pur autre vie,35 but no appeal was taken as the case was compromised. Certainly, where a trust is for alienation, trustees should take a fee; and under the 3d subdivision of section 96 it would seem better to hold that they take a qualified or base fee, and not an estate pur autre vie. But the authorities are not uniform on this point.

35 Matter of Armory Board, 29 Misc. Rep. 174; 30 Code Civ. Proc. Rep. 123. In 1902 and 1903, the point came up again and was left undecided. In re Duncan, N. Y. L. J., Feb. 28, 1892; Matter of City of New

York (110th Street), 81 App. Div. 27. But see also Weir v. Barker, 104 id. 112; In re L'Hommedieu, 138 Fed. Rep. 606, 609; Matter of Brown, 154 N. Y. 313, 325.

§ 101. Qualification of last section. The last section shall not prevent any person, creating a trust, from declaring to whom the real property, to which the trust relates, shall belong, in the event of the failure or termination of the trust, or from granting or devising the property, subject to the execution of the trust. Such a grantee or devisee shall have a legal estate in the property, as against all persons, except the trustees, and those lawfully claiming under them.

Formerly section 91, Real Property Law of 1896, chapter XLVI, General Laws:

§ 81. Qualification of last section. The last section shall not prevent any person, creating a trust, from declaring to whom the real property, to which the trust relates, shall belong, in the event of the failure or termination of the trust, or from granting or devising the property, subject to the execution of the trust. Such a grantee or devisee shall have a legal estate in the property, as against all persons, except the trustees, and those lawfully claiming under him.36

Section 81 was formerly 1 Revised Statutes, 729, section 61:

§ 61. The preceding section shall not prevent any person creating a trust, from declaring to whom the lands to which the trust relates, shall belong, in the event of the failure or termination of the trust; nor shall it prevent him from granting or devising such lands, subject to the execution of the trust. Every such grantee or devisee shall have a legal estate in the lands, as against all persons, except the trustees and those lawfully claiming under them.37

Object of Section. This section, as originally framed, was intended. to make it quite clear that, although the trustees took the whole legal estate, or a base or qualified fee, under the prior section, yet the settlor of the trusts might make another ulterior limitation of the estate, if it were not inconsistent with the estate granted or the rule against a perpetuity. Thus, a remainder in fee may be limited after a trust estate created under the 3d subdivision of the 96th section.39 For, if the trustees of an express trust take a fee,

36 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460, and note 122.

37 Repealed, chap. 547, Laws of 1896.

38 Embury v. Sheldon, 68 N. Y. 227; Matter of Tienken, 131 id. 391, 401; Roberts v. Cary, 84 Hun, 328; Briggs v. Davis, 21 N. Y. 574, 577; Brown v. Richter, 25 App. Div. 239;

cf. Amory v. Lord, 9 id. 403, 413; Crooke v. County of Kings, 97 id. at P. 446.

39 See Real Prop. Law, § 42; Embury v. Sheldon, 68 N. Y. 227; Matter of Tienken, 131 id. 391; Losey v. Stanley, 147 id. 560; Craver v. Jermain, 17 Misc. Rep. 244; Train v. Davis, 49 id. 162, 169; Rothschild v. Schiff, 188 N. Y. 327, 333.

a fee may be mounted on a fee under the Revised Statutes and this act.4 40 And such a limitation is well limited when made to those who were beneficiaries of an express trust and to take effect after the trust terminates.41

All the limitations of future estates permitted by the Revised Statutes may follow a qualified fee to trustees, and it is unnecessary that the estate of such trustees should be construed to be an estate pur autre vie in order to save such future estates. Indeed less embarrassment would follow, particularly under the 44th section of this act, if the estate of trustees of an express trust were held to be a fee, and not an estate pur autre vie.

40 Real Prop. Law, § 50.

41 Stevenson v. Lesley, 70 N. Y. 512, 516; Craver v. Jermain, 17 Misc.

Rep. 244, 253; In re L'Hommedieu, 138 Fed. Rep. 606, 610.

§ 102. Interest remaining in grantor of express trust. Where an express trust is created, every legal estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to, the person creating the trust or his heirs.

Formerly section 82 of the Real Property Law of 1896, chapter XLVI, General Laws:

§ 82. Interest remaining in grantor of express trust. Where an express trust is created, every legal estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to, the person creating the trust or his heirs.42

Section 82 was formerly 1 Revised Statutes, 729, section 62:

§ 62. Where an express trust is created, every estate and interest not embraced in the trust and not otherwise disposed of, shall remain in, or revert to, the person creating the trust, or his heirs, as a legal estate.43

46

Object of this Section. Section 101 having provided for limitations by way of remainder on estates in trust, this section (102) saves reversions. This legislation has express reference to the section declaring the whole estate in the trustees of an express trust.44 Its object was to save reversionary interests in those cases where the estate of the trustees was expressly or by operation of law made defeasible after a life or lives, and no remainder was limited thereon, and the reversion was not disposed of in any way.45 If the estate of trustees is an estate pur autre vie, then there is always a reversion or remainder to be disposed of.47 If not disposed of, it is clear, under this section, that it belongs to the settlor or his heirs, notwithstanding the 100th section of this act. This section would once have indicated that the estate of the trustees of an express trust is now an estate pur autre vie; for, formerly there could be no reversion on an estate in fee after the Statute Quia Emptores.49 But this argument no longer holds at present, as the fee now taken by trustees of an express trust is a fee by force of the statute, and not by the common law.50

48

42 Repealed by Real Property Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 43 Repealed, chap. 547, Laws of 1896.

44 Real Prop. Law, § 100.

45 Briggs v. Davis, 21 N. Y. 574. 46 See the cases under § 44, Real Prop. Law.

47 Crooke v. County of Kings, 97 N. Y. at p. 446.

48 James v. James, 4 Paige, 115; Bowers v. Smith, 10 id. 193, 200; White v. Howard, 46 N. Y. 144, 169; Vernon v. Vernon, 53 id. 351; Nearpass v. Newman, 106 id. 47; Pomroy v. Hincks, 180 N. Y. 73.

49 Supra, pp. 17, 192.

50 The Real Prop. Law, $ 100.

Section III of this act1 changed the common course of descents in respect of fee simple estates held by a surviving trustee, thus making them abnormal, or qualified, estates of inheritance.52 In other respects the nature of a fee taken by trustees of an express trust is not changed except that it cannot be alienated in contravention of an express trust. The extent of their leasing power seems also debatable.53

51 The Real Prop. Law. 52 Supra, p. 489.

53 See under § 106.