[at any time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate (y). But in an estate tail the case is otherwise; the tenant for a long time had no power at all over it so as to bar or to destroy it, and to this day cannot bar or destroy it except in a special method: it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate and defeat the inheritance of his issue; and hence it has become a maxim that a tenancy in tail, which cannot be surrendered, cannot be merged in the fee (z).] Merger, it is to be observed, is not confined to cases where one of the coinciding estates is greater than the other in point of quantity of interest; for a term of years will merge in the immediate reversion, though that be a chattel interest also; and even where the term of years in reversion is of shorter duration than the term on which it is expectant, the merger will equally take place (a). So a fee simple conditional will merge in the possibility of reverter (b).

III. An estate in remainder is where any estate is granted out of a larger one, an ulterior estate immediately expectant on that which is so granted being at the same time conveyed away by the original owner. The first estate so granted is called the particular estate, and the ulterior

(y) Hughes v. Robotham, Cro. Eliz. 302.

(2) Where a tenant in tail, however, acquired a base fee, and had also the reversion immediately expectant upon it, the base fee would formerly merge in the reversion. (Martin v. Strachan, 5 T. R. 109, n. ; see the First Real Prop. Rep. p. 28.) But by 3 & 4 Will. 4, c. 74, s. 39, a base fee within the meaning of that statute will now be enlarged, under

such circumstances, into a fee simple absolute.

(a) See Bac. Abr. Leases, &c. (S.) 2; 3 Prest. Conv. 182; in which last work will be found a very elaborate discussion of the whole law of merger. See also Doe v. Walker, 5 Barn. & Cress. 111, where the subject is fully considered.

(b) Simpson v. Simpson, 4 Bing. N. C. 333.

one the remainder (c). [As if a man seised in fee simple granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs for ever; here A. is tenant for years, remainder to B. in fee. In the first place an estate for years is created or carved out of the fee, and given to A.; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee (d). They are indeed different parts, but they constitute only one whole: they are carved out of one and the same inheritance; they are both created and may both subsist together; the one in possession, the other in expectSo if land be granted to A. for twenty years, and, ancy. after the determination of the said term, to B. for life; and after the determination of B.'s estate for life, it be limited to C. and his heirs for ever: this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee. Now here the estate of inheritance undergoes a division into three portions; there is first A.'s estate for years carved out of it; and after that B.'s estate for life; and then the whole that remains, is limited to C. and his heirs. And here also the first estate, and both the remainders for life and in fee, are one estate only, being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the

(c) Lord Coke defines a remainder

as a remnant of an estate in lands

"or tenements, expectant upon a "particular estate created together "with the same at one time;" (Co. Litt. 143 a;) Blackstone, as "an es"tate limited to take effect and be "enjoyed after another estate is de"termined." (2 Bl. Com. 164.) As to the definition of a remainder, see also Fearne, by Butler, p. 3, n. (c), 9th ed. For the information of the

student, it may be as well to remark that the word itself is not a term of art; that is, the use of it is not at all necessary, nor indeed usually employed for the creation of the estate. Bac. Ab. Remainder (B.) The word, however, is used in pleading. See the precedents in formedon in remainder, Rast. Ent. 369 b. &c.

(d) Co. Litt. 143 a; Fearne, by Butler, 308, 9th ed.

[parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an estate in fee simple (e); because a fee simple is the highest and largest estate that a subject is capable of enjoying(ƒ): and he that is tenant in fee hath in him the whole of the estate: a remainder, therefore, which is only a portion or residuary part of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee simple; as 40l. is part of 100l., and 601. is the remainder of it; wherefore, after a fee simple once vested, there can no more be a remainder limited thereon, than after the whole 1001. is appropriated there can be any residue subsisting.] But until the whole fee simple is granted away, any quantity of interest may be carved out of it, expectant on the determination of some preceding interest. Therefore, a remainder, like an estate in possession, may be either in fee, in tail, for life, or years.

From what has been premised, it appears that a reversion and a remainder are both estates in expectancy, but differ in this respect, that the former remains in the grantor, by act or construction of law, as part of his former estate, but a remainder is an estate newly created by the act of the grantor. And here it is very material to remark, that it is only by way of remainder that, at common law, that is, independently of certain conveyances founded on statute law to be hereafter mentioned,-a man can create a new freehold estate in expectancy, in a corporeal hereditament. For it is an antient rule, which lies at the root of the learning relative to remainders, that a freehold in hereditaments corporeal cannot be created to commence in futuro (g) -that is, to take effect in possession at a distant period of time-without the interposition of a particular estate on which it shall be expectant. Thus if A., seised in fee of

(e) Colthirst v. Bejushin, Plowd. 29; Gardner v. Sheldon, Vaugh. 269. (f) Vide sup. p. 241.

(g) Barwick's case, 5 Rep. 94 b;

2 Bl. Com. 165.

lands, convey them to B. to hold to him and his heirs for ever, after the end of three years next ensuing ;-this is, at common law, a void conveyance. This is because no

freehold can in general be created at common law, in a corporeal hereditament, without livery of seisin (h); a ceremony in its nature incompatible with a grant of the freehold in futuro, inasmuch as it imports a delivery of possession, and consequently supposes that a right to the immediate possession, and not merely a future estate, is conveyed by the feoffor. And as it is the necessity for livery of seisin which constitutes the reason of the rule, so the rule itself extends not to mere chattel interests (i): for these, being created, as we have seen, without that ceremony, are also capable of commencing in futuro. Thus, though the fee cannot be created at common law to hold as from next Michaelmas, yet a lease for seven years from next Michaelmas will be good.

But while the conveyance by livery of seisin is utterly incapable of being applied to the creation of a freehold in futuro, it is easily adapted to that of a freehold in remainder. For the method in this case, is to make the livery of seisin to the tenant of the particular estate;

(h) Vide sup. p. 236. The reason here assigned for the rule, that a freehold cannot commence in futuro, is that usually given in the books. See Co. Litt. 217 a; Plowd. 156; Barwick's case, 5 Rep. 94b; 2 Bl. Com. 165; Bac. Ab. Remainder (C). And perhaps no sufficient authority can be shown for referring it to any other origin. It is held, however, by some writers to flow from the general principle of the common law, that the freehold is not to be placed (except in cases of strict necessity) in abeyance. That this principle

existed there can be no doubt; and it seems clearly to have applied

both to the immediate freehold and to the ultimate fee. (See the argument of Mr. Justice Blackstone in the case of Perrin v. Blake, Harg. Law Tracts.) It has been considered by some as in part founded on feudal reasons, but it seems to be more satisfactorily accounted for by the inconveniences which resulted from such suspension of the fee or freehold, in reference to the system of real actions-the remedies antiently used for the recovery of land. As to the cases where the freehold or fee may be in abeyance, vide sup. p. 241, n. (p); post, p. 333, n. (1).

(i) 5 Rep. 94; 2 Bl. Com. 165.

The whole estate passes

[which is effectual as a conveyance also to the remainderman, since his estate and that of the particular tenant are one and the same estate in law. Thus a man may convey to A. in tail, remainder to B. in fee; and the same livery which conveys the estate tail to A. will also pass the remainder expectant thereon to B. at once from the grantor to the grantees, and the remainder-man is seised of his remainder, at the same time that the particular tenant is seised of his estate tail (k).] And the case is the same where the particular estate is for years only. [As where one leases to A. for three years, with remainder to B. in fee, and makes livery to A.] Here the livery indeed is not necessary for the lessee himself, because he has but a chattel; but it enures to the benefit of him in remainder, and the freehold is immediately created thereby and vested in B. during the continuance of A.'s term of years (1).

With respect to the creation of a remainder, the following rules may be laid down, which, though they amount to no more than an exposition of the different properties expressed in the very definition of this kind of estate, may yet set serve to convey to the mind of the reader a more precise idea of its character:

1. There must necessarily be some particular estate precedent to the estate in remainder (m). The necessity of this is sufficiently indicated by the term itself; for remainder is a relative expression, and implies that some part of the thing is previously disposed of. And [as no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. the remainder. But a lease at will is not held to be such a particular estate as will support a remainder over (n). For an estate at will is of a nature so slender and precarious that it is not to be looked upon as a portion

(k) Co. Litt. 143 a.

(1) Ibid. 49 a, 49 b.

(m) Fearne, by Butler, 390, 9th

edit.

(n) Lord Stafford's case, 8 Rep. 75 a.