in tail, suffered a recovery under a covenant,90 that the recovery should be to the use of himself for life, and after his decease to the use of certain persons for twenty-four years, and thereafter to the use of the heirs male of the body of himself lawfully begotten, and of the heirs male of the body of such heirs male lawfully begotten, remainder over. At the time of the recovery, Henry Shelley (1st), the elder son of Edward, was dead, leaving a daughter Mary, and a son afterward Henry (2d) en ventre sa mère. Putting aside several nice practice questions under the old law (for Edward Shelley, the old tenant in tail, had himself died after judgment, but before execution91), the main question of law involved in the case was whether, as Edward Shelley had an estate of freehold, and by the same assurance an estate was limited to his heirs male, the heirs male took as purchasers. If so, his second surviving son, Richard Shelley, claimed the estate as a vested ren.ainder as against the posthumous son of his elder brother.92 On the other hand, counsel for Henry Shelley (2d) claimed that, as a proposition of law, whenever an ancestor took an estate of freehold, and by the same instrument an estate is limited by way of remainder (mediately or immediately) to his heirs in fee or in tail, the heirs take nothing as the words are words of limitation and not of purchase. The court so held, and Henry Shelley (2d's) right to enter was, therefore, held good, he being both heir general and heir male to his grandfather, Edward Shelley, who suffered the recovery.93 Former Application of the Rule in Shelley's Case. The application of the rule at common law required that the ancestor take an estate of freehold; that the subsequent limitation be to heirs general or special, and that both estates arise by the same instrument. But the interposition of one or more intermediate estates did not pre 90 The covenant controls the assurance made or affected by a recovery. 91 I know of no abridged statement of these practice questions equal to that by Reeves, Hist. Com. Law (Finlason's Edition), American Edition of 1880, vol. V, pp. 248, 250. 92 At common law, independently of Stat. 10 and 11 William III, chapter 16, a posthumous child could not take a remainder limited on the death of the father. See Revisers' note to 1 R. S. 725, § 31; Steadfast ex dem. Nicoll v. Nicoll, 3 Johns. Cas. 18. The Stat. 10 and 11 William III was repealed in 1788 in New York, and until the Revised Statutes there was no similar re-enactment; cf. Willard, Real Est. & Conv. 171, and see under $ 56, Real Prop. Law, infra. 93 See an elaborate précis of this celebrated case, Reeves, Com. Law, V. 248, 250. 94 Campbell v. Rawdon, 18 N. Y. 412, 420; Moore v. Littel, 41 id. 66, 71; Spader v. Powers, 56 Hun, 153; Strahan, Prop. 144. vent the application of the rule.95 The rule was also applied in the construction of equitable estates before the Revised Statutes,96 but not where the ancestor had an equitable estate and the remainder was a legal estate.97 The rule in Shelley's Case was applied in the construction of limitations of estates in New York prior to the Revised Statutes.98 The rule was, however, subject to certain restrictions it was held not to apply to executory marriage settle-ments,9 or to cases where the remainder was limited to 99 66 sons" or children of the person taking the precedent freehold,1 or when limited to the "issue" of such person,2 or to "their male heirs that they now have or may hereafter have." 3 Reasons for the Rule in Shelley's Case. The reasons assigned for the foundation of the rule in Shelley's Case are various: (1) That it prevented heirs from taking as purchasers and thus preserved the rights of the feudal superiors over successions to estates; (2) that it prevented an abeyance of the seisin; (3) the interest of the heirs themselves, as otherwise the ancestor might bar their contingent remainder to their prejudice, for if it was barred they could not claim the estate. But the real reason for the rule is conjectural. Mr. Tudor, following Mr. Butler, states that the rule itself was not even adjudicated in Shelley's Case. But Fearne, Preston, and Challis state that this case is an express authority for the rule, and 95 Challis, 133, 134, and cases there cited. 96 See below under article 4 of Real Prop. Law. Cf. Matter of Wilcox, 194 N. Y. 288, 305. 97 Striker v. Mott, 28 N. Y. 82, 91; Smith v. Scholtz, 68 id. 41, 61; Seaman v. Harvey, 16 Hun, 71; Brown v. Wadsworth, 32 App. Div. 423. 98 Seaman v. Harvey, 16 Hun, 71, 74; Brant v. Gelston, 2 Johns. Cas. 384; Schoonmaker v. Sheely, 3 Den. 485, affg. 3 Hill, 165, and cases supra in New York. 99 Brown v. Wadsworth, 32 App. Div. 423, 429; revd., 168 N. Y. 225. 1 Matters of Sanders, 4 Paige, 293, 296; Rogers v. Rogers, 3 Wend. 503; Chrystie v. Phyfe, 19 N. Y. 344; Barlow v. Barlow, 2 id. 386. 2 Cushney v. Henry, 4 Paige, 345; cf. Kingsland v. Rapelye, 3 Edw. Ch. 1; Smith, Exec. Int. 248, chap. XIII; 3 Conklin v. Conklin, 3 Sandf. Ch. 64. 4 Revisers' note to I R. S. 725, 28; Chrystie v. Mackaness, 19 N. Y. 344, 353; 39 American Law Review, 453. 5 Fearne, Conting. Rem. 84, citing authorities. 6 Challis, 135; Tudor, Lead. Cas. Real Prop. 599; Daniel v. Whartenby, 17 Wall. 639, 642; Strahan, Prop. 143. 7 Tudor, Lead. Cas. Real Prop. 599; Butler, note on Fearne, Conting. Rem. 28; Hargrave, Law Tracts, "Observations on the Rule." 8 Fearne, Conting. Rem. 181, 182; 1 Prest. Est. 347; Challis, 132; Daniel v. Whartenby, 17 Wall. 642. they are undoubtedly in the right. In the great case of Perrin v. Blake, Mr. Justice Blackstone discussed the reasons for the rule and its application to devises. 10 Abolition of the Rule in New York. The revisers of the statutes of New York, deeming the rule not to be well founded or of universal application, determined to abolish it as artificial and unnecessary. Consequently, in the section above, they precisly reversed the rule in Shelley's Case as a rule of future construction.11 After January 1, 1830, in this State; a limitation of a life estate to one, remainder to his heirs (or to the "heirs of his body" or "issue"), gave the ancestor a life estate and the heirs presumptive a vested remainder.12 The words have now become words of purchase, no longer words of limitation; although at common law a feoffment to the use of feoffor for forty years, remainder to A. in tail, remainder to the right heirs of feoffor, was void as a remainder, as the feoffor had the reversion in him.13 Devise to A. and His Issue. In a devise to "A." and his issue, "A." takes a fee: the words are words of limitation and not of purchase.14 9 Hargrave, Collect. Juridica and Law Tracts, No. X, 487. 10 Revisers' note to this section, Appendix III, infra; Lytle v. Beveridge, 58 N. Y. 592, 601; Tayloe v. Gould, 10 Barb. 388, 395. 11 Brown v. Lyon, 6 N. Y. 412; Barker v. Cary, 11 id. 397, 401; Campbell v. Rawdon, 18 id. 412, 417; Moak v. Moak, 8 App. Div. 197; Surdam v. Cornell, 116 N. Y. 305, 309. 12 Moore v. Littel, 41 N. Y. 66; Webb v. Sweet, 187 id. 172. See Moore v. Littel discussed under § 40, Real Prop. Law, supra, pp. 242, 247. 13 Co. Litt. 22b and Hargrave's note, 134; 3 Davidson, Conveyancing, 267. 14 Hilliker v. Bast, 64 App. Div. 552; cf. Matter of Gordon, 82 id. 439; Webb v. Sweet, 187 N. Y. 172. § 55. When remainder not limited on contingency defeating precedent estate takes effect. When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect, only on the death of the first taker, or the expiration by lapse of time of such term of years. Formerly section 45, Real Property Law of 1896, chapter XLVI, General Laws: § 45. When remainder not limited on contingency defeating precedent estate, takes effect. When a remainder on an estate for life or for years is not limited on a contingency defeating or avoiding such precedent estate, it shall be construed as intended to take effect, only on the death of the first taker, or the expiration by lapse of time of such term of years.15 Section 45 was formerly 1 Revised Statutes, 725, section 29: 29. When a remainder on an estate for life, or for years, shall not be limited, on a contingency defeating or avoiding such precedent estate, it shall be construed as intending to take effect, only on the death of the first taker, or the expiration, by lapse of time, of such term of years.16 Comment. This section is one of a series regulating limitations of the statutory "remainders." It is intended to provide that a limitation, which would formerly have been by the common law a remainder, and not a shifting use or devise,17 continues to take effect on the regular expiration of the precedent estate; whereas conditional limitations take effect in derogation of the precedent estate. This is a mere rule of construction stated out of superabundant caution. A pure or common-law remainder always took effect, by the rules of the common law, after the natural expiration of the precedent estate.18 The contingency of the remainder at first was rarely such as affected the expiration of the particular estate. It was otherwise with particular estates after the rise of shifting uses and devises they were then abridged by the insertion of conditions or by the happening of events. This section relates to the old common-law remainders, before they were affected by judicial. theories relating to shifting uses and executory interests. 15 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 16 Repealed, chap. 547, Laws 1896. 17 A statutory remainder is now composed of quondam common-law remainders and shifting uses and devises. See remarks under § 38, supra. 181 Prest. Est. 90; 4 Kent Comm. 249. Growth of Juridical Theory. It will be recalled that at common law, and in conveyances recognized by that law, a subsequent estate limited on a condition which was to defeat a preceding estate, was void. But after the Statutes of Uses and Wills a condition might be annexed to a preceding estate, and upon its breach or non-performance the estate might be devised or granted over to another, and limitations of this kind were called “conditional limitations." 20 The original revisers classified all future estates dependent on particular estates as "remainders," yet they preserved old rules in so far as they were applicable to the different elements of their compound. Hence the present section21 which applies to those limitations formerly denominated common-law remainders. Common-law Remainders. We have been at particular pains to point out in the course of the preceding pages, that the old law of remainders was largely settled before the days of Henry VIII and the passage of the Statutes of Uses and Wills. After that, new assurances arose, and the law relating to limitations contained in wills is generally known as "executory devises" and the law relating to uses operates under the Statute of Uses, is known as the law of uses while the interests created under that statute are known as "executory interests." 22 The distinctions just denoted are very important to bear in mind in any consideration of the reforms made by the Revised Statutes.23 19 See above, under § 53, and Gocdeve, Real Prop. 191. 20 See above, under § 53; Goodeve, Real Prop. 191; and Fearne, Conting. Rem. 272, 381, note. 21 Read in connection with this sec tion $$ 38, 53, Real Prop. Law, and the commentary thereon. 22 Supra, p. 30, Introduction; and p. 265, under § 42. 23 Supra, pp. 281, 289. |