this State by conveyancers since the Revised Statutes, when crosslimitations are desired by testators, is to limit fees defeasible in separate parcels to children, and if any child die without issue cross-executory limitations over to survivors or their issue per stirpes and not per capita. Here the limitations ought to be held valid, if they comply with the rule against perpetuities. Their validity has no real relation to the section of the statute regulating remainders on life estates. 54 In a case of cross-limitations, based on defeasible fees simple, it is important to remember that formerly it was thought they would not be implied in devises,55 but must be express, and this was probably the old rule.50 But in modern law and at the present day the maxims, "that estates will not be cut down by implication if another construction is possible," 57 and "that cross-remainders will not be implied in a devise," seem to give way to the rule" that the intention of testators must be sought and effectuated if possible." 58 At least, the trend of modern cases is in that direction, while the modern ruling, that since the Revised Statutes lapsed devises no longer fall to the heir by a caducary succession, but pass under the residuary clause,59 is to some extent inconsistent with the old rules regarding the construction by implication of devises of cross-remainders.co Remainder to One on Attaining Twenty-one Years of Age. In Roome v. Phillips, where a devise of a life estate was followed by a "remainder" to the heir-at-law, when he became twenty-one years of age, the questions are discussed on the basis of the new law of remainders, and not on the law relating to executory devises. But the real point adjudicated is that the remainder in 54 8 42, Real Prop. Law; Fowler v. Depau, 26 Barb. 224; Purdy v. Hayt, 92 N. Y. at top of page 457. 55 Fowler v. Depau, 26 Barb. at p. 235. 56 2 Jarman's Power on Devises, chap. 32. 57 Washburn v. Cope, 144 N. Y. 287; Byrnes v. Stilwell, 103 N. Y. 453, 460. 58 See Matter of Miller, 11 App. Div. at p. 342; Vanderzee v. Slingerland, 103 N. Y. 47, 56; Matter of Cramer, 170 N. Y. 271, 275. 59 Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Allen, 151 id. 243; Moffett v. Elmendorf, 152 id. 475. 60 2 Jarman on Wills, chap. XLIII. 61 See next paragraph on "Executory limitations." Roome v. Phillips is vested, but subject to be divested on the remainderman dying under twenty-one years of age."2 03 64 65 62 Executory Limitations on Precedent Estates and "Failure of Issue" of First Taker. Limitations of estate to tenants in common with remainders over on failure of issue, it will be remembered, are only statutory "remainders" and not common-law remainders. Nothing was a remainder at common law which operated to abridge the regular determination of a precedent estate created at the same time, and no remainder at common law could subsist on a fee simple. That the revisers of the Revised Statutes to some extent meant to perpetuate this distinction between remainders and conditional limitations is apparent from their statutory definition of conditional limitations. Their definition of a remainder" was apparently only for the purposes of the conveyancers, and simply to indicate what would pass in a conveyance under the term of "remainder." This statutory definition of remainder" has a slender relation to any active reform contemplated by the Revised Statutes. The reforms of the Revised Statutes in the article on Estates consist mainly in attempts to make conveyances good at law which were formerly good only as executory devises" or in conveyances to uses, and to remodel the old rule against perpetuities, so as to abbreviate the period, and to extend the rule itself to all types of conveyance, whether such as then denominated legal or equitable. 66 66 66 66 With this brief reminder of the reforms contemplated by the Revised Statutes, and only perpetuated in the present article on Estates, let us turn to the now permissible devises of fees defeasible on failure of issue with remainders over in fee. A fee may now be mounted on a fee by a deed between the real parties to the conveyance, as well as by a will or a conveyance to uses, always provided such limitations comply with the revised rule directed against perpetuities."8 62 Roome v. Phillips, 24 N. Y. 463. 63 § 38, Real Prop. Law. 64 1 Preston Estates, 91; supra, pp. 152, 170. 65 § 53, Real Prop. Law. 67 66 Art. 2, chap. 50, Consol. Laws. 67 $ 50, Real Prop. Law. 68 § 42, Real Prop. Law. "Dying Without Issue." A devise of a fee over to another on the first taker"dying without issue" was at common law, whenever possible, construed as a dying of the first-named devisee without issue in the lifetime of the testator; and if such devisee survived the testator he took an absolute fee.69 Otherwise an estate tail would have to be raised by implication in order to save the devise over; for an executory devise after an indefinite failure of issue was void at the common law as a perpetuity." The Revised Statutes provided that a conveyance, containing a limitation over on "a death without issue" simpliciter, should be construed as meaning without issue at the death of the person named as ancestor.12 This was intended to negative the old rule, that a death without issue meant an indefinite failure of issue or an estate tail. The courts now effectuate any evident intention of the testator, that on the first taker's death without issue a fee defeasible shall go over to some one else, and they do not give the first taker a fee simple absolute merely because he survives testator. This is now a rule of property in this State. 66 73 Where a devise is "to a woman and if she die without issue, then over, etc.," there is ordinarily no presumption at any age of her life that she may die without issue, so as to carry an indefeasible title to those in remainder or next in succession to the estate.74 And this was the common-law rule, for a gift to a childless woman of a hundred years of age and upwards and the heirs of her body passed an estate tail, and not a mere estate tail 69 Matter of N. Y., L. & W. R. Co., 105 N. Y. 89, 92; Beck v. Ennis, 54 Hun, 126; Matter of Peters, 69 App. Div. 465; and see Smith's Executory Interests, §§ 537, 656 and cases cited. Lewis in his work on Perpetuities, chaps. XIV, XV, goes over this ground but rarely with great accuracy in his deductions from cases. Lewis, like Cruise, is very deficient in stating legal propositions: See Sugden in Cadell v. Palmer, I Tudor L. C. R. P. at p. 451. 70 Pells v. Brown, Cro. Jac. 450; Rathbone v. Dyckman, 3 Paige, 9, 30; Leake on Prop. in Land, 139, 235; Jarman's Powell on Devises, 188, note 2. 71 Fearne on Conting. Rem. 444; Challis, 146. 721 R. S. 724, § 22, now § 48, Real Prop. Law. 73 Vanderzee v. Slingerland, 103 N. Y. 47, 56; Matter of Cramer, 170 id. 271, 275; Matter of Mahen, 32 St. Rep. 790. Cf. 26 Law Quar. Rev. 239. 74 Downey v. Seib, 102 App. Div. 317; affd., 185 N. Y. 427. after the possibility of issue extinct.75 But in the making of a title by those next in succession, it seems the court will take notice of her age, and have regard to the possibility of issue extinct.76 "Dying Without Heirs." In a similar limitation to a person in being and, "if he die without heirs," remainder over to another, the word "heirs" is, since the Revised Statutes, taken to mean "heirs of his body" and not heirs general or collateral." This decision may be taken as one of the most important lately rendered in the construction of the statutory law of real property. Fees Mounted on Fees. Since fees may now by statute be mounted on fees "78 by any type of conveyance, lawyers and conveyancers of this State are very free in taking advantage of the statutory extension of the old rule regarding executory limitations, and we find, consequently, in any sort of family arrangement, whether it arise by deed or by will, that lawyers constantly avail themselves of the statutory permission. Limitations which are in effect to children of testator, either as tenants in common of one parcel or in severalty of various parcels, and if any of them die without issue, then "remainder" over to the surviving children of testator or their issue per stirpes, are very common limitations in this State. Before discussing the several rules which govern such limitations, as those last mentioned, let us remind the reader of the abolition by the Revised Statutes of the rule in Shelley's Case, whereby in a limitation to an ancestor of any estate of freehold, followed by a limitation to his heirs, the heirs took no estate at all, but the limitation to them coalesced with that to the ancestor. This famous rule of the common law, the Revised Statutes abrogated for the future, with the consequence that in any such limita 752 Preston, Estates, 395. 76 Bacot v. Fessenden, 130 App. Div. 819, 823; 115 N. Y. Supp. 698, 702; and see Adney v. Greatrex, 38 L. J. Ch. where it was assumed that a woman of 60 was past childbear 77 Kiah v. Grenier, 56 N. Y. 220, 225; Matter of Moore, 152 id. 602; Snider v. Snider, 160 id. 151; Matter of Cramer, 170 id. 271, 276. 78 $ 50, Real Prop. Law. 79 tion the heirs now take as purchasers. This was a very wise change, as the rule was never very popular in this State.80 But far the most important reform in the common law regulating limitation of estates was that dispensing with the necessity of mentioning "heirs" in a limitation of a fee simple.81 Where estates are now given to children (and the presumption always is that all the estate of grantor passes82), and if they die without issue, remainder over, there is nothing repugnant to the first devise in fee in the limitation over. The statute distinctly permits a fee to be limited on a fee,83 and even where the first taker has a power of disposition, so as possibly to defeat the remainder entirely, the limitation over is now valid, as the old rule to the contrary is abrogated by the Revised Statutes. 84 In any limitation of a fee on a fee, the fee defeasible is often treated as a "base fee," or a fee upon or subject to a condition, and the consent of those contingently entitled by way of remainder is necessary to convey a perfect title to the estate. It will be observed that the present use of the words "base fee," which strictly relates to a fee which springs from a fee tail, to characterize a fee simple made thus defeasible, is not strictly a technical use of the term "base fee," but is intended to denote a fee which is not simple and absolute in regard to time. If the first taker of a fee defeasible has not an absolute power of disposition of the estate, it is obviously on the principle " cessante statu primitivo, cessat derivativus.' The first taker can dispose of his own estate, and any attempt to circumscribe such a power would be void. But he can dispose of a "base fee" only, under the decisions. 79 Brown v. Lyon, 6 N. Y. 419; Moore v. Littel, 41 id. 66. 80 See Campbell v. Rawdon, 18 N. Y. at p. 420. 81 1 R. S. 748, § 1, now §§ 240, 245, Real Prop. Law; Saunders v. Hanes, 44 N. Y. at p. 364. 82 1 R. S. 748, § 1, now § 245, Real Prop. Law; Williams v. Petit, 138 App. Div. 394. 83 50, Real Prop. Law; Moit v. Ackerman, 92 N. Y. at p. 549; Avery v. Everett, 110 id. 317; Van derzee v. Slingerland, 103 N. Y. 47; 85 Matter of N. Y., L. & W. R. Co., 105 N. Y. 89, 96, 97. 86 See authorities cited, Fowler's Real Prop. Law (3d ed.), 174. |