§ 53. Conditional limitations. A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation.

Formerly section 43, Real Property Law of 1896, chapter XLVI, General Laws:

§ 43. Conditional limitations. A remainder may be limited on a contingency, which, if it happens, will operate to abridge or determine the precedent estate; and every such remainder shall be a conditional limitation.59 Section 43 was formerly 1 Revised Statutes, 725, section 27:

§ 27. A remainder may be limited on a contingency, which, in case it should happen, will operate to abridge or determine the precedent estate; and every such remainder shall be construed a conditional limitation, and shall have the same effect as such a limitation would have by law.co

Comment. In the observations on a prior section of the "Real Property Law," the confused use of the term "conditional limitation" has been adverted to, and it has been pointed out that the revisers by this section expressly confine the future employment of the term "conditional limitation" to all such limitations of estates as serve at once to define the event or contingency abridging a precedent estate created at the same time, and substitute a posterior estate for the estate thus abridged or determined; €1 thereby intending to avoid confusion in the future.62 The definition contained in this section of the statute is not surplusage or declaratory. It settled a disputed usage. The former distinction between a condition subsequent and a conditional limitation was this: a grant to "A." for life, but if "B." should return from Rome, living "A.," then the grantor to re-enter, was a grant on a condition subsequent; but a grant to the use of "A.," until “B.” return from Rome, and then to "C." in fee, was a conditional limitation.63

On the correct distinction between a condition subsequent and a conditional limitation often depends the remedy of a particular case.64

59 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 60 Repealed, chap. 547, Laws of 1896.

61 § 31, p. 177, supra.

62 Cf. Challis, 199; Smith, Exec. Int., 148; Gray, Rest. note a to § 22.

63 Strahan, Prop. 187; Co. Litt. 203b, note; Williams v. Jones, 166 N. Y. 522, 537; Sugden, Introduc. Gilbert on Uses.

64 Brown v. Penoyer, 13 Abb N. C. 82; and see under § 31, p. 178, supra.

The Old Law. At common law a remainder could not be limited on a contingency which would abridge the precedent estate. It must await the regular and orderly termination of such precedent estate. Subsequently to the Statutes of Uses and Wills, a future estate might be limited to take effect in derogation of a precedent estate, created at the same time by means of a "shifting use," or by means of an "executory devise," and such limitations were called conditional limitations.66

67

Object of This Section. As the distinction between common-law remainders and shifting uses and executory devises has been annihilated by the Revised Statutes, it was deemed expedient to abrogate expressly the old rule relating to estates in remainder and to define "conditional limitations" in such a way as to make it relevant to all limitations which take effect in derogation of some precedent estate created at the same time.68 Thus a "conditional limitation" now involves all those limitations formerly termed "shifting uses" and "shifting devises," and also contingent remainders operating to abridge the precedent estate.69 It is evident, first, that all such "conditional limitations" are now within the reason of the rule against a perpetuity, quite as much as were their prototypes "shifting uses" and "devises." Second. It is also obvious that this section has reference to the sections of the statute defining remainders,70 and that the words "precedent estate" refer to an estate limited in the same instrument as the remainder, and not to an estate previously limited.

Application of This Section. This section does not allow a limitation over where grantor parts with the whole fee, and has only a bare possibility of reverter for breach of a condition subsequent. Otherwise estates might be limited over to a third person in violation of the principle, that no one but the grantor and his heirs may enforce conditions subsequent contained in grants in

See above, Introductory Chapter, p. 29; and the Revisers' note to 1 R. S. 725. § 27, Appendix III, infra; 1 Prest. Est. 91; Fearne, Conting. Rem. 270; Challis, 62; Cruise Dig., tit. 16, chap. 2, §§ 16, 17; Smith, Exec. Int., § 149a; Goodeve, Real Prop. 191; and supra, p. 298.

66 Revisers' note, id. supra; 1 Prest. Est. 92; Smith, Exec. Int., § 149a;

Fearne, Conting. Rem. 272, 381, note; supra, p. 178.

67 Supra, pp. 51, 222.

68 Crooke v. County of Kings, 97 N. Y. at p. 449; cf. Gray, Rest., § 22, note a; Smith, Exec. Int., § 148.

69 It is doubtful whether it includes any former remainders limited on contingencies. Cf. Challis, 62, 63. 70 Real Prop. Law, §§ 37, 38.

fee.71 Formerly a possibility of reverter on such limitations was not devisable,72 and it is not now otherwise under our Statute of Wills. It is apparent, therefore, that by "conditional limitations " the revisers in this section had mainly in view such limitations on condition as were theretofore usual in conveyances to uses, or in executory devises, and that were known sometimes as "conditions in deed" or in law, but more accurately as "conditional limitations."

1973

Contingencies. The contingencies upon which a conditional limitation may be based are then determined generally by the old law relating to shifting uses and devises, in so far as that law is not modified inferentially by particular provisions of the Revised Statutes. Contingencies as the basis of limitations were not much favored by the common law, although the legal historians do not agree about the relative antiquity of limitations on contingencies.75 It was, however, not until after the Statutes of Uses and Wills had made the doctrines of equity the basis of the law of legal estates that even contingent remainders flourished on a sound basis. Long subsequently the nature of contingencies, which might be the basis of legal limitations, was discussed by Mr. Fearne in a text-book which is one of the most brilliant specimens of legal logic known to our jurisprudence.76

But as "conditional limitations," referred to in this section, were former shifting uses and devises, and some contingent remainders," it is to the old law of "uses" and "devises" and possibly of some contingent remainders that we still must look for contingencies allowable in limitations of future estates. These contingencies are discussed only negatively by writers, as they are as wide as the entire range of possibilities in human affairs: (I) The contingencies always arise by the terms of the limitation. (II) It must

71 Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121, 131; Towle v. Remsen, 70 id. 303, 313; Countryman v. Deck, 13 Abb. N. C. 110, 112.

72 Challis, 153; Prest. Shep. Touch. 120; 2 Black. Comm. 156; supra, pp. 181, 221.

73 See pp. 181, 221, supra, under 831, Real Prop. Law, and under

38, Real Prop. Law; 2 Black.

Comm. 155; Challis, 199; Gray, Rest. on Alien, note a to § 22; Smith, Exec. Int., § 148.

74 See above, under 8 38, Real Prop. Law.

75 Williams, Real Prop. 263 seq.; but see supra. p. 231.

76 Chap. 2, Conting. Rem.
77 Cf. Challis, 58.

not be illegal acts or events. (III) It must not be too remote.78 Generally in present practice no other executory or conditional limitations are of more frequent occurrence than those which are limited in defeasance of a prior estate created at the same time.

Limitations over on Conditions Subsequent. It has been stated that no limitation over can be made where grantor has only a bare possibility of reverter.79 But on limitations of estates for life, or years, a condition may be annexed, and on the breach of it the estate may be limited over to a third person.So So a contingent remainder in fee may be now created on a prior remainder in fee to take effect in case the first taker die without issue, or before full age, and a fee may be created on a fee. All such limitations are now conditional limitations.81

Limitations on Void Estates or Estates Which Do Not Arise. As a rule estates otherwise well limited after void estates, or on estates which do not arise, are accelerated and do not fail.82

Conditions Involving Alienation. A limitation to a person absolutely, with an invalid restriction upon alienation, must be distinguished from a limitation until attempted alienation and then remainder over to a stranger. In the latter case, if the primary limitation is for life the limitation over is valid, and in this State a similar limitation of a fee may be now valid since the Revised Statutes.83

78 A conditional limitation, as it creates a future estate in derogation of a precedent estate, must comply with the rule against perpetuities. (§ 42, supra). It is otherwise with common-law conditions in conveyances, which do not provide for limitations over on breach of condition. Supra, pp. 186, 187.

79 Supra, p. 351, this section.

80 Goodeve, Real Prop. 191; Fearne, 272, 381, note.

23

81 §§ 42, 48, 50, Real Prop. Law; Van Horne v. Campbell, 100 N. Y. 292; Williams v. Jones, 166 id. 538, 539; Rudd v. Cornell, 58 App. Div. 207, 216; Matter of Wiley, III id. 590, 596; 188 N. Y. 579; Matter of Wilcox, 194 id. 288.

82 Supra, under § 40, p. 256, and § 58, p. 368, infra.

83 Supra, pp. 119, 340.

§ 54. When heirs of life tenant take as purchasers. Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are the heirs, or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them.

Formerly section 44, Real Property Law of 1896, chapter XLVI, General Laws:

§ 44. When heirs of life tenant take as purchasers. Where a remainder shall be limited to the heirs, or heirs of the body, of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are the heirs or heirs of the body, of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them.84 Section 44 was formerly 1 Revised Statutes, 725, section 28:

§ 28. Where a remainder shall be limited to the heirs, or heirs of the body of a person to whom a life estate, in the same premises, shall be given, the persons who, on the termination of the life estate, shall be the heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers, by virtue of the remainder so limited to them.85

Rule in Shelley's Case. This section abolished the rule of construction known as the rule in Shelley's Case.86 But as that rule is still applicable to devises and conveyances taking effect before January I, 1, 1830,87 some knowledge of the rule and its limitation is indispensable to conveyancers. Shelley's Casess is said to be more often talked of than read, and yet it probably occupies the most important place in the common law relative to conveyancing.

89

Very briefly stated, the main issue was whether Nicholas Wolfe, the tenant of Richard Shelley, had, under a demise, a better right to possession of the close than Henry Shelley (2d), for the case was one in ejectment. It appears that one Edward Shelley, the father of two sons, Henry Shelley (1st) and Richard Shelley, being tenant

84 Repealed by Real Prop. Law of 1909, 8460, art. 14, chap. 50, Consolidated Laws. See below, § 460.

85 Repealed, chap. 547, Laws 1896. 86 See Revisers' note to this section, 1 R. S. 725, § 28, Appendix III, infra; 32 App. Div. 423; Strahan, Prop. 143.

87 Edwards v. Bishop, 4 N. Y. 61; Brown v. Lyon, 6 id. 412, 420; Olm

stead v. Olmstead, 4 id. 56; Spader v. Powers, 56 Hun, 153; Brown v. Wadsworth, 32 App. Div. 423; revd., 168 N. Y. 325.

88 This case is properly entitled, "Wolfe ex dem. R. Shelley v. Henry Shelley (2d)," 1 Rep. 93; Serj. Moore's Rep. 136; Dyer, 373b, pl. 15; Tudor, Lead. Cas. Real Prop. 589. 89 Challis, 132.