Henry Williams Challis Henry J. Hood.

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condition itself void. (Feame, Cont. Eem. 270 ; 1 Prest. Est. 91.)

A determinable estate, which is liable to determine upon the
happening of a future event, by virtue of a determinable or collateral
limitation, is normally determined by the happening of that event ;
and a remainder may be as well limited over upon such a deter-
minable estate^ as upon the like estate when not determinable. This

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fact is often, but not very felicitously, expressed by saying, that a
stranger can take advantage of a conditional (*. e, determinable)
limitation, though he cannot take advantage of a condition.

2. The second rule, that no remainder may he limited to take effect
upon the expiration of an interval of time after the determination of the
preceding estate^ follows from the rule of the common law, that the
immediate freehold may not, by any act of parties, be placed in

By the common law, the tenant of the immediate freehold was the
only person against whom a writ could be brought in a real action,
or from whom the lord could demand the feudal services incident to
the tenure ; and in ancient times this was equivalent to saying that,
during abeyance of the immediate freehold, all rights, both public
and private, in reference to the land, were in abeyance also. This
sufficiently explains the common law rule, that every act of parties
is void, by which, if it were taken to be valid, the immediate freehold
would be placed in abeyance. But, in certain cases, by unavoidable
necessity, the immediate freehold was pla,ced in abeyance by operation
of law ; viz., in the case of a corporation sole seised of lands, during
the interval between the death of one incumbent (or other cause of a
vacancy) and the accession of his successor.

It is probable that the rule against limiting a remainder to com-
mence at an interval after the determination of the particular estate,
was originally deduced as a consequence from the fact, that at common
law no remainder could be created except by feoffment; and a
feoffment by the common law devested the seisin, forthwith and
during the whole of the estate or estates to which it referred, out of
the feoffor. Unless, therefore, the feoffment purported, for the whole
of that duration, to vest the seisin in the feoffee or feoffees, it would
follow that during the imappropriated interval the seisin, carrying
with it the title to the immediate freehold, would be placed in

But the operation of the rule is much more extensive than would
be made necessary by this theory of its origin.

1. It is not confined to assurances by feoffment; but applies also

to other assurances by which the seisin may be conveyed.

2. It is not confined to limitations contained in assurances which

deal with the immediate seisin, but applies equally to all
limitations of estates derived out of remainders and reversions.

3. It is not confined to limitations of lands, but applies equally to

limitations of other real estate, as a freehold rent, when in esse
at the time of the limitation. But a freehold rent may be-
limited to commence de novo at a future time.

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Contingent Remainden,

The particular estate preceding a vested remainder of freehold may
be a term of years; and in that case the seisin, during the oontinuanoe
of the term, is vested in the remainderman. But the pcuiioular estate
preceding a contingent remainder of freehold may not be a term of
years ; because in such case the seisin would not be vested, but would
be in abeyance during the continuance of the contingency. Such
a contingent remainder would be void in its inception, for want
(as the common phrase goes) of a sufficient estate of freehold to
support it. This is still the law.

For the same reason, the contingent remainder must, by the
common law, be supported by an estate of freehold, not only in
its inception, but also throughout the pending of the contingency.
Unless the remainder, by the happening of the contingency, becomes
vested, either previously to, or at the same instant with, the determina-
tion of the particular estate, it is (by the common law) destroyed.
But this liability to destruction has been greatly modified by recent
legislation, as hereinafter mentioned.

Any determination of the particular estate pending the contingency
would destroy the remainder, whether such determination be due to
natural expiration or to forfeiture.

The above stated rules, that every contingent remainder of freehold
must in its inception be supported by a preceding estate of freehold,
and must vest at a time not later than the determination of the
preceding particular estate, are equally applicable to all contingent
remainders, whether they be created by limitations taking eflPeot by
the common law, or by limitations which take effect under the
Statute of Uses. (Feame, Cont. Eem. 284, 324.) And also, if the
limitation is by devise. {Mamell v. Mamell, 2 P. Wms. 678.)

But these rules are not applicable to contingent remainders in
copyholds, or to equitable contingent remainders. (Feame, Cont.
Eem. 304, 305.)

Contingent remainders are divided by Feame into the four follow-
ing classes : —

1. Where the preceding particular estate is capable of being
determined in more than one way ; but the remainder is so limited
as to take effect only in case the determination shall take place in
one specified way. For example, A. makes a feoffment to the use
of B. till C. returns from Rome, and after such return of C. to the
use of D. and his heirs. By. this limitation B. takes by implication an
estate for his own life, which is by the limitation made determinable
upon the retum of 0. This estate may, therefore, determine in

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either of two ways, viz., either by the death of B. or by the return of
G. But it is only in the event of the latter determination that the
remainder of D. is limited to take effect. This remainder pending
O.'fl return is contingent, because if B.*s estate should be determined
by B.'fl death before the return of C, D. would not be duly qualified
by virtue of the remainder to enter upon the possession.

In this class of contingent remainders, the remainder can never
become vested during the continuance of the particular estate, because
the event which is to vest the remainder will also determine the
particular estate. The remainder can only become vested, if at al],
eo instante vrith. the determination of the particular estate. Contingent
remainders of the other three classes admit of becoming vested during
the continuance of the particular estate.

2. Where the happening of an imcertain event, which has no con-
nection with the determination of the preceding particular estate, and
is such that it may by possibility never happen at all, is by the nature
of the limitation to precede the remainder.

3. Where the remainder is limited to take effect only in case an
uncertain event, which is such that it must necessarily happen at
some time, though it may by possibility not happen during the con-
-tinuance of the particular estate, shall happen.

4. Where the remainder is limited to a person not ascertained, or
not in being, at the date of the limitation, but there is a possibility
that a person to satisfy the limitation may be ascertained, or may
come into being, during the continuance of the preceding particular
estate. For example, if lands be limited to the use of A. for life,
remainder to the use of the right heirs of J. S. who is at that time
living ; or, remainder to the use of the first son of J. S. who at that
time has no son.

As to contingent remainders limited to posthumous children, see
ButL n. (3) on Co. litt. 298a, and 10 Will. 3, c. 16 (2 Stat. Eev-
p. 85, 10 Will. 3, c. 22).

The 8 & 9 Vict. c. 106, s. 8,* enacts, that a contingent remainder
existing at any time after the 31st December, 1844, shall be, and, if
created before the passing of the Act, shall be deemed to have been,
capable of taking effect, notwithstanding the determination by for"
feiturej surrender^ or mergevy of any preceding estate of freehold, in the
same manner in all respects as if such determination had not happened^

The 40 & 41 Vict. c. 33, enacts, that every contingent remainder
created by. any instrument executed after the passing of the Act (2nd

* Sect. 1 of the same Act repealed 7 & 8 Yict. c. 76, s. 8, as from the time of itd
commencement. The repealed section had, in not very felicitous language,
attempted to combine together the effect of 8 & 9 Yict. c. 106, s. 8, and 40 & 41
Yict c. 33, mentioned in the next paragraph.

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August, 1877), or by any will or codicil revived or republished by any
will or codicil executed after that date, in tenements or hereditaments
of any tenure, which icould have been valid as a springing or shifting use^
or executory devise ^ or other limitation, had it not had a sufficient estate
to support it as a contingent remainder, shall, in the event of the par-
ticular estate determining before the contingent remainder vests, be
capable of taking eflPect in all respects as if the contingent remainder
had originally being created as a springing or shifting use, or executory
devise, or other executory limitation.

Possibility of Reverter.

Reverter and reversion are synonymous terms, denoting an estate
vested in interest though not in possession. Possibility of reverter
denotes no estate, but, as the name implies, only a possibility to have
an estate at a future time. Of such possibilities there are several
kinds ; of which two are usually denoted by the term under con-
sideration : — the possibility that a common law fee may return to the
grantor (1) by breach of a condition subject to which it was granted,
or (2) by the determination of the fee itself, where it is other than a
fee simple.

Since every remainder and every reversion is a part only of the
estate of the grantor or settlor, it follows that, by the common law,
no remainder can be limited in expectancy upon a fee, and that no
reversion can remain in a grantor or settlor who parts with a fee.
There cannot exist two common law fees in the same land. ( Willion
V. Berkeley f Plowd. 222, at p. 248 ; and authorities there cited in
margin.) In regard to a fee simple and a determinable fee, this
proposition has never been disputed. In regard to a conditional fee,
Preston treats it as being not indisputably certain, but as depending
only upon a preponderance of authority. (2 Prest. Est. 318, 320.)
In more than one passage of his works something like a wavering of
his own opinion may be detected.

No reason can be given, upon principle, why conditional fees should
be distinguished in this respect from other fees. The later authorities
seem to concur with Lord Coke in the opinion, that there can be no
such remainder or reversion, 8uid that no expectancy other than a
possibility of reverter can exist upon a conditional fee. Braoton
owes so much of his reputation to the respect with which he is treated
by Lord Coke, that it would be unreasonable to impugn the dear
and reiterated authority of Lord Coke, upon the strength of an obscure
and solitary passage of Bracton, in which he seems to intimate an
opinion that several successive conditional fees could by the conunon

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law be limited in remainder one after another * (Co. litt. 22 a ; 327 a ;
2 Inst. 336 ; Marq. of Winchester's casCy 3 Eep. at p. 3.)

It is an indisputable fact, that by the common law there did exist
a formedon en reverter for the benefit of the donor, as is expressly
stated in the statute De Dank ; t while there did not exist a formedon
en remainder in respect of conditional fees. J This seems to show that
there could be no such remainder upon a conditional fee ; and if there
could be no remainder, it follows that there could be no reversion.

The fact that a doubt at one time prevailed (Co. litt. 22 b) whether
there could exist a reversion upon a fee tail after the statute De DoniSy
is a strong argument to show that there could not previously have
existed a reversion upon a conditional fee at common law.

The point was decided by Lord Hardwicke in JEarl of Stafford v*
Bucklet/ (2 Ves. sen. 171).

Chapter X.


In the language of the English law, the wovdfee signifies an estate of
inheritance as distinguished from a kss estate; § not, as in the language
of the feudists, a subject of tenure as distinguished from an allodium.
Allodiimi being wholly unknown to English law, the latter distinction
would in fact have no meaning.

A fee simple is the most extensive in quantum^ and the most abso-
lute as respects the rights which it confers, of all estates known to
the law. It confers, and since the beginning of legal history it
always has conferred, the lawful right to exercise over, upon, and in
respect to, the land, every act of ownership which can enter into the
imagination, including the right to commit unlimited waste ; and, for
all practical purposes of ownership, it differs from the absolute

* The passage is that cited by Preston (2 Est. 324) and others from Bracton,
lib. 2, c. 6 (fo. 18 b of edit. 1569; — Item potent pluribus fieri donatio per modum
simul et successive, &c. Per modum = sub modo = conditionally ; and the
example given is of such limitations as would create conditional fees.

t "The writ whereby the giver shall recover, when issue faileth, is common
enough in the Chancery." j[l Stat. Eev. p. 43.)

X It seems that the remainderman upon an estate for life might, after the
death of the tenant for life, have had a formedon en remainder at common law.
(Booth, Eeal Actions, p. 151.) But this is foreign to the present purpose.

§ " Feodvm is the same that inheritance is." (Litt. sect. 1.) Lord Coke ex-
pressly admits that the usage here adopted is the more correct, though he has not
chosen to adhere to it. ** Of fee simple, it is commonly holden mat there be
three kinds, vis. fee simple absolute, fee simple conditionall, and foe simple
qualified, or a base fee. But the more genuine and apt division were to divide fee,
that M, inheritancey into three parts y^. simple or absolute, conditionall and
qualified or base." (Co. litt. 1 b.)

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dominion of a chattel in nothing except the physical indestructibility
of its subject.

These remarks must be imderstood in their general application,
which refers to an individual tenant, as distinguished from an eccle-
siastical corporation, (lay corporations, when entitled to hold lands in
fee simple, having generally the same powers and rights as indi-
vidual owners,) seised absolutely to his own use, in possession, free
from incumbrances; in which last word must for this purpose be
included easements. The legal powers of a trustee are practically
restricted by the terms of the trust ; those of an ecclesiastical corpo-
ration, paartly by the common law, and partly by numerous statutes ;
and those of the owner of a servient tenement, by the rights of the
owner of the dominant tenement.

Besides these rights of ownership, a fee simple at the present day
confers an absolute right, both of alienation inter vivos and of devise
by will.*

The quantum^ or extent of the possible duration, of the estate is
accurately measured by the express limitation to the grantee and his
heirs simply. No greater duration than this can be conceived for an
estate as distinguished from absolute dominion. It is impossible for a
failure of heirs to take place by the actual (as distinguished from the
constructive) non-existence (as distinguished from the non-appear-
ance) of any person standing in any of the required degrees of rela-
tionship to the tenant. Such a failure can take place only by some
of the means previously enumerated under the title escheat. These
the law does not presume, not even a mere failure of heirs t without
attainder ; and it therefore presumes that a fee simple will in fact
endure for ever. In this respect the quantum of a fee simple is greater
than the quantum of all modified fees, which, though they may endure
for ever, are not presumed by the law so to do, and upon which there
is a possibility of reverter, or, in the case of fees tail and base fees, a
remainder or reversion, instead of an escheat.

Before the coming into operation of the Conveyancing and Law of
Property Act, 1881, the word heirs, accompanied, it would seem, by

• The practical result of the partial restraint upon alienation imposed by
Mag. Cart. cap. 32 {supra, p. 10), was, that the lord exacted a mie upon
alienation, as the price of his consent, without which the tenant could not make
a safe title. The statute of Quia Emptores, by making the lord's consent
needless, abolished the fine ; and alienation inter vivos by tenants in fee simple,
not being tenants in capite of the Crown, has ever since been absolutely un-
restrained. But, the king not being specially named, his rights were not
affected by the statute (Co. Litt. 43 b) ; and fines upon alienation were due from
the tenants in capite until the 12 Car. 2, c. 24. Some remarks upon the history
of alienation by devise will be found at the end of this chapter.

t " For the law doth not expect the determination of a fee by his dying
without heirs." Fells v. Brown, Cro. Jac at p. 692.


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the possessive pronoun, was necessary to be used in the express limi-
tation of all fees, or estates of inheritance, to a natural person or
persons, as distinguished from a corporation. (Litt. sect. 1.) Lord
Coke also lays stress upon the copula and, (Co. Litt. 8 b.) But it
does not appear that the copula was necessary, except in so far as it
might be necessary to prevent the limitation from being void for uncer-
tainty. And in Wright v. Wright (1 Ves. sen. 409, at p. 411) Lord
Hardwicke seems to have thought that, even in a deed, the word or
would be treated as a clerical error for andj and be construed accord-

The doctrine of Hargrave (n. 4 on Co. Litt. 8 b) that, " according
to many authorities, heir may be nornen colkdivumy as well in a deed
as a will, and operate in both in the same manner as heirs in the
plural number," is shown by Preston to be founded upon a mistake :
the authorities cited by Hargrave referring only to limitations con-
tained in wills. (2 Prest. Est. 9.)

A limitation to a bastard and his heirs gives a fee simple, not a
modified fee ; although only the heirs of his body are, under the
circumstances, capable of inheriting. (1 Prest. Abst. 273.)

But observe, (1) that the limitation, where it was necessary, was
not always necessarily express ; and (2) that all limitation whatsoever
was, in some oases, unnecessary.

(1) Liformal limitation by words of direct and immediate reference
would suffice. Thus, a father might infeoff his son, habendum to him
and his heirs, and the son afterwards infeoff the father '* as fully as
the father infeoffed him." (Co. Litt. 9 b.)

(2) Li some cases no limitation was required. Thus, one of several
coparceners, or joint tenants, seised in fee simple, might release to
another without words of limitation. {Ibid,; Litt. sect. 304.) On a
partition between two co-parceners seised in fee simple, a rent granted
by one to the other for equality of partition, without words of limi-
tation, was in fee simple. (Prest. Shep. T. 101 ; Co. Litt. 10 a.) By
a bargain and sale for valuable consideration, the fee simple might
pass without limitation (Vin. Abr. tit. Estate^ K. 2) ; as also by a
fine come ceOy and a fine sur concessit (Shep. T. 4 ; 1 Salk. 340 ; 2 Prest.
Est. 51, 52) ; and by a recovery (Co. Litt. 9 b ; 2 Cruise, Fines &
Rec. 3rd ed. p. 15).

Both the quantum of the estate, and also the privileges of user (as
distinguished from the right, or power, to alienate) which it confers,
ore independent of the method by which the estate arises, whenever it
does arise, and are the same when it arises by implied limitation, or
without limitation, as when it arises by express limitation.

But the extent of the time during which the estate may remain in
the hands of the tenant, is not independent of the method by which

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it arises ; for if it arises by devise, or by way of use, it may be made
liable to be shifted by executory limitation.

A fee simple may also, at common law, be made defeasible upon
the breach of a negative condition, or the non-performance of a posi-
tive condition. The rules by which the learning of this subject is
governed, are not the same as those which govern the learning of
executory limitations.

When a fee simple is liable to be shifted by executory limitation,
or is defeasible upon condition, it does not, at common law, confer an
absolute right of alienation, whether inter vivos or by will. The
©state in the hands of the assignee or devisee retains its liability to
be shifted, or defeated, as the case may be.

But a tenant in fee simple, with an executory limitation, gift, or
disposition over, on failure of his issue, or in any other event, when
his estate is in possession, has the powers conferred upon a tenant for
life imder a settlement by the Settled Land Act, 1882. (See sect. 68.)
These include powers of sale, exchange, and partition. By the Con-
veyancing Act, 1882, s. 10, it is enacted, that such an executory
limitation over on default or failure of issue, shall become void so
soon as any issue of the prescribed dass shall have attained the age
of twenty-one years.

Sect. 51 of the Conveyancing and Law of Property Act, 1881,
enacts, that in deeds executed after the 31st December, 1881, it shall
be sufficient, in the limitation of an estate in fee simple, to use the
words in fee simple without the word heirs.

Li the express limitation of a fee simple to a corporation sole, the
word successors was necessary, and without it only an estate passed
for the life of the existing incumbent (Co. Litt. 91b); except in the
case of a gift in frankalmoigne. The mention of heirs in sect. 61 of
the Conveyancing and Law of Property Act, 1881, suggests that this
enactment is confined in its application to cases where the use of the
word heirs was formerly necessary; and, therefore, that it has no
application to corporations.

In the case of corporations aggregate, a distinction formerly
existed between corporations of which not only the head, but also the
body, were persons capable in law, as a dean and chapter, and corpo-
rations of which all the members, except the head, were dead in law,
as an abbot and his convent. The former always took, and still take,
a fee simple in all cases witiiout express limitation. (Co. Litt. 94 b.)
Corporations of the latter kind no longer exist in England. Words
of succeEsion were needed in order that they might take a fee simple,


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fo the same extent as in the case of a corporation sole. But it seems
that, in the case of all corporations aggregate having a head, whether
the body consists of persons capable in law or dead in law, the grant
of an immediate estate, during a vacancy of the headship, is void ; the
grant of a remainder is good, provided that a new head be appointed
during the continuance of the particular estate. {Ibid. 264 a.)

On the sufficiency of the word frankalmoigne to pass a fee simple
under appropriate circumstances, vide supray p. 7.

The nature of an estate is practically ascertained by the privileges
of ownership and alienation which it confers. At common law these
were identical in the case of individual owners and of lay corpora-
tions. The rights of ecclesiastical corporations, who are only seised
in right of their churches, were less absolute. They could not levy
a fine, or bar their successors by non-claim on a fine levied by others.
(Cruise, 1 Fines & Rec. 3rd ed. p. 288.) Ecclesiastical corporations
sole could not alienate, except subject to certain precautionary con-
sents ; alienations by bishops needing confirmation by the dean and
chapter, and alienations by parsons needing confirmation by the patron
and ordinary (Co. litt. 44 a) ; and being, without such confirmation,
good during the life only of the existing incumbent. Their power at
common law to alienate (including power to lease) has been greatly
abridged by numerous statutes.

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 7 of 53)