§ 50. Creation of future and contingent estates. Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee or other less estate may be limited on a fee, on a contingency which, if it should occur, must happen within the period prescribed in this article. Formerly section 40, Real Property Law of 1896, chapter XLVI, General Laws: § 40. Creation of future and contingent estates. Subject to the provisions of this article, a freehold estate as well as a chattel real may be created to commence at a future day; an estate for life may be created in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee or other less estate, may be limited on a fee, on a contingency which, if it should occur, must happen within the period prescribed in this article.92 Formerly Revised Statutes, 724, section 24: 8 24. Subject to the rules established in the preceding sections of this Article, a freehold estate, as well as a chattel real, may be created, to commence at a future day; an estate for life may be created, in a term of years, and a remainder limited thereon; a remainder of a freehold or chattel real, either contingent or vested, may be created expectant on the determination of a term of years; and a fee may be limited on a fee, upon a contingency, which, if it should occur, must happen within the period prescribed in this Article 93 Comment. This section of the statute is one of the most important of the article on the "Creation and Division of Estates." It is, in connection with the section relating to perpetuities, the keystone of the entire reform in the common law of land, contemplated by the Revised Statutes. Any sort of limitation of future estates, formerly valid under the Statute of Uses or the Statute of Wills, was to be valid at law thereafter, provided it did not contravene the newly revised rule against perpetuities. Remainders were 95 as at common law separately treated in the Revised Statutes. But con94 Now 842, supra. 92 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, 460. 93 Repealed, chap. 547, Laws of 95 See 88 43, 44, 45, 46 and 47, supra. tingent remainders were made subject to the rule against perpetuities, the power to bar them having been taken away. Object of this Section. The object of this section is apparent. It was to abolish the distinction between estates good at law and those good under the Statutes of Uses and Wills, and to make all good at law. At common law, owing to the necessity of an immediate livery of seisin, freehold estates could not be created to commence in possession at a future day except by way of remainder.9 Otherwise the seisin would have been placed in abeyance, which the common law forbade.9 In more modern times the rule was, however, in effect modified, since an estate in futuro might be created by devise or by any conveyance operating under the Statute of Uses.98 The revisers' plan was to validate estates created by any type of conveyance, provided only that the estate vested within the time. allowed for the vesting of contingent or future estates.99 97 Abeyance of the Seisin. Abeyance of the seisin by act of the parties was not tolerated by the common law,1 and to a certain extent this operated as a rule against perpetuities. Blackstone's statement, that a fee might be in abeyance by act of the parties,2 has been, even lately, criticised,3 and it is still sometimes said in this State that a fee may not now be in abeyance.* Terms of Years. A lease for years (which is the chattel real referred to in this section) could at common law be created to commence in futuro, although a lease for life which was a freehold estate could not commence in futuro without the intervention of a precedent estate. But an estate of freehold in a chattel real in esse could not begin in futuro without the intervention of a precedent estate. We have just stated, under section 49 of this act, and also under section 44,7 that originally it was held that termor could not limit an estate for life and a remainder over in a term of years, 96 Supra, pp. 28, 221. Supra, p. 28. 98 2 Black. Comm. 166; Jackson v. Dunsbagh, 1 Johns. Cas. 91, 95; Van Horne v. Campbell, 100 N. Y. at p. 292; and see Revisers' note to IR. S. 723, 10, Appendix III, infra; also pp. 42, 221, supra. 99 Supra, pp. 51, 214, 331. 1 Challis, 77, 78; 1 Prest. Est. 216; supra, pp. 28, 220. 22 Black. Comm. 107. 3 Van Nostrand v. Marvin, 16 App. Div. 28, 32. 4 Wood v. Taylor, 9 Misc. Rep. 640; Heeney v. Brooklyn Benevolent Society, 33 Barb. 360; cf. supra, under § 42, Real Prop. Law. 52 Black. Comm. 143; Young v. Dake, 5 N. Y. 463; Taggard v. Roosevelt, 2 E. D. Smith, 100; supra, P. 28. 61 Prest. Est. 217; and see under § 60, Real Prop. Law, infra. 7 Real Prop. Law, § 44. 8 and that this was soon changed by permitting executory bequests and trusts of terms. In respect of terms of years, the object of this section was to permit directly that which could be done indirectly before the Revised Statutes. Contingent Remainder May Be now Limited on a Term of Years. Under this section a contingent remainder may be now limited on a term of years, although a contingent remainder of freehold could not, at common law, be created expectant on a term of years. A vested remainder of freehold expectant on a term of years is ambiguous, for such a remainder may be the estate itself subject to the term.10 Yet it is very apparent what is meant by limiting a vested remainder on a term of years, as it has become customary to regard the reversion as a remainder expectant on a term on account of the postponement of physical possession.11 Fee May be Mounted on a Fee. At common law a fee could not be mounted on a fee, as it was said; 12 that is, when a grantor had once disposed of a fee simple the nature of the estate granted precluded any further limitation of the fee.13 The grantor had, in legal theory, disposed of all that he possessed, and, therefore, could dispose of nothing more. But in equity the rule was otherwise,14 and, after the Statute of Uses had fastened the nature of the former use to the legal possession or title, a fee might be mounted on a fee by the contrivance of uses,15 and, after the Statute of Wills, by executory devises,16 always provided these executory limitations were within the rule against a perpetuity.17 Whenever an ulterior limitation over in fee is to take effect upon a contingency, such as may not happen in the life of a living grantee, the precedent estate will generally be found to be a base. fee and the ulterior limitation a substituted fee and not a commonlaw remainder. This section now tolerates in practice such limitations.18 There is to be found in the more modern books in this Horne v. Campbell, 100 N. Y. at p. 291; Rogers v. Eagle Fire Co. of New York, 9 Wend. at p. 615 seq. 15 Van Horne v. Campbell, 100 N. Y. pp. 292, 293, et supra, p. 42. 16 Van Horne v. Campbell, 100 N. Y. pp. 292, 293, et supra, p. 43. 17 See under § 42, supra, p. 271. 18 Lyons v. Ostrander, 167 N. Y. 135; Stokes v. Hyde, 14 App. Div. 530, 535. " State a very loose and objectionable use of the term "remainder even when the limitation is really one of a fee upon a fee. In common with all abuses of technical precision the logical results of such confusion are not satisfactory. The object of this section was to abrogate the fundamental difference between conveyances bad at common law, but good under the Statutes of Uses and Wills; and to permit a fee to be mounted on a fee 19 by deed or "grant," which took the place of the former deeds of bargain and sale and of a feoffment with livery of seisin as a legal conveyance. In this way a limitation could be directly made by deed, whereas it must formerly have been made as a use or devise in order to be valid. But the limitation of a fee upon a fee must now conform to the rule directed against perpetuities.20 Rule against Perpetuities. It will be found that the revised rule against perpetuities, as now stated in section 42 of this act, determines the validity of most of the new limitations permitted by this section of the statute. As stated above, a limitation of a freehold estate to commence in futuro placed the seisin in abeyance and was invalid by the common law, as were all future estates except those created by way of remainder.21 This rule of the feudal law about abeyance of seisin, the revisers abolished by this section which allowed freehold estates to commence in futuro; but the revisers made every future estate void in its creation which suspended the absolute power of alienation beyond two lives in being, and an actual minority in addition in a certain event.22 We have also seen that long terms of years can now be created by law and estates limited over out of the term, which estates are precisely similar in quantity to estates carved out of a fee.23 Thus a freehold estate may be limited in a term of years or chattel real in esse and under this section it may now begin in futuro.24 But it is very clear that a future estate in a term of years must not contravene the 19 Sherman v. Sherman, 3 Barb. 385, 387; Mott v. Ackerman, 92 N. Y. at p. 549; Matter of Dodge, 40 Hun, at p. 449; Matter of McCaffrey, 50 id. at p. 374; Matter of Moore, 152 N. Y. 602; Chapman v. Moulton, 8 App. Div. 64; Matter of Martens, 16 Misc. Rep. 245; Matter of Cramer, 170 N. Y. 271; Van Horne v. Campbell, 100 id. at p. 292; Williams v. Jones, 166 id. pp. 538, 539; Rudd v. Cornell, 58 App. Div. 207, 216. So after a fee to trustees, Stevenson v. Lesley, 70 N. Y. 512; Losey v. Stanley, 147 id. 560; Van Nostrand v. Marvin, 16 App. Div. 28; Stokes v. Hyde, 14 id. 530, 535; cf. Amory v. Lord, 9 N. Y. 403, 413. 20 Mott v. Ackerman, 92 N. Y. at P. 549; 42, Real Prop. Law. 21 Supra, pp. 28, 221, 330. rule against perpetuities stated in section 42, and if it does it is void. Contingent remainders are by this section permitted to be created expectant on a term of years which the common law did not permit. It is also very clear that all limitations of contingent remainders are subject to the rule against perpetuities, now stated in section 42 of this act. Such has always been the law when the tenant of the immediate freehold is deprived of the power to bar them, as is the case under this statute.25 That any such remainders were ever intended to be void under this statute because too remote, as lately intimated,26 is, we venture to think, not correct.27 The limitations of such remainders may, it is true, be prohibited by some section of this act regulating remainders, or it may be void because it unduly suspends alienation,28 but where a limitation of contingent remainders neither violates the rules of this article regulating the limitation of remainders nor suspends the power of alienation it is not void for remoteness under any rule announced in this statute, or intended so to be announced. If it is void, it is under some principle of law which gained recognition long subsequently to the reforms instituted by the Revised Statutes.2 25 § 57, infra. 26 Matter of Wilcox, 194 N. Y. 288. 27 Supra, pp. 276-289. 29 28 § 42, supra. 20 Supra, pp. 276, 333. |
