§ 40. When future estates are vested; when contingent. A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain. Formerly section 30 of the Real Property Law of 1896, chapter XLVI, General Laws: § 30. When future estates are、 vested; when contingent. A future estate is either vested or contingent. It is vested, when there is a person in being, who would have an immediate right to the possession of the property, on the determination of all the intermediate or precedent estates. It is contingent while the person to whom or the event on which it is limited to take effect remains uncertain.19 Formerly Revised Statutes, 723, section 13: 13. Future estates are either vested or contingent. They are vested, when there is a person in being, who would have an immediate right to the possession of the lands, upon the ceasing of the intermediate or precedent estate. They are contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain.20 66 Comment. The definitions contained in this section are most commonly applied to the class of "future estates" which are called remainders" in this statute.21 Under a prior section we have considered at length the differences between "remainders" at common law and under the Revised Statutes.22 There is, however, nothing to prevent the application of the definition contained in this section to any other future interest in lands. 66 Object of this Section. The distinction between "vested" and contingent" rights, or estates, is of the first importance in the law of property. The revisers' probable purpose in defining "vested" and "contingent" had, no doubt, immediate reference to the subsequent section relating to the unlawful suspension of the power of alienation. At common law, a vested estate or interest imports a present interest or seisin, and these in turn, by the later common law after the Statutes Quia Emptores, conclusively imply the right and power to convey and alienate the interest or estate.23 19 Repealed by Real Prop. Law of 909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 20 Repealed, chap. 547, Laws of 1896. 21 § 28, supra. 22 § 8, supra. 23 Lawrence v. Bayard, 7 Paige, 75, 76; Vanderpoel v. Loew, 112 N. Y. 167, 186; Sir Edward Sugden in Cole v. Sewell, 4 Dr. & W. at p. 28; s. c., 2 H. L. Cas. 230, 231; Snedeker v. Congdon, 41 App. Div. 433. Contingent interests and estates were not assignable by the common law;24 but they might be passed by fine, operating by way of estoppel, so as to bind the interest which should afterward accrue.25 At common law a contingent remainder was not an estate, but only an interest or possibility.26 This distinction was, however, often lost sight of, and even the accurate Mr. Fearne terms a contingent remainder an estate at one time, and not at another.27 When contingent remainders became assignable, at law, under the Revised Statutes, they were properly called "estates." 28 The revisers do not, however, rely on that distinction, but point out “that an estate is inalienable when there are no persons in being by whom an absolute fee in possession can be conveyed.29 A limitation to a person not in being is always contingent.30 Vested and Contingent before the Revised Statutes. At common law, as Blackstone said, "vested remainders (or remainders executed, whereby a present interest passes to the party, though to be enjoyed in futuro) are where the estate is invariably fixed to remain to a determinate person, after the particular estate is spent. As if A. be tenant for twenty years, remainder to B. in fee; here B.'s is a vested remainder which nothing can defeat or set aside." 31 Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious or uncertain person, or upon a dubious and uncertain event; so that the particular estate may chance to be determined, and the remainder never take effect.32 66 Early Common Law. By the very early common or feudal law the distinctions between estates vested and contingent could hardly have existed.33 Before the Statutes of Uses and Wills, remainders were the only estates which took effect in futuro and the law of remainders was settled before those statutes. Remainders are said to have bee at first rarely limited on contingencies, as it was thought that a remainder must always vest immediately, or otherwise it might be void.34 Mr. Joshua Williams states that the first in32 2 Comm. 169. 24 Cruise Dig., tit. 16, chap. 8, § 22. 25 Cruise Dig., tit. 16, chap. 8, § 20. $2 Prest. Abst. Title, 107; Challis, 42, 58; 2 Washb. Real Prop. 237. 26 27 Fearne, Conting. Rem. 1, 285, 550. 28 1 R. S. 725, § 35; § 59, Real Prop. Law, and cases thereunder cited infra. 291 R. S. 723. $ 15. 30 See below, under § 42. 31 2 Comm. 168. 33 Maitland, 6 Law Quar. Rev. p. 23; Strahan, Prop. 175. 34 Supra, p. 26; Williams, Real Prop. 263, 264; Williams, "Essay on Settlements of Family Estates," I Jurid. Society Papers, 45; In re Ashforth (1905), L. R. 1 Ch. Div. at P. 543; sed cf. Maitland, 6 Law Quar. Rev. p. 23; 2 Pol. & Mait. Hist. Eng. Law, 22. stance of a contingent limitation of a remainder, which he found, occurs during the reign of Henry VI (A. D. 1422-1461).35 But later investigations disclose "contingent remainders" as early as the thirteenth century, or before the Statute De Donis.36 Be this as it may, ultimately contingent remainders became favorite limitations and were scientifically classified by Mr. Fearne and other writers on the common law of the eighteenth century. When the Distinction between "Vested" and "Contingent " Became Important. The distinction between estates vested and estates or interests contingent became most important in the law of England only after the rise of executory limitations by way of future uses and devises. It then had particular reference to the newly formulated rule against perpetuities, as contingent or executory interests were not originally alienable, and could not be barred or defeated like remainders, and, therefore, suspended the power of alienation to some extent. It will be recalled that prior to the Revised Statutes, the recognized distinctions between "vested" and "contingent served here precisely the same purpose as in England, as the law of real property of England was in this particular the law of New York. Had executory interests raised by way of use or devise been held by the judges to be destructible in the same way that contingent remainders were destructible, it is generally conceded that the so-called "rule against perpetuity" must have been. in some other form, and then the distinction between contingent interests and vested estates would have been of less consequence.37 The Revised Statutes. This section, inserted originally in the article on Estates in the Revised Statutes, has often occasioned a doubt, whether the revisers intended thereby to preserve the distinctions between vested and contingent remainders known to the common law, or to raise up a new one, in harmony with the revision. Several writers on the text of the Revised Statutes have been of the opinion that the language employed was intended to be only declaratory of pre-existing distinctions,38 which can only mean that remainders vested, or contingent, before the 35 Williams, Real Prop. Notes; cf. Digby, Hist. Real Prop., chap. 5, § 3; Maitland, Remainders after Conditional Fees, 6 Law Quar. Rev. 22; Strahan, Prop. 175. 36 Maitland, 6 Law Quar. Rev. 22; cf. In re Ashforth (1905), L. R. I Ch. Div. at p. 543. This last case shows little acquaintance with the Revised Statutes continued to be remainders vested or contingent after the statutes. The opinion thus paraphrased is not sound, and its truth was denied in the case of Moore v. Littel,39 where a remainder contingent by the common law was adjudged a vested remainder under the Revised Statutes. The integrity of this decision has been, however, questioned by several text-writers, 40 but as we shall attempt to show, without good reason, as it appears to many. In any application of the definition stated in this section the reader must remember that the term "remainder" in the Revised Statutes is equivalent to the words "estate by way of remainder." A remainder is now a "future estate," or an estate in expectancy," 42 although not all expectant estates are remainders.4 66 43 Classification of Estates. The distinction between estates vested and estates contingent is both a logical and a legal distinction, although some lawyers think that since the Revised Statutes the distinction is no longer necessary in application, and that the real distinction proper at the present time would be one contrasting "estates" with "possibilities." The statute, however, makes the distinction for us and we are hardly at liberty to substitute another for it. We are concerned with realities and not with ideals. Before attempting to apply the later adjudications on this section of the statute, let us glance briefly at the writings of the more celebrated jurists who have dealt with this subject. Of all of them Mr. Fearne is the most widely known. Mr. Fearne would, in his day, subdivide estates vested into (1) vested in possession or (2) vested in interest," and contrast both with estates contingent. Mr. Preston thought this classification not sufficiently refined or comprehensive, and added to it "estates executed" and estates executory." 45 It is, however, to be observed that Fearne, Blackstone, and Kent apply the distinction between vested and contingent mainly to the species of interests called "remainders" at common law,46 and that Mr. Preston's more minute distinctions include also estates raised 39 41 N. Y. 66. 40 2 Washb. Real Prop. (4th ed.) 229; Chapl. Susp. Alien., §§ 28-53; I Columbia Law Rev. 279. 41 1 R. S. 723, § 10; Real Prop. Law, § 37. 421 R. S. 723, §§ 9, 11; Real Prop. Law, 88 36, 38; Sheridan v. House, 4 Abb. Ct. App. Dec. 218, 226; Dodge v. Stevens, 105 N. Y. 585. 43 Supra, pp. 219, 221, 222. 44 Fearne, Conting. Rem. 1. 45 1 Prest. Est. 61, 65. 46 2 Black. Comm. 169; 4 Kent Comm. 202. by executory limitations, and not alone those created by legal limitations. As executory limitations, uses and devises, permitted estates to arise on a greater variety of contingencies than those permitted by the common law, Mr. Preston's classification is the more comprehensive. But, under the simpler forms employed in this State prior to 1830, it was thought by the revisers of 1828–1830 that the statutory classification of estates into "vested" and “contingent" was sufficiently comprehensive. Mr. Challis points out that executory interests are sometimes liable to be confused with contingent remainders, and it is no doubt the case that there are certain contingent interests and possibilities which are not embraced in the term "estates." 47 As this section of the Real Property Law refers to estates only,48 it can have no direct reference to interests which are not estates. Fearne's Classification, Having reference to the distinction already pointed out between common-law remainders and statutory remainders,49 let us consider briefly Mr. Fearne's celebrated classification, as it is still frequently referred to in the courts of New York, without always noticing certain distinctions which make it wholly or partly irrelevant at times to the existing law. At common law, one of the main uncertainties about estates limited by way of remainder was their liability to be defeated by the destruction or cessation of the particular estate supporting them before the time designated for the vesting of the remainder. If this happened, the remainder could, by the common law, never take effect.50 Now, this uncertainty entered largely into Mr. Fearne's classification of contingent remainders as may be seen by his initial definition. But the Revised Statutes wholly altered this rule of the common law.51 Having regard to the contingency of the duration of the particular estate, Mr. Fearne divided all contingent remainders at common law into four classes, which will, in view of the frequent reference still made to them by modern lawyers, be noticed with some detail, after the various other systems or principles of classification have been first mentioned. Preston's Classification. Mr. Preston made only three classes of contingent interests at common law: (I) Those limited to persons not in esse; (II) those limited to survivors of a class; (III) those 47 See below under § 59, Real Prop. Law. 48 § 40, supra. 49 Supra, § 38, p. 221. 50 Supra, p. 29. 51 1 R. S. 725, §§ 32, 34; §§ 47, 48, chap. 46 (Gen. Laws), The Real Prop. Law. |