66 " 24 But at common law cross-remainders are not necessarily confined to remainders limited on undivided parts of the same parcel of land. If a devise be of one parcel of land to A in tail, and of another parcel of land to B in tail, and if either die without issue the other to take, and if both die without issue then to C in fee, the remainders to A and B are cross-remainders." Chancellor Kent in his Commentaries necessarily changed Blackstone's language so as to make the illustration apply to devises of cross-remainders following separate estates to A and B in fee; estates tail having disappeared in America.25 But as before remarked, such remainders on estates in fee are not common-law remainders but cross-executory limitations, as is shown by Chancellor Kent's use of the word "devise." In making this change in the illustration by Blackstone, Chancellor Kent showed his usual discrimination and profound knowledge of changed conditions, for the abolition. of estates tail in this country had made it necessary that most crosslimitations should take effect as executory devises, or in conveyances to uses, and no longer as common-law remainders.26 Effect of Abolishing Entails. Since cross-remainders at common law limited on particular estates tail must have fallen in this State in 1782, when the first statute converting estates tail into fees. simple was enacted, we need not longer dwell on cross-remainders after estates tail. As at common law there could not be a remainder on a fee simple,2s it is also apparent that the only old cases now relevant to our present statutory conditions must be mainly those which treat of cross-executory uses or limitations, and that the old cases bearing on cross-remainders after estates tail have no longer any application in this State.29 The old cases on crossremainders after life estates remain, of course, pertinent to present conditions. But there are few of them to consider, as in practice cross-remainders usually followed particular estates tail.30 242 Black. Comm. 381; Challis, 299; Lott v. Wykoff, 2 N. Y. 355. 25 4 Kent Comm. 201. 26 See Leslie v. Marshall, 31 Barb. 560, as to distinction between remainders and executory devises. 27 See Fowler's Real Prop. Law (3d ed.), under § 42, p. 205 seq. 23 Jackson v. Robins, 16 Johns. 537, 589. 29 See Leslie v. Marshall, 31 Barb. 560, and Wolfe v. Van Nostrand, 2 N. Y. 436, as to the distinction between remainders and executory devises. 30 Lott v. Wykoff, 2 N. Y. 355. In practice in this State since the Revised Statutes cross-limitations can now arise in two ways only: by cross-remainders after life estates to tenants in common, 31 or by cross-executory limitations of estates in fee simple to persons in esse, and, on their death without issue, cross-limitations to those of the grantor's stock. These dissimilar limitations in reality come at present to much the same thing, as in the last case the fee, ex necessitate rei, is in reality cut down to a life estate. The statute making a failure of issue now implies a failure of issue at the death of the parent,32 and no longer an indefinite failure of issue which could formerly in this State be supported only as an estate tail.33 We have already intimated, that devises of remainders over after a failure of issue are not common-law remainders, but executory limitations, and they are to be resolved on principles, found in the old cases on executory limitations, rather than in those bearing on remainders. Yet, as it is still the law of this State that no devise which can be construed as a former remainder shall be construed as a former executory devise, and as cross-remainders on life estates are still possible, we will first consider devises of common-law cross-remainders.34 The only common-law cross-remainders which are now permissible in this State since the Revised Statutes must follow life estates in separate parcels or in the same parcel to tenants in common. For example, if a testator devises life estates to his four children, A, B, C and D, in one parcel of land, with remainders to testator's own right heirs or heirs of his body, his children will take as tenants in common for their several lives, and cross-remainders will be implied at the death of the testator's first child.35 Had the testator used the words "cross-remainders to my own right heirs or to the heirs of my body" no implication would have been, however, necessary, as the most informal expression, if clear, suffices 31 Denison v. Denison, 185 N. Y. at p. 447. 32 § 48, Real Prop. Law. 33 See Fowler's Real Prop. Law (3d. ed.), p. 335. 34 Manice v. Manice, 43 N. Y. at p. 368; Miller v. Van Schwarzen stein, 51 App. Div. 18, 23. The old to carry cross-remainders at common law,36 and such is no doubt still the law." It will be remembered at this point that any words which formerly raised an estate tail now carry a fee simple to the first taker.38 Cross-remainders are in reality a simple species of family settlement, as they are designed to keep the property for a time in a particular line of devolution which is generally that of the settlor.39 If a testator were to give estates to his children, to hold as joint tenants, and not as tenants in common, with remainders to grandchildren as purchasers, the result of the limitation would seem to be very like that flowing from a limitation of cross-remainders after estates to tenants in common for life. In either event, if testator had only two children, there would be no illegality under the existing statute.40 The object of cross-remainders at common law was to so limit a family estate that upon the failure of each stock taking shares its share would be divided equally among other stocks, and that all the original and accrued shares would finally devolve upon the last subsisting stock. Such a scheme, if not wholly impaired by the provisions of the Revised Statutes, was very much abbreviated. Cross-remainders over were tolerated by the Revised Statutes only within very narrow limits; the number of vested particular life estates which could support cross-remainders was reduced to two. In short, the entire common-law scheme of settlements by way of particular estates and cross-remainders was destroyed by the Revised Statutes. And not only this, but the schemes of settlements by way of executory limitations, which had grown up after the Statutes of Uses and Wills, were entirely remodeled by the Revised Statutes. Cross-remainders between two persons create no difficulty either at common law or under the present practice; thus, by the common law, one undivided moiety in tail with remainder to B in tail, and 36 See Lord Kenyon's opinion cited 4 Cruise D. 301. 37 See Purdy v. Hayt, 92 N. Y. at P. 454. 388 32, Real Prop. Law; Matter of Moore, 152 N. Y. 602. 29 This observation by the author is offered only by way of analogy, and not as a legal proposition. But Mr. Preston also noticed the resemblance of cross-remainders to species of entails. 40 Purdy v. Hayt, 92 N. Y. at p. 454. 41 See Challis, Real Prop., 300. 43 the other undivided moiety to B in tail with remainder to A in tail; 42 or, under our present practice, limitation of an estate to Jane and Catherine as tenants for life, and remainder of the share of the one first dying to the other, are both limitations entirely free from difficulties either legal or practical; the former by the common law, and the latter under present statutes. It is only when a similar limitation is to more than two first takers that the result is more complex and questionable. For example, consider a limitation as follows: Estate" for life to A, B, C and D, and, if any one of them die, remainder to the survivor, so that the final survivor will have the whole." Here all the life tenants are seised as tenants in common of an undivided one-fourth. But each has three cross-remainders in the various other undivided fourths. For example, if A first dies, B, C and D have each life estates in their original one undivided fourths, and in addition a vested remainder in one undivided fourth of the entire fee simple. If B then dies, C and D are seised of an undivided one-half of the fee simple; thus each of them has his original undivided one-fourth for life, and an undivided one-half in fee simple. When C next dies, D, the final survivor, takes the entire estate. this State such cross-remainders, if limited on more than two successive life estates will, on the death of the two first dying, be accelerated, unless the remainders are contingent. It has been before intimated that the decision, excepting contingent remainders from acceleration, probably meant when they are contingent because to persons not in esse. Remainders to persons not in esse can not be accelerated in the nature of things.* But when the remainder is contingent because of survivorship of a class at a future date, it is at least susceptible of acceleration cy pres. 47 But in practice in 46 Under the decision of the leading case on cross-remainders in this State, cross-remainders may be valid as to some shares, and invalid as to others. The questions, how far and why such crossremainders are invalid, are very important questions, and as they 42 Challis, Real Prop., 299, 300. 43 Purdy v. Hayt, 92 N. Y. at p. 454. 44 Lorillard v. Coster, 5 Paige at p. 229. 45 Supra, p. 140. 47 Purdy v. Hayt, 92 N. Y. 446. are by no means settled they need not be discussed at length. It will suffice to point out here, that by the existing law of remainders no cross-remainder is valid as to any share, if it is limited to take effect in possession after more than two particular life estates. Therefore, cross-remainders between more than three persons are now obviously impossible. This is not because of the present rule against a perpetuity, but because of the existing law of remainders; although remainders, if contingent, because to persons not in esse, are subject to the present rule against perpetuities. Cross-remainders between more than three persons are not only now impracticable because prohibited by the law of remainders, but because they can not be barred. Under the old law tenants in tail could bar the cross-remainders, limited on his particular estate, by a common recovery, and all the tenants in tail in possession unitedly could probably bar the cross-remainders by a fine. But under the present law, no tenant for life can bar any of the crossremainders by any act of his own.49 Cross-remainders, if contingent, are, therefore, certainly subject to the existing rule against a perpetuity,5o even if they are not adjudged void for remoteness, as it is lately intimated in Matter of Wilcox may be the case.51 The difficulty in practice, then, with an ultimate limitation to grandchildren, after life estates to their parents, is, that as there can no longer be cross-remainders after two precedent life estates fall in, the remainders may be let in too soon.52 Besides, the testator generally wishes to give fees to his children, defeasible on their death without issue, and not mere life estates. But, as stated repeatedly before, cross-remainders of fees on fees defeasible are really cross-executory limitations, and not cross-remainders at all. To call such limitations cross-remainders and endeavor to apply old cases touching cross-remainders is very confusing to principle. Such remainders are now called "cross" simply in deference to the statute defining remainders.53 The general method employed in 48 This was a very nice question at common law, depending on the nature of the particular cross-remainder. 49 § 58, Real Prop. Law. 50 Purdy v. Hayt, 92 N. Y. at p. 51 194 N. Y. 288. 52 $ 43, Real Prop. Law; Purdy v. Hayt, 92 N. Y. at pp. 451, 455. 53 § 38, Real Prop. Law. |