§ 51. Future estates in the alternative. Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly.

Formerly section 41, Real Property Law of 1896, chapter XLVI, General Laws:

§ 41. Future estates in the alternative.— Two or more future estates may be created to take effect in the alternative, so that if the first in order fails to vest, the next in succession shall be substituted for it, and take effect accordingly.30

Section 41 was formerly 1 Revised Statutes, 724, section 25.

25. Two or more future estates, may also be created, to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly.31

Limitations with a Double Aspect. This section refers to limitations with a double aspect.32 Even by the common law several fees might be limited in the alternative by way of remainder upon the same particular estate upon such contingencies that not more than one of them could by possibility happen.33 From the revisers' note to the original section, citing Loddington v. Kime it is apparent that they intended to preserve the principle and to distinguish the instance from one where some interest vested, and was then displaced by reason of the happening of a contingency specified in the limitation.34 Such alternative limitations did not necessarily prolong the restraint upon alienation beyond the period allowed by the Revised Statutes.35

Limitations with a double aspect formerly related to estates in fee, and the rule as stated was applied to them at common law. But there is nothing to prevent the rule, as now stated in the above section, from being applied to limitations of future life estates, such as "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." 36

30 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 31 Repealed, chap. 547, Laws of 1896.

32 Called in Revisers' note to the substituted section "contingencies in a double aspect;" Higgins v. Downs, 101 App. Div. 119.

83 Challis, 61, citing Loddington v. Kime, 1 Salk. 224; 1 Ld. Raym. 203;

Fearne, Conting. Rem. 373; Hennessy v. Patterson, 85 N. Y. 91, 99; Merolla v. Lane, 122 App. Div. 535. 34 Real Prop. Law, § 50.

35 Hennessy v. Patterson, 85 N. Y. at p. 99; Guernsey v. Van Riper, 126 App. Div. 368; Matter of Gununge v. Murphy, 59 Misc. Rep. 381.

36 See under § 43, Real Prop. Law, supra, p. 319.

When Valid within the Rule against Perpetuities. Where, however, a limitation is made to take effect on two alternative events, one of which is too remote and the other valid as within the prescribed limits, although the gift is void so far as it depends on the remote event, it will be allowed to take effect on the happening of the alternative one.37

37 Schettler v. Smith, 41 N. Y. 328, 336, citing Lewis, Perp. 501, 502;

Matter of Wilcox, 125 App. Div. 152; revd., 194 N. Y. 288.

§ 52. Future estate valid though contingency improbable. A future estate, otherwise valid, shall not be void on the ground of the improbability of the contingency on which it is limited to take effect.

Formerly section 42, Real Property Law of 1896, chapter XLVI, General Laws:

§ 42. Future estate valid though contingency improbable.— A future estate, Otherwise valid, shall not be void on the ground of the improbability of the contingency on which it is limited to take effect.38

Formerly Revised Statutes, 724, section 26:

§ 26. No future estate, otherwise valid, shall be void on the ground of the probability or improbability of the contingency on which it is limited to take effect.39

Possibility upon a Possibility. The note of the revisers on the original of this section shows that they intended to abolish a very curious subtlety of the common law: "That the law will not contemplate a double possibility, or a possibility upon a possibility." 49 Challis states that this doctrine was applied with very little consistency, and that it was questioned by Lord Nottingham. The revisers termed it "a metaphysical distinction worthy only of the school-men with whom it originated." 42 In the foregoing section the doctrine itself was swept away, as the revisers deemed it to be still applicable to certain contingencies upon which remainders were then limited. That they were correct in this supposition is shown by the fact that is was distinctly held in England, in the year 1889, that Coke's alleged dictum was a positive rule of the common law. It is true that in a later case, which bears marks of a less profound knowledge of the law of real property, the point has been decided the other way by Farwell, J.45 But as this judge is con

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

39 Repealed, chap. 547, Laws of 1896.

40 Co. Litt. 25b; id., 184a; 1 Rep. 156a; 10 id. 50b.

41 Challis, 92, citing Duke of Norfolk's Case, 3 Ch. Cas. I, at p. 29.

42 Note to IR. S. 724, § 26; infra, Appendix III.

43 Citing Fearne, Conting. Rem. 378; 2 Rep. 51b; Cruise Dig., tit. 16,

chap. 2, § 4-8; Jackson ex dem. Nicoll v. Brown, 13 Wend. 437, 442.

44 Whitby v. Mitchell, 42 Ch. D. 494, 44 id. 85, 90. Professor Gray of Harvard, in a desire to subject contingent remainders to the modern rule against perpetuities, questioned the soundness of the maxim, confirmed by Whitby v. Mitchell. See Appendix VI, Fowler, Pers. Prop. Law of 1909.

45 In re Ashforth (1905), L. R. I Ch. D. at pp. 542, 543.

tradicted by Sugden,46 the most accomplished real property lawyer of his century, the opinion of Farwell, J., cannot be regarded as final, at least until confirmed by a higher court. The integrity of the maxim "that the law will not contemplate a double possibility, or a possibility upon a possibility," is intimately concerned with the old rules regulating the limitation of remainders before the rise of the rule against perpetuities.47

Object of This Section. The intention of the revisers of the Revised Statutes was to sweep away purely technical common-law rules, and to apply with some modifications the rule prevailing in equity, wherever possible. The comment of the revisers on this section is significant of their whole reform when they say: “If a remainder does not restrain the alienation of the estate beyond the period allowed by law, but if it take effect at all, must happen within the limits prescribed, of what consequence is it or can it be, whether the contingency on which it is limited be near or remote? probable or improbable?"

The profound knowledge of the law of real property, possessed by the revisers of 1830, made the tremendous reforms which they contemplated in the law of real property less dangerous to the public than they would have been in other hands. The time also was ripe in this State, as in practice the intricacies of the common law relating to real property had been little applied. There were then few great estates, no intricate settlements, entails had already been abolished, and long trusts and powers operative under the Statute of Uses were rarely limited either by deeds or wills. In practice, the older and simpler forms of the common law were preferred to the more intricate limitations operative only under the Statutes of Uses or Wills.48 This fact minimized the danger to property by reforms which when discussed also in England were rejected because of the greater intricacies of their practice.

Application of This Section to a Limitation of a Remainder to a Corporation to Be Formed. The favorite instance of an illegal possibility upon a possibility at common law was a remainder to a corporaton not in being at the time of the limitation.49 Yet, in equity, a devise to a charitable corporation to be formed was good.50 By virtue of 46 Introduction to Gilbert on Uses,

p. xl.

47 Fowler, Pers. Prop. Law of 1909, Appendix VI.

48 See Sugden, Introduction to Gilbert on Uses.

49 Fearne, 250; 2 Co. 51b, 10 id. 31b; Challis, 91; 1 Prest. Abst. 128; 2 Wooddeson, Law Lectures, 121.

50 Wilmot's Opinion, 16; Burrill v. Boardman, 43 N. Y. at p. 260.

54

this section of the Revised Statutes a devise to a corporation to be formed is now certainly good by way of remainder,51 as it was by way of executory devise before the Revised Statutes.52 It is, however, to be observed that the cases still make a distinction between a present devise to a corporation not yet formed and a devise to such a corporation to take effect in futuro.53 A present devise is still said to be void, whereas a devise to vest in futuro is valid.55 But, as a devise to a corporation not yet formed ought never to be construed as a present or vested devise,56 no matter what the form of the devise may be the distinction between a "future" and a present" devise does not seem very important, now that there may be a legal limitation to a corporation to be formed, always provided that the devise vest within the time prescribed by the rule against a perpetuity.57

Section 57 of This Act. It may be well that the professional reader should consider, in connection with the foregoing section (52) of this act, section 57, which also tolerates future estates limited on contingencies not permitted at the common law.58

51 Booth v. Baptist Church, 126 N. Y. at p. 237; Lougheed v. The D. B. Church, 129 id. at p. 215; Matter of Rounds, 25 Misc. Rep. 101, 107; Jesup v. Pringle Memorial Home, 27 id. 427; St. John v. Andrews Institute, 117 App. Div. 698, 715; modified, 191 N. Y. 254.

52 Inglis v. Sailors' Snug Harbour, 3 Pet. 99.

53 Ould v. Washington Hospital, 95 U. S. at p. 313; Brigham v. Peter Bent Brigham Hospital, 134 Fed. Rep. 513; St. John v. Andrews Institute, 117 App. Div. 698, 715, modified, 191 N. Y. 254; supra under § 42, Real Prop. Law, pp. 301, 302.

54 Campbell v. Rawdon, 18 N. Y. 412, 417; Booth v. Baptist Church, 126 id. 215; Lougheed v. The D. B. Church, 129 id. 211, 215; Leslie v.

Marshall, 31 Barb. 560; supra, p. 302, under $42, Real Prop. Law.

55 Real Prop. Law, § 42, supra, p. 302.

56 Shipman v. Rollins, 98 N. Y. 311, 328; Lougheed v. The D. B. Church, 129 id. 211, 216; St. John v. Andrews Institute, 117 App. Div. 698, 715; modified, 191 N. Y. 254.

57 People v. Simonson, 126 N. Y. at p. 307; Tilden v. Green, 130 id. at p. 47; Cruikshank v. Home for the Friendless, 113 id. 337, 350, 352; Matter of Rounds, 25 Misc. Rep. 101, 107; Jesup v. Pringle Memorial Home, 27 id. 427; Allen v. Stevens, 33 App. Div. 385; revd., 161 N. Y. 123; St. John v. Andrews Institute, 191 id. 254.

58 See below under 88 57, 149, Real Prop. Law.