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§ 38. Definition of remainder. Where a future estate is dependent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name.

Formerly section 28 of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 28. Definition, remainder.—Where a future estate is dependent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name.49

Section 28 was formerly 1 Revised Statutes, 723, section 11:

§ II. Where a future estate is dependent on a precedent estate, it may be termed a remainder, and may be created and transferred by that name.50

Comment on Section 38. The language of section 38, Real Property Law, is the same as that of the Revised Statutes, no change whatever being made. The original revisers of the statutes added no particular note or or comment on I R. S. 723, section II. We must, therefore, consider: (1) What was a remainder at common law. (2) The changes made by the Revised Statutes in the law touching remainders.

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Remainder at Common Law. A remainder at common law is generally referred by more modern commentators to Lord Coke's definition: "The remainder' is a residue of an estate in land, depending upon a particular estate, and created together with the same, and in law Latine it is called remanere." 51 At common law there could be no remainder without a particular estate created at the same time.52 In other words, a fee simple was sometimes divided by a conveyance into a "particular estate (which might be for years, for life,54 or a fee tail55), and the "remainder" of the fee simple. The particular estate, preceding a vested remainder of freehold, might, at common law, be term of years, and in that case the seisin during the continuance of the term was vested in the remaindermen.56 But the particular estate preceding a contingent remainder of freehold could not be a term of years; because then 54 2 Black. Comm. 164.

49 Repealed by Real Prop.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

50 Repealed, chap. 547, Laws of 1896.

51 Co. Litt. 49a; 2 Black. Comm. 164; 4 Kent Comm. 197; and Tomlin's note to his "Lyttleton," p. 248. 52 Co. Litt. 49a. 53 Id., supra.

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the seisin would be in abeyance during the contingency. Such a contingent remainder would have been void for want of a sufficient estate to support it.57

A "remainder" was originally created by what is called a "legal limitation;" that is by some limitation originally allowed by the common law before the Statutes of Uses and Wills. It was the only limitation of an estate to commence in futuro, permissible by common law at the time when livery of seisin was essential to a perfect conveyance. Subsequently to the Statute of Uses a remainder might be created by a conveyance to uses, thus taking effect under the Statute of Uses; but even then, in deference to the older law, the limitation was subject to all the rules touching the older law of remainders, and the "use-remainder ", like its prototype, was defeated unless it vested at the time, or before, the particular or precedent estate, or use, ceased or determined.

Remainders after the Statute of Uses. After the several Statutes of Uses and Wills, remainders ceased to be the only limitations whereby estates in futuro could be created. Future estates could then be effected also by wills, or "executory devises," or by conveyances to uses, whereby, through the Statute of Uses, a future estate sprang into being or shifted from one tenant to another.58 Such estates as were effected under these statutes were called "springing" or "shifting" uses; or, if created by way of devise, without the means of the Statute of Uses, "executory interests." But two of these new classes of future estates could be said to be dependent on a precedent estate, viz., a "shifting use," and an "executory interest," which displaced an estate created by the same devise, sometimes called "a shifting devise." Neither a springing use nor a springing devise (which were simply estates to take effect in futuro, without displacing any other estates, created at the same time) could be said to be dependent on precedent estates. After the Statute of Wills a common-law remainder might also be limited directly by a will as well as by a deed.

Remainders under the Revised Statutes. With this explanation of the state of the law when the Revised Statutes went into effect, it is very obvious that at the present time, under the above sections of the statutes of this State, a " remainder" includes all those estates which now take effect in possession subsequently to some other estate, created at the same time, and upon whose cessation such

57 Goodright v. Cornish, 1 Salk.

58 Supra, pp. 34, 41, 42, 217.

remainders depend for their enjoyment in possession. If "future estates" are wholly independent of a precedent estate they cannot fall under this section. A statutory "remainder," therefore, now embraces only such estates as were (1) remainders by the common law; (2) all former shifting uses and, (3) all those executory interests which were called "shifting devises." A statutory remainder, as defined above, cannot embrace such former estates as were effected by springing uses or springing devises, for they were not dependent on precedent estates. Consequently it follows that such springing estates as those mentioned are not now transferable under this section (38) of the Real Property Law. In this aspect a resulting estate is not a precedent estate to support a statutory "remainder." The distinction just mentioned is important, because, if it is accurate, a "springing devise" or a springing use might not now pass under a limitation of a "remainder," although they are both "future estates.'

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That the term remainder" under the statute is much wider than at common law is not now to be doubted;60 and it is to be observed that Chancellor Kent states that the statutory remainder" includes all former springing uses as well as shifting uses.61 But if he is accurate in this conclusion, the term "remainder" is thus made coextensive with the contrasted term "future estate," and then the construction becomes destructive of the statement of the statute, that a statutory remainder must be dependent on a precedent estate, for a springing use is not dependent on a precedent estate, and never was. That the courts still understand that a "remainder" must, since the Revised Statutes, be dependent on a precedent estate is obvious from several cases.62 In Schettler v.

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Smith it was held that where the limitation of a particular estate. fails the remainder also fails. So an estate at will has been said, by a judicial writer very familiar with both the common law and the Revised Statutes, to be still an estate of too frail a nature to uphold an estate in remainder.64 If this last mentioned rule of the common law remain in force since the Revised Statutes, which is very doubt

59 Cf. Pond v. Bergh, 10 Paige at p. 156. And see below, pp. 317, 351. 60 Hawley v. James, 5 Paige, 318, at p. 466; Pond v. Bergh, 10 id. 140, 156; Beardsley v. Hotchkiss, 96 N. Y. at p. 213.

61 4 Comm. 272.

62 Dana v. Murray, 122 N. Y. 604,

616, 617; Harty v. Doyle, 49 Hun, 410, 413; Matter of Runcie, 36 Misc. Rep. 607.

63 41 N. Y. 328, 347; but see under $ 42, infra, on this point, Cochrane v. Schell, 140 N. Y. at p. 526.

64 Willard, Real Prop. 158.

ful, it must be due to some such distinction as that just pointed out in reference to springing limitations. It seems to the writer that since the abolition of tenure any sort of particular estate is sufficient, if valid, to support a remainder over.

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Remainders under this Section. At common law the term “remainder" about the time of the enactment of the Revised Statutes, began to have a wider meaning than formerly, and was sometimes used to denote any subsequent interest in lands.65 But the term never was employed to denote an estate which was to spring into being in futuro without any preceding estate to support it. In such cases the ad interim estate was not created,66 but resulted, or, in other words, may be said to have depended on the executory or future estate. It seems clear from the residue of the article of the Revised Statutes on Estates that the revisers intended to embrace in the term remainder," (1) Estates which regularly succeeded the expiration of some precedent estate created at the same time,68 and (2) estates which took effect in derogation of some precedent estate created at the same time, and that they intended former springing estates to be classed as "future estates" and not as "remainders." What Estates Remainders Include. The term "remainder," as employed in the above section, embraces both "contingent" estates and "vested" estates, if in some way dependent upon precedent estates created at the same time.70 By statute such estates by way of remainder are made descendible, devisable, and alienable,71 whether vested or contingent.72 As this section of the statute provides that certain estates pass under the name of "remainders," it is important for the practitioner to determine whether a quondam "springing use," or a "springing devise," would so pass, and the foregoing observations are offered with this view.

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Nature of Estate to Support a "Remainder." The nature of the precedent estate to support a remainder is not now confined as at com

65 Smith, Compend. Law Real & Pers. Prop. 231.

66 Fearne, Conting. Rem. 301, note, 505.

67 2 Black. Comm. 173; Cruise Dig., tit. 28, chap. 18, § 1; Cornish, Uses, 68 et seq.

681 R. S. 724, § 11; Real Prop. Law, art. 3, § 38.

61 R. S. 726, 8 27; The Real Prop. Law, art. 3, § 53; Beardsley v. Hotchkiss, 96 N. Y. at p. 213.

70 Dodge v. Stevens, 105 N. Y. at p. 588; Dana v. Murray, 122 N. Y. at p. 616; Scheuler v. Smith, 41 N. Y. at p. 347; Cochrane v. Schell, 140 N. Y. at p. 526.

71 59, infra, formerly 1 R. S. 725,

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72 Goebel v. Wolf, 113 N. Y. 405; et infra, § 40.

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mon law to an estate for years, for life, or in tail.73 A remainder may now depend on or be in derogation of even an estate in fee, which is expressly authorized to support a statutory remainder.74 The precedent estate, it is said, may be one to trustees and the remainder to cestui que trust, although strictly such a limitation is not of a remainder but of a fee upon a base fee, permissible under the fortieth section of this act.76 An estate at will has been said to be still of too frail a nature to support a remainder." But, as before stated, this opinion seems of very doubtful accuracy since the Revised Statutes. This former rule of the common law78 must be superseded, and by the provisions of the Revised Statutes, a remainder" can now subsist on any sort of particular estate; i. e., some former uses and executory devises even will be supported irrespective of the frailty of the precedent estate, if the limitation itself is not violative of the rule against perpetuities.79 Indeed, there can be no doubt that in a proper case a future estate with no prior estate to support it remains as valid as was a springing use or devise before the Revised Statutes.

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Cross-Remainders Limited after Estates not for Life. How far crossremainders, limited after precedent estates which are not estates for life, are permitted, will be considered under a subsequent section.80 Cross-Remainders Limited on Estates for Life to Tenants in Common. The Revised Statutes essentially altered the common law touching cross-remainders limited after life estates to tenants in common. By the old law, an estate devised to my sons A., B., C., D., and E., and their heirs, and if all, or any of them, die without issue male, then devise over to another, created estates tail with cross-remainders.8 Here estates tail were implied, because remainder after an indefi

73 Supra, pp. 27, 28, 29, 220. 74 1 R. S. 724, § 24; 1 R. S. 725, 27; Real Prop. Law, art. 3, §§ 50, 53.

75 Cass v. Cass, 15 App. Div. 235; In re L'Hommedieu, 138 Fed. Rep. 606, 610; Connolly v. Connolly, 122 App. Div. 492.

76 See below under §§ 86, 90, Real Prop. Law.

77 Willard, Real Prop. 158; cf. Rogers v. Eagle Fire Ins. Co. of N. Y., 9 Wend. 611, 625; Boom v. Castle, 61 Misc. Rep. 474.

78 2 Washburn, Real Prop. 231; 4

Kent Comm. 235; 2 Black. Comm. 166.

79 Jessup V. Pringle Memorial Home, 27 Misc. Rep. at p. 430; Adams v. Adams, 114 App. Div. 390, 395; Matter of Arensburg, 120 App. Div. 463, 464; Matter of Wilcox, 194 N. Y. 288. See remarks and citations under § 40, infra, on "Remainders Limited on Estates which never Arise."

80 Infra, Real Prop. Law, § 43. 81 See the authorities cited, Cruise Dig., tit. 28, chap. 15, §§ 30-33; Lott v. Wykoff, 2 N. Y. 355.

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