Remainder

The remnant of an estate in lands or tenements expectant on a particular estate created together with the same at one time.

Co. Litt. 143a.

To constitute a valid remainder at common law, the estate in remainder must be created (1) on purchase (2 Washb. Real Prop. 586); (2) at the same time with a particular estate (2 Bl. Comm. 167); (3) less than a fee (Id. 164); and (4) must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines, so that the freehold shall not remain in abeyance (Id. 168); but (5) the remainder must rest on the natural termination of the particular estate, and not be in defeasance of it (Fearae, Cont. Rem. 13). In the United States. The term "remainder" is applied to various estates in expectancy, limited on precedent estates which do not fulfill all the requirements of the common law. Remainders are either vested or contingent. (1) A vested remainder is one by which a present interest passes to the party, though to be enjoyed in the future, and by which the estate is invariably fixed to remain to a determinate person after the particular estate is spent. A determinate remainderman in esse at the time of its creation is essential to a vested remainder. A future estate is vested where there is a person in being who would have an immediate right to the lands on the ceasing of the immediate or precedent estate.

1 Rev St. N. Y. c. 1, tit. 2, § 13.

This definition has been justly criticised so far as it is intended to be declaratory of the common law, in that it omits the essential that the person who shall take the remainder shall be ascertained before the termination of the particular estate. (2) A contingent remainder is one where the estate in remainder is limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event, so that the particular. estate may chance to be determined, and the remainder never take effect 2 Bl. Comm. 169. A remainder which, as regards the posmainderman.

Smith, Ex. Int. § 171.

It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which marks the difference between a vested and a contingent interest.

4 Kent, Comm. 206; 2 Cruise, Dig. 270.