§ 240. Definitions and use of terms. I. The term " heirs," or other words of inheritance, are not requisite to create or convey an estate in fee.

2. The term "conveyance," as used in this article, includes every instrument, in writing, except a will, by which any estate or interest in real property is created, transferred, assigned or surrendered.

3. Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.

4. The terms "estate" and "interest in real property include every such estate and interest, freehold or chattel, legal or equitable, present or future, vested or contingent.

Formerly section 205, Real Property Law of 1896, chapter XLVI, General Laws:

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§ 205. Definitions and use of terms. The term "heirs," or other words of inheritance, are not requisite to create or convey an estate in fee. The term conveyance," as used in this article, includes every instrument, in writing, except a will, by which 'any estate or interest in real property is created, transferred, assigned or surrendered. Every instrument creating, transferring, assigning or surrendering an estate or interest 'in real property must be construed according to the intent of the parties, so 'far as such intent can be gathered from the whole instrument, and is consistent with the rules of law. The terms estate" and "interest in real property," include every 'such estate and interest, freehold or chattel, legal or equitable, present or future, vested or contingent.

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Section 205 was formerly I Revised 'Statutes, 748, sections 1, 2, and 2 Revised Statutes, 137, sections 6, 7:

1. The term "heirs," or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of 'real estate, or any interest therein, 'hereafter to be executed, shall pass all the estate or interest of the grantor or testator, unless the intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant.55

§ 2. In the construction of every instrument creating or 'conveying, or authorizing the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice, to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law.56

55 Repealed, chap. 547, Laws of 1896.

56 Repealed, chap. 547, Laws of 1896.

§ 6. The term "lands," as used in this chapter,57 shall be construed as coextensive in meaning, with "lands, tenements and hereditaments;" and the terms "estate and interest in lands," shall be construed to embrace every 'estate and interest, freehold and chattel, legal and equitable, present and future, vested and contingent, in lands, as above defined.58

§ 7. The term "conveyance," as used in this chapter,59 shall be construed to embrace every instrument in writing, (except a last will 'and testament) whatever may be its form, and by whatever name it may be known in law, by which any estate or interest in lands, is created, 'aliened, assigned or surrendered.60

Comment. The Commissioners of Statutory Revision combined four sections of the Revised Statutes in one section of the tormer law. Such a disposition was confusing, and the present section of the Consolidated Laws in arrangement conforms rather to the plan of the original revisers in the Revised Statutes. The section as thus re-arranged is easier to analyze.61

The Term "Heirs," and Other Words of Inheritance, no Longer Necessary to Carry a Fee. The term "heirs," or other words of inheritance, is rendered unnecessary to carry an estate in fee by this section, taken out of the Revised Statutes.62

The Common Law. At common law, the fee, or inheritance, did not pass by a deed, without the employment of the word "heirs;" it being præsumptio juris that without the word "heirs," a life estate was created.63 But the construction was otherwise in a devise, where the intention of testator was to be followed; and consequently the words "to A. all my estate," or to "A. in perpetuity," etc., in a will, were equivalent to a limitation to "A. and his heirs " in a deed, and carried a fee to devisee.64

57 Chap. VII, part II, R. S. "Of Fraudulent Conveyances and Contracts, Relative to Real and Personal Property."

58 Repealed, chap. 417, Laws of 1897.

59 Chap. VII, part II, R. S. ut supra.

60 Repealed, chap. 417, Laws of 1897.

61 See note 24, Appendix I.

62 1 R. S. 748, §§ 1, 2; Guernsey v. Guernsey, 36 N. Y. 267, 268; Crain v. Wright, 114 id. 307; Hilliker v. Bast, 64 App. Div. 552; Mee v. Gordon, 104 id. 520; revd., 187 N. Y. 400; Schaefer v. Thompson, 116 App. Div. 775.

63 2 Black. Comm. 107. But the intention was also sometimes followed in construing a deed informally expressed. Jackson ex dem., etc. v. Waltermire, 7 Cow. 353; Darling v. Rogers, 22 Wend, at pp. 483, 489; Bridger v. Pierson, 45 N. Y. 601, 604; Metcalf v. Crystal Park Assn., 63 App. Div. 445, 447.

64 See Cruise, Dig., tit. 38, chap. II, generally; Bradstreet v. Clarke, 12 Wend. 602; Terry v. Wiggins, 47 N. Y. 512, 514; cf. Burlingham v. Belden, 21 Wend. 463; Wheaton v. Andress, 23 id. 452.

The Revised Statutes. The original revisers did not approve of such a subtle distinction, which was no doubt founded on the early or semi-feudal law, and formulated probably to some extent during the time of the discussion concerning the inheritable character of Anglican "feuds." 65 Yet, as the common-law rule was very well understood by conveyancers, it only conduced to technical precision, for few laymen drew their own deeds. The practice was otherwise with wills. The revisers thought best to introduce uniformity, and subjected all instruments of conveyance, wills and deeds alike, to the same rule of construction - the intention of the parties.66 This rule, they gave particular expression to, in the next section of the Revised Statutes,67 and now the intent of the parties to all manner of conveyances is the key to their construction in all cases.68 Thus the rule of construction, that cross-remainders would not be implied in deeds, is no longer permissible.69

Effect of the Revised Statutes. The above-mentioned statutory rules of construction are said to have reversed antecedent common-law rules.70 But this is, perhaps, putting the effect of the statute in general too strongly, as the intention of parties governed even in deeds in some cases before the statute, while the intention was not always conclusive in the case of devises.72 The presumption of law was, however, reversed by the statute in the construction. of the quantum of estates, as under the statute all the estate of grantor passes, unless the intent to pass a less estate appears;73 while at common law an estate not of inheritance passed, unless the intent to pass an estate of inheritance expressly appeared or the devisee was the heir-at-law.

65 Supra, p. 9.

63 Note to I R. S. 748, §§ 1, 2. 671 R. S. 748, § 2.

68 Bennett v. Culver, 97 N. Y. 250, 257; Coleman v. Beach, id. 545, 554; Purdy v. Hayt, 92 id. 446, 454; Howland v. The Union Theolog. Seminary, 3 Sandf. 82, 110; Parks v. Parks, 9 Paige, 107, 117; Webb v. Sweet, 187 N. Y. 172.

09 See above, p. 226.

70 Lalor, Real Prop. 306, citing Parks v. Parks, 9 Paige, 107, 121; Metcalf v. Crystal Park Assn., 63 App. Div. 445, 447.

71 Jackson ex dem., etc. v. Walter

73 Williams v. Williams, 8 N. Y. 525, 539; Nicoll v. The N. Y. & Erie R. R. Co., 12 id. 121, 128; Heath v. Barmore, 50 id. 302, 306; Taggart v. Murray, 53 id. 233; Moore v. Pitts, id. 85, 89; Freeborn v. Wagner, 2 Abb. Ct. App. Dec. 175, 179; Sheehan v. Hamilton, 4 id. 211, 216; Wood v. Taylor, 9 Misc. Rep. 640; Mason v. Thwing, 94 App. Div. 77; cf. Harris v. Kingston Realty Co., 116 id, 704.

What Words now Pass a Fee. No form of words is now necessary to pass an estate in fee, provided the intent so to do is obvious.74 A devise of the rents and profits is a devise of the thing itself,75 and an estate may pass or arise by implication if the intent is clear.76 But the description of property to be conveyed is not supplied by intendment, whatever the intent of the parties may have been.77

I Revised Statutes, 748, Section 2. Intent of the Parties to Prevail. This section was originally a legislative mandate for a cy pres construction of documents.78 It binds the court in some respects." 79 But it was the rule before the statute, that a deed must be construed so as to give effect to the intent and design of the parties,80 and such was always the principle applied in the construction of last wills.81 If a deed is inartificial and does not employ technical terms, the intention is to be ascertained from the whole instrument.82 This section now applies to both wills and deeds.83

2 Revised Statutes, 137, Section 7, Supra. This chapter is expressly confined to deeds and other instruments inter vivos.84 Yet in the old law there is little difference in operation between deeds and devises,85 and a will not probated will still pass real estate.86

74 The Long Island R. R. Co. v. Conklin, 29 N. Y. 572; Kirtz v. Peck, 113 id. 222, 229; Campbell v. Morgan, 22 N. Y. Supp. 1001; Mee v. Gordon, 45 Misc. Rep. 249, 104 App. Div. 520, 522; revd., 187 N. Y. 400; Ludlam v. Ludlam, 47 Misc. Rep. 232; Webel v. Kelly, 111 App. Div. 521; Boon v. Castle, 61 Misc. Rep. 474.

75 Paterson v. Ellis, 11 Wend. 259, 298; Illensworth v. Illensworth, 39 Misc. Rep. 194, 197; Hatch v. Basset, 52 N. Y. 359, 362; Locke v. F. L. & T. Co., 140 id. 135, 146.

76 Brown v. Quintard, 177 N. Y. 75, 84; Post v. Hover, 33 id. 594; Matter of Koss, 177 id. 371, 375; Culhane v. Fitzgibbon, 42 Misc. Rep. 331; Matter of Ingersoll, 43 id. 211. 77 Coleman V. Manhattan Beach Imp. Co., 94 N. Y. 229, 232.

78 Coster v. Lorillard, 14 Wend, at pp. 308, 309; Mayell v. Brown, 16 Fed. Cas. at p. 438; note to 4 Kent, Comm. 508.

79 Morris v. Ward, 36 N. Y. 587, 595.

80 French v. Carhart, 1 N. Y. 96; Bridger v. Pierson, 45 id. 601, 604; Bennett v. Culver, 97 id. 250, 256. 81 Purdy v. Hayt, 92 N. Y. 446, 82 Speed v. St. Louis M. B. T. Co., 86 Fed. 235.

83 Heath v. Hewitt, 127 N. Y. 166; Ward v. Stanard, 82 App. Div. 386, 390.

84 See § 240, Real Prop. Law and 2 R. S. 137, 87, p. 796, supra.

85 Jarman on Wills, 14. 86 Smith v. Ryan, 116 App. Div. 397.

§ 241. Ancient conveyances abolished. The conveyance of real property by feoffment, with livery of seizin, or by fines, or common recoveries, is abolished.

Formerly section 206, Real Property Law of 1896, chapter XLVI, General Laws:

§ 206. Livery of seizin abolished. The conveyance of real property by feoffment, with livery of seizin, has been abolished.87

Section 206 was formerly I Revised Statutes, 738, section 136:

§ 136. The mode of conveying lands by feoffment with livery of seizin, is abolished.88

Comment. This section, well, if not better than any other in the Revised Statutes, served to mark the beginning of a new legal epoch. With the abolition of the old modes of conveyance and all real actions began a new era. It is said, that an elderly lawyer in the year 1830, a little while after the Revised Statutes had passed into a law, continued the preparation of the old forms of conveyances by way of fines or common recoveries, and he learned with dismay that they had been abolished by the Legislature.

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Fines and Recoveries. Fines and common recoveries were very familiar, and not unusual, forms of conveyance in this State prior to the Revised Statutes.89 They were very efficacious assurances in certain cases.9 90 The Revised Statutes abolished fines and common recoveries, but the late Commissioners of Statutory Revision in 1896 failed to re-enact that law, although the Revised Statutes to that end was repealed. The present section of the Real Property Law corrects the omission and abolishes conveyances by way of fines or common recoveries.

Feoffment with Livery. At common law a writing, or deed of conveyance, was not essential to the transfer of title to real property, except when to a corporation aggregate.92 The title passed by a feoffment with livery of seisin. A feoffment is a legal term descriptive of an act of making an estate in another.93 Some legal writers are very loose in their use of this term, often confounding it with charter feoffamenti, which is the deed generally found to accompany

87 Repealed by Real Prop. Law of 1909, § 460, art. 14, chap. 50, Consolidated Laws. See below, 8 460.

88 Repealed, chap. 547, Laws of 1896.

89 2 Black. Comm. 343, 357. 904 Kent, Comm. 497; Jackson v. Smith, 13 Johns. 426.

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2 R. S. 343, § 24.

92 Shep. Touch. 203; Mr. Hargrave's note 310, Co. Litt. 48a; Challis, 326; Williams on Seisin, 104.

93 Finch's Discourse, 132; West's Symbolaeography (edit. 1594) § 235.