estates which transgress the rule." 18 So if the settlement is by deed, unless the deed itself is void.19 Construction of Limitations Tending to a Perpetuity. To render limitations of future estates valid they must be so limited that they cannot contravene the rule against a perpetuity.20 It is not enough that the limitation may not violate the rule; it must be apparent that it cannot.21 The law regards possibilities, not probabilities.2 22 But where the construction is doubtful, that which makes for validity. will be accorded.23 A void limitation cannot be validated by acts of the parties: e. g., a refusal of a beneficiary to accept the benefits of a trust.24 18 Salmon v. Stuyvesant, 16 Wend. 321, 327; Kane v. Gott, 24 id. at p. 666; Woodruff v. Cook, 61 N. Y. 638; Tiers v. Tiers, 98 id. 568, 573; Henderson v. Henderson, 113 id. 1; Haynes v. Sherman, 117 id. 433, 437. The same principle is applicable to trust settlements if the scheme is susceptible of severance without violating the testator's intention. Dekay v. Irving, 5 Den. 646; Harrison v. Harrison, 36 N. Y. 543; Smith v. Edwards, 88 id. 92, 104; Kennedy v. Hoy, 105 id. 134; et vide Schermerhorn v. Negus, I Den. 448; Oxley v. Lane, 35 N. Y. 340; Van Horne v. Campbell, 100 id. 287, 294; Kalish v. Kalish, 166 id. 368; Matter of Murray, 75 App. Div. 246, 249; Matter of Trotter, 104 App. Div. 188; Mendell v. Levis, 40 Misc. Rep. 271, 273; Mansbach v. New, 58 App. Div. 191, 198; and, under article on Trusts, § 96.. 19 Darling v. Rogers, 22 Wend. 483; People v. Van Rensselaer, 9 N. Y. at p. 339; Curtis v. Leavitt, 15 id. at p. 124; Savage v. Burnham, 17 id. at p. 576. 20 Fowler v. Ingersoll, 127 N. Y. 472, 477; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 99; Stewart v. Woolley, 121 App. Div. 531, 535. 21 Purdy v. Hayt, 92 N. Y. 446, 457; cf. as to trusts, p. 461, infra, and Bird v. Pickford, 141 N. Y. 18, 20; Jesup v. Pringle Memorial Home, 27 Misc. Rep. 427, 434; Underwood v. Curtis, 127 N. Y. 523, 540; Haynes v. Sherman, 117 id. 433, 437; Frazer v. Hoguet, 65 App. Div. 192, 200; Hayden v. Sugden, 48 Misc. Rep. 108, 118; Matter of Perry, 48 Misc. Rep. 285, 301; Morton Trust Co. v. Sands, 122 App. Div. 691, 693. 22 Amory v. Lord, 9 N. Y. 403, 4!5; Schettler v. Smith, 41 id. 328; Dana v. Murray, 122 id. 604, 617; Strahan, Prop. 176; Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 99; Central Trust Co. v. Eggleston, 185 N. Y. 23, 31; Peoples' Trust Co. v. Flynn, 113 App. Div. 683; revd. on other points, 188 N. Y. 385; N. Y. Life Ins. & Trust So. v. Cary, 120 App. Div. 264, 268; Morton Trust Co. v. Sands, 122 App. Div. 691, 693. 23 Matteson v. Pulser, 56 App. Div. 91, 95, 173 N. Y. 404; Coon v. Coon, 38 Misc. Rep. 693; Matter of Conger, 81 App. Div. 493, 497; Mee v. Gordon, 104 App. Div. 520, 522; Matter of Keogh, 112 App. Div. 414; Hopkins v. Gent, 145 N. Y. 367; Toher v. Crounse, 57 Misc. Rep. 252, 260; Morton Trust Co. v. Sands, 195 N. Y. 28; cf. Matter of Wilcox, 194 N. Y. at pp. 293, 294. 24 Peoples' Trust Co. v. Flynn, 113 App. Div. 683, 188 N. Y. 385. Interests or Estates Subsequent to a Limitation Void as a Perpetuity. How far in this State interests or estates limited so as to take effect after other interests or estates are void when such more remote estates and interests may be alienated is an open question. At common law all executory interests, subsequent to an executory interest violating the rule against perpetuities, are void, even though standing alone they would not be void.25 It may be doubtful whether this is now the law in New York, as it depends on a more modern and different interpretation of the effect of the rule against perpetuities.26 Perpetuities. A perpetuity is an unlawful suspension of the power of alienation or one beyond the period allowed by law. This period is in respect of real estate fixed by this section of the statute, which also defines with great care what constitutes a suspension. of the power of alienation. In view of this, the rule in this State may, as before the Revised Statutes, continue to be called the rule against perpetuities. This rule is never applied when land is immediately alienable, for as Lord Blackburn intimated in Withaus v. Vane, as late as 1883, a power to alienate is inconsistent with the application of a rule directed against suspension of the power.26% 25 Strahan, Prop. 177. 26 Supra, p. 273; infra, p. 353; Kalish v. Kalish, 166 N. Y. 368, 379; Williams v. Jones, Id. 522, 537; Van Horne v. Campbell, 100 N. Y. at p. 294; sed cf. Simpson v. Trust Co., 59 Misc. Rep. 96, 99; Oxley v. Lane, 35 N. Y. at p. 349; Matter of Wiley, 188 N. Y. at p. 580; Matter of WilCox, 194 N. Y. 288. 261⁄2 Ram. on Wills, 4; cf. Matter of Wilcox, 194 N. Y. 288. § 43. Limitation of successive estates for life. Successive estates for life shall not be limited, except to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto shall be void, and on the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created. Formerly section 33, Real Property Law of 1896, chapter XLVI, General Laws: § 33. Limitation of successive estates for life. Successive estates for life shall not be limited, except to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and on the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created.27 Section 33 was formerly 1 Revised Statutes, 723, section 17: 17. Successive estates for life shall not be limited, unless to persons in being at the creation thereof; and where a remainder shall be limited on more than two successive estates for life, all the life estates subsequent to those of the two persons first entitled thereto, shall be void, and upon the death of those persons, the remainder shall take effect, in the same manner as if no other life estates had been created.28 Comment. This section is one of the first sections in the statute regulating remainders as well as life estates. It will be remembered that in the present law the term "remainder" is a much more comprehensive one than it was at common law, embracing, as it now does, many former uses and shifting devises.29 While the statutory definition of "remainder" is broader than the term as employed at common law, it is also inclusive of common-law remainders.30 When we leave the defining sections of the statute and pass on to what may be termed the regulating sections relative to remainders,31 we find evidence that the revisers had in contemplation most frequently only former common-law remainders, and that they well knew that the rule against perpetuities had at common law no possible connection with the so-called rule against perpe 27 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 28 Repealed, chap. 547, Laws of 1896. 29 See text under §§ 38, 42, supra, and per Chancellor Walworth in Hawley v. James, 5 Paige, at p. 466. 30 See § 38, supra. 31 See footnote at the head of this Article. tuities. There is no inconsistency about their course, for with a view to harmonize the new law of estates they regulated common-law remainders, leaving all other former limitations of future estates to the rule against perpetuities. The pro Section Applies to both Vested and Contingent Life Estates. vision, that successive estates for life shall not be limited except to persons in being, applies to both vested and contingent future estates; but not so the part of the section directing acceleration.33 This section, and, indeed, this entire article of the statute is concerned wholly with legal estates or those estates formerly cognizable in courts of law. That it has no application to equitable interests. for life is apparent, for any number of successive equitable interests for life may now be created, provided the legal estate of the trustee to support them is within the rule against perpetuities.34 37 Common Law and Law before the Revised Statutes. At common law any number of successive legal life estates might be limited to persons in essc.35 The only mode of limiting successive or future legal estates at common law, as it will be remembered, was by way of remainder.36 After the Statutes of Uses and Wills future estates could be limited by way of uses or by executory devises as well as by common-law remainders.3 A future estate for life could be limited at common law to an unborn person; but not another estate for life to the issue of such unborn persons in succession.38 If, however, a settlement was, before the Revised Statutes, made, not by means of a legal limitation, but by means of a use or an executory devise, then the rule was that such successive estates for life could be thus limited, provided that the power of alienation was not suspended by any limitations to persons not in esse, beyond lives in being and a term in gross of twenty-one years.39 Within that period, successive limitations of life estates to persons not in being could be freely effected by springing or shifting uses or executory devises. In other words, at common law, and before the 32 See under § 42, pp. 263, 281, 289, supra. 33 Purdy v. Hayt, 92 N. Y. at p. 451 34 See under § 96, infra, "Beneficiaries of a Trust," and Matter of Wilcox, 194 N. Y. 288, 305, 306. 35 Cruise Dig., tit. 32, chap. 24, 8; cf. Purdy v. Hayt, 92 N. Y. at P. 451; Jackson ex dem. Nicoll v. 36 Supra, p. 221. 37 Supra, pp. 29, 41, 42, 221. 38 Cruise Dig., tit. 32, chap. 24, 88 31-34; Challis, 90; 2 Black. Comm. 170. 39 Supra, p. 267. Revised Statutes, the so-called rule against perpetuities applied to uses and executory interests but not to remainders.40 41 Acceleration of Remainders. The part of the foregoing section relative to acceleration of remainders had reference exclusively to legal vested remainders, limited on life estates, then cognizable in courts of law.12 In analogy to the statutory rule reducing the period of suspension from any number of lives in being to two, the original revisers deemed it obviously proper to circumscribe all legal limitations of life estates, precedent to remainders in fee, to two successive life estates, and to cut off all other estates for life limited before the remainder which then vested. This was termed "accelerating the remainder." 43 The two life estates first successively limited are not destroyed by virtue of this section.44 But a vested remainder is executed in possession (immediately after the effluxion of the two life estates first limited) in favor of such ascertained persons as are then entitled to immediate possession.45 Remainders Limited on One or Two Life Estates not Accelerated. This section has no reference to limitations involving remainders limited on one or two successive life estates. By its terms it accelerates only those remainders limited on more than two successive life estates. But this section does apply to cross-remainders limited after more than two life estates.4 47 46 Successive Remainders to Persons in Being if Alternative. Whether the limitation of an estate to "A." for life, remainder to "B." for life, and if "B." die before "A." remainder to "C." for life, remainder to "D." in fee, is governed by this section, seems not fully determined.48 The remainder to C. is contingent and may never take effect in interest or possession; 49 it is, therefore, not accelerated 40 See the discussion on this point under 42, supra. 41 Purdy v. Hayt, 92 N. Y. 446; Dana v. Murray, 122 id. at p. 618; Matter of Moore, 152 id. 602; La Farge v. Brown, 31 App. Div. 542; cf. Woodruff v. Cook, 47 Barb. 304, 61 N. Y. 638; Matter of Wilcox, 194 N. Y. at pp. 305, 306. 42 Gilman v. Reddington, 24 N. Y. 9, 14; Matter of Conger, 81 App. Div. 493, 502. 43 Gott v. Cook, 7 Paige, 542. 44 Woodruff v. Cook, 61 N. Y. 638; s. c., 47 Barb. 304. 45 Purdy v. Hayt, 92 N. Y. at p. 452; Matter of Ryder, 41 App. Div. 247, 253; Matter of Eldredge, 29 Misc. Rep. 734; Matter of Conger, 81 App. Div. 493, 502; cf. as to trusts, Denison v. Denison, 103 App. Div. 523, 528. 46 Gott v. Cook, 7 Paige, 521, 542; Schettler v. Smith, 41 N. Y. 328, 34747 Real Prop. Law, § 38; supra, pp. 224, 225. 48 See under § 42, supra, pp. 293, 294. 49 Fearne, Conting. Rem. 7; cf. Guernsey v. Van Riper, 126 App. Div. 368. |