REMAINDER. 



REMAINDER. 



the remainder is absolutely void. A grant of an estate to A, aiid one 

 day after the determination thereof to B, is a void remainder. 



Estates in remainder are either vested or contingent. The remaindei 

 may vest at the time of the limitation, or it may vest afterwards : in 

 cither ease the remainder-man acquires an estate in the land, to the 

 enjoyment of which he is entitled upon the determination of the pre- 

 ceding estate. But it may happen that a vested remainder may never 

 become an estate in possession. 



A vested remainder is an estate which, by the terms of the original 

 limitation or conveyance, is limited or conveyed unconditionally. If a 

 remainder is not vested, it is contingent. 



A contingent remainder is denned by Fearne to be " a remainder 

 limited so as to depend 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 estate." Accordingly it is 

 the limitation of the remainder which is conditional, and there ia no 

 remainder limited or given until the condition happens or is performed. 

 The uncertainty of the remainder becoming an estate in possession is 

 no part of the notion of a contingent remainder; for this kind of 

 uncertainty may exist, as already observed, in the case of vested 



oden. 



Ft arne has made four classes of contingent remainders, to some one 

 <>f which he considers that all kinds of contingent remainders may be 

 reduced, but he adds that " several cases which fall literally under -one 

 ni- nther of the two last of those four descriptions, are nevertheless 

 ranked among vested estates." 



The first class is, " where the remainder depends entirely on a con 

 tingent determination of the preceding estate itself; " or, as it may be 

 explained, where a remainder is limited to take effect only on the 

 happening of a specified contingent event which is to determine the 

 preceding estate, and ia not to take effect if the preceding estate deter- 

 mine in any other way. An example usually given is the following : 

 A makes a feoffment to the use of B till C returns from Rome, and 

 after C's return, then to D in fee. In this case B has an estate which 

 will determine either upon C's return from Rome or by his own death ; 

 but the remainder is limited to D only upon the happening of a 

 specified event which may never happen ; and if B's estate determine 

 by his death, or by forfeiture, which is possible, no estate is limited to 

 D. There is then no limitation to D, except conditionally, and his 

 estate is therefore contingent. 



Tin- second class is, " where some uncertain event, unconnected with 

 11 it.-ral to the determination of the preceding estate, is by the 

 nature of the limitation to precede the remainder." This class is easily 

 distinguished from the first, by the circumstance that the uncertain 

 upon which the remainder is limited, is entirely independent of 

 the manner in which the preceding estate may or must determine. 

 Tli. following is an example : If a grant is made to A for life, remainder 

 to B for life, and if 15 die before A, remainder to C for life, the un- 

 certain event of B's dying before A is quite independent of the deter- 

 mination of A's estate, but the limitation of C's estate depends on this 

 uncertain event happening. 



In 1 .. .tli these classes of remainders, the event on which the remainder 

 in t<> take effect is absolutely uncertain ; in the two following classes, 

 tin events on which the remainders are limited are events which cer- 

 tainly must happen, and the contingency arises from the uncertainty 

 of the time when they will happen. 



The third class is, " where a remainder is limited to take effect upon 

 an event, which, though it certainly must happen some time or other, 

 yet may not happen till after the determination of the particular 

 estate." The following ia an example : A grant is made to J. S. for 

 life, and after the death of J. D. the lands to remain to another in fee. 

 Though it is certain that J. D. must die, this event, upon which the 

 limitation in fee is to take effect, may not happen till after the deter- 

 mination "1 the life estate of J. S. 



The fourth class is, " where a remainder is limited to a person not 

 ascertained, or not in being at the time when such limitation is made." 

 The following ia an example : A grant is made to A for life, remainder 

 to the right heirs of J. S. Nuw as J. S. can have no heir till he is 

 dead, and as he may not die till after the determination of the par- 

 ticular estate, such remainder is contingent. If an estate is limited to 

 two persons for life, with remainder in fee to the survivor, the remainder 

 ia contingent, because it is uncertain which will be the survivor. 



The numerous exceptions to the fourth class of contingent re- 

 mainders are comprehended in what is called the Rule in Shelley's 

 case, of which a complete exposition is given in Fearne's ' Essay on 

 Contingent Remainders ; ' and in Preston's ' Treatise on Estates ' (vol. i.). 

 The nature of this rule may be generally stated as follows : If lands 

 are limited, either by deed or will, to a man for life, and after his death 

 heirs or the heirs of his body, the limitation to the heirs would 

 appear to be a contingent remainder according to the definition of the 

 fourth class of contingent remainders, for the heirs are persons who 

 cannot be ascertained till the death of the person to whom the estate 

 for life is given. But it is an old rule of law that the estate so limited 

 to the heirs or the heirs of the body takes immediate effect . an 

 estate in the ancestor, and therefore, in the former case, A takes an 

 estate of freehold with a vested remainder in fee. His life estate is 

 consequently merged in his remainder in fee, and he becomes tenant 

 in fee simple in possession. If an estate for life, or an estate tail, 



is interposed between the estate for life to the ancestor and the re- 

 mainder to his heirs or the heirs of his body, still this remainder 

 is vested in the ancestor, just in the same way as if it were limited to 

 him and his heirs, or to him and the heirs of his body. Thus when A 

 takes an estate for life, remainder to B for life, remainder to C in tail, 

 remainder to the right heirs of A, this ultimate remainder is a vested 

 remainder in fee in A, and, after his death and the determination of 

 the intermediate estates, his heir will take by descent. But cases 

 within this rule are not so properly exceptions, as cases which by the 

 operation of the rule are excluded from the fourth class of contingent 

 remainders. 



There is another exception to the fourth class, which is allowed in 

 devises, where it can be clearly inferred from the particular expres- 

 sions in the will, that a limitation to the heir special of a person then 

 living is intended as a designation of a particular person. In such case 

 the remainder will vest ; for the conclusion is, not that the testator 

 intended to limit the estate by way of contingent remainder to such 

 person as should be ascertained to be heir by the death of his ancestor, 

 but that he intended by the word " heir," accompanied with the other 

 expressions in the will, to designate a particular person. 



A contingent remainder may intervene between the particular estate 

 and other limitations over, and yet the subsequent limitations may 

 be vested, if made to a person in esse, provided the contingent limita- 

 tion is not in fee simple. The contingent remainder itself may also 

 vest, and then become an estate interposed between the particular 

 estate and the subsequent vested limitations, if the contingency hap- 

 pens during the existence of the particular estate. If in the same 

 conveyance an estate is limited to A for life, followed by a contingent 

 remainder and a subsequent limitation to A and his heirs, or A and 

 the heirs of his body, this last limitation, though executed under the 

 rule in Shelley's case, is still so executed as to allow the contingent 

 remainder to interpose as a vested estate when the contingency happens. 

 A subsequent contingent limitation may vest before a preceding ona, 

 but it fofiows from what has been said that the preceding one is still 

 capable of vesting. 



Lands may be so limited as to be subject to a general power of ap- 

 puiutment. In such cases, the general power of appointment will not 

 prevent the estates limited in default of appointment from vesting ; 

 though the due exercise of the power will divest them. 



A contingent remainder may be limited generally upon any event, 

 except in such cases as the following : the contingent event being 

 illegal ; the remote possibility of the contingent event ; and the con- 

 dition enuring to defeat the preceding estate. These subjects are fully 

 discussed by Fearne (c. 2). 



It will be collected from what has been said that a contingent re- 

 mainder of freehold must be preceded by a vested estate of freehold ; for 

 if there is no precedent vested estate of freehold, and the freehold 

 remainder is contingent, the freehold either remains in the grantor, 

 and therefore is not transferred to any one else, or it is transferred in 

 some remainder which is limited after the contingent remainder, and 

 which, being therefore vested in possession, precludes all possibility of 

 the vesting of the contingent estate, which by the terms of the limita- 

 tion must precede it. This rule as to the necessity of a vested 

 freehold estate to support a contingent remainder, applies both to 

 limitations of uses and of estates limited at common law. 



It will also appear from the definitions of contingent remainders 

 that they must vest, that is, the conditions on which they are limited 

 must be fulfilled, during the continuance of the particular estate or 

 immediately on its determination. One of the cases in which such 

 remainders were formerly liable to fail under the fourth class of con- 

 tingent remainders, was in the case of such limitations as to A for life, 

 and to his first and other sons in tail. Originally a posthumous son 

 could not take, but such child is now for this and several other pur- 

 poses considered as a person in ease during the period of pregnancy. 

 When a contingent remainder is limited to several in a conveyance to 

 uses or by a devise, such remainder will vest in the first person in 

 whom it can vest, but it will divest in due proportions in favour of 

 other persons who are included in the limitations, and who become 

 capable of taking before the determination of the particular estate ; 

 and such persons may take as joint tenants, though their estates vest 

 at different times. 



Formerly, any determination of the particular estate before a legal 

 imainder vested, destroyed the contingent remainder. The contingent 

 remainder might fail not only through the contingency not happening 

 till after the expiration of the particular estate, but through its de- 

 struction by the surrender of the tenant for life, or by the forfeiture of 

 to during the existence of the contingency. The intermediate 

 contingent remainder was also destroyed if the particular estate and 

 the next vested estate of freehold became united by the conveyance or 

 act of the parties, so that the particular estate was merged. Now, 

 lowever, it has been enacted by the statute 8 & 9 Viet. c. 106, that 

 contingent remainders shall be capable of taking effect, notwithstand- 

 ng the determination by forfeiture, surrender, or merger of any pre- 

 ceding estate of freehold. 



A contingent remainder of an estate of inheritance is descendible to 

 ,he heirs of an ascertained person to whom it is limited, if such person 

 ihould die before the contingency happens, and it will vest if the same 

 should happen during the continuance of the particular estate. Con- 



