Remainder - Definition - Law Dictionary Home Dictionary Definition remainder

Definition :

Remainder [fr. remanentia, Lat.], that expectant portion, remnant, or residue of interest which, on the creation of a particular estate, is at the same time limited over to another, who is to enjoy it after the determination of such particular estate.

After 1925 remainders can operate only as equitable interests, and in that manner they can be created in respect of personality as well as realty. The follow-ing explanation of legal remainders has been retained as relating to titles to land existing before 1926, and see (English) Law of Property Act, 1925, s. 4, as to the construction of equitable interests.

A remainder may be limited in all freehold estates, but not strictly and technically in chattels real and personal, although these may be limited over after a previous limitation or a partial interest in them. It may be limited by way of use (which is, in practice, the usual method), as well as by a conveyance deriving its effect from the Common Law.

In the same land there may at the same time be an estate in possession, and one estate or several estates in remainder, and an estate in reversion.

When the estate in possession is determined, the estate in remainder (if there be any), otherwise the estate in reversion, will become an estate in possession, with priority as to the estate in remainder, when there are several, according to the order in which they are limited.

An interest in possession and an interest in remainder or reversion are several parts of the same estate. When there are a particular estate and a remainder, the several limitations give distinct interests to the persons to whom these limitations are made.

These interests (different as they are in their nature), and also a reversion, are with reference to the person by whom the limitations are made, and the connection and relative situation of the tenants, several parts of the same estate.

Estates are said to be in remainder or reversion according to the relative situation they bear to each other.

The interest which as to one man is an estate in remainder, may, as to another person, be an estate in reversion. Thus if A. leases to B. for life, with remainder to C. in fee, and C, leases to D. For life, the estate of C. is still a remainder in reference to the estate of B., but in reference to the estate of D. it is a reversion.

So an estate which as to one person is an estate in possession, or a particular estate, may, as to another person, be an estate in reversion; and consequently there may be two reversions in the same land. As if A. lease to B. for life, B. has the possession and A. the reversion as between themselves; and if B. lease to C., then as between B. and C., C. has the possession and B. the reversion; hence the doctrine of privity of estate.

A remainder does not, like a reversion, arise by operation of law, but is always crated by act of parties. it may be granted over, charged, devised, or barred by a prior tenant in tail. Mr. Burton (Comp. Pl. 28) thus indicates the difference between a reversion and a remainder:

'If the gift were simply ' to you for your life,' the reversion in fee-simple would remain in the feoffor. But this consequence would be varied if the gift were 'to you for your life, and after your decease to A. and his heirs ' or ' to you for twenty-one years, and subject to that estate to A. and his heirs '; or ' to you and the heirs of your body ') which would constitute an estate tail), ' and upon your decease, and failure of your issue, to A. and his heirs.' In any of these three cases A. would take an estate in fee-simple, giving him a right to the possession of the land upon the death of the feoffee, or the expiration of twenty-one years, or the extinction of the feoffee and his issue. But this estate is not called a reversion-as the land does not revert or return to the feoffor-but a remainder, being the residue or remnant of the whole estate conveyed, after subtracting the feoffee's estate; which last, in relation to the remainder, as in this, or to the reversion, as in former, case is called the particular estate.'

Remainders are of three kinds:-(1) vested of executed; (2) contingent or executory; and (3) cross.

The seven following rules affecting the remainders should be observed:-

(1) There must be a present or particular estate created which, if the remainder be vested, must be, at least, for years, but an interesse termini would be sufficient; or, if the remainder be contingent, it must be an estate of freehold, expressly limited, or arising by a resulting or implied use in order to give such a remainder existence. A chattel interest will not support a contingent remainder, since, while the contingency is in suspense, there must be an ulterior estate of freehold vested in some person, for otherwise there would be no vested freehold at law, which the law will not allow. There is not, however, any necessity for a preceding freehold to support a contingent remainder for years; for such a remainder not amounting to a freehold, no freehold estate appears requisite to pass out of the grantor in order to give effect to a chattel remainder.

An (English) Act of 1844 (7 & 8 Vict. c. 76) converted future, contingent remainders into executory interests which were not hampered in the same way, but the (English) Real Property Act, 1845, repealed this Act, and restored the rules relating to contingent remainders to their pristine vigour although the Act had abolished real actions on which they were largely based. This Act, however, provided that the accidental determination by forfeiture, surrender or merger of a preceding estate of freehold should not affect the estate in contingent remainder, but it was not until the (English) Contingent Remainders Act, 1877 (40 & 41 Vict. c. 33), was passed that the liberal purpose of the Act of 1844 was restored by providing that every contingent remainder created after the 2nd August, 1877, which would 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 should be capable of taking effect as a springing or shifting use or executory devise or limitation. the Act of 1877 was repealed by the (English) Law of Property (Amendment) Act, 1924, 10th Sch.

(2) The particular estate and the remainders must be created by the same deed or instrument, but a will and codicil may be fairly denominated the same instrument, for they take effect at the same time; and a deed giving a power, and the appointment exercising such power, are esteemed the same deed.

(3) The remainder must vest in the grantee during the particular estate, or the very instant it deter-mines. But an estate limited on a contingency may fail as to one part, and take effect as to another, wherever the preceding estate is in several persons in common or in severalty; for the particular tenant of one part may die before the contingency, and the particular tenant of another part may survive it. Posthumous children are capable of taking in remainder in the same manner as if they had been born in their father's lifetime, and the remainder vests in them while yet in ventre matris, 10 & 11 Wm. 3 c. 16.

(4) A contingent remainder must be limited, upon a legal event, to some one that may by common possibility be in being, at or before the determina-tion of the particular estate.

(5) It is not necessary for the support of a contingent remainder that the preceding estate of freehold continue in the actual seisin of the rightful tenant; it is sufficient that there subsists a right to such preceding estate at the time the remainder should vest, provided such right be a present subsisting right of entry preceding the contingency, and not a right of action. It is necessary to distinguish between a right of entry and a right of action. If A. is disseised by B., then, while the possession continues in B., it is a mere possession unsupported by any presumption of right, and A. may restore his possession by an entry on the land, without any previous action. If A. enter and B. defend his possession, and the question is tried in a possessory action, the gist of it must be who has the better title to the possession, and A. must necessarily recover. Thus far the party disseised, even during the disseisin, is considered in law to be the rightful tenant. But if B. continue in the possession of the estate till his decease, the law, at his decease, casts the possession upon his heir; thus, upon B.'s decease his heir acquires the possession by act of law and his title, though immediately derived from a person who himself acquired it by wrong, is so far respected in law that A. cannot restore his possession by entry, and can only recover it by action. This removes A.'s title one degree farther than while he could restore his possession by entry and is therefore said to reduce him to a right of action, and it is called a right of action in contradistinction to a right of entry.

(6) Where a contingent remainder is limited to the use of several who do not all become capable at the same time, notwithstanding it vests in the person first becoming capable, yet it shall divest as to the proportions of the persons afterwards becoming capable, before the determination of the particular estate.

(7) If a condition be annexed to a particular estate, making it void on a given event, and a remainder be limited to take effect not only on the determination of the particular estate but on the destruction of that estate, by the effect of the condition the remainder is void; the Common Law rule being that a stranger shall not take advantage of a condition, but only the grantor or his heirs. But if the condition for defeating the prior estate be to operate on one event, and the remainder be to arise on another and totally different event, the remainder will not be void, but the particular estate will be discharged from the condition. If A. make a feoffiment to B., a widow, for life, provided that if she marry again, then her estate shall cease, and immediately after her death or second marriage the estate shall enure to B. in fee, this is a bad remainder; because it is limited to take effect, not only on the determination of the widow's estate, but also on the event which is mentioned in the condition to cut that estate short-namely, her second marriage; but if the remainder had been introduced without the words in italics, then it would have been a good contingent remainder, and the condition would be viewed as surplusage, Fearne's Cont. Rem. 270. So, if the limitation had been to the widow durante viduitate, the remainder would have been good; as then her death or second marriage would have been the natural period for the determination of her estate. But if the remainder had been introduced by the words 'from and immediately after the determination of that estate,' it would be liable to objection, on the ground that the remainder-man would be taking advantage of the condition unless the word 'determination' could be construed to refer to the death only of the widow, and not to her second marriage.

But such a remainder is supported, as a conditional limitation, in wills and conveyances under the Statute of Uses.

A remainder is to commence when the particular estate is, from its very nature, to determine; it is, as it were, a continuance of the same estate; it is a part of the same whole. A conditional limitation is not a continuance of the estate first limited, but is entirely a different and separate estate. It is not to commence on the determination of the first, but the first is to determine when the latter commences. It is the commencement of the latter which rescinds and destroys the former, and not the ceasing of the former which gives existence to the latter. The particular estate and remainders are, in fact, as the very terms imply, but one and the same estate. The estate first appointed, and the conditional limitations, are separate and distinct estate. See CONTINGENT REMAINDERS; CROSS-REMAIN-DERS; VESTED REMAINDER; EXECUTORY DEVISE.

A future interest arising in third person that is, some one other than creator of estate or creator's heirs - who is intended to take after natural terminations of preceding estate, Black's Law Dictionary, 7th Edn., p. 1294.