REMAINDER
remainder.Property. 1. A future interest arising in a third person — that is, someone other
than the estate’s creator, its initial holder, or the heirs of either — who is intended to take after the
natural termination of the preceding estate. • For example, if a grant is “to A for life, and then to
B,” B’s future interest is a remainder. If there is only one preceding estate and the remainder vests
on that estate’s expiration, the remainder is also termed an executed estate. — Also termed
remainder estate; estate in remainder. Cf. EXECUTORY INTEREST; REVERSION;
POSSIBILITY OF REVERTER. [Cases: Remainders 1. C.J.S. Estates §§ 70–71, 77, 79, 81–82.]
“Whether a remainder is vested or contingent depends upon the language employed. If the
conditional element is incorporated into the description of, or the gift to the remainder-man, then
the remainder is contingent; but if, after words giving a vested interest, a clause is added divesting
it, the remainder is vested. Thus, on a devise to A. for life, remainder to his children, but if any
child dies in the lifetime of A. his share to go to those who survive, the share of each child is
vested, subject to be divested by his death. But on a devise to A. for life, remainder to such of his
children as survive him, the remainder is contingent.” John Chipman Gray, The Rule Against
Perpetuities 66 (1886).
“Under the names of ‘remainders’ and ‘executory limitations,’ various classes of interests in
land could be created in expectancy, either at the Common Law or under the Statute of Uses. The
differences between the two classes were highly technical; and the learning involved in acquiring
a knowledge of the rules of determining them [is] quite out of proportion to the value obtained.”
Edward Jenks, The Book of English Law 263 (P.B. Fairest ed., 6th ed. 1967).
accelerated remainder.A remainder that has passed to the remainderman, as when the gift to
the preceding beneficiary fails. [Cases: Remainders 5. C.J.S. Estates §§ 77, 80.]
alternative remainder.A remainder in which the disposition of property is to take effect only if
another disposition does not take effect.
charitable remainder.A remainder, usu. from a life estate, that is given to a charity; for
example, “to Jane for life, and then to the American Red Cross.” [Cases: Internal Revenue
4172(3); Taxation 876. C.J.S. Internal Revenue § 532; Taxation §§ 1876–1878.]
contingent remainder.A remainder that is either given to an unascertained person or made
subject to a condition precedent. • An example is “to A for life, and then, if B has married before A
dies, to B.” — Also termed executory remainder; remainder subject to a condition precedent.
[Cases: Remainders 1, 4. C.J.S. Estates §§ 70–77, 79, 81–82, 88.]
“Unlike a vested remainder, a contingent remainder is either subject to a condition precedent
(in addition to the natural expiration of a prior estate), or owned by unascertainable persons, or
both. But the contingent remainder, like the vested remainder, ‘waits patiently’ for possession. It is
so created that it can become a present estate (if ever it does) immediately upon, and no sooner
than, the natural expiration of particular estates that stand in front of it and were created
simultaneously with it.” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and
Future Interests 73 (2d ed. 1984).
cross-remainder. A future interest that results when particular estates are given to two or more
persons in different parcels of land, or in the same land in undivided shares, and the remainders of
all the estates are made to vest in the survivor or survivors. • Two examples of devises giving rise
to cross-remainders are (1) “to A and B for life, with the remainder to the survivor and her heirs,”
and (2) “Blackacre to A and Whiteacre to B, with the remainder of A’s estate to B on A’s failure of
issue, and the remainder of B’s estate to A on B’s failure of issue.” • If no tenants or issue survive,
the remainder vests in a third party (sometimes known as the ulterior remainderman). Each tenant
in common has a reciprocal, or cross, remainder in the share of the others. This type of remainder
could not be created by deed unless expressly stated. It could, however, be implied in a will.
[Cases: Remainders 1. C.J.S. Estates §§ 70–71, 77, 79, 81–82.]
“By a will also an estate may pass by mere implication, without any express words to direct
its course…. So also, where a devise of black-acre to A and of white-acre to B in tail, and if they
both die without issue, then to C in fee: here A and B have cross remainders by implication, and
on the failure of either’s issue, the other or his issue shall take the whole; and C’s remainder over
shall be postponed till the issue of both shall fail.” 2 William Blackstone, Commentaries on the
Laws of England 381 (1766).
defeasible remainder.A vested remainder that will be destroyed if a condition subsequent
occurs. • An example is “to A for life, and then to B, but if B ever sells liquor on the land, then to
C.” — Also termed remainder subject to divestment. [Cases: Remainders 10. C.J.S. Estates §§
88–89, 91–92.]
executed remainder.See vested remainder.
executory remainder.See contingent remainder.
indefeasible remainder.A vested remainder that is not subject to a condition subsequent;
specif., a remainder in which the remainderman is certain to acquire a present interest sometime in
the future and will be entitled to retain the interest permanently. — Also termed indefeasibly
vested remainder; remainder indefeasibly vested.
remainder subject to a condition precedent.See contingent remainder.
remainder subject to divestment.See defeasible remainder.
remainder subject to open.A vested remainder that is given to a class of persons whose
numbers may change over time and that is to be shared equally by each member of the class. • An
example is “to A for life, and then equally to all of B’s children.” The class must have at least one
member, but more can be added over time. — Also termed remainder subject to partial divestment;
remainder vested subject to open.
vested remainder.A remainder that is given to an ascertained person and that is not subject to
a condition precedent. • An example is “to A for life, and then to B.” — Also termed executed
remainder. [Cases: Remainders 1. C.J.S. Estates §§ 70–71, 77, 79, 81–82.]
- The property in a decedent’s estate that is not otherwise specifically devised or bequeathed
in a will. See residuary estate under ESTATE(3). [Cases: Wills 586. C.J.S. Wills §§ 1176–1179,
1184.] [Blacks Law 8th]