CHAPTER VIII. OF THE TIME OF THE ENJOYMENT OF ESTATES IN REAL PROPERTY. § 105. Of the Enjoyment of Estates. Estates, as to the time when they are to begin to be enjoyed, are of two kinds: Estates in Possession, and Estates in Expectancy. An estate in possession is an estate so created as to vest in the owner thereof a present right of present enjoyment. An estate in expectancy is an estate so created that the enjoyment thereof is postponed until some future day. Read 2 Bl. Comm., p. 163. 2 Cruise Dig., Tit. xvi, Ch. i, § 1. 1 Wash. R. P., B. i, Ch. i, § 41. 2 Wash. R. P., B. ii. Ch. iv, Sec. 1, §§ 1-4. § 106. Of Estates in Expectancy. Reversions; Remainders; Executory Interests. Estates in expectancy are of three kinds: Estates in Reversion; Estates in Remainder; and Executory Interests. An estate in reversion is that residue of his original estate which remains in a grantor, after he has granted to another a less estate than his own. An estate in remainder is an estate created by the same grant which creates another estate, and is limited to take effect in possession after that other estate has determined. An executory interest is an estate created to commence at some future time, without reference to any precedent or intermediate estate. Thus if A., owning a fee-simple estate, grant an estate for life to B., the residue of the fee-simple still resides in A. as a reversion, and its enjoyment will commence after B.'s estate for life has determined. If, at the same time and by the same act, A. grants an estate for life to B., and the whole, or any part of, the residue of his fee-simple to C., the estate of C. is a remainder, and will take effect in possession only after the life-estate has ended. Or if A., for valuable consideration, grant the fee-simple to B. and his heirs, to hold to the use of C. and his heirs from and after a certain future event, the use, and consequently the entire seisin and estate, will, on the happening of that event, vest in C. and his heirs, and will meanwhile be known as an executory interest. Read 2 Bl. Comm., pp. 163–176. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 2-6; Ch. v; Tit. xvii, §§ 1-11. 4 Kent Comm., Lect. lix, pp 197, 237; Lect. lx, p. 264; Lect. lxiii, p. 353. Will. R. P., pp. 222, 223, 243. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 5-7; Ch. v, Sec. 2, § 1; Ch. vii, Sec. 1, § 1; Ch. viii, § 1. § 107. Of the Distinctions between Reversions, Remainders, and Executory Interests. These three estates in expectancy differ, therefore, in the following particulars: (1) To the existence of a reversion or remainder a precedent, or particular, estate is necessary, but not so to an executory interest; (2) A reversion exists by operation of law, which always finds the ultimate fee-simple somewhere, while remainders and executory interests are created by act or agreement of the parties; (3) Reversions and remainders are estates at common law, and are governed by rules based on the doctrine that actual livery of seisin is essential to the creation of a freehold estate, while executory interests are estates, which are created either by will or under the Statute of Uses, and are governed by rules peculiar to a devise, or by rules based on the doctrine that the seisin follows the use without any actual livery; (4) Remainders can be defeated by the lapse of the seisin into the grantor, through the determination of the particular estate before the remainder can take effect in possession, while nothing can prevent the final vesting of the seisin in the grantee of an unconditional executory interest. Read 2 Bl. Comm., pp. 163–168, 173–178. 2 Cruise Dig., Tit. xvi, Ch. i, § 10; Ch. iv, §§ 2–4, 7; Ch. v, § 19; Tit. xvii, § 12. 4 Kent Comm., Lect. lix, pp. 233-237, 248, 253; Lect. Ixiii, pp. 353-355. Will. R. P., pp. 222, 223, 267. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 5-7, 10; Ch. v, Sec. 2, §§ 3, 4. § 108. Of Estates in Reversion. An estate in reversion is a present vested estate and has all the properties of the grantor's original estate, except the right of immediate possession. It may be alienated by deed, or executory interests may be created out of it. Any permanent injury to the property, in which such estate is held, is a wrong against the reversioner, for which he may have his remedy at law. Read 2 Bl. Comm., pp. 175, 281–284. 2 Cruise Dig., Tit. xvii, §§ 12-16. 2 Wash. R. P., B. ii, Ch. viii. § 109. Of Vested Remainders. Estates in remainder are of two kinds : Vested and Contingent. A vested remainder is a remainder so created that, from its commencement to its close, the seisin could vest instantly in the remainder-man in case the particular estate be determined. This can be true only when the remainder is limited to a definite person in being at the time of the grant. Such a remainder is not, however, certain to result in the possession of the estate. A grant to A. for life, remainder to B. for life, both being living persons, creates a vested remainder in B., yet B. may die before A., and his estate in remainder thus come to an end. "It is 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," which characterizes a vested remainder. Read 2 Bl. Comm., p. 168. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 8, 9, 41, 45. 4 Kent Comm., Lect. lix, pp. 202–204. Will. R. P., pp. 230–231. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 8-10, 15-17. § 110. Of Contingent Remainders. A contingent remainder is a remainder so created that the particular estate can be determined, before the seisin of the remainder is able to vest in the remainder-man. This is the case wherever the remainder is limited to a person not in being, or to a person not at present capable of taking the estate, or when it is made dependent upon a future and uncertain event. A grant to A. for life, remainder to B.'s eldest son, B. having no son, is a contingent remainder, for A. may die before B. has any So a grant to A. for life, remainder to B. in fee if C. survive A., is a contingent remainder, for A. may outlive C. If, however, before the particular estate ceases, the person, to whom the contingent remainder son. is limited, becomes capable of taking it, or if the event, on which the remainder depends, actually happens, and the seisin thus becomes able to vest in the remainder-man, the contingency is extinguished, and the remainder will thenceforth be a vested one. Read 2 Bl. Comm., pp. 169–172. 2 Cruise Dig., Tit. xvi, Ch. i, §§ 10, 40, 41, 45; Ch. ii, iii, iv. 4 Kent Comm., Lect. lix, pp. 206–208. Will. R. P., pp. 242-245, 247-251. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, §§ 8-10, 26; Sec. 3-6. § 111. Of the Alienation of Remainders. A vested remainder is alienable by any form of conveyance which does not necessitate delivery of possession. A contingent remainder is also alienable when the contingency is one of event and not of person, there being, in the latter case, no one able to convey. Read 2 Bl. Comm., p. 175. 4 Kent Comm., Lect. lix, pp. 205, 261. 2 Wash. R. P., B. ii, Ch. iv, Sec. 1, § 20; Sec. 6, § 6. § 112. Of Executory Interests. Rule against Perpetui ties. Executory interests are of great variety. When created by will they are usually called executory devises. Although such interests may be created to commence in futuro, yet the rule against perpetuities forbids the creation of estates so limited as to take effect at a day more distant from the date of the grant, than during a life or lives in being and twenty-one years, (with the addition of the usual period of gestation,) after such lives have ceased. Whenever it is |