27

ance rapidly approached its final form, described by Hale and followed in the original edition of Blackstone's Commentaries, published in the eighteenth century.28 Although not published until a century after the English had assumed the government of New York and introduced here their jurisprudence, it is to the earlier editions of Blackstone's Commentaries, before the days of the editors," that we in New York naturally look for a picture of that common law which prevailed in the Province of New York prior to its independence of the Crown.29 Blackstone's Commentaries owed much to Hale's Analysis of the Law.30 Blackstone laid down what he calls seven "canons," or rules of descent, prescribed by the common law of descent. Lord Chief Justice Hale had, however, preceded Blackstone by a century in a somewhat similar synopsis, drawn out of the common law.*1 But Blackstone, as usual, improved on Hale's treatment of this subject, and he is clearer and simpler in detail. Blackstone's seven "canons," generally adopted by legal writers on this subject, are given below under section 81 of this act.

All Blackstone's canons of descent were in force in the Province of New York, including that prescribing primogeniture. The laws of the Province of New York always much more resembled the laws of England than did the laws in force in the English colonies in New England.32 Indeed, the whole structure of the provincial establishment in New York adhered closely to the English model.33 On the other hand, the intestacy laws of Massachusetts and Connecticut departed greatly from the common law of the old country, and in New England primogeniture was not considered to be in

27 See I Holdsworth, Hist. Eng. Law, 20; 2 P. & M. 257; Inderwick, The King's Peace, XV, 45.

28 Hale, Hist. Com. Law, chap. II; 2 Black. Comm. chap. 14; Dalrymple, Feudal Prop. chap. V; Sullivan's Lectures, XIV, 135.

29 The later English editions of Blackstone (“bringing it up to date"), are very annoying to American lawyers, and it is pleasant to notice seem to be finding some disfavor of late in England.

30 Foss, Biographia Juridica, 322. 31 Hale, Hist. Com. Law, chap. 11. 32 This fact is conceded by Judge Smith, the colonial lawyer, who wrote the History of the Province of New York.

33 The royal provinces, as contradistinguished from the chartered provinces, generally adhered more closely to the English model.

accord with the principles of the settlers in New England. While the intestate laws of Connecticut were ultimately set aside as unauthorized, and contrary to the laws of England, by an order in Council made after the appeal to the King in Council in the case of Winthrop v. Lechmere, yet the Revolution found these local laws still in force in both Connecticut and Massachusetts, although titles by inheritance there were then very much unsettled by reason of the doubts on their validity.34 New York at the same period was undisturbed by any such questions, for here the common law of descent prevailed.

When the Province of New York was granted to the Duke of York to be held of the Crown by tenure in free and common socage, and not in capite or by knight-service, the immediate effect of the patent under the King's seal was to make the English law, relative to the common socage tenure, the law of land in New York.35 This law, so imposed, included the common law of descent ab intestato. The common law of England was otherwise put in force by clauses in the Duke's patents and by negative, but substantial, directions not to depart from the common law directions frequently repeated in commissions running from the Crown or the Duke to the Duke's colonial officials. By subsequent decrees of the King in Council, and in very many other ways unnecessary here to mention, the common law was imposed on New York from the year 1664, with a few reservations favoring the ancient Dutch inhabitants, who for a time (like the inhabitants of parts of Europe after the subsidence of the Roman power37) enjoyed a personal law of inheritance as contradistinguished from the territorial law.38 These reserved rights of the Dutch ultimately wholly disappeared, by reason in part that their old ground briefs were

34 See the Connecticut Intestacy Law, Yale Review, 1894, III, 261294, Select Essays in Anglo-American Law, III, 431 sq.

35 See the author's Introduction to Real Prop. Law (3d ed.), chap. II, and his Hist. Real Prop. in New York, pp. 10, 73, 79, 180. See also I Col. Laws of N. Y. 2.

36 See the author's Introduction to

Bradford's N. Y. Laws of 1694, and his Constitutional History of New York," in the Memorial History of the City of New York.

37 Savigny, Roman Law in the Middle Ages, 99, 129 (Translation). 38 I N. Y. Col. Laws, 44, and see introduction to Bradford's N. Y. Laws of 1694.

converted into new patents, to be held of the Crown by the common socage tenure.39

42

41

As just stated above, the common law of England regulating the descent of title to real property became the law of New York in 1664, and remained in force until the Revolutionary War, without any material alteration.40 On the formation of the State government, the newly formed State of New York then succeeded in legal theory to all the rights of the Crown, as lord paramount over the lands in this State held by the free and common socage tenure, including the right to escheats propter defectum sanguinis. Tenure was not completely abolished until 1830, when all lands were made. allodial. But in the year 178243 the Legislature of this State abolished the right of primogeniture as a rule of descents, making real estate partible inheritances, in which all the issue of equal degree shared alike. The act of 1782, as revised in 1786, remained in force until the enactment of the Revised Statutes, which thoroughly revised the act regulating descents so as to read much as it now does in this chapter of the Decedent Estate Law. Since the Revised. Statutes the changes made by legislation in the law of descents have not been great. The same statutory provisions were carried into the Real Property Law of 1896,45 and next transferred to this act.46

With this brief review of the laws regulating descent in New York, we are now prepared to consider in detail the sections of the present chapter.

Section 80, Decedent Estate Law, Considered. It has been stated that the Commissioners of Statutory Revision of 1896 carried the provisions of the Revised Statutes relative to descents into

39 Fowler's Real Prop. Law (3d ed.), 62.

40 Story on the Constitution, 77 and note p. 78; and see Fowler's Real Prop. Law (3d ed.), chap. II, Introduction.

41 Fowler's Real Prop. Law of New York (3d ed.), 138, 139.

421 R. S. 718, § 3.

43 Chap. 2, Laws of 1782, amended chap. 12, Laws of 1786; 1 J. & V. 245.

44 See below under $ 81, Decedent Estate Law.

45 Chap. 547 Laws of 1896.

46 Decedent Estate Law, enacted by chap. 18, Laws of 1909.

the revision called "The General Laws." This section of this act was then numbered 280 of "The Real Property Law of 1896.” 47 The Commissioners of Statutory Revision announced in 1896 that they did not intend to change the antecedent law by section 280 of "The Real Property Law" of 1896. But by the transposition of clauses, necessary to combine so many sections in one, it was feared by some persons that leases for years might be included in the term "real property," contrary to the former statute and practice. Such an interpretation seemed, however, hardly probable.

49

The revisers of the Consolidated Laws have in section 80 of this act restored the paragraphs in order to indicate the separate sections of the Revised Statutes, from which they were severally derived.

Tenants by Curtesy and in Dower. If we consider this section of the present act, in the order of the re-enacted provisions, we shall first consider the section of the Revised Statutes saving tenancy by the curtesy, and the rights of tenant in dower.50 For some reason curtesy is spelled in the old fashioned way, "courtesy," in the present act. Tenancy by the curtesy was an incident of the old socage tenure,51 and when entails were abolished and lands were made allodial in New York it was expressly saved, and still exists, provided the wife has not alienated her estate in her lifetime, or devised it. The distinction seems to be that curtesy initiate is abolished sub modo, but that curtesy consummate survives all the reforms.52 Tenants by curtesy cannot commit waste, or convey

47 See at the head of this section, p. 330, supra.

48 Note to § 280, The Real Prop. Law, Appendix III, infra.

49 See a technical and obviously professional leading article in The New York Sun of Dec. 10, 1896. Cf. Westchester T. Co. v. Hobby Bottling Co. 102 App. Div. 464, and §§ 2, 290, Consolidated Real Prop. Law of 1909.

50 1 R. S. 754, § 20. See p. 330, supra.

51 Fowler's Real Prop. Law (3d ed.), pp. 47, 153, 154.

52 Laws of 1872, chap. 2; 2 J. & V. 67; I id. 245, § 4; 1 K. & R. 44; 1 R. L. 52, § 4; Bertles v. Nunan, 92 N. Y. 152, 160; Leach v. Leach, 21 Hun, 381; Matter of Clark, 40 id. 237; Hatfield v. Sneden, 54 N. Y. 280; Burke v. Valentine, 5 Abb. Pr. N. S. 164, 52 Barb. 412; affd., Ct. of Appeals, 6 Alb. Law Jour. 167; Wells v. Betts, 45 App. Div. 115, 118; Spindler v. Gibson, 75 id. 444; Matter of Baird, 30 Misc. 668; Valentine v. Hutchinson, 43 id. 314; Howells v. McGraw, 97 App. Div. 460.

right to extract mineral oil from lands.53 Curtesy is a legal estate for life, dependent on marriage, seisin, issue born alive, and death of wife.55 Pedis possessio, or actual entry, or seisin, on wild lands of the wife is not necessary in this State.56

A wife's dower was also an incident of the socage tenure." Estates in dower were's extended to lands made allodial and retained by the Revised Statutes." By the common law aliens had neither dower or curtesy.60 While dower and curtesy are saved by this section of the statute they are not descendible."1

This Article Has no Reference to Deeds or Wills. It is better to consider section 80 of this act in the order of the re-enacted provisions of the Revised Statutes, as they are given in full at the head of this section. It was expressly enacted by the Revised Statutes that the chapter on descents had no application to any limitation of any estate by deed or will. It is confined to successions ab intestato. It was not intended to affect the construction of deeds or wills.64