« EelmineJätka »
can, at the present day, take effect if created by way of executory devise, the explanation of which will be attempted in the next chapter.
The few remaining remarks which we have to make on the subject of a reversion apply equally to a remainder, and, since we have already noticed the incidents of these estates, when considering the subject of estates in possession, it will be more convenient to pass on now to such points as are common to both of them, and then return to those which relate to remainders only.
A reversion, or remainder, may be alienated by the Alienation of
a reversion or tenant of such an estate, if in other respects compe- a remainder. tent, by either deed or will. And if transferred to the tenant of the particular estate, it is said to be “released” to him. At one time, the transfer of a reversion or a remainder was not complete unless accompanied by the “attornment," or formal con- Attornment. sent of the tenant in possession of the land. Attornment had its origin in the feudal rule which prohibited the transfer of a fee without the consent, of the tenant from whom military and other services were due to his feudal lord.
This was afterwards extended to all cases where a tenant's rights might possibly be affected by a transfer of the fee, although in some, as for instance that of a tenant for life and remainder-man, there was never any feudal relation between the tenant of the estate to be transferred and the tenant whose consent was made requisite. It was subsequently enacted by the 4 & 5 4 & 5 Anne,
4 Anne, c. 3,1 that all grants or conveyances of any manors or rents, or of the reversion or remainder of any messuages or lands, should be as good and effectual, to all intents and purposes, without any attornment of the tenant of any such manors or of the land
1 S. 9.
out of which such rents issued, or of the particular tenant upon whose particular estates any reversion or remainder might be expectant, as if their attornment had been had and made. Provided 1 that no such tenant should be prejudiced, or damaged, by payment of any rent to any such grantor, or by breach of any condition for non-payment of rent, before notice should have been given to him of such grant by the grantee.
11 Geo. II. C. 19.
This statute was followed by the 11 Geo. II. c. 19, which, in order to put a stop to the practice of tenants fraudulently attorning to strangers who claimed a title to the estates of the tenants' landlords, enacted that all and every such attornment of any tenant of lands or hereditaments should be absolutely null and void, and that the possession of their landlords should not be deemed to be in any way affected thereby.
Termination A reversion or remainder may also cease to exist. of a reversion or a remain. For the particular estate on which it depends may be der.
transferred, or “surrendered," to the reversioner or remainder-man, or it may come to an end. In such a case, the expectant estate will either become an estate in possession, and thus cease to be a reversion or a remainder; or if, in the case of a remainder, it is not capable of coming into possession, it will, for reasons to be presently explained, be destroyed altogether. And we have already seen how a reversion or a remainder, limited after an estate tail, may be destroyed by virtue of the Act for the Abolition of Fines and Recoveries.3
Returning to the consideration of remainders, as apart from reversions, we have to point out that they 1 S. 10. 2 S. 11.
3 3 & 4 Wm. IV. c. 74.
may be divided into the two principal classes of Remainders Vested Remainders and Contingent Remainders. Vested and
divided into Supposing that an estate is given to A for life, with Contingent. remainder to B, a living person, in fee-simple; then Example of
& B's estate is always ready to become an estate in remainder. possession, whenever A's estate may come to an end. His estate is therefore said to be a 66 vested” mainder, being fixed, as Blackstone puts it, to come to some determinate person after the particular estate is spent, and there being nothing which can defeat it, or set it aside. But if the remainder be Example of given, not to B, but to B's eldest son, and B were at a contingent
remainder. that time a bachelor, then the case is different. For it is necessary, as we have said, that every estate limited by way of remainder should be capable of becoming an estate in possession at the moment when the particular estate which precedes it comes to an end; otherwise it will fail of effect altogether. Now, in the case supposed, B may never have a son, or even if he has, that son may not be born until after the determination of A's life estate. It is evident, therefore, that until B's son is born, or until A dies (whichever event happens first), it is uncertain whether the estate in remainder will fail for want of compliance with the rule above stated. It is consequently said to be “contingent,” as distinguished from that “ vested ” remainder which we have already defined. But if B's son is born in the lifetime of A, from that moment there is an ascertained owner of the remainder, which will thereupon cease to be contingent, and become vested.
A remainder may also be contingent, when the person to whom it is limited is in existence, but the estate is only to vest on the happening of some vague and uncertain event. As where land is given to A
1 2 BI. Com. 168.
for life, and in case B survives him, then with remainder to B in fee : there B is a certain person, but the remainder to him is a contingent remainder, depending upon a dubious event, namely, the uncertainty of his surviving A. During the joint lives of A and B, it is contingent; and if B dies first, it never can vest, but if A dies first, the remainder to B becomes vested. 1 We see, therefore, that it is the present capacity of taking effect in possession, if the possession were to become vacant, which distinguishes a vested remainder from one which is contingent.?
Rules for the creation of remainders.
We come next to the rules which relate to the creation of remainders, premising that remainders may be limited to take effect either with, or without, the instrumentality of a use (thus a remainder may be limited to A and his heirs, or to B and his heirs to the use of A and his heirs), but that the same rules apply in either case.
The first which we will notice is, that every reRemainder mainder must be so limited as to wait for the determust await determination mination of the particular estate, before it is to take of particular effect in possession; and not to take effect in prejuestate, and cannot be dice or exclusion of the preceding estate. Also, limited after a fee-simple.
that no remainder can be limited after an estate in fee-simple. These propositions are derived from the definition of a remainder. For, as to the first, we saw that a remainder is an estate which is to be enjoyed after another estate is determined. We pointed out also, in our chapter on estates for years, that no
, one but a reversioner could, at common law, take advantage of a condition ; a proviso, therefore, giving this advantage to a remainder-man, would be void, as would also the estate dependent on the proviso. And as to the second, a fee-simple is the greatest estate which can be enjoyed; the tenant of it has consequently the whole of the estate, and a remainder therefore, which is only a portion, or residuary part, of an estate, cannot be reserved after the whole is disposed of.1
1 2 Bl. Com. 170. 2 Fearne, C. R. 216; Boraston's Case, 8 Rep. 20 a. 8 Fearne, C. R. 261.
With regard to the next rule, it has been already Second Rule.
Remainder pointed out that a remainder will cease to exist, as must have such, by becoming an estate in possession. That is to precedent
particular say, the existence of a particular estate is necessary estate. to the existence of a remainder, or, as the rule is usually stated, there must be some particular estate precedent to every estate in remainder.2
If the remainder is vested, any estate greater than Third Rule.
Freehold an estate at will is sufficient for this purpose ; but the contingent proposition does rrot always hold good as regards con
remainder tingent remainders. For the feudal law attached
particular great importance to the seisin, or feudal ownership, estate of
freehold. of land being a matter both of notoriety and of certainty. It, therefore, held that the seisin of land must never be in abeyance, and consequently forbade the transfer of any estate of freehold, unless accompanied by feoffment and livery of seisin, that is, by the open
and immediate transfer of the estate to some ascertained person. It followed, that no estate of freehold could be granted unless it were to commence at the moment of the grant (since a man could not make present delivery of a future estate), but must take effect in possession, reversion, or remainder. This rule did not, however, apply to leases, which, being estates of an inferior nature, did not carry with them the seisin of the land, did not therefore require - livery of seisin, and might consequently be granted 1 2 BI. Com. 164.
2 2 BI. Com. 165.