Distinction between Uses and Trusts. The distinction between an executed use, under the Statute of Uses, and a trust which, after that statute, was not executed, is apparent,40 and still exists, even. under the Revised Statutes and this act.4

40 Cuyler v. Bradt, 2 Cai. Cas. 326; Fisher v. Fields, 10 Johns. 495; Johnson v. Fleet, 14 Wend. 176; Burgess v. Wheate, I Eden, at p. 216.

41 See below, and § 96, Real Prop. Law.

§ 91. Certain uses and trusts abolished. Uses and trusts concerning real property, except as authorized and modified by this article, have been abolished; every estate or interest in real property is deemed a legal right, cognizable as such in the courts, except as otherwise prescribed in this chapter. Formerly section 71, Real Property Law of 1896, chapter XLVI, General Laws:

§ 71. Certain uses and trusts abolished. Uses and trusts concerning real property, except as authorized or modified by this article, have been abolished; every estate or interest in real property is deemed a legal right, cognizable as such in the courts, except as otherwise prescribed in this chapter.42

Section 71 was formerly 1 Revised Statutes, 727, section 45:

45. Uses and trusts, except as authorized and modified in this Article, are abolished; and every estate and interest in lands, shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this Chapter.422

43

Object of this Section. This section is part of a scheme larger than a mere revision of the former Statute of Uses. The original revisers, in their note to this section, outlined very fully the general scheme of their proposed reform in the old law of uses and trusts.* They desired to abolish all passive or naked trusts, and to cause the legal title to estates to devolve on, or descend to, heirs in all cases where some good purpose was not subserved by the trustee's taking the legal title.44 Trust settlements of estates had theretofore in New York not been frequently employed in practice, and the time was, consequently, not inopportune for so radical a change in this ancient law of English-speaking peoples. Before the reform could be consummated, however, much litigation ensued, involving practically every section of the Revised Statutes relating to estates in lands. The decisions of the higher courts are, therefore, a necessary complement of the Revised Statutes concerning real property.

The Intent of this Section. The original of this section then was a part of an announced attempt to restore the design of the old

42 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 51. See below, § 460.

42% Repealed, chap, 547 Laws of 1896.

43 See below, Revisers' note, with article on Uses and Trusts, Appendix

III; Eysaman v. Eysaman, 24 Hun, 430, 433; Johnson v. Fleet, 14 Wend. 176; Rawson v. Lampman, 5 N. Y. 456; Downing v. Marshall, 23 id. 366, 378, 379, 380.

44 Townshend v. Frommer, 125 N. Y. at p. 458, and cases last cited.

46

Statute of Uses (27 Hen. VIII, chap. 10), adopted in New York,45 and thus finally to abolish all uses and trusts not expressly authorized by law.* With this design, the section of the statute was followed by two others taken to some extent out of the former Statute of Uses.47 The section of the Revised Statutes now under consideration expressly abolished all uses and trusts not saved or justified by some provision of the article on Uses and Trusts.48 The language of this section should have repeated the phraseology of the Revised Statutes.49

Did this Enactment Abolish Charitable Uses? The first question of importance made under the original of this section was, "whether charitable uses and trusts (or those indefinite and uncertain uses and trusts intended to benefit the public or a class where no particular interest vested), were intended to be abolished thereby?" 50 After great fluctuation of judicial opinion, during forty-three years, it was finally held that charitable uses and trusts were within the purview of the Revised Statutes,51 and, therefore, that they were abolished, and that no charitable use or trust was since valid at law or in equity unless it complied with the Revised Statutes and some. particular interest vested in a definite person entitled to enforce the trust.52 Consequently an express trust for charity in New York stood until a statute passed in 1893,53 on the same basis as a trust for a person not engaged in charitable endeavor.54 It was subject

45 Supra, p. 414; Eysaman v. Eysaman, 24 Hun, 430, 433, 2 J. & V. 68; I R. L. 72.

46 Eysaman v. Eysaman, 24 Hun, 430, 433; Leggett v. Perkins, 2 N. Y. 297, 307; Rawson v. Lampman, 5 id. 456, 462; Townshend v. Frommer, 125 id. at p. 457; Adams v. Adams, 114 App. Div. 390, 394.

47 1 R. S. 727, §§ 47, 49, now §§ 92 and 93, infra, of the Real Prop. Law.

48 Art. 2, chap. 1, pt. 2, R. S., being now art. 4 of the Real Property Law here under consideration.

49 See note 9, Appendix I, infra. 50 Shotwell, Exr. v. Mott, 2 Sandf. Ch. 46, 49, 52; Ayres v. Meth Church, 3 Sandf. 351; Williams v. Williams, 8 N. Y. at pp. 554-559.

51 Clemens v. Clemens, 37 N. Y. 59,

766; Holmes v. Mead, 52 id. 332; Holland v. Alcock, 108 id. 312, 336; Cottman v. Grace, 112 id. 307; Fosdick v. Town of Hempstead, 125 id. 581.

52 Phelps v. Pond, 23 N. Y. at p. 77; Downing v. Marshall, id. 366, 382; O'Hara v. Dudley, 95 id. 403; Read v. Williams, 125 id. 560, 569; Holland v. Alcock, 108 id. 312; Tilden v. Green, 130 id. 29.

53 Chap. 701, Laws of 1893; see below, under §§ 113, 114, of Real Prop. Law.

54 Levy v. Levy, 33 N. Y. at p. 124; Bascom v. Albertson, 34 id. 584; Cottman v. Grace, 112 id. 299, 306, 307; Cruikshank v. Home for the Friendless, 113 id. 337, 350; People v. Simonson, 126 id. 299, 307.

to the rule concerning suspension of the power of alienation directed against a perpetuity.55 If the trust was valid only as a power, it was still subject to the same rules concerning definiteness of the beneficiary 56 and suspension of the power of alienation.57 In short, the ancient characteristics of charitable uses permanence in the duration of the trust, and indefiniteness of the beneficiaries were no longer allowed under the Revised Statutes.58 Consequently, from 1830 until 1893, the only legal mode of limiting estates permanently in trust for the benefit of the poor, or other indefinite objects, consisted in a limitation absolute to a charitable corporation, whose charter supplemented the trust features and whose chartered vocation permitted the amelioration of an indefinite class.59 The limitation in such a case was not in trust or a charitable use, but a gift absolute to a charitable corporation. It is greatly to be regretted that the courts ever held that charitable uses were abolished by the Revised Statutes.

Restoration of Charitable Uses. In 1893 the Legislature, finding too many charitable foundations defeated by the new judicial cano!, that no valid trust could be made for the benefit of no one in particular, incerta persona, passed a law,61 which provided, in substance, that no gift, grant, bequest or devise to religious, educational, charitable or benevolent uses which, in other respects, was valid under the laws of the State should be deemed invalid by reason of the indefiniteness or uncertainty of the beneficiaries. The substance of that act has now become part of the article on Uses and Trusts,62 with the effect of abrogating that principle formerly determined, that there could not be, under the Revised Statutes, a trust for the benefit of an indefinite set of beneficiaries. This amendment, it was argued at first, could not relieve charitable limitations from the necessity of conforming to the existing rule against perpetuities,

55 Bascom v. Albertson, 34 N. Y. 584, 619.

56 Fosdick v. Town of Hempstead, 125 N. Y. at p. 592; Tilden v. Green, 130 id. 29; People v. Powers, 147 id.

104.

57 Booth v. Baptist Church, 126 N. Y. 215.

58 Dodge, Exr. v. Pond, 23 N. Y. 69.

59 Ayres v. Meth. Church, 3 Sandf. 351; Yates v. Yates, 9 Barb. 324;

King v. Rundle, 15 id. 139; Levy v. Levy, 33 N. Y. 97, 108; Bascom v. Albertson, 34 id. at pp. 612, 613; Holland v. Alcock, 108 id. 312, 336. 60 Dammert v. Osborn, 140 N. Y. 30, 43.

61 Chap. 701, Laws of 1893; amd.,. chap. 291, Laws of 1901.

62 § 113, infra, Real Prop. Law. 63 42, Real Prop Law; Allen v. Stevens, 22 Misc. Rep. 158, 33 App. Div. 485.

64

which, before the Revised Statutes, was not generally applicable to charitable settlements, except as to the time of their vesting in possession or interest.65 But a strong and successful argument was made, that the legislative effect of chapter 701 of the Laws of 1893 and the section now numbered 113 of the present article on Uses and Trusts, was to restore charitable uses as they were at common law, independently of the Statute of Charitable Uses, and even to except charitable uses altogether from the operation of section 42 of the article on "Creation and Division of Estates." 67

66

Trustees for Charitable Uses. It is declared by the statute that the trustee of an express trust takes the legal title, and of all other trusts only a power in trust. Whether this still remains the law as to trustees of charitable uses will be considered under a subsequent section.6

68

What Other Uses and Trusts Abolished. What other uses and trusts were abolished by this article will be considered under subsequent sections of this act. Mere passive uses and trusts were those designed to be prevented.

69

Comment on the Language of Section 91. That part of the section under consideration, which relates to cognizance of vested uses as legal rights, was originally intended to indicate the withdrawal from courts of equity of all such uses as were not called express trusts70 or revived as powers in trust.71 Now that trusts and legal estates are justiciable in the same forum,72 the former Committee of Statutory Revision might have omitted in the General Laws the latter part of this section. As they altered the language of the Revised Statutes, the present section seems to contemplate a class of legal rights not cognizable in the courts, which seems absurd.

and cognizance of them consequently was, by the Revisers, formally transferred to the courts of law as executed uses; the antinomy of law and equity being in full force when the Revised Statutes were enacted.

701 R. S. 728, § 55, § 96, Real Prop. Law; Johnson v. Fleet, 14 Wend. 176.

71 Downing v. Marshall, 23 N. Y. at p. 378.

72 Const. of 1846, art. VI; Const. of 1894, art. VI.