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which has been previously employed (p. 57), per tout et non per my. Hence, there could be no partition between them; and neither could dispose of the property, or any part of it, without the other's concurrence; and on the death of either of them, the property remained to the survivor.

At common law, on a gift to husband and wife and a third person, the husband and wife took half the property between them as tenants by entireties, and held in joint tenancy with the third party, who took the other half of the property (1).

The effect of the Married Women's Property Act, 1882 (2), would seem to be to abolish tenancy by entireties in the case of any gift to husband and wife made since that Act came into operation. Under such a gift a husband and wife will now take in equal undivided shares, the share of the wife being her separate property (3).

Act, 1882

The law with regard to such gifts was recently considered in a case which came before the Court of Appeal. A testatrix who Married died after the 1st of January, 1883 (4) (the date when the Married Women's Property Women's Property Act came into operation), by her will, dated before that time, gave all the residue of her real and personal property to A. B. and C. D. and E., C. D.'s wife. The Court decided that A. B. was entitled to one half of the property, C. D. to a quarter, and E., his wife, to the other quarter for her separate use.

In this case Lord Justice Cotton stated that in his opinion "the Married Women's Property Act, 1882, was not intended to alter any rights except those of husband and wife inter se."

() Litt. s. 291.

(2) 45 & 46 Vict. c. 75.

(3) In re March, 27 Ch. D. 166.

(*) In re Jupp, 39 Ch. D. 148, and

see Re Dixon, 42 Ch. D. 306, where
Re Jupp is commented on, and
Warrington v. Warrington, 2 Hare
54, followed.

Estate in

CHAPTER VIII.

FUTURE ESTATES.

Estates, when considered with reference to the times of their enjoyment, are, as has already been pointed out (ante, p. 15), either in possession or in expectancy. An estate is in possession possession. when the owner is entitled to the immediate enjoyment of it; and it must be borne in mind that an estate in possession, as contrasted with an estate in expectancy, comprehends not merely the actual and bodily occupation or enjoyment of the property, but a right to have it (1).

Estate in expectancy.

Reversion.

An estate is said to be in expectancy when the owner has not the immediate possession and enjoyment of the land, but is entitled thereto at a future time (2). Estates in expectancy are either reversions, remainders, or executory interests.

Suppose A. B., the owner of an estate in fee simple grants an estate to C. D. for life: The estate to C. D. for life so granted or "carved out," as it is technically called, is called the particular estate, being a particula or portion of the whole estate in fee simple, originally held by A. B. The estate which still remains in A. B., the present estate in virtue of which he is to have again the possession at some future time," is called a reversion (3). The owner of the estate is called a reversioner.

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Suppose, however, that when A. B. was granting the life estate to C. D. he at the same time, and by the same instrument, granted subsequently to, or as it is called "subject" to C. D.'s life interest all the rest of his estate to E. F., or gave a life estate or life estates after C. D.'s to another person or other persons, each estate so conveyed after C. D.'s life estate is called a remainder and the owner of it a remainderman.

A reversion always arises by mere operation of law, i.e. it is

() Goodeve's Real Property, 2nd
ed. p. 211.

() Edwards' Compendium of Real
Property, p. 100.
(3) Williams

on Real Property,

16th ed. p. 282. A reversion, says Sir E Coke, is when the residue of the estate doth continue in him that made the particular estate: Co. Litt. 226.

a necessary consequence of granting a particular estate and

doing nothing more.

A remainder is always created by the act of the parties, and Remainder. while there may be number of remainders in the same estate,

any

there can be only one reversion.

Another distinction which exists between a reversion and a Reversion. remainder is this: where the owner of an estate becomes a reversioner by the grant or creation of a less estate, a tenure springs into existence between him and the person put into possession, and to this tenure (sometimes called an imperfect tenure, to distinguish it from the tenure in fee simple) rent service is usually incident. On the other hand, between the different persons successively entitled in remainder who all hold from the same grantor there is no tenure.

Remainders are either vested or contingent.

A vested remainder is an interest certain and indefeasible, Vested remainder. i.e. not liable to be defeated, an interest which however small it may be, being limited to some certain person or persons in existence and on a certain event, is always ready, from its commencement to its end, to come into possession the moment the prior estates, be they what they may, happen to determine. There is always an immediate fixed right of future enjoyment. A contingent remainder is one which is limited to an uncer- Contingent tain person or on an uncertain event. As distinguished from a vested remainder, it is an interest in remainder, which is not ready from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine (1).

:

(1) Four sorts of contingent remainders are distinguished by Mr. Fearne First, where the remainder depends entirely on a contingent determination of the preceding estate itself, as when a conveyance is made to B. until C. returns from Rome, and after such return of C. remainder over in fee; Secondly, where the contingency on which the remainder is to take effect is independent of the determination of the preceding estate, e.g. if land be given to A. in tail, and if B. come to Westminster Hall on such a day to B. in fee. Here it will be observed in the first case the happening of the event determines the particular estate. In the second case the contingent event vests the remainder without interfering with A.'s estate; Thirdly, where the con

VOL. I.

dition upon which the remainder is
limited is certain in event, but the
determination of the particular estate
may happen before the contingency
takes place, e.g. if an estate be given
to A. B. for life, and after the death
of C. D. to another in fee. Now C.
must certainly die some time or other,
but his death may not happen until
after A. B.'s particular estate was
determined by its owner's death;
Fourthly, where the person to whom
the remainder is limited is not yet
ascertained, or not yet in being, e.g.
if an estate be given to A. B. for life
with remainder to the right heirs of
C. D. a living person. Now as nemo
est hæres viventis there can be no
"heirs" of C. D. until his death, and
this may not happen until after the
determination of A. B.'s estate.

F

remainder.

remainders.

Contingent The true test whether an estate is vested or contingent is thus stated in Fearne on Contingent Remainders: "It is not the uncertainty of ever taking effect in possession that makes a remainder contingent; for to that every remainder for life or in tail is and must be liable; as the remainderman may die, or die without issue, before the death of the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, universally distinguishes a vested remainder from one that is contingent." Thus, suppose successive estates for life are given in the same property, e.g. to A., a healthy young man, for life with remainder for life to B., who is on the very point of death. Here the chance that B. will ever have possession of the property is no doubt extremely remote, but as B.'s life estate is always ready whilst he lives to come into possession on the failure or expiration of A.'s, his estate is a vested remainder.

The nature of a contingent remainder may also be illustrated by conferring similar estates in a different order on the same fictitious characters. Suppose the first life estate were limited to B., then on the brink of the grave, followed by an estate to A., in the prime of his manhood, if a certain extremely probable event should occur; here the chance of A. obtaining possession of the estate is practically certain; but as his estate is subject to a contingency, and not certain to come into possession immediately on the determination of the preceding estate, it is only a contingent remainder.

Contingent remainders were liable to certain imminent perils of destruction which have been to some extent removed by legislation in the present reign.

The reason why a contingent remainder under a legal devise failed, if at the death of the previous holder of the estate of freehold there was no person who answered the description of the remainderman next to take, is very clearly stated by Sir George Jessel in a well-known case (1). "It arose from the feudal rule that the freehold could never be vacant, because there must always be a tenant to render the services to the lord, and therefore if the remainder could not take effect immediately on the determination of the prior estate it never could take effect at all. This result of feudal rules was never held to apply to equitable estates, and it was sometimes said that the legal

(1) In re Finch. Abbiss v. Burney, 17 Ch. D. 211, 229.

estate in the trustee supported the remainder.' The real prin- Contingent ciple, however, was that as the legal estate in the trustees remainders. fulfilled all feudal necessities, there being always an estate of freehold in existing persons who could render the services to the lord, there was no reason why the limitations in remainder of the equitable interest should not take effect according to the intention of the testator. If at the time of the determination of the prior equitable estate of freehold there was no person capable of taking, a person afterwards coming into existence within the limits of the rule of remoteness, and answering the terms of the gift, was allowed to take. So that the doctrine of ascertaining once for all at the death of the tenant for life what persons were to take under the subsequent contingent limitations, had no application to equitable estates. Equity on this subject did not follow the law."

Again contingent remainders were liable to be destroyed not only by the natural expiration of the preceding estate, but also by its forfeiture, surrender, or merger (1).

In consequence of this state of the law, estates were often limited in trustees "to preserve contingent remainders" as they were called. This formality however has become practically obsolete since the passing of the Act to amend the law of real property which came into operation on the 1st of January, 1845 (2), and provided that a contingent remainder should be, and if created before the passing of the Act should be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, surrender or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. The same Act also provides that a contingent interest, and a possibility, coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, may be disposed of by deed.

The effect of this Act, however, was to preserve the contingent remainder only against destructive acts by or with the concurrence of the owner of the particular estate. The remainder, however, would still fail to take effect if the particular estate expired before the contingency happened. In the words of the late Lord Justice James, in his judgment in the celebrated case which led to the change in the law which we shall presently notice (3), contingent remainders were protected against the

(1) See Challis' Real Property, pp. 110 and 111, for two other (now obsolete) modes of their destruction.

(2) 8 & 9 Vict. c. 106, s. 8.
(3) Cunliffe v. Brancker, 3 Ch. Div.
393, 407.

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