nite failure of issue was void,82 while a remainder after the Statute De Donis might be well limited after an estate tail.83 If at common law remainders in fee were limited after any number of successive life estates to persons in being, the remainder was well limited, for there could be no objection to any number of successive vested life estates.84 The remainder might be to a person not in being.85 The Revised Statutes, while permitting a remainder in fee to a person not in being, has provided that successive life estates shall be limited only to persons in being, and avoids those beyond two,87 so that cross-remainders beyond two life estates are now impracticable,88 estates tail being converted into fees simple.89

Cross-Remainders. Cross-remainders are a qualification of expectant estates. These remainders now usually follow particular estates limited to tenants in common. But a limitation may be of one lot to A. and another to B., and if either die without issue the survivor to take. Here A. and B. are not tenants in common but have cross-remainders. Between two persons cross-remainders present no difficulty under the existing law.90 When a similar limitation is made to more than two persons the result is more complex, for as each stock fails its share is directed to be equally divided among the other stocks.91 It will be remembered that in so far as cross-remainders are limited, after life estates, solely to persons in esse as tenants in common, they constitute no violation of the rule against perpetuity. The remainders are vested and any number of vested remainders do not offend that rule.92 But quite apart from the rule against perpetuities cross-remainders can, under the present law relating to estates, be limited only after life estates to persons in being at the date of the settlement, and when a cross-remainder is limited on more than two successive estates for

Rep. 4; Matter of Buchner, 60 Misc. Rep. 287; Schey v. Schey, 194 N. Y.. 368; cf. Chapl. Susp. Alien. §§ 348, 366.

89 See above, § 32, Real Prop. Law. 90 Purdy v. Hayt, 92 N. Y. at p. 454. 911 Prest. Est. 94 seq.

92 See under § 42, infra, and Purdy v. Hayt, 92 N. Y. at p. 451; Graham v. Graham, 49 Misc. Rep. 4; Schey v. Schey, 194 N. Y. 368 (a case of cross trusts).

life, all such other life estates are void and the remainder in fee vests in possession after the determination of the first two life

At common law cross-remainders would not be implied in deeds, but arose by express limitation only and were always associated with estates tail. This distinction no longer exists.94

Invalid Limitations of Cross-Remainders. Cross-remainders limited after life estates to more than two persons in being, offend the section regarding limitation of estates,95 and consequently accelerate the remainder in fee.96 Of course, where the remainder in fee is to persons not in esse it is contingent, and if limited after estates for more than two lives in being, it is void as a perpetuity.97

Construction. Ever since the Revised Statutes a devise will never be construed as executory when it may take effect as a remainder.99 So, where one takes title by remainder and also under a power of appointment the title by remainder is still superior to that under the power.

99

Changes Made by the Revised Statutes in the Law of Remainders. It must always be recalled in any effort to construe the Revised Statutes that the law of remainders belongs to the most ancient portion of the common law, and that the rules of law regulating remainders were well settled before the Statutes of Uses and Wills and the rise of the so-called rule against perpetuities. Mr. Challis (a miracle of the old learning, and probably never surpassed in his attainments, which were quite equal to Sugden, Lord St. Leonards” and superior in some respects to Coke's) stated in 1885 that to apply the rule against perpetuities to remainders "implied an anachronism which trenches on absurdity."1 And so thought Lord St. Leonards. The revisers of the Revised Statutes, who were singularly profound in the common law, were most familiar with this principle, and while in their general definitions, such as that in this section, they sometimes include other interests besides common law remainders under the statutory term "remainders," yet, in their particular rules regulating limitations of future estates it is obvious that they themselves had in mind most often the kinds of limitations and

93 Real Prop. Law, § 43, infra. 94 See § 240, Real Prop. Law. 95 Real Prop. Law, § 43, infra. 96 Purdy v. Hayt, 92 N. Y. 446, 455; Chapl. Susp. Alien., § 348. 97 § 42, infra.

98 Supra, p. 218, under § 36, Real Prop. Law.

99 Matter of Haggerty, 128 App. Div. 479; Garrett v. Duclos, 128 id. 508.

1 Challis R. P. 159.

estates which were called sometimes "common law remainders " and sometimes "legal limitations "2 in order to contradistinguish them. from uses and executory devises which took effect under the Statutes of Uses and Wills only.3

2 See text under 88 42 and 43, infra.

3 Purdy v. Hayt, 92 N. Y. at p. 45I.

§ 39. Definition of reversion. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of one or more particular estates granted or devised.

Formerly section 29, of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 29. Definition, reversion. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised.4

Section 29 was formerly Revised Statutes, 723, section 12:

§ 12. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised.5

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Comment on Section 39. The definition of the statute still conforms to the definition of a reversion by the common law. "Reverter and "reversion" are synonymous terms; but the word "reverter " is sometimes loosely used to denote what is properly termed "a possibility of reverter."6 The term reversion" is one of those which has undergone no change since the days of tenure. The term "reversion" under the Revised Statutes never included “ a possibility of reverter." With this definition of reversion the original revisers of the Revised Statutes finished their list of technical terms connected with legal estates.

"8

It will be observed that all these definitions of the Revised Statutes are confined to those terms which relate to the quantum of legal estates in lands, and that now, as formerly, “reversion" signifies the part of an estate, or the part of a fee simple retained, or that which is left in a grantor or in his heirs by operation of law, while the term “future estate " denotes the interest or estate created or limited by an act or acts of parties to some instrument of conveyance. Yet a reversion may be an expectant estate, viewed from the point of view of possession.9

66

Some modern writers have classed both reversions" and " remainders" among incorporeal hereditaments,10 because they were conveyed by grant and not by livery, as were freehold estates in

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

5 Repealed, chap. 547, Laws of 1896. Challis, 63; supra, p. 181.

7 Co. Litt. 142b; 1 Prest. Est. 123. 8 Nicoll v. The N. Y. & Erie Ry. Co., 12 N. Y. at p. 133. Such was

the common law. Wharton, Conv. 96; Challis, 63.

9 Cf. Griffin v. Shepard, 124 N. Y. at p. 75; §§ 36, 37, Real Prop. Law; Wharton, Conv. 94.

10 Washb. Real Prop. 11; Williams, Real Prop. 241; Strahan, Prop. 147.

possession. But this classification is criticised,11 and it is said with some accuracy that the true test of corporeal hereditaments was not that they lay in livery. This basis of the classification is, however, very inconsequential now that all future interests in lands are, by statute, to be conveyed by deed, livery of seisin being abolished.12

Particular Estate. The existence of a particular estate or estates is as necessary to support a reversion as to support a remainder, and if the particular estate or estates cease, the reversion takes effect in possession.13 The particular estate may now be a term of years or a life estate; but when a term of years, the reversion is the estate itself subject to the term.14 Section 39 makes a slight change in the language of the former section.15

Reversion Vests, When. Under sections 84, 85 of the Decedent Estate Law16 the reversion vests at the death of an intestate, and is not suspended during the intervening life estate.17 A reversion is always an estate which is vested in interest, and it may be dealt with precisely as if it were vested in possession.18

11 Bingham, Descents, 7; Challis, 41, 60, 61; Jenks, Modern Land Law, 93.

121 R. S. 738, § 136; Real Prop. Law, art. 8, § 241.

13 Wharton, Conv. 96; cf. Kalish v. Kalish, 166 N. Y. 368, 379; Williams v. Jones, id. 522, 536, and see p. 257, infra.

14 Challis, 60, 61, 77.

15 See note appendix I.

16 Chap. 13, Consolidated Laws. 17 Barber v. Brundage, 50 App. Div. 123; affd., 169 N. Y. 368.

18 N. Y. Life Ins. & T. Co. v. Cary, 191 N. Y. 33, 40, 41.