to dispose of the rents and profits of the estate, in whole or in part, in the interim before the expectant estate vests in interest or possession. Then this section applies, and undisposed of rents and profits go to the persons entitled to the next eventual estate.28 The persons who thus take are those entitled at the time the income accrues, although the estate may go eventually elsewhere.29

This section is also applied to personal property;30 and, in some instances, to trusts for so-called "annuitants." 31

Devise to Corporation to be Formed. Where there is a devise to a corporation to be formed (which is now a "valid limitation of an expectant estate "32), it seems the rents and profits in the interim, if undisposed of, do not presumptively belong to such corporation.33 146, 157, citing Kilpatrick v. Johnson, 15 N. Y. 322, 326, 327; Schettler v. Smith, 41 id. 328.

28 Delafield v. Shipman, 103 N. Y. 463, 469; Schermerhorn v. Cotting, 131 id. 48, 61; Tompkins v. Verplanck, 10 App. Div. 572, 579, 154 N. Y. 634; Hafner v. Hafner, 34 Misc. Rep. 65; Matter of Snyder, 35 id. 588; Tobin v. Graf, 39 id. 412; Matter of Bender, 44 Misc. Rep. 79; Central Trust Co. v. Egleston, 47 Misc. Rep. 475; Endress v. Willey, 52 Misc. Rep. 388, 122 App. Div. 110; Levi v. Scheel, 124 id. 613; Cochrane v. Schell, 140 N. Y. 516, 538; Garvey v. Union Trust Co., 29 App. Div. 513, 516; Smith v. Secor, 31 id. 103; Meldon v. Devlin, id. 146, 156; Matter of Viele, 35 id. 211, 213; Horsfield v. Black, 40 id. 264, 267; cf. United States Trust Co. v. Soher, 178 N. Y. 442, 449.

29 Meldon v. Devlin, 31 App. Div.

30 Craig v. Craig, 3 Barb. Ch. 76, 93; Robeson v. Robeson, 5 Lans. 160, 168; Garland v. Garland, 35 Misc. Rep. 147; Cook v. Lowry, 95 N. Y. 103, 108; Reeves v. Snook, 86 App. Div. 303. For present rule touching accumulations of personal property, see 16, Personal Prop. Law, and United States Trust Co. v. Soher, 178 N. Y. 442, 447.

31 Hafner v. Hafner, 34 Misc. Rep. 65, 69; Reeves v. Snook, 86 App. Div. 303.

32 See pp. 301, 302, 348, supra.

33 St. John v. Andrews Institute, 117 App. Div. 698, 721; modified, 191 N. Y. 254.

§ 64. When expectant estates are deemed created. Where an expectant estate is created by grant, the delivery of the grant, and where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate. Formerly section 54, Real Property Law of 1896, chapter XLVI, General

Laws:

$ 54. When expectant estates are deemed created. Where an expectant estate is created by grant, the delivery of the grant, and, where it is created by devise, the death of the testator, shall be deemed the time of the creation of the estate.34

Section 54 was formerly 1 Revised Statutes, 726, section 41:

$ 41. The delivery of the grant, where an expectant estate is created by grant; and where it is created by devise, the death of the testator, shall be Ideemed the time of the creation of the estate.35

Comment. This section is closely related to section 42,36 and to section 244 of this act. At common law a conveyance did not take effect from delivery of the deed, but from livery of seisin.37 Yet a feoffment without livery was not precisely void, but it created an estate at will only, determinable by the feoffor.38 Deeds of bargain and sale, without consideration, were ordinarily void as bargains and sales,39 yet might be good under certain circumstances as covenants to stand seised.40 Now the delivery of the deed, or death of testator, alone controls under this section the creation of a future estate limited by deed, or devise.11

The rules relating to delivery of deeds and the effect of such delivery in certain cases are collated under section 244 of this act, and need not be repeated.

The presumptions of law in the absence of specific proof of delivery are also alluded to under section 244 of this act.

Wills. At common law for some purposes a will spoke as from the death of testator, and for others as from the date of its execution.42 The Revised Statutes settled the law on this point so as to solve a vexing question.

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

35 Repealed, chap. 547, Laws of 1896.

36 Supra, p. 261; Everitt v. Everitt, 29 N. Y. 39, 71.

37 Challis, 83.

38 Co. Litt. 56b; 1 Prest. Shep. Touch.. tit. 203; Smith, Compend. Real & Pers. Prop. 517; sed cf. Gilbert, Uses & Trusts, 251.

39 Schott v. Burton, 13 Barb. 173; Corwin v. Corwin, 6 N. Y. 342; Wood v. Chapin, 13 id. 509, 517.

40 Sir E. Sugden, note to p. 251 of Gilbert, Uses & Trusts.

41 Lang v. Ropke, 5 Sandf. 363, 369; Sherman v. Sherman, 3 Barb. 385, 387; Eels v. Lynch, 8 Bosw. 465, 475; Coston v. Coston, 118 App. Div. I, 3.

42 Jarman, Wills, chap. XI.

§ 65. Estates in severalty, joint tenancy and in common. Estates, in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which, respectively, shall continue to be such as are nov established by law, except so far as the same may be modified by the provisions of this chapter.

Formerly section 55, Real Property Law of 1896, chapter XLVI, General Laws:

§ 55. Estates in severalty, joint tenancy and in common.- Estates in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter.43

Section 55 was formerly 1 Revised Statutes, 726, section 43:

§ 43. Estates, in respect to the number and connexion of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which respectively, shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter 44

Estates in Possession as at Common Law. In these pages, and particularly under section 30 of this article, the term "estate estate" was considered at some length,45 and it was intimated that the common law, and not the statute law, still regulated in New York the quantity and the quality of estate in possession. That proposition is confirmed by this section.

Future Estates. The common law, regulating the limitation of future estates or estates not in possession, has been extensively remodeled by the original of this article,47 but the incidents of estates in possession remain as before the statute.

What is an es

Estates in Severalty, Joint Tenancy, and in Common. tate in severalty, or in joint tenancy, or in common, is defined by the common law. These are essentially terms of the old law. Blackstone states: "He that holds lands or tenements in severalty, is he that holds in his own right only." 48 Joint tenants hold not in

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

44 Repealed, chap. 547, Laws of 1896.

45 Supra, pp. 147–160.

46 Supra, pp. 51, 147.

47 Art. I, tit. II, chap. I, part II, R. S.

48 2 Black. Comm. 179.

severalty but conjointly, and the survivor takes all unless the estate, during the joint dominion, has been previously severed or partitioned.49

Tenants in common hold severally but by unity of possession, because none knows his own severalty. The jus accrescendi, or right of survivorship, is not a legal characteristic of tenancy in common. 50 Tenancy in common was, for all practical purposes at common law, a sole ownership of an undivided share, and one tenant in common might convey his share to another,51 but not release to another.52 In the absence of evidence to the contrary, the shares of several tenants in common are presumed to be equal.53

49 Strahan, Property, 123, 125. Partition, after statute of He 1. VIII, could be compelled. 2 Black. Comm. 179-187; Challis, 294; Miller Emans, 19 N. Y. 384, 388.

50 2 Black. Comm. 191.

V.

61 Challis, 297; Taylor v. Millard, 118 N. Y. 244.

52 Miller v. Emans, 19 N. Y. 384, 388, citing Shep. Touch. 326, 327; Striker v. Mott, 28 N. Y. 82, 92.

53 Jackson v. Moore, 94 App. Div. 504, and see under next section 'Incidents of Tenancy in Common."

"

§ 66. When estate in common; when in joint tenancy. Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested as to estates hereafter granted or devised. Formerly section 56, Real Property Law of 1896, chapter XLVI, General Laws:

§ 56. When estate in common; when in joint tenancy.- Every estate granted or devised to two or more persons in their own right, shall be a tenancy in common, unless expressly declared to be in joint tenancy; but every estate vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested as to estates hereafter granted or devised.54

This section was formerly 1 Revised Statutes, 727, section 44:

844. Every estate granted or devised to two or more persons, in their own right, shall be a tendency in common, unless expressly declared to be in joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy. This section shall apply as well to estates already created or vested, as to estates hereafter to be granted or devised.55

History of this Enactment. In the early feudalized law of England as a joint tenancy, with its incident of survivorship, was better adapted to military tenures than a more divisible tenancy, joint tenancy was implied rather than tenancy in common.56 Consequently it came about that at common law, if lands were limited to several persons, not husband and wife, by name they held as joint tenants,57 unless it was expressly declared that they should hold as tenants in common.58 By conveyan e of a freehold estate to husband and wife simpliciter they took as tenants by entireties.59

In the year 1782, the Legislature modified the common law rule. in New York so as to provide that unless a grant or devise was expressly declared to be in joint tenancy it should be taken to be a tenancy in common.60 In 1786 another tatute excepted conveyances

54 Repealed by Real Property Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 55 Repealed, chap. 547, Laws of 1896.

56 Lee, Abstracts of Title, 145. 57 Litt., § 277, 281; Purdy v. Hayt, 92 N. Y. 446, 452; Strahan, Property, 120.

58 Co. Litt. 183b; 2 Black. Comm.

180.

59 Challis, 303; 2 Black. Comm. 182; Joos v. Fey, 129 N. Y. 17; Strahan, Property, 135; Booth V. Fordham, 100 App. Div. 115.

Chap. 2, Laws of 1782 (6th session), repealed by chap. 12, Laws of 1786.