Contingent Remainders. A future estate is defined by the statute as contingent when the person to whom or the event on which it is limited to take effect remain uncertain.98 This definition of contingent remainder, qua remainder, is not essentially different from the definition at common law,99 which was found to be not sufficiently exhaustive or inclusive of many executory interests.1 The definition at common law, it will be remembered, applied only to common-law remainders. As the Revised Statutes comprise many executory interests in the present definition of remainder,3 and as they altered the entire law concerning the effect of the termination of particular estates to support remainders, it is not surprising that some confusion is exhibited in most attempts at classification of contingent estates under the present statute, or that some remainders contingent at common law became remainders vested under our statute. The accepted classification of contingent remainders at common law was due largely to the subtlety and industry of Mr. Fearne. But of Fearne's four classes of contingent remainders two, at least, depended on the old law of remainders and the possible premature destruction of particular estates to sup-. port them, which determination is now inconsequential since the Revised Statutes so far as the destruction or the vesting of remainders is concerned. Thus Mr. Fearne's celebrated classification of remainders has become very largely academic or irrelevant in New York to our present statute regulating estates in expectancy. Since the Revised Statutes contingent remainders or estates may be classified substantially as follows: (1) Remainders or estates to persons not in esse.o (2) Remainders or estates to survivors, at the determination of precedent estates, limited at the same time as the estates in remainder.10 (3) Remainders or estates to persons in being, but to vest only on the fulfilment of a condition precedent, expressed in the limitation, and which may or may not happen.11 These now comprise all classes of contingent remainders or estates. The term "remainder" as used in the real property statutes of this State now includes not only common-law remainders but all former "shifting uses shifting uses" and "devises." 12 Whenever a limitation of the third class may operate to abridge the natural termination of the precedent estate it will, however, be found to be a conditional limitation,13 and not a common-law remainder which could only follow the natural determination of the precedent estate.1 9 Manice v. Manice, 43 N. Y. 303, 374; Losey v. Stanley, 145 id. 560, 567. 4 10 Carmichael V. Carmichael, Keyes, 346; Hall v. Le France Fire Engine Co., 158 N. Y. 570. 11 Cushman v. Cushman, 116 App. Div. 763, 770; citing Caw v. Robertson, 5 N. Y. 125, 135; Moore v. Littel, 41 id. at p. 8o. Contingent remainders of the third class are generally alienable. Stringer v. Barker, 110 App. Div. 37, 39; Chaplin, Express Trusts and Powers, § 386. 12 Knowlton v. Atkins, 134 N. Y. 313, 318. 13 § 53, Real Prop. Law. 14 2 Preston, Abstracts of Title, 86; Butler's note K, vii, Fearne, Conting. Rem. 508; Leake on Property in Land, pt. 2, chap. 2; I Jarman on Wills, 780. It has always seemed to the writer that even Mr. Fearne was more influenced by the Statutes of Uses and Wills in his treatment of common law remainders, abridging particular estates, than he himself realized, and the present writer was therefore pleased lately to observe that Mr. Sanders intimated in substance that it appeared to him also, that limitations which operate so as to determine the preceding particular estate before its regular expiration can only take effect as conditional limitations, and not as remainders. (See Sanders, Uses and Trusts, 155.) Mr. Preston seems clearly of that opinion, in the expressions employed in the first volume of his Treatise on Estates, pp. 40, 71. When Mr. Fearne wrote, it was the fashion among the great conveyancing counsel of England to resort in practice to the Statute of Uses for In respect of the second class of contingent remainders, it will be noticed that there is since the Revised Statutes a great and fundamental difference between remainders to those who are the very heirs of a living person eo instanti,15 and remainder to those who will or may be the heirs of a living person at the time of the death of such living person.16 The former remainder, since the abolition of the rule in Shelley's case, is now vested, as "heres viventis" on the present instant is now descriptio personarum, describing heirs presumptive under the statute. Such a limitation is no longer, as at common law, futuritive or indeterminate in signification. The common-law maxim "nemo est heres viventis" is, since our statute of partible inheritances and the abolition of the rule in Shelley's case, equivalent to a limitation to the heir of X, in the singular at common law which also made heir in the singular descriptio persona.18 Since the decision in Moore v. Littel,19 every remainder to the heirs of a living person following life estate to parent has virtually become an anomalous remainder to a class,20 because although held to be vested as to the living heirs of the life tenant, yet such remainders are also held to open and let in the after-born heirs, and the shares of all remaindermen divest by death 17 effective limitations of estate, and most settlements were then in the shape of conveyances to uses, rather than in the form of common law limitations; although life estates followed by estates tail and remainders over could be limited in a conveyance to uses. After the Statute of Uses the language of even common law limitations changed, and from the time of the Civil Wars and the restoration of the monarchy to the third decade of the nineteenth century, the Statute of Uses, with its amazing possibilities, was the basis of the real property law of England. Mr. Fearne, who started out to deal with common law limitations only, was it seems to the writer unconsciously influenced by the contemporary thought and prac tice. The late Mr. Challis was the first modern writer who had a clear conception of the old law of legal limitations, as contrasted with the modern law of uses. 15 Moore v. Littel, 41 N. Y. 66; Matter of Lansing, 182 id. 238, 250. 16 Carmichael V. Carmichael, 4 Keyes, 346; Hall v. La France Fire Engine Co., 158 N. Y. 570; McGillis v. McGillis, 154 id. 532. 17 Moore v. Littel, 41 N. Y. 66; House v. Jackson, 50 id. 161; Sheridan v. House, 4 Abb. Ct. App. Dec. 218. 18 Sugden, Gilbert on Uses, 40, 46. 19 41 N. Y. 66. 20 Paget v. Melcher, 26 App. Div. 17; 156 N. Y. 404; Gilliam v. Guaranty Trust Co., III App. Div. 656, affd., 186 N. Y. 127. without issue during the existence of the particular estate of the parent. Other vested remainders do not divest by death of remainderman during the particular estate, but the remainderman is a new stock of descent, even without special limitation to the heirs. of remainderman.22 The distinction between vested remainder to heirs of life tenant and other vested remainders is too well established in this State to be disturbed, as it is now a rule of property. Before proceeding to discuss the application of the present law regulating contingent dispositions of real property, let us consider the reasons of the law. A contingency always involves futurity and, therefore, uncertainty, and a limitation of an estate in expectancy on a contingency necessarily tends to tying up titles to lands, to the admitted disadvantage of the commonwealth. But for the law to prohibit all limitations of estates, on conditions precedent, or on contingencies of any kind, would be to condemn rights over property to atrophy, and to make them inadequate for the needs of families. How to circumscribe the power within due bounds is the question. The revisers of the Revised Statutes detected readily that only those limitations on conditions or contingencies which unduly suspended the power of immediate alienation were baneful to the public in any degree, and with a penetration and grasp of the fundamentals of property law, then almost unparalleled in extent, even in England, they prohibited in consequence only those limitations on contingencies or conditions which suspended the power of alienation beyond a brief period of time.23 Otherwise any condition or contingency, not malum in se, was to be tolerated as the basis for limitations of future estates in real property.24 Formerly, at the common law, it followed from any contingency in a limitation that a remainderman on such contingency had no 21 Manhattan Real Estate Ass'n v. Cudlipp, 80 App. Div. at pp. 532, 536; Dougherty v. Thompson, 167 N. Y. at p. 487. 22 Barber v. Brundage, 50 App. Div. 123, 126; Byrnes v. Stilwell, 103 N. Y. 453, 459; Lyons Ostrander, 167 id. 135; Patchen v. Patchen, 121 id. at p. 434; Wads V. worth v. Murray, 29 App. Div. at 238 42, Real Prop. Law. 26 present right of property.25 But as the Revised Statutes of New York confers on contingent remaindermen in esse a jus disponendi or a power of disposition, it is apparent that a contingent remainderman in esse has now a present right of property, although one always subject to a condition, or to the infirmity, expressed in the original limitation. Thus it is conclusive that unless persons not in esse are necessarily involved in the legal title by the terms of the original limitation, no contingent remainder under the present statute necessarily tends to a perpetuity." 28 If vested life estates are followed by contingent remainders in fee to persons not in esse, the limitation of such remainders must make them susceptible of vesting within the rule against a perpetuity, or the limitation of the remainders is void in the creation.30 32 31 If contingent remainders follow three or more vested life estates such remainders are void, at least, if not alienable within the lawful period, by persons in esse, without recourse to courts for leave to so alienate.3 But the first two life estates remain valid and take effect, although the remainders, being contingent upon lives. not in being, are not accelerated by the premature statutory destruction of the third and other subsequent life estates. The statute does not accelerate such contingent remainders to persons not in esse, but vested remainders only. Nor does the statute validate such unlawful remainders because of the statutory abbreviation of the particular estate.33 They perish of their own infirmity. But 25 Goodeve, Law of R. P., (4th ed.), p. 241. 26 § 59, Real Prop. Law. 27 Maurice v. Graham, 8 Paige, 484; Kelso v. Lorillard, 85 N. Y. 177, 184; Lingsweiler v. Hart, 10 App. Div. 156; Kiah v. Grenier, I T. & C. 388, 56 N. Y. 220; Dougherty v. Thompson, 161 N. Y. 472, 487; Denison v. Denison, 96 App. Div. 418, 422; Schwartz v. Rehfuss, 129 id. 630. 28 § 42, Real Prop. Law, but see an intimation to the contrary in Matter of Wilcox, 194 N. Y. 288. 29 § 42, Real Prop. Law. 30 Harrison v. Harrison, 36 N. Y. 543; Tiers v. Tiers, 98 id. 568; Henderson v. Henderson, 113 id. 1; Kiah v. Grenier, 1 T. & C. 388, affd., 56 N. Y. 220. 31 Gott v. Cook, 7 Paige, 521, 543; Amory v. Lord, 9 N. Y. 403, 415; Leonard v. Burr, 18 id. at p. 107; Schettler v. Smith, 41 id. 328; Knox v. Jones, 47 id. at foot of p. 397; Purdy v. Hayt, 92 id. at p. 457; Hobson v. Hale, 95 id. at p. 612; Dana v. Murray, 122 id. at p. 616. 32 § 43, Real Prop. Law; Purdy v. Hayt, 92 N. Y. at p. 451. 33 Purdy v. Hayt, 92 N. Y. at p. 451; Dana v. Murray, 122 id. at p. 618. |