Remainders

Chapter 13 developed the interests a transferor keeps. This chapter develops the principal interest a transferor gives away to someone other than the holder of the present estate. The remainder is the future interest created in a transferee that is capable of becoming possessory at, and only at, the natural termination of a preceding estate created by the same instrument. Its defining features are three: it is created in a transferee rather than retained; it waits upon the orderly expiration of a prior particular estate rather than cutting that estate short; and it is created simultaneously with the estate it follows. The remainder is the ordinary architecture of the family settlement, the marriage settlement, the testamentary trust, and the modern estate plan; it is the interest held by the children who take after their mother's life estate, by the charity that takes after the widow's life income interest, and by the class of grandchildren whose membership is not yet closed. To classify a remainder correctly is to know whether it is transferable, whether it is taxable, whether it is subject to the Rule Against Perpetuities, whether it can be destroyed, whether it accelerates on renunciation, and whether it can be conveyed of record without joinder.

1. A remainder is a future interest created in a transferee that is capable of becoming possessory immediately upon, and no sooner than, the natural termination of a prior particular estate created by the same instrument. Restatement (First) of Property § 156; Restatement (Third) of Property (Wills and Other Donative Transfers) § 25.2. An interest that can divest a prior estate before its natural end is an executory interest, not a remainder.
2. The remainder is distinguished from the reversion by the identity of its holder, and from the executory interest by the manner of its taking effect. The reversion stays with the transferor; the remainder goes to a transferee. The remainder waits; the executory interest cuts short.
3. A remainder must follow a particular estate of lesser quantum — classically a life estate, a fee tail, or a term of years. No remainder can be limited after a fee simple, because a fee simple has no natural termination; an interest following a defeasible fee is therefore an executory interest.
4. A remainder is vested when it is limited to an ascertained person and is subject to no condition precedent other than the natural termination of the preceding estate. A remainder is contingent when it is limited to an unascertained person, or is subject to a condition precedent, or both. Restatement (First) of Property §§ 157, 277.
5. The classical taxonomy recognizes three species of vested remainder: indefeasibly vested; vested subject to complete divestment (defeasance); and vested subject to open (subject to partial divestment). The three differ in their exposure to conditions subsequent and in the certainty of the share ultimately taken.
6. The placement of conditional language relative to the words of gift determines whether a condition is precedent or subsequent, and therefore whether a remainder is contingent or vested subject to divestment. Where the condition is woven into the description of the taker, it is precedent; where it is added after a completed gift, it is subsequent. The distinction is formal, is frequently arbitrary in application, and has been criticized for centuries.
7. The law favors the early vesting of estates. Ambiguous limitations are construed, where possible, to create vested rather than contingent remainders. The constructional preference originated as a defense against the destructibility doctrine and survives it as a rule of interpretation.
8. A class gift creates a remainder vested subject to open in each ascertained member until the class closes. Under the rule of convenience the class closes when any member becomes entitled to possession, unless the instrument directs otherwise. Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 15.1–15.2.
9. The classical doctrine of destructibility of contingent remainders, together with the doctrines of merger, forfeiture, and the Rule in Shelley's Case, has been abolished in the overwhelming majority of American jurisdictions. Their remnants nonetheless persist in old chains of title and must be recognized by the title examiner.
10. All remainders — vested and contingent alike — are today freely alienable inter vivos, descendible, and devisable in nearly every American jurisdiction, subject to the survivorship conditions the instrument itself imposes. Contingent remainders were inalienable at classical common law; modern statutes have almost universally reversed that rule.

• State the definition of a remainder and identify the three structural requirements that distinguish it from every other future interest.
• Distinguish remainders from reversions, possibilities of reverter, rights of entry, and executory interests, and explain the doctrinal consequences of each distinction.
• Classify a remainder as vested or contingent by applying the two tests of ascertainability and condition precedent.
• Separate indefeasibly vested remainders, vested remainders subject to complete divestment, and vested remainders subject to open, and state the operative consequences of each classification.
• Apply the placement test to distinguish conditions precedent from conditions subsequent in drafted limitations.
• Analyze class gifts, identify when a class closes under the rule of convenience, and determine the shares of afterborn members.
• Explain the historical doctrines of destructibility, merger, forfeiture, and the Rule in Shelley's Case, and account for their abolition.
• Determine when a remainder accelerates into possession upon renunciation or premature termination of the prior estate.
• State the modern rules governing the transferability, descendibility, and devisability of vested and contingent remainders.
• Evaluate the recording, marketability, and title-examination consequences of outstanding remainders, and draft limitations that avoid the classical traps.

• Lewis M. Simes & Allan F. Smith, The Law of Future Interests §§ 61–160, 611–718 (2d ed. 1956).
• John Chipman Gray, The Rule Against Perpetuities §§ 99–118, 205–214 (4th ed. 1942).
• Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 63–110, 129–158 (2d ed. 1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 3.9–3.18 (3d ed. 2000).
• 2 William Blackstone, Commentaries on the Laws of England *163–*175 (1766).
• 4 James Kent, Commentaries on American Law *197–*208, *283–*298 (1830).
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 215–217, 375–378 (1628).
• Charles Fearne, An Essay on the Learning of Contingent Remainders and Executory Devises 1–86 (10th ed. 1844).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 21–29 (2d ed. 1898).
• S. F. C. Milsom, Historical Foundations of the Common Law 166–199 (2d ed. 1981).
• A. W. B. Simpson, A History of the Land Law 88–102, 208–241 (2d ed. 1986).
• Sir John Baker, An Introduction to English Legal History 261–300 (5th ed. 2019).
• Jesse Dukeminier, James E. Krier, Gregory S. Alexander, Michael H. Schill & Lior Jacob Strahilevitz, Property 247–290 (10th ed. 2022).

A remainder is a future interest, created in a transferee by the same instrument that creates a prior particular estate of lesser quantum, which is capable of becoming a present possessory estate immediately upon the natural termination of that prior estate. The definition is stated in substantially these terms by the Restatement (First) of Property § 156 and is carried forward, in simplified language, by the Restatement (Third) of Property (Wills and Other Donative Transfers) § 25.2. Three structural requirements are embedded in it, and each does independent work.

The first requirement concerns the identity of the holder. A remainder is created in a transferee. An interest that stays behind in the transferor is a reversion, a possibility of reverter, or a right of entry, however similar it may appear in operation. The classical illustration makes the point. In a conveyance “to A for life, then to B and his heirs,” B holds a remainder; in a conveyance “to A for life,” the grantor holds a reversion. Both interests become possessory at A's death; both are vested; both are freely transferable. But the reversion is exempt from the Rule Against Perpetuities and the remainder is not, the reversion arises by operation of law and the remainder only by grant, and the reversion never appears in the granting clause while the remainder always does.

The second requirement concerns the manner of taking effect. A remainder waits; it does not cut short. It becomes possessory when the prior estate reaches its natural end — the death of the life tenant, the expiration of the term, the failure of issue in tail — and it takes nothing from the prior tenant that the prior tenant was entitled to keep. An interest that operates by divesting a prior estate before its natural termination is an executory interest, governed by different rules and dependent for its validity on the Statute of Uses (1536) and the Statute of Wills (1540). The difference is illustrated by two limitations that differ in a single clause. In “to A for life, then to B,” B has a remainder. In “to A, but if A ceases to farm the land, then to B,” B has an executory interest, because B's interest, if it takes effect at all, will cut short A's fee.

The third requirement concerns simultaneity of creation. A remainder must be created by the same instrument that creates the estate it follows. A subsequent conveyance by the holder of a reversion does not create a remainder; it transfers the reversion. The requirement is largely formal today, since the transferred reversion is governed by substantially the rules of a vested remainder, but it retains significance in the construction of successive instruments and in the classification of interests arising under powers of appointment.

No remainder can exist in the air. It must be supported by a preceding estate — the particular estate, so called because it is a particula, a small part carved out of the whole. At classical common law the particular estate had to be a freehold estate of lesser quantum than a fee simple: a life estate, an estate pur autre vie, or a fee tail. A term of years, being a chattel real rather than a freehold, was not technically a particular estate capable of supporting a contingent remainder, although it could support a vested one, and the distinction has been abandoned in modern American law. Today an interest limited to take effect at the expiration of a term of years is classified as a remainder without difficulty.

The corollary is the rule that no remainder may follow a fee simple. A fee simple absolute has no natural termination; there is no moment at which it comes to an orderly end and leaves the land free for a successor. A defeasible fee has a possible termination, but that termination is a cutting-short rather than a natural expiration. Accordingly, in the conveyance “to the School District so long as the premises are used for school purposes, then to the Public Library,” the Library takes an executory interest, not a remainder — a classification with real consequences, since at classical common law the executory interest was subject to the Rule Against Perpetuities and the alternative possibility of reverter in the grantor was not.

Where the particular estate fails at its inception — because the intended life tenant is already dead, or the grant to the life tenant is void — the supposed remainder may nonetheless take effect, but as a present estate rather than a remainder. The classification adjusts to the facts. Conversely, where the particular estate is created and later terminates prematurely, the question is one of acceleration, treated in Part VII below.

The classical taxonomy of future interests recognizes five categories and no more: three retained by the transferor (the reversion, the possibility of reverter, and the right of entry) and two created in transferees (the remainder and the executory interest). Chapter 12 introduced the taxonomy; Chapter 13 developed the first three. The present chapter develops the fourth. The following table restates the whole taxonomy so that the remainder may be located within it.

Two observations follow from the table. First, the exemption of the transferor's interests from the Rule Against Perpetuities, developed in Chapter 13, is anomalous precisely because the remainder and the executory interest are not exempt; identical dispositive language produces different results according to who takes. Second, the vested remainder occupies a middle position: it is created in a transferee, and therefore falls within the domain of the Rule in principle, but because it is vested it satisfies the Rule at once and is invalidated only in the special case of the class gift subject to open.

The remainder is older than the fee simple absolute and older than the will of land. Its origins lie in the twelfth- and thirteenth-century practice of subinfeudation and in the gift in maritagium, by which land was granted to a daughter and her husband and the heirs of their bodies with a limitation over to a third party. Pollock and Maitland trace the earliest recognizable remainders to the reign of Henry III, when the royal courts began to protect the expectancy of a grantee named to take after the death of a prior life tenant, and observe that the medieval lawyer thought of the arrangement not as two successive ownerships but as a single gift with a deferred seisin.

The medieval preoccupation was seisin. Land was held, not owned, and the freehold seisin had to reside in some living person at every instant. The requirement generated the two most distinctive features of remainder doctrine. First, there could be no gap in seisin: a limitation that left the freehold unsupported for even a moment was void. Second, a contingent remainder — one whose taker was unknown or whose taking depended on an unresolved condition — was a doctrinal embarrassment, because the seisin could not be held by an unascertained person. The medieval courts resolved the embarrassment by holding that the contingent remainder was not an estate at all but a mere possibility, and by insisting that if the contingency was not resolved by the moment the particular estate ended, the remainder failed. That insistence hardened, by the fifteenth century, into the doctrine of destructibility.

Milsom's account emphasizes that these rules were not deduced from principle but grew out of the forms of action and the mechanics of livery of seisin. Simpson makes the same point from the conveyancing side: the settlement of land was a practical instrument for keeping estates in families, and the doctrinal rules were the residue of repeated litigation over particular settlements rather than an intellectual system. Baker adds that the fifteenth-century courts were, in this area, actively hostile to the contingent remainder, seeing it as a device by which landowners evaded feudal incidents and creditors.

The Statute De Donis Conditionalibus, 13 Edw. 1, c. 1 (1285), by converting the fee simple conditional into the fee tail, created the estate that would dominate English settlement practice for four centuries and generated the standard architecture within which remainders operated. A settlement in the classical form gave the land to the settlor's son for life, remainder to the son's first son in tail male, remainder to his second son in tail male, and so on, with an ultimate remainder in fee to the settlor's right heirs. Every generation of that settlement is a remainder; the whole apparatus of vested and contingent classification was developed to determine which of the unborn sons had what, and when.

Taltarum's Case, Y.B. 12 Edw. 4, fol. 19 (1472), by validating the common recovery, allowed the tenant in tail in possession to bar the entail and the remainders that followed it. The consequence for remainder doctrine was profound: remainders after an estate tail became defeasible in practice by the act of the prior tenant, and English settlement practice shifted from the perpetual entail to the strict settlement, in which the life estate and successive contingent remainders were periodically resettled by agreement between father and son.

Statute Quia Emptores, 18 Edw. 1, c. 1 (1290), by prohibiting further subinfeudation and requiring substitution, indirectly reinforced the importance of the remainder. A landowner who could no longer create new tenurial relationships could still divide ownership across time, and the temporal division of the fee — life estate followed by remainders — became the principal instrument of family provision.

The Statute of Uses, 27 Hen. 8, c. 10 (1536), executed the passive use and thereby converted equitable interests into legal ones. Its unintended consequence was the creation of a new category of future interest: the springing and shifting use, which after execution took effect as a legal interest capable of doing what no remainder could do — commencing in futuro without a supporting particular estate, and divesting a prior fee. The Statute of Wills, 32 Hen. 8, c. 1 (1540), produced the parallel executory devise. Together they generated the executory interest, and with it the modern necessity of distinguishing the remainder from its younger sibling.

The courts responded with the rule, established in Purefoy v. Rogers, 2 Wms. Saund. 380 (1671), that a limitation capable of taking effect as a contingent remainder must be treated as a contingent remainder and cannot be saved as an executory interest. The rule preserved the destructibility doctrine against the new devices and is the classical answer to the drafter who attempts to escape destructibility by labelling an interest an executory interest. It is of purely historical interest in jurisdictions that have abolished destructibility, but it explains the shape of nineteenth-century American conveyancing.

The Duke of Norfolk's Case, 3 Ch. Cas. 1 (1682), by fashioning the Rule Against Perpetuities as a control on executory interests, and by extension on contingent remainders, supplied the durational limit that destructibility had previously supplied. As Gray observed, the two doctrines are functionally alternative: where contingent remainders were destructible, no perpetuities problem could arise from them; when destructibility was abolished, the Rule became the only control. The Rule itself is the subject of Chapter 15.

American courts received the English learning of remainders substantially intact, and Kent's Commentaries and Fearne's Essay on the Learning of Contingent Remainders were the standard nineteenth-century authorities. But reception was accompanied by immediate simplification. The fee tail was abolished or converted in nearly every state; the Rule in Shelley's Case and the doctrine of worthier title were repudiated by statute in most; destructibility was abandoned; and the technical distinctions between legal and equitable remainders were largely collapsed as the trust became the dominant vehicle for successive enjoyment.

The most consequential American development was institutional rather than doctrinal. As settled land gave way to settled wealth, the remainder migrated from the deed to the trust instrument. The modern remainder is far more often an equitable interest in a trust corpus than a legal interest in a parcel of land. The classification rules remain the same, but their operative significance has shifted: what matters today is chiefly the identification of beneficiaries entitled to accountings and distributions, the calculation of actuarial interests for tax purposes, and the determination of who must consent to a modification or termination of the trust.

The Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 25.1–25.3 completes the simplification by proposing the abandonment of the vested/contingent dichotomy in favor of a single category of future interest subject to conditions precedent, expressly or by implication. The proposal has not been widely adopted by legislatures, but its analytical influence is substantial, and it is examined in Part VIII below.

A remainder is created by words of grant or devise directing that a named or described transferee take upon the termination of a prior estate created in the same instrument. No sacramental language is required in modern law. The words “then to,” “remainder to,” “and after the death of A to,” and “upon the expiration of said term to” all suffice, and the classical requirement of words of inheritance to convey a remainder in fee has been abolished by statute in every American jurisdiction. The essential inquiry is whether the instrument, read as a whole, directs a transferee to take at the natural end of a prior particular estate.

Because a remainder must be created simultaneously with the particular estate, both must appear in a single instrument. A deed conveying a life estate today and a second deed conveying the reversion tomorrow does not create a remainder; the second deed transfers a reversion, though the practical result is nearly identical. Where a will devises a life estate and the residuary clause disposes of the balance, the residuary takers hold a remainder, because the will is one instrument.

The Statute of Frauds, 29 Car. 2, c. 3 (1677), and its American successors require that the creation of a remainder in land be evidenced by a writing signed by the grantor. Testamentary remainders are subject to the execution formalities of the applicable wills act. Equitable remainders in a trust are subject to the writing requirement for the declaration of a trust of land, and, where personalty is the subject, to the general requirements for a valid trust.

The life estate is the paradigmatic particular estate, and the remainder following a life estate is the paradigmatic remainder. In “to A for life, then to B and her heirs,” A holds a life estate and B an indefeasibly vested remainder in fee simple absolute. The two interests together exhaust the fee; no reversion remains in the grantor. B's interest is a present interest in future enjoyment: B may convey it, mortgage it, devise it, and — subject to the doctrines of waste developed in Chapter 11 — protect the corpus against A's misuse.

Where the remainder is contingent, the grantor retains a reversion, because the possibility exists that the remainder will never take effect and the land must then return. In “to A for life, then to B if B survives A,” A holds a life estate, B holds a contingent remainder, and the grantor holds a reversion. Should B predecease A, the reversion becomes possessory. The reversion in such a case is not a redundancy but a doctrinal necessity: seisin must have somewhere to go.

A life estate pur autre vie supports a remainder in the same way. In “to A for the life of B, then to C,” the remainder in C becomes possessory at B's death, whether or not A survives. Where A predeceases B, the balance of the estate pur autre vie passes to A's successors as a special occupant or, under modern statutes, by A's will or intestacy; C's remainder is unaffected.

A term of years is a non-freehold estate, and at classical common law the freehold seisin during a term remained in the reversioner or the holder of the following freehold interest. The consequence was that an interest limited after a term of years was, technically, a present freehold estate subject to a term, rather than a remainder. The distinction had practical bite: because the seisin was already in the holder of the following estate, there was no gap for a contingent remainder to fall into, and the destructibility doctrine did not operate.

Modern American law disregards the technicality. An interest limited to take effect at the expiration of a term of years is classified as a remainder and governed by the ordinary rules. The change reflects the general modern assimilation of leasehold and freehold interests for classification purposes and the abandonment of seisin as an organizing concept. The classical rule nonetheless survives in the analysis of old instruments and in a small number of jurisdictions that continue to draw the distinction for purposes of the recording acts.

Where a term of years is followed by a contingent interest in a transferee, the modern classification as a remainder brings the interest within the Rule Against Perpetuities. A ninety-nine-year lease followed by a gift to “such of the lessor's descendants as are then living” is a contingent remainder that violates the common-law Rule, because the taker cannot be ascertained within lives in being plus twenty-one years. The point is not academic: long-term commercial ground leases with reversionary dispositions are a recurring source of perpetuities litigation.

A remainder is vested when two conditions are satisfied: the taker is an ascertained, living person, and there is no condition precedent to the taking other than the natural termination of the preceding estate. Restatement (First) of Property § 157. Vesting in this sense means vesting in interest, not vesting in possession; the vested remainderman has a present right to future enjoyment, and that present right is itself property, protected by the Due Process and Takings Clauses of the Fifth and Fourteenth Amendments against arbitrary legislative destruction.

The consequences of vesting are substantial. A vested remainder is alienable inter vivos, descendible, and devisable, and was so even at classical common law. It is not subject to the doctrine of destructibility. It satisfies the Rule Against Perpetuities at the moment of its creation, and — with the single exception of a remainder subject to open — cannot violate the Rule. It is reachable by the remainderman's creditors. It supports an action against the life tenant for waste and a suit for the appointment of a receiver or for partition where the applicable statute permits. And in probate practice it is an asset of the remainderman's estate if the remainderman predeceases the life tenant, an outcome that surprises many testators and that careful drafting avoids by an express survivorship condition.

The classical taxonomy divides vested remainders into three species. The division turns on whether the remainderman's share is exposed to complete divestment by a condition subsequent, to partial divestment by the addition of new class members, or to neither.

A remainder is indefeasibly vested when it is certain to become possessory in the remainderman or the remainderman's successors, and certain to be enjoyed in the full share described. In “to A for life, then to B and her heirs,” B's remainder is indefeasibly vested. Nothing can prevent the estate from passing to B or B's successors at A's death; if B dies first, B's devisees or heirs take. The certainty is not that B will personally enjoy the land, but that the described interest will pass without diminution.

The indefeasibly vested remainder is the simplest of all future interests and the least troublesome in practice. It is fully marketable, may be conveyed of record without joinder of the life tenant, and requires no perpetuities analysis. Title examiners treat it as equivalent to a present fee subject to an outstanding possessory term.

The classification is nonetheless easily disturbed by drafting. The addition of the words “if B is then living” converts the interest into a contingent remainder; the addition of “but if B dies without issue, then to C” converts it into a vested remainder subject to complete divestment; and a gift to “B's children” rather than to B converts it, where B has one living child, into a vested remainder subject to open. Each conversion carries different consequences, and the drafter who does not intend them should not use the language that produces them.

A remainder is vested subject to complete divestment when the taker is ascertained and no condition precedent stands in the way of the gift, but a condition subsequent may operate to eliminate the interest altogether. In “to A for life, then to B, but if B does not survive A, then to C,” B's remainder is vested subject to complete divestment, and C holds a shifting executory interest that will divest B if the condition occurs.

The interest is functionally similar to a contingent remainder — in both cases B takes only if B survives — but the classification carries different consequences. At classical common law B's vested remainder was alienable while a contingent remainder was not; B's interest was not destructible while a contingent remainder was; and, most importantly, the perpetuities analysis differs. The vested remainder satisfies the Rule at creation, though the divesting executory interest must independently satisfy it.

The mechanism of divestment is a condition subsequent, and the classical rule is that a condition subsequent must be expressed in the instrument; it will not be implied. This is the doctrinal foundation of the much-litigated rule that a remainderman need not survive the life tenant unless the instrument so requires. The rule frequently defeats the testator's actual intention, and the Uniform Probate Code § 2-707 reverses it for future interests in trust by imposing an implied condition of survivorship coupled with a substitute gift to the deceased beneficiary's descendants. The provision has been adopted in a minority of states and is controversial; it is discussed in Part VIII.

A remainder is vested subject to open — equivalently, subject to partial divestment — when it is limited to a class of persons, at least one member of which is ascertained and entitled to take, and the class remains capable of increase. In “to A for life, then to A's children,” where A has one living child B, the remainder is vested subject to open in B. B's interest is presently a whole; it will be reduced to a half if a second child is born, to a third if a third is born, and so on.

Two consequences follow. First, the remainder is vested for purposes of alienability, descendibility, destructibility, and acceleration; B may convey B's share, though the grantee takes subject to the same liability to partial divestment. Second, the remainder is not vested for purposes of the Rule Against Perpetuities. The classical all-or-nothing rule for class gifts requires that the interests of all possible class members vest within the perpetuities period; if the class can admit a member whose interest might vest too remotely, the entire class gift fails. This is the sole circumstance in which a vested remainder can violate the Rule, and it is the principal reason the classification matters.

Where no member of the class is yet ascertained — as in “to A for life, then to A's children” where A is childless — the remainder is contingent, not vested subject to open, because the requirement of an ascertained taker is unsatisfied. The classification therefore shifts, automatically and without any act of the parties, at the moment of the first birth.

A remainder is contingent when the taker is unascertained, or when the taking is subject to a condition precedent, or both. Restatement (First) of Property § 157(b). The two branches are analytically distinct and must be tested separately, because a limitation may satisfy one and fail the other.

The unascertained-taker branch covers gifts to persons not yet born, not yet identified, or identifiable only upon a future event. “To A for life, then to A's children” creates a contingent remainder while A is childless. “To A for life, then to A's heirs” creates a contingent remainder during A's lifetime, because nemo est haeres viventis — no living person has heirs — and the takers cannot be ascertained until A dies. “To A for life, then to the person who cares for A in A's last illness” creates a contingent remainder because the description cannot be satisfied until the event occurs.

The condition-precedent branch covers gifts to ascertained persons whose taking depends on an event that must occur before the gift can operate. “To A for life, then to B if B graduates from law school” creates a contingent remainder in B; B is ascertained, but the gift is conditioned. If B has graduated by the time of the conveyance, or graduates before A's death, the remainder vests; if A dies first, the classical destructibility rule would have destroyed the remainder, and the modern rule holds it in suspense as a springing executory interest.

The line between a contingent remainder and a vested remainder subject to divestment is drawn by the placement of the conditional language, not by its substance. The classical test, stated by Gray and adopted throughout the American cases, asks whether the condition is incorporated into the description of the taker or appears as a separate clause following a completed gift. If the former, the condition is precedent and the remainder is contingent; if the latter, the condition is subsequent and the remainder is vested subject to divestment.

Gray defended the placement test as objective and administrable. Its critics — beginning with Simes and continuing through the Reporters of the Restatement (Third) — object that it makes the legal consequences of a disposition turn on the accident of a comma, and that the two limitations in the first two rows of the table are, in every practical respect, identical. The criticism is sound; the test survives because the alternative, an inquiry into subjective intention, is less administrable still, and because a body of settled expectations has grown up around the classical forms.

The practical lesson for the drafter is that the classification should be selected deliberately and the language chosen to produce it. Where survivorship is intended, an express survivorship condition should be stated, and the alternative taker identified; where survivorship is not intended, the instrument should say so, thereby defeating any statutory implication.

Where a limitation creates two contingent remainders on opposite contingencies — “to A for life, then to B if B survives A, and if B does not survive A, then to C” — the interests are alternative contingent remainders. One or the other is certain to take effect, and it might therefore be supposed that the grantor retains nothing. The classical rule is otherwise: because both remainders are contingent, the grantor retains a reversion, which will become possessory in the theoretically possible case that neither contingency is resolved in time. The reversion in such a case is often described as technical, but it is not fictitious, since under the destructibility doctrine it could and did become possessory.

The retained reversion has continuing practical significance in modern law. It is an interest of record; it descends and is devisable; and in a jurisdiction that has abolished destructibility it may nevertheless be the interest that carries the property during a gap between the termination of the life estate and the resolution of a contingency. A title examiner who overlooks the reversion in an alternative-contingent-remainder settlement will fail to obtain a necessary release.

Where a limitation creates one vested and one contingent interest — “to A for life, then to B, but if B does not survive A, then to C” — no reversion remains, because B's vested remainder accounts for the whole. The contrast between the two forms is a further illustration of the operative significance of the placement test.

A gift to the heirs of a living person creates a contingent remainder, because heirs are ascertained only at death. Two classical doctrines complicate the analysis. The Rule in Shelley's Case provided that where an instrument created a freehold in A and a remainder to A's heirs, the remainder was executed in A, giving A a fee simple; the rule was a mechanism for preserving feudal incidents and was abolished by statute in nearly every American jurisdiction. The doctrine of worthier title provided that an inter vivos conveyance to the grantor's own heirs created no remainder but left a reversion in the grantor; it likewise survives as a rule of construction, if at all, and has been abolished outright in many states.

Where neither doctrine applies, the modern analysis is straightforward. “To A for life, then to A's heirs” creates a life estate in A and a contingent remainder in A's heirs, with a reversion in the grantor. On A's death the heirs are ascertained, the remainder vests and becomes possessory simultaneously, and the reversion is extinguished. The Uniform Probate Code and the Restatement (Third) treat the word “heirs” as presumptively referring to the persons who would take under the intestacy statute of the decedent's domicile at death, excluding the spouse in some formulations, and displace the presumption where the instrument indicates a different meaning.

A gift to a class described by relationship — “A's issue,” “A's descendants,” “A's children” — raises the parallel problem of whether the class is determined at the testator's death, at the life tenant's death, or at some other time. The modern default, reflected in the Restatement (Third) § 15.1 and the Uniform Probate Code, is that a gift to a multi-generational class such as “issue” or “descendants” is distributed by representation, and that class membership is determined at the time of distribution.

A class gift is a gift to a group of persons described collectively rather than named individually, in which the share of each member is determined by the ultimate number of members. Restatement (Third) of Property (Wills and Other Donative Transfers) § 13.1. The paradigm is a remainder “to A's children.” Whether a gift is a class gift or a gift to individuals is a question of construction; a gift “to B, C, and D, the children of A” is ordinarily a gift to individuals notwithstanding the class label, while a gift “to the children of A, namely B, C, and D” may be either.

The distinction matters chiefly on the death of a member before distribution. In a true class gift, the share of a member who dies before the class closes ordinarily lapses into the shares of the survivors; in a gift to individuals, the share of a deceased donee passes to the donee's estate or, in a will, to the substitute takers designated by the anti-lapse statute. It matters equally for afterborn takers: a person born into the class before it closes takes a share, while a person born after a gift to named individuals takes nothing.

A class gift remainder is classified as vested subject to open once one member is ascertained and entitled to take, and as contingent while no member is ascertained. The classification shifts as the facts change, and the analysis must therefore be performed as of a stated moment — ordinarily the date of the instrument, the date of the testator's death, and the date of distribution.

A class closes physiologically when no further members can be born — ordinarily on the death of the designated parent. Because distribution cannot practically await that event in every case, the law supplies a constructional rule of closure. Under the rule of convenience, a class closes when any member becomes entitled to immediate possession or enjoyment, unless the instrument directs otherwise. Restatement (Third) § 15.1.

Applied to a remainder, the rule closes the class at the death of the life tenant. In “to A for life, then to A's children,” the class of A's children closes at A's death; since A can have no further children after death, the rule of convenience and physiological closure coincide, subject only to the gestation principle admitting a child in utero at A's death. In “to A for life, then to B's children,” where B survives A, the rule of convenience closes the class at A's death even though B may have further children afterward; those afterborn children are excluded.

The rule is one of convenience, not of intention, and it yields to a contrary direction. An instrument that directs distribution “to all the children of B, whenever born” excludes the rule and requires the trustee to hold the fund open. Such a direction raises an immediate perpetuities question, since the class may not close within lives in being plus twenty-one years, and the drafter who uses it must ensure that a saving clause or a statutory wait-and-see provision applies.

Where no member of the class exists at the time distribution would otherwise occur, the rule of convenience does not close the class; a gift to “B's children” where B is childless at A's death remains open, and the property is held — in a jurisdiction that has abolished destructibility — until a child is born or B dies childless, the reversion taking in the latter event.

The common-law Rule Against Perpetuities applies to class gifts through the all-or-nothing rule of Leake v. Robinson, 35 Eng. Rep. 979 (Ch. 1817): a class gift is valid only if the interest of every possible member is certain to vest, if at all, within the perpetuities period. If the interest of any possible member might vest too remotely, the gift fails as to all members, including those whose own interests would have vested in time.

The classical illustration is the gift “to A for life, then to A's children for life, then to A's grandchildren.” Because A may have a child born after the date of the instrument, and that afterborn child may have a child more than twenty-one years after the deaths of all lives in being, the grandchildren's class gift is void in its entirety at common law. Two mitigating doctrines exist: the rule of convenience, which by closing the class early may bring all members within the period, and the sub-class doctrine of Catlin v. Brown, 62 Eng. Rep. 1013 (V.C. 1856), which validates separable sub-gifts whose takers are ascertained within the period.

Modern reform statutes address the problem directly. The Uniform Statutory Rule Against Perpetuities validates a non-vested interest that in fact vests within ninety years, and its wait-and-see approach eliminates most class-gift failures. Chapter 15 develops the Rule and its reform in full; the point here is only that the class gift is the principal setting in which a remainder classified as vested may nonetheless be struck down.

The classical doctrine of destructibility of contingent remainders provided that a legal contingent remainder in land was destroyed if it had not vested at the moment the preceding freehold estate terminated. The doctrine was a corollary of the seisin requirement: the freehold could not be in abeyance, and if no ascertained taker stood ready at the instant the particular estate ended, the seisin returned to the reversioner and the remainder was gone forever.

Destruction could occur in three ways. It occurred naturally when the life tenant died before the contingency was resolved — as where a remainder “to B if B reaches twenty-five” awaited a B aged twenty at the life tenant's death. It occurred by forfeiture when the life tenant committed a tortious feoffment, purporting to convey a fee and thereby forfeiting the life estate. And it occurred by merger when the life estate and the next vested estate came into the same hands, the smaller estate merging into the larger and terminating the intervening contingent remainder.

The doctrine was a landowner's tool as much as a doctrinal necessity. A life tenant and a reversioner acting in concert could destroy the contingent remainders of unborn children by conveying their interests to a common grantee, thereby producing a merger and clearing the title. English conveyancers answered with the trustee to preserve contingent remainders — a vested interest interposed between the life estate and the contingent remainder to prevent the merger — and the practice is the ancestor of the modern trust.

Merger operates when successive vested estates in the same land come into the same person in the same right, with no intervening vested estate; the smaller estate is absorbed into the larger, and the intermediate contingent interests, having lost their support, are extinguished. The doctrine is not confined to destructibility jurisdictions; in modified form it continues to operate in modern law wherever a life tenant acquires the reversion or a remainderman acquires the life estate.

Two limitations on merger are classical. First, merger does not occur where the two estates are created by the same instrument and a contingent remainder is interposed between them — a rule designed to prevent the settlor's own disposition from defeating itself. Second, merger does not occur where the estates are held in different capacities, as where a person holds a life estate individually and a reversion as trustee. The second limitation preserves the utility of the trust as a device for holding successive interests.

Modern American law has largely confined merger to its title-clearing function. Where a life tenant and all vested remaindermen join in a conveyance, merger produces a marketable fee, and the transaction is an ordinary method of unifying a divided title. The doctrine ceases to be dangerous once destructibility is abolished, because the extinguishment of contingent interests by merger is no longer permitted; the contingent remainder simply survives as an executory interest.

England abolished destructibility by the Real Property Act of 1845 and the Contingent Remainders Act of 1877, and the doctrine was finally interred by the Law of Property Act 1925. American abolition proceeded state by state, by statute in most jurisdictions and by decision in others, and is today essentially complete; only a small number of states retain the doctrine, and even in those it applies only to legal interests in land created by inter vivos conveyance.

Where destructibility has been abolished, an unvested contingent remainder that has not vested by the time the particular estate ends does not fail. It is held in suspense; the reversioner takes possession in the interim, subject to divesting; and the interest takes effect as a springing executory interest if and when the contingency is resolved. The result accords with the transferor's evident intention and eliminates the classical trap in which a remainder was destroyed by the mere accident of the life tenant's early death.

Abolition has one significant consequence for the Rule Against Perpetuities. So long as contingent remainders were destructible, no contingent remainder could remain unvested beyond the life of the particular tenant, and the Rule was therefore of no practical application to them. Abolition removed that automatic limit and brought contingent remainders squarely within the Rule. The two doctrines are, in Gray's phrase, alternative solutions to the same problem of remoteness.

A remainder accelerates when the preceding estate terminates before its natural expiration and the remainder is permitted to take effect immediately. The classical setting is renunciation: a surviving spouse given a life estate elects against the will and takes a statutory share, and the remaindermen ask to be let into possession at once rather than at the spouse's death. The general rule is that a vested remainder accelerates upon the premature termination of the prior estate, unless acceleration would defeat the transferor's expressed intention.

A contingent remainder does not accelerate while the contingency remains unresolved, because there is no ascertained taker to receive possession. Where the contingency is one of survivorship of the life tenant, the courts divide: some treat the renunciation as the equivalent of the life tenant's death for purposes of the condition, permitting acceleration; others hold the interest in suspense until the life tenant's actual death, with the property meanwhile passing to the reversioner or being held by a trustee. The Restatement (Third) § 25.5 favors acceleration where it advances the transferor's probable intention and does not prejudice other beneficiaries.

The doctrine is now most significant in trust administration. A life income beneficiary who disclaims a qualified interest under the Internal Revenue Code is treated as having predeceased the transferor, and the remainder ordinarily accelerates; but where the trust instrument provides for a contingent successor income interest, or where minors or unborn beneficiaries are interested, acceleration may require court approval or the appointment of a guardian ad litem.

Modern reform of remainder doctrine has proceeded along five lines: the abolition of the destructive doctrines, the liberation of contingent interests from restraints on alienation, the imposition of implied survivorship conditions in trusts, the reform of the Rule Against Perpetuities, and the analytical simplification proposed by the Restatement (Third). The lines are independent, and a given jurisdiction may have travelled far along one and not at all along another.

The first line is essentially complete. Destructibility, the Rule in Shelley's Case, the doctrine of worthier title, and the fee tail have been abolished by statute in the overwhelming majority of American jurisdictions. The reforms are among the most successful in American property law, and their principal remaining significance is historical: an instrument executed before the effective date of the abolishing statute is ordinarily governed by the prior law, and the title examiner must therefore know both.

The second line concerns alienability. At classical common law a contingent remainder was a mere possibility and could not be transferred inter vivos, though it was releasable to the holder of the possessory estate and, after the Statute of Wills, devisable if the contingency was not personal to the taker. Modern statutes have almost universally made contingent remainders freely alienable, and the Restatement (Third) § 25.2 states free alienability as the general rule. The reform serves marketability: a contingent remainderman may now join in a conveyance and give the purchaser a clear title.

The classical rule that a remainderman need not survive the life tenant unless the instrument so provides frequently defeats the transferor's actual intention. A settlor who leaves income to a spouse for life, remainder to a child, rarely intends that the child's share pass, if the child predeceases the spouse, to the child's own surviving spouse or under the child's residuary clause to a charity. Uniform Probate Code § 2-707 responds by imposing on future interests in trust an implied condition that the beneficiary survive the distribution date, coupled with a substitute gift to the beneficiary's surviving descendants.

The provision is a substantial departure from classical doctrine, and it has been criticized on three grounds: that it defeats the settled expectations built into the classical rule; that it converts vested remainders into contingent ones and thereby creates perpetuities and tax complications; and that it is easily overridden by competent drafters and therefore burdens only the unrepresented. It has been enacted in a minority of states. In jurisdictions that have adopted it, the drafter who intends the classical result must say so expressly.

Independent of § 2-707, most jurisdictions apply anti-lapse statutes to future interests created by will, substituting the descendants of a predeceasing devisee. The interaction between the anti-lapse statute, the classical no-survivorship rule, and any express survivorship language in the instrument is a recurring source of litigation, and no analysis of a remainder is complete without consulting the governing jurisdiction's statute.

The Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 25.1–25.3 proposes the most far-reaching analytical reform. It abandons the classical five-fold taxonomy in favor of two categories — reversionary and non-reversionary future interests — and abandons the vested/contingent dichotomy in favor of a single inquiry: whether the interest is subject to a condition precedent. The elaborate distinctions among indefeasibly vested, vested subject to divestment, and contingent interests are treated as unnecessary, since the operative consequences that once turned on them — destructibility, alienability, the acceleration rules — have been abolished or assimilated.

The proposal has not been enacted, and courts continue to use the classical vocabulary. Its influence is nonetheless considerable: it supplies the analytical framework of the modern casebooks; it has informed the drafting of the Uniform Probate Code and the Uniform Trust Code; and it identifies with precision the residual functions the classical categories still serve — chiefly the perpetuities analysis of class gifts and the tax classification of income and remainder interests.

The prudent position for the practitioner is bilingual competence. The classical taxonomy remains the language of the reported decisions, of the recording system, and of most drafted instruments, and it must be mastered. The Restatement (Third) framework supplies the functional analysis that explains why the classical distinctions matter, or, more often, why they no longer do.

The judicial development of remainder doctrine may be organized around four recurring questions: whether a limitation creates a remainder or an executory interest; whether a remainder is vested or contingent; when a class closes and who takes; and whether a remainder accelerates. The cases do not merely apply settled rules; they display a long doctrinal movement away from formal classification and toward the effectuation of the transferor's probable intention.

On the first question, the classical rule of Purefoy v. Rogers, 2 Wms. Saund. 380 (1671) — that a limitation capable of taking effect as a contingent remainder must so take effect — is a formalist rule whose entire purpose was to preserve destructibility. Its abandonment in American law followed inevitably from the abolition of destructibility, and modern courts classify according to the operation of the interest rather than according to a preference for one label.

On the second question, the constructional preference for early vesting is the dominant theme. It originated as a defense against destructibility, since a vested remainder could not be destroyed; it survives as a rule of interpretation because vested interests are more freely alienable, simpler to administer, and safer under the Rule Against Perpetuities. Courts accordingly construe ambiguous survivorship language as creating conditions subsequent rather than conditions precedent, and read gifts to classes as vesting in the ascertained members at the earliest permissible moment.

The construction of a limitation creating a remainder proceeds by a settled hierarchy. The court first seeks the transferor's intention from the four corners of the instrument, reading the whole and reconciling apparently inconsistent provisions. Where the language is ambiguous, extrinsic evidence of the circumstances surrounding execution is admitted in most modern jurisdictions, though evidence of the transferor's declarations of intention is more narrowly received. Where intention remains undeterminable, the court applies constructional preferences: for early vesting; against intestacy; against forfeiture; for equality among members of a class; and for a construction that gives effect to every provision.

Two constructional problems recur. The first is the meaning of “survivor” in a gift to “A and B, and to the survivor of them” following a life estate — whether survivorship is measured at the transferor's death or at the life tenant's death. The dominant American rule measures survivorship at the time of distribution, though a substantial minority measures it at the transferor's death in order to vest the interests as early as possible. The second is the effect of a gift over “on death without issue,” which historically raised the indefinite-failure-of-issue construction and now is almost universally read as a definite failure at the death of the first taker.

Where the instrument is a trust, construction is influenced by the fiduciary setting. Courts read remainder provisions in light of the trustee's duty of impartiality between income and remainder beneficiaries, and are reluctant to adopt constructions that would defeat the settlor's evident plan of successive enjoyment. The principle is examined in the Society's companion volume, Trust Administration and Fiduciary Duties.

Viewed across seven centuries, the doctrinal movement is unmistakable. The medieval law of remainders was a law of seisin, and its rules were mechanical consequences of the requirement that the freehold never be in abeyance. The early-modern law was a law of settlement, and its rules were the residue of the contest between conveyancers seeking to tie up land and courts seeking to keep it alienable. The modern law is a law of donative intention, and its rules are increasingly default rules displaced by express provision.

Each stage left deposits. Seisin left the requirement of a supporting particular estate and the prohibition of a remainder after a fee. Settlement left the vested/contingent taxonomy, the placement test, and the Rule Against Perpetuities. The modern intention-based stage has produced the abolition statutes, the implied survivorship provisions, the wait-and-see perpetuities reforms, and the Restatement (Third) simplification. The deposits are not consistent with one another, and the resulting body of law is layered rather than systematic — which is why a chapter on remainders must be, in part, a chapter on history.

The practical consequence is that classification remains necessary but is no longer decisive. The competent modern analysis identifies the classical category, verifies whether the doctrines that once attached to it survive in the governing jurisdiction, and then asks the functional questions that actually determine outcomes: who must join in a conveyance, who is entitled to an accounting, whose consent is required to modify or terminate, and whose interest is taxable.

Remainders arise in practice in four principal settings: the deed reserving or creating successive interests in land; the testamentary or inter vivos trust; the probate administration of an estate in which future interests are outstanding; and the examination of title where a remainder appears in the chain. Each setting requires the same classification analysis but poses different practical questions.

In conveyancing, the operative question is who must join. A purchaser of a fee simple absolute from a parcel subject to a life estate and remainders must obtain conveyances from the life tenant and every remainderman, including contingent remaindermen where their interests are alienable, and must consider whether unborn or unascertained takers can be bound. Where they cannot, the transaction requires a judicial proceeding — a sale free of future interests under the applicable statute, a partition, a trust modification, or the appointment of a guardian ad litem to represent unborn interests. Virtual representation statutes and the Uniform Trust Code's representation provisions have substantially eased this burden for interests held in trust.

In title examination, the operative question is whether an outstanding remainder renders the title unmarketable. A recorded remainder is a defect that must be cleared; an unrecorded one may or may not bind a bona fide purchaser according to the recording act. Where the remainder is contingent and the takers unborn, no release is possible and marketable title cannot be delivered without judicial proceedings. Marketable-title acts, which extinguish interests not re-recorded within a statutory period, provide relief in some jurisdictions but ordinarily exclude interests held by persons under disability and interests referenced in the muniments of title.

Competent drafting of remainder provisions follows a small number of rules. State expressly whether survivorship to the distribution date is required, and, if it is, name the substitute takers; silence invites both the classical no-survivorship rule and any statutory implication that displaces it. Define class terms — “children,” “issue,” “descendants,” “heirs” — rather than relying on default constructions that vary among jurisdictions and change over time. State the distribution date with precision, and address the possibility that the class is empty at that date.

Include a perpetuities saving clause in every instrument creating contingent remainders or class gifts, notwithstanding the enactment of wait-and-see legislation in the governing jurisdiction; the instrument may be administered elsewhere, and the marginal cost of the clause is nil. Consider whether the transferor's objects are better served by a trust than by legal successive estates: a trust avoids the waste problems of the legal life estate, permits a fiduciary to manage and sell, supplies representation for unborn beneficiaries, and eliminates the joinder difficulties that legal remainders create.

Where legal successive estates are nonetheless used — as in the family farm conveyance or the retained life estate deed used for Medicaid or basis-planning purposes — anticipate the practical problems: allocation of taxes, insurance, and repairs between life tenant and remainderman; the standard of waste; the power to sell and reinvest; and the treatment of casualty or condemnation proceeds. Each should be addressed expressly in the instrument rather than left to the background rules developed in Chapter 11.

Several misconceptions concerning remainders recur with sufficient frequency to warrant express correction.

1. That a vested remainder means the remainderman will certainly enjoy the property. Vesting is vesting in interest, not in possession. An indefeasibly vested remainderman who predeceases the life tenant never enjoys the land; the interest passes through the remainderman's estate.
2. That a remainderman must survive the life tenant. At classical common law and in most jurisdictions today, survivorship is required only if the instrument requires it. Uniform Probate Code § 2-707 reverses the default for trusts, but only where enacted.
3. That a contingent remainder cannot be transferred. That was the classical rule; it has been reversed by statute in nearly every American jurisdiction, and contingent remainders are today freely alienable, descendible, and devisable.
4. That any interest following a life estate is a remainder. An interest that cuts short the life estate before its natural end is an executory interest, and an interest that returns to the grantor is a reversion.
5. That an interest following a defeasible fee is a remainder. No remainder may follow a fee. Such an interest in a transferee is an executory interest, subject to the Rule Against Perpetuities where the corresponding retained interest would not be.
6. That contingent remainders can still be destroyed by merger or by the life tenant's early death. Destructibility has been abolished in nearly every jurisdiction; the unvested interest is held in suspense and takes effect, if at all, as a springing executory interest.
7. That a vested remainder can never violate the Rule Against Perpetuities. A remainder vested subject to open is a class gift and is tested under the all-or-nothing rule; it fails entirely if any possible member's interest might vest too remotely.
8. That a class gift always includes every person who ever answers the description. The rule of convenience closes the class when any member becomes entitled to possession, excluding those born afterward unless the instrument directs otherwise.
9. That the difference between “then to B if B survives A” and “then to B, but if B does not survive A, then to C” is stylistic. The first creates a contingent remainder, the second a vested remainder subject to complete divestment, with differing consequences for alienability, acceleration, and perpetuities analysis.
10. That a remainder in a trust is analytically different from a remainder in land. The classification rules are the same. What differs is the practical apparatus: the trustee holds legal title, the beneficiaries hold equitable interests, and joinder, representation, and modification are governed by trust law.

English law, having abolished the legal contingent remainder entirely, now permits successive interests in land only behind a trust; the Law of Property Act 1925 confines legal estates to the fee simple absolute in possession and the term of years absolute, and every remainder is therefore equitable. The English solution eliminates the destructibility, merger, and joinder problems at a stroke, at the cost of requiring a trust for every family settlement. Several American commentators have urged the same reform, and the Restatement (Third) approaches it functionally by treating the trust as the normal vehicle.

Civil-law systems achieve comparable results by different means. The usufruct of the French and German codes performs the office of the life estate, and the naked ownership (nue-propriété) of the remainderman is a present ownership subject to the usufruct rather than a future interest. Because ownership is unitary in civilian theory, the elaborate Anglo-American taxonomy of future interests has no counterpart; conditional and successive dispositions are handled by the law of conditions and by substitution fidéicommissaire, which most codes sharply restrict.

Within the United States, variation is substantial but converging. Jurisdictions differ on the retention of destructibility, the enactment of Uniform Probate Code § 2-707, the applicable perpetuities regime, and the operation of marketable-title acts. Louisiana, following the civilian model, uses usufruct and naked ownership rather than the estate system. No competent opinion on a remainder can be given without consulting the property, probate, trust, and recording statutes of the governing jurisdiction.

A remainder is a future interest created in a transferee that is capable of becoming possessory immediately upon, and no sooner than, the natural termination of a prior particular estate created by the same instrument. It is distinguished from the reversion by the identity of its holder, from the executory interest by the manner of its taking effect, and from every other interest by the requirement of a supporting particular estate of lesser quantum. No remainder may follow a fee, because a fee has no natural end.

A remainder is vested when limited to an ascertained person and subject to no condition precedent, and contingent when the taker is unascertained or the taking conditioned. The vested category divides into the indefeasibly vested remainder, the remainder vested subject to complete divestment, and the remainder vested subject to open. The line between a contingent remainder and a vested remainder subject to divestment is drawn by the placement of the conditional language relative to the words of gift — a formal test, much criticized, and still governing. The law favors early vesting, and ambiguous limitations are construed to produce it.

Class gifts create remainders vested subject to open in each ascertained member, closing under the rule of convenience when any member becomes entitled to possession. The class gift is the one setting in which a vested remainder may fail under the Rule Against Perpetuities, by operation of the all-or-nothing rule. The classical destructive doctrines — destructibility of contingent remainders, forfeiture, merger as a destroying force, the Rule in Shelley's Case, and worthier title — have been abolished in nearly every American jurisdiction, and the contingent remainder that has not vested when the particular estate ends is now held in suspense as a springing executory interest. Vested and contingent remainders alike are today freely alienable, descendible, and devisable.

In practice the remainder is chiefly an equitable interest in a trust rather than a legal interest in land, and the operative questions are those of joinder, representation, accounting, modification, marketability, and tax. Competent drafting states survivorship expressly, defines class terms, fixes the distribution date, includes a perpetuities saving clause, and prefers the trust to legal successive estates wherever active management may be required. Chapter 15 takes up the executory interest and the Rule Against Perpetuities, the doctrine that supplies the outer temporal limit on every contingent interest developed in this chapter.

• Lewis M. Simes & Allan F. Smith, The Law of Future Interests §§ 61–160, 611–718 (2d ed. 1956).
• John Chipman Gray, The Rule Against Perpetuities §§ 99–118, 205–214 (4th ed. 1942).
• Charles Fearne, An Essay on the Learning of Contingent Remainders and Executory Devises 1–86 (10th ed. 1844).
• Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 63–110, 129–158 (2d ed. 1984).
• Roger A. Cunningham, William B. Stoebuck & Dale A. Whitman, The Law of Property §§ 3.9–3.18 (3d ed. 2000).
• 2 William Blackstone, Commentaries on the Laws of England *163–*175 (1766).
• 4 James Kent, Commentaries on American Law *197–*208, *283–*298 (1830).
• Edward Coke, The First Part of the Institutes of the Laws of England (Coke on Littleton) §§ 215–217, 375–378 (1628).
• Frederick Pollock & Frederic W. Maitland, The History of English Law Before the Time of Edward I, vol. 2, at 21–29 (2d ed. 1898).
• S. F. C. Milsom, Historical Foundations of the Common Law 166–199 (2d ed. 1981).
• A. W. B. Simpson, A History of the Land Law 88–102, 208–241 (2d ed. 1986).
• Sir John Baker, An Introduction to English Legal History 261–300 (5th ed. 2019).
• Restatement (First) of Property §§ 153–160, 156–162, 277–279 (1936).
• Restatement (Third) of Property (Wills and Other Donative Transfers) §§ 13.1, 15.1–15.2, 25.1–25.5 (2011).
• Statute De Donis Conditionalibus, 13 Edw. 1, c. 1 (1285); Statute Quia Emptores, 18 Edw. 1, c. 1 (1290); Statute of Uses, 27 Hen. 8, c. 10 (1536); Statute of Wills, 32 Hen. 8, c. 1 (1540); Statute of Frauds, 29 Car. 2, c. 3 (1677).