Abeyance

abeiance, abbayance, abbaiannce, I. fr. Abeyantia, I Expectation; suspense Applied (though the doctrine of abeyance is now to some extent discredited) to an estate which cannot vest in inheritance because there is no certain person who can take; applied also to maritime captures not yet condemned as prize; applied also to the franchise of a corporation chartered but not yet brought into existence by act of the corporators.

In the law of estates. Expectation; wailing; suspense; remembrance and contemplation in law. Where there is no person in existence in whom an inheritance can vest, if is said to be in abeyance, that is, in expectation; the law considering it as always potentially existing, and ready to vest whenever a proper owner appears. 2 Bl. Comm, 107. Or, in other words, it is said to be in the remembrance, consideration, and intendment of the law. Co. Lilt, §§ 646, 650. The term “abeyance” is also sometimes applied to personal property, ‘Thus, in the case of maritime captures during war, it ia said that, until the capture becomes invested with the character of prize by a sentence of condemnation, the right of property is in abeyance, or in a state of legal sequestration. 1 Kent, Comm. 102. It has also been applied to the franchises of a corporation. “Whena corporation is to be brought into existence by some future acts of the corporators, the franchises remain in abeyance, until such acts are done; and, when the corporation is brought into life, the franchises instantaneously attach toit.” Story, J., 4 Wheat. 691.

fr. Expectation. An estate is there is no certain person living in whom it

Abeiance, Abbayance, Abbaiaunce. L. Fr. <fe Eng. [from Fr. bayer, or abbayer, to expect, to wait for earnestly, to gape after, to bay at; L. Lat. abeyantia^ In the law of estates. Expectation, waiting, suspense; remembrance and contemplation in law. Where there is no person in existence in whom an inheritance can vest, it is said to be in abeyance, that is, in expectation; the law considering it as always potentially existing, and ready to vest whenever a proper owner appears. 2 Bl. Com. 101. Or, in other words, it is said to be in the remembrance, consideration and intendment of the law. Litt. sect. 646, 650. Thus, m a grant to J. for life, and afterwards to the heirs of R., the inheritance is plainly neither granted to J. nor R., nor can it vest in the heirs of R. till his death: it remains therefore in waiting, or abeyance, during the life of R. 2 Bl. Com, ub. sup. Plovd. 29 a. 35 a. 556. The term abeyance is also sometimes applied to personal property. Thus, in the case of maritime captures during war, it is ridd that until the ctipttire becomeb inreslied with the character of prize by a sentence 6f condemnation, the right of property is in abeyance, or in a state of legal sequestration. 1 Kenes Com. 102. An inheritance in abeyance has been otherwise said to be innubibus, (in the clouds;) a figure intended to denote a condition of suspension, indefinite and intangible existence, remoteness from human view and enjoyment, or molestation; or readiness to descend and vest at the proper time. Litt. ub. gup, Co. Litt. 342 b. Hob. 335. 2 Crabb's Beal Prop. 8, § 951. 4 Kent'e Com. 258, 260, note. So, it has been said to be in gremio legis, (in the bosom of the law,) that is, under the special protection of the law, and existing only in its view, intendment or consideration. 1 Co. 131, 134, arg. Spelman, voc. Abeyantia. Litt. ub. sup. So the fee, in such case, has been said by Britton to be in the balance, (lefee eat enbaktunce.) Brit. fol. 249. And Bractonuses the corresponding phrase, in pejidenti, (in suspension.) Bract, fol. 19 a. 20 a. Spelman prefers giving to abbayer, the root of the word, the sense of fixedness of position, [certcB stationi inkcerere,) the fee being stopped or arrested in its transit from one party to another. Mr. Stephen objects to expectation as the proper import of abeyance, and prefers Littleton's exposition of the term, — remembrance, intendment and consideration of the law; referring to the • case of the parson of a church, where the fee is in perpetual abeyance. 1 Stepk, Com. 223, note (Q. Mr. Feame treats the whole notion of abeyance as an absurd and unintelligible fiction. Feame on Remainders, 452. [360.] And the inclination in modem law seems to be, to substitute m its place the doctrine, that where there is no person in existence in whom an inheritance can vest, it remains in the grantor or his heirs, or (in case of a devise,) m the heirs of the testator, until the contemplated contingency happens. 2 Chitt. BL Com. 101, notes. An inheritance in abeyance answers to the koereditas jacens, or caduca (q. v.) of the civilians and feudists, which, by a figure directly opposite to that of suspension, was considered as waiting in a state of prostration for the heir to tc^e it up. Bract, fol. 8 a. 160 a. Co. Litt. 342 b. Incertam et caducam hcereditatem relevahat; he raised, or took up the doubtful and fallen inheritance. 2 Bl Com, 56.

Estates, from the French aboyer, which in a figurative sense means to expect, to look for, to desire. When there is no person in esse in whom the freehold is vested, it is said to be in abeyance, that is in expectation, remembrance and contemplation of law. The law requires, however, that the freehold should never, if possible, be in abeyance. Where there is a tenant of the freehold, the remainder or reversion in fee may exist for a time without any particular owner, in which case it is said to be in abeyance. Thus, if an estate be limited to A for life, remainder to the right heirs of B, the fee simple is in abeyance during the life of B, because it is a maxim of law, that nemo est heres viventis. 2 Bl. Com. 107; 1 Cruise, 67-70; 1 Inst. 342; Merlin, Repertoire, mot Abayance; 1 Com. Dig. 175; 1 Vin. Abr. 104.