MODULE 4.6

COMMON LAW REMAINDER RULES
Artificial Destruction of Contingent Remainders.

The title to this submodule may strike you as bizarre. After all, the problems we have looked at so far have involved strict rules which appear to have been designed to cause the destruction of contingent remainders artificially. True, but you must remember that when the rules were devised, they were necessary to prevent owners from tying up their land in perpetuity. The latter was a constant concern of the common law. Hence, from that perspective, contingent remainders were not being destroyed artificially, but in accordance with sensible rules. The rules were, in any event, exceptions to the early rule that contingent remainders were invalid.

The term "artificial destruction" refers to situations in which the wait and see rule would normally operate, but the prior particular estate upon which the contingent remainder depends is destroyed by an act of one or more of the parties before the contingency is satisfied. The result is that there is a gap in the seisin and the contingent remainder fails.

At one time, there were five ways in which contingent remainders could be destroyed artificially. However, all but one of them have been abolished by statute. Rather than giving you problems on the first four, I shall merely list and explain them.

(a) Forfeiture

Forfeiture ocurred when the owner of a lesser estate purported to convey a greater, as in the following example:

G granted "to A for life, remainder to B at age 21."
A then granted "to C in fee."

A's conveyance was tortious in that he disseised his lord. Hence, he forfeited his life estate. But, if B was not yet 21 at the time of the forfeiture, his contingent remainder was no longer supported by a prior particular estate. Hence, it failed, i.e., was destroyed artificially.

The tortious effect of a conveyance such as A's has been abolished by s.3 of the Conveyancing and Law of Property Act.

(b) Surrender

Surrender occurs when the owner of a lesser estate gives or sells it to the owner of a greater, as in the following example:

G granted "to A for life, remainder to her eldest daughter for life, remainder to B in fee."
A surrenders to B before she (A) has a daughter.

The effect of the surrender is that the life estate merges in the fee and disappears. The contingent remainder limited to A's eldest daughter is no longer supported by a prior particular estate and, therefore, fails.

If A had had a daughter at the time of the surrender, the daughter's estate would have vested. In that situation B would have had an estate pur autre vie (i.e., for A's life) and the ultimate remainder in fee after A's daughter's death.

Artificial destruction by surrender was abolished by s. 35 of the Conveyancing and Law of Property Act.

(c) Merger

Merger arises whenever a lesser and a greater estate become vested in the same person in the same right. Hence, it is broader than Surrender, under which only the owner of a lesser estate can surrender. The following is an example:

G granted "to A for life, remainder to B when he marries for life, remainder to C in fee."
B is unmarried.

C conveys to A, or
A and C convey to D.

In this situation, the contingent remainder to B would be destroyed, since the lesser estate merges into the greater and the contingent remainder is no longer supported by a prior particular estate of freehold.

On the other hand, there is no destruction in the following example. Do you see why?

G granted "to A for life, remainder to B for life, remainder to C at age 21 for life."

C is not yet 21.
G conveys the reversion to A.

The reason C's contingent remainder is not destroyed in this situation is that it is still supported by a prior particular estate, namely, B's.

Artificial destruction by merger was abolished by s. 35 of the Conveyancing and Law of Property Act.

(d) Disseisin

Disseisin occurs when a stranger takes possession (seisin) of land adversely to the person who has title. The adverse possession may or may not be forceful. The following is an example:

G granted "to A for life, remainder to B when she marries, remainder to to C in fee."

B is unmarried.
D disseises A.

A disseised person, such as A, has two remedies to recover the land: a right of entry and a right of action. At one time, however, if the trespasser died after possessing the land for five years, the land descended upon the trespasser's heir. This was called "descent cast." Descent cast "tolled", i.e., took away, the right of entry of the person who was dispossessed. That person retained the right of action, but a right of action was inadequate to support a contingent remainder, although a right of entry would do so.

Hence, in the above example, if D possessed the land for five years and if B was then still unmarried, her contingent remainder was destroyed for lack of a prior particular estate to support it.
This type of artificial destruction was abolished by s. 10 of the Limitations Act.

(e) Disclaimer

Disclaimer arises when a person to whom an estate in land is conveyed or devised does not want it and makes that clear by word or conduct. It is still apt to destroy contingent remainders in most provinces. The following questions deal with disclaimer.

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