Rent a "Tenement." So a rent was a tenement also, in the sense of being a subject of common-law tenure.11

41

Classification of Rents. Rents were the subject of an accurate classification: (I) Rent incident to tenure. (II) Rent which is not incident to tenure, but which is itself a tenement and capable of being the subject of estates limited by analogy to estates in lands. (III) Rent incident to reversions.

No Rents Incident to Tenure now. Since the extinction of old quit rents, there are no rents in this State incident to tenure. The last class, or rents incident to reversions, needs no explanation as such rents follow estates in lands.42

Rents Not Incident to Tenure. The second class of rents only need be alluded to. They include the older perpetual rents of the law of New York.43 Rents were at common law divided into 44 rents service, rents charge, and rents seck.45 After the Statute of Quia Emptores there could be no rent service reserved by a common person on a conveyance ir fee. But a rent charge might be reserved to him and his heirs on a grant or conveyance in fee, and this gave him a "fee simple" in the rent.47 Rent charges in fee simple were formerly very common in New York,48 and also in Liverpool,49 and Manchester, England. Such a rent could be entailed under the Statute De Donis.50 If a grantee of a rent in fee simple died without heirs it did not escheat, but the owner of the land held the land discharged of the rent.51

Freeholds in a Rent in Esse. At common law no limitation of an estate of freehold in a rent in esse could be limited so as to exist at intervals; it was otherwise at the creation of the rent.52 Nor could an estate of freehold in a rent in esse be limited to commence in futuro.53 A rent charge was subject to dower and curtesy,54 and

it was descendible to the heirs of the party to whom it was reserved.55

Perpetual Rents in New York. The nature of perpetual rents issuing out of estates in fee, and the constitutional limitation on demises of agricultural lands have been already considered.56

Explanation of Section. If we assume that a rent in esse is now the subject of limitation, the estates created therein, their duration, quantity, and quality, are made precisely analogous by the above section to future estates in lands. There may, therefore, be a fee simple estate in a rent; two successive life estates to persons in being with remainder over, and an estate pur autre vie with remainder over in fee 57 after the death of a cestui que vie; in short, such limitations of estates in the rent as there may be in land under this article of the "Real Property Law." 58 So a rent in esse may be limited on trusts for lives with remainder over in fee simple.

55 Van Rensselaer v. Read, 26 N. Y. at p. 564; Watk. Desc. 247; supra, at pp. 173, 180, under § 21, Real Prop. Law.

56 Supra, pp. 190-200. under § 31, Real Prop. Law.

57 Real Prop. Law, 88 44, 45, supra. 58 Art. 3.

§ 61. Accumulations. All directions for the accumulation of the rents and profits of real property, except such as are allowed by statute, shall be void. An accumulation of rents and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property, as follows:

I. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at or before the expiration of their minority.

2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted, by the provisions of this article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority.

3. If in either case, hereinbefore provided for, such direction be for a longer term than during the minority of the beneficiaries, it shall be void only as to the time beyond such minority.

Provided, that the income arising from any real property granted, conveyed, or devised in trust to any incorporated college or other incorporated literary institution for any of the purposes specified in section one hundred and fourteen of this chapter, or for the purpose of providing for the support of any teacher in a grammar school or institute, may be permitted to accumulate until the same shall amount to a sum sufficient, in the opinion of the regents of the university, to carry into effect any of the charitable uses and trusts mentioned either in section one hundred and fourteen of this chapter or in this paragraph of this section.

Provided, if any of the principal of any trust fund actually received by any incorporated college, or other incorporated literary institution, or by the corporation of any city or village, or by the commissioners of common schools of any town, or by the trustees of any school district, under any

grant, conveyance, or devise, for any of the purposes for which trusts are authorized under section one hundred and fourteen of this chapter, shall subsequently become diminished from any cause, such diminution may be made up by the accumulation of the interest or income of the principal of such trust fund, in accordance with the directions, if any contained in the grant, conveyance or devise of any such trust fund; and if no directions for that purpose are contained in such grant, conveyance or devise, then such diminution may be made up in whole or in part by such accumulation, in the discretion of the trustees of such trust fund; but in no case shall such accumulation be allowed to increase the trust fund, beyond the true amount or value thereof, actually received by the trustees, to be estimated after the deduction of all liens and incumbrances on such trust fund, and of all expenses incurred or paid by the trustees in the collection or obtaining the possession of the same.

Formerly section 51, Real Property Law of 1896, chapter XLVI, General Laws; and chapter 74, Laws of 1846, and chapter 432, Laws of 1855:

§ 51. Accumulations. All directions for the accumulation of the rents and profits of real property, except such as are allowed by statute, shall be void. An accumulation of rents and profits of real property, for the benefit of one or more persons, may be directed by any will or deed sufficient to pass real property as follows:

1. If such accumulation be directed to commence on the creation of the estate out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at or before the expiration of their minority.

2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it must commence within the time permitted, by the provisions of this Article, for the vesting of future estates, and during the minority of the beneficiaries, and shall terminate at or before the expiration of such minority.

3. If in either case such direction be for a longer term than during the minority of the beneficiaries it shall be void only as to the time beyond such minority,59

Section 51 was formerly 1 Revised Statutes, 726, sections 37 and 38:

$37. An accumulation of rents and profits of real estate, for the benefit of one or more persons, may be directed by any will or deed, sufficient to pass real estate, as follows:

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

1. If such accumulation be directed to commence on the creation of the estate, out of which the rents and profits are to arise, it must be made for the benefit of one or more minors then in being, and terminate at the expiration of their minority:

2. If such accumulation be directed to commence at any time subsequent to the creation of the estate out of which the rents and profits are to arise, it shall commence within the time in this Article permitted for the vesting of future estates and during the minority of the persons for whose benefit it is directed, and shall terminate at the expiration of such minority.co

§ 38. If, in either of the cases mentioned in the last section, the direction for such accumulation shall be for a longer term than during the minority of the persons intended to be benefited thereby, it shall be void as respects the time beyond such minority. And all directions for the accumulation of the rents and profits of real estate, except such as are herein allowed, shall be void.61

CHAP. 74.

AN ACT to amend the act, passed May, 1841, authorizing colleges and other incorporated literary institutions to hold real and personal estate in trust, so as to allow the same to accumulate for certain specific purposes.

Passed April 21, 1846. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. The income arising from any real or personal property granted or conveyed, devised or bequeathed in trust to any incorporated college or other incorporated literary institution, for any of the purposes specified in the "Act authorizing certain trusts," passed May 14th, 1840, or for the purpose of providing for the support of any teacher in a grammar school or institute, may be permitted to accumulate till the same shall amount to a sum sufficient in the opinion of the regents of the university, to carry into effect either of the purposes aforesaid, designated in said trust.62

CHAP. 432.

AN ACT in relation to the accumulation of the income of certain trust funds. Passed April 13, 1855; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

SECTION 1. If any of the principal of any trust fund actually received by any incorporated college, or other incorporated literary institution, or by the corporation of any city or village, or by the commissioners of common schools of any town, or by the trustees of any school district, under any grant, conveyance, devise or bequest, for any of the purposes for which

60 Repealed, chap. 547, Laws of 1896.

61 Repealed, chap. 547, Laws of 1896.

62 Repealed (part relating to real

property) by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, $ 460, and chap. 41 Consolidated Laws.