ARTICLE 3. Creation and Division of Estates.28 SECTION 30. Enumeration of estates. 31. Estates in fee simple and fee simple absolute. 32. Estates tail abolished; remainders thereon. 33. Freehold; chattels real; chattel interests. 34. When estate for life of third person is freehold; when chattel real. 35. Estates in possession and expectancy. 36. Enumeration of estates in expectancy. 37. Definition of future estates. 38. Definition of remainder. 39. Definition of reversion. 40. When future estates are vested; when contingent. 41. Power of appointment not to prevent vesting. 42. Suspension of power of alienation. 43. Limitation of successive estates for life. 44. Remainders on estates for life of third person. 45. When remainder to take effect if estate be for lives of more than two persons. 46. Contingent remainder on term of years. 47. Estate for life as remainder on term of years. 48. Meaning of heirs and issue in certain remainders. 49. Limitations of chattels real. 50. Creation of future and contingent estates. 51. Future estates in the alternative. 52. Future estate valid though contingency improbable. 53. Conditional limitations. 54. When heirs of life tenant take as purchasers. 55. When remainder not limited on contingency defeating precedent estate takes effect. 28 The greater part of the legislation now embodied in this article is taken from the Revised Statutes of 1829-30. The original Revised Statutes in the article entitled, “Of the Creation and Division of Estates" (formerly art. 1, tit. 2, chap. I, part 2, R. S.), was in reality concerned with the rules of law relating to the limitations of executory legal estates, or those legal estates to commence in possession at a future day. [1 R. S. 723, 10, now § 37, infra, and 1 R. S. 726, § 43, now § 65, Real Prop. Law.] Estates in possession or executed estates are not treated of in this article further than that the quantum of such estates is defined and they are classified. Hawley v. James, 16 Wend. 61, 128. When a person seised of a fee simple transfers his entire estate to another, it is very obvious that that other succeeds to the same estate which his grantor had in respect of the land conveyed. "Non debeo melioris conditionis esse quam auctor meus a quo jus in me transit." D. I, 17, 175, I. Whether such a transfer as this instanced may be regarded as the creation of an estate within the meaning of this article of the Revised Statutes, is doubtful from some points of view. The transaction SECTION 56. Posthumous children. 57. When expectant estates are defeated. 58. Effect on valid remainders of determination of precedent estate before contingency. 59. Qualities of expectant estates. Co. Disposition of rents and profits. 61. Accumulations. 62. Anticipation of directed accumulation. 63. Undisposed profits. 64. When expectant estates are deemed created. 65. Estates in severalty, joint tenancy and in common. 66. When estate in common; when in joint tenancy. 67. Sale of real property held by tenant for life contingent with unknown. 68. Application, how made. 69. Sale, how conducted. 70. Conveyances upon sale. 71. Disposition of proceeds of sale. 72. Release of rents reserved by leases in perpetuity. is in reality a succession to an existing estate. But as an absolute conveyance not only extinguishes the rights of the grantor, but originates the rights of the grantee (Holland, Juris. 134), it is not perhaps altogether inconvenient to treat of such transfers in a statutory article relating to the creation of estates. But executory derivative estates, or those executory estates derived out of a fee and less in quantum than a fee, may accurately be said to be created by a grantor or devisor, and are properly treated of in this article. Nevertheless this article is after all concerned with the rules relating to the limitation of executory or future estates, and it may be so described in brief. In reference to all future estates in land, or estates in expectancy, this article of the statute furnishes the entire law. It is final and the courts must look exclusively to it when called upon to expound the law. Hawley v. James, 16 Wend. 61, 128. As regards the quantity and the quality of estates in possession this article has in reality very little to do; they are left to the common law. The various sections of this article (1) Defining sections, sections 30, 31, 33, 35, 37, 38, 39, 40, 65. These sections are largely declaratory, or do not materially alter the pre-existing common law. (2) Regulating sections, which do not materially change the former law, although circumscribing and altering its application: Sections 41, 43, 44, 45, 46, 47, 48, 49, 51, 53, 55, 56, 59, 60, 61, 62, 63, 64, 66. (3) Reformatory sections, essentially altering the common law or repeating statutes, (such as that abolishing entails which did alter it): Sections 32, 36, 42, 50, 52, 54, 57, 58. In any attempt to construe the statute, it is necessary to examine the old law before the Revised Statutes, and then the purpose and object of the particular section or group of sections under consideration. In no other way can we reach the true construction of this statute. § 30. Enumeration of estates. Estates in real property are divided into estates of inheritance, estates for life, estates for years, estates at will, and by sufferance. Formerly section 20 of the Real Property Law of 1896, chap. XLI, General Laws: 20. Enumeration of estates.- Estates in real property are divided into estate of inheritance, estates for life, estates for years, estates at will, and by sufferance.29 Section 20 was formerly 1 Revised Statutes, 722, section 1: § 1. Estates in lands are divided into estates of inheritance, estates for life, estates for years, and estates at will and by sufferance.30 Meaning of "Estate." The entire notion of estates in land is peculiar to the common law of English-speaking peoples. It contemplates ownership in perpetuity and a power of presently parceling it out in "slices." The common law is largely concerned with the mode in which this may be done by the proprietor for the time being 31 This entire article of the statute is concerned with "legal estates," or those estates once cognizable in the courts of common law. An estate in lands had, before the introduction of English law in New York, come to have a very well-settled technical meaning, and, as Blackstone's definitions and classifications were allpowerful with the revisers of the statutes of the State of New York in 1827-30, it is sufficient to give his definition: "An estate in lands, tenements and hereditaments, signifies such interest as the tenant hath therein." 32 It will be remembered that in Blackstone's day all estates in England were still tenements.33 The Crown was the sole allodial owner, and in legal theory every subordinate proprietor was a tenant. The old estate, or status of the tenant, in respect of his land, was regulated primarily by the old common law of England. The transmission and devolution of such estates were subsequently subjected to the influence of statute law. It is quite unnecessary here to trace back of Blackstone's day the origin of the term "estate," as we have alluded to it in the Introduction, and it will be sufficient to point out that in the time of Bracton it had not yet acquired a settled meaning. At a later period the Year Books, however, show that "estate" had acquired a well-settled technical significance, and until the great statute 12 Charles II, 29 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 30 Repealed, chap. 547, Laws of 31 32 301, Markby Elements of Law. 2 Comm. 103. 33 The original estates of England were very ancient. Supra, p. 9. chapter 24, taking away the burdens of feudal tenures, the term "estate" could not have varied the significance so acquired. An estate for life was originally "status ad terminum vitæ," and an estate in fee originally status in feodo simplici," of the earlier law.34 In the year 1664, when the Crown of England came into possession of the lands of New York, Blackstone's subsequent definition of the interest which a subject could hold in lands in England proved descriptive of the estates actually granted by the Crown to the various settlers in the province of New York. Every landholder was a tenant, and his interest and rights over the land granted to him constituted his estate" therein. The manner in which estates held by the socage tenure became allodial in New York is shown in the introductory chapter of this book.35 66 Estates in New York. It is, perhaps, not accurate to term any original estate in New York "a common-law estate." Strictly, a common-law estate is confined to England, being of very ancient origin, and relatively all estates in New York are estates de novo. But, as by a process of extension the English law of land was made applicable to the lands of New York after 1664, the original estates in New York were created by the Crown according to that law, and thus the original estates in New York were limited by the Crown on precisely the same terms and subject to the same rules then applicable to the ancient common-law estates. All the original estates in New York, except the few Dutch grants, were fee simples of the quantity and quality known in the seventeenth and eighteenth centuries in England. The Dutch grants were all subsequently converted into estates to be holden by the common socage tenure.36 The original New York estates never were feuds, and were created only after the abolition of the feudal system by the statute 12 Charles II, chapter 24. They were such estates as the common law then recognized in lands. Estates in Allodial Lands. Prior to the act making lands allodial in New York, a tenant of a freehold was not seised of the lands, but of an estate therein, and it was, to say the least, formerly inartificial to plead a seisin of the lands themselves.37 The "act concerning tenures "38 makes the tenures of certain lands allodial, but not the lands; whereas, the Revised Statutes more correctly made the 34 Vide 2 Pollock & Maitland, Hist. Eng. Law, chap. IV, § 1. 35 Supra, pp. 47, 54. 36 See chap. II, Introduction. 37 Van Rensselaer v. Poucher, 5 Den. 35, 41, 44. 38 2 J. & V. 67; 1 K. & R. 64; I R. L. 70. lands themselves allodial,39 and since then it would seem not inartificial to plead "seisin of the lands," although now seisin can mean nothing more than ownership of an estate of freehold,40 its feudal significance having passed away with the abolition of tenures.41 The sections of the Revised Statutes making lands allodial and declaring the relation of the State to lands within its jurisdiction,42 perpetuated a condition. of things practically existent since the birth. of the State. If we have reference to the language of these sections, we perceive that the proprietor of allodial lands has still only an estate in them, and that the abolition of such tenures as existed here after the War of Independence is largely academic and intended only to preserve the general scheme of the revision.43 Indeed, Chancellor Kent states that there is no distinction between an estate held by the reformed socage tenure and an estate in the lands made allodial by statute in New York.44 If we consider escheats and the law of merger, we shall be convinced that an estate in allodial lands is not materially changed from an estate in socage lands after the statute 12 Charles II, chapter 24, taking away the feudal burdens from tenure. Although the term "estate" is frequently used as the equivalent of "property," 45 even since the Revised Statutes, it more properly denotes the legal relation which a citizen may have in respect of a particular piece of land. It connotes the rights, duties, and obligations of the owner of the land. An "estate" is, in fact, universitas juris, or the totality of a man's rights, obligations, and powers in respect of a certain piece of land. Estates in Land. The entire notion of estates in land is due to the English common law, and is unknown to any system not subject to that law. The common law treats ownership in perpetuity of land as something to be dealt with, and out of which the owner of the estate may carve any number of slices and confer each slice upon a different person.46 The law of real property is mainly concerned with the rules regulating such dispositions. 391 R. S. 718, § 3; Const. of 1894, art. 1, § 12. 40 Matter of Dodge, 105 N. Y. 585, 591; Bedel v. Shaw, 59 N. Y. at p. 49; cf. 1 Washburn, Real Prop. pp. 34, 35; 2 id. 483, 485; Goodeve, Real Prop. 21, 153; Woods v. Breder, 129 App. Div. 122. 41 Jackson v. Demont, 9 Johns. 55, 58; 1 R. S. 718, § 4. 421 R. S. 718, §§ 1, 3; cf. Const. of 1846, art 1, § 11; Const. of 1894, art. 1, § 10. 43 People v. Trinity Church, 22 N. Y. 44; cf. People v. Van Rensselaer, 9 id. 318, 319; Powers v. Bergen, 6 id. 358, 366; Taylor v. Porter, 4 Hill, 140. 444 Kent. Comm. 2, 3. 45 Wharton Prin. Conv. 8; Terry v- Wiggins, 47 N. Y. 512. 46 § 301, Markby, Elements of Law. |