MODULE 4.1
COMMON LAW REMAINDER RULES - Introductio
You will recall that it is possible to carve up the fee simple into successive
portions of time, so that persons can enjoy interests in property in succession.
Thus, a grantor can, in one conveyance, grant a life estate to A, followed
by a life estate to B, followed by a fee simple to C. The latter two interests
are estates in remainder.
A remainder may be defined as the estate or interest created when a person
who owns the fee simple grants an interest to another person and the latter's
interest is to commence in possession after the determination of a prior
particular estate granted by the same instrument.
The common law did not object to remainders, so long as each successive
interest would fall into possession immediately at the determination of
the preceding interest. If the remainder interest could not do so, it failed because there would
be no abeyance of seisin. Thus, so long as the
remainder is vested by the time it has to fall into possession, it is valid.
Hence, the common law had certain rules to determine when an interest would
fail because of an abeyance of seisin. In addition it had a rule that provided
that one could not grant the fee simple twice. We shall examine these rules
presently.
Note that these rules still apply today whenever you create remainders
by deed. That is not often done anymore; most future interests arise under
wills or inter vivos trusts and the common law remainder rules don't
apply to them. However, you must be aware of the old rules for the odd
time that you will come across them.
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