persons in esse will be allowed to perish because too remote in vesting. It will be remembered that after the Revised Statutes in Cadell v. Palmer in 1833 Lord St. Leonards (then Sir E. Sugden), a worthy compeer of the learned Fearne, said: "The old law raised no objection to estates granted in perpetuity, provided there was a power to bar them or destroy them so as to render them alienable." 1 In 1883, in the House of Lords, Lord Blackburn again struck the old key, when he tersely said in substance in Witham v. Vane that a power to alienate is inconsistent with a perpetuity. This intimation is only important as an indication of the probable judgment of the highest court in England when the real question is presented to that tribunal for a final solution. If the older cases on perpetuity, arising on executory devises and shifting uses, are examined in detail in connection with their statements about invalidity for remoteness of vesting, it will probably be found that the limitations are in essence to persons not in being, or otherwise inalienable, and that inalienability is postulated of such limitations. It is mainly the text writers of the academic sort, we venture to think, who insist on invalidity for remoteness alone in cases where there is no suspense of the power of alienation. When the discussion comes before the judges in concrete cases the situation is altered.

We have already cited the utterance of Lord Blackburn in Witham v. Vane in the year 1883. In the Birmingham Canal Co. Case2 Fry, J., said in substance, "that whenever a right or interest is presently vested in A and his heirs, although that right may not arise until the happening of some contingency which may not take effect within the period defined by the Rule against Perpetuities, such right or interest is not obnoxious to that Rule and for this reason: The Rule is aimed at preventing the suspension of the power of dealing with the property * * *. But when there is a present right of that sort, although its exercise may be dependent upon a future contingency, and the right is vested in an ascertained person or persons, that person or persons concurring with the person who is subject to the right, can make a perfectly good title to the property * * * I think that Gilbertson v. Richards is a distinct authority in favour of that conclusion."

11 Cl. & Fin. 372.

211 Ch. D. 421, 48 L. J. Ch. 552.

Were the Canal Co. case not a late English case we should think that we were listening to the voice not of Fry, J., but of the New York revisers of 1830. There are other English cases to the like effect, notably Sir R. P. Arden in Routledge v. Doril; Cranworth, C., in Gooch v. Gooch, and Avern v. Lloyd, where Romilly, M. R., held that a limitation to a class of unborn issue for life and to the representatives of the survivor, being one in which all the interests were alienable within the legal period, the rule did not apply. So in Keppell v. Bailey Lord Brougham said in substance, that a certain remote covenant in regard to the use of land was not within the Rule against Perpetuities, because the land was susceptible of immediate alienation.

There are other late English cases to the same import subsequent to the Revised Statutes of New York. Well may a learned writer on perpetuities, Mr. Marsden, admit that these cases can not be reconciled with the very modern English interpretation of the rule against perpetuities. In view of these late English cases and the very strange ones to the contrary in England, it seems a late time of day for the intimation in this States that the revisers of the Revised Statutes intended a rule, the precise contrary of the statute making a suspension of the power of alienation the sole test of a perpetuity. The dictum in Matter of Wilcox is not therefore entitled to be regarded as authoritative.

Having now examined the validity of contingent remainders in fee from various points of view, we may conclude that, for the reasons stated, devises of legal estates by way of shifting contingent remainders are now valid whenever similar limitations by way of shifting uses and devises were valid at common law, provided only that such remainders or legal estates now vest within the actual minority of the first contingent remainderman. Thus such a limitation as the following is valid: life estates to A and B. (persons in esse) for their successive lives in succession, remainder

32 Ves. 256, 266.

43 D. M. & G. 366, 384; 22 L. J. Ch. 1089.

5 L. R. 5 Eq. 383, 37 L. J. Ch. 489. 62 M. & K. 517.

The Rule against Perpetuities, p

8 Matter of Wilcox, 194 N. Y. at P. 298.

91 R. S. 723, § 14, now § 42, Real Prop. Law.

to their eldest child (not in esse), and if such child die under age remainder to the second child (not in esse), and if it then be dead remainder to the next surviving child in order of seniority who shall be living when such eldest child decease, and if there be none then surviving, remainder to C, a person in esse.

10

That the revisers of the Revised Statutes never contemplated a perpetuity when there was no suspense of the power of alienation, or that limitations of estates should thereafter be avoided for remoteness when there was no suspension of such power (although the contrary is lately intimated in Matter of Wilcox) 1o is, we think, shown conclusively by their note to section 26 of the article on estates (1 R. S. 724). Else why did they say: "If a remainder does not restrain the alienation of the estate beyond the period allowed by law * of what consequence is it, or can it be, whether the contingency on which it is limited is near or remote? probable or improbable." 11 Here, it will be observed, the revisers distinctly reject mere remoteness as a ground of objection to any limitation of a future estate. Can anything be more conclusive or authoritative of their intention?

* *

Cross-Remainders. We have pointed out at a former page that there was a difference before the Revised Statutes between crossremainders and cross-executory limitations.12 The non-observance of this distinction since the Revised Statutes tends to make the citation of old cases somewhat confusing to the general reader; common-law cases bearing on cross-remainders having little application to cross-executory limitations, and e converso.

At common law the subject of cross-remainders is intimately connected with tenancy in common.13 Cross-remainders in practice, however, generally followed particular estates tail, either in separate parcels of land or individual shares of the same parcels. Cross-remainders could not be raised by implication in a deed, but might be so raised in a will. When Blackstone wrote his great

14

11 See Fowler's Real Prop. Law (3d ed.), p. 1281.

12 Supra, p. 159.

132 Preston, Abstracts Title, 78; Challis, R. P. 299.

14 Challis, R. P. 299; Crabbe, R. P. §§ 2339, 2340, Greenleaf's Cruise, IV, 298, 299; 2 Preston, Abstracts of Title, 78; I Preston, Estates, 95.

Commentaries on the Laws of England, cross-remainders, he stated, were not implied between more than two devisees.15 But from Mr. Butler's note to Coke on Littleton this doctrine, founded by Blackstone on Cro. Jac. 655, would seem to have been exploded, and cross-remainders between more than two devisees would be implied, but it required a stronger implication than when the remainders were between two persons only.16

Cross-Remainders at Common Law. When lands are given in undivided shares to two or more for particular estates, so that upon the determination of the particular estates in any of those shares they remain over to the other grantees, and the reversioner or remainderman is not let in till the determination of all the particular estates, the grantees take their original shares as tenants in common, and the remainders limited among them on the failure of the particular estates are known by the appellation of "crossremainders." 17

A very accurate and eminent conveyancing counsel in the early part of the last century, Mr. Preston, has given the best account of the operation of cross-remainders under the old law, and all the more modern commentaries on this subject are mainly derived from his writings or from the sources we have already cited immediately above.18 The old learning in reference to cross-remainders was not difficult of apprehension when the cross-remainders were between two persons; but when the particular estates were many and the remainders on them crossed between many persons, the mode by which they could be effectively alienated required the highest degree of professional skill. The revisers of the Revised Statutes were familiar with such difficulties, and they, therefore, made cross-remainders thereafter permissible only to a very limited

extent.

Cross-remainders not limited on estates tail, but after an indefinite failure of issue could, before the Revised Statutes, only arise as uses or devises, and such cross-remainders were then circum

152 Comm. 381.

16 Coke on Litt. 159b, and SO state; 2 Jarman on Wills, 460, 461, and Ram on Wills, 61.

17 Butler's note, Co. on Litt. 1956.

This note is generally paraphrased in books on Real Property. See Goodeve, R. P. 265.

18 I Preston on Estates, 94.

scribed by the contemporary rule against perpetuities.10 It was for this reason that in practice, under the old law, cross-remainders generally followed particular estates tail.20 An example of a limitation of cross-remainders by deed under the old law is: "Estates tail to the use of all the daughters (say A, B, C and D) in equal shares as tenants in common in tail, and if and so often as there shall be ' a failure of issue of any such daughters then as well as to her original share as also to any share which shall have accrued to her or her issue by virtue of this present limitation, to the use of the others of such daughters in tail in equal shares as tenants in common. And if there shall be a failure of issue of all such daughters but one, then as to the entirety of the premises to the use of such one daughter in tail."

Here (as the reader will observe) if there are four daughters and several die without issue, the shares of those dying go to augment the shares of the others. In limiting cross-remainders in tail care had to be taken to give the accruing shares over as well as the original shares. Otherwise the accruing shares would go to the next remainderman21 (or in a devise pass as undevised if there were no remainder over, as there always is in a strict settlement).22

The reader will also remember that at common law, cross-remainders after estates tail were never too remote, as remoteness was out of the question when the limitations took effect as legal limitations, and not as uses or executory devises.23 As applied to remainders after estates tail Lord St. Leonard's remark has never been doubted in England, even during the late academic effort to subject legal remainders to the modern rule against perpetuities; an effort with which the common law of this State has no concern, as it is more modern than our existing common law of real property.

19 Patterson v. Ellis, II Wend. 259; Vedder v. Evertson, 3 Paige at pp. 291, 292; Van Vechten v. Pearson, 5 id. 512; Ferris v. Gibson, 4 Edw. 707; Hill v. Hill, 4 Barb. 419.

20 See the authorities cited in Fowler's Real Prop. Law (3d ed.), 224.

21 See Elphinstone's Introduction to Conveyancing (6th ed.), p. 403.

22 The author makes this last observation as tentative only, as it concerns English law.

23 Lord St. Leonards in Cole v. Sewell, 2 Con. & Laws, 344; 4 Dr. & W. 1; also cited in 2 Washburn on Real Prop., 235 (1st ed.).