It is because of these peculiar and modern rules, relating to fees defeasible and the devolution of fees since the Revised Statutes, that family settlements or wills in this State are so peculiarly dependent on the construction of limitations of fees defeasible, or of fees over in case the first taker "die without issue."

87

89

A fee may now be limited on a fee only when the limitation over complies with the article on Estates in the Real Property Law, or to quote the statute: "A fee may be limited on a fee, upon a contingency which if it should occur must happen within the period prescribed in this article" (on Estates). It was formerly generally understood that this circumscription of the power to limit a fee on a fee referred only to the revised rule against a perpetuity, and not to the sections of the statute regulating the limitation of former common-law remainders. But a late opinion of the Court of Appeals somewhat disturbs this understanding of the profession. It denies that the suspension of the power of alienation was intended to be the sole test of a perpetuity, and cites in support of the contention those restricting or regulating sections of the Revised Statutes which relate to the creation of future estates by limitations in the nature of former common-law remainders. By the old law, antecedent to the Revised Statutes, there were two classes of rules regulating the creation of future estates. If estates were created by legal limitations or, in other words, by those limitations which were recognized antecedently to the Statutes of Uses and Wills, they were regulated by a set of rules of very ancient origin, designed to prevent "a perpetuity which the common law abhorred." These rules answered all purposes before modern statutes changed the common law. If on the other hand a future estate was created by some assurance which was good under the Statutes of Uses or Wills only, then the so-called rule against perpetuities regulated the limitations so as to prevent the undue suspense of the power of alienation. At the time the Revised Statutes took effect this distinction was familiar to all real property lawyers. It is very obvious from the scheme of the Revised Statutes that the

87 I R. S. 724, § 24, now § 50, Real Prop. Law.

88 Matter of Wilcox, 194 N. Y.

89 I R. S. 724, §§ 18-23, now §§ 44-49.

revisers had regard to this existing distinction. It would have been, indeed, strange if they had not regard to it. They consequently regulated limitations in the nature of former common-law remainders by a series of sections which modified the former law. Limitations in the nature of former executory limitations (not being remainders), they subjected to the rule against perpetuities which they revised by abbreviating the old period during which there might lawfully be a suspension of the power of alienation. This phase of the scheme of the Revised Statutes was recognized in the case of Purdy v. Hayt, where it was well said that one of the sections regulating remainders had no necessary connection with the rule against perpetuities. Had the other sections of the statute regarding remainders been under review no doubt this sensible observation would have been extended to them, in so far as pertinent.

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We have seen that under the decisions, in the limitation of a fee on a fee to persons in being, the first taker takes a base fee defeasible. on his death without issue. The second taker then ordinarily takes a fee simple absolute by the terms of the limitation. But if a particular limitation should provide that in case the second taker die without issue, then the estate should vest in the then eldest male heir of the testator, and if such eldest male heir die without issue under the age of twenty-one years, then to the next male heir of testator in order of seniority, would it violate the existing statute? We have alluded to this question before in these pages. The ulterior limitation would certainly vest, if at all, within two lives in being and an actual minority, and would be within the revised rule against a perpetuity. It is true that in Mott v. Ackerman the court states that in a limitation of a fee on a fee the contingency upon which the second fee vests, if at all, must happen within two lives." But there is nothing within the context of the opinion which decides that fees defeasible or shifting fees may not be limited so as to vest beyond two lives, provided that they vest, if at all, within an actual minority in addition to the two lives in being.92 That point was not before the court.

Prior to the Revised Statutes any number of shifting fees could, by a skilful conveyancer, be well limited as "executory interests,”

90 92 N. Y. at p. 451.

91 92 N. Y. at p. 549.

928 42, Real Prop. Law.

provided that such shifting fees all vested within the old rule

93

against perpetuities. The reform of the Revised Statutes was to make any former limitations by way of shifting uses or executory devises valid at law and in any form of conveyance without resort to the law of uses and devises, and to circumscribe the lawful period for the suspension of the power of alienation from any number of lives and a term in gross of twenty-one years to two lives and an actual infancy in addition. The revisers so announced repeatedly, and the courts of this State have since, in several well-considered cases of magnitude, placed this construction on the statute. It would therefore seem that the question is not really open, and that since the Revised Statutes, as before it, any number of fees defeasible can be limited over, provided they finally vest within the contemporary rule directed against perpetuities.94

Remainders Favored by Construction. But in the construction of shifting limitations of fees on fees it should be recalled that if a limitation can possibly be construed as a remainder it will not be construed as an executory limitation. The purport of this rule still holds good since the Revised Statutes, as it is still desirable that estates should be certain, rather than uncertain, and vested rather than contingent.95

Conditional Limitation. In the old law it was sometimes doubtful, however, whether a settlement took effect as a remainder or under the Statute of Uses or the Statute of Wills. Digby in his notable "History of the Law of Real Property" refers to this point in a note in which he states, "that there would be no objec

93 Tudor, L. C., R. P., note p. 464; Leake on Prop. in Land, 33, 261, 319; I Preston, Estates, 492; 2 Preston on Conveyancing, 478; Fearne, Conting. Rem., 276, 373; Smith, Ex. Interests, S$ 147, 148, 149, 165; Challis, Real Prop., 147; Goodeve, Real Prop., 287; Williams, Real Prop. (12th ed.), 289-320; Van Horne v. Campbell, 100 N. Y. 287, 291; Stokes v. Hyde, 14 App. Div. 530, 535.

94 See Williams v. Jones, 166 N. Y. at p. 538, as to "shifting uses and executory devises" being now conditional limitations," and see Rudd v. Cornell, 58 App. Div. at pp. 216, 217, as to fees defeasible under modern statutes. See also above pp. 152, 155, 161, 166.

95 Manice v. Manice, 43 N. Y. at p. 368; Miller v. Van Schwartzenstein, 51 App. Div. 18, 23.

tion at common law to a grant to A until marriage with B and then to C. Here the estate would be an estate determinable upon the specified event, and in any case would not be more than a life estate. Such a grant would therefore be a conditional limitation, and on the happening of the event the estate would terminate in accordance with the limitation, and this estate, being a particular estate, and not a fee simple, there is nothing to prevent the estate to C taking effect by way of remainder. See Fearne, p. 13, and Butler's note, Ibid."

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This quotation from Digby permits us to call attention at this point to the very subtle difference between some present contingent remainders and conditional limitations. It is alluded to by Chancellor Kent with disapproval, and he very properly states that a "strict conditional limitation requires no particular estate to support it." 97 Mr. Challis has also noted the confused usage in regard to the term conditional limitation, and declines to employ it in precise discussion.98 The revisers of the Revised Statutes with their usual acumen thought it desirable to settle the definition by statute.99 If we might hazard an adverse comment on such a refined and justly distinguished writer as Mr. Fearne, we would venture to assert that even in his great treatise on Remainders that profound lawyer abandons the terminology of the law of remainders at points in his treatise, and that he appears to be unconsciously influenced by the familiar practice under the Statutes of Uses and Wills in his comments on the law of remainders.1 Mr. Butler seems at first to follow Fearne, but at a later place to correct him on this point. But without regard to the accuracy of the very distinguished writers just mentioned, it should be pointed out that the term conditional limitation is only used in the Revised Statutes to designate limitations not good by the common law.

Shifting or Cross-executory Limitations May be Implied in Devises. It was probably the old law that cross-executory limi

tations would not be implied in devises. So according to Mr. Powell, "If a gift is made to several persons in fee as tenants in common with a limitation over in case they all die under twentyone, the share of one of the devisees dying under this age will devolve upon his representatives, unless and until the whole die under that age." 5 In other words, the law was unwilling to cut down a fee to a life estate by mere implication in a devise. But in order to effectuate the intention of testators modern cases do seem to raise cross-executory limitations by implication; at least the construction accorded cross-devises in some cases seems no longer consistent with the principle, that cross-executory limitations will not be implied in a devise. But that cross-executory limitations will not be implied if another construction is possible is perhaps to be inferred by the recent adoption of the old principle, that whenever a limitation can be supported as a remainder it will not be regarded as an executory devise. If this doctrine still holds since the Revised Statutes, then, whenever the first limitation vests in possession those that follow will still cease to be executory and become mere vested remainders. It would, therefore, seem that cross-executory limitations will never be implied if another construction be possible, and that the old policy, that estates will never be deemed in suspense when they may be regarded as absolute, is still a rule of construction.

Devise of Legal Estates, with Powers to Tenants Thereof to Dispose of the Fee Simple, and Remainders Over. Where testator devises life estates with power to life tenants to dispose of the whole estate or corpus, and yet limits a remainder over in fee to definite persons, such remainders are contingent on the nonexercise of the power by the life tenant. Such remainders never

4 Fowler v. Depau, 26 Barb. at p. 235.

5 2 Jarman's Powell on Devises, 625; and see 2 Jarman on Wills, chap. 44.

6 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.

7 Manice v. Manice, 43 N. Y. at p. 368; Miller v. Van Schwartzenstein, 51 App. Div. 18, 23.

8 Lion, ex dem., etc. v. Burtis, 20 Johns. 483, 489; Wilkes v. Lion, 2 Cowp. 333, 389. Cf. Vedder V. Evertson, 3 Paige, 281, 291.