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Estates Not of Freehold. In treating of estates not of freehold, the Revised Statutes provided that estates for years" were to be denominated "chattels real;" but "estates at will" or "by sufferance," were to be chattel interests." 72 This section was, therefore, declaratory of existing law.73 The history of "terms of years," in the law of England, is not obscure.

74

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Terms of Years. Long "terms of years" are very ancient in practice, but they received little recognition in the old feudal law of England. Consequently, the common law did not rank them as legal estates. Nothing was an estate" at common law which could not be protected by the common law itself.75 It is said by Challis that terms of years became legal estates only by virtue of the statute 21 Henry VIII, chapter 15, which enabled the termors. to falsify recoveries obtained on feigned titles. Mr. Digby is inclined to place this period earlier,76 but he is not quite justified, as complete protection was not given to termor until 21 Henry VIII." Step by step, terms of years were, however, raised to the dignity of legal estates.78 Littleton, while fully recognizing tenancies and the quantity of interest each kind of tenancy denoted, nowhere calls terms of years estates.79 The rise of terms of years as legal estates, was, therefore, no doubt, later than Littleton's time, as Challis so well points out. But it was settled before the law of England was applied to New York, and the revisers of the statutes. simply adopted an existing description of the quantity of interest a termor might have, treating such interests, in conformity with preexisting law, as legal estates.80

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Estates for years, being chattels real,81 did not, however, at common law go to heirs but to executors as personal property.82 The Revised Statutes modified the common law in respect of estates for years, for although they are still chattels real and go to executors,83 a judgment binds and is a charge on them as assets for distribution.84

Estates for years being chattel interests are usually conveyed by leases, or by assignments of leases, or by mortgages.85

Chattels Real. While chattels real are personal property within. the Transfer Tax Law,86 they are not within the purview of the chattel mortgage statutes, requiring filing and refiling to preserve the lien against creditors.87

Execution against Estate for Years. An estate for years might, under the Revised Statutes, be sold on execution (2 R. S. 182, 359; I id. 722, § 5), and the same provision now applies to unexpired terms

of five years.

88

Redemption. The owner of such an estate may redeem a prior incumbrance.89

81 Putnam v. Westcott, 19 Johns. 73, 76; $49, Real Prop. Law.

82 2 Black. Comm. 143; Bennett v. Rosenthal, 11 Daly, 81; Matter of Althause, 63 App. Div. 252, 255.

83 § 2712, Code Civ. Proc.; 2 R. S. 82, 6; Pugsley v. Aikin, 11 N. Y. 494, 498; Despard v. Churchill, 53 id. 192, 199; Matter of Althause, 63 App. Div. 252, 255.

84 Bennett v. Crain, 41 Hun, 183; Despard v. Churchill, 53 N. Y. 192, 199; People ex rel. v. McAdam, 84 id. 287, 295.

85 See sections 242, 271, 272, 273 and 291, Real Prop. Law.

86 Matter of Althause, 63 App. Div. 252.

87 Chap. 279, Laws of 1833; chap. 677, Laws of 1892; Booth v. Kehoe, 71 N. Y. 341; State Trust Co. v. Casino Co., 19 App. Div. 344.

88 Code Civ. Proc., § 1430; O'Rourke v. The Henry Prouse Cooper Co., II Civ. Proc. 321; Brewster v. Striker, 1 E. D. Smith, 321; Broman v. Young, 35 Hun, 173, 180.

89 Burr v. Stenton, 43 N. Y. 462, 465.

§ 34. When estate for life of third person is freehold; when chattel real. An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee; after his Ideath it shall be deemed a chattel real.

Formerly section 24 of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 24. When estate for life of third person is freehold, when chattel real. - An estate for the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee; after his death it shall be deemed a chattel real.90

Section 24 was formerly 1 Revised Statutes, 722, section 6:

§ 6. An estate during the life of a third person, whether limited to heirs or otherwise, shall be deemed a freehold only during the life of the grantee or devisee, but after his death it shall be deemed a chattel real.91

Estates for Life of Third Persons. At common law if tenants pur autre vie, simpliciter, die, living cestui que vie, any one might enter and take possession. One so entering was called "special occupant," because his title was by occupation. But this entry might be prevented by giving the estate to the heirs or administrators of tenant pur autre vie after his death, living cestui que vie. Special occupancy might take place only in the event of a failure to give the estate to such heirs or administrators.92

The English Statute of Frauds93 first made tenancies pur autre vie devisable; and, if not devised, assets in the hands of the heir when the estate fell upon him as special occupant. This statute was deemed to extend to the province of New York and was accordingly re-enacted at the revision of such statutes.94 The Revised Statutes,95 in imitation of the English Statute of Geo. II,96 made such estates assets in the hands of administrators in all cases. When an estate pur autre vie was declared to be a freehold only during the life of the grantee or devisee, it was, on the grantee's death, made to pass to his executors during the remainder of the life of cestui que vie.97 Thus, the old right of any stranger to take

90 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 91 Repealed, chap. 547, Laws of 1896.

92 Co. Litt. 41b; Goodeve, Real Prop. 36, 37; 23 Law Mag. & Rev. 7. 93 29 Car. II, chap. 3, § 12.

94 2 J. & V. 94, § 4; 1 K. & R. 178,

§ 4; 1 R. L. 365, § 4.

95 2 R. S. 82, § 6.

96

97

14 Geo. II, chap. 20, § 9.

I R. S. 722, § 6. See Reviser's note, Appendix III, infra, and Lalor, Law of Real Prop. New York, 62,

possession by special occupancy of such lands after the grantee's death,98 where the lands were not limited also to the grantee's heirs or executors, was taken away. .99 In this State estates pur autre vie had long been devisable,1 passing under a general devise of lands and tenements.2

Presumption of Death. If a person on whose life an estate depends absent himself for seven years he is presumed to be dead.3

Presumption of Survivership. There is no presumption of survivorship when persons die in a common disaster.

98 Crooked Lake Nav. Co. V. Keuka Nav Co., 37 Hun, 9, 13; 2 R. S. 82, § 6; cf. Co. Litt. 41b; Gilliз v. Brown, 5 Cow. 388; Smith, Real & Pers. Prop. 380.

99 Cruise, tit. 3, chap. 1, §§ 43-48. 11 K. & R. 178, § 4; cf. Mr. Hargrave's note 241; Co. Litt. 41b, as to English statutes to same effect, 29 Car. 2, chap. 3.

2 Wright v. Trustees Meth. Church, Hoffm. Ch. 201, 225.

3 § 841, Code Civ. Proc.; Ruoff v. Greenpoint Savings Bank, 40 Misc. Rep. 549; McNulty v. McNulty, 41 id. 293; Matter of Losee, 46 Misc. Rep. 363; Matter of Del Genovese, 56 id. 418; cf. 88 2302-2319, Code Civ. Proc.; 9 Columbia Law Rev. 435.

4 Newell v. Nichols, 75 N. Y. 78; St. John v. Andrews Institute, 117 App. Div. 698, 191 N. Y. 254; Matter of McInnes, 119 App. Div. 440.

§ 35. Estates in possession and expectancy. Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. An estate which entitles the owner to immediate possession of the property, is an estate in possession. An estate, in which the right of possession is postponed to a future time, is an estate in expectancy.

Formerly section 25 of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 25. Estates in possession and expectancy.- Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy. An estate which entitles the owner to immediate possession of the property, is an estate in possession. An estate, in which the right of possession is postponed to a future time, is an estate in expectancy.5 Formerly Revised Statutes, 722, section 7, and 1 Revised Statutes, 723, section 8:

§ 7. Estates, as respects the time of their enjoyment, are divided into estates in possession, and estates in expectancy.6

§ 8. An estate in possession, is where the owner has an immediate right to the possession of the land. An estate in expectancy, is where the right to the possession is postponed to a future period.7

Comment. The foregoing sections of the Revised Statutes adopted Blackstone's classification, and divided estates into estates in possession and estates in expectancy.8 In a note the original revisers. indeed refer to Cruise's Digest for the definition of estates in expectancy. It is, therefore, obvious that there was no intention on the part of the revisers to depart very widely from the pre-existing or common-law notions touching the quantity and the quality of estates in lands. They expressly state in their notes that their real object was to simplify the learning connected with estates in expectancy. This motive is, however, independent of classifications. But as classifications of estates had become very minute in the writings of modern lawyers, the revisers adopted the more general scheme. This section refers to what was formerly denominated the quantity of estates.10

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

6 Repealed, chap. 547, Laws of 1896. 7 Repealed, chap. 547, Laws of

82 Black. Comm. 163.

9 Cruise Dig., tit. 16, chap. 1, § 1; Revisers' notes to 1 R. S. 723, § 8, Appendix III, infra.

10 Supra, p. 150.