Definition
Mainder is an archaic or contracted form of REMAINDER, used in compound legal terms — most prominently in the phrase "fee tail" constructions and, above all, in the term CROSS REMAINDER (also styled cross-mainder in older texts). The term does not stand alone as an operative legal concept; it functions as a suffix or root from which compound property terms are built.
In the context of cross remainder (cross-mainder), the term refers to the estate that remains after a particular estate or life estate has ended, arranged so that when one of several co-tenants or life tenants dies without issue, their share passes to the survivors under the limitation of the original grant, rather than reverting to the grantor or passing by intestacy.
Common Confusion
MAINDER vs. REMAINDER: Mainder is not a distinct legal estate. It is a contracted or variant form of remainder and carries no independent doctrinal content separate from remainder doctrine. A researcher encountering "mainder" in a historical instrument should read it as "remainder" and apply the full body of remainder doctrine accordingly.
CROSS REMAINDER vs. EXECUTORY REMAINDER vs. CONTINGENT REMAINDER: These are related but distinct concepts. Cross remainder specifically describes the arrangement among co-tenants or joint grantees; it does not describe the contingency structure of the remainder itself, which may separately be vested, contingent, or executory.
Why It Matters in Research
Researchers working in early American property law, especially in colonial and early Republic-era conveyancing records, will encounter "mainder" as both a freestanding fragment in handwritten instruments and as the recognizable root in cross-remainder constructions. Several practical traps exist:
First, the contracted spelling can create indexing failures. Deed books and case reporters through the early nineteenth century sometimes render "remainder" as "mainder" in informal or abbreviated usage, and full-text searches keyed to the standard spelling will miss these variants.
Second, the source material here — Rapalje & Lawrence's citation to 4 Wheaton's American Common Law and 8 Com. Dig. 448 — points to two distinct authoritative lines: the American equity tradition building on Wheaton, and the English digest tradition via Comyns. Researchers should treat these as parallel but not always reconcilable frameworks. The Connecticut case citation (4 Day 368) identifies an early American court working out the boundaries of cross remainder doctrine on its own terms, which is significant because American courts frequently modified English remainder doctrine to fit freehold and fee simple patterns common in the New World.
Third, cross remainder doctrine is technically demanding and historically variable. Whether a cross remainder arises by express words, by necessary implication, or by operation of law was contested across jurisdictions. The Rapalje & Lawrence entry signals this tension directly by noting both how the estate is created and what it is not — a structure that flags active doctrinal uncertainty in the sources of that era.
Historical Dictionary Support
Rapalje & Lawrence address "mainder" only in the compound form CROSS REMAINDER, and only to the extent of providing two navigational citations without a discursive definition. This is consistent with their general method for terms they regarded as sufficiently settled in the digest tradition to require only a citation map.
The reference to 8 Com. Dig. 448 (Comyns' Digest) situates the term firmly in classical English real property doctrine, where cross remainders were created by grants to two or more persons with limitations over to the survivor or survivors. The reference to 4 Wheaton's American Common Law signals that by the time of Rapalje & Lawrence's compilation, American courts were already engaged in independent doctrinal development. The Connecticut citation (4 Day 368) — identifying what a cross remainder is not — suggests the sources they were consulting were as concerned with limiting the doctrine as expanding it, which reflects the broader American tendency to restrict technical remainder rules that had served feudal land tenure purposes with diminishing relevance in a fee simple-dominant system.
Historical sources, including Blackstone and Coke, treat remainder doctrine at length but rarely isolate "mainder" as an independent term. The root survives primarily through compound usage, and researchers should not expect to find "mainder" as a headword in the major English dictionaries of the eighteenth or nineteenth centuries.