ful issue the legal remainder, in substance, was made to vest in their issue attaining full age. The court below intimated that on the death of remainderman under age the contingent legal remainder divested in favor of testator's heirs, and it did not imply crossexecutory limitations to brothers and sisters.

Knowlton v. Atkins was a case arising on a deed of settlement where trustees took a fee. The limitations over on the termination of the trust consisted of fees made defeasible by death of first takers. As there were in one aspect more than two shifting fees limited over, the case is an authority for the proposition that any number of shifting fees may be limited over in the event that the first defeasible fee divests and the ulterior limitation vests within two lives and an actual minority.

The case of Wilson v. Whites1 (1888), so far as it goes, seems to be also an authority for the proposition that there may be, under section 42, Real Property Law, any number of shifting statutory remainders in fee (formerly shifting devises) if vesting within the time limit of the rule against perpetuities which now furnishes the supreme test of their validity. But in that case there was no provision in the will that the first remainders in fee should divest if first takers die under age; the remainders over were really contingent on life tenants dying without issue. But under Moore v. Littel the first remainders to life tenant's sons were vested remainders in fee, but defeasible and subject to open and let in after-born issue. If the first remainders in fee divested absolutely, then the contingent remainders were to take effect, and these remainders over the Court of Appeals seem to regard as valid limitations, as they must vest if at all after a single life in being. There is in reality in substance very little difference between the limitations in Wilson v. White and the limitations of the shifting remainders in the case supposed above in our text. In Wilson v. White the judicial assumption seemed to be that the statute authorizes any number of shifting defeasible contingent remainders in fee, if they must vest if at all within the time limit prescribed by the rule against perpetuities. It cannot be possibles that since the Revised Statutes a marriage settlement, or a devise, to wife for her life and at her death to hus

80

134 N. Y. 313, 318. 81 109 N. Y. 59.

82 See Lalor, Real Prop. 86, 87.

band for his life, remainder to their eldest son, and if the eldest son die under age, then to the next son, and if the next son be then dead, then to the third or other surviving son of the marriage, the limitation to the third and successive sons was intended to be made void by the Revised Statutes.s

83

That that construction of the statute, which permits within the time limit any number of so-called contingent remainders in fee over after a particular estate to two lives in being, must be the true one is apparent, if we consider that: (1) The terms "future estate" and “remainder" in the statute embody all former shifting uses and devises as well as common-law remainders.84 (2) The revisers did not intend to circumscribe any limitations of estates permissible as uses or devises before the Revised Statutes, except as to the time limit, which they cut down to two lives and an actual infancy.85 Any number of shifting uses were valid limitations before the Revised Statutes but subject to the old rule against a perpetuity.86 (3) Unless more than one contingent remainder in fee is now permissible after the first contingent defeasible fee, and such first contingent remainder actually divests before the majority of the first taker, and the second remainderman is then dead, there will be a reversion left in devisor which can not be disposed of. And yet a reversion being always a vested estate is devisable and must pass under a residuary devise unless expressly prohibited by the statute. If it so pass as a devise of a reversion, it must pass as a devise of a remainder.

It has been repeatedly said in this State, since the Revised Statutes, that excepting estates to trustees, no vested estate ever suspends the power of alienation.87 The only possible objection to a series of shifting contingent remainders in fee, which must vest if at all within the time limit, is that those after two may be regarded

$3 See the 12th ed. of Williams on Real Prop., chap. 3, part 2. This elementary and excellent edition was prepared by the author himself. Later editions than the 13th denote the extraordinary changes in the modern law of England. That modern law is now happily quite irrelevant in this State.

84 See revisers' note, I R. S. 723, 8 10; Fowler, Real Prop. Law (3d ed.), p. 1278.

85 Supra, p. 152.

'36 Williams, Real Prop. (12th Eng. ed.) 290, 292, 317, 318, 319.

87 Purdy v. Hayt, 92 N. Y. at p. 451.

as too remote within the doctrine lately announced in Matter of Wilcox.88 But invalidity for remoteness is purely modern English law and was not the law of New York before the Revised Statutes.8 89 The modern English doctrine of invalidity for remoteness is said to owe its origin to the Duke of Marlborough's Case. This was a case in chancery. If the reader will take the trouble to turn to the report of that case he will find that the decision was predicated of the application of legal rules to equitable estates and the unlawful suspension of the power of alienation according to such rules of law. Counsel for the Duke of Marlborough there said, "that the greatness of the property is the sole cause of the solemnity with which this case has been introduced, for the question itself is not one of any difficulty. The common law will not suffer an estate to be unalienable for a longer period than a life or lives in being and a few years afterward." It was claimed that the limitations in the case transgressed the rule, as they involved lives not in being. The Lord Keeper, Northington, seems to have assumed all through his opinion that the limitations of the power to trustees involved an actual suspension of the power of alienation. The judgment in the Duke of Marlborough's Case is a slender fabric on which to rear so elaborate a structure as the modern doctrine of invalidity for remoteness where there is no suspense of the power of alienation.

* *

An examination of any of the early judgments, which are supposed to sanction the modern doctrine of invalidity for remoteness, will, we think, disclose what the logicians call an enthymeme, or the suppression of the premise affirming the suspension of the power of alienation. For example, every executory devise suspends the power of alienation, and when it is said that a particular executory devise is void for remoteness, the premise affirming the suspension of the power of alienation is usually suppressed, or taken for granted. From such a logical enthymeme, the modern naked doctrine of invalidity for remoteness alone appears to have been evolved. A limitation which does not suspend the power of aliena

83

194 N. Y. 288.

89 See the argument and citations, Fowler, Pers. Prop. (2d ed.), pp. 40, 315; Fowler, Real Prop. (3d ed.), pp. 274, 276, seq.

90 I Eden, 404; 2 Spence, Eq. Juris. 93.

66

tion can not be void for remoteness alone, as remoteness alone is inconsequential in the law regulating alienation. To affirm that remoteness restricts the alienation of property when such property is immediately alienable, is a statement which amounts to absurdity. The revisers of the Revised Statutes apparently had no intention of importing into New York jurisprudence invalidity for remoteness alone when there was no suspension of the power of alienation. Their formal definition of a perpetuity forbids any other conclusion. The doctrine of the English courts relative to remoteness is of late origin and arose in the courts of equity originally. At common law remainders might be limited to take effect at any time, however remote.9 91 Inasmuch as there was an immediate power to bar remainders there could be no perpetuity in them. A perpetuity was at common law an estate inalienable though all mankind joins in the conveyance." "92 In fact inalienability was the sole test of a perpetuity at common law and before the Revised Statutes. The old rule against perpetuities is not ancient. It arose only after the Statutes of Uses and Wills and the new forms of conveyance by devise and use, which were not susceptible of being barred for a fee simple by tenants of the immediate or precedent freehold. It is generally recognized that had executory interests and future uses been held distructible in the same way as contingent remainders, the so-called rule against perpetuities would not have been formulated or found expression. But even after the rule found its place, little by little, in the jurisprudence of the common law, always in analogy to the common-law rule allowing settlements by way of particular estates and remainders (for the judges could not invent a rule), executory interests and future uses were at first regarded as subjected to the rule against perpetuity only because they were inalienable by persons in esse. Thus the learned Fearne states in substance: "A recovery will not bar an executory estate. This privilege of executory devises, which exempts them from being barred or destroyed is the foundation of an invariable rule with respect to

91 Sugden's Gilbert Uses, Introduction.

92 Sir. E. Sugden in Cadell v. Palmer, Cl. & F. 372; Scattergood v. Edge, 1 Salk. 229; Wasbourne v. Downes, I Ch. Cas. 23; Hawley v.

James, 16 Wend. 61, 121; Stanley v. Leigh, 2 P. Wms. 687.

93 See the citations of authority on all these points: Fowler's Real Prop. (3d ed.), 261–274.

the contingency upon which an action of this sort is permitted to take effect; * **: for every executory devise so far as it goes creates a perpetuity; that is, an estate inalienable till the contingency be determined one way or another."

94

The same distinguished author (who, with a very few other commentators on the common law, has the privileged and recognized position of an authorized juris-consult) states in substance that all future and shifting uses and other springing and executory interests which are not remainders are to be considered as subject to the same limits and restrictions as executory devises.95

In this way, but very gradually in England, a remoteness of vesting, which at first always postulated inalienability, began to usurp the place of inalienability alone as a supreme test of a perpetuity. This extension of the rule in England at first applied only to executory devises or future interests;96 then remoteness of vesting was extended to equitable contingent remainders, as they could not be barred." This was very proper for they were not alienable as were common-law remainders. Very lately, against the open protest, and even the ridicule, of the old school of common lawyers, remoteness of vesting has been several times extended in England by the lower courts to remote legal contingent remainders.98 Now it is said inalienability has nothing to do with the rule against perpetuity. But the revisers of the Revised Statutes knew nothing of the later and most extraordinary stage of the development of the present English version of the rule." How could they? It is only very lately that the protests of the stricter common lawyers at the innovation in England have ceased there to be heard. These protests may at any time, if some great property case arise in England like the Duke of Norfolk's Case or the Thelluson Case, find favor in the court of last resort. It is by no means certain as yet that even in England a future estate immediately alienable by

94 Fearne, Conting. Rem. 429, 430. This is also stated by Sugden in Cadell v. Palmer.

95 Fearne, Conting. Rem. 440, 441, 442, 443.

96 Here there was a conclusive legal presumption of inalienability.

97 In re Hargreaves (1889), L. R.

43 Ch. D. 401; Abbiss v. Burney (1881), L. R. 17 Ch. D. 211.

98 In re Frost (1889), L. R. 43 Ch. D. 246; In re Ashforth, L. R. (1905) I Ch. 525.

99 See Jackson, er dem. Nicoll v. Brown, 13 Wend. at p. 440.