ÆäÀÌÁö À̹ÌÁö
PDF
ePub

§ 32. Estates tail abolished; remainders thereon. Estates tail have been abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed before the twelfth day of July, seventeen hundred and eighty-two, shall be deemed a fee simple; and if no valid remainder be limited thereon, a fee simple absolute. Where a remainder in fee shall be limited on any estate which would be a fee tail, according to the law of this state, as it existed previous to such date, such remainder shall be valid, as a contingent limitation on a fee, and shall vest in possession on the death of the first taker, without issue living at the time of such death.

Formerly section 22 of the Real Property Law of 1896, chapter XLVI, General Laws:

22. Estates tail abolished; remainders thereon.- Estates tail have been abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed before the twelfth day of July, seventeen hundred and eighty-two, shall be deemed a fee simple; and if no valid remainder be limited thereon, a fee simple absolute. Where a remainder in fee shall be limited on any estate which would be a fee tail, according to the law of this state, as it existed previous to such date, such remainder shall be valid, as a contingent limitation on a fée, and shall vest in possession on the death of the first taker, without issue living at the time of such death.40

I

Section 22 was formerly 1 Revised Statutes, 722, sections 3 and 4:

§ 3. All estates tail are abolished; and every estate which would be adjudged a fee tail, according to the law of this state, as it existed previous to the twelfth day of July, one thousand seven hundred and eighty-two, shall hereafter be adjudged a fee simple; and if no valid remainder be limited thereon, shall be a fee simple absolute.41

§ 4. Where a remainder in fee shall be limited upon any estate, which would be adjudged a fee tail, according to the law of this state, as it existed previous to the time mentioned in the last section, such remainder shall be valid as a contingent limitation upon a fee, and shall vest in possession, on the death of the first taker, without issue living at the time of such death.42

Estates Tail Turned into Fees Simple. in the Introduction, and stated that only to a limited extent in practice.43

40 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 41 Repealed, chap. 547, Laws of

We have alluded to estates tail they prevailed in New York Mr. Spence, in his work on 42 Repealed, chap. 547, Laws of 1896.

43 Supra, pp. 17, 39, 49.

47

Equitable Jurisdiction, gives a clear and concise account of the law bearing on entails.44 Estates tail in New York had been converted into estates in fee simple at an early period after independence of the Crown. The Revised Statutes simply modified the older statutes abolishing entails so as not to cut off a remainder in fee limited upon a fee tail.46 An estate tail is, however, only abolished at the present day by being converted into an estate in fee simple, which, if no valid remainder is limited thereon, is now termed a fee simple absolute. The statutes of 1782 and 1786, abolishing entails, and prescribing the course of descents in New York, operated prospectively, as well upon vested remainders in tail as upon those estates tail which had taken effect in possession.48 Before the Revised Statutes the acts abolishing entails had cut off remainders limited on an estate tail.49 Then the effort of the courts was to support such remainders as executory devises after the death of first taker without issue, although this necessitated the reversal of the English decisions, that a failure of issue meant an indefinite failure of issue, or an estate tail.50

Remainders Limited on a Fee Tail Saved. The Revised Statutes expressly saved remainders on a fee tail.51 The Revised Statutes did not actually prohibit the creation of estates tail in the sense of making them void; but they allowed them to arise, and on the instant they arose converted them into estates in fee simple absolute. 52 44 Vol. I, p. 140 seq,; Coke on Litt. § 4, Appendix III, infra. And see 18b. remarks of text under § 48, Real Prop. Law, infra.

45 Chap. 2, Laws of 1782, and revised in 1786, chap. 12, Laws of 1786; 1 J. & V. 245. The act of 1782 was defective. Jackson ex dem. v. Van Zandt, 12 Johns. 169, and Medcef Eden's Case, 20 id. 483; Lytle v. Beveridge, 58 N. Y. 592, 601; Webb v. Sweet, 187 id. 172.

46 § 32, supra; 1 R. S. 722, § 4; · Matter of Moore, 152 N. Y. 602.

47 § 32, supra; 1 R. S. 722, § 3. 48 Jackson ex dem. v. Van Zandt, 12 Johns. 169; Vanderheyden V. Crandall, 2 Den. 9; Van Rensselaer v. Poucher, 5 id. 35.

49 Lott v. Wyckoff, 2 N. Y. 355; Barlow V. Barlow, id. 386; Van Rensselaer V. Kearney, How. (U. S.) 297.

II

50 Cf. 4 Kent. Comm. 279, note h, and note of revisers to 1 R. S. 722,

51 Webb v. Sweet, 187 N. Y. 172; Matter of Moore, 152 id. 602; Harriot v. Harriot, 25 App. Div. 245, 248; revisers' notes, 1 R. S. 722, § 4, Appendix III, infra.

52 Wilkes v. Lyon, 2 Cow. 333; Lott v. Wyckoff, 2 N. Y. 355, 359; Buel v. Southwick, 70 id. 581; Nellis v. Nellis, 99 id. 505, 511; cf. Mr. Harrison's argument in Medcef Eden's Case, 16 Johns. at p. 392 et seq.; Seaman v. Harvey, 16 Hun, 71; Coe v. De Witt, 22 id. 428; Matter of Kirk v. Richardson, 32 id. 434As to what words create an estate tail," see Baker v. Lorillard, 4 N. Y. 257; Harriot v. Harriot, 25 App. Div. 245, 248.

66

Nevertheless, in so far as an estate tail in remainder may be regarded as a "future estate," under the Revised Statutes,53 it is declared abolished.54

What Words Create an Estate Tail.

The books of the common law

are very replete on this subject,55 which is also discussed in many cases in this State.56

Estates Tail of Personalty. Estates tail could not be formerly in limitations of personal property.57 But at the present day, as limitations of future estates in personalty are by statute made subject to all the provisions of this article,58 it can be assumed that the attempted creation of an estate tail in personal property, being a future interest therein, will now be subject to the provisions of this section,59 unless the courts hereafter decide to the contrary. 60

Effect of Statutes Abolishing Entails of Real Property. The effect of the New York statutes abolishing entails has been greatly exaggerated. In the settlement of an estate tail before such statutes the life estate depended on a single life, with remainders over for life or in tail. Any tenant in tail (save tenant after possibilty of issue extinct) could, by a fine or by a common recovery, not only destroy the estate tail (that is the descent to issue), but also all subsequent estates in remainder, and thus he could convert the estate tail into one in fee simple. In other words, an entail by the common law was no restriction on alienation whatever after Taltarum's Case 61 which was decided only some two hundred years after the Statute "De Donis."

The statutes of New York accomplished only what a disentailing deed could do in England under the act of 1833,62 but it will be observed nearly a half century earlier than in England. As the New York statute now converts estates tail into fees simple it is apparent that any words formerly appropriate to the creation of an estate tail will now carry a fee simple to the donee or grantee.

53 37, infra; 1 R. S. 723, § 10. 54 § 36, infra; 1 R. S. 726, § 42. 55 Tudor, Lead. Cas. Real Prop. 750-754; Challis, 237, 238.

56 Baker v. Lorillard, 4 N. Y. 257, 263; Harriot v. Harriot, 25 App. Div. 245, 248.

57 Norris v. Beyea, 13 N. Y. 273. 58 1 R. S. 773, § 2.

50 Cf. Norris v. Beyea, 13 N. Y. 273; Van Horne v. Campbell, 100 id. 287, 305; Putnam v. Lincoln Safe

Deposit Co., 34 Misc. Rep. 333, 341; Rudd v. Cornell, 58 App. Div. 207, 217.

60 See Putnam v. Lincoln Safe Deposit Co., 34 Misc. Rep. 333, 341; Fowler, Pers. Prop. Law of 1909, p. 27; cf. Matter of Wilcox, 194 N. Y. at p. 305.

61 See Reviser's Note to article on Estates, Appendix III, infra. 62 3 & 4 Wm. IV, chap. 74.

But the New York revisers of 1830 did not wish to abolish remainders limited on estates tail,63 nor did they wish to leave such remainders in the power of the tenant of the preceding estate, so they expressly saved such remainders if the first takers died without issue.64

63 See Reviser's Note, Appendix III, infra.

64 1 R. S. 722, §§ 3, 4, now 8 32, supra.

§ 33. Freehold; chattels real; chattel interests. Estates of inheritance and for life shall continue to be termed estates of freehold; estates for years are chattels real; and estates at will or by sufferance continue to be chattel interests, but not liable as such to sale on execution.

Formerly section 23 of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 23. Freeholds; chattels real; chattel interests.- Estates of inheritance and for life, shall continue to be termed estates of freehold; estates for years are chattels real; and estates at will or by sufferance, continue to be chattel interests, but not liable as such to sale on execution.65

Section 23 was formerly 1 Revised Statutes, 722, section 5:

5. Estates of inheritance and for life, shall continue to be denominated estates of freehold; estates for years, shall be chattels real; and estates at will or by sufferance shall be chattel interests, but shall not be liable as such to sale on execution.66

Freehold Estates. It will be perceived that the term "freehold was preserved by the Revised Statutes to denote both a fee simple and an estate for life.67 Hence, as before that revision, no less an estate than these can now constitute a freehold.68 Freehold estates, therefore, continue to be freeholds of inheritance and freeholds not of inheritance; but an estate pur autre vie, though an estate for life may pass to executors of tenant pur autre vie now by statute.69 In England the term "freehold," used simpliciter, has come to denote an estate for life,70 but it is not so in this State. "Freehold" and "freeholder," formerly in New York, as in England, indicated the status of the tenant, and were significant of political privileges now almost swept away in this State. At the time of the Revised Statutes the status of freeholder had still some political significance, and the adoption of the ancient definition of a freehold estate in lands made allodial was, therefore, still convenient. Commissioners to make partition must still be freeholders, - so certain office-holders and sureties. After defining "estates of freehold" the revisers proceeded to define "estates not of freehold." 71

65 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

66 Repealed, chap. 547, Laws of 1896.

671 R. S. 722, § 5.

68 Mr. Josiah W. Smith says that

in England "freehold" simpliciter has come to denote an estate for life, in opposition to an estate of inheritance. Real & Pers. Prop. 123.

See next section, 34, of this act. 70 Smith, Real & Pers. Prop. 123. 71 See next paragraph.

« ÀÌÀü°è¼Ó »