34 if contingent remainders are of a character to be immediately alienable, their remoteness, as Lord St. Leonards said of remote common law remainders, would seem to have no relation to a perpetuity. Whether remainders which are contingent only by reason of some collateral event (and not contingent because to persons not in esse) are accelerative under the present law does not appear to be fully decided. In a recent case, Matter of Wilcox, it is intimated that they are void because too remote.3 But such an opinion was not necessary to the conclusion in that case, and until the point is actually decided the argument or dictum is perhaps open to further consideration. In the case of Woodruff v. Cook there was a remainder after three life estates to children in esse of testator but contingent upon a collateral event, and yet the remainder in fee was accelerated.37 36 It will be observed that when contingent remainders follow vested life estates (not to trustees, for they are now subject to a statutory restraint) the vice of a perpetuity can be affirmed only of the contingency in the remainder. The life estates are immediately alienable, but the estate is not alienable for a fee simple, because of the contingent remainders. Where such remainders are to persons not in esse they necessarily suspend the power of alienation, and it is a rule of law that the entire limitation of the fee must comply with the existing rule against a perpetuity. But in a devise of legal estates the obnoxicus limitations only need perish. The old rule, in regard to legal estates devised in a will, was that estates which could by any possibility be saved and separated from limitations bad at law would be saved.38 There would seem to be nothing in the present statute which, in itself, prevents the acceleration of those contingent remainders which are to persons in esse, and only contingent by reason of some collateral event; provided such remainders are, by the nature of the limitation, susceptible of taking effect in possession or interest after the two first life estates. If any resulting estate must necessarily intervene after the first two 34 Cole v. Sewell, 4 Dr. & W. 1; 2 Ho. Ld. Cas. 186; 2 Preston, Abstracts of Title, 114 35 194 N. Y. 288. 36 See Fowler's Pers. Prop. (2d ed.), pp. 40-46; and Fowler's Real Prop. (3d ed.), pp. 276-288. 37 61 N. Y. 638. 38 Kane v. Gott, 24 Wend. at p. 665; Goodright v. Cornish, 1 Salk. 226; cf. 2 Preston, Abstracts of Title, 115. life estates before such remainders can vest, they clearly can not be accelerated, but must perish as a perpetuity under the general rule unless susceptible of immediate alienation for a fee simple.39 If life estates are followed by contingent remainders to persons in esse, it is obvious that they must be contingent only by reason of some event which is collateral to the determination of the particular estate, and not because they are limited to persons not in csse. Now what is the present effect, by statute, of such a remainder to persons in esse and only contingent because of some collateral event? The event may or may not happen. If it does not happen the contingent remainder will not vest, and the next limitation which must be vested will take effect. Thus estate to A for life and then to B for life, remainder to C, an adult, in fee simple if X has then returned from Rome, and if not to D, an adult, in fee simple if Y has then returned from Rome, and if not, then to E, an adult, in fee simple absolute. Here, the remainders to C and D are both contingent, being on conditions precedent, but all the estates are by statute alienable for a fee simple. There is nothing in the statute regulating either life estates or remainders which expressly condemns such a limitation, and yet it is lately intimated in Matter of Wilcox, that the remainders to C, D, and E are all void for remoteness alone."1 Such intimation is doubtless destined to be subjected to much criticism and discussion before it is finally accepted as the law of the State. The dictum in question is certainly entitled to great attention, as it emanates from the chief judge, an official of long experience and superior attainments, possessing unusual mental acumen; it is also adopted by several of his associates, although not without dissent. 41 40 Contingent Remainders in Fee Permissible by Statute. That the revised rule against perpetuities was intended to govern limitations of remainders in fee, is perceptible from the statute, which after the statement of the rule itself expressly permits a contingent remainder in fee to be created on a prior remainder in fee, to take effect 39 § 42, Real Prop. Law. 40 Hawley v. James, 16 Wend. at p. 121; Beardsley v. Hotchkiss, 96 N. Y. at pp. 213, 215. 41 Matter of Wilcox, 194 N. Y. 288. in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency by which the estate of such persons may be determined before they attain full age.2 In the section permitting a fee to be thus limited on a fee, the revisers distinctly refer to their rule against perpetuities.43 The statute plainly permits a remainder in fee simple after two successive life estates, and another remainder over in fee simple to take effect in the event that the first remainder determines during the minority of the first taker. Thus life estate to A, then life estate to B, then remainder in fee to B's eldest son (unborn), and if he die before his majority then remainder to the second son of A (unborn), is a valid limitation under the statute.44 But can any further remainders be limited over? This is now the important question for conveyancers. Limitations of a Fee Simple Defeasible as a Remainder. Before proceeding to consider remainders of fees permissible under section 42 of the Real Property Law, we should point out that before the Revised Statutes a fee could not be limited on a fee by any conveyance operative by the common law,45 such as a fine or recovery, a feoffment, or a release. It is true that there might be a condition in a common-law conveyance, but as no one could avail of it except grantor it did not answer the purpose of conveyancers." But by the limitation of uses or by executory devises any number of defeasible fees could be limited to take effect, one after the other. But all such limitations by way of use or devise must vest absolutely within the old rule against perpetuities, i. e., within lives 421 R. S. 723, §§ 14, 15, 16, now $ 42, Real Prop. Law. 43 I R. S. 724, § 24, now § 50, Real Prop. Law. 44 88 42, 50, Real Prop. Law; Du Bois v. Ray, 35 N. Y. 162, 176; Temple v. Hawley, I Sandf. Ch. 153, 178; Manice v. Manice, 43 N. Y. 303, 374, 375; Mott v. Ackerman, 92 id. 539, 549; Radley v. Kuhn, 97 id. 26, 35; Purdy v. Hayt, 92 id. at p. 456; Greenland v. Wad dell, 116 id. 234, 245; Schlereth v. Schlereth, 173 id. 444, 454; Guernsey v. Van Riper, 126 App. Div. 368. 45 Co. Litt. 18a; Willon v. Berkeley, Plowd. 223, 248; Sanders' Uses and Trusts (ed. 1855), 148, 149; Leake on Property in Land, 231. 46 Sugden's Gilbert on Uses, Intd. note 1, and p. 153, note. 47 See Sugden's note to Gilbert (London ed. 1811), 153. 48 in being and a term in gross of twenty-one years." The revisers of the Revised Statutes did not intend, by their reforms, to circumscribe the liberal and modern limitations possible as uses or devises; but they did intend to enable all estates to be created at law by legal assurances only and without the contrivance of uses or devises, provided such estates complied with their new or revised rule. against a perpetuity.*0 It is necessary, in the construction of section 42 of the Real Property Law, to have reference to three other sections of the Real Property Law: Section 42 relates only to remainders in fee. At common law it is accepted law that no fee can be limited by way of remainder on another fee, not a fee conditional or a fee tail.50 But section 50 of the Real Property Law now permits a fee simple to be limited on a fee simple by deed or will, provided the second fee vests within the new rule against a perpetuity.51 The first fee contemplated by section 42 of the Real Property Law is a fee defeasible if the first taker die under age.52 Section 42 has no reference to remainders which never vest in interest. If a fee simple once vests in interest there is then no room for the application of the rule which permits several fees to be limited in the alternative, so that only one such can by any possibility vest.53 Section 42 contemplates only one sort of limitation, viz., a contingent defeasible fee which divests 'before the minority of the first taker. In that event another contingent fee is allowed to take effect.54 At common law when there is a contingent limitation in fee, no estate limited afterward can be vested.55 But present section 42, Real Property Law, leaves unprovided for the case where the second contingent fee contemplated by such section never vests in interest. In such a case, is there now still a reversion subsisting in the devisor, and can that reversion pass under a residuary clause of a will, or be limited over or in the alternative, or by way of vested 43 Sugden's Gilbert, note, p. 156; Sanders, Uses and Trusts, 150, 201. 49 Reviser's notes to R. S., Fowler's Real Prop. Law (3d ed.), 1277. 50 Supra, p. 152. 518 50, Real Prop. Law. 52 Radley v. Kuhn, 97 N. Y. at p. 53 51, Real Prop. Law. 55 Fearne, Conting. Rem. 225. The reference is to the 4th American edition from the 10th London edition, with Butler's notes. remainder? Of course, if it can pass under the residuary clause in a will it may pass as a devise of a vested remainder to a person in esse. We have just referred to the old common-law rule, that no estate after a contingent limitation in fee can be vested. But the Revised Statutes by the destruction of all the common-law rules relating to future estates made new categories of estates vested and contingent and, doubtless, inserted the definition of vested and contingent so as to make it clear that the definition applies to such cases as that now supposed." The revisers provided for a case where neither contingent remainder in fee ever vested in interest. But did they intend to provide for a case where the first contingent remainder divested and the second failed? Their insertion of a definition of reversion in the article on legal estates is only consistent with an intention to extend the common-law conception of a reversion. This is made more plain in the case of limitations on trusts, for where trustees take the legal estate in fee the statute distinctly provides for a reversion on a fee; thus showing that the revisers contemplated changing all the common-law rules which preclude a reversion on a fee.5 59 There is, however, nothing absolutely novel to common lawyers in the existence of a reversionary interest on a fee simple, at least in a case where an estate in fee simple is limited subject to some reservation or on some condition precedent which may defeat the estate altogether. For example, if tenant in tail alienated for a fee simple, by an assurance which was effectual only as against his issue in tail, but not effectual to bar the estate in reversion or remainder, the alienee acquired a base fee, and there then was a reversion existing somewhere in case of the failure of the issue of the original tenant in tail. The revisers of the Revised Statutes no doubt intended to save reversionary interests in case their novel limitations were ineffectual in any way. The first of the many questions arising then on the present statute is, does section 42 of the Real Property Law contemplate a 56 § 40, Real Prop. Law; Moore v. Littel, 41 N. Y. at p. 77. 57 § 51, Real Prop. Law; 4 Kent. Comm. 199 (note b). 58 39, Real Prop. Law. 59 § 102, Real Prop. Law. 60 Seymor's Case, 10 Co. 95b; Tudor, Lead. Cas. Conv. 706. |