living or surviving at a specified time. Whether the condition is precedent or subsequent depends largely on whether it is incorporated into the gift to or description of the remaindermen, or is added as a separate clause after a devise by which a vested interest is given.62 Where it is held a condition subsequent by which a vested interest may be defeated it will be found to be added as a separate clause following words by which a vested estate will pass.

63

61 Blanchard v. Blanchard, 1 Allen (83 Mass.) 223.

62 Ducker v. Burnham, 146 Ill. 9,

37 Am. St. Rep. 135, 34 N. E. 558.

63 Robinson v. Palmer, 90 Me 246, 38 Atl. 103.

CHAPTER XXXVI.

REMAINDERS AND EXECUTORY DEVISES.

§ 999. Estates in remainder defined.

$1000. The same subject.

§ 1001. Remainders in personalty.

§ 1002. Testamentary disposition of contingent and executory interests.

§ 1003. Vested and contingent remainders defined.

§ 1004. Vested and contingent remainders distinguished.

§ 1005. Postponement of enjoyment only does not make remainder contingent.

§ 1006. Contingent remainders must vest at termination of preceding estate, or be defeated: Statutory regulations.

§ 1007. Remainder will be construed, if possible, as vested rather than contingent.

§ 1008. The same subject: Reason for the rule.

§ 1009. Remainder may vest although apparent contingencies are expressed.

§ 1010. The same subject: Contingency with reference to termination of preceding estate.

§ 1011. Power of disposition in life tenant does not make remainder contingent.

§ 1012. The same subject: In trust.

§ 1013. Contingent remainders as affected by the rule as to

perpetuities.

§ 1014. The same subject: Where two contingencies are ex

pressed.

§ 1015. Alternative contingent remainders.

§ 1016. Limitations and conditional limitations defined.

§ 1017. Executory devises defined.

§ 1018. Vested and contingent executory devises.

§ 1019. Indestructibility of executory devises.

§ 1020. Right of disposition in first taker repugnant to an execu

tory devise.

§ 1021. Contingent remainders preferred in law to executory de

vises.

§ 1022. Remainders and executory devises compared.

§ 1023. Remainders and executory devises distinguished.

§ 1024. Effect on contingent remainder of termination of preced

ing estate.

§ 1025. Executory devise converted into remainder by change of circumstances.

§ 1026. Limitation over if first devisee "die without issue." §1027. The same subject.

§ 1028. Limitation over if first taker die under age or unmarried. § 1029. Executory interests in personalty.

§ 1030. Executory devises as affected by the rule as to perpetui

ties.

999. Estates in Remainder Defined.

The term "remainder" is a relative expression, and implies that some particular thing has been previously disposed of. It is the correct legal language to pass property after the expiration of a particular estate. It may be defined as a remnant of an estate in lands depending upon and created at the same time and by the same instrument as a particular prior estate, to take effect immediately on the determination of such prior estate.3

1 Hudson v. Wadsworth, 8 Conn. 348.

2 Den v. Crawford, 8 N. J. L. 90; France's Estate, 75 Pa. St. 220.

34 Kent Com. *197; Hudson v. Wadsworth, 8 Conn. 348; Kingsley v. Broward, 19 Fla. 722, 743; Biggerstaff v. Van Pelt, 207 Ill. 611, 69 N. E. 804; Bunting v. Speek, 41 Kan. 424, 3 L. R. A. 690,

21 Pac. 288; Sayward v. Sayward, 7 Greenl. (7 Me.) 210, 22 Am. Dec. 191; Hobson v. Huxtable, 79 Neb. 340, 116 N. W. 278; Wood v. Griffin, 46 N. H. 230; Shadden v. Hembree, 17 Ore. 14, 18 Pac. 572; Wadsworth v. Murray, 29 App. Div. 191, 51 N. Y. Supp. 1038; In re Miller's Will, 2 Lea (70 Tenn.) 54; Wells v. Houston, 23 Tex. Civ.

There are four essential elements of a remainder: first, there must be a precedent particular estate the regular determination of which the remainder must await; second, the remainder must be created by the same instrument and at the same time as the particular estate; third, the remainder must vest in the devisee during the continuance of the particular estate, or eo instanti upon its termination; fourth, no remainder can be limited after a fee simple. A remainder, therefore, can be acquired only by purchase, not by descent."

An estate in remainder has been defined by statute as an estate limited to be enjoyed after another estate is determined, or at a time specified in the future. When a future estate, other than a reversion, is dependent upon a precedent estate, it may be called a "remainder" and may be created and transferred by that name.

7

§ 1000. The Same Subject.

8

Where A devises property to B for ten years, then to C for life, and after C's death to D in fee simple, the whole

fee is devised out of which is first carved an estate for ten years to B, then a further portion to C which, in relation to the estate of B, is a remainder, and after the expiration of those estates the fee passes to D by way of remainder. In each instance the preceding estate must terminate before the succeeding estate takes effect."

An estate in remainder may be created either by express language or by implication. A devise of a remainder by implication will be sustained, though not made in formal language, if the probability of the intention of the testator is so strong that a contrary intention can not be supposed.10

§1001. Remainders in Personalty.

At common law there was no remainder in personal property, and any gift or bequest of a chattel, no matter for how short a time, passed every interest therein.11 This rule was gradually relaxed and a distinction made between a gift or bequest of the thing itself and the use of the thing, the law attaching a validity to the latter which it denied to the former. This modification of the common law rule in time gave way to the rule as it now exists, and that a remainder may be limited after a life

92 Minor's Inst. 382; Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195.

A remainder over to vest upon the death of a stranger to the estate is valid.-Madison v. Larmon, 170 Ill. 65, 62 Am. St. Rep. 356, 48 N. E. 556.

10 Martin v. Martin, 273 Ill. 595, 113 N. E. 150.

As to the creation of life estates by implication, see §§ 968-971.

The words, "and after her death the property to fall to her children" create, "by inartistic phrase," a remainder in fee to the children.-Lohmuller v. Mosher, 74 Kan. 751, 11 Ann. Cas. 469, 87 Pac. 1140, and approved in Estate of Merrigan, 34 S. D. 644, 150 N. W. 285.

11 Maulding v. Scott, 13 Ark. 88, 56 Am. Dec. 298.