tion otherwise than by devise. Thus an interest which is executory, and in that sense not vested, may be devised; but it cannot, under the rules of the common law, be transferred by deed.

This interest, as well as all other contingent and executory interests, may be released, or may be extinguished by feoffment, fine, or common recovery, operating by estoppel (i), or may be bound by estoppel (k); and an assignment to a purchaser for a valuable consideration, will be sustained in equity, on the ground of an agreement (1); and when the interest becomes vested, that Court will, against the vendor, order a conveyance to be made in performance of the agreement.

Whether this equity be personal against the vendor, and not obligatory on his heir, is a point in doubt, and on which it is desirable that a decision should be obtained (m).

An estate in possession gives a present right of present enjoyment.

An estate in remainder gives a right of future enjoyment, whether certainly or eventually, will depend on the form of the gift: and when the interst is contingent in its limitation, then on the events which have taken place.

An estate in reversion gives a present fixed right of future enjoyment.

(i) 1 Leon. 33; Pells and Brown, Cro. Jac. 590; Fearne, 8; 1 Inst. 143 a; Helps v. Hereford, 2 Barn. & Ald. 242.

(k) Weale v. Lower, Pollexf. 54.

(1) Wright v. Wright, 1 Ves. 409.

(m) 1 Anstr. 11.

A remainder (n) is an estate limited to commence after the determination of a particular estate, previously limited by the same deed or instrument out of the same subject of property; or, as Lord Coke (o) defines a remainder, it is "a remnant of an estate in lands or tenements expectant on a particular estate, created together with the same at one time (p).

In defining a remainder, Noy, in his Maxims, describes it to be "the residue of an estate, "at the time appointed over, and that must be "grounded on some particular estate."

And it should seem, a remainder may be limited by one of two deeds made at the same time, and operating as part of the same assurance (q).

Indeed, even a gift by appointment in one deed, made in pursuance of a power in another deed or instrument, may be a remainder (r); and it should seem, though that point is doubtful, may be connected with an estate of freehold, so as to bring a limitation to the heir or heirs of the body, within the influence of the rule in Shelley's case.

A reversion is that part of an estate which, after the disposition of a particular estate, or several particular estates, remains in the

(a) Fearne, 8. 12; Goodtitle v. Billington, Dougl. Rep. 727; 1 Tr. Atk. 594.

(0) 1 Inst. 143 a. (g) Sed. Qu.

(p) More v. Parker, 4 Mod. 315.

(r) Venables v. Morris, 7 Term. Rep. 342.

person who

estates.

creates that estate or those

A remainder must necessarily be preceded by a particular estate; and that it may be good in the first instance, it must be limited and have effect by the deed or instrument by which that particular estate is created, and so as to take place in possession immediately, without any interval, on the regular and proper determination of the estate immediately preceding, and not in abridgment or derogation of that estate; and to commence in interest after a particular estate, and not after and expectant on the determination of an estate in fee, either qualified, base, or de terminable (s): and an estate at will is not a sufficient foundation for a remainder (†).

It has already been observed, and may again with propriety be noticed in this place, that the person who has the estate in remainder, cannot take any advantage of conditions annexed to the preceding estate; and that an interest limited by way of remainder, to commence on an event, marked by a condition to DEFEAT the preceding estate, is void in its limitation; and that when a condition is annexed to a preceding estate, and the remainder is limited to commence, substantively, on the determination of that estate, independently of the

(s) 1 Inst. 47. 143 a. 378 a; Plowd. 25; 2 Bl. Com, 165; Fearne, 15. 191; Cogan and Cogan, Cro. Eliz. 360. (t) Watk. Principles, 3d edit. p. 5.

condition, the condition will be discharged, and the estate of the particular tenant become simple and absolute (u).

An estate arising by clauses of springing or shifting use or executory devise, may take place independently of the determination of subsisting estates, either by defeating the same, or removing them still farther from the right of conferring a title to the possession (x)

It follows, that estates which arise by these means, do not, on their limitation, fall within the description of remainders, though eventually, when they are executed and become expectant on the determination of a preceding estate, they may, with propriety, be ranked under this class of estates. These interests take effect by limitations, termed conditional, in contradistinction to limitations upon contingency (y); and it is to be understood, that conditional limitations have effect only in wills and conveyances to uses, and not in deeds which owe their operative force entirely to the common law.

The difference between limitations which give contingent remainders, and limitations which give estates conditionally, not being remainders, is, that all remainders, whether they are to

(u) Fearne, by Mr. Butler, 371; Dr. Butt's case, 10 Rep. 41; 1 Inst. 118 b.

(s) Com. Dig. Uses, L. 4; Fearne, 11. 390; Butler on 1 Inst. 271; Carwardine and Carwardine, Fearne, Mr. Butler's ed. 388.

(9) Fearne, 11. 17. 103. 187.

take place absolutely, or on an event, must be limited to commence in possession on the regular and proper determination of the estate immediately preceding; and estates which take effect by conditional limitation, are to commence in possession independently of the regular and proper determination of the preceding estate, and in abridgment and derogation of that estate; and these irregular gifts can be limited only in wills or conveyances to uses, or on trusts by conditional limitations, as distinguished from those limitations on a contingency, which give estates falling under the denomination and description of remainders.

These conditional limitations, when made by will, are termed executory devises, and are to be referred to the learning on that subject; and when contained in conveyances to uses, they assume the name of springing or shifting

uses.

Conditional limitations, in a more general sense, comprehend the learning on contingent remainders.

In this Essay, remainders of this description will be considered as having effect by limitations on a contingency.

The observations already made, are not offered with an intention to deny that one limitation may not substitute an estate in the place of another, and still give a remainder.

The only instance of a conditional limitation