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I Revised Statutes, 754, Section 21, Supra. Referring to section 21 of the Revised Statutes above set out, it should be noted that it referred wholly to an estate of cestui que use. It was taken from the 4th section of the revised Statute of Uses of 1787.66

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I Revised Statutes, 754, Section 27, Supra. Referring to 1 Revised Statutes, 754, section 27, above set forth, it will be observed that it employs certain terms of the common law, such as "lands," "tenements "68 and "hereditaments," "69 and that without reference to that system of jurisprudence the statute can not be construed. In general terms it first provides that every estate, interest and right, legal and equitable, in lands, tenements and hereditaments shall be co-extensive with the term "real estate," and then it proceeds to certain definite exceptions to that general and distributed proposition, to wit: (1) Estates, rights and interests determined by the death of an intestate seised thereof or entitled thereto. Such estates, rights and interests as are limited to the life of a person, ex vi termini, die with him and do not descend.70 (2) Leases for years pass as at common law to personal representatives."1 (3) Estates for the life of another person or pur autre vie, on the grantee's death, were made by statute to pass to personal representatives, and not as at common law to grantee's heir as special occupant. Thus this exception of the statute now coincides with the statutory change in a rule of law. (4) Real property held in trust, not devised by beneficiary. The fourth exception embraces estates of beneficiaries, and also coincides with the changes made by the Revised Statutes, for cestui que trust13 then ceased to have an equitable estate,” 74 the

65 Revisers' note to I R. S. 754, § 21, Appendix II, infra.

66 2 J. & V. 68; 1 R. L. 74, § 4. 67 See Fowler's Real Prop. Law (3d ed.), 94.

68 See Fowler's Real Prop. Law (3d ed.), 95.

69 See Fowler's Real Prop. Law (3d ed.), 95.

70 See below, what estates and interests are not so limited.

71 See Fowler's Real Prop. Law (3d ed.), 209, 211; Code Civ. Pro., 2712; Bennett v. Rosenthal, II Daly, 91.

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whole estate being vested in trustees, and on the death of survivor passing to the Supreme Court."

Seisin, Real Property, Death. Under the present act, seisin of the ancestor no longer plays an important part in the law of descent. The common-law maxim, "non jus sed seizina facit stipitem," has been practically abrogated." Property now descends from the last owner, not from the person last seised. It may, however, as we shall see, descend ex parte paterna or ex parte materna, unless the last owner acquired it of himself and free from such qualifications. Since the Revised Statutes every estate, interest and right, legal and equitable, except such as are extinguished by the death of intestate, is "real estate" and descendible." As a general proposition it may be stated that the term "real property," as used in this chapter on descents, includes all interests in lands not specifically excepted by this section of the statute; whether such interests are in possession, reversion or remainder.78 The term "death," in this section of the Decedent Estate Law, applies only to natural, actual death; it does not apply to civil death such as results from a sentence to imprisonment for life.79

Contingent Remainders and Interests. What contingent remainders and interests are descendible, and do not, for the purposes of this statute, terminate with the death of a contingent remainderman, is determined by the Real Property Law.80 A possibility of reverter is said to be descendible, but a distinction is made between representation and descent.81

Reversions. Reversions vest at the death of intestate or devisor, and are not now suspended during the intervening life estate for the purpose of ascertaining the stock of descent.82

75 § 111, Consol. Real Prop. Law of 1909.

76 See notes under next section and Fowler's Real Prop. Law (3d ed.), 117, 149, 699.

778 80, Decedent Estate Law; I R. S. 754, § 27.

78 Floyd v. Carow, 88 N. Y. 560, 569; Lakey v. Scott, 15 Week. Dig.

148; Griffith v. Beecher, 10 Barb. 433.

79 Avery v. Everett, 110 N. Y. 317 80 Fowler's Real Prop. Law (3d ed.), 369.

81 Fowler's Real Prop. Law (3d ed.), 372, 373.

82 Barber v. Brundage, 50 App. Div. 123; Lakey v. Scott, 15 Week.

Vested Remainders. Vested remainders are estates, and do not terminate with the life of the vested remainderman, but as a new stock of descent descend, unless devised.83

Statutory Rules. Rights, titles and interests, which, by statute, pass to executors or administrators, of course do not descend under section 81 of this article of the Decedent Estate Law. They depend on other sections of this article, taken out of the Code.

Fixtures. Fixtures annexed to the freehold descend to the heir.85 But if annexed for the purposes of trade, they go to the executor or administrator.86

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Rents. Rents are at common law divided into rent service, rent charge and rent seck.8 Rent reserved on a grant in fee is a hereditament, descendible and devisable.88 As socage rents service are saved both by statute and the Constitution, they continue to be real property and descendible.89 Rents reserved on terms of years, made after June 7, 1875, are apportionable." At common law rent could not be apportioned in respect of time, but it is now otherwise."1 Rent can now be apportioned between heirs and executors and between life tenants and remaindermen, under the present Code.92

Dig. 148; Lyons v. Ostrander, 167 N. Y. 135; Knickerbocker Trust Co. v. King, 126 App. Div. 691. Cf. Vanderheyden v. Crandall, 2 Den. at p. 25; Lese v. Miller, 71 App. Div. 195: Murray v. Miller, 85 id. 414.

83 § 59, Consol. Real Prop. Law; Wendell v. Crandall, 1 N. Y. 491; Savage V. Pike, 45 Barb. 464; Lakey v. Scott, 15 Week. Dig. 148. 84 § 2712, Code Civ. Pro., formerly 2 R. S. 82, § 6.

85 2 R. S. 83, § 7; Ford v. Cobb, 20 N. Y. 344, 347; Potter v. Cromwell, 40 id. 287; McRae v. Cent. Nat. Bank, 66 id. 489, and see Fowler's Real Prop. Law (3d ed.), 169, 170,

86 § 2712, Code Civ. Pro.; Murdock v. Gifford, 18 N. Y. 28.

87 Fowler's Real Prop. Law (3d ed.), 164, 165, 190.

88 See Fowler's Real Prop. Law (3d ed.), 190, 374, 375; Van Rensselaer v. Read, 26 N. Y. at p. 564; Cruger v. McLaury, 41 id. 219, 222. 89 Const. of 1894, art. 1, § II; Smith, Real & Pers. Prop. 13.

90 8 2720, Code Civ. Pro.; chap. 542, Laws of 1875. The latter act was repealed by The Real Prop. Law of 1896, art. 10.

91 See Fowler's Real Prop. Law (3d ed.), 754.

922720, Code Civ. Pro.

Rents reserved to one deceased, which had accrued at the time of his death, if undevised, go to his executors or administrators.93 But the rents accrued after his death follow the reversion, and go to his heir or devise as the case may be.91

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Crops. Grass and fruits, growing or annexed to the freehold, go to the heir9 or devisee. But when severed from the soil they are personal property, and pass to the administrator." Growing crops, by statute, now go to the administrator.98

Pews, Vaults and Graves.

Pews are incorporeal hereditaments, and go to heirs or devisees.99 Private burial grounds continue real estate for all purposes, but the rights of holders of burial lots or vaults are in the same class with pews, incorporeal hereditaments, or usufructuary interests, and descendible.2

Mortgaged Lands. In the State of New York, a mortgage is not a conveyance of land, but a lien. The mortgagor continues to hold the legal title to the land, and it descends to the mortgagor's heirs, or passes to his devisees, non obstante the mortgage. By the English common law the rule was otherwise. Now, where

93 § 2712, Code Civ. Pro.

94 Payn v. Beal, 4 Den. 405, 410; Dolph v. White, 12 N. Y. 296, 301; Marshall v. Mosely, 20 id. 280, 283.

95 See Fowler's Real Prop. Law (3d ed.), 94; Kain v. Fisher, 6 N. Y. 597; Matter of Chamberlain, 140 id. 390; Warren v. Leland, 2 Barb. 613.

96 Stall v. Wilbur, 77 N. Y. 158. Cf. Austin v. Sawyer, 9 Cow. 39.

97 Cresson v. Stout, 17 Johns. 116; 2172, Code Civ. Pro.

98 § 2712, Code Civ. Pro.; Stall v. Wilbur, 77 N. Y. 158.

99 McNabb v. Pond, 4 Bradf. 7.
1 Mitchell v. Thorne, 134 N. Y.

536.

2 Richards V. Northwest Dutch

Church, 32 Barb. 42; Freligh v. Platt, 5 Cow. 494. See 8 114a, Real Prop. Law.

3 Waters v. Stewart, 1 Cai. Cas. 47; Jackson ex dem., etc. v. Willard, 4 Johns. 41; Lansing v. Goelet, 9 Cow. 346, 370; Hitchcock v. Harrington, 6 Johns. 290; Runyan v. Mesereau, Jr., 11 id. 534; Trimm v. Marsh, 54 N. Y. 599, 604; Cox v. McBurney, 2 Sandf. 561; Becker v. McCrea, 193 N. Y. 423; Barson v. Mulligan, 191 id. 306, 315.

4 Dunning v. The Ocean Nat. Bank, 61 N. Y. 497; Heidgerd v. Reis, 135 App. Div. 414, 416.

5 Tudor, Lead. Cas. Real Prop. 992, note; Miller v. Miller, 22 Misc. 582.

mortgagor dies seised of real estate, afterward sold under the mortgage, the surplus moneys are land, in so far as the mortgagor's heirs or devisees are concerned. Otherwise, if the mortgagor die after the sale."

Lands Condemned. Land condemned remains land quoad the private owner, and descendible until appraisal. If the owner die before appraisal, the award is realty, and descends; if he die after appraisal, the award is personalty, and goes to the administrator of an intestate.8

Conversion of Personalty. For the purposes of descent personal estate may be regarded as land. Equitable conversion most often takes place by reason of the provisions of a will, e. g., by grant of a power of sale and direction to distribute proceeds.10 If the power of sale is to enable legacies to be paid, the balance over will be real property for purposes of descent." But to constitute such a conversion of personal into real estate or e converso the direction, or power of sale, must be express and peremptory and independent of discretion.12 But this may be inferred from

6 Dunning v. The Ocean Nat. Bank, 61 N. Y. 497.

7 Denham v. Cornell, 67 N. Y. 556.

8 Ballou v. Ballou, 78 N. Y. 325. 9 Van Tassel v. Burger, 119 App. Div. 509; and land may be regarded as personalty. Champlin v. Baldwin, I Paige, 562; Matter of Vedder, 40 N. Y. St. Rep. 119, modified, 62 Hun, 275.

10 Stagg v. Jackson, 1 N. Y. 206; Horton v. McCoy, 47 id. 21; Hood v. Hood, 85 id. 561; Salisbury v. Slade, 160 id. 278; Merritt v. Merritt, 32 App. Div. 442, 448; Fletcher v. Ashburner, I Bro. C. C. 447, is the principal case, 1 White & Tudor, Lead. Cas. in Eq. 968; Matter of Faile, 51 Misc. 166, 172; Johnston v. Hughes, 187 N. Y. 446, 450; Mc

Garry v. McMahon, 124 App. Div. 607; Matter of Weinstein, 43 Misc. 577. Cf. Gourley v. Campbell, 66 N. Y. 169.

11 Matter of Weinstein, 43 Misc. 577.

12 White v. Howard, 46 N. Y. 144, 162; Hobson v. Hale, 95 id. 588; Trowbridge v. Metcalf, 5 App. Div. 318, 321; Chamberlain v. Taylor, 105 N. Y. 185; Matter of McComb, 117 id. 378 (on all questions of conversion and intent, see Ackroyd v. Smithson, I White & Tudor, Lead. Cas. in Eq. 1027, and notes); Clements v. Babcock, 26 Misc. 90, 97; Matter of Traver, 161 N. Y. 54, 57; Matter of Tatum, 61 App. Div. 513; Matter of Hammond, 74 id. 547, 557; Russell v. Hilton, 80 id. 178; Matter of Coolidge, 85 id. 295; Phoenix v.

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