Possibilities. Whether possibilities are estates under the Revised Statutes and this act is not determined, as those statutes do not define "estates." But as statutes, using common-law terms, are to be construed by that jurisprudence, in the absence of a contrary intent," we may conclude that "mere possibilities" or "naked possibilities" are not "estates in expectancy " within this section.12 Contingent Remainders. Contingent remainders, although not estates at common law, are included in the term estates in expectancy." "13 66 Reversions. Reversions and remainders, not vested in possession, fall under this section and are classified as "estates in expectancy," if they come up to the necessary quantum of estates,14 although a reversion is not a "future estate" by express provision of this statute15 and is always a vested estate.16 Estates in Expectancy. All quondam future uses, contingent remainders and remainders vested in interest but not in possession, as well as all former executory devises or interests, are to be classified as estates in expectancy under this section.17 11 Supra, p. 94. 12 4 Kent Comm. 262; Challis, 58; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. at p. 133; Towle v. Remsen, 70 id. 303, 312, 313; Vail v. Long Island R. R. Co., 106 id. 283; Upington v. Corrigan, 151 id. 143, 148; § 35, supra. 13 Vide 59, infra. 14 §§ 30, 36, 37, 39, Real Prop. Law. And see under § 59, id., infra; Griffin v. Shepard, 124 N. Y. 70. 15 § 36, Real Prop. Law, infra. 16 § 39, Real Prop. Law, infra. 17 4 Kent Comm. 271. § 36. Enumeration of estates in expectancy. All expectant estates, except such as are enumerated and defined in this Estates in expectancy are article, have been abolished. divided into, 1. Future estates; and 2. Reversions. Formerly section 26 of the Real Property Law of 1896, chapter XLVI, General Laws: § 26. Enumeration of estates in expectancy All expectant estates, except such as are enumerated and defined in this article, have been abolished. Estates in expectancy are divided into, 1. Future estates; and 2. Reversions.18 Section 26 was formerly 1 Revised Statutes, 726, section 42, and 1 Revised Statutes, 723, section 9: 8 42. All expectant estates, except such as are enumerated and defined in this article, are abolished.19 § 9. Estates in expectancy, are divided into, 1. Estates commencing at a future day, denominated future estates: and 2. Reversions.20 Future Estates. Future estates are defined by the next section of this act.21 are in Reversions. The reader will observe that "reversions this section contrasted with "future estates," and yet having reference to possession, which is necessarily postponed, “a reversion is an estate in expectancy.' "22 Comment. The abolition of all expectant estates, except such as are saved by enumeration and definition in this article, requires us to consider, what have become of all the former estates tail and executed uses since the abolition of all such estates? Estates Tail. A fee tail is by this act converted into a fee simple in the first taker; but it cannot be abolished, for unless the fee tail is still allowed to be created, its conversion into a fee simple could not take place.23 Uses. By the Statute of Uses 24 (27 Hen. VIII, chap. 10); re-enacted in New York in 1787 (2 J. & V. 68; 1 R. L. 72), 18 Repealed by Real Prop. Law of 1909, 8 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 19 Repealed, chap. 547, Laws of 1896. 20 Repealed, chap. 547, Laws of 21 Section 37, Real Prop. Law. 22 See p. 150 supra; N. Y. Life Ins. & T. Co. v Cary, 191 N. Y. 33. 23 Vide supra, p. 206, under § 32. 24 It was in force in New York after 1664. uses became legal estates whenever the statute operated. The quantity of such estates depended on the limitation of the use; but, like estates created by common-law assurances, executed uses could be divided in respect of their quantity only into estates for years, for life, in fee, or in tail.25 So the quality of the use controlled the estate created by the statute.26 The Revised Statutes declared all uses not expressly saved in the act abolished,27 yet the important sections of the Statute of Uses (27 Hen. VIII, chap. 10) were re-enacted.28 Uses, therefore, cannot be said to be wholly abolished,29 but if not saved as trusts, or as charitable uses, they are still converted by the statute into legal estates of the quantity enumerated in section 30 of the present act. Uses Classified. Treated as legal estates, uses were formerly classified, not with reference to the quantity of the estate, but with regard to the character of the limitation in the instrument creating the use. Sugden classifies uses as "shifting," shifting," "springing springing" and "future;" the last class denoting those uses which took effect as remainders.30 The section of this act now under consideration takes no note of future, shifting or springing uses as estates, but classifies them all as "future estates," and intends that all prospective estates shall be so designated,31 whether created mediately and only by virtue of our revised Statute of Uses, or by immediate conveyances.32 Executory Devises. Estates created by will, which cannot, consistently with the rules of the common law, take effect as remainders, were sometimes styled "executory devises," 33 but more accurately 'executory interests." 34 This section of the Reai Property Law includes all quondam executory devises in "future estates." There is now no such thing as an executory devise.35 Yet the term is occasionally used to indicate a contingent future estate in derogation of an estate limited at the same time and by the same will.36 But on the principle of construction that the common law should prevail, the court will never construe a limitation as an executory devise if it may be supported as a remainder.37 Future estates and reversions are defined in subsequent sections.38 Executory devises formerly embraced two classes of limitations: (1) A substitution of one fee for another upon some event determinable of the first fee. (2) A fee to commence in possession at some future day, without any particular estate to support it in the meantime. The old rule against perpetuities applied to executory devises.39 At the present day all such limitations may be made by a deed as well as by a will, provided only they do not violate the new rule against perpetuities.40 66 All former executory uses, contingent remainders and executory interests or devises are now future estates;" and even remainders vested in interest are such, if possession is postponed.41 36 Beardsley v. Hotchkiss, 96 N. Y. at p. 213; Manice v. Manice, 43 id. 303, 368; Webel v. Kelly, 11 App. Div. 521, 524. 37 Manice v. Manice, 43 N. Y. at p. 368; Miller v. Van Schwarzenstein, 51 App. Div. 1823. 38 §§ 37, 38, Real Prop. Law. § 37. Definition of future estates. A future estate is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time. Formerly section 27 of the Real Property Law of 1896, chapter XLVI, General Laws: § 27. Definition of future estates-A future estate, is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time.42 Section 27 was formerly 1 Revised Statutes, 723, section 10: I § 10. A future estate, is an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate, created at the same time.43 Comment on Section 37. The defining sections of this act (36, supra, and 38, infra) are to be read in conjunction. The revisers with great perspicuity expressly state in their notes, that the object of the above definition was to comprehend every species of expectant estate created by the act of the party: remainders, future uses, and executory devises. Strictly, "future uses" were those uses which took effect as remainders after a precedent use or estate limited by the same instrument.44 But the revisers undoubtedly meant by "future uses" all uses not taking effect immediately in possession. Thus all former remainders, executory uses, and executory devises are now future estates.45 In deference to the older law, the term "executory devise" to denote a future estate is still, however, employed at times.46 Future estates, as defined in this section, may be either vested. or contingent; for, although a vested remainder is in point of interest a present estate, it is future in reference to enjoyment and possession. Reversions, for some reason of the revisers, are contrasted with future estates, although not vested in possession.48 42 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, $ 460. 43 Repealed, chap. 547, Laws of 1896. 44 Sugden's note (pp. 152, 153) to Gilbert, Uses & Trusts (ed. of 1811), supra, p. 41. 45 Revisers' note to 1 R. S. 723, § 10; Tilden v. Green, 130 N. Y. at p. 47; Jesup v. Pringle Memorial Home, 27 Misc. Rep. 427; Griffin v. Shephard, 124 N. Y. 70; Adams v. 46 Leonard v. Burr, 18 N. Y. at p. 107; Booth v. Baptist Church, 126 id. at p. 237; supra, p. 217. 47 Rudd v. Cornell, 58 App. Div. 207, 216; cf. Wharton, Conveyancing, 95. 48 § 36, The Real Prop. Law; cf. Adams v. Adams, 114 App. Div. 390. |