparable incident of the reversion; but the rent, when rent also is reserved, although incident to, is not inseparably incident to, the reversion. For the rent may be granted away, reserving the reversion; and, by special words, the reversion may

(2) Co. Litt. 29 b, 32 a.

(a) Lord Coke says, "A reversion

"is where the residue of the estate 'always doth continue in him that "made the particular estate, or

"where the particular estate is "derived out of his estate." (Co. Litt. 22 b.)

(Litt. s. 19.

[be granted away, reserving the rent. But, by a general grant of the reversion, the rent will pass with it as incident thereto, though by the grant of the rent generally, the reversion will not pass (c).]

Where a freehold reversion (that is, a reversion in fee, in tail, or for life) is expectant on a particular estate of freehold, the reversioner is said to be "seised of the reversion as of fee" (or, if his estate be for life, "as of freehold"), and not to be "seised of the land in his demesne as of fee" (or, "as of freehold "), as in the case of an estate in possession.

By the principles of the common law, if the owner of a reversion attempted to turn it into a remainder by a limitation to himself, his attempt was merely inoperative. This rule was especially important in questions of inheritance; for it often determined the line of succession. Thus, if A., seised in fee of an estate which had descended to him from his mother, made a conveyance to a stranger for life, with remainder to himself, his interest remained, nevertheless, a reversion, and descended on his death intestate only to his heirs of the mother's blood. And this was also the rule, though the conveyance were made to the use of himself and his heirs (d). But now, by the Inheritance Act, 1833 (e), such a person will be deemed to have acquired his interest as a "purchaser"; and it will, accordingly, be capable of descending to his heirs. general.

[III. An estate in remainder may be defined to be, an estate limited to take effect and be enjoyed after the natural expiry of another estate limited by the same conveyance (f). Thus, if a man seised in fee simple granteth lands to A. for life, and, after the determination

[of the said estate, to B. in fee, here B.'s estate is said to be a remainder. And the same will be the case, however many successive estates are created, provided only that there be no attempt to limit any further interest after a fee simple. Thus, a conveyance to A. for life, and after his death to B. for life, and, after B.'s death, to C. in tail, and, after the expiry of that estate to D. in fee, will create three successive remainders. But any attempt to create an interest to take effect subsequently to, or even on failure of, D.'s estate, will be void as a remainder, though it may be good as an executory limitation (g).

From what has been premised, it appears that a reversion and a remainder are both estates in expectancy, but differ in this respect, that the former remains in the grantor, by act or construction of law, as part of his former estate, but a remainder is an estate newly created by the act of the grantor. And here it is very material to remark, that it is only by way of remainder that a man could, by the old common law, create a new freehold estate in expectancy, in a corporeal hereditament. For, by that law, a freehold in hereditaments corporeal could not be created to commence in futuro (h), that is, without the interposition of a particular estate on which it should depend and be expectant. Thus, if A., seised in fee of lands, convey them to B. to hold to him and his heirs, after the end of the three years next ensuing, that conveyance is, by the common law, merely void. And the reason is, that no freehold could be created or transferred at common law, in a corporeal hereditament, without livery of seisin (i), a ceremony which is in its nature incompatible with any grant of the freehold in futuro. For livery imports a change of possession, and consequently supposes that the immediate possession, and not merely a future estate, is conveyed by the feoffor.

(g) Gardner v. Sheldon, (1669) Vaugh. 269.

(h) Barwick's Case, (1597) 5

Rep. 94 b.

(i) Co. Litt. 217 a.

[And as it was the necessity for this livery which constituted the reason of the rule, so the rule itself extended not to mere chattel interests (k), for these were capable (even at common law) of being made to commence in futuro ; e.g., a lease for seven years from next Michaelmas would be good. But when a particular estate is created, a freehold remainder can be readily limited thereon; for the livery of seisin is made to the particular tenant, and (when so made) enures also to the remainder-man, the particular estate being said to "support" the remainder. Thus, a man may convey to A. in tail, remainder to B. in fee, and the same livery which conveys the estate tail to A. will also pass the remainder expectant thereon to B., the whole estate passing at once from the grantor to the grantees, and the remainder-man becoming seised of his remainder, at the same time that the particular tenant is seised of his estate tail ().

With respect to the creation of all remainders, the following are the rules to be observed :

1. There must be some particular estate precedent to the estate in remainder (m). For remainder is a relative expression, and implies that some part of the thing is previously disposed of. But a lease at will is not held to be such a particular estate as will support a remainder (n); for an estate at will is of a nature so slender and precarious that it is not to be looked upon as a portion of the inheritance at all.] And, although the books frequently speak of a freehold remainder upon a term of years, this is an incorrect expression, because, as we have seen, a freehold interest which is subject to a term of years is not really a remainder, but an estate in possession. Thus, according to Littleton and Coke, a lease to A. for five years, with remainder to B. for life, is a good limitation; but only if livery of seisin is delivered

(k) Barwick's Case, ubi sup.

(7) Co. Litt. 143 a.

() Fearne, by Butler, p. 390,

9th edit.

(n) Lord Stafford's Cuse, (160 8 Rep. 75 a.