Remainder

The remnant of an estate in land, depending upon a particular prior estate created at the same time and by the same instrument and limited to arise immediately on the determination of that estate and not in abridgment of it.

4 Kent 197. See Will. Real P. 282.

A contingent remainder is one which is limited to an uncertain or dubious person, or which is to take effect 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 particular estate. A vested remainder is one by which a present interest passes to the party, though perhaps to be enjoyed in future, and by which the estate is invariably fixed to remain to a determinate person after the particular estate has been spent. There are four classes of contingent remainders.

1.

Where the remainder depends on a contingent determination of the preceding estate, and it remains uncertain whether the use or estate limited in future will ever vest.

2.

Where the contingency on which the remainder is to take effect is independent of the determination of the preceding estate and must precede the remainder.

3.

Where the condition upon which the remainder is limited is certain in event, but the determination of the particular estate may happen before it.

4.

Where the person to whom the remainder is limited is not ascertained or not in being. 4 Kent 207, quoting Fearne, Cont Rem. They are divided by Blackstone intp two kinds.

1.

Remainders limited to take effect to a dubious and uncertain person, or 2. Upon a dubious or uncertain event; and by not in esse.

2.

Where the commencement of the remainder depended on some matter collateral to the determination of the particular estate; Willes 327; 4 Kent 207, and note, where the classification of Blackstone is approved. There are exceptions to the third and fourth classes of contingent remainders, as enumerated by Fearne, as, a limitation for a long term of years with remainder over gives a vested remainder; and where one takes an estate of freehold and an immediate remainder is limited thereon in the same instrument to his heirs in fee or in tail, the remainder is immediately executed in possession and he becomes seised in fee or in tail.

4 Kent 209.

See Shelley’s Case, Rule in. The rule that where there is a possibility upon a possibility, the remainder is void; 2 Co. 51; is said to be obsolete; 4 Kent 206, n.; 2 H. L. Cas. ISO. See Contingent Remainder; Cross-Remainder; Executory Devise; Limitation; Reversion.