fee and not now an estate pur autre vie. in the cases that the estate of trustees is not one for two lives, without, however, declaring it to be a fee. If trustees of an express trust do take a fee, the fee is not a fee simple absolute, but, by virtue of the statute,92 a qualified fee.9

If the trustees' estate is not an estate pur autre vie, a limitation to trustees to apply, etc., during life of A., remainder to B. for life, remainder to B.'s heirs in fee, is apparently not prohibited by this section, although at common law a life estate after a fee would be void as repugnant to the fee.94 This rule was, however, abolished by the Revised Statutes.95

If trustees of the express trusts take a fee, a remainder in fee after devise on express trust to trustees is only "a fee mounted on a fee" and permissible by the statute,96 when the contingency upon which the second fee vests must happen if at all within the Rule.97

Such a limitation after an estate to trustees is now distinctly permitted by the statute.9 98 The argument that an estate of a trustee of an express trust is a qualified fee and not an estate pur cutre vie is, of course, founded on the exact language of the statute.99

5

Remainder in Terms of Years. This section1 also prohibits a remainder for life on an estate pur autre vie in a term of years. We have seen, under section 30 of this act, that long terms of years might be made in the revisers' day, and at the present time to the extent not actually prohibited by the Constitution.2 A term of years being only a chattel real, the interest of the termor still goes to his executors, or else passes with his personal estate; yet, as in long terms the interest of the termor may represent the entire value of the land, the legal title to the fee being worthless, limitations of executory interests in terms of years could not be left to the common law. They were accordingly regulated by the revisers of the statutes in 1829 consistently with the rules regulating estates of freehold. By the old common law a termor could assign his whole interest, but not create subsidiary executory interests out of the term. This was soon altered, and a term could be limited to A. for life, with a limitation over to any number of persons in esse for life. So it could be limited for persons in esse by way of trust, or for persons not in esse. But no limitations were allowable which would render the term inalienable beyond the old rule against a perpetuity; 10 viz., lives in being and twenty-one years in gross.11 Terms of years were not within the Statute De Donis, and could not be entailed. Interests in the nature of remainders in tail could be limited in a term only by assigning it to trustees, or donating it by will,12 but not by deed.13

98 Infra, § 101, Real Prop. Law; Stevenson v. Lesley, 70 N. Y. 512; Losey v. Stanley, 147 id. 560; cf. Amory v. Lord, 9 id. 403, 413.

99 1 R. S. 729, § 60; but see below under $100, Real Prop. Law.

44, supra.

2 The Constitution prohibits only demises or farm leases, reserving rent out of agricultural lands. Supra, pp. 82, 158, 160, 191.

3 § 33. supra, Real Prop. Law. 48 2712, Code Civ. Proc.

51 R. S. 724, § 18; § 44, supra;

§ 49, infra.

See § 49, infra.

7 Cruise Dig., tit. 38, chap. 19, § 1; Fearne, Conting. Rem. 402; Lewis, Perpetuities, 84; Smith, Pers. Prop. 186, 187.

8 Cruise Dig., tit. 8, chap. 2, § 21; id., tit. 38, chap. 19; Challis, 138, 139; Fearne, Conting. Rem. 402; Lewis, Perpetuities, 85 seq.; see below, under $49, Real Prop. Law.

9 Cruise Dig., tit. 8, chap. 2, § 20; id., tit. 38, chap. 19, § 6; Challis, 139. 19 Id., supra; Watk. Conv. 23.

11 Supra, § 42, p. 267.

12 Cruise Dig., tit. 8, chap. 2, § 20; cf. id., tit. 38, chap. 19, § 3.

13 Challis, 139.

Remainder Created by Assignment of Term. By the present section it is now provided that where a termor desires to limit an interest to one pur autre vie, the remainder of the term is indivisible; the whole residue must be limited or no part of it. How far this section prohibits actual assignments of the term, by way of a remainder for life, when such assignments are made for a valuable consideration, is a question not decided. But the prohibition of the statute seems explicit.

§ 45. When remainder to take effect if estate be for lives of more than two persons. When a remainder is created on any such life estate, and more than two persons are named as the persons during whose lives the life estate shall continue, the remainder shall take effect on the death of the two persons first named, as if no other lives had been introduced. Formerly section 35, Real Property Law of 1896, chapter XLVI, General Laws:

§ 35. When remainders to take effect if estate be for lives of more than two persons. When a remainder is created on any such life estate, and more than two persons are named as the persons during whose lives the life estate shall continue, the remainder shall take effect on the death of the two persons first named, as if no other lives had been introduced.14 Section 35 was formerly 1 Revised Statutes, 724, section 19:

$ 19. When a remainder shall be created upon any such life estate, and more than two persons shall be named, as the persons during whose lives the life estate shall continue, the remainder shall take effect upon the death of the two persons first named, in the same manner as if no other lives had been introduced.15

Remainders Limited on Joint Life Estates. This section is the second section of the statute regulating the limitation of remainders on estates pur autre vie. It is thought not to have any connection with a limitation of a remainder after an estate to any number of persons for their joint lives, but to apply to those cases only where the estate is given to one for the life or lives of persons unconnected with the legal estate,16 and such is, no doubt, an accurate construction of the section; for where a vested remainder in fee is limited. after an estate to A. for the joint lives of B., C., D., E., and F., the remainder takes effect in possession on the death of the shortest life of such persons in being.

Estates pur autre vie, how Limited at Common Law. At common law an estate pur autre vie might have been limited to endure (1) during the life of a single person; (2) during the joint lives of several persons; (3) during the life of the longest liver of several persons.17 By the rules of the common law, these lives might be those of any number of persons in esse.

Section 45, Real Property Law. The section under review is the complement of the preceding section relating to limitations on

14 Repealed by Real Property Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 15 Repealed, chap. 547, Laws of

16 Chapl. Susp. Alien., § 362.
17 Challis, 286.

estates pur autre vic. It provides for a case where a remainder is limited on an estate for the longest life of more than two persons, and accelerates the remainder.18 It will be observed that sections 44 and 45 do not vitiate the limitation referred to therein as a perpetuity, but simply accelerate the vesting of the remainders limited on more lives than two.

No Acceleration where a Limitation is Void as a Perpetuity. As remainders to persons not in being are contingent 19 and suspend the power of alienation,20 it is obvious that a remainder to persons not in esse limited on an estate for the life of the longest liver of three or more persons would fall under the condemnation of section 42 of this act, and not be saved by the provisions of this section, which provides for the acceleration of vested remainders only, and is not intended to save a limitation which suspends the power of alienation unduly.21 Such a contingent limitation is obnoxious to the rule against perpetuities and is not helped by this section.

Section has no Necessary Connection with the Rule against Perpetuities. This section, being one of those regulating remainders, has no necessary connection with the rule against perpetuities.22

18 Cf. Chapl. Susp. Alien., §§ 360366, to the contrary.

19 Supra, pp. 242, 250. 20 Supra, pp. 290, 295.

21 Cf. Purdy v. Hayt, 92 N. Y. 446, 451; Woodruff v. Cook, 47 Barb. 304, 61 N. Y. 638; Lord v. Lord, 44 Misc. Rep. 530, 535; Matter of Wilcox, 194

N. Y. 291, and see text under § 42 of this act.

22 See above, pp. 263, 280, 281; Revisers' Notes, Appendix III, infra, and Purdy v. Hayt, 92 N. Y. at p. 451; Dana v. Murray, 122 N. Y. at p. 618; cf. Matter of Wilcox, 194 N. Y. 291.