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.

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.

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, Comm. 197. An estate limited to take effect and be enjoyed after another estate is determined. As, if a man seised in fee-simple grants lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs forever, here A. is tenant for years, remainder to B. in fee. 2 Bl. Comm. 164. An estate in remainder is one limited to be enjoyed after another estate is determined, or at a time specified in the future. An estate in reversion is the residue of an estate, usually the fee left in the grantor and his heirs after the determination of a particular estate which he bas granted out of it. The rights of the reversioner are the same as those of a vested remainder-man in fee. Code Ga. 1882, § 2263. And see Sayward v. Sayward, 7 Me. 213, 22 Am. Dec. 191; Bennett v. Garlock, 10 Hun (N. Y.) 337; Dana v. Murray, 122 N. Y. 604, 26 N. E. 21; Booth v. Terrell, 16 Ga. 24; Palmer v. Co.ok, 159 111. 300, 42 N. E. 796, 50 Am. St. Rep. 165; Wells v. Houston, 23 Tex. Civ. App. 629, 57 S. W. 584; Hudson v. Wadsworth, 8 Conn. 359.

— Contingent remainder. An estate in remainder which is limited to take effect either to a dubious and uncertain person, or upon a dubious and uncertain event, by which no present or particular interest passes to the remainder-man, so that the particular estate may chance to be determined and the remainder never take effect. 2 Bl. Comm. 169. A remninder limited so as to depend upon 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 estate. Fearne, Rem 3; Thompson v. Adams, 205 111. 552, 69 N. El 1; Griswold v. Greer, 18 Ga. 545; Price v. Sisson, 13 N. J. Eq. 168; Yocum v. Siler, 160 Mo. 281, 61 S. W. 208; Shannon v. Bonham, 27 Ind. App. 369, 60 N. E. 951,

— Cross-remainder. Where land is devised or conveyed to two or more persons as tenants in common, or where different parts of the same land are given to such p'ersons in severalty, with such limitations that, upon the determination of the particular estate of either, his share is to pass to the other, to the entire exclusion of the ultimate remainder-man or reversioner until ali the particular estates shall be exhausted, the remainders so limited are called "cross-remainders." In wills, such remainders may arise by implication; but, in deeds, only by express limitation. See 2 Bl. Comm. 381; 2 Washb. Real Prop. 233; 1 Prest. Est. 94.

— Executed remainder. A remainder which vests a present interest in the tenant, though the enjoyment is postponed to the future. 2 BI. Comm. 168 ; Fearne, Rem. 31; Hudson v. Wadsworth, 8 Co.nn. 359.

— Executory remainder. A contingent remainder; one which exists where the estate is limited to take effect either to a dubious and uncertain person or upon a dubious and uncertain event. Temple v. Scott, 143 111. 290, 32 N. E. 366; Hudson v. Wadsworth, 8 Conn. 359.

— Vested remainder. An estate by which a present interest passes to the party, though to he enjoyed tn futuro, and by which the estate is invariably fixed to remain to a determinate person after the particniar estate has been spent. 2 Bl. Comm. 168. A vested remainder is one limited to a certain person at a certain time or upon the happening of a necessary event. Code Ga. § 2265. And see Poor v. Co.nsidine, 6 Wall. 474, 18 In Ed. 869; Tayloe v. Gould, 10 Barb. (N. Y.) 396j Johnson v. Edmond, 65 Conn. 492, 33 Atl. 503; Marvin v. Ledwith, 111 III. 150; Wallace v. Minor, 86 Va. 550, 10 S. E. 423; Woodman v. Woodman, 89 Me. 128, 35 Atl. 1037; Brown v. Lawrence, 3 Cush. (Mass.) 397. Remainder to a person not of a capacity to take at the time of appointing it, is void. Plowd. 27.

An estate limited to take effect in possession at a future day on determination of a previous estate, called the particular estate, created at the same time. v. Contingent remainder; Cross remainder; Vested remainder. Remainder-man: the owner of an estate in remainder.

An estate limited to take effect and be enjoyed after another estate is determined.' As, in the case of a grant of lands to A for twenty years, and, a-fter the determination of that term, to B and his heirs forever. Here A is tenant for years, remainder to B in fee.^ A remnant of an estate in land, depending on 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. 2 Generally used of landed property, but there may be a remainder in peisonalty.^ Remainder-man. The owner or tenant of an estate in remainder. There must be a "particular" estate precedent to the estate in remainder; and the remainder itself must commence or pass out of the grantor at the time of the creation of the particular estate, and vest in the grantee during the continuance of such estate or the instaut it determines.* Contingent remainder. Where the estate is limited to take effect as to a dubious and uncertain person or upon a dubious and uncertain event; sp that the particular estate may chance to be determined and the remainder never take effect. Called also an executory remainder, for by it no present ititerest passes. Vested remainder. Where the estate is invariably fixed, to remain to, a determinate person, after the particular estate is spent. Called also a remainder executed, since by it the present interest which passes is to be enjoyed in the future. ^ Cross-remainder. Where a devise is of black-acre to A and of white-acre to B in tail, and, if both die without issue, to C in fee, — A and B have "cross-remainders" by implication, and on the failure of either's issue, the other or his issue will take the whole; and C's remainder over is postponed till the issue of both shall fail." ' Si Bl. Com. 163. 2 4 Kent, 197; Bennett v. Garlock, 10 Hun, 337 (1877). ' In Connecticut, may be of realty or personalty, Bristol «. Bristol, 53 Conn. 878 (1885). < 2 Bl. Com. 165-69. * [2 Bl. Com. 168-69; Doe's Case, 6 Wall., post. A cross-remainder cannot arise in deeds without express limitation, i It is the uncertainty of the right of enjoyment, not of its actual enjoyment, which i-enders a remainder " contingent." The present capacity of taking effect in possession, if the possession were to beconie vacant, distinguishes a vested froin a contingent remainder, and not the certainty that the possession will ever become vacant while the remainder continues.^ A remainder is " vested " when there is a person in being who would have an immediate right to the possession upon the ceasing of the intermediate particular estate. It is an estate grantable by any of the conveyances operating by force of the Statute of Uses. A remainder limited upon an estate-tiiil is a vested remainder. A remainder is never held to be contingent when, consistently with the intention, it can be held to be vested." A contingent remainder, amounting to a freehold, cannot be limited to an estate less than freehold. It may be defeated by the determination or destruction of the particular estate before the contingency happens. Hence, trustees are appointed to preserve such remainders.^ The law will not construe a limitation in a will an executory devise when it can take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested. The rule is, an estate vests at the earliest possible pei'iod, unless there is a clear manifestation of the intention of the testator to the contrary.* "Where," "there," "after," "from," and other adverbs of time, used in a devise of a remainder, are construed to relate to the time of the enjoyment qf the estate, not to the time of the vesting in interest. Where there is a devise to a class of persons to take effect at a future period, the estate vests in the persons as they come in esse, subject to open and let in others as they are born afterward. An estate once vested will not be devested unless the intent to devest clearly appears.' See Then; Ween. Words directing that laud be conveyed or divided among remainder-men, after the termination of a particular estate, are always presumed, unless clearly controlled by other provisions of the will, to relate to the beginning of enjoyment by the remainder-men, and not to the vesting of a title in them.*, ' a Bl. Com. 381; Hall v. Priest, 6 Gray, IS (1836), Bigelow, J.; 8 Washb. R. P. 233; 4 Kent, 201; 1 Prest. Est. 94. ' 4 Kent, 202-6. 'Croxall V. Shererd, 5 Wall. 287-88 (1866), cases, Swayne, J. See also Scott v. West, 63 Wis. 589, 564-65 (1885), cases; Mercantile Bank of New York v. Ballard, 83 Ky. 487-88 (1885); Farnam v. Farnam, 63 Conn. 878-83 (1885), cases. *Do6 V. Con.sidine, 6 Wall. 474-78 (1867), cases, Swayne, J. See also Cropley v. Cooper, 19 Wall. 176 (1873), oases; Mc Arthur v. Scott, 113 U. S. 379-80 (1885), cases; 8 Conn. *m9: 66 Ga. 472-73; 26 N. J. L. 540; 5 Paige, 466; 26 Barb. 224; 37 Pa. 28; 75 id. 220; 83 id. 483. When the income of property is devised to A during his life, remainder to B, the interest of B becomes vested at the death of the testator, even though A should have died before the testator. ' If a remainder created by will cannot take effect, the property, according to circumstances, will either fall into the residuum or remain undisposed of. If an executory devise cannot take effect, the estate, ordinarily, unless the will directs otherwise, will continue in the first taker.* See Abeyance; Devise, Executory; Eevbrsion; Shelley's Case; Waste, 2.

A future estate at common after the end of a previous estate, which estate. A vested remainder is a certain person or persons, which is to determination of the particular and orders issued from courts. as distinguished from cause the sheriff to redefendant of too much land v. Pleading. I. Reference should valid. have released. an information or quo releasor yields his right or estate or possession in which may enure either where a fee-simple as from one joint tenpassing the right (mitter not necessary, and there to a disseisor; (3.) by or right of reversion; (enlarger Testate); (5.) by two disseisors releases Cognovit. land is left dry. fine paid by the heir of a up " the feud. 2. The in equity. ad rem, Ad rem. law, created to take effect is called the particular future estate given to some take effect immediately on and must be at all derman,) upon the way; and which must A contingent remainder conditions, because it happen, or may not ticular estate, or because uncertain, or not in of use is when a future as a remainder; in which becomes subject to the law.

An estate limited to take effect and be enjoyed after another estate is determined. Thus, if an owner of lands in fee-simple grants them to A for twenty years, and after the determination of that term to B and his heirs for ever, — in this case, the estate, being what remains of the fee after the term of twenty years is taken out, is called a remainder. In order to constitute or to create a remainder, it is a rule that there must be some "particular estate" to support it; that is to say, at the time of creating a remainder there must be some estate in the same lands created, to precede the remainder; and this preceding estate is termed the particular estate. Thus, in the example above given, the estate of A is termed the particular estate, because it is only a small part, or particule, of the inheritance, the residue or remainder of which is granted over to B. The necessity of creating this preceding particular estate, in order to make a good remainder, corresponds with the term remainder, which obviously implies that some part of the thing is previously disposed of. Remainders are said to be either vested or contingent. A vested remainder (or remainder executed) is one on the creation of which a present interest passes to the party, though its enjoyment is postponed to a future time, and by which the estate is invariably fixed to remain to a determinate person after the particular estate is spent; or, as otherwise expressed, a vested remainder is one which is always ready, from its creation to its close, to come into possession the moment the prior estate determines. Thus, if an estate is conveyed to A for twenty years, remainder to B in fee, B has a vested remainder, which nothing can defeat or set aside; and, generally, a person entitled to a vested remainder has an immediate fixed right of future enjoyment, — that is, a present estate, though it is only to take effect in possession and receipt of the profits at a future period. Contingent (or executory) remainders are such as are limited to take effect in favor of a dubious and uncertain person, or upon a dubious and uncertain event. Thus, if an estate be conveyed to A for life, and after his death to B's eldest son (then unborn) in tail, — this is a contingent remainder, for it is quite uncertain whether B will have a son or not; but the instant that a son is born, the remainder is no longer contingent, but becomes vested. There is an extended and varied body of learning upon this subject, for which the standard treatises on real-property law should be consulted. The distinctions and details connected with the subject are of but limited interest in most of the United States. Although generally used of landed property, this is because the permanent character of lands gives more frequent occasion for creation of future estates in them than in personalty, — not because the word is necessarily confined to realty. There may be a remainder in personal property. Upon the construction and force of the word remainder, in a devise of the remainder of an estate, see Fowler v. Depau, 26 Barb. 224; France's Estate, 75 Pa. St. 220. Remainder-man. The person to whom is reserved an estate created to come into possession after determination of a precedent estate; a tenant in remainder.