these gentlemen came to fill the first offices of the law, they supported this invention w.thin reasonable and proper bounds, and introduced it into general use." Thus the student will observe how much nicety is required in creating and securing a remainder; and I trust he will in some measure see the general reasons upon which this nicety is founded. It were endless to attempt to enter upon the particular subtleties and refinements, into which this doctrine, by the variety of cases which have occurred in the course of many centuries, has been spun out and subdivided: neither are they consonant to the design of these elementary disquisitions.12 I must not however omit, that in devises by last will and testament, (which, being often drawn up when the party is inops consilii, are always more favoured in construction than formal deeds, which are presumed to be made with great caution, forethought, and advice,) in these devises, I say, remainders may be created in some measure contrary to the rules before laid down: though our lawyers will not allow such dispositions to be strictly remainders; but call them by another name, that of executory devises, or devises hereafter to be executed. 13 An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points: 1. That it needs not any *particular estate to support it. 2. That by it a fee[*173 simple, or other less estate, may be limited after a fee-simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created in the same. 1. The first case happens when a man devises a future estate to arise upon a contingency, and, till that contingency happens, does not dispose of the feesimple, but leaves it to descend to his heirs at law. As if one devises land to a feme-sole and her heirs, upon her day of marriage: here is in effect a contingent remainder, without any particular estate to support it; a freehold commencing in futuro. This limitation, though it would be void in a deed, yet is good in a will, by way of executory devise.(e) For, since by a devise a freehold may pass without corporal tradition or livery of seisin, (as it must do, if it passes at all,) therefore it may commence in futuro; because the principal reason (•) 1 Sid. 153. "Equitable contingent remainders could never be destroyed by any act of the tenant for life; and the Real Property Commissioners proposed to establish the same rule with respect to legal contingent remainders. And now, by stat. 8 & 9 Vict. c. 106, ? 8, it is enacted that a contingent remainder vesting at any time after Dec. 31, 1844 shall be, and if created after the passing of the act, shall be deemed to have been capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened.-STEWART. 12 The student will now be prepared to understand the celebrated rule of law commonly called The Rule in Shelley's Case, on account of the following distinct announcement of it which occurred in that case. 1 Rep. 104, a.:-"It is a rule in law, when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited mediately or immediately to his heirs in fee or in tail, that always in such cases the heirs' are words of limitation of the estate, and not words of purchase." And this is a strict rule of law, which cannot be prevented by any expression of intention to the contrary. Thus, if a limitation is made to Jane Wood for life, remainder to B. for life, remainder to C. in tail, remainder to the heirs of Jane Wood, she takes an estate for life with the ultimate remainder to herself in fee; and such remainder descending to her heir would be descendible from him to the heirs ex parte materna.-SWEET. 18 Mr. Fearne observes, upon the inaccuracy of a similar definition to this, that it is capable of comprehending more than the thing defined; for a contingent remainder created by will would exactly answer to it. He defines an executory devise thus:"Such a limitation of a future estate or interest in lands or chattels (though in the case of chattels personal it is more properly an executory bequest) as the law admits in the case of a will, though contrary to the rules of limitation in conveyances at common law." Cont Rem. 386, 7th ed.-COLERIDGE. why it cannot commence in futuro in other cases, is the necessity of actual seisin, which always operates in præsenti. And since it may thus commence in futuro, there is no need of a particular estate to support it; the only use of which is to make the remainder, by its unity with the particular estate, a present interest. And hence also it follows, that such an executory devise, not being a present interest, cannot be barred by a recovery, suffered before it commences.(f) 2. By executory devise, a fee, or other less estate, may be limited after a fee. And this happens where a devisor devises his whole estate in fee, but limits a remainder thereon to commence on a future contingency. As if a man devises land to A. and his heirs; but if he dies before the age of twenty-one, then to B and his heirs: this remainder, though void in deed, is good by way of executory devise.(g) But, in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time; as within one or more life or lives in being, or within a mode*rate term of years, for *174] courts of justice will not indulge even wills so as to create a perpetuity, which the law abhors:(h) because by perpetuities, (or the settlement of an interest, which shall go in the succession prescribed, without any power of alienation,)(i) estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life or lives in being, and one-and-twenty years afterwards. when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son: and this hath been decreed to be a good executory devise.(k) (f) Cro. Jac. 593. (g) 2 Mod. 289. () Salk. 229. As (4) 12 Mod. 287. 1 Vern. 164. 14 Lord Kenyon has explained the whole doctrine of executory devises in the following words: "The rules respecting executory devises have conformed to the rules laid down in the construction of legal limitations; and the courts have said that the estate shall not be unalienable by executory devises for a longer term than is allowed by the limitations of a common-law conveyance. In marriage settlements, the estate may be limited to the first and other sons of the marriage, in tail; and until the person to whom the first remainder is limited is of age, the estate is unalienable. In conformity to that rule the courts have said, so far we will allow executory devises to be good. To support this position, I could refer to many decisions; but it is sufficient to refer to the duke of Norfolk's case, in which all the learning on this head was gone into; and from that time to the present, every judge has acquiesced in that decision. It is an established rule that an executory devise is good if it must necessarily happen within a life or lives in being, and twenty-one years, and the fraction of another year, allowing for the time of gestation." See Long vs. Blackall, 7 T. R. 100. In that case it was determined that a child en ventre sa mere was to be considered as a child born, and therefore that an estate might be devised to it for life, and after its death to its issue in tail.-CHRISTIAN. Peter Thelusson, Esq., an eminent merchant, devised the bulk of an immense property to trustees for the purpose of accumulation during the lives of three sons, and of all their sons who should be living at the time of his death or be born in due time afterwards, and during the life of the survivor of them. Upon the death of this last, the fund is directed to be divided into three shares,-one to the eldest male lineal descendant of each of his three sons: upon the failure of such a descendant, the share to go to the descendants of the other sons; and upon failure of all such descendants, the whole to go to the sinking-fund. When he died, he had three sons living, who had four sons living; and two twin-sons were born soon after. Upon calculation, it appeared that at the death of the survivor of these nine the fund would probably exceed nineteen millions; and upon the supposition of only one person to take and a minority of ten years, that it would exceed thirty-two millions. It is evident that this extraordinary will was strictly within the limits laid down in the text; and it was accordingly sustained both in the court of chancery and in the house of lords. See 4 Ves. Jr. 227. 11 Ves. Jr. 112. 1 New Rep. 357.-COLERIDGE. The 39 & 40 Geo. III. c. 98 enacts that no person shall, by any deed, will, or by any 3. By executory devise, a term of years may be given to one man for his life, and afterwards limited over in remainder to another, which could not be done by deed; for by law the first grant of it, to a man for life, was a total disposition of the whole term; a life-estate being esteemed of a higher and larger nature than any term of years.(1) And, at first, the courts were tender, even in the case of a will, of restraining the devisee for life from aliening the term; but only held, that in case he died without exerting that act of ownership, the remainder over should then take place:(m) for the restraint of the power of alienation, especially in very long terms, was introducing a species of perpetuity. But, soon afterwards, it was held, (n) that the devisee for life hath no power of aliening the term, so as to bar the remainderman: yet, in order to prevent the danger of perpetuities, it was settled, (o) that though such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be *in esse during the life of the first devisee; for then all the candles are lighted and are consuming together, and the [*175 ultimate remainder is in reality only to that remainderman who happens to survive the rest: and it was also settled, that such remainder may not be limited to take effect, unless upon such contingency as must happen (if at all) during the life of the first devisee.(p)15 (1) 8 Rep. 95. () Bro. tit. chatteles, 23. Dyer, 74. (*) 1 Sid. 451. other mode, settle or dispose of any real or personal property so hat the rents and profits may be wholly or partially accumulated for a longer term than the life of the grantor, or the term of twenty-one years after the death of the grantor or the testator, or the minority of any person who shall be living or en ventre sa mere at the death of the grantor or the testator, or during the minority only of such person as would for the timebeing, if of full age, be entitled to the rents and produce so directed to be accumulated; and where any accumulation is directed otherwise, such direction shall be void, and the rents and profits, during the time that the property is directed to be accumulated contrary to this act, shall go to such person as would have been entitled thereto if no such accumulation had been directed; provided that this act shall not extend to any provision for the payment of debts, or for raising portions for children, or to any direction touching the produce of woods or timber. A direction for accumulation during a life was held to be good for twenty-one years after the death of the testator. 9 Ves. Jr. 127.-CHITTY. 15 A future estate will always be construed to be a remainder when it can be, in preference to a springing use or executory devise. The reason is an obvious one: in the latter case the future estate cannot be barred, and the land is completely withdrawn from commerce. So between remainders the law favours their vesting, because that combines the interests of a free commerce in land with the rights of the proprietors. Wager vs. Wager, 1 S. & R. 374. Minnig vs. Baldorff, 5 Barr, 503. Den vs. Demarest, 1 New Jersey, 525. It is an inflexible rule that no limitation shall be deemed an exe cutory devise if it may by any practicable construction be sustained as a contingent remainder: for the all-sufficient reason that these executory devises, being inconsistent with the policy of the common law, which, on account of its abhorrence of estates commencing in futuro, requires all the precedent parts of the fee to pass out of the grantor at the same instant, are barely tolerated, and only in favour of the explicit declaration of one who may have been compelled to dispose of his estates when unassisted by counsel. They are therefore to be sustained only in cases of clear necessity. Stehman vs. Stehman, 1 Watts, 466. Dunwoodie vs. Read, 4 S. & R. 435. Willis vs. Beecher, 3 Wash. C. C. 369. Hawley vs. Northampton, 8 Mass. 3. Wolfe vs. Van Nostrand, 2 Comst. 436. Johnson vs. Valentine, 4 Sandf. S. C. 36. It is the received doctrine of the courts, both in England and America, that when a devise is made to A. in fee, and if A. should die without issue then to B. in fee, the limitation over to B. as an executory devise would be void for its remoteness, as it depends upon an indefinite failure of the issue of A. Such a devise is construed to be an estatetail in A. and vested remainder in B. Any words which indicate an intention in the testator to confine the failure of issue to a dying without issue living at the death of the first taker will be sufficient to rebut the construction of an indefinite failure of issue Hall vs. Chaffee, 14 New Hamp. 215. Toman vs. Dunlop, 6 Harris, 72. Flinn vs. Davis, 18 Ala. 132. Jackson vs. Dashiel, 3 Maryland Ch. Dec. 257. In the case of such a limitation of personalty, however, it vests the entire and absolute estate in the first taker, and the limitation over is void. The smallest circumstance will be laid hold of VOL. I.-34 529 Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion. III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.(4) Sir Edward Coke(r) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed, or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in præsenti, though taking effect in futuro. The doctrine of reversions is plainly derived from the feodal constitution. For when a feud was granted to a man for life, or to him and his issue male, rendering either rent or other services; then, on his death or the failure of issue male, *176] the feud was determined, and resulted back to the *lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty however results of course, as an incident quite insepara ble, and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion.(s) The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words: but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is," accessorium non ducit, sed sequitur, suum principale.”(t) These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one seised of a paternal estate in fee makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion,(u) to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done :(w) for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A.'s estate.(x) *177] *In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent concealments of their death, it is enacted by the statute 6 Anne, c. 18 that all persons on whose lives any lands or tenements are holden, shall, (upon application to the court of chancery, and order made thereupon,) once in every year, if required, he produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant to limit the failure of issue to the death of the first taker. Dashiell vs. Dashiell, 2 Har. & Gill, 127.-SHARSWOOD. estate may enter upon and hold the lands and tenements, till the party shall appear to be living. Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate,(y) the less is imme. diately annihilated; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is mergea in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another, (en auter droit,) there is no merger." Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife.(z) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee.(a) For estates-tail are protected and preserved from merger by the *operation and construction, though not by the express words, of the statute de donis: which [*178 operation and construction have probably arisen upon this consideration; that, in the (v) 3 Lev. 437. () Plowd. 418. Cro. Jac. 275. Co. Litt. 338. (a) 2 Rep. 61. 8 Rep. 74. 16 Even if there be an intermediate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance,) when such coalition takes place by the conveyance or act of the parties. Purefoy vs. Rogers, 2 Saund. 387. But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent. These differences, however, may be reconciled by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited, and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from. whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders, (Boothley vs. Vernon, 9 Mod. 147. Plunkett vs. Holmes, 1 Lev. 12. Archer's case, 1 Rep. 66;) in the second class of cases, it does merge them. Hartpole vs. Kent, T. Jones, 77, S. C. 1 Ventr. 307. Hooker vs. Hooker, Rep. temp. Hardw. 13. Doe vs. Scudamore, 2 Bos. & Pull. 294; and see Fearne, p. 343, 6th ed., with Serjt. Williams's note to 2 Saund. 382, a. A distinction (as already has been intimated) must be made between the cases where a particular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance, and those cases wherein the accession of the inheritance is by a conveyance, accident, or circumstance distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is otherwise. For where by the same conveyance a particular estate is first limited to a person, with a contingent remainder over to another, and with such a reversion or remainder to the first person as would in its own nature drown the particular estate first given him, this last limitation shall be considered as executed only sub modo; that is, upon such condition as to open and separate itself from the first estate when the condition happens; and by no means to destroy the contingent estate. Lewis Bowles's case, 11 Rep. 80 Fearne, 346, 6th ed. A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell vs. Morgan, 2 Vern. 90, a portion was directed to be raised out of a term for years for the testator's daughter. The fee afterwards descended on her, and she, being under age, devised the portion. The court of chancery relieved against the merger of the term, and decreed the portion to go according to the will of the daughter. See also Thomas vs. Kemish, 2 Freem. 208, S. C. 2 Vern. 352. Saunders vs. Bournford, Finch, 424.-CHITTY. Mr. Preston questions this position. 3 Conv. 277.-SHARSWOOD. |