§ 46. Contingent remainder on term of years. A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or on the termination thereof.

Formerly section 36, Real Property Law of 1896, chapter XLVI, General Laws:

§ 36. Contingent remainder on term of years. A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or on the termination thereof.23

Section 36 was formerly 1 Revised Statutes, 724, section 20:

20. A contingent remainder shall not be created on a term of years, unless the nature of the contingency on which it is limited, be such that the remainder must vest in interest, during the continuance of not more than two lives in being at the creation of such remainder, or upon the termination thereof.24

Comment. This section has reference to the fiftieth section of this act,25 which permits, contrary to the common law, a contingent remainder of freehold to be limited upon a term of years.26 An estate of freehold could not at common law be created to commence in futuro.27 As tenant for years had not a freehold estate, the effect of permitting a contingent freehold to be limited in remainder on a term of years would have been to put the feudal seisin in abeyance, where it would hang until the future solved the contingency and determined where it should vest.28 This was contrary to the principles of the old common law which abhorred a perpetuity. It was because of such rules as this that remainders were not subject to the newer rule against perpetuities.29 But a contingent remainder of freehold could be limited on an estate for life,30 as this did not interrupt the continuity of the seisin.31 At common law the seisin

23 Repealed by Real Property Law of 1909, 8460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 24 Repealed, chap. 547, Laws of 1896.

25 Infra; formerly R. S. 724,

§ 24.

26 Cf. supra. pp. 29, 220.

27 Supra, pp. 28, 221; Jackson ex dem., etc. v. Dunsbagh, 1 Johns. Cas. 91, 95; Jackson v. Delancey, 4 Cow.

28 Willard in his Treatise on Real Estate and Conveyancing, at p. 163, gives a wrong reason for this rule of the common law.

29 See pp. 263, 265, under § 42, supra.

30 Challis, 93; Fearne, Conting. Rem. 281; 2 Black. Comm. 171.

31 An estate for life was an estate of freehold; supra, pp. 152, 209.

never could be in abeyance; 32 consequently no estate of freehold could be limited to commence in futuro.33 This old rule of the common law the revisers of 1829 entirely abrogated, and permitted contingent estates of freehold to be limited to commence in futuro and on terms of years, livery of seisin being also abrogated.34 But, in fact, before the Revised Statutes, contingent remainders of freehold expectant on terms of years could be limited as a use or in a will,35 because then the legal estate resulted when not actually disposed of, or else was in feoffee to uses, and consequently the feudal seisin was not in abeyance. Thus, indirectly after the Statutes of Uses and Wills, a contingent freehold could be limited to take effect on the expiration of a term of years. But it will be recalled that all executory limitations of uses and all executory devises were subject to the former rule against perpetuities.36

Contingent Remainders. The revisers of the statutes intended to obliterate all distinctions between conveyances operating as uses or devises and conveyances good at common law.37 They also intended to subject the creation of all expectant estates to the revised rule against a perpetuity.38 This section of the statute has a relation to both of these projected reforms; but by its terms it expressly relates to contingent remainders only and not to vested remainders. Vested Remainders. At common law a vested remainder could be limited expectant on a term of years, or, to speak more precisely, there was no objection to a limitation of an estate to a person in esse subject to a term of years.39 An estate to A. for ten years, remainder to B., was really a conveyance of the whole fee to B., subject to A.'s term.40 If the term on the other hand was created before the reversioner parted with the residue of his fee, the act of transferring the reversion was not a transfer of a remainder, but an assignment or grant of a reversion. It was not a limitation of a remainder on

sections of the article relating to the creation and division of estates, Part II, R. S., chap. 1, tit. 2, art. I, Appendix III, infra.

38 Cf. Henderson v. Henderson, 46 Hun, 509; but observe that this decision was reversed, 113 N. Y. 1, and the statement in the text confirmed. 39 Burt. Real Prop., § 833.

40 Cf. Challis, 60, 61; Smith, Exec. Int., chap. 4, §§ 245-257.

a term of years.41 When a vested remainder was limited on a term of years, livery of seisin could be made to termor,42 although livery of seisin in its old sense 43 was inappropriate to the creation of an estate for years, and indeed, if made, it would at common law be prima facie a tortious feoffment.

Object of this Section. As the revisers distinctly permitted a contingent remainder of freehold (e. g., remainder to persons unborn) to be limited on a term of years, 44 by any conveyance, it was deemed necessary expressly to subject such a limitation to the rule against a perpetuity. An estate to A. for fifty years, if B. or C. (two living persons) shall so long live, and if not, then for the life of the survivor of them, remainder to the right heirs of D. (D. then being without heirs of her body), would be a valid limitation under this section. A remainder in fee may be limited on a term of years to persons not in being,45 provided it vests within the rule against perpetuities.46

Rule against Perpetuities. The rule against perpetuities has no necessary connection with any of the sections regulating limitations of remainders, unless such limitations suspend the power of alienation beyond the period prescribed in this article.47 The revisers intended to regulate the limitation of remainders, just as the common law regulated them, apart from the rule against perpetuities.48

41 To constitute a remainder the particular estate and the remainder must be limited at the same time. See 38, supra.

42 Litt. 8 60; 2 Black. Comm. 167. 43 In the old law seisin related solely to estates of freehold. Challis, 47; 2 Black. Comm. 314; Cruise Dig., tit. 1, § 22; id., tit. 8, chap. 1, §§ 10,

12.

44 § 50, infra; 1 R. S. 724, § 24; Butler v. Butler, 3 Barb. Ch. 304, 310. 45 47, Real Prop. Law, formerly 1 R. S. 724, § 21.

468 46, Real Prop. Law; Purdy v. Hayt, 92 N. Y. at p. 456.

47 Woodruff v. Cook, 61 N. Y. 638; Purdy v. Hayt, 92 N. Y. at pp. 451, 456; Dana v. Murray, 122 N. Y. at p. 618; Revisers' notes to Article on Estates, Appendix III; cf. Matter of Wiley, 188 N. Y. 579, 580; Matter of Wilcox, 194 N. Y. 291.

48 See under § 42, supra, p. 46, 281 seq.

§ 47. Estate for life as remainder on term of years. No estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such

estate.

Formerly section 37, Real Property Law of 1896, chapter XLVI, General Laws:

§ 37. Estate for life as remainder on term of years.-No estate for life shall be limited as a remainder on a term of years, except to a person in being at the creation of such estate.49

Section 37 was formerly 1 Revised Statutes, 724, section 21:

§ 21. No estate for life, shall be limited as a remainder on a term of years, except to a person in being, at the creation of such estate.50

Comment. This section amplifies the preceding section, and was intended to provide that in case the remainder limited on a term of years is contingent, because it is to persons not in esse, then such remainder must be limited in fee, and not for the life of any such person. This section does not preclude the limitation on a term of a remainder in fee to persons not in being when the remainder is created. Such freehold remainder must not, however, be a life estate, but a fee.

The peculiar nature of terms of years gives an ambiguous meaning to reversions and remainders expectant on terms of years. In so far as such a reversion or remainder does not give an immediate title to the actual or physical possession during the continuance of the term, it may be regarded as being in fact a reversion or a remainder, and in this sense such estates are commonly styled reversions or remainders. But as the existence of the term does not prevent the first vested estate of freehold from being an estate of freehold in possession, the reversion or remainder is then really one in possession subject to the outstanding term, unless the remainder in fee is to a person not in being.51

Rule against Perpetuities. The revisers of the Revised Statutes, in imitation of the common law, regulated remainders by a series of sections, quite apart from their great central section concerning perpetuities,52 which was, however, intended to govern all limitations of future estates, even including contingent remainders which could be no longer barred. But they went farther than this, and prohibited certain remainders from being limited at all. These regulating sections have no necessary connection with the section directed against perpetuities.53

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

50 Repealed, chap. 547, Laws of 1896.

51 Challis, 60, 61, 67.
52 § 42, supra.

53 See under preceding section.

HEIRS" AND

§ 48. Meaning of heirs and issue in certain remainders. Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words "heirs or "issue" shall be construed to mean heirs or issue living at the death of the person named as ancestor.

Formerly section 38, Real Property Law of 1896, chapter XLVI, General Laws:

§ 38. Meaning of heirs and issue in certain remainders. Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words "heirs " or "issue," shall be construed to mean heirs or issue, living at the death of the person named as ancestor.54

Section 38 was formerly 1 Revised Statutes, 724, section 22:

$ 22. Where a remainder shall be limited to take effect on the death of any person without heirs, or heirs of his body, or without issue, the words "heirs" or "issue," shall be construed to mean heirs or issue, living at the death of the person named as ancestor.55

Comment.

* * *

The original revisers in their note to this section say: With respect to estates tail by implication, the effect of this provision is already attained by those sections,56 but it is still necessary, as a distinct enactment, in order to embrace limitations of chattel interests, and those cases in which the remainder is limited on the death of a person to whom no estate is given." 57 In a note to sections 3 and 4, 1 Revised Statutes, 722, the original revisers had already explained the application of the principle, with reference to the decisions of our courts on the statutes of 1782 and 1786, converting entails into fees simple in this State.

Prior to such statutes converting estates tail into fees simple, a limitation in a will to A. and his heirs, and, if he die without issue (or without heirs, etc.), then to B., a collateral heir of the first devisee in fee, was generally held to give A. an estate tail. This estate tail the New York statutes regarding entails converted into a fee simple, with the effect of cutting off B.'s remainder in case A. died without issue. The courts of New York, after the statutes in question, endeavored to support B.'s remainder as an executory

54 Repealed by Real Property Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 55 Repealed, chap. 547, Laws of

561 R. S. 722, §§ 3, 4

57 Revisers' note to, § 22, 1 R. S. 724; Appendix III, infra.