the fubject: but as this branch of our jurisprudence, is neceffary to be known, I fhall extract a concife view of it, from the commentaries of judge Blackstone.

I. m An estate in remainder is defined to be an estate limited, to commence and take effect after another particular estate is ended, and determined. Thus, a proprietor in fee conveys lands to one perfon for twenty years, and after that term expires, to another and his heirs forever, or to one perfon during life, and then to his heirs forever. Here the first persons to whom these lands are given are tenants for years, or for life, and the remainder is to the other perfons, or their heirs in fee.

A perfon may limit a hundred remainders, or as many as he pleases upon the fame eftate, but they must be to perfons that are in life, or to the immediate heirs of fuch as are in life, so as to avoid a perpetuity, which the law will not warrant. No remainder can be limited after the grant of an estate in fee-fimple, for this comprehends the whole of the estate.

It is a general rule respecting these estates, that there must be fome particular eftate for life, or for years, precedent to the eftate in remainder, in order to fupport it, and that any thing which defeats the precedent estate, created to fupport the remainder, will defeat the remainder.

Another general rule is, that the estate in remainder must pass out of the grantor, at the fame time that the particular precedent estate is created. Thus an eftate granted to one for life, and then to another, and his heirs forever, the eftate in the remainder, pafles out of the grantor at the fame time the estate for life is created, and vefts presently in the remainder-man; tho to be poffeffed and improved in future, and the remainder-man, may transfer fuch estate in remainder.

A third rule refpecting eftates in remainder is, that they muft veft in the remainder-man during the particular precedent eftate, or at the inftant it determines. Thus, if an estate be granted to ne perfon for life, and then to the eldest fon of another in fee, M m 2

2 Black. Com. 164. Co. Lit. 143.

if

if the tenant for life die, before the other perfon has a fon born, the remainder is gone, and tho he afterwards have a fon, he cannot take by the grant, for the particular estate, that fupported the remainder, having ceafed before his birth, the remainder falls to the ground, and the eftate reverts to the grantor, or his heirs.

On these rules, it is faid, that the doctrine of contingent remainders depends. Remainders are either vefted, or contingent. Vefted remainders, or remainders executed, are where a precedent interest immediately vests, tho to be enjoyed in future, being fixed with certainty, to a determinate perfon, after the particular eftate is ended. Thus if one perfon be tenant for life, remainder to another in fee, the laft man has a vested remainder. Contingent, or executory remainders pafs no prefent intereft, and are where the estate in remainder is limited to commence, and veft either in a dubious or uncertain perfon or upon a dubious, and uncertain event, whereby the precedent eftate may happen to be determined, and the remainder be wholly defeated, and never take effect. Thus where a perfon is tenant for life, with remainder to the eldest fon of another person, then unborn, this remainder is contingent, for it is uncertain whether fuch perfon will ever be born; but whenever fuch fon is born, the remainder inftantly vefts, and is no longer a contingent, but a vefted remainder: tho if fuch fon fhould not be born, till after the particular eftate is determined, the remainder would be defeated. Thefe remainders must be limited to fome perfons that may by poffibility be in existence before the particular eftate ends; for where the poffibility is ve‐ ry remote, depending upon two, or more contingencies, the remainder is void.

A remainder is alfo faid to be contingent, where the perfon is fixed, but the event on which he is to take, is uncertain. Thus where an eftate is granted to one for life, and another in fee, in cafe he furvives, the remainder depends on the furvivorship, and that failing, the remainder is gone.

Contingent remainders of either kind, if they amount to a freehold eftate, cannot be limited upon any particular eftate less than a freehold, for unless the freehold pafles out of the grantor, when the remainder is created, fuch freehold remainder is void. The

remainder

remainder cannot pafs without vefting fomewhere, it muft veft in the particular tenant, or it can veft no where, unless fuch tenant have an eftate of a freehold nature, it cannot veft in him, and if it does not, a freehold cannot be created.

But a fpecies of eftates, fimilar to thefe, may be created by will without attending to thefe rules, by reafon of the more liberal construction that is given to wills. Such eftates, fo created by will, are denominated executory devifes. An executory devife is defined to be a difpofition of lands by will, where no eftate vests at the death of the teftator, but is to commence on fome future contingency. There is no neceffity of any particular precedent estate to fupport an executory devife. As where a man devifes lands to a fingle wonan, and her heirs, to take on the day of her marriage, if the woman be unmarried at the time of the deceafe of the teftator, the estate defcends to his lawful heirs in fee, and fo continues till the woman be married, and then it vefts in her. This limitation of the estate, would be void in a deed, but is good in a will, because, by a devife a freehold eftate can pafs without delivery of poffeffion, and may commence in future.

An executory devife of an eftate in fee-fimple, or other lefs eftate may be limited after an eftate in fee. A man may devife his whole eftate in fee, and then limit a remainder, to take effect on a future contingency. Thus if a man devifes his estate to one and his heirs, and if he dies before a certain age, then to another and his heirs, this remainder is good, by way of exccutory devife, but would be void in a deed. But the contingencies, must be fuch as will happen in a reasonable time, and not amount to a perpetuity.

By an executory devife, a term for years may be given to one man during life, and a remainder, be limited over to another, which cannot be done by deed, for a life eftate being deemed larger than any eflate for years, a deed of a life eftate is fuppofed to comprehend the whole term, but in confequence of the liberal conftruction that is given to wills, a man may in cafes of long terms, devise an eftate for life and limit a remainder. The Devifor in fuch cafes may limit as many remainders as he pleafes, but the perfons must all be in efle during the life of the firft devifee, for then the candles are all lighted, and are confuming together,

and

and the ultimate remainder is in reality only to that remainderman, who happens to furvive the reft, or fuch remainder must be limited to take effect upon fuch contingency only, as must happen, if at all during the life of the first devifee.

II. Eftates in reverfion, refult from the operation of law, and are defined to be the refidue of the estate left in the grantor, to commence in poffeffion, after the determination of fome particular eftate granted out by him. Thus when a man grants an estate for life, for years, or at will, the reversion continues in the grantor, and inflantly takes effect upon the expiration of fuch eftates fo granted. For it is an eftablished doctrine of law, that the feefimple of all lands muft abide fomewhere, and if he who has the whole carves out a fmaller eftate, whatever is not granted, remains in him. Eftates in fee-tail, on failure of perfons to whom they are limited, revert to the donor. Eftates in reverfion, as well as remainder, are transferable.

It is a general rule of law, that whenever a greater and lefs eftate meet, and unite in the fame perfon, without any intermediate efate, the lefs is immediately annihilated, and merged or funk in the greater. Thus, if there be tenant for years, and the reverfion in fee-fimple defcends to, or is purchased by him, the term of years is merged in the inheritance, and fhall exift no more. But where the perfon holds the eftates by different rights, they fhall continue distinct and shall not merge. Thus if a perfon has a freehold in his own right, and a term for years, in another's right, no merger of thefe eftates can take place. But eftates in tail, are an exception to this rule; for if a perfon, who may be called the firft donee in tail, fhould purchase the reverfion in fee, of the donor, yet the eflate tail fhall not merge; becaufe by the ftatute it was intended, that the first donee fhould do no act, by which it fhould be in his power to defeat the eftate-tail.

CHAP.

CHAPTER THIRTEENTH.

OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

THIS chapter confiders the number and connexion of the own

ers of eftates.

I. Estates in severalty, are where one perfon is the fole owner, without any connexion with any other perfon. This is the most common kind of eftates, and it is this we mean, when we fpeak of eftates in general. When we intend any other kind, it is par ticularly mentioned by way of distinction. Nothing further necd be obferved on this head. We proceed to a confideration of the other fpecies of estates.

22

II. » An estate in joint-tenancy, is where lands are granted to two or more perfons to hold in fee fimple, fee-tail, for life, for years, or at will. The creation of this eftate depends upon the expreffions in the deed, or devife, by which the tenants hold, for it refults from the acts of the parties, and not from the operation of law. Thus an eftate given to a number of perfons, without any reftrictive, exclufive, or explanatory words, will be conftrued a joint-tenancy; for every part of the grant can take effect only by confidering the eftate equal in all, and the union of their names, gives them a union in every refpect.

The proprieties of this eftate arife from its unity, for it is effential that joint-tenants have unity of intereft, of title, of time, aud of poffeffion. The unity of intereft extends to the fame period of time, for its duration, and the fame quantity of intereft, and a difference in either is inconfiftent with a joint eftate. The unity of title, confifts in the cftate being created by and derived from one and the fame conveyance. The unity of time confifts in the eftates being created and vefted in all at the fame period; and the unity of poffeffion, makes it neceflary that all fhould poffefs at the fame time; for they have not a divided poffeffion, one having the poffeffion of one part, and another of a different part, but each has the entire poffeffion of every parcel as well as of the whole, and they are faid to be feized by the half or moiety, and by the whole.

n 2 Black Com 179. Co. Lit. 189. • Per mie et per tout.

The